author: | {¡JAMES L. CANNELLA, Judge.

text:
    STATE of Louisiana v. Johnny L. FRAZIER.
    No. 03-KA-1219.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.
    Jane L. Beebe, Louisiana Appellate Project, Gretna, LA, for Appellant.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Parish of Jefferson, State of Louisiana, Thomas J. Butler, Counsel of Record on Appeal, Terry M. Boudreaux, Appellate Counsel, Roger Jordan, Trial Counsel, Assistant District Attorneys, Gretna, LA, for Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   | {¡JAMES L. CANNELLA, Judge.

The Defendant, Johnny Frazier, appeals from his conviction of distribution of cocaine. We affirm his conviction, amend his sentence and remand.

In a bill of information, the Defendant was charged on January 8, 1999 with distribution of cocaine, a violation of La. R.S. 40:967(A) and he pled not guilty. He filed several pre-trial motions, including a motion to suppress his statement, which was denied after a hearing. The 12 person jury trial was held on August 12, 2003 and he was found guilty as charged. He was thereafter sentenced to 12 years imprisonment at hard labor, without the benefit of parole, probation or suspension of sentence.

On the afternoon of December 15, 1998, Officer Louis Weaver of the Westwego Police Department was involved with Lieutenant Van Paul Plaisance in an undercover operation to enforce prostitution laws along Fourth Street. The two officers were in unmarked pickup trucks and dressed in plain clothes. Officer Weaver’s truck was equipped with a one-way transmitter and Lt. Plaisance’s with the receiver. At approximately 4:00 p.m., Officer Weaver was flagged down by a black male, later identified as the Defendant, in a parking lot who said, “I got it right here.” Officer Weaver believed that the Defendant wanted to sell him drugs |3and advised Lt. Plaisance of the contact over the transmitter. Officer Weaver left the area to meet with Lt. Plaisance who gave Officer Weaver a marked $20 bill. He returned to the area where the Defendant flagged him down again. When the Defendant approached the truck, Officer Weaver said he would take a “20.” The Defendant spit two rocks out of his mouth and Officer Weaver gave him the marked $20 bill. He then signaled Lt. Plaisance that the purchase was complete and started to leave the area.

Lt. Plaisance immediately arrived at the scene. When he exited his truck, the Defendant started to run. Lt. Plaisance gave chase and hit his emergency button. Officer Weaver returned to the scene and also chased the Defendant, who was apprehended and advised of his rights. The 2 rocks were tested and determined to be crack cocaine

After his arrest, the Defendant gave a recorded and video taped statement to the police in which he claimed that he was given rocks of cocaine to give to somebody else. He admitted that the person to whom he gave the rocks gave him something in exchange.

The sole error assigned by the Defendant on appeal is that he was denied his right to present a defense. The Defendant argues that his defense to the charge was that the substance obtained in the transaction with the officer was not cocaine. The Defendant contends that he spoke to a chemist who indicated that there is a great likelihood that an error could be made in testing a substance for cocaine. However, the State lost the physical evidence and he was not able to test the substance. The Defendant contends that the inability to test the substance due to the substance’s unavailability denied him his right to present a defense.

Prior to trial, the Defendant filed two motions for discovery and a bill of particulars. The first motion for discovery was filed on January 26, 1999,1¿approximately one and a half years befofe the Defendant was arraigned. A minute entry dated July 18, 2000 indicates that the Defendant received the discovery. The trial was scheduled for September 5, 2000, but the Defendant failed to appear and an attachment was issued for his arrest. He subsequently appeared for trial on May 19, 2003. At that time, the matter was continued at the request of the Defendant. Twice more on motion of the Defendant the trial was continued. After the second continuance on June 25, 2003, retained counsel for the Defendant filed another request for discovery and a bill of particulars, specifically requesting information relating to the State’s testing of any physical evidence. The trial was reset for August 12, 2003. No response by the State to the second discovery request appears in the record.

On the day of trial, the Defendant’s appointed counsel made an oral motion for the production of the cocaine for independent testing. The prosecutor admitted that the Defendant had the right to test the evidence if it were available, but stated that the State did not have the evidence. Since the evidence was unavailable, the trial judge ruled that she could not order the State to produce it. The Defendant stated that he could not see how the case could go forward if he could not analyze the evidence. The trial judge replied that the lack of evidence went to the State’s burden of proof and that she would allow the trial to proceed.

Both the Sixth Amendment of the United States Constitution and Louisiana Constitution, Article I, Section 16, provide that a criminal defendant has the right to present a defense. La.C.Cr.P. art. 718 allows a defendant, upon motion, to scientifically test tangible objects within the possession, custody or control of the state which “(1) are favorable to the defendant and which are material and relevant |5to the issue of guilt or punishment, or (2) are intended for use by the state as evidence at the trial, or (3) were obtained from or belong to the defendant.”

In State v. Clark, 414 So.2d 737, 740 (La.1982), the Louisiana Supreme Court recognized that:

Fundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion....

Thus, where there is a sufficient amount of the evidence, a defendant should be permitted to conduct an independent examination. Id., citing State v. Migliore, 261 La. 722, 260 So.2d 682 (1972). However, the “unavailability of the evidence for further testing does not in itself so prejudice defendant’s right to a fair trial so as to warrant a dismissal of the prosecution.” Clark, 414 So.2d at 741.

In Clark, the defendant in an aggravated rape case filed a motion to quash the bill of information on the ground that the state failed to preserve a bedsheet eontain-ing a large seminal stain, vaginal swabs and washings from a rape kit. The evidence was examined and analyzed by the state at its crime lab. The defendant received the results of the testing and employed two experts. However, the defendant’s experts could not test the evidence because the test tube containing the vaginal washings was broken, the slide containing the sample could not be found and the bedsheet was not frozen which, according to the defendant’s experts, caused the enzyme properties of the seminal stain to deteriorate rapidly. Thus, the defendant argued that he was prevented from running further tests that could rule him out as the perpetrator of the offense.

The trial judge found that the state was negligent in failing to properly preserve the evidence for further testing and quashed the indictment. The |r,Louisiana Supreme Court reversed, finding that “mere negligence in preserving evidence, which prevents testing by defendant for possible exonerating characteristics, is not such a denial of fundamental fairness that the prosecution must be dismissed.” Clark, 414 So.2d at 741. The Court further stated that the defendant could present evidence to show the inconclusive nature of the tests preformed at the crime lab and that the jury should be allowed to evaluate the testimony and determine what weight to give it.

The Court relied on State v. Boyd, 359 So.2d 931 (La.1978) in reaching its decision. In Boyd, the defendant moved for a mistrial on the ground that he was denied the opportunity to make an independent examination of a blood sample taken off his pants because the entire sample was consumed by the tests conducted by the state. The Court found no error in the trial court’s denial of defendant’s motion for mistrial.

In State v. Tuesno, 456 So.2d 186, 190 (La.App. 4th Cir.1984), the Fourth Circuit found no error in the trial court’s refusal to quash the indictment on the basis that the defendant w&s unable to inspect the evidence of stolen meat prior to its disposal. The defendant was charged with possession of the stolen meat, valued in excess of $500. The defendant claimed that he was prevented from preparing a defense as to the evidence’s value which was an essential element of the crime. The Fourth Circuit found that the defendant was not prejudiced by his inability to examine the meat because the defendant had an adequate opportunity to cross-examine witnesses who testified to its value. The Court noted that the defendant was successful on cross-examination because the jury found defendant guilty of a lesser crime, possession of stolen property valued between $100 and $500.

We first note that the Defendant had notice of the testing of the evidence and its results by July 18, 2000, the date on which the minute entry indicates that the 17Pefendant had received a response to his discovery motions. During the next three years, the Defendant never requested the evidence in order to independently test it. Rather, he waited until the morning of trial to make such request. At some time, the evidence may have still been available. He should have taken adequate steps prior to the morning of trial to develop his defense.

Furthermore, the Defendant had the opportunity at trial to challenge the identification of the substance, which he did by thoroughly cross-examining Daniel Wag-uespack (Waguespaek), the State’s forensic testing expert. He explored the margin of error in the State’s testing process and elicited an admission from Waguespack that it was possible a mistake could have been made. Thus, despite being unable to independently test the evidence, he was able to cast doubt on the State’s conclusion that the substance at issue was cocaine. Although he could have bolstered his defense by presenting his own expert to challenge the validity of the State’s testing process and its conclusions, he did not do so.

In addition, the forensic expert’s testimony was not the only testimony regarding the substance of the evidence as cocaine. The Defendant himself admitted that he was involved in the sale of narcotics. He explained that he was given “drugs” to give to somebody else. When asked what type of narcotics he gave, the Defendant replied, “[supposedly rocks.... Supposed to be cocaine.”

Based on the above, we conclude that the Defendant was not prevented from presenting his defense or suffered any prejudice warranting a reversal of his conviction as a result of his inability to independently test the evidence.

PATENT ERROR

We have reviewed the record for patent errors pursuant to the Defendants request and in accordance with La.C.Cr.P. art. 920. See: State v. Oliveaux, 312 So.2d8 337 (La.1975); State v. Perrilloux, 99-1314 (La.App. 5th Cir.5/17/00), 762 So.2d 198.

First, we note that the Defendant received an illegal sentence. The Defendant was sentenced to 12 years imprisonment at hard labor, without the benefit of parole, probation or suspension of sentence for distribution of cocaine, a violation of La.R.S. 40:967(A). The statute in effect at the time of the Defendant’s offense in 1998 provided for a penalty ranging from five to 30 years of imprisonment, with only the first five years of the sentence being served without the benefit of parole, probation or suspension of sentence. La.R.S. 40:967(B)(4)(b). Thus, the imposition of the Defendant’s entire sentence without benefit of parole, probation or suspension of sentence was illegal.

An illegal sentence may be corrected at any time by the Court that imposed the sentence or by an appellate court on review. La.C.Cr.P. art. 882. Accordingly, we order the sentence to be amended to reflect that only the first five years of the Defendant’s 12 year sentence be served without benefit of parole, probation of suspension of sentence. See, State v. Raines, 00-1941, pgs. 13-14 (La.App. 5th Cir.5/30/01), 788 So.2d 635, 644, writ denied, 01-1906 (La.5/10/02), 815 So.2d 833.

Second, the minute entry reflects that the Defendant was advised of the two year prescriptive period for filing an application for post-conviction relief, as required by La.C.Cr.P. art. 930.8. However, the transcript shows that he was not so advised. Where there is a discrepancy between the minute entry and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Thus, we remand the case with an order for the trial judge to send written notice to the Defendant of the prescriptive period for filing an application for post-conviction relief, along with a notice of when the period begins to run, within ten days of the rendering of this opinion, then to file written proof in the record that the | ^Defendant received the notice. See: State v. Esteen, 01-879, p. 28 (La.App. 5th Cir.5/15/02), 821 So.2d 60, 78.

Accordingly, the Defendant’s conviction is affirmed and his sentence is amended to be served without benefit of parole, probation, or suspension of sentence for the first five years only. We remand the case with an order to the trial judge to send to the Defendant within ten days of the rendering of this opinion, written notice of the prescriptive period for post-conviction relief, along with a notice of when the period begins to run, and then to file written proof in the record that the Defendant received the notice.

CONVICTION AFFIRMED; SENTENCE AMENDED; CASE REMANDED.

      . The Defendant did not appear for his first arraignment date on February 17, 1999. An attachment was issued for his arrest and he was finally arraigned on May 17, 2000.

      . Retained counsel enrolled in the case on June 25, 2003 and withdrew on July 8, 2003. The trial judge then appointed counsel to defend the Defendant.

        .State v. Migliore was decided prior to the enactment of La.C.Cr.P. art. 718 which was added to the Louisiana Code of Criminal Procedure in 1977.

      . The report containing the test results is dated August 18, 1999.


source: Caselaw Access Project

author: LSUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    SEARS, ROEBUCK AND CO. v. Patricia DENNIES.
    Nos. 03-CA-1160, 03-CA-1161.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.
    Geoffrey H. Longenecker, Covington, LA, Frans J. Labranche, Jr., Mandeville, LA, for Defendant-Appellant, Patricia Dennies (Appearing Pro Bono Publico).

      Gregory M. Eaton, Bartley P. Bourgeois, Baton Rouge, LA, for Plaintiff-Ap-pellee, Sears, Roebuck and Co.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   LSUSAN M. CHEHARDY, Judge.

These are two consolidated suits on open account by Sears, Roebuck and Company against Patricia Dennies. Dennies appeals a judgment against her in the amount of $10,020.07, plus legal interest, costs and attorney fees in the amount of 20% of all principal and interest due. We affirm.

The first suit (No. 03-CA-1160 on the docket of this Court, No. 51,713 in the district court) was filed on June 22, 1999. The petition alleged that Dennies was indebted to Sears in the amount of $4,723.78 on account number 06-59680-07348-6, with 6.73% interest accrued from May 10, 1999.

In the second suit (No. 03-CA-1161 in this Court, No. 51,801 in the district court), filed on July 9, 1999, the petition alleged Dennies was indebted to Sears in the amount of $5;296.29 on account number 06-58913-05723-3, with 6.73% interest accrued from May 21, 1999. Both petitions alleged defendant was liable for attorney fees in the amount of 25% of the total of both principal and interest, and for all costs.

Plaintiff filed requests for admissions with both petitions. Defendant timely answered with general denials and also denied the requested admissions. Thereafter the parties engaged in lengthy pretrial proceedings, including the filing of discovery requests, exceptions and motions, which have resulted in |sa voluminous record. The district court denied the motions for summary judgment and exceptions and eventually the matter went to trial.

EVIDENCE

The only witness for Sears was Martha Clayton, an employee of Sears’ legal management center in North Carolina, whose testimony was submitted via deposition for purposes of establishing that the records on which Sears relied were business records. Clayton testified to the usual business practices of the plaintiff, in which customers’ purchases and payments are entered electronically into the company’s computer records at the point of sale or time of payment.

Clayton testified that the account records produced in connection with her deposition showed that Account No. 06-59680-07348-6 was opened on May 1, 1993 and was a regular Sears revolving charge account. Account No. 06-58913-05723-3 was opened on September 1, 1996 and was a Sears Plus charge account, used mostly for big-ticket items. She was unsure whether the two accounts had the same terms. (For convenience, hereafter we refer to the accounts respectively as the Regular Account and the Plus Account.)

Clayton did not have copies of the original application agreement forms showing defendant’s signature. However, she produced an account agreement she said was basically the same as that which defendant would have received when the accounts were opened. The sample agreement in evidence provides for an annual interest rate of 21% on the unpaid balance and a 25% attorney fee.

Clayton said her records reflected that the unpaid balances on the accounts were $4,723.79 on the Regular Account and $5,296.29 on the Plus Account. The Regular Account was closed on September 23, 1999 and the Plus Account was closed on May 31, 1999 because both accounts were written off by Sears.

1 ¿Clayton’s record did not indicate that defendant ever disputed any of the charges shown on the statements, although the back of every monthly statement sent to a customer bears instructions on how to contest disputed charges.

Clayton admitted that some of the individual sales slips submitted in support of the itemized listings were duplicative of other sales slips included in the exhibits. She also admitted that some older sales slips are no longer available, because the sales slips are kept for a limited time, particularly if the charges have not been disputed. She was unable to explain why some of the sales slips bore no signature of defendant, although most of them did bear defendant’s signature. She stated there were no sales slips in the exhibit relating to the Plus Account.

Clayton admitted that the exhibits submitted with her deposition were given to her by counsel for Sears and that she first saw the records on defendant’s account several weeks prior to her first deposition, when she received them from Sears’ attorney. She was not personally familiar with defendant’s account and she herself had not accessed defendant’s account or produced the computer printouts that were placed in evidence. She admitted that interest rates and late fees can vary from account to account.

The only witness for Patricia Dennies was defendant herself. Defendant testified she is a 62-year-old widow, that her husband died in 1996, and her only income is a widow’s Social Security benefits. She admitted she did business with Sears during her marriage. She denied that she ever signed a contract with Sears or filled out an application. She said that Sears just sent her a credit card in the mail for her first account.

Defendant said the second account, the Plus account, was opened when she went to Sears the day before her husband’s funeral to buy things needed for the funeral. She said the salesperson told her she qualified for a card. She told the | ¡^salesperson she didn’t want it, but she later received one in the mail anyway. According to defendant, it was a special account just for the purchase of large items over $100.

Defendant admitted using the Plus account to purchase a computer that cost between $2,000 and $3,000, She denied purchasing items shown on some of the sales slips introduced by plaintiff, specifically a mechanical tool set, a bench, a bracelet, a scooter, a maintenance agreement, a screwdriver, a bikini, a handbag, Polo shorts and pants, repairs Department 98, stirrups, shoe care, three shirts, and photography service. She admitted, however, that she received a monthly statement from Sears and that she never disputed any of the items. She said the listings were in codes that she didn’t understand; they meant nothing to her. She paid whatever minimum monthly payment was listed on the statement and would pay more when she could.

Defendant admitted that she made purchases using both accounts. She said she never disputed any of the statements because after her husband died, “it was like [her] head was not attached to [her] body.” She went through severe grief, loneliness and fear, and her decisions were not made rationally. She said she “just tried to function every day” as best she could; she didn’t pay attention to anything except the part of the bill that said “amount due,” and that is what she paid. It didn’t enter her head to dispute the bill.

The trial court took the matter under advisement and ultimately rendered judgment in favor of Sears and against Den-nies, finding Dennies liable in the amount of $10,020.77, with legal interest from the date of judicial demand, for all costs, and for attorney’s fees in the amount of 20% of all principal and interest due.

In written Reasons For Judgment, the trial judge found that plaintiff carried its burden of proof to establish that defendant had an open account with plaintiff Rand also carried its burden of establishing a prima facie case of the accuracy of defendant’s open account. The court relied on plaintiffs introduction of a facsimile of the credit card agreement, plus testimony by Sears employee Martha Clayton that the original credit application was either lost or destroyed and that the agreement was consistent with the facsimile. The court found Clayton’s testimony, together with defendant’s admission in her original answer to the existence of the accounts and her use of the cards, was sufficient to meet plaintiffs burden of proof to establish that defendant had an open account.

The court further found that plaintiff had met its burden of establishing a prima facie case of the accuracy of defendant’s open account, by virtue of the testimony of Martha Clayton, because she was qualified to identify Sears’ business records as such, although she did not have personal knowledge of the account. The court held that defendant failed to rebut the prima facie case established by plaintiff because defendant produced no documented evidence to controvert the accuracy of the accounts and defendant never contested any of the charges shown on her statements prior to the filing of these suits. The court stated,

The credible testimony offered by plaintiff must prevail over the unsupported, self-serving testimony of the defendant. Nor do I find that defendant has presented any evidence that would put into serious question the accuracy of the account such that plaintiff should be required to produce signed individual sales receipts for each transaction.

On appeal, Dennies contends the trial court erred in finding that Sears established any claim on its contract or on open account in either of the cases. Specifically, Dennies asserts (1) that Sears failed to offer any evidence whatsoever relative to indebtedness under one of the accounts and (2) that the evidence as to indebtedness on the other account was insufficient; (3) that Dennies’ testimony that many of the alleged charges were incorrect established that Sears’ records were 17unreliable and, thus, the burden was shifted back to Sears to establish the correctness of its account; (4) that the interest rate and late charges are usurious; (5) that Dennies established payment in full of all lawful charges; and (6) that Sears is not entitled to recover attorney’s fees absent production of a written contract between the parties.

LAW AND ANALYSIS

Proof of Account and Amount Due

La.R.S. 9:2781 sets out procedures for suits on open account. It provides:

A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim lohen judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debt- or shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.
* * *
D. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, “open account” includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions.... [Emphasis added.]
E. As used in this Section, “person” means natural and juridical persons.

The court of appeal may not set aside the trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Furthermore, “where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or | Rclearly wrong.” Stobart v. State, 617 So.2d 880, 882-883 (La.1993). See Brightway Services, Inc. v. Chun, 03-281, p. 5 (La.App. 5 Cir. 6/19/03), 850 So.2d 864, 866.

We find no error in the trial court’s conclusion that defendant had accounts with plaintiff, considering defendant’s admission that she made charges on both the accounts. The definition of open account contained in the current version of La.R.S. 9:2781 is broader than that formerly defined in the jurisprudence. These accounts clearly fit within the statutory definition.

We find no merit to defendant’s contention that she established payment in full of all lawful charges. Defendant produced no cancelled checks or payment receipts; further, she admitted that she ceased making payments on the accounts when she could no longer afford to make the minimum payments. There was no proof that she paid the accounts in full, even considering her claim that she did not make some of the purchases included in the accounts balances.

The question is whether plaintiff properly proved that defendant owed the amounts claimed on each account — that is, whether the evidence submitted by plaintiff was sufficient to prove the amount awarded.

The witness laying the foundation for admissibility of business records need not have been the preparer of the records. The person who keeps the books and records and makes the entries need not testify if a person who is in a position to attest to the authenticity of the records is present to testify.... Nothing in the Code of Evidence specifically requires either that the foundation witness be able to personally attest to the accuracy of the information contained in the documents. Indeed, Article 803 specifically eliminates these requirements.

9Western Am. Spec. Transp. Servs., Inc. v. Chibberton, 97-102 (La.App. 5 Cir. 5/28/97), 695 So.2d 1059, 1062.

In proving a claim on open account, the plaintiff creditor must first prove the account by showing that the record of the account was kept in the course of business and by introducing supporting testimony regarding its accuracy. Once a prima facie case has been established, the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits.

National Gypsum Co. v. Ace Wholesale, Inc., 96-215, pp. 5-6 (La.App. 5 Cir. 11/26/96), 685 So.2d 306, 308-309, writ denied, 96-3055 (La.2/7/97), 688 So.2d 502.

Plaintiff established its business records practice by the testimony of Martha Clayton, who testified that the records were those kept in the regular course of Sears’ business and explained the method by which purchases and payments were recorded. Clayton stated although that no copy of the original credit application or contract was found, the agreement placed in evidence reflected the terms in effect on defendant’s accounts.

Although defendant challenges the validity of the facsimile agreement as applicable to her accounts, the trial court accepted it as sufficient proof of the terms of the account. Considering that defendant was unable to rebut plaintiffs evidence, the trial court did not err in finding that the plaintiff sufficiently proved the existence of the account, the terms of the account, and that the purchase and payment entries shown on the monthly summaries were made in the usual course of business.

Further, the requirement that a copy of invoices in support of the amount set forth in a written demand be sent along with the demand was deleted from the | inprovisions of La.R.S. 9:2781 by a 1987 amendment. Sears, Roebuck and Co. v. Richardson, 32,951, pp. 4-5 (La.App. 2 Cir. 4/5/00), 759 So.2d 190, 192.

Defendant never disputed any of the charges prior to being sued for nonpayment of the account. At trial she produced none of her own paperwork on the account, neither her statements nor can-celled checks and/or payment receipts. Like the trial judge, we find her testimony contesting certain items listed is self-serving. Pursuant to the manifest error rule, we find no basis on which to reverse the trial court’s credibility determination against her.

Interest Rate

The trial court disallowed defendant’s amended answer raising the affirmative defense of usurious interest rate. Accordingly, that issue is not before us on this appeal.

Attorney Fees

La.R.S. 9:2781 provides:
A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debt- or shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant.

Hence, contrary to defendant’s argument, plaintiff was not required to establish that defendant signed an agreement to pay attorney’s fees. Under La.R.S. 9:2781, all that was required was that plaintiff prove it made a demand on In defendant that correctly set forth the amount owed. See Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So.2d 1014, 1016 (La.1984).

The petition suffices as that demand. The trial court found that the amount plaintiff demanded in the two petitions was the amount due ($4,723.78 + $5,296.29 = $10,020.07). Hence, the court did not err in awarding attorney’s fees.

The real issue, however, was whether the court erred in the amount awarded. The statute provides the court may award “reasonable” attorney fees. The court awarded fees of 20% of the principal and interest due. Twenty percent of the principal would $2,004.01; we need not determine the amount of interest that would be due, but clearly that amount will be far less than the principal and, thus, 20% of it would be significantly less than 20% of the principal. The record before us establishes that the suit was vigorously contested by defendant, that the litigation took approximately three- and-one-half years to conclude, and that the pleadings filed by the parties make up a five-volume record.

Considering the complexity of the case, we do not find the court’s award of 20% of the $10,020.07 principal and of the interest due thereon unreasonable. Accordingly, we find no basis to disturb that ruling.

For the foregoing reasons, the judgment of the district court is affirmed. Costs of this appeal are assessed against the defendant-appellant, Patricia Dennies.

AFFIRMED.

      . A commonly-used analysis has been that to treat a matter as an open account certain factors must be considered, including whether there were other business transactions between the parties; whether a line of credit was extended by one party to the other; whether there are running or current dealings; whether there are expectations of other dealings. See Paddison Builders, Inc. v. Newpark Square One Condominium Ass’n, 03-144 (La.App. 5 Cir. 6/3/03), 848 So.2d 750, 753.


author: 11MARION F. EDWARDS, Judge.

text:
    Michelle DUFRENE v. BOISE CASCADE OFFICE PRODUCTS.
    No. 03-CA-1255.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.
    Sam N. Poole, Jr., E. June Wells-Foster, Alexandria, LA, for Appellant.
    Richard C. Trahant, Metairie, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   11MARION F. EDWARDS, Judge.

FACTS AND PROCEDURAL HISTORY

Appellee, Michelle Dufrene, filed a disputed worker’s compensation claim with the Office of Worker’s Compensation, District 7, for benefits against her employer, Boise Cascade Office Products (“Boise”), arising out of an alleged accident which occurred on June 12, 2002. In the course of discovery, Boise propounded two sets of Interrogatories and Requests for Production of Documents to Appellee, the first set on September 25, 2002, and the second set on April 1, 2003. On April 25, 2003, Ap-pellee provided incomplete answers to the first set of Interrogatories and did not respond at all to Boise’s Second set of Interrogatories. Trial on the matter was scheduled for April 28, 2003, but was continued. On that same date, Boise filed a Motion to Compel against Appellee to obtain responses to discovery.

A hearing on Boise’s Motion to Compel was scheduled for June 6, 2003. On June 5, 2003, however, Appellee provided Boise with supplemental answers to its first set of interrogatories and original answers to its second set of interrogatories. On June 6, when Boise failed to appear |sat its own Motion To Compel, the court awarded attorney’s fees to Appellee.

Boise thereafter filed a Motion for a New Trial and Rehearing on the issue of attorney’s fees, which was denied by the trial court. Boise timely filed the present appeal.

LAW AND ARGUMENT

On appeal, Boise’s lone assignment of error is that the trial court had no legal authority to award attorney’s fees to ap-pellee. We agree.

It is well settled that an award of attorney’s fees in a workers’ compensation matter is subject to the manifest error/clearly wrong standard of review.

The supreme court noted in Langley v. Petro Star Corp. of La.,

As a general rule, attorney fees are not allowed in Louisiana unless they are authorized by statute or provided for by contract. Sharbono v. Steve Lang & Son Loggers, 97-0110, p. 7 (La.7/1/97), 696 So.2d 1382, 1386. An award of attorney fees is a type of penalty imposed not to make the injured party whole, but rather to discourage a particular activity on the part of the opposing party.

In this case, in the absence of a contract, we first consider whether the attorney’s fees awarded by the court were authorized by statute. In regard to attorney’s fees related to Motions To Compel, La. C.C.P. art. 1469(4) provides the following instruction:

(4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, | including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
In this case the trial court gave the following explanation for its award of fees:
THE COURT:
Let the record reflect that this matter came for hearing today on a Motion to Compel. The Motion to Compel was filed by defense counsel, Mr. Poole. Let the record reflect that the court called the docket at 10:00 a.m. Mr. Poole is not present. That he had no prior contact with Mr. Trahant to prevent him from appearing for this Motion to Compel today. Therefore, it’s the opinion of the court that the Motion to Compel, the court has reviewed the memorandums in support of it and in opposition to the Motion to Compel, and the court is going to deny the Motion to Compel.
In addition to that, the court is going to assess attorney’s fees to be paid to Mr. Trahant in the amount of $350.00 by Mr. Poole.

As is apparent on the face of the record, we find that while the trial court would have been authorized to award attorney’s fees to Appellee after denying Boise’s Motion To Compel, the court failed to provide opportunity for hearing prior to assessing the fees, pursuant to La. C.C.P. art. 1469(4).

In its Reasons for Judgment, the trial court further stated:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Sam N. Poole, Jr. pay to Richard C. Trahant the amount of $350.00 based on Mr. Poole’s failure to attend the hearings on his own motions.

We And that there is no statutory basis for an award of attorney’s fees as stated by the trial court in its Reasons For Judgment.

Accordingly, for the foregoing reasons, the judgment of the trial court, as it pertains to the award of attorney’s fees, must be reversed. Costs of this appeal are assessed to appellee.

REVERSED.

      . Rapp v. City of New Orleans, 98-1714 (La.App. 4 Cir. 12/29/99), 750 So.2d 1130, writ denied, 00-0353 (La.4/7/00), 759 So.2d 761, citing Kim v. East Jefferson Hosp., 96-0838 (La.App. 1 Cir.2/14/97), 691 So.2d 127.

      . Langley v. Petro Star Corp. of La., 2001-0198 (La.6/29/01), 792 So.2d 721.


author: I JAMES L. CANNELLA, Judge.

text:
    Debra Still, Wife of Wilton BOURQUE, Jr. v. Wilton BOURQUE, Jr.
    No. 03-CA-1254.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Anthony T. Marshall, Anthony T. Marshall and Associates, Gonzales, LA, for Appellant.
    W. Donald Cashio, New Orleans, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   I JAMES L. CANNELLA, Judge.

Defendant, Wilton Bourque (Bourque) appeals from the trial court judgment granting sole custody of the minor child, Lance Bourque (Lance), to his mother, Plaintiff, Debra Still (Still). For the reasons which follow, we reverse in part and affirm in part.

The parties were married on July 9, 1977. Two children were born of the marriage, Chadwick Bourque, who is now a major and not part of this case and Lance Bourque, who is now approximately eleven years old. The parties separated on July 7, 1997 and a judgment of divorce was rendered on May 28, 1998. A consent judgment was entered regarding custody of the children and the parties were granted joint custody with Bourque designated as the domiciliary parent of the older child and Still designated as the domiciliary parent of the younger child. This judgment was amended a year later, designating Still as domiciliary parent of both children. On September 12, 2002, Still filed, among other things, a Motion to Change Custody, requesting sole custody of Lance. Bo-urque responded with his own motion for sole custody of Lance. The matter was heard on April 1, 2003 and taken under advisement. On June 6, 2003, the trial court rendered judgment with reasons granting Still’s motion to change custody and awarding her sole custody of Lance, with alternating weekend visitation for Bo-urque during the school year and |3the same holiday visitation. Bourque was also prohibited from telephoning his son in the mornings before school. Still was ordered to allow Bourque telephone access to the child in the evenings between 6:00 and 8:00 p.m. It is from this judgment that Bo-urque appeals. Still answered the appeal requesting damages for Bourque’s filing of a frivolous appeal.

On appeal Bourque assigns three errors. He first argues that the trial court erred in refusing to grant his request for an independent psychological evaluation. Bo-urque argues that the custody decision should not be based on the biased report by Mr. John Muggivan (Muggivan), a social worker who prepared a report and testified on behalf of Still. Bourque argued that an independent counselor should have been appointed to evaluate the case.

The trial court accepted Muggivan, “as an expert in the field of being a licensed clinical social worker.” However, the trial court knew that Muggivan had met with Lance and his mother approximately 15 times and had only met with Bourque five times, going to the weight of the evidence, but not making it inadmissible. Moreover, the trial judge opined that ordering an independent evaluation was nothing more than an abdication of his responsibilities, which often proves expensive to the parties. He held that he could make an independent evaluation based on the evidence presented and did not find it necessary to have someone else do it.

La. R.S. 9:331 on custody evaluations provides:

A. The court may order an evaluation of a party or the child in a custody or visitation proceeding for good cause shown. The evaluation shall be made by a mental health professional selected by the parties or by the court. The court may render judgment for costs of the evaluation, or any part thereof, against any party or parties, as it may consider equitable.
B. The court may order a party or the child to submit to and cooperate in the evaluation, testing, or | interview by the mental health professional. The mental health professional shall provide the court and the parties with a written report. The mental health professional shall serve as the witness of the court, subject to cross-examination by a party.

Clearly the language of the statute is permissive and not mandatory. The decision of whether a psychological evaluation should be ordered in a custody proceeding lies within the trial court’s discretion. Scott v. Scott, 95-0816 (La.App. 1st Cir.12/15/95), 665 So.2d 760, writ denied, 96-0181 (La.2/2/96), 666 So.2d 1106.

In this ease we find no abuse of the trial court’s discretion in refusing to order psychological evaluations of all the parties and the child. There was no showing made that any kind of psychological issues existed among the parties, their spouses or the child that needed expert psychological evaluation. We commend the trial judge for retaining his responsibility to evaluate the case himself, based on the evidence presented to him rather than turning it over to an independent evaluator.

Bourque’s real issue here is with the bias of Muggivan, who was working for Still. However, the trial court correctly noted that would go to the weight given the testimony. We fínd no error in this case in the trial court’s denial of Bourque’s request for appointment of an independent psychological evaluator.

Next, Bourque argues that the trial court erred in refusing to allow his 11 year old son to testify. Bourque stated that if Lance would have testified he would have said that he wanted to live with his father. Further, Bourque argued that the child was old enough to provide valuable information to the trial court in considering this matter.

Muggivan testified that he would recommend against Lance testifying, even in the judge’s chambers. Whatever Mug-givan’s biases may or may not be toward Bourque, there is no basis from which to conclude that his primary concern is not | .^Lance’s best interest. He has worked with Lance for some time and knows him well. Muggivan testified that the child was very anxious and stressed. Further, it would be very stressful and detrimental for the child to have to testify for or against either parent. He noted that Lance is trying to please both parents and requiring him to testify, even in chambers, would put undue pressure on him. Further, it was not disputed that if the child testified, he would say that he would prefer to live with his father. Whether or not to allow a child to testify in a custody proceeding is a matter of trial court discretion and we find no error in the trial court ruling considering the facts and circumstances of this case.

Finally, Bourque argues that the trial court erred in changing the joint custody arrangement that had been in existence for the past six years and granting Still sole custody of the child with him having alternating weekend visitation.

Still filed the initial request for change of custody, alleging that Bourque exhibited egregious behavior toward her and that Bourque makes disparaging comments to the child and in front of the child about her and encourages manipulative behavior on the part of the child that adversely affects his normal mental and social adjustment. Still alleged that Bourque encouraged the child to call 911 when it was unwarranted. Finally, she alleged that Bourque refused to give the child his prescribed medication.

Bourque filed a request for change of custody in response. He denied the allegations in Still’s petition and alleged that Still had allowed her husband, Richard Hamilton (Hamilton) to physically abuse Lance. Specifically, he alleged that Hamilton pulled Lance’s hair, causing him extreme pain so that Lance reported it to the school nurse the following day. He also alleged that Hamilton struck Lance with an automobile, causing the child to call 911 for assistance. Bourque alleged that Hamilton also pulled down Lance’s pants, exposing him to his mother and causing him embarrassment. Bourque alleged that Still and | (¡Hamilton have violent discussions and arguments in front of the child causing him mental anguish. He also alleged that Hamilton called the child a “dildo.” Bourque states that Still has put a “call block” on her home phone that prevents Bourque from telephoning his son. Finally, Bourque alleged that the child has expressed a preference to live with him.

At the hearing, in addition to some general character witnesses, the only witnesses to testify were the parties, their spouses and Muggivan. While reference was made by some of the witnesses to a report by Dr. Fontenelle and Dr. Lessor, neither is in the record.

Still and Hamilton admitted the hair pulling, driving the automobile into the child and pulling down his pants but attempted to explain the events. They testified that upon realizing the effect of the event on the child they would not do it again. Hamilton denied calling the child a “dildo” and they denied arguing in front of the child or using improper language. Still admitted that she blocked Bourque’s work number because of his numerous calls in the morning, which she considers disruptive to the child’s morning preparatory routine. She testified that Bourque would call 20 times in the morning and it was upsetting to Lance to hear the phone ringing, knowing it was his father. Still would not answer the phone, however. So when the answer machine picked up, Bo-urque would hang up and call back. She stated that she told Lance that if he got ready early, he could call his father. Still also testified that Bourque checks Lance out of school early as a matter of convenience, to make a 45 minute drive home. She stated that he checked the child out early 15 times, but did not have the school documentation to support this claim. She also testified that Bourque would not give Lance his prescribed medicine for his Attention Deficit Hyperactivity Disorder (ADHD).

Bourque testified that the hair, automobile and pants incidents were very upsetting to Lance. He testified that Lance had telephoned him about the 17automobile incident and had asked Bourque to call 911. Bourque stated that he told Lance he could not do that but if Lance felt afraid he should place the call himself. Lance called 911 following that incident. Bo-urque denied, as he was accused by Still, of encouraging Lance to call 911. He simply stated that he told Lance that if he felt afraid he should call 911. Bourque also testified that he did not think that his son had ADHD and did not think that he needed the medication. However, he testified that he spoke with Dr. Lessor, the prescribing physician, about the need for the medication and they had agreed that at different times Lance could not take the medicine. Bourque stated that if Dr. Lessor instructed him to give Lance the medicine, he did. Bourque also explained the sign outs as two medical appointments for himself after hurting his back and maybe one or two for Lance. The remainder were not sign outs during school time but following the end of school. He explained that you had to sign the child out if you did not want to wait the 20 minutes for bus loading and dismissal. As stated above, there was no school documentation to support or contradict either parties’ testimony. Bourque also testified that his number had been blocked at Still’s home so that he could not call his son. He stated that he often is not allowed to speak to his son when he calls at night. He is told that Lance is bathing or out. Bourque goes to work early in the morning so he calls Lance in the morning, after arriving at work, because he thought he could reach him then. Still would not allow him to talk to Lance or simply would not answer his calls. Finally, he found that his number had been blocked. Bourque denied talking negatively about Still either in front of or to Lance. Bourque also testified that he had requested on several occasions, both alone or with Muggivan, to meet with Hamilton so that they could discuss issues relating to Lance and Hamilton refused. Finally, Bourque testified that he and his current wife have a very positive relationship with Lance. He hunts and fishes Iswith Lance and they attend church weekly, which he does not attend with his mother.

Muggivan, the clinical social worker, testified that he was consulted by Still to treat Lance for behavior problems. He saw Lance and Still about 15 times and Bourque about five times. He testified that Lance was a very anxious child who seemed to be under a lot of stress. Mug-givan testified that, opposed to Still’s view, he did not think that Lance had ADHD. Rather, he believed that his behavior problems stemmed from his stress and that if the stress could be alleviated then he would not need the medication. Muggivan attributed some of the stress that Lance was under to the conflict between his mother and father, more particularly he stated, to Bourque’s unwillingness to accept the situation of being a separated parent. Muggivan felt that Bourque undermined Still’s authority with Lance as well as the authority of all adults in Lance’s life. Muggivan referred to a comment by Bourque in Lance’s presence that he thought the judge had made the wrong decision in the custody case. On cross examination, however, Muggivan admitted that part of Lance’s problems may be receiving passing grades but being retained in his same grade. Bourque disagreed with this decision. Muggivan admitted that he agreed with Bourque that this was detrimental to the child and could be causing or contributing to his stress. Muggi-van also admitted that he did not work with Bourque the way he worked with Still and her husband. He said he did not think that it was necessary since he was focused on improving Lance’s behavior in school. Muggivan also admitted that he was basing his opinions largely on information he had obtained from Still and accepted as true. For example, he attributed Lance’s improvement in school solely to Still but admitted that he based that on things he had been told about Bourque by Still. He did state that in an earlier session Bourque had expressed a negative attitude about everything, Still’s parenting, her choice in a mate, the school, the doctor, etc.

| aAlthough the trial court denied Bo-urque’s request to have Lance testify, it was not disputed that had he testified he would have stated that he preferred to live with his father.

In every custody case, the primary concern is the best interest of the child. La. C.C. art. 131. Each case must be viewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision which is in the best interest of the child. Anderson v. Anderson, 01-53 (La.App. 5th Cir.5/30/01), 788 So.2d 676; Remson v. Remson, 95-1951 (La.App. 1st Cir.4/4/96), 672 So.2d 409; Zanco v. Zanco, 97-342 (La.App. 5th Cir.11/12/97), 703 So.2d 745. While the best interest of the child remains the paramount concern in making custody determinations, that interest must be balanced with a parent’s right to equally share the physical custody of the child where feasible. Shambley v. Holmes, 02-116 (La.App. 5th Cir.5/15/02), 821 So.2d 21; DeGeorge v. Gilley, 97-387 (La.App. 5th Cir.10/28/97), 701 So.2d 1079.

When the custody order is by consent of the parties, and not a considered judgment made by the trial judge, the party seeking the change must show a material change in circumstances since the entry of the original decree and that the modification proposed is in the best interest of the child. Anderson, supra; Haik v. Haik, 94-563 (La.App. 5th Cir.12/14/94), 648 So.2d 1015.

La. C.C. art. 134 outlines the factors in determining the best interest of a child:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
11f|(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

Further, in determining what is the best interest of the child in a change of custody case, courts must examine all relevant factors including stability of environment, standard of living each parent can provide and the prior history of the child’s custody. Schuchmann v. Schuchmann, 00-094 (La.App. 3rd Cir.6/1/00), 768 So.2d 614; Roberie v. Roberie, 33,168 (La.App. 2nd Cir.12/8/99), 749 So.2d 849. Continuity and stability of environment are important to consider in child custody matters. Schuchmann, supra; Roberie, supra. A change from a stable environment should not be made absent a compelling reason. Day v. Day, 97-1994 (La.App. 1st Cir.4/8/98), 711 So.2d 793.

Viewing this case in light of the above principles, we find that the trial court erred in changing the former custody arrangement that had existed for the past six years. First and foremost, this record is barren of any showing of a material change in circumstances since entry of the original decree. The parents share custody of the child and have done so for the past six or more years. They apparently don’t do it well, since there appears to be a good bit of animosity existing between them, even after several years. Of course, the continued | -i t antagonistic behavior of both parents toward each other is not in the best interest of the child, but it also does not appear to be anything new to this situation. Moreover, Still alleged no change in circumstances and the trial court made no finding of a material change in the circumstances of the parties. Without a showing of a change in circumstances, which warrants a hearing on the request to change the custody arrangement, the ruling changing custody was not proper.

Furthermore, we feel compelled to add that, after considering the factors listed in La. C.C. art. 134, the record before us does not support the finding that changing custody and giving sole custody to the mother with limited visitation to the father is in the best interest of this child. It is apparent from the record that this case has been before the court previously and that it is possible that the trial judge knows more about this case than appears in this record. For example, reference was made during the hearing to an earlier report by Dr. Fontenelle, which is not in the record. However, as an appellate court we can do nothing other than base our decision on the record before us. We find, that the record in this case does not support a finding that a change of custody is in the best interest of Lance.

As stated above, the record makes it clear that both parties harbor animosity toward each other. For example, much was made of Bourque’s numerous morning calls, but the record also shows that he makes numerous calls because Still will not answer the calls. Still stated that a morning call is disruptive to Lance’s morning routine. She also stated that she told her son that if he got ready early he could call his father. We find that the repeated calls evidence as much animosity as refusing to answer them and using communication with a parent as a disciplinary tool or reward.

Most of the allegations in this case, on both sides, amount to nothing more than “he said/she said” with no outside testimony or documentation to prove or disprove the allegations. For example, Still said that Bourque makes derogatory | ^comments about her in front of Lance. Bourque denied that and presented witnesses who said they never heard him say anything bad about Still in front of Lance. Bourque alleged that Still and Hamilton have violent quarrels and use bad language in front of Lance. Still denied that.

Bourque testified about some inappropriate conduct by Hamilton towards Lance. No one disputes the occurrences or the impropriety. Still testified that Hamilton was told not to repeat the behavior and he has not.

There were allegations by Still that Bo-urque inappropriately checks Lance out of school early for his convenience. Bourque testified that the checkouts were for medical appointments or after the academic periods had ended. While we agree that checking the child out of school as a matter of convenience to get home early and not for a legitimate reason would .be inappropriate and send the wrong message to the child, there was no documentation in the record to support the claim or contradict Bourque’s explanation.

Muggivan concluded that Lance’s school improvement is attributable to Still. However, the underlying fact is that the child’s grades and behavior in school have improved under the present custody arrangement. There is no support in the record for the conclusion that time spent by Lance with his father during the school week is not in his best interest.

What is glaringly clear from this record is that neither of these parents are perfect. They both have good points and bad points and both seem to have a positive place in Lance’s life.

Still is a very devoted mother who has her child’s best interest at heart and is trying to do what is right for Lance. She is working hard with Lance and has attended sessions with Muggivan. However, we also find that Bourque plays an important role in Lance’s life as his father, fishing, hunting and attending church services together. Bourque was against holding Lance back, which Muggivan 113admits might be adding to his stress. Bourque also questions whether Lance has ADHD, a concern Muggivan likewise expressed.

Based on the foregoing and considering the factors listed in La. C.C. art. 134, we find that the record before us does not establish that it is in Lance’s best interest to change custody and award sole custody to Still. While we are mindful of the discretion afforded the trial court in custody cases, we nevertheless conclude that the judgment changing custody in this case from joint custody to sole custody in favor of Still was manifestly erroneous. That part of the judgment is set aside and custody reverts to that provided in the previous consent judgment. In addition, we recognize that visitation schedules are not static and sometimes must be altered in accord with the changing circumstances in a child’s life when it is in the child’s best interest. Therefore, at the request of either party the trial court should conduct an evidentiary hearing to review the visitation schedule and determine whether there has been a change in circumstances that would warrant a change in the visitation. schedule if it is in the best interest of the child. The other issues resolved in the trial court judgment were not contested on appeal and as such are final and affirmed.

Accordingly the judgment of the trial court is reversed insofar as it changed the previous joint custody judgment and awarded sole custody to Still. In all other respects the trial court judgment is affirmed. Still’s motion for damages for a frivolous appeal is denied. Costs of appeal are to be borne by each party.

REVERSED IN PART; AFFIRMED IN PART; AND MOTION DENIED.

      . Still, Plaintiff's maiden name, is the name used in the caption of the case. She divorced Bourque, remarried and now uses the name Hamilton. For consistency, we will use her name from the caption.

      . The judgment also resolved child support and contempt issues and assessed attorney fees of $400 and costs against Bourque, none of which are part of this appeal.


author: | aJAMES L. CANNELLA, Judge.

text:
    ACG MEDIAWORKS, L.L.C. v. Bruce Walter FORD, Walters Ford-Lincoln Mercury and Bruce Walters Ford Sales, Inc.
    No. 03-CA-978.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 30, 2004.

      Warren Horn, Joy Lyu Monahan, Heller, Draper, Hayden, Patrick & Horn, L.L.C., New Orleans, LA, for Appellant.
    Howard B. Kaplan, Bernard, Cassisa & Elliott, Metairie, LA, for Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS and WALTER J. ROTHSCHILD.
   | aJAMES L. CANNELLA, Judge.

The Plaintiff, ACG Media Works, L.L.C., appeals from a judgment granting declinatory exceptions of lack of subject matter and personal jurisdiction filed by the Defendants, Bruce Walters Ford, Walters Ford-Lincoln Mercury and Bruce Walters Ford Sales, Inc. (collectively Bruce Walters) and dismissing the Plaintiffs breach of contract suit. We affirm in part and reverse in part.

The Defendants own and operate a car and truck dealership located in Pikeville, Kentucky, with their principal place of business there. The Defendants conduct their business activities in Pikeville and have no dealerships in Louisiana. They do not market or solicit in Louisiana, maintain any offices or bank accounts in Louisiana, and do not derive any revenue from Louisiana.

The Plaintiff is an advertising and marketing consulting firm that provides specialized sales and management consulting, marketing strategies, and sales management skills to automotive dealers throughout the United States. It also provides specialized staffing of sales promotional events. It is a Louisiana limited liability company, operating, domiciled and having its registered office in Louisiana. Much of its early preparation and production of its services leading up to a contracted event are created and prepared in Louisiana.

In early June of 2002, the Defendants were interested in having a sales promotion event for their Ford dealership in Pikeville. Upon the recommendation of |4Big Gross.com, an automotive advertising promoter, the Defendants contacted the Plaintiff, a specialist in providing services for this type of event. The parties began negotiations by telephone and electronic communications. Shawn Burst, the President of the Plaintiff, and Kirby Walters Clark (Clark), the representative of the Defendants, exchanged telephone calls, facsimiles and e-mails. The contract was drafted in Louisiana and sent to Clark in Kentucky, who added an addendum, signed it and returned it to Louisiana for signature. The original contract contained a forum selection clause designating jurisdiction in Louisiana. The Defendants added an addendum to supercede certain provisions in the original contract, which included a forum selection and choice of law clause. The contract states that “Jurisdiction is Pikeville Kentucky” and “Kentucky law governs our agreement.” The contract was signed by the Plaintiff on June 14, 2002. Payment under the contract was conditioned on the satisfaction of certain goals and payment was made to the Plaintiff based on sales generated. The Plaintiff disputed the payment, contending that the sales were actually higher and that they are entitled to additional compensation.

On August 27, 2002, the Plaintiff filed suit for breach of contract against the Defendants in the 24th Judicial District Court for the Parish of Jefferson, State of Louisiana. In response, the Defendants filed the declinatory exceptions of lack of subject matter jurisdiction and lack of personal jurisdiction in November of 2002. A hearing was held in February of 2003. On February 28, 2003, the trial judge rendered a judgment granting the exceptions and dismissing the suit.

On appeal, the Plaintiff contends that the trial judge erred in granting the exceptions, asserting that the trial judge failed to conduct the proper inquiry to determine whether the assertion of personal jurisdiction comports with constitutional due process. Further, it contends that the trial judge erred by relying solely on the forum selection clause to resolve the issue, by concluding that the forum selection ^clause was enforceable and exclusive to Kentucky, and by finding that subject matter jurisdiction does not exist in Louisiana.

SUBJECT MATTER JURISDICTION

District courts have original jurisdiction of all civil matters, except as otherwise authorized by the Louisiana constitution or provided by law. La. Const. Art. 5, § 16(A)(1). “Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled.” La.C.C.P. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. La. C.C.P. art. 3. A cause of action alleging breach of contract, regardless of the contract’s subject matter, is a civil matter falling within our jurisdiction. A & L Energy, Inc. v. Pegasus Group, 00-3255, p. 12 (La.6/29/01), 791 So.2d 1266, 1275, cert. denied, 534 U.S. 1022, 122 S.Ct. 550, 151 L.Ed.2d 426 (2001); Levert v. University of Illinois at Urbana/Champaign ex rel. Bd. of Trustees, 2002-2679 (La.App. 1st Cir.9/26/03), 857 So.2d 611, 617-19. This is a breach of contract case. Thus, Louisiana courts have subject matter jurisdiction in this case and that part of the judgment granting the exception of lack of subject matter jurisdiction is reversed.

FORUM SELECTION

The contract here has forum selection and choice of law provisions. In general, forum selection clauses are legal and binding in Louisiana, except as specifically prohibited by law. A plaintiff trying to set aside such a clause has a [ (¡heavy burden. Pique’-Weinstein Pique’ Architects, Inc. v. New Orleans Aviation Bd., 99-1231, p. 4 (La.App. 5th Cir.4/25/00), 762 So.2d 76, 78; Digital Enterprises, Inc. v. Arch Telecom, Inc., 95-30 (La.App. 5th Cir.6/28/95), 658 So.2d 20. Such clauses are prima facie valid and should be enforced unless the resisting party clearly proves that enforcement would be unreasonable and unjust, or that the clause arises from fraud or overreaching, or that enforcement would contravene a strong public policy for the forum where the suit is brought. Pitts, Inc. v. Ark-La Resources, L.P., 30,836, pp. 2-3 (La.App. 2nd Cir.8/19/98), 717 So.2d 268, 269, citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972).

The Plaintiff asserts that enforcement of the forum selection clause in this case contravenes a strong public policy against such clauses and is unreasonable and unjust. It cites Tulane Indus. Laundry, Inc. v. Quality Lube & Oil, Inc., 00-0610 (La.App. 4th Cir.1/24/01), 779 So.2d 99. In that case, the forum selection purported to allow a Louisiana company to sue a Mississippi resident in Louisiana, even though the Mississippi resident had no minimum contacts with Louisiana and had not submitted to personal jurisdiction there. The Fourth Circuit held that the forum selection clause was enforceable. It cited La. Rev.Stat. 51:1407 [the Unfair Trade Practices and Consumer Protection Law] noting that the statute prohibits, as against public policy, the parties to a contract from agreeing that a particular court would have | jurisdiction to decide a contractual dispute when no minimum contacts existed in relation to the chosen court. The court found that the enforcement of the clause in that case would have been unreasonable.

R.S. 51:1407 was amended in 1997 to add a provision addressing venue when a solicitation is by mail, telephone, or any electronic communications and to add a prohibition against forum selection clauses. Although the amending act, Acts 1997, No. 943, § 1, indicates that the prohibition in R.S. 51:1407 against such clauses may have been included to apply specifically to mail, telephone and electronic solicitations, the Fourth Circuit extended the Act to non-telephone solicitors.

The trial judge found the case distinguishable. We agree. Here, unlike Tulane Indus. Laundry, Inc., the selected forum is Kentucky, the Defendant’s home state. There, the selected forum was the plaintiffs home state. Obviously, the question of minimum contacts in Kentucky is not at issue here. The Defendant in orn-ease has minimum contacts in its home state of Kentucky, as does the Plaintiff. Thus, we agree with the trial judge that the Plaintiffs reliance on that case to invalidate the forum selection clause is misplaced.

While we acknowledge that the preparatory work for the sales event in Kentucky necessitated intrastate telephone and electronic communications between the two parties, the end result was the sales promotional event at the car dealership in Kentucky. Everything else relating to the sales event |soccurred in Kentucky. The only contact the Defendants had with Louisiana was this contract. In addition, the Plaintiff is a sophisticated business entity. It signed the contract after the Defendants specifically changed the selected forum from Louisiana to Kentucky. The Plaintiff specifically agreed that Kentucky law would apply. The Plaintiff knew or should have known and recognized the implications of agreeing to litigate in Kentucky when it signed the contract. For these reasons, we find that enforcement of the forum selection clause in this contract is reasonable and just under the facts before us.

The Plaintiff argues alternatively that the clause does not preclude the suit being brought in Louisiana. We disagree. The contract states that “Jurisdiction is Pike-ville Kentucky” and “Kentucky law governs our agreement.” It is evident that the parties intended any disputes to be resolved in Kentucky by Kentucky law. Thus, we find that the forum selection clause is enforceable.

PERSONAL JURISDICTION

Although we find that the forum selection clause is enforceable, we also have reviewed the case for constitutional due process and conclude that Louisiana does not have personal jurisdiction over the Defendants.

The Louisiana long-arm statute, La.R.S. 13:3201, provides for the exercise of personal jurisdiction over a nonresident defendant. R.S. 13:3201 A(l) and B state that:

A. A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from any one of the following activities performed by the nonresident:
(1) Transacting any business in this state.
1 qB. In addition to the provisions of Subsection A, a court of this state may exercise personal jurisdiction over a nonresident on any basis consistent with the constitution of this state and of the Constitution of the United States.

In A & L Energy, Inc., the Louisiana Supreme Court noted that by enacting La. R.S. 13:3201(B), the limits of the Louisiana long-arm statute have become coextensive with the limits of constitutional due process. “Thus, the sole inquiry into jurisdiction over a nonresident is a one-step analysis of the constitutional due process requirements.” A & L Energy, Inc., 00-3255 at 4, 791 So.2d at 1270.

Under International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) and its progeny, personal jurisdiction over a nonresident defendant requires that the defendant “have certain minimum contacts with [the state] such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” This fundamental test to satisfy constitutional due process requires that a court evaluate the quality and nature of the defendants’ activities in the forum state to determine whether such contacts justify the state’s exercise of its judicial power over the person. Id. at319-21, 66 S.Ct. at 160; A & L Energy, Inc., 00-3255 at 4, 791 So.2d at 1270-71.

Constitutional Due Process

The test for constitutional due process has two parts. A & L Energy, Inc., 00-3255 at 4, 791 So.2d at 1270-71. The first part requires minimum contacts with the state. The minimum contacts prong is satisfied by a single act or actions by which the defendant “purposefully avails itself of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528 (1985); Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1239, 2 L.Ed.2d 1283 (1958); A & L Energy, Inc., 00-3255 at 5, 791 So.2d at 1271. The nonresident’s “purposeful availment” must be such that the defendant “should 1 inreasonably anticipate being haled into court” in the forum state. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980); A & L Energy, Inc., 00-3255 at 4, 791 So.2d at 1270-71. This requirement ensures that the nonresident defendant will not be “haled into a jurisdiction solely as a result of a random, fortuitous, or attenuated contact, or by the unilateral activity of another party or a third person.” A & L Energy, Inc., 00-3255 at 5, 791 So.2d at 1271.

The second part of the due process test involves fairness. “Even when minimum contacts exist, the exercise of personal jurisdiction over a nonresident defendant will fail to satisfy due process requirements if the assertion of jurisdiction offends ‘traditional notions of fair play and substantial justice.’ International Shoe, 326 U.S. at 316, 66 S.Ct. at 158.” A & L Energy, Inc., 00-3255 at 5, 791 So.2d at 1271.

Specific versus General Jurisdiction

There is a distinction between general [personal] jurisdiction and specific [personal] jurisdiction. A & L Energy, Inc., 00-3255 at 5, 791 So.2d at 1271; de Reyes v. Marine Management and Con- suiting, Ltd., 586 So.2d 103. The forum state has specific jurisdiction over a nonresident when that defendant has purposefully directed its activities at residents of the forum state and the litigation results from alleged injuries that arise out of or relate to those activities. A & L Energy, Inc., 00-3255 at 5-6, 791 So.2d at 1271; Burger King, 471 U.S. at 473 n. 15, 105 S.Ct. at 2182 n. 15. General jurisdiction attaches when the nonresident defendant’s contacts with the forum state, although not related to the plaintiffs cause of action, are continuous and systematic. A & L Energy, Inc., 00-3255 at 6, 791 So.2d at 1271; Burger King, 471 U.S. at 473 n. 15, 105 S.Ct. at 2182 n. 15. However, this classification is only used as an analytical tool to “catorgorize (sic) the degree of | t interrelation between the defendant’s activities, the forum, and the cause of action.” A & L Energy, Inc., 00-3255 at 6, 791 So.2d at 1271. The two-part due process evaluation, minimum contacts and fairness, must still be conducted according to the particular facts of each case. Id.; de Reyes, 586 So.2d at 109.

In this case, the parties agree that general jurisdiction does not apply because the Defendants’ only contacts in Louisiana were related to the single contract for the Kentucky sales promotion disputed in this lawsuit.

A) Minimum Contacts

The Plaintiff argues that contacts between the parties through the means of telephone and electronic communications (fax and e-mail) constitute minimum contacts.

In contract disputes, the exercise of personal jurisdiction requires an evaluation of the following factors surrounding the contract and its formation: (1) prior negotiations between the parties; (2) contemplated future consequences of the contract; (3) the terms of the contract; and (4) the parties’ actual course of dealing. A & L Energy, Inc., 00-3255 at 6, 791 So.2d at 1271; See Burger King, 471 U.S. at 477-79, 105 S.Ct. at 2184-2186. An individual’s contract with an out-of-state party alone cannot establish minimum contacts in the home forum. A & L Energy, Inc., 00-3255 at 7, 791 So.2d at 1272.

Here, the parties utilized telephone and electronic communications to negotiate and finalize the contract, to sign the contract and to prepare for the sales event. No one from the Defendants’ companies came to Louisiana prior to or during the event. Although the contract negotiations involved communications in Louisiana, the contemplated future consequences of the contract was the sales event in Kentucky, the terms of the contract provided that Kentucky law and the forum would be Kentucky, and the parties’ actual course of dealing was aimed at the event in Kentucky. The only reason that Louisiana was | ^involved was because it is the location of the Plaintiffs business. The Defendants did not “purposefully avail itself of the privilege of conducting activities within this state and did not reasonably anticipate being “haled into court” in Louisiana. Thus, we find that there are insufficient contacts with Louisiana for this State to obtain personal jurisdiction over the Defendants.

Nevertheless, even if there are “minimum contacts” sufficient for due process, the Defendants have shown that it would be unfair and unjust to force them to litigate the matter in Louisiana.

B) Fair Play and Substantial Justice

If the plaintiff meets his burden of proving minimum contacts, the burden shifts to the defendant to prove that the jurisdiction would be so unreasonable in light of “traditional notions of fair play and substantial justice” to overcome the presumption of reasonableness created by the defendant’s minimum contacts with the forum, de Reyes, 586 So.2d at 107; A & L Energy, Inc., 00-3255 at 11, 791 So.2d at 1274.

In determining the issue of fundamental fairness, we must examine (1) the defendant’s burden; (2) the forum state’s interest in the dispute; (3) the plaintiffs interest in convenient and effective relief; (4) the judicial system’s interest in efficient resolution of controversies; and (5) the state’s shared interest in furthering fundamental social policies. Those considerations sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than that required otherwise. The fairness component is comprised mainly of the burden on the defendant to defend a suit in the forum minus the interests of the plaintiff and the state to have the suit litigated in the forum.

A & L Energy, Inc., 00-3255 at 11, 791 So.2d at 1274.

Applying those factors to this case, we conclude that, given the lack of or minimal contacts in Louisiana, the Defendants burden of litigating in Louisiana is greater than 1 ^Louisiana’s interest in the dispute, the Plaintiffs interest in convenient and effective relief, the judicial system’s interest in efficient resolution of controversies, and Louisiana’s shared interest in furthering fundamental social policies. Thus, we find that the assertion of Louisiana jurisdiction over these Defendants offends “traditional notions of fair play and substantial justice,” and that they have met their burden of overcoming the “presumption of reasonableness created by the defendant’s minimum contacts with the forum.” Id..

Accordingly, the judgment granting the exception of lack of subject matter jurisdiction is vacated and reversed and the exception is denied. The judgment granting the exception of lack of personal jurisdiction is affirmed. Costs of this appeal are to be paid by the Plaintiff.

JUDGMENT REVERSED IN PART AND AFFIRMED IN PART

      . We note that La.C.C.P. art. 932 provides that, when the grounds of the declinatory exception can be removed, the judgment sustaining the exception must allow the plaintiff an opportunity to remove the objection. However, the grounds of the objection cannot be removed in this case, so a remand for that purpose would be fruitless.


author: JjLOLLEY, J.

text:
    Darlene JOHNSON, et al., Plaintiff-Appellant v. CITY OF MONROE, Defendant-Appellee.
    No. 38,388-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2004.

      Crawford & Anzelmo, by Brian E. Crawford, Monroe, for Appellant.
    Nanci Summersgill, City Attorney, La-koshia R. Roberts, Assistant City Attorney, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   JjLOLLEY, J.

This is a personal injury suit arising out of a trip and fall accident on city property in Monroe, Louisiana. Darlene and Prentice Johnson (the “Johnsons”) appeal from a judgment of the Fourth Judicial District Court in Ouachita Parish, State of Louisiana in favor of the City of Monroe (the “City”). For the following reasons, we affirm.

FACTS

On the night of September 25, 2001, Darlene Johnson tripped and fell in a grassy area in front of Monroe City Court after allegedly stepping into a “hole,” (as characterized by the Johnsons) while leaving the annual ArkLaMiss Fair (the “fair”). At the time of the accident, she was accompanied by her two children and friends. Mrs. Johnson’s entourage had attended the fair for several hours. At approximately 10:15 p. m., Mrs. Johnson took a short cut back to the car through a grassy area when the accident occurred. As a result, Mrs. Johnson suffered an avulsion fracture of her left ankle requiring two surgeries and rehabilitation. Subsequently, she and her husband, Prentice Johnson filed this lawsuit against the City.

In that lawsuit, the Johnsons alleged that Mrs. Johnson sustained her injury on property owned and maintained by the City, which is therefore negligent pursuant to La. C.C. art. 2315, art. 2317 and/or art. 2317.1. They contended that Mrs. Johnson tripped in a four-inch hole, the City had actual or constructive knowledge of the hole’s existence, and the hole posed an unreasonable risk of danger. They further argued that the failure of the City to repair the hole or divert the thousands of pedestrians away from the hole was the cause-in-fact of the injury sustained by Mrs. Johnson. The | {.Johnsons also argued that the hole was not visible to pedestrians at night. Finally, they averred that the City’s investigator, Mike Shore (“Shore”), stated that liability was “clear” and assured the Johnsons that their claim would be paid.

Conversely, the City maintained that Mrs. Johnson was contributorily negligent, because she chose to walk in the grass at night even though there were paved sidewalks which would have led her to and from the fair. The City disputes the John-sons’ characterization of the site of the accident as a hole, and it maintains instead that it was a “depression or sloping indentation.” The City further contends that the overall evidence does not support the Johnsons’ assertion that the accident site was a “defective hole,” specifically pointing to inconsistent witness testimony. Furthermore, the City disputes the Johnsons’ assertion that Shore stated that the City would pay the claim. Nor does it agree with the Johnsons’ claim that Shore’s setting of reserves was an admission of liability on the City’s part. Additionally, the City contends the Johnsons have not met the burden of proof that the City knew or should have known of the defect to assert negligence liability under La. C.C. art. 2315 and/or strict liability under La. R.S. 9:2800. Finally, and in the alternative, the City contends that it is entitled to immunity pursuant to La. R.S. 9:2798.1.

The parties do not dispute that the City had custody of the accident location and that the City surveyed and inspected the areas surrounding the fairgrounds for possible dangers prior to and during the fair. The parties agree that Mrs. Johnson fell and sustained an injury while traversing a | ¡¡grassy area in front of Monroe City Court; that thousands of people attended the fair; and that although hundreds of people traversed the grassy area traveled by Mrs. Johnson, she was the only one who reported having an accident.

After a trial of the matter, judgment was rendered in favor of the City. In that judgment, the trial court stated, “... that with regard to the facts of this case, the ‘depression’ or ‘indentation’ at issue did not rise to the level of being unreasonably dangerous as required by strict liability or negligence theories pursuant to the applicable Louisiana Civil Code articles and jurisprudence. This appeal by the Johnsons ensued.

DISCUSSION

On appeal, the Johnsons raise one assignment of error contending the trial court erred in finding that the depression or indentation was not unreasonably dangerous. For the following reasons, we disagree.

Specifically, as to strict liability claims against a public body, such as a municipality, La. R.S. 9:2800 applies and it provides as follows, in pertinent part:

A. A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of buildings within its care and custody.
C. Except as provided for in Subsections A and B of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
|4P. Constructive notice shall mean the existence of facts which infer actual knowledge....

A plaintiff must establish the following elements to prevail on a claim against a public entity, such as the City, based on either negligence or strict liability: (1) the entity’s custody or ownership of the defective thing; (2) the defect created an unreasonable risk of harm; (3) the entity’s actual or constructive notice of the defect and failure to take corrective action within a reasonable time; and, (4) causation. See, Joseph v. City of New Orleans, 2002-1996 (La.App. 4th Cir.03/05/03), 842 So.2d 420; Oster v. Dep’t of Transp. & Dev., State of La., 582 So.2d 1285, 1288 (La.1991).

Generally, regarding claims of liability, Louisiana C.C. art. 2317.1 provides, in pertinent part, as follows:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

This article effectively turns strict liability into negligence claims. Reitzell v. Pecanland Mall Associates, Ltd., 37,524 (La.App.2d Cir.08/20/03), 852 So.2d 1229; Solito v. Horseshoe Entertainment, 36,667 (La.App.2d Cir.12/18/02), 834 So.2d 610. Additionally, article 2317.1 actions require proof that the defendant had custody of the thing causing the injury, that the thing contained a defect, that is, a condition creating an unreasonable risk of harm, and that the defective condition caused plaintiffs injury. Reitzell, 5 supra; Davis v. Diamond Shamrock Refining and Marketing Co., 34,309 (La.App.2d Cir.12/06/00), 774 So.2d 1076.

There is no fixed rule for determining whether the thing presents an unreasonable risk of harm. The trier of fact must balance the gravity and risk of harm against the individual and societal rights and obligations, the social utility, and the cost and feasibility of repair. Simply put, the trier of fact must decide whether the social value and utility of the hazard outweigh, and thus justify, its potential harm to others. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.03/04/98), 708 So.2d 362. The concept of whether a defect presents an unreasonable risk of harm, which requires a balancing of the risk and utility of the condition, is not a simple rule of law which can be applied mechanically to the facts of the case. Reitzell, supra; Solito, supra.

The degree to which a danger is evident to a potential victim is one factor in determining whether the condition is unreasonably dangerous. See Joseph v. City of New Orleans, supra; Williams v. City of Baton Rouge, 2002-0682 (La.App. 1st Cir.03/28/03), 844 So.2d 360; Shavers v. City of Baton Rouge, 2000-1682 (La.App. 1st Cir.09/28/01), 807 So.2d 883, unit denied, 2001-2848 (La.01/04/02), 805 So.2d 207. The accident history of the defect is also a relevant consideration in the unreasonable risk evaluation. Reed, supra; Boyle v. Board of Sup’rs, Louisiana State University, 96-1158 (La.01/14/97), 685 So.2d 1080. The Boyle court found the risk of injury was not great because the evidence showed that the plaintiff was the only person ever reported to have fallen at that location despite it being a high traffic area.

Un Reed, the supreme court applied an unreasonable risk of harm analysis and noted that, “Because of the plethora of factual questions and other considerations involved, the issue [of whether an unreasonable risk of harm exists] necessarily must be resolved on a case-by-case basis.” In a similar vein, this court stated “the determination that a defect presents an unreasonable risk of harm predominantly encompasses an abundance of factual findings, which differ greatly from case to case. The unreasonable risk of harm criterion entails a myriad of considerations and cannot be applied mechanically.” Johnson v. Brookshire Grocery Co., 32,770 (La.App.2d Cir.03/01/00), 754 So.2d 346, writ denied, 2000-0938 (La.05/26/00), 762 So.2d 1107.

Moreover, this court recognized in Wood v. Cambridge Mutual Fire Insurance Company, 486 So.2d 1129, 1133 (La.App. 2d Cir.1986) that:

The yard of a residence is not intended or expected to have a completely “tabletop” smooth surface. Yards usually present minor hazards or conditions which could cause an unobservant and inattentive person to trip and fall. Yards can and usually do have irregularities and minor obstacles such as depressions, drains, faucets, trees, shrubs, and tree roots and are not intended or designed for use as a walkway without observation and care as are sidewalks and designated walkways. Such conditions do not amount to defects that present an unreasonable risk of injury to tenants.

An appellate court cannot disturb the factual findings of the trial court in the absence of manifest error. Hope v. City of Shreveport, 862 So.2d 1139, 1144 (La.App.2d Cir.12/17/03); Currie v. Myers, 32,-633 (La.App.2d Cir.01/26/2000), 750 So.2d 388, writ denied, 2000-0665 (La.03/17/00), 756 So.2d 316. On appeal, facts are reviewed to determine whether the trial court’s judgment was manifestly erroneous, clearly wrong [ 7based on the evidence, or clearly without evidentiary support. Hope, supra; LeBlanc v. Stevenson, 2000-0157 (La.10/17/00), 770 So.2d 766; Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, 93-3110, 93-3112 (La.07/05/94), 639 So.2d 216. When testimony on an issue conflicts, reasonable evaluations of credibility and inferences of fact should not be disturbed on review. Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the case sub judice, there is no dispute between the parties that the City had custody of the accident site and that Mrs. Johnson fell and injured herself at that site; thus, we must determine if the trial court committed manifest error in finding that the indentation was not an unreasonable risk of harm. The instant case concerns an accident on a grassy area on a public domain, not a concrete pathway nor a residential grassy area. Nevertheless, the jurisprudence cited above is applicable, by analogy, in determining whether the evidence in this case supports the trial court’s finding that no unreasonable risk of harm existed.

As discussed herein, the duty owed by the City to persons on its property is governed by a standard of reasonableness. The owner of a premise cannot be held responsible for all injuries resulting from any risk posed by its property, only those presenting an unreasonable risk of harm to others. See, Wiley v. Sanders, 37,077 (La.App.2d Cir.06/13/03), 850 So.2d 771, writ denied, 2003-1986 (La.10/31/03), 857 So.2d 487. Here, the evidence supports a finding that the City acted reasonably to protect patrons of the fair as they traveled to and from the event. Specifically, a review of the record indicates that the Monroe Police Department conducted a |sthorough survey of the surrounding properties prior to and during the fair on behalf of the City. Captain Jimmy Fried testified that prior to Mrs. Johnson’s fall, he as well as other city police officers inspected the grounds for potential hazards. Said inspection did not indicate that the site of the indentation was readily noticeable. Moreover, it is also noteworthy that thousands of other people attended the fair during the three day period with several hundred people traveling the same grassy area without a reported incident. It is also reasonable to expect that a grassy area would not always be a “tabletop” smooth surface. See, Wood, supra. Thus, the overall evidence, particularly the photographs relied upon by the trial court, does not support a finding that the site of the accident was an obvious defect that would have alerted the City of a potential hazard. So considering, the trial court found that the site was more a sloping indentation rather than a defective hole, as characterized by the Johnsons, and that this indentation did not present an unreasonable risk of harm. Accordingly, after review of all the factors involving this incident, we conclude that the trial court was not manifestly in error and reasonably determined that the site of Mrs. Johnson’s fall did not rise to the level of an unreasonable risk.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s decision. Costs of this appeal are assessed to the Johnsons.

AFFIRMED.