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

text:
    STATE of Louisiana v. Henry L. CHILDS.
    No. 2013-KA-0948.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellant, State of Louisiana.
    Aubrey M. Harris, Kennedy Harris, LLC, New Orleans, LA, for Defendant/Ap-pellee, Henry L. Childs.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge SANDRA CABRINA JENKINS).
   MAX N. TOBIAS, JR., Judge.

hOn 24 July 2012, the defendant/appel-lee, Henry L. Childs, was charged by bill of information in case number 512-568 with a violation of La. R.S. 14:69 B(l), Illegal Possession of Stolen Things Less than $1500. Following a trial on 28 December 2012, Mr. Childs was found not guilty. On 7 January 2013, the state filed second bill of information charging Mr. Childs again with a violation of La. R.S. 14:69 B(l). That is the present case before us. Mr. Childs entered a plea of not guilty on 24 January 2013, and waived his right to a formal reading of the bill of information; a bond of $1,000 was set. Mr. Childs filed a motion to quash on 23 February 2013, asserting double jeopardy. His motion to quash was granted on 27 March 2013, following a hearing, from which the state now appeals.

According to the record, sometime in calendar year 2009, thousands of dollars of musical equipment were stolen. The state alleges that Mr. Childs was in |2possession of the equipment and later sold the stolen equipment in calendar year 2010, knowing that it was stolen property.

In its sole assignment of error, the state maintains that the trial court erred in granting Henry Child’s motion to quash. For the reasons that follow, we affirm.

I.

The Fifth Amendment to the U.S. Constitution and La. Const. Art. I, § 15 guarantees that no person shall be twice placed in jeopardy for the same offense. This guarantee protects against a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. State v. Smith, 95-0061, p. 3 (La.7/2/96), 676 So.2d 1068, 1069. La.C.Cr.P. art. 596 states:

Double jeopardy exists in a second trial only when the charge in that trial is:
■ (1) Identical with or a different grade of the same offense for which the defendant was in jeopardy in the first trial, whether or not a responsive verdict could have been rendered in the first trial as to the charge in the second trial; or
(2)Based on a part of a continuous offense for which offense the defendant was in jeopardy in the first trial.

Louisiana courts apply two tests to analyze double jeopardy claims: (1) the Blockburger test, set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 806 (1932), and (2) the “same evidence” test set forth in State v. Steele, 387 So.2d 1175 (La.1980). Under the Blockburger test:

where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

Blockburger, 284 U.S. at 304, 52 S.Ct. 180, citing Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911).

Under the broader “same evidence” test:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.

Steele, 387 So.2d at 1177, citing State v. Doughty, 379 So.2d 1088 (La.1980).

The same evidence test “considers the actual physical and testimonial evidence necessary to secure a conviction, and concerns itself with the ‘evidential focus’ of the facts adduced at trial in light of the verdict rendered, i.e., how the evidence satisfies the prosecution’s burden of proof.” State v. Williams, 07-0931, p. 5 (La.2/26/08), 978 So.2d 895, 897.

The state begins its argument by defining a motion to quash as defined in State v. Byrd, 96-2302, pp. 18-19 (La.3/13/98), 708 So.2d 401, 411:

A motion to quash is, essentially, a mechanism whereby pre-trial pleas are urged, i.e., pleas which do not go to the merits of the charge. At a hearing on such a motion, evidence is limited to procedural matters and the question of factual guilt or innocence is not before the court. La.C.Cr.P. art. 531 et. [sic] seq.; State v. Rembert, 312 So.2d 282 (La.1975); State v. Patterson, 301 So.2d 604 (La.1974).
In considering a motion to quash, a court must accept as true the facts contained in the bills of information and in the bill of particulars, and determine as a matter of law and from the face of the pleadings, whether a crime has been charged; while evidence may be adduced, such may not include a defense on the merits. State v. Gerstenberger, 260 La. 145, 255 So.2d 720 (1971); State v. Masino, 214 La. 744, 750, 38 So.2d 622 (1949) (“the fact that defendants may have a good defense is not sufficient grounds to quash the indictment”).

|4In the case at bar, the state argues that Mr. Childs was acquitted because the trial court erred in requiring that the state prove that the date on the bill of information was the actual date Mr. Childs allegedly possessed stolen equipment. The state maintains that since it failed to prove that specific date, Mr. Childs was found not guilty. The state relies on State v. Hall, 12-0601 (La.6/29/12), 91 So.3d 302, arguing that a hearing must be held in order to determine whether two prosecutions are based on the same evidence and contending that although the Court in Hall addressed double jeopardy for the violation of the constitutional prohibition on multiple punishments for the same offense, the same principles apply in examining multiple prosecutions. The Court in Hall reasoned when “a question arises as to whether the same evidence required to convict a defendant of one offense is also the same evidence required to convict him of the other crime, the court should defer ruling on a motion to quash until trial has fully developed the factual context of a claim that prosecution has implicated the double jeopardy prohibition of multiple punishments for the same offense.” Id., pp. 1-2, 91 So.3d at 303.

The state further maintains that the showing made by Mr. Childs as to the double jeopardy claim was insufficient, arguing that Mr. Childs failed to submit a transcript of the previous trial or any evidence surrounding the facts pertaining to the prosecution. Therefore, the state asserts that in light of United States v. Stricklin, 591 F.2d 1112 (5th Cir.1979), the burden was on Mr. Childs to put forth the evidence on his claim for double jeopardy.

Contrariwise, according to Mr. Childs, the trial court reviewed two records, heard oral argument, and reviewed the written memorandum submitted by the |5parties. Relying on State v. Odom, 02-2698 (La.App. 1 Cir. 6/27/03), 861 So.2d 187, Mr. Childs contends that the state failed to prove that the trial court abused its discretion by granting the motion to quash, and therefore we cannot reverse the trial court. In Odom, the defendant, Robert Odom, the then Commissioner of the Louisiana Department of Agriculture and Forestry, was charged with numerous varying felony offenses. Odom petitioned the court to quash certain parts of his indictment, and on appeal, the court reversed in part and affirmed in part, and reasoned, “[a]n appellate court reviews such a ruling for abuse of discretion.” Odom, p. 6, 861 So.2d at 191. We find Odom applicable to this case only for the law of the standard for appellate review. The fact scenario in Odom was much more complex than the case at bar; further, the law of another circuit court of appeal is only persuasive authority and this court of appeal is not bound thereby.

Mr. Childs also argues that the record reveals that the bills of information in both cases are nearly identical; a difference of only one day exists for the date of the offense; and the police report and item number used in each case are the same. He maintains that the trial court recognized that no legal basis existed, besides forum shopping for another trial court, behind the state charging him one month later for the same offense.

The state cites the trial court’s reasoning for the 28 December 2012 ruling in the prior case:

Defendants are charged with bills of information. This is the charging document. The State has gone to trial today with a defective bill of information charging an incorrect date ... [Fjirst of all, bills of information could say that because that’s what the prosecutor would have it say because the prosecutor fills this out. As the judge, I go by whether they proved this.
UThe State has charged this gentleman with possessing the property on July 10th of 2009, and the State has offered no proof that he possessed the property nor [sic] that he even stole it on July 10th of 2009. They presented no proof on the bill of information. In fact, you will recall I even asked the State, “What was the date? What was the date when Mr. Sanders bought this property from Mr. Childs?” And he [the prosecutor] said October 8th of 2010.

The 7 January 2013 bill of information in the present case charged Mr. Childs with committing. the crime on 11 July 2009. The State subsequently amended the date of the alleged crime from 11 July 2009 to any day between 11 July 2009 through 8 October 2009.

If the district court denied Mr. Childs’ motion to quash, he would be tried again on the same offense in a second trial, which would apparently be double jeopardy under La.C.Cr.P. art. 596.

The offense charged is identical to the offense in the first case. In light of Blockburger, 284 U.S. at 304, 52 S.Ct. 180, and Steele, 387 So.2d at 1177, the evidence needed to convict Mr. Childs of a violation of La. R.S. 14:69 B(1) would be the exact same evidence that was used in the first trial when the district court concluded that Mr. Childs was not guilty. The evidence needed to find Mr. Childs guilty in a second case places Mr. Childs in jeopardy again when the district court has to review the same evidence necessary to convict him of the amended bill of information. Clearly this violates the Fifth Amendment to the U.S. Constitution, La. Const. Art. I, § 15, and La.C.Cr.P. art. 596.

The court in Stricklin, supra, concluded that the burden of proof is on the defendant to prove a claim of double jeopardy. The state was correct in arguing that Stricklin is applicable here; however, Mr. Childs was successful in defending |7his motion to quash by referencing the bill of information in the first case and the amended bill of information, demonstrating that only the date and some wording were changed.

The trial court, looking to La.C.Cr.P. art 468, concluded in the instant case that:

[t]he Court does not believe that the date of the commission of the offense isn’t [sic] essential to this offense, and the Court believes that trying Mr. Childs for this offense again may constitute double jeopardy.

The district court did not abuse its discretion in finding that trying Mr. Childs again on theft of the same merchandise, from the same place, but on a different date constituted double jeopardy.

We find the state seeks to prosecute Mr. Childs for the same offense for which he was found not guilty of in December 2012. Therefore, the trial court did not abuse its discretion in granting Mr. Child’s motion to quash.

Also, we find no merit to the state’s argument that the district court abused its discretion in failing to conduct a hearing pursuant to Hall, supra. Sufficient evidence was before the trial court when it ruled at the 27 March 2013 hearing.

We affirm the ruling of the trial court, granting the motion to quash in favor of Henry L. Childs.

IsAFFIRMED.

      . The record on appeal does not contain a transcript of that trial. However, in both the state’s brief and in the state’s response to Mr. Childs' motion to quash, the state quotes the trial court’s reasoning when finding Mr. Childs not guilty in that first case. Noting no objection from Mr. Childs in the record before us, we infer that the quoted statement is accurate.

      . The date on the original bill of information was subsequently amended to provide a range of dates.

      . La.C.Cr.P. art. 468 states:
      The date or time of the commission of the offense need not be alleged in the indictment, unless the date or time is essential to the offense.
      If the date or time is not essential to the offense, an indictment shall not be held insufficient if it does not state the proper date or time, or if it states the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day.
      All allegations of the indictment and bill of particulars shall be considered as referring to the same date or time, unless otherwise stated.


source: Caselaw Access Project

author: ROSEMARY LEDET, Judge.

license: Public Domain

text:
    BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE v. 1732 CANAL STREET, L.L.C., et al.
    No. 2013-CA-0976.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2014.

      J. Kenton Parsons, Luke F. Piontek, Thomas J. Capella, Christian J. Rhodes, Shelley A. McGlathery, Roedel Parsons Koch Blache Balhoff & Mccollister, New Orleans, LA, for Plaintiff/Appellant.
    Randall Alan Smith, L. Tiffany Davis, Smith & Fawer, L.L.C., Trevor George Bryan, Trevor Bryan, APLC, New Orleans, LA, for Defendant/Appellee/Cross Appellant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge EDWIN A. LOMBARD, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

I,This is the second appeal in this expropriation case. The plaintiff — the expropriating authority — is the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College (the “Board”). The defendant — the property owner — is 1732 Canal Street, L.L.C. (“1732 Canal”). In the first appeal, the Board challenged the jury’s award of $9,566,640.00 to 1732 Canal as the total compensation due for the expropriated property; this court affirmed. Board of Sup’rs of Louisiana State University and Agr. and Mechanical College v. 1732 Canal Street, L.L.C, 12-1370 (La.App. 4 Cir. 6/19/13), — So.3d-, 2013 WL 3078512 (“7732 Canal I”).

In the instant appeal, the Board challenges the post-trial award to 1732 Canal of expert fees and costs; the Board does not challenge the post-trial award of attorneys’ fees in the amount of 18% of the additional just compensation plus interest. Answering the appeal, 1732 Canal seeks an increase in attorneys’ fees. For the reasons that follow, we affirm the awards of expert fees and costs; and we |2remand to the trial court for a determination of the additional award of attorneys’ fees owed for post-judgment work on appeal.

I.

On October 18, 2010, the Board filed a petition for expropriation against 1732 Canal in its capacity as owner of the property located at 1732 Canal Street in New Orleans, Louisiana (the “Property”). The purpose of the expropriation was to facilitate the construction of the new University Medical Center (also known as the Academic Medical Center). According to the petition, the improvements on the Property included a commercial building — a 17-floor, 618,000 square feet building with an attached 250-car parking garage. When it was built in 1952, the building was one of the largest apartment buildings in the South, having 1,036 apartment units on the upper floors, and meeting rooms and retail space on the lower floors. At the time of the trial, the Board was planning to implode the building.

Contemporaneous with the filing of the expropriation petition, the Board deposited $4,500,000.00 into the registry of the court as just compensation due to 1732 Canal to compensate it to the full extent of its loss. In response, 1732 Canal filed an answer and a reconventional demand, alleging that the Board had “not deposited the just and fair compensation due defendant.”

In its petition, the Board requested a jury trial. From April 30, 2012, to May 3, 2012, a four-day jury trial was held. As a result of stipulations, the sole issue |,.¡presented to the jury was the amount of just compensation due to 1732 Canal. At trial, eight witnesses testified — four on the Board’s behalf and four on 1732 Canal’s behalf. 1732 Canal’s four witnesses (all experts) were as follows: (1) Heyward M. Cantrell, of Cantrell Real Estate, Inc., who was qualified as an expert in the area of real estate appraising; (2) Jimmie Thorns, Jr., of Thorns Consulting, who was qualified as an expert real estate appraiser; (3) John C. Williams, of John C. Williams Architects, L.L.C., who was qualified as an expert in the areas of architecture, availability of tax credits, and adaptive reuse; and (4) James Blazek, Jr., of Leaaf Environmental, L.L.C., who was qualified as an expert in asbestos, mold, lead identification, abatement, and management.

The testimony of 1732 Canal’s two appraisers is summarized in this court’s opinion in 1732 Canal I as follows:

Defendant expert Heyward Cantrell testified that the highest and best use of the property was for adaptive re-use and that the building was suitable for multi-use, including apartments, senior living or assisted facilities, medical student housing, and other residential or medical related purposes. Based on a comparable sales analysis for the land, Mr. Cantrell asserted that, based on a land value of $45.00 per square foot, the land value of the property was $3,690,000.00. Mr. Cantrell valued the improvements on the property using the cost approach, beginning with the replacement costs for the shell of the building by John Williams (the defendant’s expert in the area of architecture, availability of tax credits, and adaptive re-use), applying standard indirect costs and depreciation analysis, as well as cleaning costs estimated by Mr. Williams and asbestos remediation costs [estimated by James Blazek, Jr.], resulting in a depreciated improvement valued of $18,060,000.00. Thus, after adding the value of the land to the improvements, Ms. Cantrell opined that the October 2010 market value of the property and improvements was $21,750,000.00.
| ¿Defendant expert Jimmie Thorns testified that the highest and best use of the property was for future development of office, condo, retail, or commercial mixed use developments but conceded that, as the building was extremely well constructed, it was of the type adaptively re-used “all the time in New Orleans.” Using comparable vacant land sales prices ranging from $46.95 to $98.83 per square foot and giving greater weight to the price per square foot of a property two blocks from the defendant property in this case, Mr. Thorns estimated that the defendant land value was (based on $58.00 per square foot) $4,737,000.00. He used a separate comparative sales analysis of similar properties acquired for adaptive re-use purposes to determine that the total improvement value was $16,703,000.00, thus resulting in a total just compensation due the landowner of $21,460,000.00. However, Mr. Thorns acknowledged that he failed to include into his calculations any value for the approximately 100,000 square feet of parking garage.

1732 Canal Street I, 12-1370 at pp. 7-8, — So.3d at-.

The jury returned a verdict of $9,566,640.00 as the total compensation due for the expropriated property. On May 10, 2012, the trial court entered judgment in accord with the jury’s verdict. Subtracting the amount deposited ($4,500,-000.00) from the jury’s verdict ($9,566,-640.00), the trial court awarded 1732 Canal an additional sum of $5,066,640.00. In its judgment, the trial court also awarded “any attorney’s fees, expert fees, and costs to be fixed upon hearing of the post-trial motion to be filed promptly by 1732 Canal Street, L.L.C.”

On May 25, 2012, 1732 Canal filed a Motion for Award of Attorneys’ Fees, Expert Fees, and Costs (the “Motion”). In the Motion, 1732 Canal requested attorneys’ fees in the full amount it paid under a contingency fee contract of 33 1/3% of the additional just compensation, and costs and expert fees in the actual | r,amount it incurred. It also requested a special setting, noting the probable need to present evidence. Although the Motion was set for hearing on August 2, 2012, the parties jointly agreed, due to a scheduling conflict, to submit the Motion on the briefs. The trial court allowed the parties to submit supplemental memoranda.

In support of the Motion, 1732 Canal attached five affidavits — one from its lead counsel, Randall Smith, and one from each of its four testifying expert witnesses. In his affidavit, Mr. Smith attested that 1732 Canal incurred a total of $391,998.00 taxable expert fees and costs in prosecuting its claims to judgment by jury verdict. Mr. Smith also attested that 1732 Canal’s attorneys “anticipate incurring significant additional fee hours during the post-trial process and any appellate process.”

Each of the four experts in their affidavits explained their qualifications, the work they performed in this case, and the fees they charged 1732 Canal as follows.

Heyward Cantrell

Mr. Cantrell attested that he is a Florida resident; that he is the head of Cantrell Real Estate, Inc.; and that he has been appraising property since the 1970s. He attested that in preparation for trial in this case, he prepared an 86-page expert report. He also attested that the amount of fees invoiced by him (and paid by 1732 Canal) totaled $132,647.13, broken down as follows:

Strategy/Conferences, Property Inspections 26.25 hours $ 15,851.25
Review of appraisals; Research; Report Preparation 78.95 hours $ 70,319.50
Prepare for deposition Deposition 45 hours $ 13,980.00
Prep for trial testimony 43 hours $ 12,685.00
Trial 29.5 hours $ 8,702.50
FedEx $ 410.89
Travel $ 10,697.99
TOTAL INVOICED AMOUNT $132,647.13

| ¡Jimmie Thorns

Mr. Thorns attested that he is a New Orleans domiciliary; that he is President of Thorns Consulting, Inc.; and that he has been appraising property in the New Orleans area continuously since 1978. He attested that in preparation for trial in this case, he prepared a 121-page expert report. He also attested that the amount of fees actually invoiced by him (and paid by 1732 Canal) totaled $38,200.00, broken down as follows:

Appraisal $18,000.00
Consultation 11 hours $ 2,200.00
Depo. Pre/Depo 10 hours $ 2,000.00
Trail Prep + Trial 80 hours $16,000.00
TOTAL INVOICED AMOUNT © © © © 03 OO CO 6/5-

John Williams

Mr. Williams attested that he is the head of John C. Williams Architects, L.L.C.; that he has been engaged as an architect in the New Orleans area continuously since 1983; and that he has been accepted as an expert in architecture by the Louisiana courts. Mr. Williams attested that the amount of fees actually invoiced by him (and paid by 1782 Canal) totaled $106,969.03, broken down as follows:

Property Inspections, Research, Document Review and Report Preparation 404.91 hours $ 91,179.68
Prepare for Deposition; Deposition 6.5 hours $ 1,950.00
Prepare for Trial + Trial (Williams) 41.25 hours $ 12,375.00
Document Production Costs, Postage, etc. $ 1,464.35
TOTAL INVOICED AMOUNT $106,969.03

James Blazek, Jr.

Mr. Blazek attested that he has been a principal of Leaaf Environmental, L.L.C, since 2005; that he has been engaged in environmental consulting work in New Orleans since 1989; that he holds numerous LDEQ and EPA certifications; |7and that he is a Louisiana state certified Asbestos Inspector and Supervisor. Mr. Blazek attested that the amount of fees actually invoiced by him (and paid by 1732 Canal) totaled $24,974.50, broken down as follows:

$ 2,465.79 Review of Environmental Documents
$ 2,625.00 Deposition prep + Deposition
$19,062.50 Tidal prep + Trial
$ 499.00 Automobile charges + Parking
$ 150.00-Equipment + related charges
$ 172.21 Document Production Costs, Postage, etc.
TOTAL INVOICED AMOUNT $24,974.50

Two of the four experts — Mr. Cantrell and Mr. Williams — attested that their invoices included time for other eredentialed staff of their firm, who assisted them in the fact-gathering related to their expert report and trial preparation. Both Mr. Cantrell and Mr. Williams further attested that their staffs work was performed under their supervision and that it “was work necessary for trial that [they] would have been required to perform (at [their] hourly rate) if [they] had not had their [staffs] assistance.” Three of the experts (all but Mr. Thorns) attested that they considered and relied in part upon the work performed by other experts in this matter.

Finally, all four experts attested that the work that they performed in this matter consisted of the following three tasks: (1) fact-gathering and site investigation necessary for the preparation of their reports; (2) preparation of their expert reports; and (3) preparation for trial, including preparation for cross-examination questions for both deposition and trial purposes. All four experts further attested that all of the fees set forth in their invoices submitted to the trial court in connection with the Motion were actually incurred and necessary to their presentation of their testimony at trial.

|sIn addition to the total invoiced fees for the four testifying experts, 1732 Canal also requested the fees for its exhibit and demonstrative consultant, Jeffrey Hamill, in the total invoiced amount of $36,800.00, broken down as follows:

12 hours $ 3,500.00 Expert Witness Meetings + Site Visits
112 hours $16,800.00 Demonstrative Design
95 hours $ 9,500.00 Exhibit Prep/Organization (trial prep)
4 days $ 7,000.00 War Room Services (trial prep) + Trial
TOTAL INVOICED AMOUNT $36,800.00

1732 Canal further requested the fees for the following three non-testifying experts: Morphy Makofsky, Inc. — $1,690.00; Moses Consulting Engineer — $7,027.50; and Reed Estimating Services Co.— $3,150.00. 1732 Canal still further requested other miscellaneous costs, including filing fees and equipment rental.

On November 28, 2012, the trial court rendered judgment in favor of 1732 Canal and against the Board on the Motion, awarding the following: $750,000.00 in attorneys’ fees; $10,472.50 for Mr. Cantrell’s expert witness fee; $21,000.00 for Mr. Thorns’ expert witness fee; $8,031.25 for Mr. Williams’ expert witness fee; $8,719.00 for Mr. Blazek’s expert witness fee; $784.50 for filing fees; $607.82 for sheriffs costs; $150.00 for jurors’ meals; $2,524.44 for the rental of equipment used at trial; $9,500.00 for Mr. Hamill’s exhibit preparation; and $4,000.00 for Mr. Hamill’s court room services.

In response, 1732 Canal filed a motion for new trial. Following two hearings, the trial court granted the motion for new trial. In its judgment dated April 29, 2013, the trial court awarded 1732 Canal attorneys’ fees in the amount of 18% of the additional just compensation plus interest. The trial court further awarded the same amounts as in its earlier judgment for the following miscellaneous costs: filing fees ($784.50), sheriffs costs ($607.82), jurors’ meals |9($150.00), and rental equipment used at trial ($2,524.44). The trial court still further awarded the following expert fees and costs:

1.Heyward Cantrell/Cantrell Real Estate, Inc.:
78.95 hours $70,319.50 Review of appraisals; Research; Report Preparation
43 hours $12,685.00 Prep for trial testimony
29.5 hours $ 8,702.50 Trial
$91,707.00 TOTAL AWARD
2.Jimmie Thorns/Thorns Consulting, Inc.:
Appraisal $18,000.00
Trail Prep + Trial 80 hours $16,000.00
TOTAL AWARD $34,000.00
3.John Williams/John C. Williams Architects, L.L.C:
Property Inspections, Research, Document Review and Report Preparation 404.91 hours $ 91,179.68
Prepare for Trial + Trial (Williams) 41.25 hours $ 12,375.00
TOTAL AWARD $103,554.68
4.James Blazek, Jr./Leaaf Environmental, L.L.C:
Review of Environmental Documents $ 2,465.79 Trial prep + Trial $19,062.50
TOTAL AWARD $21,528.29
5.Jeffrey Hamill:
Demonstrative Design 112 hours $16,800.00
Exhibit Prep/Organization (trial prep) 95 hours $ 9,500.00
War Room Services (trial prep) + Trial 4 days $ 7,000.00
TOTAL AWARD $33,300.00
6.Morphy Makofsky, Inc. $1,690.00
7. Moses Consulting Engineer $7,027.50
8. Reed Estimating Services Co. $3,150.00

This appeal by the Board followed. Answering the appeal, 1732 seeks an increase in attorneys’ fees.

II.

|10On appeal, the Board does not challenge 1732 Canal’s right to recover reasonable expert fees and costs; rather, it challenges the excessiveness and unreasonableness of certain of the expert fees and costs awarded. Before addressing the Board’s arguments, we outline the general principles governing the award of expert fees and costs.

The award of costs — which encompasses the award of expert fees — is authorized by overlapping statutory and co-dal provisions: La. R.S. 13:5112, which provides for the discretionary award of costs in favor of the successful party in a suit against the state or a political subdivision; and La. C.C.P. art.1920, which provides that costs are paid by the party cast in judgment unless the court, in equity, rules otherwise. Vela v. Plaquemines Parish Government, 00-2221 to 00-2224, p. 29 (La.App. 4 Cir. 3/13/02), 811 So.2d 1263, 1282. Items that may be taxed as costs are governed by La. R.S. 13:4533, which covers general costs, and La. R.S. 13:3666, which covers expert witness fees. Id.

[nThis court recently outlined the governing principles for reviewing awards of costs, including expert witness fees, in Watters v. Department of Social Services, 08-0977, pp. 49-50 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128, 1162, as follows:

A trial court has great discretion in awarding costs (including expert witness fees) and can only be reversed on appeal upon a showing of an abuse of that discretion. Pelleteri v. Caspian Group Inc., 02-2141, p. 19 (La.App. 4 Cir. 7/02/03), 851 So.2d 1230, 1241 (citing Mossy Motors, Inc. v. Sewerage & Water Bd. of City of New Orleans, 01-0486 (La.App. 4 Cir. 9/19/01), 797 So.2d 133); Jacobs v. Loeffelholz, 94-1123 (La.App. 4 Cir. 12/15/94), 647 So.2d 1282, 1287. The governing statutory provisions regulating the recovery of court costs are La. C.C.P. art.1920, La. R.S. 13:4533, and La. R.S. 13:3666....
“Article 1920 does not mean that there are no guidelines to govern the taxing of costs.” Johnson v. Marshall, 202 So.2d 465, 469 (La.App. 1st Cir.1967). One guideline is that only costs provided for by positive law are taxable against the party cast in judgment. Moolekamp v. Rubin, 562 So.2d 1134, 1136 (La.App. 4th Cir.1990)(citing Gore v. American Motorists Ins. Co., 244 So.2d 894 (La.App. 1st Cir.1971)). The jurisprudence has recognized that the 112types of costs recoverable as court costs are narrowly defined by statute. Tipton v. Campbell, 08-0139, pp. 26-28 (La.App. 4 Cir. 9/24/08), 996 So.2d 27, 44-46. The types of costs that are allowed to be taxed as costs are defined in La. R.S. 13:4533....
Expert witness fees for testifying at trial and for time spent preparing for that testimony are recoverable. Yuspeh v. Koch, 02-1179, p. 3 (La.App. 5 Cir. 5/28/03), 848 So.2d 96, 98 (citing Smith v. Roussel, 00-1672 (La.App. 1 Cir. 6/22/01), 808 So.2d 726); Orea v. Scallan, 32,622 (La.App. 2 Cir. 1/26/00), 750 So.2d 483, 493-94. The trial court is required to determine the reasonable amount of expert witness fees to be taxed as court costs based on “the value of time employed and the degree of learning or skill required.” La. R.S. 13:3666(A). The amount actually billed by the expert is not determinative of the reasonable amount taxable as costs. Yuspeh, supra (citing Mossy Motors, supra ).

The determination of the reasonableness of an expert fee award turns on the particular facts and circumstances of the case. Missouri Pacific R. Co. v. Nicholson, 460 So.2d 615, 629 (La.App. 1st Cir.1984). Although it is a case-specific determination, the jurisprudence has identified multiple factors to consider in determining a reasonable expert fee award, including the following factors:

• The amount of time consumed by the experts in compiling their reports;
• The amount charged to the landowner;
• The amount of time spent in preparing for trial;
• The amount of time spent in court;
• The expert’s expertise;
|13* The difficulty of the expert’s work;
• The amount of the award; and
• The degree to which the expert witnesses’ opinion aided the court in its decision.

State v. St. Charles Airline Lands, Inc., 03-1292, 03-1293, 04-20, pp. 21-22 (La.App. 5 Cir. 4/27/04), 871 So.2d 674, 688 (citing Natchitoches Parish Port Comm’n v. DeBlieux & Kelley, Inc., 99-313 to 99-315, p. 30 (La.App. 3 Cir. 3/22/00), 760 So.2d 393, 410-11); see also Tipton v. Campbell, 08-0139, p. 28 (La.App. 4 Cir. 9/24/08), 996 So.2d 27, 46 (citing City of Shreveport v. Noel Estate, Inc., 41,148, pp. 30-31 (La.App. 2 Cir. 9/27/06), 941 So.2d 66, 85-86). The jurisprudence has identified as the most important factor in determining an expert fee award the requirement that the award be reasonable. Nicholson, 460 So.2d at 629 (citing Town of Krotz Springs v. Weinstein, 401 So.2d 664 (La.App. 3d Cir.1981)) (stating that the “most important” factor is that “expert witnesses are entitled only to reasonable compensation.”).

III.

In this case, the Board contends that the trial court abused its discretion in awarding expert fees and costs by:

• Disregarding La. R.S. 13:3666 and on-point Louisiana jurisprudence requiring that expert fee awards must be reasonable, and creating a new rule for the award of expert fee awards in expropriation cases that is in direct conflict with well-established statutory law and jurisprudence;
• Awarding Mr. Williams an expert fee award in the amount of $103,554.68 for 446.16 hours of work in this matter (an amount that is nearly equivalent to the hours spent by lead counsel for 1732 Canal) when the trial court conceded it had “reservations” about the award because it was “high”;
114* Awarding 1732 Canal’s secondary, out-of-state appraiser Mr. Cantrell a $91,707.00 expert fee award when this Court has held those fees are unrecoverable because 1732 Canal made no showing that a local expert was unavailable;
• Awarding 1732 Canal’s experts fees for all “preparatory” work, including fees for time spent conferring with 1732 Canal’s attorneys and staff, when this Court has held that such fees are not recoverable; and
• Awarding 1732 Canal the total costs for all exhibits, including those exhibits not introduced into evidence at trial.

The Board further contends that, contrary to 1732 Canal’s contention, expert fee awards in expropriation cases do not impact a landowner’s constitutional right to be compensated to the full extent of its loss; rather, the Board points out that the award of expert fees and costs is separate from the damage award for just compensation. In support, the Board cites Rivet v. State, Dep’t of Transp. & Dev., 01-0961, p. 6 (La.11/28/01), 800 So.2d 777, 782; and State v. Miss Chub, L.L.C., 47,054, p. 4 (La.App. 2 Cir. 4/11/12), 92 So.3d 422, 425.

To analyze the Board’s contentions we divide the issues it raises into the following four categories: (i) new standard for awarding expert fees; (ii) out-of-state expert’s fees, (iii) expert fees for consultation with counsel, and (iv) award of costs for exhibits not introduced into evidence. In addressing these categories, we utilize the data in the following chart as a frame of reference.

Transcript Pages Total Fee Expert Consumed by Charged Total Fee Witness Qualification Expert’s Testimony (Invoiced) Awarded
Mr. Cantrell Appraiser 102 pages $132,647.13 $ 91,707.00
Mr. Thorns Appraiser 88 pages $ 38,200.00 $ 34,000.00
Mr. Williams Architect 114 pages $106,969.03 $103,554.68
Mr. Blazek Environmental 75 pages $ 24,974.50 $ 21,528.29

JjsIV.

The first issue is whether the trial court erred in creating and applying a new standard for awarding expert fees in expropriation cases. According to the Board, the new standard the trial court applied was that it awarded compensation to the property owner (1732 Canal) for all documented (invoiced) expert fees that the property owner actually incurred. The Board contends that neither whether the property owner actually incurred expert fees nor whether the trial court had documentation (invoices) for the expert fees is relevant in determining the reasonableness of the expert fee award. The Board thus contends that the trial court abused its discretion by creating and applying this new standard to award expert fees for Mr. Williams and Mr. Cantrell in the amounts of $103,554.68 and $91,707.00, respectively. The Board characterizes these two awards as so outrageously excessive as to “shock the conscience.”

The Board’s contention that the trial court adopted and applied a new, incorrect standard is based primarily on the following colloquy between counsel and the trial court regarding the award for Mr. Williams’ trial preparation — $91,179.68 for 404.91 hours of “Property Inspections, Research, Document Review and Report Preparation”:

THE COURT:
Well, the way it’s indicated it just shows that this was all done for the research and it was for preparation, so it’s kind of hard for the Court to divide it up because I have no mechanism to do so.
MR. PIONTEK [THE BOARD’S COUNSEL]:
Well, I mean, just on the basis of reasonableness ... that’s about as many hours as Mr. Smith [lead counsel for 1732 Canal] here spent on the case, so it’s hard to understand that Mr. Williams spent 400 hours on that case and testified for a couple of hours at trial. That one I have real reservations and a hard time with, Judge.
J^THE COURT:
And I have some reservations about it as well but I don’t know how to divide it up. I have his affidavit saying that’s what he spent. I don’t have anything telling me he didn’t spend it.
MR. PIONTEK:
You can say it was excessive.
MR. SMITH [1732 CANAL’S COUNSEL]:
That’s what he was paid and that was to formulate the whole cost of the place.
MR. PIONTEK:
You can find that excessive, Judge.
THE COURT:
It is high.

Ultimately, the trial court found that the total amount of $91,179.68 was recoverable. In so finding, the trial court stated: “[wjhile the Court finds that that amount is high, the Court has the documentation for it. I’ll have to go along with that.”

The Board emphasizes that both the trial court and 1732 Canal acknowledged that the award for Mr. Williams’ preparatory work was “high.” The Board contends that a high fee, by definition, cannot be a reasonable fee. In support, the Board cites Black’s Law Dictionary’s definition of reasonable, which is as follows: “1. Fair, proper, or moderate under the circumstances -treasonable pay>. 2. According to reason <your argument is reasonable but not convincing>.” Bryan A. Garner, Black’s Law Dictionary, 1293 (8th ed.2004). However, the comments under this definition point out that “ ‘[rjeasoning does not help much in fixing a reasonable or fair price.’ ” Black’s, supra. The Board’s reliance on Black’s definition of reasonable is thus misplaced.

1171732 Canal counters that even a high fee can be a reasonable fee. In support, 1732 Canal cites two cases in which substantial fees have been upheld in expropriation cases: St. Charles Airline Lands, Inc., 03-1292, 03-1293, 04-20 at pp. 21-22, 871 So.2d at 688 (affirming award of expert fees of $151,435.79 in 2004); DeBlieux & Kelley, Inc., 99-313 to 99-315 at p. 30, 760 So.2d at 410-11 (affirming award of expert fees of about $100,000.00 in 2000). The jurisprudence supports 1732 Canal’s contention that even a high fee award can be a reasonable fee. See Bo-urque v. Vinturella, 543 So.2d 640, 642 (La.App. 1st Cir.1989) (holding that “[w]hile we find these expert fees to be high, we do no find these fees so high as to constitute an abuse of discretion”); see also Rauch-Milliken Int’l, Inc. v. Halprin, 09-723, p. 7 (La.App. 5 Cir. 12/29/09), 30 So.3d 879, 884 (affirming an award of a “substantial” fee). Contrary to the Board’s contention, the trial court’s characterization of the fee awarded for Mr. Williams’ trial preparation as “high” does not dictate a finding that the fee was unreasonable; nor does it dictate a finding that the trial court abused its discretion in awarding the fee.

According to the Board, the trial court erred in relying on the amount of time Mr. Williams actually spent preparing for trial (404.91 hours). The Board contends that the trial court was required to determine a reasonable amount of time for Mr. Williams’ trial preparation given the particular facts and circumstances of this case. The Board cites SDS, Inc. v. State, Dep’t of Transp. and Dev., 07-0406, p. 8 (La.App. 4 Cir. 2/13/08), 978 So.2d 1013, 1018, for the proposition that the fees a property owner is entitled to recover for trial preparation are “directly related to the usefulness of the testimony to the trier of fact.” Id. (citing State, Dep’t of Transp. and Dev. v. Jacob, 491 So.2d 138 (La.App. 3d Cir.1986)). The Board thus contends that the following two factors should be considered in determining the | ^reasonableness of a fee for trial preparation: (i) the reasonably necessary time for preparation, and (ii) the relative usefulness of the expert’s testimony.

As to the first factor, the Board cites the Town of Krotz Springs case for the proposition that an expert fee award for an unreasonable amount of time spent by an expert witness in preparing for trial should be reduced. In the Town of Krotz Springs case, the appellate court reduced an expert’s fee from the actual amount of time spent preparing to the amount reasonably necessary, reasoning:

According to the record Mr. Angers devoted approximately 13 full days in preparation for trial and one day in court. Although we have no reason to doubt the accuracy of this estimate of time spent by Mr. Angers on this case we do not believe that it is reasonable to compel plaintiff to pay for that amount of time and at the price agreed upon between Mr. Angers and defendants. Although the defendant landowner is entitled to be compensated for the expenses which he reasonably incurs in obtaining expert testimony, he is not entitled to compel plaintiff to pay an unreasonable amount.

Town of Krotz Springs, 401 So.2d at 667. Likewise, the Board contends that Mr. Williams’ actual preparatory time was unreasonable and that the award for his time should be drastically reduced.

In further support of its position, the Board characterizes Mr. Williams as a “peripheral expert” and contends that the award of 404.91 hours for his trial preparation is exorbitant. The Board points out that Mr. Williams was qualified as an architectural expert and that his tasks at trial were limited to the following two: (i) demonstrating that the building was structurally sound; and (ii) calculating the cost to rebuild the shell of the building, taking into account tax credits. According to the Board, the record reflects the following regarding Mr. Williams’ trial preparation:

• Mr. Williams did not draw architectural plans for 1732 Canal;
|13* Mr. Williams did not determine that the building was “structurally sound;” [rather, he relied on the opinions of others — he submitted Morphy Makof-sky’s report;]
• Mr. Williams did not estimate the fair market value of the subject property; [the jury’s sole task was to decide the fair market value of the Property;] and
• Mr. Williams’ cost estimate was only utilized by Mr. Cantrell in his cost approach to fair market value — an approach the other two in-state appraisers [(the Board’s appraiser, Gayle Boudousquie, and 1732 Canal’s other appraiser, Mr. Thorns) ] testified was inappropriate.

To put the hours Mr. Williams spent on this case in context, the Board points out that Mr. Williams’ invoiced hours almost exceeded 1732 Canal’s lead counsel’s (Mr. Smith’s) hours on the case. Given these circumstances, the Board contends that the bulk of Mr. Williams’ preparatory work was not reasonably necessary and should be disallowed.

On the second factor — the relative usefulness of the expert’s testimony — the Board cites State, Dep’t of Transp. and Dev. v. Nelken, 628 So.2d 1279, 1283 (La.App. 3d Cir.1993), for the proposition that the expropriating authority cannot be cast in judgment for expert fees of an expert whose calculations are not used by other experts in arriving at their ultimate value conclusions. In Nelken, the expert’s testimony regarding economic losses was rejected. Finding the expert’s fees could not be taxed to the expropriating authority, the appellate court reasoned:

The testimony of Dr. Harju as to Nelken’s economic losses has been rejected by this court. We note that Dr. Harju’s calculations were not used by the other experts in arriving at their conclusions, although real estate appraiser Randy LaCaze added Dr. Harju’s economic loss total to his own figures at the end of his report, in summarizing Nelken’s total damages from the expropriation. Essentially, Dr. Harju’s testimony was not useful in determining the award to Nelken; therefore, the trial court’s award to Nelken of $2670 for Dr. Harju’s expert witness fee is reversed.

Nelken, 628 So.2d at 1283. Although the Board acknowledges that Mr. Williams’ testimony was not rejected (and thus this case is distinguishable from Nelken), it 12ncontends that Mr. Williams’ calculations of the cost to build a new shell were used only by Mr. Cantrell in conjunction with his cost approach, which the other two instate appraisers rejected. The Board contends that this is “a solid basis to strike any award of expert fees for Mr. Williams’ work.”

1732 Canal counters that the Board’s argument that Mr. Williams’ testimony was not useful and that it did not assist the jury is pure conjecture. 1732 Canal emphasizes that the jury interrogatories did not require a breakdown of the compensation awarded and that there was no indication in the amount awarded to suggest that the jury relied upon any one expert in particular. The record supports this contention. The jury was only asked to indicate the total just compensation for the Property and the improvements; “there was no jury interrogatory to ascertain how the jury arrived at its determination.” 1732 Canal I, 12-1370 at p. 9, — So.3d at

1732 Canal points out that expert fees are recoverable even if the expert’s opinion is not accepted in full. In support, it cites State, Dep’t of Transp. and Dev. v. Restructure Partners, L.L.C., 07-1745, p. 28 (La.App. 1 Cir. 3/26/08), 985 So.2d 212, 233, which held that “all that is required to impose expert witness fees against a political subdivision in accordance with La. R.S. 13:5112 is a substantive judgment in favor of the party requesting the award, provided the expert witness fees were reasonably necessary to the presentation of that party’s case.” Id. (citing Nicholson, 460 So.2d at 629). Based on this principle, 1732 Canal contends that the expert fees for all four of its testifying experts, including Mr. Williams, are recoverable.

The record reflects that Mr. Williams submitted detailed invoices of his fees and expenses for trial preparation and for testifying at trial on two separate days. 121 His testimony consumed 114 pages of trial transcript, which was more than any of 1732 Canal’s other experts. Moreover, he testified on two separate days. His testimony spanned numerous topics including the historical development of the New Orleans Central Business District area, the resurgence of adaptive reuse, the financial feasibility of renovating the building using tax credits (which he opined could have been obtained by a developer), the layout and physical characteristics of the building, the architectural significance of the building, the possible uses of the building, the replacement costs, and the ability to redevelop the building without full asbestos removal. To prepare for his testimony on these multiple topics, Mr. Williams thoroughly inspected the building, took numerous photographs, studied the history and construction of the building, and prepared a report. In so doing, Mr. Williams also assembled a team — a structural engineer, a “mechanical/electrical/plumbing” engineer, contractor, cost estimator, and environmental consultant (Mr. Blazek).

At trial, Mr. Williams opined on the financial feasibility of redeveloping the Property, the availability to a developer of tax credits, and a cost estimate to rebuild a shell equal to the building that was on the Property. As noted elsewhere, Mr. Cantrell testified at trial that he relied on Mr. Williams’ opinions and calculations in determining the value of the Property, albeit using the cost method. Given the multiple topics and opinions that Mr. Williams’ trial testimony covered, the length of his trial testimony, and his extensive pre-trial preparation, we cannot ^conclude the trial court abused its discretion in fixing the expert fee award for his services.

As noted, the Board also contends that the trial court applied the same incorrect new standard in awarding an unreasonably excessive fee for Mr. Cantrell’s services. The Board argues that although the trial court deducted $40,940.13 from Mr. Cantrell’s total invoiced fees of $132,647.13, it made a “blanket award” of $91,707.00 for all of the other fees that Mr. Cantrell documented. The Board contends that the trial court should have further reduced, or totally denied, any award for Mr. Cantrell’s services. In support, the Board cites Mr. Cantrell’s status as 1732 Canal’s “secondary, out-of-state appraiser,” which is the next issue we address.

y.

The second issue is the reasonableness of the expert fees awarded for the out-of-state expert. 1732 Canal retained one out-of-state expert — Mr. Cantrell, an appraiser from Florida. 1732 Canal cites Myers v. Broussard, 96-1634, p. 25 (La.App. 3 Cir. 5/21/97), 696 So.2d 88, 101, for the proposition that an out-of-state expert’s fee is recoverable when the expert’s particular expertise and testimony are essential to the party’s recovery. 1732 Canal contends that such is the case here given Mr. Cantrell’s “vast, specialized expertise in eminent domain matters and in appraising large, unique, special-use buildings such as the building at 1732 Canal Street.”

| gjThe Board counters that the trial court erred in awarding 1732 Canal expert fees for its out-of-state appraiser. In support, the Board cites Welton v. Falcon, 341 So.2d 564, 573 (La.App. 4th Cir.1977), for the following rule regarding out-of-state experts:

A litigant need not use local expert witnesses, but is not entitled to additional fees if he uses out-of-state experts where local ones are available. In such a ease the court should set the expert fee according to the standard of the fee charged by local experts, and the litigant who chooses non-local experts must pay the difference.

The Board contends that 1732 Canal failed to establish that there were no in-state expert appraisers available, besides the two in-state appraisers that testified at trial, to value the Property and its improvements.

The Board contests 1732 Canal’s contention that retention of an out-of-state appraiser was justified by Mr. Cantrell’s expertise in valuing unique, special use property. The Board points out that neither of the two in-state appraisers — Mr. Thorns nor Ms. Boudousquie — characterized the Property as a unique, special use property. To the contrary, the two instate appraisers impliedly criticized Mr. Cantrell for relying on the cost approach, which is based on the special use characterization of the property being valued. The Board thus contends that this case is distinguishable from Yuspeh v. Koch, 02-1179, p. 5 (La.App. 5 Cir. 5/28/03), 848 So.2d 96, 99, in which no in-state expert was available to value alarm security companies.

The Board also points out that the fee awarded for 1732 Canal’s out-of-state appraiser, Mr. Cantrell, is nearly three times the fee charged by, and awarded for, |¾⅛ in-state appraiser, Mr. Thorns. The Board contends that not only was Mr. Cantrell’s fee unreasonable in amount, but also Mr. Cantrell’s opinion — which was based on the cost method — was discredited by the two in-state appraisers. The Board thus contends that Mr. Cantrell’s fee is out-of-line with awards made in similar cases.

Contrary to the Board’s contention, we find no abuse of discretion in the trial court’s expert fee award for the out-of-state appraiser, Mr. Cantrell. At trial, Mr. Cantrell opined that this case involves a unique, special use property. He explained that the building on the Property was unique in that it was designed for use as a residential facility, as opposed to other similar buildings that were designed for use as office buildings or hotels. He noted that the building was E-shaped and had about 1,036 apartment units. He opined that the building had multiple features that were so different that it was necessary to value the building itself, using the cost method, to determine the total value for the Property.

Although he acknowledged that he was not familiar with the City of New Orleans, Mr. Cantrell testified that he was familiar •with similar type developments in other areas. He cited as examples the downtown Philadelphia Bellview Hotel, which was purchased for $19 million and converted to housing, retail, and a hotel; and the Fillmore Hospital in Syracuse, New York. Mr. Cantrell testified he worked independently from 1732 Canal’s in-state appraiser, Mr. Thorns, in valuing the Property. Mr. Cantrell further testified he charged 1732 Canal a “standard fee” for his services.

Given Mr. Cantrell’s testimony regarding the unique, special nature of the Property and its improvements, the record arguably supports 1732 Canal’s position that no local expert was available with Mr. Cantrell’s credentials and expertise. | gr,Regardless of whether the retention of an out-of-state expert was justified, we find, as 1732 Canal contends, that the trial court adequately took Mr. Cantrell’s out-of-state status into account by deducting $40,940.13 — which included Mr. Cantrell’s travel expenses of $10,697.99 — from the actual amount invoiced by Mr. Cantrell. We thus find the Board’s contention that the trial court abused its discretion in awarding $91,707.00 for Mr. Cantrell’s expert fees unpersuasive.

VI.

The third issue is the recovery of expert fees for the preparatory time spent by the testifying experts consulting with counsel. The Board contends that the fees awarded for all four of 1732 Canal’s testifying expert witnesses were excessive because the fees included preparatory time spent consulting with 1732 Canal’s counsel and its exhibit and demonstrative consultant, Mr. Hamill (acting as staff). Wetzka v. Big Three Industries, Inc., 409 So.2d 393, 399 (La.App. 4th Cir.1982) (reducing fee award by the amount itemized for the expert’s conference with counsel). 1732 Canal counters that the time spent by its experts in consultation with its counsel was not spent solely to assist its counsel in preparing for trial; rather, it also was spent preparing its experts for their trial-testimony and thus is recoverable.

The well-settled jurisprudential rule on which the Board relies is that “ ‘[t]he defendant can have taxed as costs the reasonable cost of time spent by the expert in gathering facts necessary for his testimony but not for time spent in consultation which only assists the attorney in preparation of litigation.’ ” Saden v. Kirby, 01-2253, p. 7 (La.App. 4 Cir. 8/7/02), 826 So.2d 558, 562-63 (quoting Albin v. Illinois Cent. Gulf R. Co., 607 So.2d 844 (La.App. 1st Cir.1992) (citing State Through Dep’t of Highways v. United Pentecostal Church of Hodge, 313 So.2d 886, 894 (La.App. 2d Cir.1975)); Wingfield v. State ex rel. Dep’t of Transp. and Dev., 03-1740, 03-1741, p. 6 (La.App. 1 Cir. 5/14/04), 879 So.2d 766, 770 (citing Smith v. Roussel, 00-1672, p. 6 (La.App. 1 Cir. 6/22/01), 808 So.2d 726, 731)). The distinction the jurisprudential rule makes is between time spent providing litigation assistance to counsel and time spent by the expert preparing himself for trial; the former is disallowed, the latter is allowed. Simply stated, “fees for time spent in consultation and other matters that simply benefit the attorney are not properly taxed as costs.” Yuspeh, 02-1179 at p. 3, 848 So.2d at 98; see also Baker v. Marcello, 533 So.2d 1057, 1059 (La.App. 4th Cir.1988) (disallowing fees incurred as a result of the plaintiffs “fishing expedition” attempting to link his hip complaint to his accident). The jurisprudence, however, allows recovery for an expert’s trial preparation and development of facts on which the expert’s opinions are based.

In the instant case, the trial court, in fixing the awards for both of 1732 Canal’s expert appraisers, Mr. Cantrell and Mr. Thorns, disallowed amounts for time spent consulting with counsel. As to Mr. Cantrell, the trial court, agreeing with the Board, disallowed the invoiced amount for “Strategy/Conferences, Property Inspection.” Indeed, the trial court disallowed the entire invoiced amount of $15,851.25 even though part of that amount was for property inspection. Likewise, as to Mr. Thorns, the trial court disallowed $2,200.00, which was invoiced for eleven hours of “Consultation.” As to all four testifying experts, the trial court, agreeing with the Board, disallowed all amounts related to depositions and deposition preparation.

_[gjThe Board contends that additional amounts should be disallowed as to all four testifying experts for consultation with counsel and Mr. Hamill. We find this contention unpersuasive. The jurisprudence has recognized the reality that a complex case, such as this expropriation case, may require extra expert trial preparation time. See Northwest Ins. Co. v. Borg-Warner Corp., 501 So.2d 1063, 1065 (La.App. 2d Cir.1987) (noting that “several factors such as complexity and length of the trial, necessity for pre-trial preparation, and the degree and significance of the expertise are relevant to the amount of the expert fee” and citing La. R.S. 13:3666). Indeed, this court in Vela, 00-2221 to 00-2224 at p. 31, 811 So.2d at 1283, cited the complexity of the case and the significance of the expert testimony in valuing a massive amount of property as justifying “a more liberal award of costs.” Id.

As to expert appraisers, in particular, the jurisprudence has noted that the relevant factors to consider include “ ‘whether the preparatory work done by the appraiser was reasonably necessary, whether it actually tended to show the value of the property taken or severance damages, and whether the conclusions he reached based on that preparatory work were of some usefulness in determining the award which should be made.’ ” Nicholson, 460 So.2d at 629 (quoting State, Dep’t of Highways v. Gordy, 322 So.2d 418, 423 (La.App. 3rd Cir.1975)). Additional considerations include “‘the value of the property being taken and the amount of severance damages sustained by the landowner.’ ” Id.

Based on our review of the record, we cannot conclude that the trial court abused its discretion in refusing to further reduce the expert fee awards for the four ^testifying experts for their time spent consulting with counsel and Mr. Hamill. All four of 1732 Canal’s testifying experts attested in their affidavits that all of the fees set forth in their invoices submitted to the trial court in connection with the Motion were necessary to their presentation of their testimony at trial. The trial court deducted certain amounts from the invoiced amounts for each of the four experts. Given the complicated nature of this expropriation case, the huge size of the building at issue, the large sum of money involved, and the amount of preparation the experts attested was required to prepare for testifying at trial, we cannot conclude that the trial court abused its discretion in fixing the expert fee awards for the four testifying experts.

VII.

The fourth issue is the inclusion of costs for exhibits not introduced into evidence. The Board’s contention is based on the trial court’s award of $34,000.00 of the $36,800.00 charged by Mr. Hamill, who was 1732 Canal’s exhibit and demonstrative consultant. The Board points out that Mr. Hamill’s fee included $9,500.00 for 95 hours of “[e]xhibit prep/organization (trial prep).” The Board contends that this portion of the award is problematic in that it includes compensation for all of the 181 exhibits that Mr. Hamill prepared, despite that only a fraction of those exhibits— approximately 56 exhibits (30%) — were introduced at trial. The Board cites Delaney v. Whitney National Bank, 96-2144, 97-0254, p. 18 (La.App. 4 Cir. 11/12/97), 703 So.2d 709, 720, for the proposition that “ ‘exhibits used in court to assist the jury but not introduced in evidence are not properly taxed as costs [because] ... [n]o one can be sure such exhibits helped the jury.’ ” Id. Based on Delaney, the Board contends that because only 30% of the exhibits were introduced, only 30% of the $9,500.00 award for exhibit-related fees should have | g3been awarded ($2,850.00). The Board thus contends that the costs awarded for Mr. Hamill’s services should be reduced by $6,650.00 (70% of the $9,500.00), at a minimum. The Board also argues that Mr. Hamill’s fee for exhibit-related work is less justifiable because many of the exhibits were not created by him; rather, many of the exhibits simply were photographs lifted from the appraisal reports or downloaded from the Orleans Parish Assessor’s website.

1732 Canal counters that the trial court’s award for Mr. Hamill’s services was not an abuse of discretion. It points out that costs directly associated with creating and presenting demonstrative evidence are recoverable under La. R.S. 13:4533, which includes “all other costs allowed by the court.” It also points out that this phrase in La. R.S. 13:4533 has been broadly construed to permit recovery of a wide variety of costs found vital to trial presentation. In support of this position, 1732 Canal cites the following cases: Haas v. Audubon Indemnity Co., 98-566 (La.App. 3 Cir. 10/21/98), 722 So.2d 1020, writ granted in part on other grounds, 98-2885 (La.2/5/99), 737 So.2d 736 (awarding fees for a mechanical engineer, an electrical engineer, and an asbestos removal specialist who collectively assisted in preparing a survey used by a testifying architect expert, whose fee was also recoverable); Raymond v. Government Employees Ins. Co., 09-1327, pp. 18-19 (La.App. 3 Cir. 6/2/10), 40 So.3d 1179, 1193-94 (awarding the costs to enlarge exhibits and the entire cost of a survey); State, Through Dep’t of Highways v. Mims, 336 So.2d 24, 31 (La.App. 3d Cir.1976) (characterizing a photographer as a professional and taxing photographer’s expert fee as costs); and Roy v. Gupta, 606 So.2d 940, 946 (La.App. 3d Cir.1992) (awarding the costs of playing video deposition tapes during the trial). 1732 Canal contends that “[n]one of these cases hinged on whether every single one of the exhibits in question [was] |snactually admitted into evidence.” Regardless, 1732 Canal contends that the trial court took into consideration the fact that all the exhibits were not introduced into evidence by awarding only $33,300.00, instead of the total invoiced amount of $36,800.00. It emphasizes that the Delaney case was not an expropriation case and that the court in Delaney thus was not required to conform to the constitutional mandate that a landowner be compensated to the full extent of his loss.

1732 Canal further contends that Mr. Hamill’s services were vital to its presentation to the jury. It explains that the exhibits and demonstratives that Mr. Hamill created were prepared to break down long, complex reports and expert testimony into graphics more easily understood by the jury. It further explains that as a result of Mr. Hamill’s work it was able to “streamline” the testimony of its expert witnesses for presentation at trial. It points out that the Fifth Circuit recently affirmed an award for Mr. Hamill’s similar services in State, Dep’t of Transp. and Dev. v. Monteleone, 11-1013, pp. 31-32 (La.App. 5 Cir. 11/13/12), 106 So.3d 153, 173, writ denied, 13-0118 (La.3/1/13), 108 So.3d 1179. In affirming the award, the Fifth Circuit in Monteleone, reasoned as follows:

At the hearing of this matter, the landowners’ attorney testified that Mr. Hamill spent 169 hours of trial preparation and design, in which he met with the experts and attorneys and was able to “streamline” the testimony for presentation to the court. Without this preparation by Mr. Hamill, the experts and the attorneys would have incurred additional time, and additional costs, in presenting this case. In addition, Mr. Hamill prepared the demonstratives that were presented in court and handled the audio-visual presentation during trial which streamlined the process. Considering the record before us, we cannot say that the trial court abused its discretion in its award of costs.

Monteleone, 11-1013 at p. 32, 106 So.3d at 173. Likewise, 1732 Canal contends that the trial court in this case properly awarded the costs for Mr. Hamill’s similar services that streamlined the presentation of the evidence.

|s1In further support of the award, 1732 Canal points out that the trial court observed the “extensive nature of Mr. Hamill’s preparation of trial exhibits and his attendance and constant participation in the entirety of the week-long trial.” 1732 Canal thus contends that the trial court’s evaluation of the reasonableness of Mr. Hamill’s expenses should not be disturbed on appeal.

We find 1732 Canal’s arguments regarding the appropriateness and reasonableness of the trial court’s award of costs for Mr. Hamill’s services persuasive. Hence, we reject the Board’s contention that the costs awarded for Mr. Hamill’s services should be reduced.

VIII.

1732 Canal contends that its answer to the Board’s appeal encompasses not only a request for additional attorneys’ fees for its counsel’s post-judgment work on appeal, but also a request to increase the 18% attorneys’ fees award to 33 1/3%, or in the alternative to 25%. 1732 Canal, in its appellee’s brief, labels itself as a “cross-appellant” and sets forth the following assignment of error: “[t]his Court should increase the award of attorney fees to 1732 Canal Street from eighteen percent (18%) to thirty-three and one-third percent (33 1/3%), or, in the alternative, to twenty-five percent (25%).” The Board, on the other hand, contends that because 1732 Canal’s answer did not specifically pray that the 18% attorneys’ fee award be increased, that issue is not before us on appeal. We agree.

An appellee’s answer to an appeal is governed by La. C.C.P. art. 2133, which provides in pertinent part:

A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record | whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer.

La. C.C.P. art. 2133(A). The jurisprudence has construed Article 2133 to mean that “an answer to the appeal operates as an appeal only from those aspects of the judgment which the answer complains.” Samuel v. Baton Rouge General Medical Center, 98-1669, pp. 5-6 (La.App. 1 Cir. 2/18/00), 757 So.2d 43, 46 (citing Lolan v. Louisiana Industries, 95-602, p. 1 (La.App. 3 Cir. 11/2/95), 664 So.2d 616, 618, n. 1).

Although an answer to an appeal and an appeal may serve the same function, they are not interchangeable. Clark v. Schwegmann Giant Supermarket, 96-2301, p. 5 (La.App. 4 Cir. 1/13/99), 740 So.2d 137, 141 (La.App. 4 Cir.1999). When a party files an answer, as opposed to a cross appeal, the scope of review is limited to the claims expressly stated in the answer. Indeed, an appellee is required to state the relief demanded in its answer to the appeal. La.C.C.P. art. 2133. Unlike an answer to an appeal, “[a]n appeal entitles the appellant to raises [sic] all issues without specifying them in either the notice or order of appeal.” Clark, 96-2301 at p. 5, 740 So.2d at 141.

Explaining the difference between an answer to an appeal and a cross-appeal, we noted in Clark that:

Essentially, an “answer to an appeal” is itself an appeal, except that the answer must specifically state the relief requested, while an appeal usually seeks review of all parts of the judgment.
Generally, an answer to an appeal operates as an appeal only of those parts of the judgment complained about in the answer. However, the courts often interpret statements in an answer liberally to cover issues the appellee contests in view of the public policy favoring appeals.

1 wId. (quoting Plotkin, LOUISIANA CIVIL PROCEDURE, Art. 2138, § l)(internal citations omitted). Although an answer to an appeal is a cheaper, less complicated procedure, “the trade off is that under LSA-C.C.P. art. 2133 the answer must state ... what the ‘relief demanded’ is, and the answer operates as an appeal only from those matters ‘of which [the appellee] ... complains in his answer.’ ” Clark, 96-2301 at p. 7, 740 So.2d at 142 (quoting La. C.C.P. art. 2133).

Applying the above principles, we find 1732 Canal’s answer to the appeal requests only additional attorneys’ fees for its counsel’s post-judgment work on appeal. The pertinent averments in its answer are as follows:

• [T]he Landowner files this Answer, seeking an increase in the amount of attorneys’ fees awarded by the Court. The Landowner respectfully submits that the amount of attorneys’ fees awarded by the trial court did not contemplate any fees that might be incurred on appeal, and considered only the attorneys’ fees at the trial court level.
• Additional fees and costs were incurred after the date of hearing regarding the Landowner’s attorneys’ fees and will be incurred in connection with the Landowner’s response to the Board’s appeal. The Landowner’s additional attorneys’ fees and costs should be awarded as additional just compensation owed under the Louisiana and federal Constitutions to make the Landowner whole for the taking of its property. In similar circumstances in expropriation cases, appellate courts have, as a matter of course, awarded attorneys’ fees incurred in connection with appeals of expropriation cases.
• [T]he Landowner respectfully prays that this Honorable Court: ... increase the amount of attorneys’ fees awarded to compensate the Landowner for all additional attorneys’ fees and costs incurred.

Nowhere in its answer does 1732 Canal mention the trial court’s 18% attorneys’ fee award. Given its failure to mention or to assign as error the 18% attorneys’ fee award, 1732 Canal’s answer cannot be considered as raising that issue on appeal. The sole issue its answer raises is whether 1732 Canal is entitled to an additional award of attorneys’ fees for its counsel’s post-judgment work on appeal.

IsmAs to the issue raised on appeal, we find the record before us is insufficient to determine the appropriate additional award of attorneys’ fees for 1732 Canal’s attorneys’ post-judgment work on appeal. The difficulty in determining this additional award of attorneys’ fees is the result, in part, of the fact that the post-judgment work on appeal encompasses not only the instant appeal, but also the prior appeal of the judgment on the merits — 1732 Canal I. We thus find it appropriate to remand to the trial court for a determination of the additional award of attorneys’ fees to which 1732 Canal is entitled for both appeals. See Monteleone, 11-1013 at p. 34, 106 So.3d at 174 (remanding for a hearing on the issue of attorneys’ fees for work on appeal).

DECREE

For the forgoing reasons, the judgment of the trial court is affirmed. This case is remanded to the trial court for a determination of the appropriate additional award of attorneys’ fees owed for post-judgment work on appeal.

AFFIRMED AND REMANDED.

      . As discussed elsewhere in this opinion, we find that 1732 Canal's answer to the appeal raises only the issue of whether it is entitled to an additional award of attorneys’ fees for its counsel’s post-judgment work on appeal.

      . The parties made several stipulations including that "[t]he only evidence as to the full extent of 1732 Canal Street’s loss will be the value of the subject property, which shall be based upon the opinions of the experts, as well as the facts and information they relied upon in reaching their conclusions.” The parties also stipulated that ”[t]he appraisal reports of the appraisers for each party shall not be admissible; however summaries in compliance with the statutes, photographs of the subject property, and photographs of comparable properties may be admissible at the trial of this matter. Demonstrative exhibits containing data and summary information, otherwise admissible, may also be used.”

      . As 1732 Canal points out, Mr. Blazek’s testimony was necessitated by the Board’s retention of United States Risk Management, L.L.C. ("U.S. Risk”) to testify regarding the asbestos abatement required to demolish (implode) the building on the Property. Mr. Bla-zek testified that the necessary environmental remediation cost to renovate the building would be $1,045,065.00. He further testified that the Board’s environmental remediation expert, U.S. Risk, overestimated the remediation cost by $2.6 million. Mr. Blazek, however, acknowledged that his calculation was based on renovating the building; whereas, U.S. Risk's calculation was based on demolishing it.

      . As noted at the outset, this court in the prior appeal affirmed the jury's award. Board of Sup’rs of Louisiana State University and Agr. and Mechanical College v. 1732 Canal Street, L.L.C, 12-1370 (La.App. 4 Cir. 6/19/13), - So.3d-, 2013 WL 3078512 (“1732 Canal I''). This court denied the Board’s application for rehearing on September 5, 2013. The Board filed an application for supervisory writ with the Louisiana Supreme Court (No. 2013-C-2383), which was pending at the time this opinion was handed down.

      . La. R.S. 13:5112(A) provides:
      In any suit against the state or any department, board, commission, agency, or political subdivision thereof, the trial or appellate court, after taking into account any equitable considerations as it would under Article 1920 or Article 2164 of the Code of Civil Procedure, as applicable, may grant in favor of the successful party and against the state, department, board, commission, agency, or political subdivision against which judgment is rendered, an award of such successful party's court costs under R.S. 13:4533 and other applicable law as the court deems proper but, if awarded, shall express such costs in a dollar amount in a judgment of the trial court or decree of the appellate court.

      . La. C.C.P. art. 1920 provides:
      Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause.
      Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

      . La. R.S. 13:4533 provides:
      The costs of the clerk, sheriff, witness' fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.

      . La. R.S. 13:3666 provides in pertinent part:
      A. Witnesses called to testify in court only to an opinion founded on special study or experience in any branch of science, or to make scientific or professional examinations, and to state the results thereof, shall receive additional compensation, to be fixed by the court, with reference to the value of time employed and the degree of learning or skill required.
      B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:

        (1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.
      (2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.

        . See also Town of Krotz Springs v. Weinstein, 401 So.2d 664, 667 (La.App. 3d Cir.1981) (noting that the amount agreed upon between the expert witness and the party calling him is not a criterion as to the amount of expert witness fees to be taxed as costs); Mathis v. City of DeRidder, 599 So.2d 378, 392 (La.App. 3d Cir.1992) (noting that "[a]n agreement entered into by a party as to the fee which an expert is to receive, or the statement of the expert as to his charges or even the actual payment of such a fee to the expert, [is] not binding on the court and [is] not ... to be used by the court in fixing the expert fees which are to be assessed as costs in the suit”); Boseman v. Orleans Parish School Bd., 98-1415, p. 9 (La.App. 4 Cir. 1/6/99), 727 So.2d 1194, 1199 (noting that courts are not bound by agreements concerning expert witness fees, by the expert’s statements concerning his charges, or by the actual fee paid to an expert witness).

      . The record reflects Mr. Williams also prepared an affidavit, which was introduced at trial, regarding the inability to rebuild on the Property following the planned implosion. In that affidavit, Mr. Williams explained that the building was supported by 1,200 friction pilings that were driven to "76 feet in depth.” He further explained the difficulty of removing such friction pilings. As a result, he opined that any new construction on the Property would have to be placed on top of the existing friction pilings. After the implosion, he opined that it would be unlikely that the Property could “support any use other than as vacant land or green space.” The significance of this affidavit is that it supports the trial court's implicit finding that Mr. Williams’ involvement in the trial and his trial preparation were extensive.

      . In calculating the award for Mr. Cantrell’s services, the trial court disallowed four parts of 1732 Canal’s request for Mr. Cantrell’s fees — "Strategy/Conferences, Property Inspections 26.25 hours $15,851.25”; "Prepare for deposition; Deposition 45 hours $13,980.00”; "Travel $10,697.99”; and "FedEx $410.89.”

      . At trial, Mr. Cantrell explained that the cost method is used when valuing "a special [use] type of property that doesn’t sell in the market very often so that there are no compa-rables.”

      . The excluded amounts for depositions and deposition preparation were as follows: for Mr. Cantrell, $13,980.00; for Mr. Thorns, $2,000.00; for Mr. Williams, $1,950.00; and for Mr. Blazek, $2,625.00.


author: PAUL A. BONIN, Judge.

text:
    STATE of Louisiana v. Shounda M. EDWARDS.
    No. 2013-KA-0665.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 22, 2014.

      Leon A. Cannizzaro, Jr., District Attorney, Donna Andrieu, Assistant District Attorney, Donald G. Cassels, III, Assistant District Attorney, New Orleans, LA, for Appellee/State of Louisiana.
    Morris Winding Reed, New Orleans, LA, for Appellant/Defendant.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge PAUL A. BONIN, Judge MADELEINE M. LANDRIEU).
   PAUL A. BONIN, Judge.

hShounda Edwards was charged by the district attorney with the aggravated battery of Shantell Williams. Following a bench trial, she was found guilty of second degree battery. Ms. Edwards was sentenced to three years imprisonment in the custody of the Department of Corrections. Ms. Edwards now appeals her conviction and sentence.

Ms. Edwards initially briefed three assignments of error. Her first assignment claims that her Sixth Amendment right to trial by jury was violated since she did not personally waive her right to trial by jury or consent to trial by judge. Her second assignment contends that the trial judge impermissibly admitted into evidence a drinking glass which was only similar to the drinking glass involved in the altercation between Ms. Edwards and Ms. Williams. Finally, her third assignment argues that the trial judge prejudiced her constitutional right to present a defense by improperly excluding a photograph of Ms. Edwards’s injuries because she had failed to timely produce the photograph during discovery.

12After our de novo review of the transcripts of the arraignment and the proceedings immediately prior to the commencement of her bench trial, we find that, under our controlling precedent, Ms. Edwards’ right to trial by jury was not violated since she was advised by the trial judge of her right to trial by jury, was present when her counsel elected trial by judge, and made no objection at that time. With respect to her second assignment, we hold that the introduction of a similar drinking glass to the one actually involved in the altercation did not prejudice Ms. Edwards’ defense because Ms. Edwards was acquitted of the charge of aggravated battery, which requires proof of a dangerous weapon. With respect to her third assignment, we conclude that Ms. Edwards failed to establish that by excluding the photograph in question (which was not proffered for our independent examination) the trial judge prejudiced her ability to present a defense.

Later, by way of her reply or rebuttal brief, Ms. Edwards attempted to raise three additional assignments of error: (1) insufficiency of the evidence to support her conviction, (2) excessiveness of her sentence, and (3) excessiveness of the amount of appeal bond required. We decline to consider these additional assignments of error for two reasons. First, a rebuttal brief is limited to responding |3to matters raised by the appellee’s brief. See Uniform Rules, Courts of Appeal, Rule 2-12.6 (“The appellant may file a reply brief, if he has timely filed an original brief, but it shall be strictly confined to rebuttal of points urged in the appellee’s brief. No further briefs may be filed except by leave of court.”). Second, these assignments of error were abandoned when Ms. Edwards did not brief them. See Uniform Rules, Courts of Appeal, Rule 2-12.4 (“All specifications or assignments of error must be briefed. The court may consider as abandoned any specification or assignment of error which has not been briefed.”).

We accordingly affirm Ms. Edwards’s conviction and sentence. We explain our decision in more detail below.

I

In this Part, we address Ms. Edwards’s argument that her Sixth Amendment right to a trial by jury was violated when her counsel selected trial by judge without her stated consent.

A

At the outset, we note that, because Ms. Edwards was charged with a felony, she was entitled to a trial by jury. See U.S. Const. amends. VI and XIV; Duncan v. State of Louisiana, 391 U.S. 145, 149-150, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The right to trial by jury, however, may be knowingly and intelligently waived. See Adams v. United States ex rel. McCann, 817 U.S. 269, 277-278, 63 S.Ct. 236, 87 L.Ed. 268 (1942). See also La. Const, art. I, § 17(A); La.C.Cr.P. art. 780 A (“A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive a trial by jury and elect to be tried by the judge.”).

| ¿Whether a criminal defendant waives her right to trial by jury in an intelligent, competent, self-protecting manner necessarily depends upon the circumstances unique to each ease. See Adams, 317 U.S. at 278, 63 S.Ct. 236. A defendant need only know and understand that the choice confronting her is, “on the one hand, to be judged by a group of people from the community, and on the other hand, to have her guilt or innocence determined by a judge.” State v. Bazile, 12-2243, p. 17 (La.5/7/13), - So.3d -, 2013 WL 1880395. If a defendant understands that choice, her jury waiver is deemed knowing and intelligent. See id., 12-2243 at p. 18, — So.3d at-. No greater proof of knowing and intelligent waiver is constitutionally or jurispruden-tially required. See State v. Johnson, 389 So.2d 1302, 1304-1305 (La.1980). Additionally, in reviewing a defendant’s claim that her waiver of trial by jury was not knowing or intelligent, we do not consider the strategic considerations, motivations, or benefits underlying a defendant’s waiver, but instead restrict ourselves solely to the issue of her knowledge. See Bazile, 12-2243 at p. 18, — So.3d at-.

The preferred procedure for a trial judge to ascertain whether a defendant wishes to waive her right to trial by jury is for the trial judge to advise the defendant personally on the record about the intended waiver and to require the defendant to waive the right in writing or verbally in open court on the record. See State v. Bryant, 06-1154, p. 7 (La.App. 4 Cir. 1/10/07), 950 So.2d 37, 40; State v. Richardson, 575 So.2d 421, 424 (La.App. 4th Cir.1991); State v. Wolfe, 98-0345, p. 6 (La.App. 4 Cir. 4/21/99), 738 So.2d 1093, 1097; State v. Abbott, 92-2731 (La.App. 4 Cir. 2/25/94), 634 So.2d 911, 913. When, as in this case, the trial judge does not follow this preferred procedure, we may nevertheless conduct a de novo review of the record to ascertain whether the defendant was advised of her | aright to trial by jury, whether the defendant was present when her counsel elected trial by judge, and, if she was present, whether she voiced any objection to the election. See State v. Santee, 02-0693, p. 3 (La.App. 4 Cir. 12/04/02), 834 So.2d 533, 535; State v. Denson, 11-0517, pp. 7-8 (La.App. 4 Cir. 1/25/12), 83 So.3d 1183, 1188-1189.

At her arraignment, the trial judge advised Ms. Edwards of her right to be tried either by a jury or by a judge. On the day that her trial was scheduled to commence, the trial judge inquired of her counsel in the presence of Ms. Edwards whether the trial would be by jury or by judge. Initially, Ms. Edwards’ counsel stated “jury,” and, in response, the trial judge directed that a jury panel be summoned to the courtroom. Following an off-the-record discussion at the bench and prompting by the prosecutor, Ms. Edwards’s counsel stated on the record and in Ms. Edwards’ presence that Ms. Edwards selected a trial by judge. At that time Ms. Edwards voiced no objection, and the trial by judge was commenced.

There is no doubt that Ms. Edwards was aware of her right to a trial by jury. We need not remand this matter to the trial court for an evidentiary hearing in order to determine whether her waiver was knowing and voluntary as the defendant requests. Cf. State v. Nanlal, 97-0796 (La.9/26/97), 701 So.2d 963 (per curiam).

In conclusion, we find her constitutional right to trial by jury was not violated.

_b.II

Ms. Edwards next argues that the trial judge’s admission into evidence, over objection, of a rocks-style drinking glass “prejudiced her immensely.” Generally, substituting a “weapon” which is allegedly “similar” to the one used to commit the crime is considered error. See State v. Manieri, 378 So.2d 931, 933 (La.1979) (“The jurors naturally tend to infer a connection between the weapon and the murder simply from a mere viewing of the material object, although such a connection is not proved.”). Erroneous admission of demonstrative evidence, however, is subject to harmless error analysis whereby we determine whether the accused’s right to a fair trial was prejudiced. See id. See also La.C.Cr.P. art. 921 (“A judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”).

Here, there was ample testimony that the admitted glass, although similar, was not the actual one thrown at the victim by the defendant. The trial judge, as the trier-of-fact, was well aware that the glass introduced into evidence was not the actual glass involved. Thus, the prejudicial impact upon the defendant would have been negligible. See State v. Ard, 08-1440, p. 8 (La.App. 4 Cir. 6/17/09), 15 So.3d 1166, 1170-1171.

Bearing of even greater significance to this issue is that the judgment (or verdict) rendered by the trial judge showed that the admission of the drinking glass [7was not prejudicial whatsoever. Ms. Edwards was charged by the district attorney with aggravated battery. An essential element of that offense is the use of a “dangerous weapon.” See La. R.S. 14:34 A. See also State v. Rideau, 05-0462, pp. 18-19 (La.App. 4 Cir. 12/6/06), 947 So.2d 127, 138-139. Ms. Edwards, however, was acquitted of that offense when the trial judge rendered a judgment of guilty of the lesser included offense of second degree battery, which requires only the intentional infliction of serious bodily injury. See La. R.S. 14:84.1; La.C.Cr.P. arts. 598 A, 814 A(14) and 820 (“All provisions of this Chapter regulating the responsiveness and effect of verdicts shall apply to cases tried without a jury.”). See also Green v. United, States, 355 U.S. 184, 190, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); State v. Thomas, 05-2878, p. 2 (La.4/17/06), 926 So.2d 490, 491 (per curiam).

Thus, the lesser-included offense for which she was actually convicted does not require proof of a dangerous weapon. And, during the sentencing hearing, the trial judge even stated that he was not convinced beyond a reasonable doubt that the drinking glass constituted a dangerous weapon.

Because the admission of the substituted drinking glass did not prejudice Ms. Edwards’s defense, she is not entitled to a reversal of her conviction.

Ill

Ms. Edwards’ final briefed assignment of error contends that the trial judge abused his discretion by excluding a photograph of her purported injury as a sanction for a discovery violation. Ms. Edwards concedes that she violated her discovery obligation to produce the photograph in advance of trial and offers no | ^explanation for that violation. The trial judge’s exclusion of the photograph was a permissible, but not mandated sanction. See La.C.Cr.P. art. 729.5 A (if a party fails to comply with his discovery obligations the court may “prohibit the party from introducing into evidence the subject matter not disclosed”).

Ms. Edwards argues on appeal that the court, by excluding the photograph, prevented her from presenting her defense that she, too, was attacked. Ms. Edwards called two witnesses in addition to herself to testify that she — Ms. Edwards — was attacked and to deny seeing Ms. Edwards attack Ms. Williams. Notably, though, no witness testified that Ms. Williams attacked Ms. Edwards. Ms. Edwards testified that she sustained a “hickey” on her head and that her dress was stained with the blood of one of her witnesses. The trial judge, the trier of fact, also viewed the photograph prior to its exclusion as a sanction.

Ms. Edwards did not proffer the excluded photograph for our examination and review. The trial judge did not in any way restrict or limit Ms. Edwards from proffering the photograph for the purposes of appellate review. Cf. State v. Brooks, 98-1151, p. 17 (La.App. 1 Cir. 4/15/99), 734 So.2d 1232, 1241 (‘We deem it appropriate and necessary to remand this matter for a hearing because defendant’s proffer was restricted by the trial judge, and defendant’s constitutional right to present a defense was significantly impaired.”).

An error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected and the substance of the evidence was made known to the court by counsel. See La. C.E. art. 103 A(2). We find no | ¡^indication that Ms. Edwards was prevented from presenting any defense whatsoever. She was allowed to call witnesses to testify that there was a general melee’ at the party and that they did not observe Ms. Edwards injure or batter Ms. Williams. Ms. Edwards was also able to testify that she was injured in the incident but, as already noted, did not claim that Ms. Williams played any role in causing the fight or in injuring her. Notably, Ms. Edwards did not suggest at trial that her defense was that she had accidentally rather than intentionally injured Ms. Williams. See La. R.S. 14:33 (“[bjattery is the intentional use of force or violence upon the person of another”); State v. Lawrence, 09-1637, p. 6 (La.App. 4 Cir. 8/25/10), 47 So.3d 1003, 1007 (“the antithesis of an intentional act is an accidental act”).

Under such circumstances, we cannot find that the exclusion (as a discovery sanction) from evidence of a photograph supposedly depicting a “hickey” on her head impaired, much less significantly impaired, Ms. Edwards’ ability to present a defense. Because the photograph, as she has described it, has so little probative value, her right to present her defense does not require its introduction into evidence notwithstanding the discovery violation. Cf. State v. Gremillion, 542 So.2d 1074, 1078 (La.1989).

On the basis of the record before us, therefore, we do not find that the trial judge abused his discretion in excluding the photograph from evidence as a discovery sanction. See State v. Seals, 95-0305, p. 14 (La.11/25/96), 684 So.2d 368, 378; State v. Forest, 08-1474, p.1 (La.7/24/08), 986 So.2d 667, 667.

|inDECREE

The conviction of Shounda Edwards for the second degree battery of Shantell Williams is affirmed. Her sentence is also affirmed.

AFFIRMED.

      . We note that Ms. Edwards made no motion to reconsider her sentence and, thus, has not preserved the issue for review. See La. C.Cr.P. art. 881.IE ("Failure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence may be based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.”).

      . With respect to her claim regarding the excessiveness of the amount set for bail on appeal, the appropriate remedy for this matter was to invoke our supervisory jurisdiction during the pendency of the appeal. See La. C.Cr.P. art. 343 ("A person held may invoke the supervisory jurisdiction of the court of appeal on a claim that the trial court has improperly refused bail or a reduction of bail in a bailable case.”). See also Livingston Downs Racing Ass'n, Inc. v. Louisiana State Racing Comm'n, 96-1215, p. 3 (La.App. 4 Cir. 6/5/96), 675 So.2d 1214, 1216 ("[T]he difference between supervisory jurisdiction and appellate jurisdiction is that the former is discretionary on the part of the court while the latter is invocable by the litigant as a matter of right.”). Since we are now affirming Ms. Edwards’ conviction and sentence, however, the issue of the amount of her bail on appeal is now moot.

      . We have, as always, examined the record for errors patent and have detected none. See La.C.Cr.P. art. 920(2).

      .- Ms. Edwards waived her right to trial by jury on the day that her trial was scheduled to commence. The timing of this waiver seems improper. See La. Const, art. I, § 17(A): "Except in capital cases, a defendant may knowingly and intelligently waive his right to trial by jury but no later than forty-five days prior to the trial date and the waiver shall be irrevocable.” (emphasis added) But neither party has complained of the seeming irregularity; there is nothing for us to review. See Greenlaw v. United States, 554 U.S. 237, 243-244, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) ("[A]s a general rule, our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.”).