text:
    KINGDOM BUILDERS COMMUNITY DEVELOPMENT CORPORATION v. LOUISIANA BOARD OF ELEMENTARY AND SECONDARY EDUCATION and Louisiana Department of Education
    NO. 2017 CA 0695
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 1, 2017

      J. Arthur Smith, III, Baton Rouge, LA, Attorney for Plaintiff-Appellant, Kingdom Builders Community Development Corporation
    Joan Ellen Hunt, Willa LeBlanc, R. Christopher Fruge, Baton Rouge, LA, Attorneys for'Defendant-Appellee, Louisiana Department of Education
    BEFORE: HIGGINBOTHAM, , HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

laThis appeal challenges whether the trial court properly denied plaintiffs motion for new trial seeking annulment of a judgment in favor of one defendant that sustained a peremptory exception of no cause of action because plaintiff claims it was not properly served with the hearing date.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Kingdom Builders Community Development Corporation (Kingdom Builders) applied for a charter for operation of a charter school in Lafayette Parish. .On March. 3, 2016, the Louisiana Board. of Elementary and Secondary Education (BESE) denied Kingdom Builder’s charter school application. On April 4, 2016, pursuant to La. R.S. 49:964 et seq., Kingdom Builders filed a petition for judicial review in the 19th Judicial District Court seeking judicial review of' BESE’s decision. The Louisiana Department of Education (LDE) and BESE were named as defendants.'

In response, LDE filed a peremptory exception raising the objection of no cause of action. In its exception, LDE contended that Kingdom Builders failed to state a cause of action because under La. R.S. 17:3981 and La. R.S. 17:3983 the decision whether to grant or deny Kingdom Builder’s application for a charter is a decision made by BESE, not LDE., Additionally, LDE contended that Kingdom Builders failed to state a cause of action for judicial review because BESE’s decision under La. R.S-. 17:3981 and La. R.S. 17:3983 was not an “adjudication” that resulted in a “decision” or “order” as defined by the Louisiana Administrative Procedure Act.

LDE certified that a copy of its exception was mailed and faxed to Kingdom Builder’s attorney of record at the address and fax number provided in Kingdom Builder’s petition. LDE’s exception was accompanied by a proposed order requesting that the exception be set for hearing.

|aOn September 19, 2016, LDE’s exception was heard by the trial court. Kingdom Builders was not present at the hearing. The copy of the exception that LDE mailed to Kingdom Builders’ attorney of record, who had apparently moved offices and had not updated his address, was returned to sender around September 26, 2016, stating “not at this address.” On October 3, 2016, Kingdom Builders filed a motion to substitute counsel, which was granted. On November 10, 2016, the trial court signed a judgment sustaining LDE’s peremptory exception of no cause of action and dismissing Kingdom Builder’s claims against LDE with prejudice.

Thereafter, Kingdom Builders filed a motion for new trial on LDE’s exception of no cause of action contending that it was not served with LDE’s exception nor was its previous counsel of record served by means of a legally correct method; therefore, Kingdom Builders argued that the November 10, 2016 judgment was an absolute nullity and should be vacated. After a hearing, the trial court denied Kingdom Builders’ motion for new trial in a judgment signed on March 7, 2017. It is from the March 7, 2017 judgment denying its motion for new trial that Kingdom Builders appeals.

LAW AND ANALYSIS

Kingdom Builders contends that the trial court erred in sustaining LDE’s peremptory exception of no cause of action because neither Kingdom Builders nor its former counsel received notice of the exception of no cause of action filed by LDE as required by La. Code Civ. P. articles 1313 and 1314. Louisiana Code of Civil Procedure article 1313(A) allows service of most post-petition pleadings by regular mail or by electronic means, “[ejxcept as otherwise provided by law,” subject to an express exception in La. Code Civ. P. art. 1313(C) for pleadings or orders ^setting a court date, which must be served by registered or certified mail or by the sheriff.

LDE’s exception of no cause of action contained an order setting the matter for hearing; thus, the required service for LDE’s exception was by either registered or certified mail or by the sheriff. The certification provided by LDE does not verify service by registered or certified mail as opposed to regular mail. Here, neither Kingdom Builders nor their attorney appeared at the hearing on LDE’s exception of no cause of action, and nothing in the record suggests any waiver by Kingdom Builder of the formal service requirements. Failure to properly serve a defendant with process as required by law is a vice of form upon which a judgment shall be nullified. La. Code Civ. P. art. 2002(A)(2). As service of process on Kingdom Builders was not made as required by law, the trial court’s judgment sustaining LDE’s exception is an absolute nullity.

CONCLUSION

For the foregoing reasons, the November 10, 2016 judgment sustaining the objection of no cause of action is vacated as an absolute nullity, and this matter is remanded to the trial court for further proceedings. The costs of this appeal in the amount of $660.50 are assessed to the Louisiana Department of Education.

NOVEMBER 10, 2016 JUDGMENT VACATED; CASE REMANDED.

      . Louisiana Revised Statute 49:464 is part of the Administrative Procedure Act, and provides for judicial review for a person who is aggrieved by a final decision or order of an agency in an adjudication proceeding.

      . The denial of a motion for a new trial is not an appealable judgment absent a showing of irreparable harm. Morrison v. Dillard Department Stores, Inc., 99-2060 (La. App. 1st Cir. 9/22/00), 769 So.2d 742, 744, writ denied, 2000-3379 (La. 2/2/01), 784 So.2d 646. However, the supreme court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant’s brief that it intended to appeal the merits of the case. See Reno v. Perkins Engines, Inc., 98-1686 (La. App. 1st Cir. 9/24/99), 754 So.2d 1032, 1033, writ denied, 99-3058 (La. 1/7/00), 752 So.2d 863. It is obvious from Kingdom Builder's brief that it intended to appeal the judgment on the merits. Thus, we will treat the appeal accordingly.

      . Citing Jones v. Chevalier, 579 So.2d 1217, 1218( La.App. 3d Cir. 1991), LDE argued that Kingdom Builders was not prejudiced by not receiving notice of the peremptory exception of no cause of action, because no evidence can be introduced on an exception of no cause of action, and the trial court can notice the exception of no cause of action on its own motion. We disagree, as La. Code Civ. P. art. 929 clearly provides that a peremptory exception when pleaded before 'or in the answer "shall be tried” and decided in advance of trial.


source: Caselaw Access Project

author: HOLDRIDGE, J.

license: Public Domain

text:
    STATE of Louisiana v. John PETERS
    2017 KA 0208
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 1, 2017

      Warren Montgomery, District Attorney, Ronnie Gracianette, Assistant District Attorney, Franklinton, LA, Matthew Caplan, Assistant District Attorney, Covington, LA, Attorneys for Appellee, State of Louisiana
    Lieu T. Vo Clark, Louisiana Appellate Project, Mandeville, LA, Attorney for Defendant/Appellant, John Peters
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, J.
   HOLDRIDGE, J.

liThe defendant, John Peters, was charged by bill of information with three counts of attempted second degree murder, violations of Louisiana Revised Statutes 14:30.1 and 14-27. He entered a plea of not guilty, and following a jury trial, was found guilty as charged. He filed motions for new trial and postverdict judgment of acquittal, both of which were' denied. The district court sentenced the defendant to fifteen years at hard labor without the benefit of probation, parole, or suspension of sentence on each count, to ran concurrently. He filed a motion to reconsider sentence, which was denied. The defendant now appeals, challenging the sentences imposed by the district court and the denial of his motion to reconsider. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

On August 26, 2014, at approximately 3:20 a.m., Washington Parish Sheriffs Office was dispatched to the Sportsman’s Inn Motel in Bogalusa, Louisiana, in response to a shooting. Officers viewed security footage of the motel and made contact with the three victims, Larry Alderson, Brooke Ramsey, and L.R.; who were the occupants of Room 213. Their motel room had been shot at multiple times, and twenty-nine shell casings, including nine from a -9 millimeter weapon, were located on the scene. Officers subsequently learned that co-defendant James' Spikes had presented to Our Lady of the Angels Hospital with a gunshot wound. Upon learning this information, officers reported to the home of Spikes where they encountered the defendant and co-defendant Ondre Biekham. IgThe defendant was placed under arrest and gave a taped statement wherein he admitted that he was at the scene of the shooting and had a 9 millimeter handgun.

EXCESSIVE SENTENCES

In two related assignments of error, the defendant contends that the sentences imposed by the district- court are excessive and that the district court.erred in denying his motion to reconsider the sentences. Specifically, the defendant contends that because of his youth and lack of a criminal history, the sentences imposed, by the district court are-excessive.

Article I, Section 20 of the Louisiana Constitution- prohibits the imposition of excessive punishment. Although a sentence may be within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762, 767 (La. 1979). A sentence is constitutionally excessive if it is grossly disproportionate to the severity of the offense or is nothing more than a purposeless and needless infliction of pain and suffering. See State v. Hurst, 99-2868 (La. App. 1st Cir. 10/3/00), 797 So.2d 75, 83, writ denied, 2000-3053 (La. 10/5/01), 798 So.2d 962, A sentence is grossly disproportionate if, when the-crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Hogan, 480 So.2d 288, 291 (La. 1985). A district court is given wide discretion in the imposition of sentences within statutory limits, and.the sentence imposed by it should not be set aside as excessive in the absence of manifest abusé of discretion. State v. Lobato, 603 So.2d 739, 751 (La. 1992).

Louisiana Code of Criminal Procedure article 894.1 sets forth the factors for the district court to consider when imposing sentence. While the entire checklist of Article 894.1 need not be recited, the record must reflect that the district court | ¡¡adequately considered the' criteria. State v. Brown, 2002-2231 (La. App. 1st Cir. 5/9/03), 849 So.2d 566, 569.

Whoever commits the crime of attempted second degree murder shall be imprisoned at hard labor for not less than ten nor. more than fifty years, without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:27D(l)(a) & 14:30.1B. The district court sentenced the defendant to fifteen years imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence on each count and ordered that the sentences run concurrently. In giving reasons for sentencing the defendant, the district court found that there was an undue risk that the defendant would commit another crime during a period of suspended sentence or probation, that the defendant was in need of commitment to an institution, and that any lesser sentences would deprecate the seriousness of the offenses. See La. Code Crim. P. art. 894.1 A. In considering the Article 894.1B factors, the district court found that the defendant created the risk of death or great bodily harm to more than one person, that the defendant used threats of violence in the commission of the offenses, and the offender used a dangerous weapon in the commission of the offenses. See La. Code Crim. P. art. 894.1B(5), (6), & (10). In mitigation, the court noted the defendant’s age and the fact that he did not have any criminal history. See La. Code Crim. P. art. 894.1B(28) & (33).

Considering the district -court’s stated reasons and the record as a whole, the sentences imposed are not grossly disproportionate to the severity of the offenses and, therefore, are not unconstitutionally excessive. Thus, the district court did not. err or abuse its discretion in imposing the sentences or in denying the motion to reconsider sentences. These assignments of error are without merit.

| CONCLUSION

For the foregoing reasons, the defendant’s convictions and sentences are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.

      . Jason Jarrell Spikes and Ondre J, Bickham were charged by the same bill of information and tried separately.

      . The minor victim is identified herein by initials only. See La, R.S. 46:1844W,


author: PENZATO, J.

text:
    STATE of Louisiana v. Edward CALDWELL
    2017 KA 0766
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 1, 2017

      Ricky L. Babin, District Attorney, Donald D. Candell, Assistant District Attorney, Gonzales, Louisiana Attorneys for Ap-pellee, State of Louisiana
    Jane L. Beebe, Louisiana Appellate Project, New Orleans, Louisiana Attorney for Defendant/Appellant, Edward Caldwell
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

|2The defendant, Edward Caldwell, was charged by grand jury indictment with two counts of aggravated rape (victims under thirteen years of age), violations of La. R.S. 14:42 (prior to amendment by 2015 La. Acts Nos. 184, § 1 and 256, § 1) (counts one and two); and molestation of a juvenile, a violation of La. R.S. 14:81.2 (count three). He entered a plea of not guilty and, following a jury trial, was found guilty as charged on all three counts. As to counts one and two, on each count he was sentenced to a term of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. On count three, the defendant was sentenced to twenty years at hard labor. The district court ordered that the sentences on counts one and two run consecutively with each other and concurrently with that imposed on count three. The defendant now appeals, challenging the sentences imposed by the district court. For the following reasons, we affirm the defendant’s convictions and sentences.

FACTS

While attending a family birthday party on July 4, 2013, at the home of her half-sister, Leslie Cooper, the victim, A.K., disclosed that her father, the defendant, had been molesting her. Investigations revealed that the defendant had also been molesting A.K.’s younger sister, C.K. Both girls were taken to the Audrey Hepburn Care Center for examinations and tested positive for chlamydia. The defendant tested positive for the same species of chlamydia as A.K. and C.K.

At trial, A.K. testified that the defendant began touching her private area with his hand when she was six years old. When she was twelve years old and living in an R.V. park in Gonzales, Louisiana, the defendant forced her to engage |Rin vaginal sexual intercourse multiple times per week. A.K. testified that the defendant raped her more than twenty times. The defendant also forced A.K. to perform oral sex on him, which she testified occurred less than ten times. The abuse continued until A.K. was removed from the home after the July 4, 2013, disclosure. A.K. also testified that she witnessed the defendant touch C.K.’s private area when C.K. was ten or eleven years old.

C.K. testified that the defendant touched her private area with his hand more than one time. When she turned twelve years old, the defendant began raping her. C.K. testified that the sexual vaginal intercourse happened more than twenty times. The defendant also forced her to perform oral sex on him.

The victims’ mother testified that she and the defendant began dating when she was fourteen years old and he was thirty-four years old and that they had been together for over fifteen years. She stated that she did not witness the defendant rape her daughters, but that it was a “possibility.” The defendant testified at trial and denied- abusing A.K. and C.K. as well as testing positive for chlamydia.

EXCESSIVE SENTENCE

In his sole assignment of error, the defendant contends, that the district court imposed excessive sentences. Specifically, he argues that the district court erred by ordering the sentences on counts one and two to run consecutively. According to the defendant, “there is nothing [indicated] in the facts of this case that justify the [district] court’s consecutive sentence.”

A thorough review of the record indicates that the defendant did not make or file a motion to reconsider sentence following the district court’s imposition of the sentences. Under La. Code Crim. P. art. 881.1E, the failure to make or file a motion to reconsider sentence shall preclude the defendant from raising an objection to the sentence on appeal, including a claim of excessiveness. See State v. Mims, 619 So.2d 1059 (La. 1993) (per curiam). The defendant, therefore, is procedurally barred from having this assignment of error reviewed. See State v. Duncan, 94-1563 (La. App. 1st Cir. 12/15/95), 667 So.2d 1141, 1143 (en banc per curiam). Accordingly, this assignment of error is without merit.

CONVICTIONS -AND SENTENCES AFFIRMED.

      . A.K., the victim of counts one and three, was born on November 19, 1999. C.K., the victim of count two, was bom on March 11, 2001.

      . The victims herein will be referred to by initials only. See La. R.S. 46:1844W.


author: PETTIGREW, J.

text:
    STATE of Louisiana IN the INTEREST OF D.K., JR.
    NO. 2017 KJ 0478
    Court of Appeal of Louisiana, First Circuit.
    Judgment rendered NOVEMBER 1, 2017

      HILLAR C. MOORE, III, DISTRICT ATTORNEY, OTHA “CURTIS” NELSON, JR., COURTNEY MYERS, ASSISTANT DISTRICT ATTORNEYS, BATON ROUGE, LA, ATTORNEYS FOR STATE OF LOUISIANA
    JACK HARRISON, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLEE D.K, JR.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   PETTIGREW, J.

UThe sixteen-year-old juvenile, D.K<,-Jr., was alleged to, be delinquent according to a petition filed by the State,, pursuant to-the Louisiana Children’s ■ Code. The petition was based upon the alleged commission of four counts of aggravated rape (counts one through four), violations of La. R.S. 14:42 (victim under the age of thirteen) (prior to revision by,2015 La. .Acts Nos. .184, § 1 and 256, § 1) and one count of attempted aggravated rape (count five), a violation of La. R.S. 14:42 and 14:27, which were alleged to have occurred on or about June 1, 2014, through June 23, 2015. The juvenile initially entered a denial to the allegations. Pursuant to an agreement, the State amended count one to indecent behavior with a juvenile, a violation of La. R.S. 14:81, and dismissed, without prejudice, counts two through five. The juvenile entered a best interest plea to count one, as amended. Following a Boykin examination, the juvenile court accepted the plea and adjudicated-the juvenile to be delinquent.. The juvenile court subsequently ordered that the disposition be deferred for a period of six months and that the juvenile be placed on supervised probation for a period of six months pending final disposition.

The State filed a motion to reconsider the disposition, which the juvenile court denied. The State now appeals, arguing that the juvenile court erred in deny-tag its motion. For the following reasons, we affirm the adjudication of delinquency and deferred disposition. The juvenile’s “Motion to Dismiss Appeal” and “Motion to Strike Factual Allegations Not in Record” are denied.

FACTS

Because the juvenile entered a best interest plea, the facts of this case were never fully developed at the adjudicatory hearing. At the adjudicatory hearing, the | ¡¡State noted that at the time of the alleged offenses, the victim was twelve years old, and the juvenile was fifteen years old. The juvenile’s counsel acknowledged that the State had sufficient evidence to sustain an adjudication for indecent behavior with a juvenile pursuant to La. R.S. 14:81A(1).

DISCUSSION

In its sole assignment of error, the State argues that the juvenile court lacked authority to enter a deferred disposition. Specifically, the State contends that the express language of La. R.S. 14:81H(1) prohibits the imposition of a deferred disposition.

Louisiana Revised Statutes 14:81H(1) provides:

Whoever commits the crime of indecent behavior with juveniles shall be fined not more than five thousand dollars, or imprisoned with or without hard labor for not more than seven years, or both, provided that the defendant shall not be eligible to have his conviction set aside or his prosecution dismissed in accordance with the provisions of Code of Criminal Procedure Article 893. (Emphasis added.)

Under La. Code Crim. P. art. 893A, after a first or second conviction of a non-capital felony, a district court “may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation[.]” Similarly, under La. Child. Code art. 896A, the juvenile court may, on motion of the district attorney or of counsel for the child, suspend further proceedings and place the child on supervised or unsupervised probation. Thus, the State argues that a “proper construction of [Article 896 and Section 14:81H(1) ] }ias to result in a finding that a juvenile ... ‘is not entitled to a deferred disposition upon being adjudicated for the offense of indecent behavior with juveniles.”

The juvenile’s disposition hearing was held on October 19, 2016. During the hearing, the State recommended that the juvenile be placed on supervised probation for two years. The juvenile’s counsel stated that the juvenile was in agreement with the probation, but noted that the juvenile had been released from the detention center and placed under supervision and assigned to case work in June 2015. According to 14the juvenile’s counsel, the juvenile had been operating under the rules of release for one year and four months with no issues and had only one treatment program left to attend. The State noted that the reason it requested a term of two years was because some juveniles took as long as twenty-four months to complete the sex offender treatment program. It further noted that it would not be opposed to early termination of the disposition if the juvenile’s therapist decided that the juvenile reached the maximum benefits of the program. The juvenile court noted the evaluation of the juvenile indicated that he was at low risk and had no substance abuse issues. It then deferred disposition for six months and placed the juvenile on supervised probation. The State objected to the deferred disposition and filed a motion to reconsider the disposition on October 24, 2016.

On December 22, 2016, a hearing was held on the State’s motion to reconsider the disposition, during which the State argued that the disposition imposed was lenient and that the juvenile was not entitled to a deferred disposition. The State offered into evidence the juvenile’s psychosexual evaluation and an addendum to the predisposition report and presented the testimony of Department of Juvenile Services Probation Officer Kenya Reado. Officer Reado opined that six months was not a sufficient amount of time for the juvenile to complete the sex offender treatment program and recommended a disposition of two years of supervised probation.

The matter was continued until January 6, 2017, at which time the State presented the testimony of Dr. Brandon Romano. According to Dr. Romano, treatment for a low-risk juvenile would last approximately three months, and treatment for a moderate-risk youth would last approximately six months. The doctor explained that if the allegations made by the victim in the instant case were true, he would recommend that the juvenile’s risk level be raised to at least moderate; and if the juvenile complied with the program, he would be in treatment for at least six months. The State also presented the testimony of the juvenile’s probation office:!' Quanna Coleman, who confirmed that prior to the juvenile’s October 19, 2016 disposition hearing, his drug |fiscreen was negative for all illegal substances. The State then stipulated that the juvenile was participating in the sex offender treatment program.

At the conclusion of the testimony presented by the State, it argued that the juvenile was not entitled to a deferred disposition. The State reasoned that La. Child. Code art. 896 parallels La. Code Crim. P. art. 893 and was enacted with the desire of the legislature to provide juveniles with an opportunity to have their adjudications dismissed and removed from their record. It further contended that because La. R.S. 14:81 does not provide for an adult offender to have his conviction set aside or prosecution dismissed in accordance with La. Code Crim. P. art. 898, a juvenile adjudicated under that section was not eligible for a deferred disposition. The State concluded that although there are some occasions wherein juveniles are allowed a deferred disposition despite the language of the statute, those instances usually involve family and consultation with the victim. In the instant matter, the family of the victim did not ask the State to allow a deferred disposition, but asked “just the opposite.”

The juvenile’s attorney responded that although there are limitations on the juvenile court’s discretion for disposition for certain offenses under La. Child. Code art. 897.1, the instant offense is not included in that article.

The juvenile court judge noted that she was present when the legislature discussed the issue. According to the judge, any offenses other than- those specifically | ñlisted in Article 897.1 'are subject to the provisions .of deferred disposition unless otherwise stated in the code. She noted that she. based the. original disposition on the factual basis from the victim, what the State proved, and Dr. Romano’s report. She further noted that no evidence of additional accusations of illegal or inappropriate conduct had been reported. The juvenile court judge found no abuse of discretion in the deferral of the juvenile’s disposition or in-the length of his probation.

In its written reasons for judgment, the juvenile court further stated that it was authorized to enter the deferred disposition under Articles 896 and 897. The juvenile court reasoned that because the Louisiana Children’s Code is not. silent on dispositions and deferred dispositions, it is not superseded by La. R.S. 14:81H(1).

The function of statutory interpretation and the construction to be given, to legislative acts rests with the judicial branch of government. State in the Interest of A.M. and T.K., 98-2752, p. 2 (La. 7/2/99), 739 So.2d 188, 190, When a law is clear and unambiguous and its application does not lead to absurd consequences, the law is applied as written and no interpretation may be made in search of the intent of the legislature. La. Civil Code art. 9. When the words of a law are ambiguous, however, their meaning must be found by examining their context and the text of the law as a whole. La. Civil Code art. 12. Further, it is a well-recognized and long-established rule of statutory construction that a statute should be interpreted' as a whole to effect the legislative intent and should be construed in such a way as to reconcile, if possible, apparent inconsistencies or ambiguities so that each part is given effect. State v. Cazes, 262 La. 202, 263 So.2d 8, 12 (1972). Finally, the paramount consideration in interpreting a statute is ascertaining the legislature’s intent and the reasons that prompted the legislature to enact the law. Garrett v. Seventh Ward General Hosp., 95-0017, p. 9 (La. 9/22/95), 660 So.2d 841, 846, overruled on other grounds, Al Johnson Const. Co. v. Pitre, 98-2564 (La. 5/18/99), 734 So.2d 623.

Louisiana Children’s Code article 104 provides, in pertinent part, “Where procedures are not provided in this Code, or otherwise by law, the court shall proceed in accordance with: (1) The Code of Criminal ' Procedure in a delinquency 17proceeding[.]” Chapter 16 of Title VIII in the Louisiana Children’s Code provides disposition guidelines for juvenile courts, and Article 901B specifically provides that the juvenile court “should impose the least restrictive disposition authorized by Articles 897 through 900[.]” Under Article 896A, “after the entry of an adjudication order, the court may, on motion of the district attorney or of counsel for the child, suspend further proceedings and place the child on supervised or unsupervised probation!;.]” Article 896D further provides that the “deferred dispositional agreement shall remain in force for six months .unless the child is discharged sooner by the court.” Thereafter, “[i]f the child satisfactorily completes the court ordered period of supervision, the court shall discharge the child' from any further supervision or conditions, set aside the adjudication, and dismiss the petition with prejudice.” La. Ch. Code art. 896F.

Louisiana Children’s Code article 897A(3) provides that after adjudication of any felony-grade delinquent act other than those described in Article 897.1, the court may “[p]lace the child on probation in the custody of his parents or other suitable person.” As noted, Article 897.1 restricts the benefit of a deferred disposition for first degree murder, second degree murder, aggravated or first degree rape, aggravated kidnapping, and armed robbery. Because the Louisiana Children’s Code provides procedures and limitations for entering a deferred disposition, the juvenile court was not required to proceed in accordance with the Louisiana Code of Criminal Procedure. In Article 897.1, the Louisiana Children’s Code specifically sets forth offenses for which juveniles are not allowed deferred disposition. The instant offense, indecent behavior with a juvenile, is not one of those enumerated offenses. Thus, the juvenile court was authorized to enter a deferred disposition in the instant matter and did not err in denying the State’s motion to reconsider the disposition. Accordingly, the State’s assignments of error are without merit.

ADJUDICATION AND DISPOSITION AFFIRMED; JUVENILE’S MOTION TO DISMISS APPEAL AND MOTION TO STRIKE FACTUAL ALLEGATIONS NOT IN RECORD DENIED.

      . Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969).

      . The juvenile argues in his appellate brief and in the motion to dismiss appeal that this court does not have jurisdiction because the ruling contested by the State was not final at the time of the State's motion to appeal. The juvenile's deferred disposition was entered pursuant to La. Child. Code art. 896A. Comment (a) to Article 896A states, in pertinent part, "The concept of Paragraph A is recognized for convicted adults in Code of Criminal Procedure Article 893.” Article 893 considers the suspended sentence to be final and allows for appeal. See La. Code Crim. P. art. 893A. The Code of Criminal Procedure controls where procedures are not provided in the Louisiana Children’s Code. See La. Ch. Code arts. 104(1) & 803. Accordingly, we find the appeal of the juvenile's deferred disposition to be properly before this court.

      . Article 897.1 provides:
      A. After adjudication of a felony-grade delinquent act based upon a violation of R.S. 14:30, first degree murder; R.S. 14:30.1, second degree murder; R.S. 14:42, aggravated or first degree rape; or R.S. 14:44, aggravated kidnapping, the court shall commit the child who is fourteen years or older at the time of the commission of the offense to the custody of the Department of Public Safety and Corrections to be confined in secure placement until the child attains the age of twenty-one years without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.
      B. After adjudication of a felony-grade delinquent act based upon a violation of R,S. 14:64, armed robbery, the court shall commit the child wh(j> is fourteen years of age or older at the time of the commission of the offense to the custody of the Department of Public Safety and Corrections to be confined in secure placement for the length of the term imposed by the court at the disposition hearing without benefit of parole, probation, suspension of imposition or execution- of sentence, or modification of sentence.
      C. At least six months prior to the release of the child, the department shall prepare an individualized and thorough transitional plan that identifies the techniques, programs, personnel, and facilities that will be used to assist the child in achieving a' successful return to his family and the community. A copy of the transitional plan shall be mailed to the court that ordered the disposition of commitment.


author: HIGGINBOTHAM, J.

text:
    James E. SHIELDS, Jr., Christine F. Shields, James E. Shields, III, and Joseph Luke Shields v. ALVIN R. SAVOIE & ASSOCIATES, INC. d/b/a Savoie Construction, Inc., Foster-Taylor Fireplaces, Inc., American Empire Surplus Lines Insurance Company, The Travelers Indemnity Company of Connecticut, Ross Savoie, Ross Savoie Construction, LLC, American Empire Surplus Lines Insurance Company, America’s Choice 2-10 Home Buyer’s Warranty, and JKL Insurance Company ASI Lloyds as Subrogee of James and Christine Shields v. Savoie Construction, Inc., Savoie Construction and Development, LLC, and Foster-Taylor Fireplaces, Inc.
    NO. 2017 CA 0604
    NO. 2017 CA 0605
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 01, 2017

      James E. Shields, Jr., James E. Shields, Sr., Gretna, LA, Attorneys for Plaintiffs-Appellants, James E. Shields, Jr., Christine F. Shields, James E. Shields, III and Joseph Luke Shields
    George J. Richaud, Metairie, LA, Attorney for Defendant-Appellee, J. Ross Sa-voie
    Christopher R. Teske, Eric S. Charleston, New Orleans, LA, Attorneys for Defendant-Appellee, American Empire Surplus Lines Insurance Company
    Sean M. Casey, Mandeville, LA, Attorney for Defendants-Appellees, Foster-Taylor Fireplaces, Inc., and the Travelers Indemnity Company Connecticut
    Ross F. Lagarde, Slidell, LA, Attorney for Defendant-Appellee, J. Ross Savoie Construction, LLC
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   HIGGINBOTHAM, J.

laThis consolidated matter has been before this court numerous times. For a detailed outline of the facts and procedural history in this controversial litigation, see Shields v. Alvin R. Savoie & Associates, Inc., 2016-0825 c/w 2016-0826 (La. App. 1st Cir. 2/17/17), 214 So.3d 27, writ denied, 2017-0506 (La. 5/19/17), 220 So.3d 750 (“Shields I”), and Shields v. Alvin R. Savoie & Associates, Inc., 2016-0827 c/w 2016-0828 (La. App. 1st Cir. 2/17/17), 217 So.3d 420 (“Shields II”). Most recently, the homeowners, James E. Shields, Jr. and Christine F. Shields, along with their two sons, filed another appeal related to the summary judgment dismissal of additional defendants, J. Ross Savoie and Ross Sa-voie Construction, LLC (collectively referred to as “Savoie”) in a related consolidated appeal decided this same date. See Shields v. Alvin R. Savoie Construction, Inc., et al (2017-0602 c/w 2017-0603 (La. App. 1st Cir. 1/11/17), 233 So.3d 694, 2017 WL 4973114 (“Shields III”). The particular consolidated appeal (“Shields IV”) currently before us concerns the summary judgment dismissal of Savoie’s commercial general liability insurer, American Empire Surplus Lines Insurance Company (“American Empire”).

In Shields III, we concluded that the district court properly dismissed the homeowners’ claims against Savoie as perempt-ed. Because of our affirmation of the dismissal of the homeowners’ claims against Savoie, it follows that the homeowners no longer have a viable claim against Savoie’s insurer, American Empire. As we held in Shields III, the scope of American Empire’s liability extends only as far as the liability of its insureds, Savoie. Because the homeowners cannot recover damages against Savoie due to peremption, they likewise cannot recover damages against American Empire. See Barnett v. Watkins, 2006-2442 (La. App. 1st Cir. 9/19/07), 970 So.2d 1028, 1037, writ denied, 2007-2066 (La. 12/14/07), 970 So.2d 537.

^Consequently, for the same reasons expressed in our opinion in the related Shields III consolidated appeal, we hereby affirm via summary opinion in accordance with Uniform Rules of Louisiana Courts of Appeal, Rule 2-16.2, the district court’s grant of summary judgment in favor of American Empire and dismissal of all of the homeowners’ claims against American Empire. All costs of these consolidated appeals are assessed against the homeowners, James E. Shields, Jr. and Christine F. Shields.

AFFIRMED.


text:
    STATE of Louisiana v. Keith HARRISON
    NO. 2017 KA 0852
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 1, 2017
    WARREN L. MONTGOMERY, DISTRICT ATTORNEY, MATTHEW CA-PLAN, ASSISTANT DISTRICT ATTORNEY, COVINGTON, LA, ATTORNEYS FOR STATE OF LOUISIANA
    GWENDOLYN K. BROWN, BATON ROUGE, LA, ATTORNEY FOR DEFENDANT-APPELLANT KEITH HARRISON
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   PETTIGREW, J.

| ¡¡The defendant, Keith Harrison, was charged by bill of information with molestation of a juvenile, a violation of La. R.S. 14:81.2; and indecent behavior with a juvenile, a violation of La. R.S. 14:81. The defendant pled not guilty to the charges. The defendant filed a motion to suppress his confession. A hearing was held on the matter, and the motion to suppress was denied. Thereafter, the defendant withdrew his prior pleas of not guilty and, at a Boykin hearing, entered pleas of guilty as charged in exchange for the State’s agreement to forego habitual offender proceedings against him, but without reserving his right to challenge the trial court’s pretrial ruling. For the molestation of a juvenile conviction, the defendant was sentenced to ten years imprisonment at hard labor; for the indecent behavior with a juvenile conviction, he was sentenced to seven years imprisonment at hard labor. The sentences were ordered to run concurrently. The defendant now appeals. We affirm the convictions and sentences.

FACTS

Because the defendant pled guilty, the facts were not developed. According to the bill of information, the defendant committed the alleged lewd and lascivious acts between June 13 and June 15, 2003. There were two separate victims subjected to these alleged acts, both of whom were under the age of seventeen at the time of the commission of the offenses.

ISSUES PRESENTED

Appellate counsel for the defendant has filed a motion to withdraw from the case. In accordance with the procedures outlined in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241 (per curiam); and State v. Benjamin, 573 So.2d 528 (La. App. 4 Cir. 1990), appellate counsel has filed a supporting brief to the motion to withdraw | ¡¡averring that, after a conscientious and thorough review of the record, she has found no non-frivolous issues for appeal and no ruling of the trial court that arguably supports an appeal.

Appellate counsel has notified the defendant of the filing of this motion and informed him of his right to file a pro se brief. The defendant has not filed a pro se brief with this court.

This court has performed' an independent, thorough review of the pleadings, minute entries, bill of information, and transcripts in the appeal record. The defendant was properly charged by bill of information with violations of La. R.S. 14:81 and La. R.S. 14:81.2, and the bill was signed by the district attorney or an assistant district attorney. The defendant was present and represented by counsel at arraignment, sentencing, and guilty pleas. The sentences imposed are legal in all respects. See Benjamin, 573 So.2d at 531.

This court routinely reviews the record for error under La. Code Crim. P. art. 920(2), regardless of whether such a request is made by a defendant or defense counsel. Linder Article 920(2), we are limited in our review to errors discoverable by a mere inspection of the pleadings and proceedings without inspection of the evidence. After a careful review of the record in these proceedings, we have found no reversible errors. See State v. Price, 2005-2514, pp. 18-22 (La. App. 1 Cir. 12/28/06), 952 So.2d 112, 123-125 (en banc), writ denied, 2007-0130 (La. 2/22/08), 976 So.2d 1277.

Our independent review reveals no non-frivolous issues that arguably support this appeal. Accordingly, the defendant’s convictions and sentences are affirmed. Appellate counsel’s motion to withdraw is hereby granted.

CONVICTIONS ' AND SENTENCES AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . In State v. Mouton, 95-0981, p. 1 (La. 4/28/95), 653 So.2d 1176, 1177 (per curiam), the Louisiana Supreme Court sanctioned the procedures outlined in Benjamin for use by the appellate courts of Louisiana. See Jyles, 96-2669 at 1, 704 So.2d 241.


text:
    STATE of Louisiana v. THADDIUS BROTHERS
    2017 KA 0870
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 01, 2017

      Hillar C. Moore, III, District Attorney, Dylan C. Alge, Assistant District Attorney, Baton Rouge, Louisiana, Appellee, State of Louisiana
    Bruce G, Whittaker, New Orleans, Louisiana, Defendant/Appellant, Thaddius Brothers

      BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

UThe defendant, Thaddius Brothers, was charged by grand jury indictment with second degree murder, a violation of Louisiana Revised Statutes 14:30.1. He entered a plea of not guilty and, following a jury trial, was found guilty as charged. The defendant was then sentenced to a term of life imprisonment at hard labor without the benefit of probation, parole, or suspension of sentence. He now appeals, challenging the sufficiency of the evidence introduced by the State in support of his conviction. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

During the early morning hours of August 13, 2010, Baton Rouge Police Department officers were dispatched in response to a report of a nonresponsive male, later identified as the victim, David Mitchell, at an apartment complex on North Marque Ann Drive and West La Margie Avenue. The victim’s body was located on the side of the apartment complex, and there were spots of blood located from the area near the victim’s vehicle in the apartment complex parking lot to the location where the victim was found on the side of the complex. He was not wearing shoes, but a pair of slippers were located near his vehicle. Also located were a set of keys and the victim’s driver’s license. A white Firebird was parked near the victim’s vehicle, and a spent projectile was located inside of the Firebird’s broken taillight. Detectives recovered another spent projectile in front of the apartment complex. The bullets located in front of the apartment and in the Fire- ■ bird’s taillight were tested and compared to pieces of a projectile removed from the victim. Forensic scientist Charles Watson, Jr., determined that based on his observations, at least four shots were fired and it was “very possible” that all were fired from the same firearm.

lsThe coroner testified that the victim had been shot three times and that the cause of his death was multiple gunshot wounds to his torso and extremities. According to the coroner’s testimony, the “kill shot” was that to the victim’s upper back which exited through his right lateral chest region.

In September and October of 2010, detectives received information from two sources, Calvin Moore and Darrell Butler, identifying the defendant as the shooter. In 2014, Baton Rouge Police Department Detective John Dauthier was assigned to investigate cold-case homicides. Detective Dauthier received a call from Baton Rouge Police Department Burglary Division stating that Courtney Lewis was under arrest and had information about a cold case. Detective Dauthier interviewed Lewis and an arrest warrant for the defendant was subsequently obtained.

SUFFICIENCY OF THE EVIDENCE

In his sole assignment of error, the defendant challenges the sufficiency of the evidence presented by the State in support of his conviction. Specifically, he contends that the only evidence establishing his identity as the perpetrator of the offense was hearsay. The defendant argues that the videotaped statements of Moore, Butler, and Lewis were made out of court, were not under oath, and were subsequently denied during trial.

A conviction based on insufficient evidence cannot stand as it violates Due Process. See U.S. Const, amend. XIV; La. Const, art. I, § 2. The standard of review for the sufficiency of the evidence to uphold a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See La. Code Crim. P. art. 821(B); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 654, 660; State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). The Jackson standard of review, incorporated into Louisiana Code of Criminal Procedure article 821, is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, Louisiana Revised Statutes section 15:438 provides that the factfinder must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Patorno, 2001-2585 (La. App. 1st Cir. 6/21/02), 822 So.2d 141, 144.

When a conviction is based on both direct and circumstantial evidence, the reviewing court must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and the facts reasonably inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. State v. Wright, 98-0601 (La. App. 1st Cir. 2/19/99), 730 So.2d 485, 487, writs denied, 99-0802 (La. 10/29/99), 748 So.2d 1157, 2000-0895 (La. 11/17/00), 773 So.2d 732.

When the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. Positive identification by only one witness is sufficient to support a conviction. It is the factfinder who weighs the respective credi-bilities of the witnesses, arid this court will generally not second-guess those determinations. State v. Hughes, 2005-0992 (La. 11/29/06), 943 So.2d 1047, 1051; State v. Davis, 2001-3033 (La. App. 1st Cir. 6/21/02), 822 So.2d 161, 163-64.

The crime of second degree murder, in pertinent part, “is the killing of a human being: (l)[w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]” La. R.S. 14:30.1A(1). “Specific criminal intent is that state of | ¿mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” La. R.S. 14:10(1). Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction. Thus, specific intent may be proven by direct evidence, such as statements by a defendant, or by inference from circumstantial evidence, such as a defendant’s actions or facts depicting the circumstances. Specific intent is an ultimate legal conclusion to be resolved by the factfinder. State v. Buchanon, 95-0625 (La. App. 1st Cir. 5/10/96), 673 So.2d 663, 665, writ denied, 96-1411 (La. 12/6/96), 684 So.2d 923. Specific intent to kill may be inferred from a defendant’s act of pointing a gun and firing at a person. State v. Delco, 2006-0504 (La. App. 1st Cir. 9/15/06), 943 So.2d 1143, 1146, writ denied, 2006-2636 (La. 8/15/07), 961 So.2d 1160.

Kilwana Johnson, a resident of the apartment complex where the victim was shot, testified at trial. According to Johnson, on the night of the shooting, she heard two or three shots fired and heard someone say, “Give it here, give it here.” She also heard a “shuffle” noise.

Moore testified at trial. At the time of trial, he was incarcerated. Moore admitted hearing about an incident on Marque Ann Drive and giving a statement to detectives, but testified that his original recorded statement was not true. In Moore’s original statement, he told detectives that three shots were fired from a pistol on the night of the incident, Moore also identified the defendant as the shooter in a photographic lineup during his original interview. Although Moore admitted at trial that he approached a detective on his own to provide the information, he claimed that he was pressured to give the statement. Baton Rouge Police Department Sergeant Duke Staples testified that after arresting Moore in September 2010, Moore told him that he had information about a homicide and asked to speak to homicide detectives. Officer Staples denied pressuring Moore] fl into giving the statement. The State did not play Moore’s recorded statement at trial.

Butler also testified at trial. According to Butler’s testimony, he did not see any-, thing on the night of the shooting and his original statement given to detectives was false. In Butler’s original statement, he told detectives that, he was outside when the shooting occurred and saw what happened. A recording of Butler’s original statement was played for the jury. According to Butler’s recorded statement, he lived across the street from the , apartment complex where the victim was shot. Butler stated that the victim was running from an apartment to his car, which Butler described as a Jaguar. The defendant crept down and met the victim by the side of his door and told the victim to, “give it up.” The defendant then grabbed the victim’s shirt and began shooting. Butler stated that the defendant shot “like four times.” The victim ran to the corner of the apartment complex and fell down. Butler identified the defendant as the shooter in a photographic lineup and stated that he “seen him myself [sic] with my own eyes.” At trial, Butler denied witnessing the shooting and explained that he blamed the shooting on the defendant so he could get out of jail.

Lewis, who was incarcerated at the time of trial, testified that he did not remember anything from the night of the shooting and that when he talked with detectives in October 2014, he “told them what they said they wanted [him] to say.” Lewis’s recorded statement was played at trial. During his statement, he explained that he lived in the apartment complex where the shooting occurred. Lewis stated that he was not under the influence of any alcohol or drugs at the time of the shooting and that he was one-hundred percent sure of what 'he saw. He also^ stated that he knew both the defendant and the victim prior to the night of the shooting. According to Lewis, around 1:30 or 2:00 a.m., he heard the defendant say, “give it up.” Ée turned his lights off, looked outside of his window, and saw the defendant leading the victim to the parking lot with a pistol. Lewis walked out to the stairwell and saw another man, “Two-Two,” who told him that the victim was being robbed. Lewis then saw the defendant point the pistol at the victim who lunged toward the defendant in an attempt to take the pistol. When the victim lunged toward the defendant, the defendant shot him in his chest. The victim grabbed his chest and ran, but the defendant walked behind him and shot the victim two more times in his back. The defendant then stood over the victim before running away. Shortly thereafter, another man drove into the apartment complex, observed the victim, and contacted law enforcement. After law enforcement had secured the area, the defendant returned to the scene wearing different clothing and asked Lewis if he saw the shooting. Lewis told the defendant, “I see and don’t see” in an attempt to “throw [the defendant] off.” Lewis clarified that because the defendant’s back was turned away from him, the defendant would not have known that Lewis witnessed the shooting. According to Lewis, the defendant attempted to rob the victim because he thought that he “had something” based on the vehicle that he was driving, which was a Jaguar. However, Lewis explained, the Jaguar actually belonged to someone to whom the victim sold marijuana. Lewis opined that the victim was at the apartment complex that night to visit a woman who lived there. He explained that although he did not initially report his knowledge of the shooting, he subsequently decided to do so because the defendant was going to be released from jail, and he did not want the defendant to harm him or his family. He also stated that the defendant had killed another one of his friends. Lewis clearly stated that he was giving the information freely and voluntarily and denied receiving any assistance in exchange for his statement. Detective Dauthieijs- testified that he conducted the interview of Lewis, and no threats were made to Lewis regarding his statement, nor did Detective Dauthier give Lewis the impression that he would receive any favored treatment in exchange for his statement. Detective Dauthier further noted that Lewis requested to speak with detectives and voluntarily provided the information after his arrest.

The defendant argues -that the evidence was insufficient to support the verdict because proof of his identity as the shooter was based on uncorroborated hearsay statements of recanting witnesses. Louisiana Code of Evidence article 801(D)(1)(a) provides that a statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is “inconsistent with his testimony, provided that the proponent has first fairly directed the witness’ attention to the statement and the witness has been given the opportunity to admit the fact and where there exists any additional evidence to corroborate the matter asserted by the prior inconsistent statement^]” The defendant, in effect, is suggesting that because the witnesses’ testimony was not corroborated, it was inadmissible hearsay under Article 801(D)(1)(a). Contrary to the defendant’s argument, the prior statements made by Moore, Butler, and Lewis were not hearsay. As the Louisiana Supreme Court explained in State v. Stokes, 2001-2564 (La. 9/20/02), 829 So.2d 1009, 1010 (per curiam):

A prior statement by a witness which is “[o]ne of identification of a person made after perceiving the person,” is non-hearsay when the witness appears and is cross-examined on the statement. La. [Code Evid.] art. 801D(l)(c). Such a statement may be used assertively, as substantive evidence of guilt, and may be established through the testimony of one to whom the statement was made. This is so even if the witness denies making an identification or fails or is unable to make an in-court identification.

When a non-party witness’s credibility is attacked through prior inconsistent statements incriminating the accused, the hearsay evidence is generally not admissible for its. assertive value as substantive evidence of guilt, An exception tola this general rule exists for cases in which the witness’s prior inconsistent statement also constitutes a prior statement of identification for purposes of Louisiana Code of Evidence article 801(D)(1)(c), Louisiana’s counterpart of Federal Rules of Evidence 801(d)(1)(C). If at trial the eyewitness fails to remember or denies that he made the identification, the previous statements of the eyewitness can be proved by the testimony of a person to whom the statement was made, and the statement can be given substantive effect because it is not hearsay under La. Code Evid art. 801(D)(1)(c). State v. Johnson, 99-3462 (La. 11/3/00), 774 So.2d 79, 80 (per curiam). See United States v. Brink, 39 F.3d 419, 426 (3rd Cir. 1994).

In the instant matter, Butler and Lewis’s previous statements were not proved by the testimony of a person to whom the statements were made. Instead, their own previous statements were preserved for the record by way of a videotaped interview they gave at the police station while incarcerated for other offenses. During their recorded interviews, both Butler and Lewis identified the defendant as the shooter. These videotapes were played at trial. Accordingly, the videotaped statements of Butler and Lewis identifying the defendant as the shooter were not only non-hearsay under 801(D)(1)(c), but were used substantively by the State to establish the defendant’s identity as the shooter. See State v. Miner, 2014-0939 (La. App. 4th Cir. 3/11/15), 163 So.3d 132, 136-37, writ denied, 2015-0651 (La. 2/26/16), 187 So.3d 466 (where the victim’s trial testimony that he did not know who stabbed him was directly contradicted by his two videotaped interviews, which were shown to the jury at trial and used as substantive evidence of the defendant’s identity as the attacker, wherein he unequivocally identified the defendant as his attacker.) It is clear, therefore, that Butler and Lewis’s statements identifying the defendant as the shooter were properly admitted into evidence at trial and sufficient to establish his identity as the person who shot the victim.

|inA thorough review of the record indicates that any rational trier of fact, viewing the evidence presented in this case in the light most favorable to the State, could find that the evidence proved beyond a reasonable doubt, and to the exclusion of every reasonable hypothesis of innocence, the defendant’s identity as the perpetrator of second degree murder. Although Moore, Butler, and Lewis recanted their original statements, their trial testimonies were directly contradicted by their recorded statements during which all three positively identified the defendant as the shooter. The investigating officers and detectives testified that they did not coerce the witnesses into making statements or promise them anything in return for their statements. Thus, the jury had conflicting statements to consider and clearly chose to believe the witnesses’ original statements. The trier of fact may accept or reject, in whole or in part, the testimony of any witness. Moreover, when there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Lofton, 96-1429 (La. App. 1st Cir. 3/27/97), 691 So.2d 1365, 1368, writ denied, 97-1124 (La. 10/17/97), 701 So.2d 1331. The credibility of witnesses will not be reweighed on appeal. State v. James, 2002-2079 (La. App. 1st Cir. 5/9/03), 849 So.2d 574, 581.

The verdict rendered in this case indicates that the jury rejected the defendant’s theory that Moore, Butler, and Lewis misidentified him as the person who shot the victim. When a case involves circumstantial evidence and the jury reasonably rejects the hypothesis of innocence presented by the defense, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. See State v. Moten, 510 So.2d 55, 61 (La. App. 1st Cir.), writ denied, 514 So.2d 126 (La. 1987). No such hypothesis exists in this ease. Further, in reviewing the evidence, we cannot say that the jury’s determination was irrational under the facts and circumstances presented to them. | n See Ordodi, 946 So.2d at 662. An appellate court errs by substituting its appreciation of the evidence and credibility of witnesses for that of the factfinder and thereby overturning a verdict on the basis of an exculpatory hypothesis of innocence presented to, and rationally rejected by, the jury. State v. Mire, 2014-2295 (La. 1/27/16), — So.3d —, —, 2016 WL 314814 (per curiam); State v. Calloway, 2007-2306 (La. 1/21/09), 1 So.3d 417, 418 (per curiam). Based on the foregoing reasons, this assignment of error lacks merit.

CONVICTION AND SENTENCE AFFIRMED.

      . The witness is also referred to as Gerald Butler in the record.

      . Although the record refers to the interview of Lewis as occurring in October 2010, the video was recorded on October 16, 2014; Detective Dauthier refers to the death of the victim as being four years earlier than when the video was made; and at the end of the video, Detective Dauthier states that the date is October 16.


text:
    Danell BRICE v. Timothy BRAGGS, Shifa Health Associates, L.L.C., Shifa Medical Transportation, L.L.C., Serenity Center, L.L.C., Serenity Community Mental Health Center, L.L.C., Hope Village, Inc., Hope Village Properties, L.L.C., Neemwood Village, Psychcare of Louisiana, L.L.C., Psychcare Solutions, L.L.C., Psych Management, L.L.C., Zahid Imran, M.D., Vasanthi Vinayagam, M.D. and Jane Doe
    NO. 2017 CA 0382
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 1, 2017

      JONATHAN E. MITCHELL,' MICHAEL C. PALMINTIER, BATON ROUGE,1 LA, ATTORNEYS FOR PLAINTIFF-APPELLANT, ' DANELL BRICE
    ANN M. HALPHEN, AMY C, LAMBERT, L. ADAM THAMES, NE’SHIRA D. MILLENDER, BATON ROUGE, LA, ATTORNEYS FOR DEFENDANTS-AP-PELLEES, VASANTHI YINAYAGAM, M.D. AND LYNN SIMON, M.D.
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   PETTIGREW, J.

lain this case arising from an attack on a home health nurse by a patient, the nurse appeals a summary judgment dismissing her claims- against two physicians. We affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Danell Brice, a home health nurse, was attacked by a patient, Timothy Braggs, during a home health visit in Mr. Braggs’ apartment on April 2, 2009. Ms. Brice filed a petition for damages against a number of defendants, including Mr. •Braggs’ treating physicians, for injuries she allegedly sustained in the attack.

Mr. Braggs was admitted to Serenity Community Mental Health Center (“Serenity”), an outpatient partial day program and group therapy center for psychiatric patients, on March 3, 2009. Upon admission to Serenity, it was noted that Mr. Braggs was “poorly integrated and very psychotic” and that he;had a history of noncompliance with medication. His initial psychiatric evaluation • on the date of his admission includes a note to “add Haldol.” While being, treated at Serenity, Mr. Braggs lived independently at Hope Village, Inc., a residential facility for psychiatric patients, and began receiving home health services on March 13, 2009. A Home Health Certification and Plan of Care form dated March 13, 2009, and signed by Danell Brice, =R.N. as the nurse completing or reviewing the form,.lists Mr. Braggs’ diagnoses as Paranoid' Schizophrenia and Benign Hypertension, and included maintaining medication compliance as one treatment goal. A March 17, 2009 Physician Progress Note states that Mr. Braggs had “responded favorably” to medication, although he remained “poorly integrated [and]. essentially out of contact.”

On April 2, 2009, Ms. Brice was sent to Hope Village for home health visits with several patients, including Mr. Braggs. Ms. Brice alleges that as she was checking Mr. Braggs’ blood pressure in his apartment, he began to make inappropriate sexual advances towards her and touched her leg. She became fearful and started to leave the apartment, but Mr. Braggs “shoved [her] in a corner by the door.” She pushed him away from her and left the apartment. Ms. Brice claims that she sustained injuries in the act of pushing Mr. Braggs away from her.

I sin her suit for damages arising from the attack, Ms. Brice made claims against .Dr. Lynn Simon, a psychiatrist who treated Mr. Braggs at Serenity for psychiatric conditions and complaints, and Dr. Vasan-thi Vinayagam,.a Family Medicine physician who treated Mr. Braggs at Serenity for minor medical issues. Ms. Brice claimed that these two doctors were negligent in failing to warn her that Mr. Braggs’ medication had been changed, failing to. provide her with adequate security when treating Mr. Braggs, failing to protect her from the predictable risk of assault by Mr. Braggs, and failing to maintain the applicable standard of care.

Drs. Vinayagam and Simon filed motions for summary judgment, which were granted-by the'court,-and Ms. Brice’s claims against the doctors were dismissed with prejudice on October 31, 2016. Ms. Brice appealed, arguing that the trial court erred in finding that there was no genuine issue of material fact as to whether Mr. Braggs’ treating physicians observed violent and/or sexually assaultive behavior prior to the alleged attack and in finding that Drs. Vinayagam and Simon .did not have a duty to communicate information, such, as medication changes or violent or sexually as-saultive behavior, to other healthcare providers so that they could guard against the risks presented.

DISCUSSION

A motion for summary judgment shall be granted if the motion, memorandum, and. supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to .judgment as a matter of law. La. C.C.P. .art. 966(A)(3). The burden of proof rests with the mover; however, if the mover.will not bear the burden of proof at trial on the issue that is before the court, then the mover is only required to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C.P. art. 966(D)(1).

An appellate court reviews a trial court’s granting of a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of Lwhether summary judgment is appropriate. Smith v. Northshore Regional Medical Center, Inc., 14-0628, p. 3 (La. App. 1 Cir. 1/26/15), 170 So.3d 173, 176. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material, for purposes of summary judgment, can be seen only in light of the substantive law applicable to the case. Id.

Louisiana Revised Statutes 9:2800.2 governs a psychiatrist’s duty to warn a potential victim or victims or to take reasonable precautions to provide protection from violent behavior:

A.When a patient has communicated a threat of physical violence, which is deemed to be significant in the clinical judgment of the treating psychologist or psychiatrist, or marriage and family therapist, or licensed professional counselor, or social worker, against a clearly identified victim or victims, coupled with the apparent intent and ability to carry out such threat, the psychologist, licensed under R.S. 37:2351 through 2369, the medical psychologist, licensed under R.S. 37:1360:51 through 1360.72, the psychiatrist, licensed under R.S. 37:1261 through 1291, or the social worker, credentialed under R.S. 37:2701 through 2723, treating such patient and exercising reasonable professional judgment, shall not be liable for a breach of confidentiality for warning of such threat or taking precautions to provide protection from the patient’s violent behavior.
B. A psychologist’s, psychiatrist’s, or marriage and family therapist, or licensed professional counselor, or social worker’s duty to warn or to take reasonable precautions to provide protection from violent behavior arises only under the circumstance specified in Subsection A of this Section. This duty shall be discharged by the psychologist, psychiatrist, or marriage and family therapist, or licensed professional counselor, or social worker if the treating professional makes a reasonable effort to communicate the threat to the potential victim or victims and to notify law enforcement authorities in the vicinity of the patient’s or potential victim’s residence.
C. No liability or cause of action shall arise against any psychologist, psychiatrist, or marriage and family therapist, or licensed professional counselor, or social worker based on an invasion of privacy or breach of confidentiality for any confidence disclosed to a third party in an effort to discharge the duty arising under Subsection A of this Section.

Thus, a psychiatrist owes a duty to protect third persons from physical violence by a patient only in the limited scenario set forth in the statute—a threat of physical violence, deemed significant by the treating psychiatrist, against a clearly identified victim, with apparent intent and ability to carry it out. Dunnington v. Silva, 04-1788, p. 4 (La. App. 1 Cir. 9/28/05), 916 So.2d 1166, 1168-69. Furthermore, La. R.S. 9:2800.2 provides an ^exclusive remedy, and there can be no liability by a psychiatrist for a failure to warn or to take reasonable precautions to provide protection from violent behavior outside of the statute. Id., 04-1788 at p. 7, 916 So.2d at 1170.

The allegations of Ms. Brice’s petition against Dr. Simon are clearly governed by La. R.S. 9:2800.2. Therefore, Dr. Simon can only be liable for failing to warn or protect Ms. Brice from his patient in accordance with the terms of that statute; i.e., if Mr. Braggs communicated a threat of physical violence, which was deemed to be significant in Dr. Simon’s clinical judgment, against Ms. Brice, coupled with the apparent intent and ability to carry out the threat, and Dr. Simon failed to warn her or take reasonable precautions to protect her from the violent behavior.

In support of his motion for summary judgment, Dr. Simon submitted his own affidavit, which stated that he had never observed any violent or assaultive behavior by Mr. Braggs, nor did Mr. Braggs ever communicate any threat of violence against any person, from the date of his admission through the date of the alleged attack on Ms. Brice. Dr. Simon further stated that no person ever communicated to him that Mr. Braggs was violent or exhibited any signs of violence during that time frame, and upon review of Mr. Braggs’ medical records, Dr. Simon found no documentation of any signs of violence or indication that Mr. Braggs was a danger to anyone prior to the alleged attack.

Thus, Dr. Simon pointed out an absence of factual support for an element of Ms. Brice’s claim. The burden then shifted to Ms. Brice, who was required in order to defeat Dr. Simon’s motion for summary judgment, to set forth specific facts to prove that a specific threat of physical violence against a clearly identified victim was communicated to Dr. Simon by Mr. Braggs in order to show that there was a genuine issue of material fact for trial.

In opposition to summary judgment, Ms. Brice pointed to a Progress Note in Mr. Braggs’ medical records dated 3/31/09, which states that Mr. Braggs was “increasingly | (¡inappropriate, both in and out of group,” and that he made an inappropriate sexual remark in group therapy. The note also states that Mr. Braggs commented, “I don’t think I will celebrate Easter.” However, Ms. Brice offered no evidence which would create a genuine issue of fact as to whether Mr. Braggs made a threat of violence against a clearly identifiable victim or whether any threat was communicated to Dr. Simon. Absent this, there can be no liability on Dr. Simon for failure to warn or to provide protection, and summary judgment on Ms. Brice’s claims against Dr. Simon is appropriate.

Ms. Brice’s claims against Dr. Va-santhi Vinayagam, a primary care physician board certified in Family Medicine, are not governed by La. R.S. 9:2800.2, since that statute only addresses the duty to warn owed by a psychologist, psychiatrist, marriage and family therapist, licensed professional counselor, or social worker. Thus, the issue of Dr. Vinaya-gam’s liability for failure to warn or to provide protection to Ms. Brice is determined under a duty-risk analysis. Under this analysis, the plaintiff must prove that the conduct in question was a cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant, and the risk of harm was within the scope of protection afforded by the duty breached. Berry v. State, Through Dep’t of Health and Human Resources, 93-2748 (La. 5/23/94), 637 So.2d 412, 414. A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Paul v. Louisiana State Employees’ Grp. Ben. Program, 99-0897, pp. 8-9 (La. App. 1 Cir. 5/12/00), 762 So.2d 136, 142.

■ According to Dr. Vinayagam’s affidavit, she made rounds once a week at Serenity to treat patients for minor medical issues within the scope of her family medicine practice. She did not treat Mr.-Braggs or any other patient at Serenity for psychiatric, conditions or complaints and did not order or alter any psychiatric medications. Although Dr. Vinayagam is listed as Mr. Braggs’ physician on his Home Health Certification Plan of Care form, the form is not signed by her, and' she stated that this form was not a physician’s order for home health services, nor is there an order by her for home health services in the medical records. Dr. Vinay-agam stated that she did not have any role in admitting Mr. Braggs to Serenity, and she treated him only once prior to the alleged attack on Ms. |7Brice, on March 5, 2009, for a complaint of left rib pain. She stated that at no time during her treatment of Mr. Braggs did he ever show any ‘ signs of violence or give her any indication that he was dangerous to himself or others; further, she stated that no one ever communicated to her that Mr. Braggs was violent or exhibited any signs of violence.

■ Despite Ms. Brice’s assertions that Dr. Vinayagam was substantially involved in Mr. Braggs’ care, the evidence in the record does not support this allegation. Ms. Brice offered no evidence to create an issue of fact as to whether Dr. Vinayagam knew or should have known that Mr.' Braggs posed any sort of threat to Ms. Brice. She likewise offered no evidence to show that Dr. Vinayagam, who treated Mr. Braggs only once for rib pain almost a month prior to the attack, knew or should have known that Mr. Braggs had made a sexually inappropriate comment in group therapy several days before the attack. Because Ms. Brice has presented no evidence to support the creation of duty on the part of Dr. Vinayagam to warn her or protect her from impending danger, summary judgment dismissing her claims against Dr. Vinayagam was appropriate.

CONCLUSION

The October 31, 2016 summary judgment in favor of Drs. Simon and Vinaya-gam dismissing Ms. Brice’s claims against them with prejudice is affirmed. Costs of this appeal are assessed to plaintiff, Danell Brice.

AFFIRMED.

Guidry, J., concurs

      . This Progress Note is marked "Late Entry." It is not clear whether "3/31/09” was the date the comment was made in group therapy or the date the note was written.


author: KYZAR, Judge.

text:
    Carey DORSEY v. PROTEMP STAFFING SOLUTIONS, INC.
    WCA 17-793
    Court of Appeal of Louisiana, Third Circuit.
    11/15/2017

      Stacy Christopher Auzenne, Auzenne Law Firm, 3600 Jackson Street, #121, Post Office Box 11817, Alexandria, Louisiana 71315-1817, (318) 880-0087, COUNSEL FOR DEFENDANT/APPELLÉE: ProTemp Staffing Solutions, Inc.
    Charles William Farr', Attorney at Law, 1966 North Highway 190, Suite B, Coving-ton, Louisiana 70433, (985) 626-3812, COUNSEL FOR DEFENDANT/APPEL-LEE: Boise Cascade Company
    Carey Dwayne Dorsey, Post Office Box 562, Oberlin, Louisiana 70655, (337) 977-1244, -APPELLANT: IN PROPER PERSON
    Court composed of Sylvia R. Cooks, John E. Conery, and Van H. Kyzar, Judges.
   KYZAR, Judge.

JjDefendants-Appellees, ProTemp Staffing Solutions, Inc. (ProTemp Staffing) and Boise Cascade Company (Boise Cascade), move to' dismiss this appeal. For the reasons given herein, we issue a limited remand of this appeal.

This case involves a workers’ compensation action which was filed by Plaintiff-Appellant, Carey Dorsey. Plaintiff was hired by ProTemp Staffing as a temporary employee,- and ProTemp Staffing sent Plaintiff to work for Boise Cascade. On September 21, 2011, while Plaintiff was attempting to open a door panel on a “chipper” at Boise • Cascade’s facility in Pineville, Louisiana, the chipper was placed in use and caused Plaintiffs body to jerk; As a result of that incident, Plaintiff sustained neck' and back injuries. On October 9, 2015, Plaintiff filed suit against Pro-Temp Staffing and Boise Cascade. Boise Cascade stipulated that it was Plaintiffs special' or borrowing employer, and a consent judgment to that effect was signed on August 23, 2016. Subsequently, the Plaintiff, ProTemp Staffing, and Boise Cascade reached a settlement agreement, and the settlement agreement was placed on the record on November 16, 2016. On January 17, 2017, .the workers’ compensation court signed an order approving the settlement as well as an order dismissing the lawsuit.

On March 2, 2017, Plaintiff filed with the workers’ compensation court a disputed claim form whereby Plaintiff sought to reopen his workers’ compensation case. Although Plaintiff had been represented by counsel in the prior proceedings, he acted in proper person when reopening his case. In response -to Plaintiffs attempt to reopen the case, both ProTemp Staffing and Boise Cascade filed exceptions of res judi-cata, motions to enforce settlement, and motions for sanctions. |2On April 12, 2017, the trial court held a hearing to address Plaintiffs request to have the settlement agreement previously entered into by the parties set aside. After taking the matter under advisement, the workers’ compensation court found that Plaintiff had failed to prove that the settlement should be set aside or modified for fraud or misrepresentation pursuant to La.R.S. 23:1272. Therefore, on April 13, 2017, the workers’ compensation court signed a judgment denying Plaintiffs request to set aside the settlement agreement and holding that Defendants’ exceptions had been rendered moot. The notice of judgment was mailed on April 13, 2017.

On April 26, 2017, Plaintiff filed a motion for new trial or amendment of the April 13, 2017 judgment. The workers’ compensation court conducted a hearing on Plaintiffs motion on June 12, 2017. Via a judgment signed on June 16,2017, the workers’ compensation court denied Plaintiffs motion for new trial and for amendment of judgment. The June 16, 2017 judgment also denies the exceptions of res judicata and motions for sanctions which had been filed by ProTemp Staffing and Boise Cascade. The notice of judgment was mailed on June 16, 2017. Plaintiff filed a motion for appeal on July 7, 2017, and the order of appeal was signed on July 10, 2017. The appeal was lodged in this court on September 1, 2017. Subsequently, both ProTemp Staffing and Boise Cascade filed motions seeking to have this court dismiss Plaintiffs appeal as untimely.

With regard to the timeliness issue, we note that La.Code Civ.P. art. 1974 provides that “[t]he delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.” In situations where an application for new trial is not filed, La. Code Civ.P. art. 2087 provides that a devolutive appeal may be taken within sixty days after the expiration of the delay for applying for a new trial, Land La.Code Civ.P. art. 2123 provides that a suspensive appeal may be taken within thirty days of the expiration of the delay for applying for a new trial. In situations wherein an application for new trial is filed, La.Code Civ.P. art. 2087(A)(2) provides that a devolutive appeal may be taken within sixty days after “[t]he date of the mailing of notice of the court’s refusal to grant a timely application for a new trial!,]” and La.Code Civ.P. art. 2123(A)(2) provides that a suspensive appeal may be taken within thirty days of “[t]he date of the mailing of notice of the court’s refusal to grant a timely application for a new trial!.]”

In the instant case, the judgment denying the motion for new trial was signed on June 16, 2017, and the notice or judgment was mailed that same date. The appeal was filed on July 7, 2017, which is within thirty days of the mailing of the notice of judgment denying Plaintiffs motion for new trial. However, ProTemp Staffing and Boise Cascade argue that the appeal delay did not commence to run on the date on which the notice was mailed for the judgment denying Plaintiffs motion for new trial. They argue that Plaintiffs motion for new trial was filed untimely. In that regard, ProTemp Staffing and Boise Cascade note that the judgment at issue in this appeal was signed on Thursday, April 13, 2017, and that the notice of judgment was mailed on that same date. They argue that the seven-day period for filing a motion for new trial commenced to run on Friday, April 14, 2017, and ended on April 24, 2017, thus making the motion for new trial filed on April 26, 2017 untimely. However, we note that Friday, April 14, 2017, was .Good Friday, which is a legal holiday. As such, the delay for filing the motion for new trial did not begin to run on that date. Rather, the delay for filing the motion for new trial commenced on April 17, 2017, and ended on April 25, 2017. Since the record indicates that the motion for new trial was filed on April 26, 2017, the motion appears to have been filed untimely. Pro-Temp Staffing and Boise Cascade point out that without a timely-filed motion for new trial, La.Code Civ.P. art. 2087 14requires that the appeal be filed within 60 days of the mailing of notice of the final judgment. Since that notice was mailed on April 13, 2017, ProTemp Staffing and Boise Cascade assert that the motion for appeal filed on July 7, 2017, is untimely as it was filed more than sixty days after the notice of judgment was mailed.

However, pro se Plaintiff filed a response to the motions to dismiss the appeal. In that response, Plaintiff asserts that he fax-filed his motion to the Office of Workers’ Compensation on April 24, 2017, and he submits to this court documentation purporting to prove that assertion. The issue of the alleged fax filing is relevant to the determination of whether the appeal should be dismissed as untimely; however, the record contains no information regarding a fax filing.

Recently, this court was faced with an appellate record that appeared to indicate that the motion for appeal had been filed untimely in a termination of parental rights case. State in the Interest of J.A., 17-500 (La.App. 3 Cir. 6/28/17), 224 So.3d 411. However, in responding to a rule, issued by this court, to show cause why the appeal should not be dismissed as untimely, the appellant asserted that the certificate of service which appeared in the appellate record did not reflect the true facts of the service. In ordering a limited remand of the case in order to permit the appellant to provide this court with an appropriate record on which to decide the matter, this court wrote:

While this court cannot consider evidence which is not of record for purposes of deciding this matter, this case presents a similar circumstance to that presented to it in State in the Interest of B.R.C., 16-273 (La.App. 3 Cir. 5/25/16), 192 So.3d 897, in which this court did consider evidence not of record for purposes of deciding whether a limited remand for correction of the record should be ordered in the interest of justice. Thus, the appellant in B.R.C. asserted that a photocopy of the envelope showed that the district court did not place the notice of judgment into the mail on the date indicated in the certificate contained in the record.
In B.R.C., this court relied on Ventre v. Pacific Indemnity Co., 391 So.2d 95 (La.App. 3 Cir. 1980), wherein the appellant filed a motion to- remand the appeal in order to correct the record. Particularly poignant for this case, this court quoted Ventre, 391 So.2d at 96, “[a] clerk’s certificate is not conclusively presumed to be ^correct and may be corrected on proper showing. Soileau v. Tri-State Mutual Insurance Co., 206 So.2d 716 (La.App. 3 Cir.1967).” This court then concluded in B.R.C., 192 So.3d at 899:
[T]his court cannot accept the photocopy of an envelope as evidence to be used on a decision on the merits. However, we can consider this photocopy for the purpose of deciding whether justice requires a remand of this case for the conducting of a hearing before the trial court in order to obtain a ruling from the trial court on the question as to the exact date on which notice of judgment was mailed. Thus, as this court did in Ventre, we grant a limited remand of this appeal and order that the trial court conduct an evidentiary hearing and render a decision as to the actual date on which notice of judgment was mailed to the appellant’s counsel of record by no later than July 25, 2016. Following this hearing and decision by the trial court, we order the Office of the Clerk of Court for the Fifteenth Judicial District Court, Parish of Lafayette, to supplement the record in this appeal, in duplicate, with the transcript of the hearing, any evidence submitted at that hearing, and any pleadings filed and the judgment rendered subsequent to this remand.
As this court did in B.R.C., 192 So.3d 897, since this court cannot rule on appellant’s counsel’s arguments without the taking of evidence, we hereby order a limited remand of this case for the trial court to hold a contradictory hearing and enter a ruling, no later, than August 28, 2017. Additionally, we order the Office of the Clerk of Court for the Sixteenth Judicial District Court, Parish of St. Martin, to supplement the record in this appeal, in duplicate, with .the transcript of this hearing, any evidence submitted at, the hearing, any pleadings filed, and the judgment rendered subsequent to this remand.

State in the Interest of J.A., 17-500, pp. 2-3, 224 So.3d at 412-13.

Similarly, we find that in the instant case, a limited remand is required in order to permit the' Plaintiff to establish on the record that he did timely fax-file his motion for new trial. Therefore, we hereby remand this case to the Office of Workers’ Compensation for the limited purpose of allowing that court to conduct a contradictory hearing and enter a ruling as to whether the Plaintiff fax-filed the motion in a timely manner, by no later than January 16, 2018. We also order the workers’ compensation court to forward this court a supplemental appeal which | includes the transcript of the hearing addressing Plaintiffs alleged fax-filed motion for new trial and the trial court’s ruling on the timeliness of this motion.

LIMITED REMAND ORDERED.