author: MURRAY, Judge.

text:
    STATE of Louisiana v. Antoine JOHNSON.
    No. 2008-KA-1488.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 10, 2010.

      Leon A. Cannizzaro, Jr., District Attorney, Graham L. Bosworth, Assistant District Attorney, New Orleans, LA, for Ap-pellee State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Appellant Antoine Johnson.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge Patricia RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR.)
   MURRAY, Judge.

| ,This is a criminal case. The defendant, Antoine Johnson, appeals his conviction and sentence on two counts of attempted second degree murder. For the reasons that follow, we affirm.

STATEMENT OF THE CASE

On February 2, 2004, the State charged Mr. Johnson with two counts of attempted second degree murder, violations of La. R.S. 14:3o.!. On February 11, 2004, Mr. Johnson pled not guilty at his arraignment. On May 7, 2004, the trial court found no probable cause to substantiate the charges against Mr. Johnson and granted his motions to suppress the evidence and identification. On June 23, 2004, the trial court vacated its earlier rulings, heard testimony on Mr. Johnson’s motions to suppress the evidence and identification, found probable cause, and denied the motions. On November 27, 2007, a jury trial commenced. On November 28, 2007, the jury found Mr. Johnson guilty as charged on both counts.

| gin December 2007, Mr. Johnson filed both a motion for mistrial and a motion for new trial based on juror misconduct. Also in December 2007, he filed a motion for post judgment acquittal. On December 20, 2007, the trial court denied all three motions. On the next day, the trial court sentenced Mr. Johnson to serve twenty years at hard labor on each count, sentences to run concurrently, with credit for time served. As a condition of sentencing, the trial court ordered Mr. Johnson to obtain a GED and recommended work release for the last six months of his prison term. On January 18, 2008, Mr. Johnson filed a motion to reconsider sentence. On September 11, 2008, the trial court denied Mr. Johnson’s motion to reconsider, but granted his motion for appeal.

STATEMENT OF THE FACT S

On the evening of July 26, 2003, Sam Davis and Michael Martin were shot by three assailants at the TCL Carwash located on Louisiana Avenue. Surveillance cameras at the carwash captured the incident.

Mr. Davis arrived at the carwash between 6:00 p.m. and 7:00 p.m. to wash his white Monte Carlo. Mr. Davis’ friend, Michael Martin, arrived at the carwash about one hour later. Shortly thereafter, Mr. Davis and Mr. Martin were ambushed by gunfire. Mr. Davis was shot in his right shoulder and fell to the ground. Mr. Davis remained on the ground until the shooting stopped. Mr. Davis and Mr. Martin then both ran from the area to a nearby post office. Mr. Davis noticed that Mr. Martin had been shot in his leg. Both victims were transported to the hospital. Later, a police officer met with Mr. Davis at the hospital and showed him the surveillance video and a photo lineup. Mr. Davis told the officer that he did not | 3know his assailants and that he did not know of any reason why anyone would shoot him. After viewing the video and photographs, Mr. Dam picked out a person from the photo lineup. Thereafter, Mr. Davis viewed his car and observed that it was “shop up real bad.”

Ms. Natasha Hutchinson lived across the street from the carwash. On the evening of the shooting, she and a friend were in her backyard working on a shed. When she heard gunshots, she dropped to the ground until the shooting stopped. She ran into her house and looked out the front window in the direction of the carwash. In her living room, she noticed that a window was broken and a bullet was on the floor. Ms. Hutchinson called the police and went outside with neighbors. Ms. Hutchinson did not see any of the shooters. However, she observed the following: several of the cars parked on the street had broken windows and bullet holes in them; blood was on her driveway as well as on the sidewalk leading to the post office; and her next door neighbor’s house was sprayed with gunfire.

Mark Georgieff, the carwash owner, met with the police at about 9:00 p.m. on the night of the shooting. He supplied the police with a copy of three recordings of the shooting made by the carwash surveillance cameras and nineteen still images made from the video. He explained that although several surveillance cameras were working on the premises (the car-wash has sixteen surveillance cameras on the exterior area), not all of the cameras captured the shooting. He identified in court the video depictions and still images that he made for the police. Mr. Georgieff testified that the video and some of the still images depict three men running from the back of the carwash to the front shooting guns. One of the |4shooters was using an AK-47 rifle. Mr. Georgieff was unable to identify any of the shooters.

Officer Alex Brady of the New Orleans Police Department (“NOPD”) was dispatched to the carwash to handle the initial investigation. He observed numerous spent bullet casings and two blood trails. He also observed a white Monte Carlo parked on the sidewalk in front of the carwash with several bullet holes and both the side and rear windows shot out. Officer Brady investigated bullet holes in two houses across the street from the carwash. He learned from a detective at the scene that the victims, Mr. Davis and Mr. Martin, had already been transported to the hospital. His investigation concluded with the writing of a report documenting the incident, recording his findings at the scene, and noting that crime lab technicians photographed the shooting scene. Officer Brady neither received a description of the shooters nor spoke to any witnesses.

NOPD Sergeant Lawrence Dupree assisted Sergeant Hochman and Mr. Geor-gieff in obtaining video surveillance of the carwash from Mr. Georgieffs residence. Detective Dupree was present when the downloads of the surveillance video and still photos of the shooting at the carwash were made. He explained that not all of the surveillance cameras captured the shooting incident and that only copies from the cameras which did record the incident were obtained by the police. Detective Dupree turned the evidence over to Sergeant Jeffrey Hochman.

Sergeant Hochman was assigned to the FBI joint task force investigation of the carwash shooting. He arrived on the scene about thirty minutes after the shooting. He observed a gold Maxima and white Monte Carlo, each with several bullet holes, parked at the carwash. He also observed bullet casings scattered about the area and blood trails on the sidewalk. A neighbor in the area directed | shim to the carwash owner to obtain copies of the surveillance video. Sergeant Hochman viewed the video that night. According to Sergeant Hochman, the video depicted three subjects walking through the car-wash firing long-barreled assault weapons. Sergeant Hochman learned from Officer Philibert, who had been canvassing the area for evidence, that an assault rifle had been located on the back street adjacent to the carwash. When Sergeant Hochman met with the victims in the hospital, neither victim was able to identify any of the shooters.

The NOPD distributed the surveillance video to local news media for public viewing. As a result of the public viewing, the police received multiple crime stoppers tips and was able to trace the recovered firearm to Paul Pierce, who was the cousin of Kendell Washington and Elton Hook. Mr. Pierce identified Mr. Washington and Mr. Hooks from still photos made from the video; however, he was unable to identify the third suspect. Mr. Pierce sold the weapon the police recovered at the scene to his cousin, Raynell Cole. Sergeant Hochman also spoke with Ms. Wilhemina Cole, who was the grandmother of Mr. Hooks and Mr. Washington. Ms. Cole also identified Mr. Hooks and Mr. Washington.

At the United States Attorney’s Office, Sergeant Hochman met with James Al-dridge, who was in federal custody for drug and weapon charges. Mr. Aldridge identified the three suspects depicted in the carwash surveillance video. Through further investigation, Sergeant Hochman identified Mr. Washington as the subject wearing a white striped shirt and hat in the video; Mr. Hooks as the individual in the foreground wearing a long-sleeved T-shirt; and Mr. Johnson as the individual in the background running with Mr. Hooks and Mr. Washington. As a result of the identifications, the NOPD arrested Mr. Hooks, Mr. Washington (who was already in police custody on another charge), and Mr. Johnson. Mr. Hooks admitted his | (¡complicity in the shooting to police at the time of his arrest. He also named Mr. Washington as a participant.

Lieutenant Christy Williams received still photos and copies of surveillance videos from Sergeant Hochman. She logged these items into evidence and placed them into Central Evidence and Property.

The parties stipulated that if called to testify Officer Warren Spears would verify that the NOPD evidence room flooded during Hurricane Katrina.

Tarez Smith, a NOPD crime scene technician, received instructions from Sergeant Hochman concerning collection of evidence at the shooting scene. She recounted at trial that she retrieved a spent bullet that was collected from the floor of the front room of the house located across the street from the shooting scene. She also identified twenty-eight spent bullet casings collected from the shooting scene plus an indeterminate number of “Wolf’ shell casings, additional shell casings, a lead fragment, blood samples, a Norelco SKS rifle, and nine other spent casings.

Officer Kenneth Leary, a firearms specialist, compiled a report on the weapon and spent casings retrieved from the crime scene. He examined a Norinco 7.62 by 39 millimeter semi-automatic assault rifle, SKS model, serial No. V 1214 retrieved from the scene. He also examined a Remington 12-gauge pump shotgun retrieved from under the house at 2121 Franklin Court. He also examined several rifle casings recovered from the shooting scene. Officer Leary’s testing indicated that eleven of the bullet casings were fired from the Norinco rifle. The bullet casings were then scanned into the Integrated Ballistic Identification System and returned to Central Evidence and Property.

|7The trial court, out of the presence of the jury, examined Mr. Aldridge regarding his invocation of his Fifth Amendment right not to testify at trial. The trial court declared Mr. Aldridge unavailable for trial, and a law clerk read the transcript of Mr. Aldridge’s testimony at a pre-trial hearing motion into the record. At the pre-trial hearing, Mr. Aldridge testified that he was currently in federal custody after entering into a plea agreement in federal court for drug and weapon (carrying a gun while drug trafficking) charges. Although he pled guilty before meeting with any government agent about the carwash shooting, he acknowledged that he was testifying in the hope that his cooperation would lessen his sentence on the federal charges.

Mr. Aldridge, who was twenty-one years old at the time of the pre-trial hearing, began selling drugs at the age of fifteen. On May 20, 2003, he was arrested on the federal drug and weapon charges. He testified that he knew Mr. Washington, Mr. Hoods, and Mr. Johnson and that he saw them daily up until his arrest. Mr. Al-dridge stated that he was a long time friend of Mr. Johnson and that he kept in touch with Mr. Johnson through phone calls from prison. According to Mr. Al-dridge, in 2003 a gang, called the Third and Galvez Boys, killed his godbrother, LaDevin Pierce. After Mr. Pierce’s death, Mr. Aldridge spoke with Mr. Johnson who informed him that he (Mr. Johnson) was going to kill the individual responsible for killing Mr. Pierce. After the conversation and while in jail, Mr. Aldridge saw the surveillance video on the news of the car-wash shooting. At the pre-trial hearing, the video was played for Mr. Aldridge in court. He identified Mr. Hooks as the individual depicted on the video wearing a black shirt, gray undershirt and blue jeans; Mr. Washington as the individual wearing a blue and white baseball cap, striped shirt, and black shorts; and Mr. Johnson as the | ^individual wearing a black T-shirt, blue shorts, and white tennis shoes. Mr. Aldridge identified Mr. Johnson both by his image and by the clothing he wore, noting that he (Mr. Aldridge) purchased for Mr. Johnson the blue shorts Mr. Johnson was seen wearing in the video. Mr. Aldridge testified that after the carwash shooting he had further conversations with Mr. Johnson in which he (Mr. Johnson) admitted to his participation in the carwash shooting. Mr. Aldridge further testified that Mr. Johnson admitted to him that he, Mr. Washington, and Mr. Hooks fired upon the wrong people.

Dr. Ellen Slaven, an emergency physician at Charity Hospital, testified that she treated the two victims on the night of the shooting. Dr. Slaven described Mr. Martin’s injuries as multiple gunshot wounds to his right forearm, thigh, scrotum, and flank; and she described Mr. Davis’ injuries as a through and through gunshot wound to his right shoulder with lacerations on his chin and over his left eye.

The defense’s sole witness was Powell Miller of the New Orleans Public Defenders Office. Mr. Miller testified that earlier in this case he represented Mr. Johnson in his capacity as a public defender. In his capacity as Mr. Johnson’s attorney, Mr. Miller interviewed Mr. Aldridge after the pre-trial hearing. Mr. Aldridge indicated to Mr. Miller that he testified against Mr. Johnson at the pre-trial hearing because he believed that Mr. Johnson was safer in prison than on the streets. Mr. Miller acknowledged that he never questioned Mr. Aldridge about whether his motion hearing testimony was untruthful.

ERRORS PATENT

A review for errors patent on the face of the record reveals none.

ASSIGNMENT OF ERROR ONE

|3In his first assignment of error, Mr. Johnson claims the evidence is insufficient to support his conviction on two counts of attempted second-degree murder. He argues that the state failed to negate any reasonable probability of mis-identification because there were no eyewitnesses to the shooting; the two victims were unable to identify their assailants; and the poor quality of the surveillance video made it impossible to identify him as the third shooter.

The standard of appellate review for sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Either direct or circumstantial evidence may be used to prove the essential elements of the crime. Ultimately, to support a conviction, the evidence, whether direct or circumstantial or both, must be sufficient under Jackson to satisfy any rational trier of fact that the defendant is guilty beyond a reasonable doubt. State v. Sutton, 436 So.2d 471 (La.1983). As to circumstantial evidence, the rule is that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. Credibility determinations are within the discretion of the trier of fact and will not be disturbed unless clearly contrary to the evidence. State v. Vessell, 450 So.2d 938, 943 (La.1984).

To sustain an attempted second degree murder conviction, the state must prove that the defendant: (1) intended to kill the victim; and (2) committed an overt act tending toward the accomplishment of the victim’s death. State v. Bishop, 01-2548, p. 4 (La.1/14/03), 835 So.2d 434, 437; La. R.S. 14:27; La. R.S. 14:30.1. Although the statute for the completed crime of second degree murder allows for a [ mconviction based on “specific intent to kill or to inflict great bodily harm,” La. R.S. 14:30.1, attempted second degree murder requires proof of a specific intent to kill. State v. Huizar, 414 So.2d 741 (La.1982). Specific intent “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). Specific intent may be inferred from the circumstances and the defendant’s actions. State v. Smith, 94-2588 (La.App. 4 Cir. 3/27/96), 672 So.2d 1034. Charging the victim in a threatening manner and trying to get at him with a knife over a bar has been found to be evidence of specific intent to kill. State v. Garner, 241 La. 275, 128 So.2d 655 (1961). Likewise, the pointing of a gun at the victim as it was fired has been found to be evidence of specific intent to kill. State v. Procell, 365 So.2d 484 (La.1978).

In this case, the evidence revealed that after Mr. Johnson learned of Mr. Pierce’s murder, he told his long time friend Mr. Aldridge that he was going to kill the person responsible for Mr. Pierce’s death. Sometime thereafter, surveillance cameras at the carwash recorded three shooters— later identified as Mr. Washington, Mr. Hooks and Mr. Johnson — firing long barreled weapons at, and seriously wounding, two victims. In a telephone conversation with Mr. Aldridge after the carwash shooting, Mr. Johnson admitted his participation in the shooting, but stated that he had targeted the wrong people.

Mr. Johnson argues that Mr. Aldridge’s testimony was unreliable and self serving because Mr. Aldridge testified in exchange for a promise of leniency in his sentencing on a federal drug and weapons conviction. Consequently, he contends that the state failed to prove his identity as one of the shooters.

InThe jury was read Mr. Aldridge’s pretrial hearing testimony. Mr. Aldridge recounted that he and Mr. Johnson knew one another from the neighborhood and that they saw or spoke to each other on a daily basis. Mr. Aldridge recognized Mr. Johnson as one of the shooters from Mr. Johnson’s physical features. He also said that he recognized Mr. Johnson on the video as the shooter wearing a black T-shirt, blue shorts, and white tennis shoes. Mr. Al-dridge pointed out that the blue shorts Mr. Johnson was wearing had a fade spot on the front leg. The blue shorts aided in Mr. Aldridge’s identification of Mr. Johnson because Mr. Aldridge purchased them for Mr. Johnson. Mr. Aldridge admitted that he had entered a plea deal in the federal prosecution, but denied being promised anything with regard to the length of his sentence.

The jury also heard Mr. Miller’s testimony regarding his interview with Mr. Aldridge after the pre-trial hearing. Mr. Miller testified that Mr. Aldridge indicated to him that the reason he testified against Mr. Johnson at the pre-trial hearing was because he believed Mr. Johnson was safer in prison than on the streets.

Based on the evidence presented at trial, it was not unreasonable for the jury to decide that the state proved that Mr. Johnson was guilty of attempted second-degree murder. The jury heard the testimony of Mr. Aldridge, who unequivocally identified Mr. Johnson as one of the shooters depicted in the video. Mr. Aldridge’s identification came from several years of association with Mr. Johnson, seeing him in their mutual neighborhood frequently, and speaking with him on a daily basis. Moreover, Mr. Aldridge testified that Mr. Johnson admitted to him in a telephone | ^conversation that he (Mr. Johnson) participated in the carwash shooting. This assignment is without merit.

ASSIGNMENT OF ERROR TWO

In a second assignment, Mr. Johnson argues that the trial court erred by declaring James Aldridge an unavailable witness and allowing his testimony from the pretrial hearing to be read at the trial. Mr. Johnson maintains that Mr. Aldridge was not unavailable simply because he invoked his Fifth Amendment privilege. Moreover, Mr. Johnson contends the trial court’s ruling violated his Sixth Amendment rights to confront and cross-examine his accuser.

Determining the unavailability of a witness is a preliminary question for the trial court. La. C.E. art. 104(A). Such determinations are subject to manifest error review and will not be overturned absent an abuse of discretion by the trial court. State v. Ball, 00-2277 (La.1/25/02), 824 So.2d 1089.

The Louisiana Supreme Court has held that when a witness exercises his Fifth Amendment right against self-incrimination, a trial court may properly rule that witness “unavailable” as per La. C.E. art. 804(A)(1); State v. Bright, 98-0398 (La.4/11/00), 776 So.2d 1134. La. C.E. art. 804(A)(1) provides:

A. Definition of unavailability. Except as otherwise provided by this Code, a declarant is “unavailable as a witness” when the declarant cannot or will not appear in court and testify to the substance of his statement made outside of court. This includes situations in which the declarant:
(1) Is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement ...

Before testimony given at a prior proceeding may be introduced at trial, certain conditions must be met to avoid offending the confrontation and cross-examination clauses of the federal and state constitutions. State v. Robinson, 423 So.2d 1053 (La.1982). The Louisiana Supreme Court has enumerated those conditions as follows: (1) defendant must have been represented by counsel at the earlier hearing; (2) the witness testified under oath; (3) the witness was cross-examined or else there was a valid waiver of the right to cross-examination; (4) at the time of the trial, the witness (whether out of state or not) is unavailable to testify; and (5) the state had made a good faith diligent effort to obtain the presence of the witness, including by its out-of-state subpoena powers where appropriate. Robinson, 423 So.2d at 1058.

Mr. Johnson was represented by counsel at the hearing motions. Mr. Al-dridge testified under oath at the hearing on motions and was subjected to lengthy and rigorous cross-examination by three defense attorneys. The State made a diligent effort to ensure Mr. Aldridge’s presence at trial. At trial, Mr. Aldridge was sworn in and advised the trial court that he was exercising his Fifth Amendment rights pursuant to advice of counsel. The trial court thus correctly determined that Mr. Aldridge was unavailable to testify at trial.

In addressing the issue of invoking the Fifth Amendment privilege against self-incrimination, the United States Supreme Court has stated that to sustain the privilege, “it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer ... or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

At the motion hearings in this case, defense attorney Robert Jenkins objected to Mr. Aldridge’s testimony on the basis that Mr. Aldridge would be incriminating himself. Mr. Jenkins noted that in addition to being prosecuted in federal court Mr. Al-dridge could also be prosecuted in state court for his drug offenses, and that his | Msentences would run consecutively. Mr. Aldridge testified that he was in federal custody after pleading guilty to federal drug and gun charges. Although he had not yet been sentenced on those charges, Mr. Aldridge stated that he hoped he would receive some consideration for his cooperation in this case. He said that before his incarceration, he had been in daily contact with gang members and that he dealt drugs for a living. Mr. Aldridge testified that he was aware before the carwash shooting that Mr. Johnson was intent on killing the men he (Mr. Johnson) felt were responsible for the death of Mr. Pierce. Mr. Aldridge also stated that Mr. Johnson admitted to him that he (Mr. Johnson) was involved in the shooting in this case.

Under cross examination the defense attorney, Mr. Jenkins, informed Mr. Al-dridge that he faced a possible future murder charge. In fact, Mr. Jenkins specifically stated that “he was getting into some areas that can cause [Mr. Aldridge] to be prosecuted.” Under cross examination from another defense attorney, Mr. Aldridge testified that he was in fact facing up to forty years in prison on one charge, and up to life in prison on another charge, to run consecutively. Based upon the cross examination from the motion hearing, Mr. Aldridge was allowed to confer with his counsel, Rick Tessier, before being called as a witness at trial. Based on that conversation, Mr. Tessier informed the court that Mr. Aldridge’s testimony would “open [Mr. Aldridge] up to various either federal or state offenses.” Mr. Tes-sier also said that as an officer of the court, “it is definitely in [Mr. Aldridge’s] best interest to invoke [his] Fifth Amendment right.” After being sworn by the court, Mr. Aldridge affirmed his attorney’s assertions.

Given these circumstances showing that Mr. Aldridge’s testimony might produce injurious disclosure, we find no error in the trial court’s decision to allow Mr. Al-dridge to invoke his Fifth Amendment privilege against self-in crimination. _[_^Nor was Mr. Johnson’s right to cross examination denied under Louisiana law. Mr. Al-dridge’s motion hearing testimony was given under oath, he was subjected to cross examination from three defense attorneys, and the state ensured Mr. Aldridge’s presence at trial with the intent of calling him as a witness. Robinson, supra; State v. Hills, 379 So.2d 740 (La.1980). This assignment is without merit.

ASSIGNMENT OF ERROR 3

In his third assignment of error, Mr. Johnson contends his rights to a fair trial and to confront his accusers were violated by the misconduct of jurors in experimenting with the physical evidence. Mr. Johnson maintains that a juror used frame by frame enhancement computer software on his laptop computer when the jury viewed the surveillance videotape footage of the shooting during deliberations. He argues that he was prejudiced by this enhancement because the surveillance tape was not presented at trial with enhancement. Thus, he contends that the jury is guilty of misconduct because it considered evidence not developed at trial and that the trial court erred by denying his motion for new trial.

At the hearing on the motion for new trial, the defense called Deputy Patricia Bruno, who testified that she was posted to Section “K” at the time of this trial and that she was assigned to attend the jury during deliberations. As the jury deliberated, it requested to view again the surveillance video of the shooting incident. Because of the possibility of prejudicial information in the state’s computer, the jury was offered a computer belonging to one of the deputies; however, that computer malfunctioned. The jury viewed the video on a juror’s laptop computer. After deliberating, one of jurors told Deputy Bruno that they viewed the video frame by frame and could clearly see Mr. Johnson’s face. Another juror told Deputy Bruno that the state did not do a good job on the case. | ifiThe juror indicated that during the trial, the state should have shown still shots of the video frame by frame as they had seen it during deliberations. Under cross-examination, Deputy Bruno stated that she did not see the video during deliberations and that she did not know whether the juror’s laptop contained frame by frame enhancing software or whether the images shown were altered in any manner. Deputy Bruno also stated that Deputy Marshall informed the judge, the district attorneys, and defense counsel that the jury was going to view the surveillance video on a juror’s laptop computer.

Deputy Sheriff Donald Marshall also testified at the hearing. He explained that the jury was offered the computer belonging to Deputy John Albe to view the video, but that computer was inoperable. One of the jurors then offered the use of his personal laptop to view the video. Deputy Marshall did not view the video with the jury.

Assistant District Attorney Rachel Luck Afriek testified that she spoke to the Section “K” deputies after the trial in this matter. Deputy Bruno advised Ms. Afriek that after viewing the surveillance video during deliberations, the jury found Mr. Johnson guilty. Ms. Afriek stated that Deputy Bruno told her that before viewing the surveillance video during deliberations, the jury took a balloted vote and that the vote was seven to five in favor of acquittal. Ms. Afriek also said that Deputy Bruno told her that the jury said that viewing the video during deliberations changed the jury’s verdict.

A photograph is a reproduction of a physical object or scene. It is not “written” evidence of “testimony” within the meaning of La.C.Cr.P. art. 793, which prohibits the use of written material during deliberations. A videotape, like a photograph, is neither testimony nor written evidence and is not excluded by |17La.C.Cr.P. art. 793. Thus, a trial court’s granting a jury’s request to see a videotape after it retired to deliberate is not an abuse of the court’s statutory discretion. See State v. Davis, 92-1623 (La.5/23/94), 637 So.2d 1012, 1025.

The decision on a motion for new trial rests within the sound discretion of the trial judge, and its ruling will not be disturbed on appeal absent a clear showing of abuse. State v. Quimby, 419 So.2d 951 (La.1982). The merits of such a motion must be viewed with extreme caution in the interest of preserving the finality of judgments. As a general rule, a motion for new trial will be denied unless injustice has been done. La.C.Cr.P. art. 851; State v. Dickerson, 579 So.2d 472 (La.App. 3 Cir. 4/17/91).

In support of his juror misconduct argument, Mr. Johnson cites State v. Graham, 422 So.2d 123 (La.1982). In Graham, the jurors in a murder case conducted an experiment on the time it takes for blood to clot. The defense filed a motion for new trial on the ground of juror misconduct. The trial court denied the motion, and the defendant appealed the denial. The Louisiana Supreme Court considered the issue of a juror considering evidence not developed at trial and noted:

[A] juror who considers evidence not developed or admitted at trial violates his sworn duty and may be guilty of misconduct. Under our statutory law, however, no juror is competent to testify to his own or his fellows’ misconduct or to give evidence to explain, qualify, or impeach any indictment or any verdict found by the body of which he is or was a member. R.S. 15:470. Nevertheless, it is now clear that the statute must yield and that our courts are required to take evidence upon well pleaded allegations of prejudicial juror misconduct violating an accused’s constitutional right to due process, to confront and cross-examine witnesses or to a trial by a fair and impartial jury and to set aside the verdict and order a new trial upon a showing that a constitutional violation occurred and that a reasonable possibility or prejudice exists.

Graham, 422 So.2d at 131. The Graham court also observed:

|1SA juror is expected to draw upon his general knowledge and experience in deciding the case, and he is encouraged to participate in full and robust debate and deliberations with his fellows in reaching a verdict. However, he should not consider facts relating to the case unless introduced at trial under constitutional and legal safeguards. State v. Sinegal, 393 So.2d 684 (1981). Accordingly, when a juror passes beyond the record evidence in reaching a decision, whether a new trial will be granted depends upon the magnitude of the juror’s deviation from his proper role, the degree to which the accused was deprived of the benefits of the constitutional and statutory safeguards, and the likelihood that the impropriety influenced the jury’s verdict. All of these elements must be weighed in determining whether there is a reasonable possibility that the defendant’s right to a fair trial has been prejudiced.

Id. at 132.

Although the Graham court concluded that the juror’s experiment on blood coagulation was improper conduct, the court said the experiment dealt with a subject within the experience and practical knowledge of all jurors; it “did not involve jurors conducting tests of matters beyond their normal ken or going outside the jury room to obtain esoteric knowledge or special information pertaining directly to the case.” Id. The Louisiana Supreme Court concluded that the experiment did not “deprive the defendant of the benefits of constitutional and legal safeguards to the same extent as other tests described in reported decisions,” so “the loss of an opportunity to confront and cross-examine those who conducted the experiment was not as potentially prejudicial to the defendant.” Id. at 133-134.

Although Mr. Johnson characterizes the computer software utilized during jury deliberations as frame by frame enhancement software and thus experimentation that allowed the jury to consider evidence not adduced at trial, there is no evidence to support his contention. Deputy Bruno testified that she did not see the video during deliberations and did not know whether the juror’s laptop contained frame by frame enhancing software or whether the images shown were ¡^altered in any manner. Likewise, Deputy Marshall testified that he did not see the video during deliberations and did not know whether the laptop computer contained enhancement software. Thus, there is no evidence that the jury viewed the videotape of the shooting with anything other than standard digital video playing software. The jury’s conduct was nothing more than pausing a video properly admitted into evidence and properly provided to the jury during their deliberations. Despite that the trial judge, prosecutors, and defense counsel were aware that the jury was going to view the videotape on a juror’s laptop computer, no objection was lodged. Even assuming some irregularity on the jury’s part, the information supplied by the videotape was merely cumulative to other evidence of Mr. Johnson’s guilt introduced at trial. This assignment is without merit.

ASSIGNMENT OF ERROR 4

Mr. Johnson’s final assignment of error is that he was denied full appellate review because the transcript of the voir dire proceedings is incomplete in that it does not contain the bench conferences. Because of this omission, he contends there is no way to discern whether the trial court correctly ruled on the challenges.

The record in this matter has been supplemented with the transcript of the voir dire proceedings. Since the inclusion of that transcript, Mr. Johnson has filed a supplemental brief; however, he failed to raise any claims based on alleged errors or violations during jury selection in that brief. This assignment is moot.

DECREE

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

AFFIRMED.

      .Based on the same shooting incident, the State also charged Elton Hooks and Kendell Washington with two counts of attempted second-degree murder. On August 7, 2006, Mr. Hooks pled guilty as charged on both counts and was sentenced to two concurrent terms of ten years. This appeal involves only Mr. Johnson.

      . The State filed a writ application, which this Court granted. (No. 2004-K-0873).

      . The defense filed a post-verdict motion for mistrial citing juror misconduct; however, the trial court allowed defense counsel to amend the motion to a motion for new trial and heard testimony.

      . As noted elsewhere, Mr. Aldridge refused to testify at the trial in this matter; he invoked his Fifth Amendment privilege. Mr. Al-dridge's pre-trial hearing testimony was read to the jury by a law clerk during the state's case.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Larry SIMS.
    No. 09-KA-509.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 12, 2010.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Juliet Clark — Appellate Counsel, Assistant District Attorneys, Gretna, Louisiana, for Appellee, The State of Louisiana.
    Holli A. Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Appellant, Larry Sims.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS and JUDE G. GRAVOIS.
   SUSAN M. CHEHARDY, Judge.

li>On May 7, 2002, a twelve-person jury convicted defendant, Larry Sims, of four counts of armed robbery, in violation of La. R.S. 14:64. The trial judge sentenced defendant to 99 years at hard labor on each count, concurrent, without benefit of parole, probation, or suspension of sentence. The trial court subsequently adjudicated defendant as a second felony offender, vacated defendant’s sentence on count one, and re-sentenced him as a habitual offender to 110 years without benefits, to run concurrently with his other three sentences.

On appeal, this Court affirmed defendant’s convictions and habitual offender sentence. State v. Sims, 02-1244, p. 2 (La.App. 5 Cir. 4/29/03), 845 So.2d 1116, 1118, writ denied, 03-2189 (La.8/20/04), 882 So.2d 570. On error patent review, we noted that the trial court had failed to observe the statutorily-mandated 24-hour delay in sentencing after denying defendant’s motions for new trial and post-ver-diet judgment of acquittal. Accordingly, this Court vacated defendant’s [¡¡sentences for count two, count three, and count four, and remanded for re-sentencing. Id.

On remand, the district court resen-tenced defendant on count two and count three, but inadvertently failed to impose sentence on count four. Defendant sought post-conviction relief on other grounds, which was denied. When defendant subsequently filed a writ of habeas corpus in federal district court, the judge discovered this oversight, and ordered “the State ... [to] immediately take whatever action is necessary, if any, to insure that petitioner is properly resentenced on Count Four.” Sims v. Cain, 2009 WL 700680 (E.D.La.2009).

On April 2, 2009, defendant filed a pro se motion to quash in the trial court, arguing his conviction on count four should be quashed due to the unreasonable delay in sentencing. The record does not show that the trial court ruled on defendant’s motion. On May 19, 2009, the trial court resentenced defendant on count four to 99 years at hard labor, without benefit of parole, probation, or suspension of sentence. On June 5, 2009, defendant filed a timely motion for appeal, as well as a duplicate motion to quash. On June 11, 2009, the trial court issued an order granting the appeal motion and denying the motion to quash.

Facts

Because this appeal addresses defendant’s (re)sentencing on a conviction that was previously affirmed, we need not repeat the well-written statement of facts from our opinion on defendant’s first appeal. See, State v. Sims, 02-1244 at 3-4, 845 So.2d at 1118-19.

In his first assignment of error, defendant argues that the trial court erred in failing to quash his conviction on count four. He argues that he was prejudiced by 14the six-year delay between his conviction and his resentencing, contending that it impeded his access to appellate relief. The State responds that defendant waived his first motion to quash when he proceeded to resentencing without requesting a ruling. The State further argues that, under La.C.Cr.P. art. 916, the trial court was divested of jurisdiction over defendant’s case when it issued the order of appeal, and therefore, the trial court correctly denied the second motion to quash.

A defendant’s constitutional right to a speedy trial does not encompass sentencing, but a defendant is statutorily entitled to imposition of sentence without unreasonable delay. State v. Johnson, 363 So.2d 458, 461 (La.1978). La.C.Cr.P. art. 874 provides that “[s]entence shall be imposed without unreasonable delay. If a defendant claims that the sentence has been unreasonably delayed, he may invoke the supervisory jurisdiction of the appellate court.”

Principles of due process prohibit inordinate delays in post-conviction imposition of sentence when the delay causes prejudice to the defendant. State v. Duncan, 396 So.2d 297, 299 (La.1981). The sanction for unreasonable delay in sentencing is divestiture of the trial court’s sentencing jurisdiction. City of Baton Rouge v. Bourgeois, 380 So.2d 63, 64 (La.1980) (per curiam). An “unreasonable delay” is determined on a case-by-case basis. Id.

First, we note that defendant raises this issue on appeal, although La.C.Cr.P. art. 874 specifically provides for relief by supervisory review. While we agree that this matter is properly considered by supervisory writ of review, we will handle this specific matter for a number of reasons: first, it is procedurally anomalous; second, the interests of justice call for prompt attention after a six-year delay in | r,sentencing; and third, addressing both claims now enables this Court to preserve its resources and promotes judicial efficiency.

Next, we agree with the State that defendant waived his motion to quash his conviction when he proceeded to re-sentencing without requesting a ruling on the first motion to quash. It is well-settled that, when a defendant proceeds to trial without raising the issue that his pretrial motions were outstanding, that defendant waives those pending motions. See, State v. Fletcher, 02-707, p. 5 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, 559, writ denied, 03-0409 (La.10/10/03), 855 So.2d 334. Therefore, we find that defendant waived his first motion to quash.

As to defendant’s second motion to quash, which was filed after defendant was resentenced, we find no error in the ruling on that motion. The district court was correct in holding that, upon granting the motion for appeal, it was divested of jurisdiction under La.C.Cr.P. art. 916, and as a consequence, could not rule on the merits of defendant’s second motion to quash.

Besides, even if we were to address the merits of defendant’s motion to quash, defendant does not show how he has been prejudiced by the delay in re-sentencing. In this case, defendant’s multiple armed-robbery convictions had been affirmed and, during the six-year delay before re-sentencing on count four, he was imprisoned on three concurrently-imposed sentences: 110-year enhanced sentence and two 99-year sentences.

In his brief, defendant argues that he was prejudiced by the delay in resentenc-ing because he was “unable to fight the conviction and sentence at a higher | f,court or federal level because all of the procedures available for him to challenge his conviction require that a legal sentence be imposed.” We cannot agree that he was unable to seek relief at a higher level because, pursuant to his own writ of habe-as corpus filed in federal district court, the district judge discovered the sentencing issue at hand. Therefore, like the Louisiana Supreme Court in State v. Johnson, 363 So.2d 458, 461 (La.1978), we recognize that defendant had a statutory right to imposition of sentence without unreasonable delay, but we decline to address whether a six-year delay was reasonable in this case because the defendant did not suffer any prejudice by the delay. Id. at 460-61.

In his second assignment of error, defendant complains that on resentencing, the district court judge—who did not preside over the trial or the original sentencing—imposed the statutory maximum sentence of 99 years without familiarizing himself with the facts of the case, and without articulating his reasons for sentencing. Thus, defendant argues, the sentence is excessive, and should be set aside. The State responds that the sentence imposed was not excessive.

The record shows that when the district court resentenced defendant on May 19, 2009, defense counsel simply stated, “Please note our objection to the sentence, Your Honor.” Defendant did not challenge the sentence by way of an oral or written motion to reconsider sentence pursuant to La.C.Cr.P. art. 881.1.

The failure to file a motion to reconsider sentence, or to state the specific grounds upon which the motion is based, limits a defendant to a review of the sentence for constitutional excessiveness. La. C.Cr.P. art. 881.1; State v. Clark, 05-61, p. 16 (La.App. 5 Cir. 6/28/05), 909 So.2d 1007, 1017, writ denied, 05-2119 (La.3/17/06), 925 So.2d 538.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A | 7sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104,109.

In reviewing a sentence for exces-siveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock the sense of justice. The trial judge is afforded wide discretion in determining sentence, and the court of appeal will not set aside a sentence absent a clear abuse of the trial court’s discretion. State v. Brown, 04-230, p. 4 (La.App. 5 Cir. 7/27/04), 880 So.2d 899, 902. Accordingly, the relevant question on appeal is whether the trial court abused its broad sentencing discretion, and not whether another sentence might have been more appropriate. State v. Cook, 95-2784, p. 3 (La.5/31/96), 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

Here, defendant’s 99-year sentence is the maximum allowed for armed robbery under La. R.S. 14:64 B. It is the same sentence he received from the judge who presided over the trial. In this case, defendant admitted to police that he entered a bank armed with a semi-automatic weapon. State v. Sims, 02-1224 at 4, 845 So.2d at 1119. He participated in the robberies of several bank employees, thereby putting lives at risk. In addition to the three other counts of armed robbery in the instant case, defendant had prior convictions for distribution of cocaine and aggravated battery. Id., 02-1224 at 2-3, 845 So.2d at 1118.

Immediately after trial, the trial judge sentenced defendant to four concurrent 99-year sentences for his four armed robbery convictions. Due to a procedural irregularity, we vacated and remanded for re-sentencing. At the 2003 re-sentencing, |sthe original trial judge, due to an oversight, failed to re-sentence defendant on one armed robbery count. However, that day, the same trial judge re-sentenced defendant on two other armed robbery concurrently-sentenced convictions to 99 years, the same length as the original sentence and the maximum allowed under the statute.

We find it probable that the original trial judge, if given an opportunity six years later, would have imposed a 99-year sentence, as he had twice done for each of defendant’s prior counts of armed robbery. We believe that the re-sentencing judge could adequately ascertain, as we have, the original judge’s sentencing intent with regard to defendant’s fourth armed robbery conviction. We find no merit in defendant’s argument that his sentence is excessive.

Finally, defendant requested an error patent review in accordance with La. C.Cr.P. art. 920. We have reviewed the record on remand which revealed no errors. See, State v. McCloud, 07-936, pp. 7-8 (La.App. 5 Cir. 3/11/08), 978 So.2d 1139, 1142,

AFFIRMED.

      . See, La.C.Cr.P. art 873.

      . This court did not vacate defendant's habitual offender sentence on count one because the failure to observe the 24-hour delay was harmless, since the original sentence on that count had been vacated at the habitual offender proceeding.

      .Comment (d) to La.C.Cr.P. art. 874 provides: "To avoid clogging the supreme court docket with frivolous appeals on claims of unreasonable delay between conviction and sentence, this article provides for discretionary supervisory writs, rather than a right of appeal.”

      . State v. Stewart, 98-1215 (La.App. 4 Cir. 3/10/99), 732 So.2d 74, n. 1, writ denied, 99-1059 (La.9/24/99), 747 So.2d 1116; State v. Milson, 458 So.2d 1037, 1039 (La.App. 3 Cir. 1984).

      . On January 16, 2007, the Court modified its policy to allow an appeal to be converted to a writ application, if the panel considering the case determined that the interest of justice demanded it. See also Schexnayder v. Gish, 07-771, p. 4 (La.App. 5 Cir. 2/19/08), 980 So.2d 65, 67. In the instant case, defendant raises one writable claim and one appealable claim (i.e., excessive sentence). If we dismissed this appeal, defendant would lose his right to raise the excessive sentence claim on direct review or in a later application for post-conviction relief.

      .La.C.Cr.P. art. 916 provides, in part, that, “The jurisdiction of the trial court is divested and that of the appellate court attaches upon the entering of the order of appeal. Thereafter, the trial court has no jurisdiction to take any action except as otherwise provided by law.” Defendant's motion to quash does not fall under any of the eight exceptions listed.

      . At the time of defendant's offense, the sentencing range for armed robbery was ten to 99 years at hard labor, without benefit of parole, probation, or suspension of sentence. La. R.S. 14:64 B.


author:
MOORE, J.
      WILLIAMS, J.,

text:
    Jonathon Spencer CHUMLEY, et al., Plaintiff-Appellants, v. Darrin Alex MAGEE, et al., Defendant-Appellees.
    No. 44,860-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 17, 2010.
    Rehearing Denied April 15, 2010.

      Ayres, Warren, Shelton & Williams by Lee H. Ayres, Shreveport, Karen P. Tho-mason, David Lynn White, APLC, for Appellants.
    Dowden & Hicks by Alvin C. Dowden, Jr., Bradley O’Neal Hicks, Leesville, for Appellees, Darrin Alex Magee and Twila North Magee.
    Lunn, Irion, Salley, Carlisle & Gardner by Gerald Martin Johnson, Jr., Shreveport, for Appellees, Burl Douglas Hines and American Dream Home Inspection Service, Inc.
    McMichael, Medlin, D’Anna, Wedge-worth & Lafargue, L.L.C., by James C. McMichael, Jr., Shreveport, for Appellee, Frances Harral.
    Before WILLIAMS, STEWART and MOORE, JJ.
   MOORE, J.

liThe buyers, Jonathon and Shawna Chumley, appeal three summary judgments that dismissed their claims against the sellers, Darrin and Twila Magee; their buyers’ agent, Frances Harral; and their home inspector, American Dream Home Inspection Services Inc. (“ADHIS”) and its owner, Burl Hines. They also appeal the denial of their motion for new trial. For the reasons expressed, we affirm.

Factual Background

In the summer of 2004, the Chumleys were in the market for a house and noticed an older home for sale at 733 Cecile Place in Shreveport’s South Highlands neighborhood. They retained Ms. Harral as their buyers’ agent and executed a buy/sell agreement on July 10, contingent on a satisfactory inspection of the property. Three days later they signed a “Realtor’s Disclosure,” setting out the realtor’s role and responsibilities.

Through Ms. Harral, the Chumleys obtained an “Informational Statement for Louisiana Residential Property Disclosure” from the Magees. This statement, dated July 13, disclosed that the sellers did not know if the property was in a flood zone, and their lender did not currently require them to carry flood insurance; that the house received a “clear” termite inspection in 1998; that the whirlpool, Jenn-Air cooktop vent and mini-fridge did not work; and that as to the sewer system, “roots occasionally in line from house to street; Roto-Rooter service can fix.” All other items on the form were marked “no knowledge.”

At Ms. Harral’s suggestion, the Chum-leys hired ADHIS to perform a visual inspection of the house. ADHIS’s owner, Hines, inspected it on July [219 in the presence of the Chumleys. ADHIS’s report found, inter alia, some rot on three walls; leaky duct joints and a hole in one of the air conditioner units; loose shingles, for which he recommended replacing the flat roof; leaks around two skylights; uneven areas in the floor; inadequate caulking around the tub; and the nonworking appliances noted by the sellers. The following day, the Chumleys sent the sellers a punch list of necessary repairs, including every item in the ADHIS report.

One week later, the sellers agreed to make several of the requested repairs, such as replacing the rotted walls and recaulking the tub, and offered to pay the Chumleys $1,000 in lieu of the remaining repairs. The Chumleys accepted this offer on July 27, writing on the sellers’ response, “Buyers accept the repairs listed above and prefer the additional $1,000 to lift contingency.” A closing date was set for August 11, but ultimately postponed until August 27.

In the meantime, Ms. Harral ordered a termite inspection in early August. Associates Pest Control found a termite tube on the left side of the house and treated for subterranean infestation. Associates Pest Control’s report was dated August 11 but Ms. Harral did not receive it until the day before the closing.

At the closing on August 27, the Chum-leys received, for the first time, Associates Pest Control’s report noting the termite tube and treatment, but Ms. Harral told them, “Everything’s fíne.” They also testified that at lathis time they learned the house was indeed in a flood zone, necessitating more insurance. Mr. Chumley admitted he could have walked away from the closing, but they nevertheless signed a “Final Reinspection Release,” acknowledging that the “reinspection of above property has been made and conditions are satisfactory and hereby approved” and “Buyers accept the repairs listed above and prefer the additional $1,000 to lift contingency.” The Chumleys completed the closing and took possession of the house, moving in sometime in October 2004.

The Chumleys testified that almost immediately they noticed exorbitant utility bills, which they traced to leaky ductwork. In February 2005, they heard a noise coming from the crawl space under the house; a plumber found a leaking water pipe which he repaired without warranty “due to deterioration of existing water lines; house needs repipe.” Several months later, the main sewer line collapsed, backing up waste into the house and requiring major repairs, during which they had to vacate the house in June 2005. At some point, they also discovered a break in the gas main. Unable to keep up with repair expenses, the Chumleys abandoned the house in late 2005, letting it go into foreclosure. The mortgage lender bought the house at sheriffs sale in June 2006.

Procedural History and Action of District Court

The Chumleys filed this suit in August 2005. They sought damages from the Ma-gees for redhibition, from ADHIS and Hines for a negligent inspection, and from Ms. Harral for negligent misrepresentation and failure to disclose material information about the condition of the house.

All defendants moved for summary judgments, which the Chumleys 1 ¿opposed. ADHIS and Hines argued that the action was barred by the one-year prescriptive period of La. R.S. 9:5608; Ms. Harral asserted that at the time of the closing, she had no more knowledge about the house than the Chumleys, and withheld nothing from them; the Magees contended that the Chumleys failed to tender the house for repairs, as required by La. C.C. art. 2522, and that all alleged defects were either disclosed to, or could have been discovered by, the Chumleys, thus negating their action under La. C.C. art. 2521. In support and opposition, the parties offered numerous documents, including the depositions and/or affidavits of the Chum-leys, Hines and Ms. Harral; the affidavits of the Magees; copies of the buy/sell agreement, informational statement, inspection reports, punch list of requested repairs, final reinspection release and the closing documents.

After a hearing in November 2008, the court granted all three motions for summary judgment, effectively dismissing the Chumleys’ suit. Through new counsel, the Chumleys then moved for a new trial, urging not only that the judgments were contrary to the law and evidence but that there was newly discovered evidence important to the case. This evidence included the depositions of the Magees, their sellers’ agent and the closing attorney; a copy of the seller’s agent’s file; and the Terminix report.

After a hearing in January 2009, the court denied the new trial, noting that all the newly discovered evidence was known to previous counsel and not presented, and that the Chumleys did not establish peremptory grounds for a new trial under La. C.C.P. art. 1672. This appeal followed.

Discussion: Summary Judgment Standard

A motion for summary judgment will be granted “if the pleadings, ^depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966 B. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. La. C.C.P. art. 966 A(2). Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Cutsinger v. Redfern, 2008-2607 (La.5/22/09), 12 So.3d 945. Appellate courts ask the same questions as the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id.; Smith v. Our Lady of the Lake Hosp., 93-2512 (La.7/5/94), 639 So.2d 730.

Liability of the Real Estate Agent

By their first assignment of error, the Chumleys urge the district court erred in granting all motions for summary judgment. They first argue that Ms. Harral breached several duties: she failed to inform her clients that the house had previously been in foreclosure, failed to inspect the house, failed to advise them of its flood zoning, failed to promptly report the termite inspections, and wrongfully recommended an inspection company. They suggest that absolving Ms. Harral on summary judgment is tantamount to holding that a realtor owes her clients virtually no duty.

Ms. Harral was retained only by the Chumleys and thus was a “buyer’s agent” in this transaction. La. R.S. 37:1431(26). As such she owed the Chum-leys the specific duty to communicate accurate information about the transaction, such as any material defects in the premises, of which Ushe was aware. Louisiana Hand & Upper Extremity Inst. v. City of Shreveport, 34, 404 (La.App. 2 Cir. 2/28/01), 781 So.2d 695; Latter & Blum Inc. v. Richmond, 388 So.2d 368 (La.1980).

Notably, the Chumleys received and signed a realtor’s disclosure which provided, inter alia, that agents “are not the guarantors of performance, condition of property, or representations made by others” and they have, moreover, “no responsibility or expertise to determine or advise whether the property is within the flood plain or as to physical condition of the property.” The summary judgment evidence shows that Ms. Harral accurately disclosed the critical the information she had received from the Magees, that sometime after 1998 their lender advised them the property no longer required flood insurance. By contract she was not required to research the flood zones and, in general, was not required to speculate on potential zoning changes. Louisiana Hand & Upper Extremity Inst. v. Shreveport, supra. There is no genuine issue as to this allegation.

The summary judgment evidence concerning the Terminix report was fairly extensive but convinces us that the seller’s agent ordered this inspection and did not convey it to Ms. Harral. Nevertheless, both Ms. Harral and the Chumleys had the Associates Pest Control report which also disclosed the presence of a termite tunnel on one wall and that the house had been treated with a one-year “retreat guarantee.” Ms. Harral told them, “Everything’s fine,” which appears to be an accurate assessment, even considering both reports. The failure to produce a cumulative report one day sooner did not create a genuine issue of material fact.

As for the other condition issues, Jonathon Chumley testified that he 17read and signed the inspection contract in July 2004 and tailed after Hines during the inspection and that Ms. Harral helped him draw up the list of requested repairs. Ms. Harral testified that she recommended Hines because he was licensed and experienced, reviewed his report with the Chum-leys and negotiated a $1,000 rebate in lieu of certain repairs. On this evidence we find that both Ms. Harral and the Chum-leys had the same facts about the condition of the house. The record simply does not create a genuine issue as to whether she withheld from her clients any information about material defects in the property. This portion of the Chumleys’ argument lacks merit.

Liability of the Home Inspector

The Chumleys next contend the district court erred in finding their claim against ADHIS and Hines prescribed under R.S. 9:5608. They show that this statute, which created the one-year prescriptive period, did not take effect until August 15, 2004, after this inspection occurred. They contend it was a violation of due process to apply the new prescriptive period to their action. In support they cite Cameron v. Bruce, 42,873 (La.App. 2 Cir. 4/23/08), 981 So.2d 204, writ denied, 2008-1127 (La.9/19/08), 992 So.2d 940, in which this court held that the parties cannot by contract shorten a legal prescriptive period. Finally, they urge that Hines performed a deficient inspection report, failing to account for the age of the house or to recommend a more extensive evaluation.

Hines performed his inspection on July 19, 2004, at which time a contract action against a home inspector was considered a personal action regulated by the 10-year prescriptive period of La. C.C. art. 3499. Cameron v. Bruce, supra. On August 15, 2004, La. R.S. 9:5608 took effect, limiting actions against home inspectors, “whether based on tort, breach of contract, or otherwise,” to a prescriptive period of one year from the date of the alleged act, omission or neglect. The Chumleys filed this suit on August 11, 2005, more than one year after the period fixed by R.S. 9:5608 but within the 10 years for a personal action.

Prescriptive limitations relate to the remedy and are usually treated as procedural and applied retroactively. Falgout v. Dealers Truck Equip. Co., 98-3150 (La.10/19/99), 748 So.2d 399, and citations therein. However, prescriptive statutes cannot, consistently with state and federal constitutions, apply retroactively to disturb a person’s preexisting right. Id. When a party acquires a right, either to sue for a cause of action or to defend himself against one, that right becomes a vested property right and is protected by the due process guarantees. Cole v. Celotex, 599 So.2d 1058 (La.1992). Nevertheless, a newly created statute that “shortens existing periods of limitation will not violate the constitutional prohibition against divesting a vested right provided it allows a reasonable time for those affected by the act to assert their rights.” Lott v. Haley, 370 So.2d 521, 524 (La.1979), and citations therein. Obviously, courts will not enforce a new, shorter limitation that effectively extinguishes a claimant’s right of action. Falgout v. Dealers Truck Equip. Co., supra; Lott v. Haley, supra; Zeno v. Lincoln Gen’l Hosp., 376 So.2d 1284 (La.App. 2 Cir.1979).

By contrast, the retroactive application of R.S. 9:5608 still afforded the Chumleys over 11 months in which to assert their claim against ADHIS and Hines. It neither extinguished any vested right nor denied them a | treasonable time to sue. In such circumstances, retroactive application of the shorter prescriptive period is proper. Huffman v. Goodman, 34,361 (La. App. 2 Cir. 4/4/01), 784 So.2d 718, writ denied, 2001-1331 (La.6/22/01), 794 So.2d 791; Patriot American Hospitality Partnership v. Mississippi Land Holdings Inc., 2006-0601 (La.App. 4 Cir. 12/13/06), 948 So.2d 249, writ denied, 2007-0080 (La.3/9/07), 949 So.2d 450. The district court did not err in applying R.S. 9:5608 retroactively in the instant case. This portion of the Chumleys’ argument lacks merit.

Liability of the Sellers

The Chumleys also contend the district court erred in granting summary judgment in favor of the Magees. The Chum-leys assert that just because they had the opportunity to inspect the house before buying it did not absolve the sellers of the duty to disclose the condition of the property or to warrant that repairs made by the sellers were complete. The Chumleys contend the house was “riddled with defects that were not disclosed and which far exceeded superficial cosmetic repairs.”

The seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer of such things. La. C.C. art. 2521; Duplechin v. Adams, 95-0480 (La.App. 1 Cir. 11/9/95), 665 So.2d 80, unit denied, 95-2918 (La.2/2/96), 666 So.2d 1104. A defect is not hidden when it is disclosed by the seller. C.C. art. 2521, Rev. Comment (b).

At the outset we note that on August 27, 2004, the Chumleys signed the final reinspection release. This acknowledged, “Reinspection of above property has been made and conditions are satisfactory and hereby | ^approved” and “Buyers accept the repairs listed above and prefer the additional $1,000 to lift contingency.” In light of this declaration, we find no merit in the claim that the repairs were unsatisfactory or that the Magees failed to perform any of the other repairs on the punch list, such as floor leveling or duct repair.

As for the flood zone designation, the Magees wrote on the disclosure statement, “presently do not know” and “zone change, do not currently have to have coverage.” They offered a letter from their mortgage lender corroborating this. There is simply no summary judgment evidence showing that they misrepresented the flood zone status.

Finally, and without much elaboration, the Chumleys urge that plumbing problems were latent defects, including the water pipe that burst in February 2005, the sewer line that collapsed in May 2005 and a gas leak that occurred at an unspecified time, resulting in major repairs. As noted, the Magees filled out an informational statement with the handwritten notation, “roots occasionally in line from house to street; Roto-Rooter service can fix.” This disclosure placed the Chumleys on notice of recurring problems with the sewer line, satisfying art. 2521. Notably, the house was approximately 60 years old, a fact which should have placed a reasonably prudent buyer on notice of possible deterioration and decay in such an old plumbing system. Conley v. Cupit, 274 So.2d 713 (La.App. 4 Cir.1973). This applies equally to the incoming water and natural gas plumbing. Moreover, the summary judgment evidence does not establish when the gas leak occurred, that it was called to the Magees’ attention, or whether it resulted from general deterioration rather than some other cause.

_jjjThe district court did not err in finding the Magees placed the Chumleys on sufficient notice of these defects. This portion of the argument lacks merit.

Motion for New Trial

By their second assignment of error, the Chumleys urge the district court erred in denying their motion for new trial. While conceding that the grant or denial of new trial is within the trial court’s great discretion, they submit they presented both peremptory and discretionary grounds under La. C.C.P. arts. 1972 and 1973.

A new trial shall be granted, upon contradictory motion of any party, “(1) When the verdict or judgment appears clearly contrary to the law and the evidence. (2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial. * * *” La. C.C.P. art. 1972. Although the grant or denial of a motion for new trial rests within the trial court’s wide discretion, the court cannot set aside a judgment if it is “supported by any fair interpretation of the evidence.” Campbell v. Tork Inc., 2003-1341 (La.2/20/04), 870 So.2d 968, and citations therein. For the reasons already discussed, we do not find that the summary judgments rendered in this case are unsupported by any fair interpretation of the evidence. Moreover, despite the rather large (over 750 pages) attachment to the motion for new trial, the Chumleys have not explained in brief why any of this could not have been obtained with due diligence before or during trial.

A new trial may also be granted “in any case if there is good ground therefor, except as otherwise provided by law.” La. C.C.P. art. 1973. Onecióse review, we do not perceive that a miscarriage of justice would result from denying a new trial on this record. Davis v. Wal-Mart Stores Inc., 2000-0445 (La.11/28/00), 774 So.2d 84. This assignment of error lacks merit.

Conclusion

For the reasons expressed, the judgments are affirmed. The plaintiffs, Jonathon and Shawna Chumley, are to pay all costs.

AFFIRMED.

WILLIAMS, J., dissents with written reasons.

WILLIAMS, J.,

dissents.

| ¡I dissent from the affirmance of summary judgment in favor of the sellers. I cannot join the majority’s retreat to the era of caveat emptor; in disregard of the redhibition articles and this court’s proper role in the review of summary judgment.

The seller of a house warrants the buyer against redhibitory defects which render the house either useless or its use so inconvenient that it must be presumed the buyer would not have purchased the thing had he known of the defect, or would have bought it at a lesser price. LSA-C.C. art. 2520; Hollingsworth v. Choates, 42,424 (La.App.2d Cir.8/22/07), 963 So.2d 1089. A seller owes no warranty for defects that were known to the buyer at the time of the sale, or for defects that were apparent and should have been discovered by a reasonably prudent buyer. LSA-C.C. art. 2521. Generally, the seller warrants the thing sold against hidden or non-apparent defects, which are defects that cannot be discovered by simple inspection. Ollis v. Miller, 39,087 (La.App.2d Cir.10/29/04), 886 So.2d 1199.

To determine whether a defect is apparent, courts consider whether a reasonably prudent buyer, acting under similar circumstances, would have discovered the defect through a simple inspection. Spraggins v. Lambeth, 42,693 (La.App.2d Cir.12/5/07), 973 So.2d 165. The buyer must give the seller notice of the existence of a redhibitory defect in the thing sold so as to allow the seller an opportunity to make the required repairs. A buyer who fails to give that notice suffers diminution of the warranty to the extent the seller can show that the defect could have been repaired with timely notice. LSA-C.C. art. 2522. Such failure to give notice does not preclude the buyer | ¿from obtaining reduction of the purchase price. David v. Thibodeaux, 04-0976 (La.App. 1st Cir.5/11/05), 916 So.2d 214.

In the present case, the plaintiffs presented evidence that in February 2005, approximately five months after they moved into the house, they did not have water because an underground water pipe was leaking. Plaintiffs hired a plumber, who said that the problem was caused by the severe deterioration of the water pipes, which were corroded and needed to be completely replaced. Jonathon Chumley stated in his deposition that at the same time, the plumber also noticed a leak in the gas line under the house that required repair. The sellers’ disclosure did not advise of any defects in the water pipes or gas line. Nor did the inspection report address the gas line or water pipes underneath the house. Plaintiffs submitted invoices showing the replacement cost of the water and gas lines.

From the foregoing evidence, a trier of fact could infer that the water and gas lines were useless for the intended purpose and that this defective condition existed at the time of sale, since the extensive corrosion of the water pipes could not have occurred just in the short time period after the plaintiffs moved into the home. In addition, the plaintiffs showed that the defect was not apparent since the water pipes were underground and not discoverable upon visual inspection.

The case cited by the majority, Conley, supra, does not provide authority for the assertion that mere knowledge of the house’s age would place a reasonably prudent buyer on notice that the “old plumbing system” was useless. The issue in the Conley case was not the age of the house, but the buyer’s failure to make a simple inspection by turning on the kitchen 1..-¡faucet and viewing an outside waste valve visible above the ground. Here, in contrast, the defective pipes were completely underground and the plaintiffs’ inspection of the interior faucets did not indicate any problems with those pipes. Thus, not only does the record fail to support the majority’s determination that plaintiffs were placed on notice of the defective condition, the majority has usurped the role of the trier of fact in making such a determination on review of summary judgment.

Based upon this record, I would conclude that plaintiffs submitted sufficient evidence to satisfy their burden of demonstrating a genuine issue of material fact as to whether the condition of the water pipes and gas line constituted a redhibitory defect at the time of sale that could not have been discovered upon inspection by a reasonably prudent buyer. Consequently, I would reverse the summary judgment granted in favor of the Magees. The case is before us on appeal of a summary judgment and this court should not, as the majority is too eager to do, weigh the evidence as a fact finder.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, MOORE and LOLLEY, JJ.

Rehearing denied.

WILLIAMS and LOLLEY, JJ., would grant rehearing.

      . Sometime in July, the sellers' agent (not a party to this suit) ordered a termite inspection from Terminix, which found active termites on the east side of the house at the bathroom. The Terminix report, however, was not disclosed to Ms. Harral or to the Chumleys until after this suit was filed.


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

text:
    Lenvi TENNESSEE v. DEPARTMENT OF POLICE.
    No. 2009-CA-1461.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 24, 2010.
    Frank G. DeSalvo, Frank G. DeSalvo, APLC, New Orleans, LA, for Plaintiff/Appellant.
    Penya Moses-Fields, City Attorney, Nolan P. Lambert, Chief Deputy City Attorney, Isaka Williams, Assistant City Attorney, Mary Katherine Taylor, Assistant City Attorney, James B. Mullaly, Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.

      (Court composed of Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge.

_jjln this appeal, Lenvi Tennessee, a recruit with the New Orleans Police Department (“NOPD”), seeks reversal of the Civil Service Commission’s (“Commission”) dismissal of his appeal of his termination for lack of jurisdiction. Specifically, Mr. Tennessee argues the right to appeal his termination because he was discriminated against based on his disability. For the following reasons, we affirm.

On 23 July 2006, the NOPD hired Mr. Tennessee as a police recruit. Upon his graduating from the police academy, the NOPD assigned him to a district to complete his field training. The field training program typically lasts sixteen weeks and is broken down into four phases, with each phase lasting about four weeks. Generally, a recruit may repeat one four-week phase, but no more. Mr. Tennessee stayed in the field training program for approximately one year and five months. Mr. Tennessee exhibited trouble writing reports. Mr. Tennessee received assistance and showed some improvement, but still continued to have trouble writing reports. As a result of his inability to produce a satisfactory written report, the NOPD terminated Mr. Tennessee on 12 September 2008.

UMr. Tennessee disagreed with his termination and filed an appeal with the Commission. He argued that he possessed a disability, to-wit, dyslexia, which the NOPD failed to accommodate.

The NOPD filed a motion for summary disposition, arguing the Commission lacked jurisdiction to consider Mr. Tennessee’s appeal because the Louisiana Constitution limits the types of discrimination claims the Commission can hear and because Mr. Tennessee was not an employee with protected status entitled to appeal to the Commission.

The Commission granted the summary disposition in part, finding it lacked jurisdiction over Mr. Tennessee’s claim of discrimination. The Commission appointed a hearing officer to take testimony on the issue of whether Mr. Tennessee was an employee with protected status.

At the hearing, the NOPD called Stephanie Landry and Lieutenant Richard Williams to testify.

Ms. Landry testified that she is the human resources director for the NOPD. She testified that Mr. Tennessee was carried in a training status and explained that an employee in a training position does not achieve permanent status in the civil service. Ms. Landry noted that after the training period, a recruit is promoted to police officer one status, which has a probationary period of one year. After that year, the police officer obtains permanent status. Ms. Landry stated that the NOPD will grant additional time to recruits in the field training program who are struggling, because time and money have been invested on the recruit’s education.

Lieutenant Williams testified that a recruit typically stays in the field training program for sixteen weeks. During this time, recruits are being evaluated on their ability to investigate an incident and create a report on an incident and to |sproperly interact with citizens; a recruit’s overall performance is assessed. Lieutenant Williams testified that it was brought to his attention that Mr. Tennessee was having trouble writing reports, though he did well in other areas. Mr. Tennessee appeared for a meeting and informed Lieutenant Williams that he enrolled in a remedial program at Delgado College to improve his written reports. Lieutenant Williams testified that he initially received reports that Mr. Tennessee’s writing skills showed improvement. However, he then received reports that Mr. Tennessee struggled to produce written reports. He testified that a recruit must pass all phases of the training program to be promoted.

Mr. Tennessee presented no testimony or evidence.

The x*eport of the hearing officer recommended that the appeal of Mr. Tennessee be dismissed as Mr. Tennessee never attained permanent status and had no right to appeal. The Commission issued a decision finding that Mr. Tennessee never attained permanent status. The Commission dismissed the appeal, finding Mr. Tennessee lacked a right to appeal.

An appellate court reviews findings of fact using the manifest error/clearly erroneous standard in civil service cases. Banks v. New Orleans Police Dept., 01-0859, 01-1302, p. 8 (La.App. 4 Cir. 9/25/02), 829 So.2d 511, 513-14. The Banks court discussed the standard of review in civil services cases involving jurisdictional issues. Specifically, the court stated:

[W]here the Civil Service Commission’s decisions involve jurisdiction, procedure, and interpretation of laws and regulations, judicial review is not limited to the arbitrary, capricious, or abuse of discretion standard. Walton v. French Market Corp., 94-2457 (La.App. 4 Cir. 4/26/95), 654 So.2d 885. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. J^Clibum v. Police Jury Ass’n of Louisiana, Inc., 99 2191 (La.App. 1 Cir. 11/3/00), 770 So.2d 899; Christoffer v. New Orleans Fire Dept., 99-2658 (La.App. 4 Cir. 3/29/00), 757 So.2d 863, writ denied, 2000-1413 (La.6/30/00), 766 So.2d 543.

Banks, p. 3, 829 So.2d at 514.

The Banks court additionally noted that a probationary employee has no right to appeal under the civil service rules, except when an allegation of discrimination is presented. Id., p. 3, 829 So.2d at 514. When an allegation of discrimination is presented, the burden of proof is upon the employee to prove the discrimination. Id., p. 3, 829 So.2d at 513-14.

In the case at bar, the Commission determined that it lacked jurisdiction over Mr. Tennessee’s claim of alleged discrimination and dismissed Mr. Tennessee’s appeal. Mr. Tennessee’s first assignment of error argues that the Commission erred in determining it lacked jurisdiction over his claim of alleged discrimination.

In support of his first assignment of error, Mr. Tennessee cites Reimer v. Medical Center of Louisiana at New Orleans, 95-2799, p. 5 (La.App. 4 Cir. 1/29/97), 688 So.2d 165, 168, wherein the court stated:

One of the principal objectives of the merit system of civil service is “protect public employees against discrimination, intimidation or dismissal because of political or religious beliefs, sex, race or other unjustified reasons.” ... [New Orleans Firefighters Ass’n Local 632 v. City of New Orleans, 590 So.2d 1172,] at 1174-75 [ (La.1991) ] (emphasis added). Because unreasonable discrimination based upon physical condition is expressly prohibited in Sections 3 and 12 of Article I of our constitution, the CSC [Commission] rule that protects classified employees who allege discrimination on that basis promotes the goal that such employees not be removed for unjustified reasons.

|sMr. Tennessee argues that his disability, dyslexia, is a physical condition and that he was unjustifiably discriminated against when the NOPD terminated him based on his physical condition.

Mr. Tennessee additionally cited Walton v. French Market Corp., 654 So.2d 885 (La.App. 4 Cir.1995). Therein, the court noted that unless there is an allegation of discrimination under Civil Service Rule II, § 4.6, no provision for an appeal by a probationary employee exists. Id., 654 So.2d at 887.

Ms. Landry testified that Mr. Tennessee was given a training status while he was in the field training program. She testified that a recruit does not achieve permanent status until after being promoted to police officer one and then completing a one year probationary period. Lieutenant Williams testified that Mr. Tennessee did not complete all of the phases of his field training. We find Mr. Tennessee was never promoted to permanent status. As a probationary employee, Mr. Tennessee’s only right to appeal to the Commission is for discrimination.

The NOPD argues the Louisiana Constitution provides limited jurisdiction to the Commission to hear cases involving discrimination. Specifically, Article X, Section 8(B) provides:

Discrimination. No classified employee shall be discriminated against because of his political or religious beliefs, sex or race. A classified employee so discriminated against shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the employee.

Thus, the NOPD concludes that the Commission lacks jurisdiction to hear Mr. Tennessee’s appeal as Mr. Tennessee’s claim of discrimination is not resulting from Mr. Tennessee’s political or religious beliefs, sex, or race.

|fiIn further support of its argument, the NOPD cites La. Dept of Agri. & Forestry v. Sumrall, 98-1587 (La.3/2/99), 728 So.2d 1254. Therein, the Court held that the jurisdiction of civil service commissions is limited to that provided in the Louisiana Constitution. The Court noted that the jurisdiction granted to the civil service commissions by the Constitution falls into two categories of claims: discrimination claims provided for in La. Const, art. X, § 8(B) and removal or disciplinary claims provided for in La. Const, art. X, §§ 12(A) and 8(A). Id., p. 14, 728 So.2d at 1264. Section 12(A) grants the state civil service commission exclusive power and authority to hear and decide all removal and disciplinary cases. Section 8(A) provides that no employee who has gained permanent status shall be subjected to disciplinary action except for cause expressed in writing. Both provisions apply to the Commission. The Court went on to state that, “[a]ny individual asserting a cause of action based upon a form of discrimination not within the scope of the Commission’s quasi-judicial power expressed in Article X, Sections 8 and 12, may not bring his claim to the Commission but has recourse in the district courts.” Id.

Mr. Tennessee alleged the NOPD discriminated against him when the NOPD terminated him based upon his disability of dyslexia. The NOPD argues dyslexia is not a disability under the Americans with Disabilities Act. Our conclusion does not require us to reach a determination on whether dyslexia is a disability. Mr. Tennessee, as a probationary employee, may appeal to the Commission only in the event of discrimination based upon one of the enumerated categories in the Constitution. Dyslexia does not fall into one of the four enumerated categories set forth in the Constitution: political beliefs, religious 17beliefs, sex, or race. Hence, while he may have recourse elsewhere, Mr. Tennessee is not entitled to an appeal before the Commission for discrimination for dyslexia.

Mr. Tennessee’s second assignment of error argues the Commission erred in determining Mr. Tennessee had no right of appeal due to his status as a probationary employee. Mr. Tennessee did not brief his second assignment of error. Uniform Rules-Courts of Appeal Rule 2-12.4 provides that assignments of error not briefed may be considered abandoned. Accordingly, we consider Mr. Tennessee’s second assignment of error abandoned.

We further note that Mr. Tennessee alleges he has dyslexia and that he was discriminated against as a result of his dyslexia. The burden of proof is upon Mr. Tennessee to prove the alleged discrimination. However, Mr. Tennessee presented no testimony or evidence that he has dyslexia. As a court of record, we limit our review to that which is in the record on appeal before us. Kerrigan v. Bourgeois, 08-1457, p. 4 (La.App. 4 Cir. 7/15/09), 16 So.3d 612, 614. Mr. Tennessee failed to prove that he has dyslexia or any other disability.

We find no error in the decision of the Commission.

Accordingly, the decision of the Commission is affirmed.

AFFIRMED.


author: JAMES F. McKAY III, Judge. JONES, J.,

text:
    Brian KELLY v. AME JANITORIAL SERVICES COMPANY and ABC Insurance Company.
    No. 2009-CA-1167.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 3, 2010.

      Carl A. Butler, Jairo F. Sanchez, Le-Blanc Butler, LLC, Metairie, Louisiana, for Plaintiff/Appellant.
    Craig V. Sweeney, Paul D. Palermo, Spyridon Palermo & Doman, L.L.C., Me-tairie, Louisiana, for Defendant/Appellee, AME Janitorial Services Company.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge PAUL A. BONIN).
   JAMES F. McKAY III, Judge.

| Jn this action for personal injury due to an alleged toxic exposure, the plaintiff, Brian Kelly, appeals the granting of summary judgment in favor of the defendant, AME Janitorial Services Company. We affirm.

FACTS AND PROCEDURAL HISTORY

On November 6, 2003, Brian Kelly was employed as a security counselor for the Orleans Parish School Board. His duties included enforcing the state and city laws as well as protecting the students and staffs of the schools.

On the morning of November 6, 2003, Mr. Kelly was dispatched to F.W. Gregory Jr. High School on a medical call because some teachers became sick due to some type of chemical exposure. Upon his arrival, Mr. Kelly entered the school office and noticed crushed mothballs in several locations. At the time of this incident, AME had a contract with the school board to train and supervise school board custodial personnel. However, there is no evidence to indicate that AME directed or authorized the use of mothballs by the school board employees.

12Later that evening, Mr. Kelly began to feel ill and presented to the emergency room at Methodist Hospital. Mr. Kelly was diagnosed with Bronchiolitis Obliter-ans Organizing Pneumonia (BOOP), a chronic lung condition. His medical records indicate that he was suffering from an active lung disease prior to any exposure at F.W. Gregory.

Mr. Kelly filed suit against AME alleging that AME failed to maintain the subject premises in a safe and reasonable manner and inappropriately applied a chemical compound not intended for a school environment. Thereafter, Mr. Kelly amended his petition to allege that his exposure to “mothball fumes and/or toxic mold” aggravated is “underlying pulmonary disease.” On December 4, 2008, AME filed a motion for summary judgment seeking the dismissal of Mr. Kelly’s claims against AME, with prejudice, because Mr. Kelly would not be able to meet his burden of proof at trial that his illness is causally related to his alleged mothball exposure at F.W. Gregory. The discovery cut-off date was December 31, 2008. AME’s motion for summary judgment came for hearing before the trial court on March 27, 2009. At the conclusion of the hearing, the trial court granted AME’s motion finding that Mr. Kelly had no evidence to demonstrate “more probable than not” that his lung condition was caused by his alleged mothball exposure.

On April 16, 2009, Mr. Kelly filed a motion for new trial and/or reconsideration asking the trial court to reconsider its granting of AME’s motion for summary judgment. On April 21, 2009, the trial court denied Mr. Kelly’s motion for new trial and/or reconsideration finding that he “failed to raise any new tissues for consideration.” Mr. Kelly now appeals the trial court’s granting of AME’s motion for summary judgment.

DISCUSSION

On appeal, Mr. Kelly raises the following assignments of error: 1) the trial court erred when it failed to apply the legal presumption of causation as set forth in Housley v. Cerise; and 2) the trial court erred when it granted defendant’s motion for summary judgment when there remained disputed issues of material fact regarding medical causation.

Housley Presumption

A plaintiff may be assisted in meeting his burden of proof that an injury is causally related to an accident by a legal presumption that was articulated by the Louisiana Supreme Court in Housley v. Cerise, 579 So.2d 973 (La.1991). The Housley Court, quoting from the earlier case of Lucas v. Insurance Company of North America, 342 So.2d 591, 596 (La.1977), stated:

[a] claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection between the accident and the disabling condition.

579 So.2d at 980.

In Juneau v. Strawmyer, 94-0903 (La.App. 4 Cir. 12/15/94), 647 So.2d 1294, this Court held that in order for a plaintiff to benefit from the Housley presumption of causation, three (3) things must be established by a preponderance |4of the evidence. First, the plaintiff must prove that he was in good health prior to the accident allegedly causing the plaintiffs injury. Second, the plaintiff must show that subsequent to the accident, symptoms of the alleged injury appeared and continuously manifested themselves after the accident. Third, the plaintiff must demonstrate through medical evidence, circumstantial evidence, or common knowledge that there was a reasonable possibility of causation between the accident and the alleged injury. Id. at 1299.

In the instant case, Mr. Kelly has not presented sufficient evidence to demonstrate by a preponderance of the evidence that his current lung condition was more probable than not caused by his alleged exposure at F.W. Gregory. Furthermore, Mr. Kelly was not in “good health” at the time of his alleged mothball exposure at F.W. Gregory in that he had already been diagnosed with a prior active lung disease. Because Mr. Kelly cannot prove by a preponderance of the evidence these requisite elements, he is not entitled to a Housley presumption.

Summary Judgment

Appellate courts review grants of summary judgment de viovo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine of material fact and whether the mover is entitled to judgment as a matter of law. Ocean Energy, Inc. v. Plaquemines Parish Gov’t, 2004-0066 (La.7/6/04), 880 So.2d 1. Under Louisiana law, where the party seeking summary judgment will not bear the burden of proof upon a particular element of a claim or cause of a action, that party need not disprove that element in order to obtain summary judgment. Instead, the movant’s entitlement to summary judgment is established upon its pointing out to the court that “there is an absence of factual support for one of more elements Inessential to the adverse party’s claim.” La. C.C.P. art. 966(C)(2); Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21. In defending against a well-taken motion for summary judgment, the plaintiff may not rely upon the allegations contained in his pleadings, simply speculate or otherwise posit the hypothetical existence of a genuine issue of material fact. La. C.C.P. art. 967(B). Where the plaintiff attempts to defeat summary judgment in such ways, or otherwise fails to come forward with admissible evidence setting “forth specific facts showing that there' is a genuine issue for trial,” summary judgment should be granted. La. C.C.P. art 967(B); Garsee v. Bowie, 37,444 (La.App. 2 Cir. 8/20/03), 852 So.2d 1156.

In the instant case, Mr. Kelly has failed to show that there is any genuine issue of material fact or that AME was not entitled to judgment as a matter of law. Accordingly, the trial court appropriately granted summary judgment in favor of AME.

CONCLUSION

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

AFFIRMED

JONES, J., dissents with reasons.

JONES, J.,

dissents with reasons.

|/The question of whether the conduct of AME exacerbated the preexisting condition of the appellant creates a material issue of fact which can only be resolved by the trier of fact. Therefore, I would vacate the grant of the motion for summary judgment and remand for a trial on the merits. Thus, for these reasons, I respectfully dissent.

      . 579 So.2d 973 (La.1991).