text:
    STATE of Louisiana v. Roderick MITCHELL.
    No. 04-KA-136.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 29, 2004.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Anne Wallis, Donald A. Rowan, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Holli Herrle-Castillo, Louisiana Appellate Project, Marrero, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and MARION F. EDWARDS.
   SOL GOTHARD, Judge.

In this criminal matter defendant, Roderick Mitchell, appeals his conviction and sentence on a charge of possession of cocaine in violation of La. R.S. 40:967(C). For reasons that follow, we affirm.

The record shows that defendant originally entered a not guilty plea at his arraignment, and filed a motion to suppress the evidence. After the motion to suppress was denied, defendant withdrew his not guilty plea and entered a plea of guilty pursuant to State v. Crosby, 338 So.2d 584 (La.1976). Subsequently, defendant was sentenced to serve five years at hard labor. The State filed a bill of information alleging that defendant was a second felony offender. Defendant stipulated to the multiple bill allegation and admitted to being a second felony offender. In so doing he again reserved his right to appeal the denial of the motion to suppress the evidence pursuant to State v. Crosby, supra. The trial court vacated the original sentence and re-sentenced defendant to imprisonment at hard labor for five years to run concurrent with his parole violation. Defendant filed a timely appeal that was granted.

[¡¡At the suppression hearing, Jefferson Parish Sheriffs Office Deputy A.J. Thibo-deaux of the Street Crimes Unit testified that, on June 21, 2003, at 8:52 p.m., he and Deputy Guillot, his partner, were on patrol. As they turned left onto Cooper Street from Whitney Avenue, they slowed down to wait for two black males, later identified as defendant and Jahmal Tipado, to walk across Cooper Street from a corner grocery store toward an apartment complex.

Deputy Thibodeaux explained that it was getting dark, but that the grocery store and the apartment complex were lit up. He recalled that, as the two pedestrians made the turn onto Cooper Street, defendant and Mr. Tipado looked back at the officers’ vehicle. As defendant approached the side of the street toward a grassy area, he threw an object toward the apartment complex and continued to walk.

Deputy Thibodeaux testified that he was within ten feet behind defendant when he saw defendant throw the object. Because they were in a high narcotic, high crime area, and because they were familiar with such circumstances, Deputy Thibodeaux thought he had reasonable suspicion • to stop defendant and retrieve the object. Deputy Thibodeaux explained that shortly before this occurred, he had stopped persons (like defendant) who threw down objects that he believed to be narcotics. He further testified that such activity was consistent with his other arrests and the nature of the area.

Deputies Thibodeaux and Guillot exited the vehicle. Deputy Thibodeaux detained the two black males and filled out identification cards on them while Deputy Guillot recovered the object, which tested positive at the scene for powdered cocaine.

Sergeant Kevin Guillot testified at the suppression hearing, and his testimony largely corroborated that of Deputy Thibo-deaux. Sgt. Guillot testified that the two men were walking across the street and that once they approached the | ¿grassy area between the sidewalk and the street, defendant dropped something to the ground “very discreetly.” Sgt. Guillot did not know what the object was, but he believed it was contraband based on defendant’s furtive movements, his nervous actions walking across the street, his looking back at Sgt. Guillot once they got across the street, his hurried step afterwards, and that defendant said something to the man with whom he was walking. Sgt. Guillot stated that he and Deputy Thibodeaux were both uniformed and clearly visible in their car as police officers.

Sgt. Guillot exited the vehicle and walked right over and retrieved the object. He explained that he never lost sight of the object, that he knew exactly where it was in the grass, and that there was nothing else around it.

Jahmal Tipado, who was called as a witness by the defense, testified that on the night in question, he and defendant left the store and were walking across the street and talking. When they got to the other side of the street, the police pulled in front of them. At that time, defendant was standing in the grass and Mr. Tipado was standing on the curb. The officers told Mr. Tipado to put his drink down, and they handcuffed him.

The officers subsequently picked up some drugs approximately eleven or twelve feet from where defendant and Mr. Tipado were standing and questioned them about possession of the contraband. Mr. Tipado testified that he did not see defendant drop anything to the ground. Mr. Tipado testified that he always saw police officers in the area, which he admitted was a high crime area.

The only assignment presented for our review concerns the denial of the motion to suppress the evidence. In that regard defendant argues the trial court should have suppressed the evidence because the officers did not have reasonable suspicion to stop him. He asserts that the officers could not identify the object that |she allegedly dropped, and that there was no indication that the object was contraband.

Additionally, defendant argues that the testimony of Sgt. Guillot and Deputy Thi-bodeaux was inconsistent, in that Sgt. Guil-lot testified that defendant discreetly dropped the object, whereas Deputy Thi-bodeaux testified that defendant threw _ down the object. Defendant also asserts that the officers could not see what they claimed to have seen because it was dark outside, and because they were at least ten feet away from him at the time.

Finally, defendant refutes the officers’ contention that he dropped the object after observing them in the police car. He explains that he could not tell that the persons inside the car were police officers or that the officers were even inside a police car, because it was dark outside, and because the car was unmarked and had tinted windows.

The State responds that the officers had reasonable suspicion to justify a stop of defendant, that there was no unlawful actual or imminent actual stop of defendant, and that the difference between the officers’ testimony was irrelevant.

The Fourth Amendment to the United States Constitution and Article I, Section 5 of the Louisiana Constitution prohibit unreasonable searches and seizures. However, the right of law enforcement officers to stop and interrogate one reasonably suspected of criminal conduct is recognized by La.C.Cr.P. art. 215.1, as well as state and federal jurisprudence. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984).

The right to make an investigatory stop and question the particular individual detained must be based upon reasonable suspicion to believe that he has been, is, or is about to be engaged in criminal activity. State v. Miskel, 95-584 (La.App. 5 Cir. 1/30/96), 668 So.2d 1299,1302. Reasonable suspicion is something | fiIess than probable cause and is determined under the facts and circumstances of each case by whether the officer had sufficient facts within his knowledge to justify an infringement on the individual’s right to be free from governmental interference. State v. Sanders, 97-892 (La.App. 5 Cir. 3/25/98), 717 So.2d 234, 240, writ denied, 98-1163 (La.9/25/98), 724 So.2d 774.

When determining whether an investigatory stop was justified by reasonable suspicion, a reviewing court must consider the totality of the circumstances, “giving deference to the inferences and deductions of a trained police officer.” State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1049; State v. Martin, 99-123 (La.App. 5 Cir. 6/1/99), 738 So.2d 98, 101. The reputation of an area as one of high crime is an articulable fact upon which an officer may legitimately rely in making a determination as to reasonable cause for an investigatory stop. State v. Barney, 97-777 (La.App. 5 Cir. 2/25/98), 708 So.2d 1205, 1207. Other factors that may support reasonable suspicion for an investigatory stop are an officer’s experience, his or her knowledge of recent criminal patterns, and his or her knowledge of an area’s frequent incidence of crimes. State v. Martin, 738 So.2d at 102.

The determination of reasonable grounds for an investigatory stop, or probable cause for arrest, does not rest on the officer’s subjective beliefs or attitudes, but turns on a completely objective evaluation of all the circumstances known to the officer at the time of his challenged action. State v. Davis, 02-1008 (La.App. 5 Cir. 2/25/03), 841 So.2d 952, 958, writ denied, 03-0948 (La.11/7/03), 857 So.2d 516, citing State v. Kalie, 96-2650 (La.9/19/97), 699 So.2d 879, 880, per curiam and State v. Hill, 01-1372 (La.App. 5 Cir. 5/15/02), 821 So.2d 79, 83.

In considering those circumstances, a reviewing court should give deference to the inferences and deductions of a trained police officer “ ‘that might well elude an untrained person.’ ” State v. Davis, 841 So.2d at 958, citing State v. Huntley, 97-0965 (La.3/13/98), 708 So.2d 1048, 1049 (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

Evidence recovered as a result of an unconstitutional search or seizure is inadmissible. Consequently, property abandoned by an individual and recovered by the police as a direct result of an unconstitutional seizure may not be used in a subsequent prosecution. State v. Tucker, 626 So.2d 707, 710 (La.1993). If, however, property is abandoned prior to any unlawful intrusion into a citizen’s right to be free from governmental interference, then the property may be lawfully seized and used in a resulting prosecution. Id. In this latter situation, the citizen has no reasonable expectation of privacy and there is no violation of his custodial rights. Id. Because these rules of inadmissibility are intended to protect individuals from unwarranted, forcible governmental interference, “ ‘it is only when the citizen is actually stopped without reasonable cause or when a stop without reasonable cause is imminent that the ‘right to be left alone’ 'is violated, thereby rendering unlawful any resultant seizure of abandoned property.’ ” Id. at 710-11 (quoting Belton, 441 So.2d 1195, 1199 (La.1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2158, 80 L.Ed.2d 543 (1984) (emphasis in original)).

In Tucker, the Louisiana Supreme Court, adopting the U.S. Supreme Court’s pronouncement in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), held that an individual has been “actually stopped,” i.e., seized, for purposes of La. Const, art. I, § 5 when he submits to a police show of authority or when he is physically contacted by the police. Additionally, this Court determined that even when an actual stop has not been effectuated, our constitution still mandates a finding that an individual has been seized if an actual stop is “imminent.” An actual stop is imminent “only when the police come upon an individual with such force that, regardless of the individual’s attempts to flee or |8elude the encounter, an actual stop of the individual is virtually certain .... ” State v. Tucker, 626 So.2d at 712 (emphasis in original).

Factors to consider in determining whether an actual stop is imminent, which this Court enumerated in State v. Riggins, 97-1194 (La.App. 5 Cir. 8/25/98), 718 So.2d 569, 571, writ denied, 98-2520 (La.1/15/99), 736 So.2d 206, are:

1. The proximity of the police in relation to the defendant at the outset of the encounter;
2. Whether the individual has been surrounded by the police;
3. Whether the police approached the individual with their weapons drawn;
4. Whether the police and/or the individual are on foot or in motorized vehicles during the encounter;
5. The location and characteristics of the area where the encounter takes ' place;'
6. The number of police officers involved in the encounter.

The trial court’s decision to deny a motion to suppress is afforded great weight and will not be set aside unless the preponderance of the evidence clearly favors suppression. State v. Flagg, 01-65 (La. App. 5 Cir. 7/30/01), 792 So.2d 133, writ denied, 01-2534 (La.9/20/02), 825 So.2d 1159.

In the instant case, the relevant inquiry is whether, at the time defendant abandoned the cocaine, the officers had illegally accomplished an actual or imminent actual stop. The record reflects that defendant was not actually stopped until after he abandoned the cocaine. The record also reflects that an unlawful actual imminent stop did not trigger defendant’s abandonment of the cocaine.

Defendant was not surrounded by the police. Rather, only one officer approached defendant and Mr. Tipado while the other officer retrieved the object. Further, defendant discarded the contraband before Sgt. Guillot exited the vehicle and asked defendant to walk over to him. Nothing in the record indicates that the 1 apolice came upon defendant with such force that regardless of his attempts to flee, an actual stop was virtually certain. Since defendant discarded the cocaine pri- or to any unlawful intrusion by the police, the cocaine was lawfully seized.

Additionally, defendant’s abandonment of. the object, added to the time of the night and the reputation of the area, gave the officers reasonable suspicion to detain defendant while they retrieved the object. Once the officers tested the substance they retrieved, and it tested positive for cocaine, the officers had probable, cause to arrest defendant. See; State v. Handy, 02-1025 (La.App. 4 Cir. 9/25/02), 828 So.2d 1207.

We find no merit in defendant’s argument.

The record was reviewed for errors patent, according to LSA-C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990). The review reveals errors patent in this case. The transcript reflects that the trial judge ordered defendant’s enhanced sentence to run concurrent with his parole violation. However, the commitment indicates that the trial judge ordered defendant’s enhanced sen- . tence to run concurrently with any other sentence and parole violation. Where there is a conflict between the transcript and the minute entry, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand the matter to the trial court with instructions to amend the commitment to reflect the sentence pronounced in the transcript.

In imposing the multiple offender sentence, -the trial judge failed to state that this sentence was to be served without benefits of probation or suspension of sentence, pursuant to LSA-R.S. 15:529.1(G). This error patent does not require [ inany action by this Court because LSA-R.S.15:301.1(C) as interpreted by State v. Williams, 00-1725 (La.11/28/01) 800 So.2d 790, 799 imposes these restrictions by operation of law.

For the foregoing reasons, the defendant’s conviction and sentence is affirmed and the matter is remanded to the trial court for correction of the commitment as instructed in this opinion.

AFFIRMED AND REMANDED.

      . LSA-R.S. 15:301.1(0) applies to those situations in which a criminal statute requires, "all or a portion of a criminal sentence be served without benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, or any substantially similar provision or combination of substantially similar provisions." Pursuant to LSA-R.S. 15:301.1(A), the restrictions are deemed to be imposed, even when the trial judge does not specifically mention those restrictions.


source: Caselaw Access Project

author: JJDREW, J.

license: Public Domain

text:
    J. Michael HART, Plaintiff-Appellant v. THEUS, GRISHAM, DAVIS & LEIGH, L.L.P., et al., Defendant-Appellee.
    No. 38,503-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 2, 2004.
    Fred Royce McGaha, Monroe, for Appellant.
    Davenport, Files & Kelly, L.L.P., by Thomas W. Davenport, Jr., Monroe, for Appellee.
    Before WILLIAMS, DREW and MOORE, JJ.
   JJDREW, J.

Monroe attorney J. Michael Hart appealed the denial of his request for a preliminary injunction seeking to stay arbitration of his dispute with his former law firm. Hart also sought a declaratory judgment holding that he was under no obligation to enter into mandatory arbitration, had no partnership agreement with the firm, and was not bound by the 1987 partnership agreement between himself and his former firm. The primary issue is whether the 1987 written partnership agreement was terminated and a new entity was created when the partnership registered for limited liability partnership (LLP) status. For the following reasons, the judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

The Monroe law firm of Theus, Grisham, Davis and Leigh (TGDL) was originally formed in 1906 and has maintained a reputation for excellence through the years. Except for a brief period in the 1980s, the firm was primarily known as TGDL and apparently operated under an oral partnership agreement. Hart, a highly talented and productive lawyer, joined the firm in 1973 and became a partner in 1977. On December 1,1987, eight of the nine TGDL partners (including Hart) signed a partnership agreement (except for Brian Crawford, who left the firm at the end of 1987). The 1987 partnership agreement included a mandatory arbitration clause. Section 8.1 of the 1987 partnership agreement states:

Arbitration as Sole Remedy. Any controversy between the Partners and/or their spouses and the Firm or involving the Firm or any claim arising out of or relating to this Agreement or the breach thereof shall be settled solely by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the baward rendered by the Arbitrator may be entered in any Court having jurisdiction thereof.

The partnership agreement also contained sections providing for capital and drawing accounts along with a method for determining and distributing income based upon a point system which provided for performance bonuses. This point system has been adjusted periodically by agreement of the partners since 1987. The contract also set out a detailed system for calculating a partner’s financial interest in the firm in the event of withdrawal, retirement, expulsion, disability, or death of a partner. . Over the years, adjustments for bonuses were set and paid to high-revenue producing partners.

The 1987 partnership agreement was amended seven times after it was initially executed; the arbitration provision was never amended. The first amendment in February 1988 set points for distribution of income and recognized the withdrawal of Brian Crawford and the addition of Thomas Zentner to the partnership. The second amendment in January 1990 added James Edwards as a partner and set points for income distribution among the partners. The third amendment in December 1990 added current Judge Sharon Ingram Marchman as a partner and set the Partner Points for computing income. The fourth amendment added Robert Bozeman as a partner and also adjusted Partner Points for distributing income. The fifth amendment in December 1993 (after filing for LLP designation) added current Judge Wendell Manning and F. Williams Sartor, Jr., as partners and adjusted the Partner Points. Hart signed all those amendments. In each of |3the amendments, the new partner and spouse, where applicable, agreed to be bound by the partnership agreement as amended.

The first five amendments to the partnership agreement did not contain the ratification language found in the sixth amendment in January 1999, which stated that the new partner “expressly agrees to and joins in the said Articles of Partnership as originally adopted, as amended herein, and the other parties ratify and confirm said articles and amendments in all respects.” In addition to adding a partner, this sixth amendment also set Partner Points. Hart stated to the firm that he would not be bound by-the partnership agreement and refused to sign the sixth amendment to the TGDL partnership agreement in which George Snelling was made a partner and by which all the partners ratified and confirmed the 1987 partnership agreement.

Retired after 41 years of practice with TGDL and of-counsel with the firm at trial, Robert Curry testified that he took an active part in the drafting of the 1987 partnership agreement and the amendments until his retirement. He thought the first five amendments contained ratification language similar to that in the sixth amendment and should have. However, his opinion was that signing the first five amendments constituted a ratification of the 1987 partnership document being amended by all signatories.

About 1993, the firm registered as a Limited Liability Partnership and thereafter used the name TGDL, LLP, as required by La. R.S. 9:3433. An misapplication of a Registered Limited Liability Partnership was filed with the Secretary of State.

The existing TGDL partnership did not execute a new partnership agreement and continued for years to operate under the 1987 partnership agreement after filing its 1993 registration for protection under the limited liability provisions of La. R.S. 9:3431 et seq. Although points were adjusted, income was distributed under the guidelines, of the 1987 partnership agreement. The firm’s tax identification number was unchanged before and after the 1993 LLP registration. The executive committee conducted the firm’s day-to-day operations before and after the 1993 LLP registration. Curry described how bonuses for high income producing partners were calculated. Withdrawing partners’ “buy-outs” were calculated using the guidelines in the 1987 partnership agreement. Hart was a participating partner in the firm until he withdrew in November 2001.

While a partner at TGDL, Hart represented Gulf States Land and Development, Inc., Stanley Palowsky, and his business partners, in protracted, difficult, and high-risk litigation involving multiple lawsuits on behalf of the companies and individuals. Some firm members did not participate in these cases. Other members of the firm directly assisted Hart in the primary litigation. In any event, Hart was the lead attorney in these matters. The firm’s relationship with Palowsky, his business partners, and' his business entities- was complex. In 1996, .the TGDL partners signed an agreement for the firm to act as guarantor of a $950,000 loan by Gulf States to develop a subdivision. Testimony revealed that some TGDL partners had | Rconcerns about potential liability arising out of the contentious litigations , involving Gulf States, Palowsky, and his business partners.

In a trial commencing September 11, 2001, a multi-million dollar judgment was granted in Palowsk/s favor in one of the Palowsky matters. ' Although the defendant appealed the large judgment, the parties subsequently entered into a confidential settlement, the terms of which have not been revealed. In November 2001, Hart resigned from the firm.

The present dispute is over the rights and obligations resulting from Hart’s withdrawal from the partnership. Demands for accountings and supporting documents were exchanged. On December 24, 2002, the firm filed its “Demand for Arbitration” under the Commercial Arbitration Rules of the American Arbitration Association. On March 19, 2003, Hart filed this proceeding, a “Petition for Declaratory Judgment Relief and Injunctive Relief.” On March 28, 2003, the firm filed a request for a stay of the proceedings. On March 31, 2003, the trial court issued an “Amended Order” granting a TRO which enjoined the arbitration proceedings.

A hearing was held in April and May, 2003, on Hart’s preliminary injunction- request and on the firm’s stay application. The trial court issued reasons for judgment on July 11, 2003. Because the parties could not agree on the form of the judgment, the trial court filed its own judgment on August 19, 2003.

The final judgment ruled that:

1. The LLP registration of TGDL in 1993 did not terminate the 1987 partnership.
1(;2. § 8 on mandatory arbitration is valid and Hart is bound by its terms.
3. Hart failed to participate in the arbitration.
4. Hart’s request for injunctive relief is denied.
5. The firm’s stay request is granted and further proceedings are stayed.
6. The arbitration proceedings are authorized to proceed.
7. Hart’s TRO is dissolved and vacated.

Hart filed this appeal on August 28, 2003.

TRIAL COURT’S REASONS FOR JUDGMENT

The trial court noted that two basic issues were present. First, the existence of this litigation was proof of Hart’s refusal to participate in the arbitration. The second and main issue was whether Hart is bound by the 1987 partnership agreement and by § 8 (mandatory arbitration). The trial court properly concluded that Hart was required to arbitrate this dispute with his former law firm. The stated reasons were:

• Testimony revealed that Hart was a party to the 1987 partnership agreement of TGDL which contained the mandatory arbitration provision.
• Hart signed five of the seven amendments to the 1987 partnership agreement, one of which was signed after the firm registered as an LLP in 1993. None of the amendments terminated the arbitration provision.
• Effective November 30, 2001, Hart withdrew from the firm.
• The registration of the firm as TGDL, LLP, did not terminate the 1987 partnership agreement or the 1987 arbitration provision.
• There were no bases present for declining to enforce the arbitration clause, i.e., fraud, termination of contract, duress, mistake, prescription, consent, or contra bonos mores.
|7* Hart availed himself of the many benefits of partnership up until the “very last minute.”
• Hart helped the firm obtain LLP status, which did not terminate or dissolve the 1987 partnership.

The trial court dissolved the TRO and ordered that arbitration proceed.

DISCUSSION

This lengthy record reveals unfortunate circumstances in which friendships and long-standing business relationships among fine, able, professional attorneys have been replaced with feelings of disappointment, sadness, mistrust, betrayal and antipathy. Notwithstanding the detailed testimony, the issue before this court is a legal one. This court makes no findings as to who did what to whom and who are “good guys” and “bad guys” in this complicated mess. Now is not the time to decide “who shot John?” The best possible outcome would be to avoid having that answered by a non-participant and for the folks at TGDL and Hart to sit down together and hammer out a compromise with which all can live. Since that seems unlikely at this juncture, the parties must arbitrate their differences as mandated by the 1987 partnership agreement.

La. C.C. art. 2801 provides, in pertinent part:

A partnership is a juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit.

A change in the number or identity of partners does not terminate a partnership unless there is only one remaining partner. La. C.C. art. 2829. |aConcerning this dispute, the relevant cause for termination of a partnership is found in La. C.C. art. 2826, which states that a partnership terminates in accordance with provisions of the contract of partnership.

While the primary liability is on the partnership itself, a partner generally is liable for his/her virile share of partnership liability. La. C.C. art. 2817. The advantage of a partnership registering as a limited liability partnership is contained in La. R.S. 9:3431, which states in part:

A. Notwithstanding any other provisions of law to the contrary contained in Civil Code Article 2817, a partner in a registered limited liability partnership shall not be individually hable for the liabilities and obligations of the partnership arising from errors, omissions, negligence, incompetence, malfeasance, or willful or intentional misconduct committed in the course of the partnership business by another partner or a representative of the partnership.
C. Subsection A of this Section shall not affect the liability of a partner for his virile share of liabilities and obligations of the partnership arising from any cause other than those specified in said Subsection A.
D. Subsection A of this Section shall not affect the liability of partnership assets for partnership liabilities and obligations.
E. A partner, which by reason of Subsection A of this Section is not subject to liability, is not a proper party to a proceeding by or against a registered limited liability partnership, the object of which is to enforce the liabilities and obligations described in Subsection A of this Section.

La. R.S. 9:3432 sets out the procedure for registering as a limited liability partnership:

A. To become a registered limited liability partnership, a partnership shall file with the secretary of state an application stating the name of the partnership, the address of its principal office, the number of partners, and a brief statement of the business in which the partnership engages.
|flB. The application shall be executed by a majority in interest of the partners or by one or more partners authorized by a majority in interest of the partners.
C. The application shall be accompanied by a fee of one hundred dollars.
D. The secretary of state shall register or renew any partnership that submits a completed application with the required fee.
E. Registration is effective for one year after the date the registration is filed, unless voluntarily withdrawn by filing with the secretary of state a written withdrawal notice executed by a majority in interest of the partners or by one or more partners authorized by a majority in interest of the partners.
F. The secretary of state may provide forms for application for or renewal of registration.

(Emphasis added.)

At this time, there are no reported Louisiana cases interpreting the statutes governing registration as a limited liability partnership. However, of particular assistance in resolving this issue is the language of La. R.S. 9:3435,- which states:

A registered limited liability partnership is a partnership as defined in Article 2801 of the Civil Code, and the provisions of Title XI of Book III of the Civil Code apply to registered limited liability partnerships to the extent that they are consistent with the provisions of this Chapter. Upon lapse or termination of registration, the affected registered limited liabilitg partnership shall continue as a partnership under Title XI of Book III of the Civil Code, but without application of this Chapter.

(Emphasis added.)

La. C.C. art. 2801 et seq. are the general laws of partnership. A limited liability partnership is a regular partnership, the partners of which have elected to take advantage of the limited liability partnership | ^protections by registration pursuant to La. R.S. 9:3431 et seq. If a partnership fails to renew the registration, only the limited liability protection ends while the partnership itself continues. Except for the statutes governing limited liability protection, partnerships are governed by the general laws of partnership.

Susan Kalinka, Limited Liability Companies and Partnerships, Chapter 2, § 2.1, Introduction, 9 Louisiana Civil Law Treatise (2001), explains:

The effect of the [La. R.S. 9:3431 et seq., Registered Limited Liability Partnerships] is to modify the liability rules of the Louisiana Partnership Law if a partnership registers as an LLP and certain procedures are followed. In all other respects, an LLP is a partnership governed by the Louisiana Partnership Law.

The treatise goes on to note that any type of partnership may qualify as an LLP. However, the LLP legislation was designed primarily to protect professionals such as doctors and lawyers from the malpractice of their partners.

In Glenn G. Morris and Wendell H. Holmes, Business Organizations, § 45.02, Formation, 8 Louisiana Civil Law Treatise (1999), the authors state:

... [T]he formation of an LLP as a separate juridical person does not depend upon compliance with the LLP statute. An LLP is simply a form of partnership in which some of the personal liability otherwise imposed by art. 2817 of the Civil Code is eliminated. Hence, compliance with the LLP statute is not the means by which the LLP-eligible partnership is formed. Rather, compliance is the means by which the protections offered by the statute may be obtained.

InOn appeal, Hart correctly pointed out that after obtaining the LLP registration in 1993, the partnership did not enact a new partnership agreement. Hart also urges that in 1993 the firm became a new legal entity which never adopted the 1987 partnership agreement. However, Hart and the other members of the firm continued to operate under the partnership agreement previously entered. As previously noted, Hart signed five of the seven amendments to the 1987 partnership agreement including the fifth one which was entered after the firm obtained the LLP designation through registration.

Citing La. C.C. art. 2807, Hart argued in brief that the partners agreed to terminate the existing 1987 partnership in which the partners were liable for their virile shares and entered in 1993 a new contract to operate as an LLP. Contrary to that argument, art. 2807 states:

Unless otherwise agreed, unanimity is required to amend the partnership agreement, to admit new partners, to terminate the partnership, or to permit a partner to withdraw without just cause if the partnership has been constituted for a term.
Decisions affecting the management or operation of a partnership must be made by a majority of the partners, but the parties may stipulate otherwise.

Nothing in the article indicates that a partnership is terminated by virtue of amending a partnership agreement or by admitting a new partner. Hart’s argument that registering for LLP status resulted in the partnership becoming an entirely new entity is not supported by the language of La. C.C. art. 2807.

Hart correctly argued that use of the LLP designation required by La. R.S. 9:3433 puts third parties on notice that the partners are taking [ T2advantage of the limited liability provision. However, Hart’s conclusion that the LLP designation resulted in a new partnership entity is unsupported.

Since Hart refused to sign the sixth amendment containing the ratification language, his position is that he is not bound by the 1987 partnership agreement and has not made an agreement to arbitrate with TGDL, LLP. His argument is that the firm’s action in registering for LLP status changed the nature of the partnership and created a new entity. The change resulted in liability no longer being spread among all the partners for their virile shares, but was shifted to him, the partner involved in high-risk litigation involving Gulf States and Palowsky. In his view, the firm wanted it both ways: avoiding personal liability but sharing fully in. any fees from his risky litigation. Since Hart was willing to take the risk, he apparently does not want to be obligated to arbitrate about sharing any potential benefits and/or expenses with his former partners.

This court agrees with the trial court’s contrary conclusion. We conclude a new entity was not created by the registration for LLP status. In this dispute, an existing partnership took advantage of the law enacted in 1992 providing for limited liability in a partnership. While it is elementary that an entirely new partnership entity could be created simultaneously with registration for limited liability partnership status, that did not occur in this case.

Although references to testimony and contents of documents provide context for a discussion of this dispute, this court’s finding is based upon the wording of the statutes and the scholarly comments in the cited treatises. |1aTo acquire LLP protection, “a partnership shall” file an application with the secretary of state. La. R.S. 9:3432(A). If the registration which must be renewed annually lapses, the partnership continues without LLP status. La. R.S. 9:3435. Hart was a party to the 1987 partnership agreement with its mandatory arbitration provision and its registration for LLP status. That registration did not create a new entity but simply gave limited liability benefits to the existing 1987 partnership under which Hart and the other TGDL partners continued to operate.

CONCLUSION

The 1993 registration for LLP status under La. R.S. 9:3431 et seq. did not create a new partnership entity but provided limited liability status to the easting TGDL partnership. The 1987 partnership directed that disputes of this nature be resolved by binding arbitration, and Hart is bound to do so.

The trial court’s judgment denying J. Michael Hart’s request for injunctive and declaratory relief, dissolving and vacating the TRO prohibiting arbitration, staying further proceedings in the district court, and authorizing arbitration to proceed is affirmed at'Hart’s costs.

AFFIRMED.

      . A registered limited liability partnership’s name shall contain the words "registered limited liability partnership” or the abbreviation "L.L.P.” as the last words or letters of its name.


author: | t CARAWAY, J.

text:
    DONNA G.R., Plaintiff-Appellee v. JAMES B.R., Defendant-Appellant.
    No. 39,005-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 2, 2004.

      Robert I. Thompson, III, Shreveport, for Appellant.
    Ronald J. Miciotto, Shreveport, for Ap-pellee.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   | t CARAWAY, J.

This case involves two interrelated rulings by the trial court which present a res nova issue. After a challenge by the non-domieiliary parent regarding the domiciliary parent’s decision to continue home schooling the three minor children, the trial court ruled in favor of the continuance of home schooling. Additionally, the trial court awarded the domiciliary parent permanent spousal support without imputing any employment income to that parent because of her home schooling duties. Finding that the domiciliary parent’s decision for home schooling is not in the best interest of the children, we reverse the trial court’s ruling and order that the children be enrolled in the public school system. Additionally, we remand for the trial court’s reconsideration of the award for permanent spousal support.

Facts

James B.R. (“James”) and Donna G.R. (“Donna”) separated on July 13, 2002, after 16 years of marriage. Three children were born of the marriage. The oldest (DOB: 5/10/88) was 15 years old at the time of the hearing and in the eighth grade. The second child (DOB: 1/27/91) was 12 and in the seventh grade. The youngest (DOB: 7/3/92) was 11 and in the fifth grade.

The testimony indicates that after James stopped paying the house note for five or six months in 2002, the family was evicted upon the sheriffs sale of the home. After the eviction, Donna refused to live at James’ parents’ home in Greenwood, and instead took the three children to Grand l2Cane, where her parents lived. James’ towing and wrecker business is also located in Greenwood.

Within a few weeks, James leased a house for the family to live in and began making improvements to it. Donna testified that James never asked her and the children to move back in with him. James testified that when Donna objected to the condition of the rent house, he redecorated and remodeled it to her specifications. Nevertheless, Donna and the children never moved back in with James but eventually acquired a mobile home with her parents’ help and placed it on their land, where she and the children now live.

Donna filed for divorce on September 3, 2002. The interim judgment dated November 18, 2002, awarded the parties joint custody and designated Donna the domiciliary parent. The child support worksheet estimated James’ income at $5,000 per month and imputed income of $1,126.67 per month to Donna based on her potential to earn $6.50/hour. Her past work experience included clerical employment at a bank, payroll clerk for a construction company and bookkeeping/inventory control clerk for a department store. During tax season in 2003, she obtained a part-time tax-related job paying $7.50 per hour. From this income data for both parents, James was ordered to pay $1,265 per month child support and $700 per month interim spousal support.

The joint custody implementation plan incorporated into the judgment provided for the children’s education as follows:

Each parent will consult with the other and attempt to select the type of education and education process best suited to the |,-¡children, taking into consideration each parent’s economic circumstances and the benefits to be derived from such by the children. Every effort shall be made to continue educating the children as has historically been done. In case of dispute, LSA R.S. 9:335, et seq. shall apply.

James moved for a final divorce in March 2003, and requested termination of the interim spousal support payments. He also alleged that Donna was home schooling the three children, and requested that they be tested prior to their being allowed to return to home schooling in the fall of 2003, “to determine if they are currently at the standard level of education for each of them.” The hearing-on James’ rule was scheduled for April 2, 2003.

On April 1, 2003, Donna filed a rule alleging that she “never worked during the marriage,” and because she home schooled the children for 6 years, she “[was] not able to work.” She also alleged that the children “are well above their levels in their school work ..., are tested at the end of each year and are well above in their CAT tests.”

The trial court rendered the judgment of divorce between the parties on April 2, 2003. The pending rules on the issues of permanent spousal support, home schooling and incidental custody issues were continued until the following month. After a hearing on May 7, 2003, the trial court rendered judgment in Donna’s favor, continuing the payment of interim spousal support for an additional six months, ordering James to maintain health insurance coverage on the children, and allowing Donna to continue to home school them. However, the trial court ordered that Charlotte | ¿Hansen test the children “no later than July of each year, with a copy of the results to be immediately furnished” to James. The judgment further provided that “the parties each reserved] their right to relitigate this issue.”

The record shows that Donna’s rule nisi for permanent spousal support was ultimately set for hearing in November 2003. In mid-October, James filed a motion for contempt, for Donna’s failure to have the children tested by Ms. Hansen for the 2003 school year. The motion also reiterated James’ “desire that the minor children ... be placed in public school.” He also alleged that Donna was not free from fault in the dissolution of the marriage.

At the November hearing, the trial court found that Donna was free from fault in the dissolution of the marriage. She was awarded permanent spousal support in the amount of $750 per month.

On the issue of the education of the children, the court heard the testimony of the two older children, the parents and the housekeeper, who had observed the children’s study habits. Additionally, the court received test scores from the CAT administered by a local school teacher in June 2003. In reaching its decision allowing the home schooling to continue, the trial court made the following comments in its oral ruling:

Now, with respect to the school, I agree these children are certainly doing, substandard work, however, they have been home schooled for seven years.... I’m not willing to discount the testing that Ms. Rials did from the previous years. However, it is my view that in the future there should be testing annually by an independent tester.
| ¡¡They have been in ... home school for seven years. At this point in the semester, ... I would be reluctant to pull them out and put them in public school. Part of that is the reason — is the adjustment — in some of the’ concerns that I have about home school program.
This program, well, I’ve got a couple of concerns 'about it, and I stated earlier I’m going to let them stay in home school. But Number 1, I don’t think they’re putting time in from the testimony of the housekeeper. Now, she hasn’t been there in the last year, so, but I’m just wondering if the time’s really being put in.
Nevertheless, I’m going to let them at least continue until the end of the school year in home school situation.

Finally, the trial court ordered that the children’s “future performance be evaluated on an at-least-a-semester basis by a qualified educator, and not by the home school teacher.”

The judgment was signed by the trial court on December 16, 2003. James appeals the trial court’s 'award of permanent spousal support and the continuation of the children’s home schooling.

Discussion

I.

Since we find that the home school decision has implications regarding the award of permanent spousal support, we will initially address that important ruling. From our research and the parties’ argument, this issue has not been previously addressed in this state.

The statutory authority regarding decisions concerning the child’s education in a joint custody’ arrangement is addressed in general' in La. R.S. 9:335(B)(3) which provides as follows:

The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order 1 (¡provides otherwise. All major decisions made by the domiciliary parent concerning the child shall be subject to review by the court upon motion of the other parent. It shall be presumed that all major decisions made by the domiciliary parent are in the best interest of the child.

Additionally, the legislature has provided for the economic decisions regarding private schooling in La. R.S. 9:315.6(1), as follows:

By agreement of the parties or order of the court, the following expenses incurred on behalf of the child may be added to the basic child support obligation:
(1) Expenses of tuition, registration, books, and supply fees required for attending a special or private elementary or secondary school to meet the needs of the child.

In addition to these statutes, it must not be overlooked that Donna retains the alimentary obligation under Civil Code Article 227 for “supporting, maintaining, and educating” the children. This is further reflected in the child support guidelines which provide as basic principles under La. R.S. 9:315(A) and (B)(2), in pertinent part, as follows:

(A) Basic principles. The premises of these guidelines as well as the provisions of the Civil Code is that child support is a continuous obligation of both parents, children are entitled to share in the current income of both parents, and children should not be the economic victims of divorce or out-of-wedlock birth....
* * *
(B)....
(2) In intact families, the income of both parents is pooled and spent for the benefit of all household members, including the children. Each parent’s contribution to the combined income of the family represents his relative sharing of household expenses. This same income sharing principle is used to determine how the parents will share a child support award.

The child support guidelines also address the voluntary unemployment of a parent and assess such parent her “potential income” for |7the computation of the basic child support obligation. La. R.S. 9:315(C)(6)(b). That potential income attributable to Donna was measured and applied in this case by the trial court raising the amount of the basic child support obligation, yet lowering the amount of support paid by James. The children, however, do not receive any economic contribution for support and maintenance from Donna because of her decision as domiciliary parent to home school the children and not seek employment.

A review of all of the above laws, along with the law for permanent spousal support discussed below, demonstrates the considerable statutory tension underlying this dispute. May Donna utilize her authority as domiciliary parent for making the major decision for the children’s education (which is presumed in the best interest of the children) to lessen or avoid her economic support obligation to the children and to increase the permanent spousal support in her favor? Under the particular facts of this case, we find that the evidence rebuts the presumption that Donna’s decision for home schooling is in the best interest of the children and that the trial court’s ruling to the contrary was an abuse of its discretion.

The most important fact regarding the home schooling is Donna’s lack of education. Donna quit school at the age of fifteen and obtained only a GED. She later received vocational technical training in accounting and office skills.

|sThe method of teaching the children centered around computer programs studied by each child on separate computers, with Donna answering questions raised by each child. As noted in the trial court’s ruling, the time invested by each child in this process, as revealed in the testimony of the housekeeper, was undisciplined and insufficient.

These weaknesses in the children’s home school education program are further amplified by the lack of any evidence of Donna’s formal compliance with La. R.S. 17:236.1, which requires the annual review and approval of a home school study program by the Board of Elementary and Secondary Education. That statute requires the annual submission to the board of “satisfactory evidence that the program has in fact offered a sustained curriculum of quality at least equal to that offered by public schools at the same grade level.” La. R.S. 17:236.1(C)(1). In lieu of such submission, Section D of the statute requires verification to the board’s satisfaction that the child has met the LEAP testing requirements provided in La. R.S. 17:24.4 or has scored at or above his grade level on the CAT. La. R.S. 17:236.1(D)(1) and (2).

The CAT test score for each child was poor. The oldest child performed slightly above average in the reading segment, but well below average in mathematics and language. The middle child also performed near average in reading, but again well below average in mathematics and language. The youngest child’s performance was particularly poor in reading and mathematics, and her language skills were especially low. Moreover, there was no testimony that these apparently deficient CAT | gscores demonstrate nevertheless that each “child has scored at or above his grade level,” in compliance with La. R.S. 17:236.1(D)(2).

When we review the trial court’s November 2003 ruling to allow the children to continue with home schooling at that time, the court does not appear to have made a permanent decision, but only a decision through the end of the school year. The decision was also made subject to the continued testing of the children. Such conditional open-ended rulings in child custody disputes invite further litigation. In this case, the decision also indicates to us the court’s concern at the time of ruling for moving the children to public schools during the school year. That concern is no longer present.

Finally, Donna’s decision as domiciliary parent is outweighed by the economic obligation for the maintenance and support of her children and the increased obligation of spousal support from James which her decision implicates. The parties’ use of the public school system, which is the subject of much public policy of this state, will obviously provide economic benefit to the children by freeing Donna to find employment. Accordingly, we find that the trial court’s ruling allowing for home schooling was not in the best interest of the children.

II.

Fault is a threshold issue in a claim for spousal support. In a proceeding for divorce or thereafter, the court may award interim periodic support to a party or may award final periodic support to a party free from fault prior to the filing of a proceeding to terminate the marriage, based on |inthe needs of that party and the ability of the other party to pay. La. C.C. art. 111. Jones v. Jones, 38,790 (La. App.2d Cir.6/25/04), 877 So.2d 1061, 2004 WL 1418186; Roan v. Roan, 38,383 (La.App.2d Cir.4/14/04), 870 So.2d 626.

Fault continues to mean misconduct that rises to the level of one of the previously existing fault grounds for legal separation or divorce. Revision Comment (c) of 1997, La. C.C. art. Ill; Jones, supra; Roan, supra. Fault that precludes an award of spousal support must have occurred prior to the filing of the action for divorce. To constitute legal fault, misconduct must not only be of a serious nature, but must also be an independent contributory or proximate cause of the separation. Jones, supra.; Mayes v. Mayes, 98-2228 (La.App. 1st Cir.11/5/99), 743 So.2d 1257. They include adultery, conviction of a felony, habitual intemperance or excesses, cruel treatment or outrages, public defamation, abandonment, an attempt on the other’s life, status as a fugitive, and intentional non-support. Mayes, supra. Abandonment by a spouse occurs when that spouse withdraws from the common dwelling without lawful cause and constantly refuses to return. Id. One of the elements necessary to prove abandonment is that the abandoned spouse desired the other spouse’s return. Id.

Once freedom from fault is established, the basic tests for the amount of spousal support are the needs of that spouse and the ability of the other spouse to pay. La. C.C. arts. Ill and 112; Roan, supra. The award for final periodic spousal support is governed by La. C.C. art. 112, which requires the court to consider all relevant factors. Roan, supra. Permanent alimony Inis awarded to a former spouse in need and is limited to an amount sufficient for maintenance as opposed to a continuation of an accustomed style of living. Mizell v. Mizell, 37,004 (La.App.2d Cir.3/7/03), 839 So.2d 1222.

Domestic relations issues such as the determination of entitlement to spousal support largely turn on evaluations of witness credibility. Jones, supra. The trial court has vast discretion in matters regarding determination of fault for purposes of precluding final periodic support. The trial judge’s finding of fact on the issue of fault will not be disturbed unless it is manifestly erroneous or clearly wrong. Id.

Although James does not precisely articulate the legal basis for Donna’s alleged fault nor cite any prior ruling of a Louisiana court, he states that she would not return to live with him in the house he rented a few weeks after the eviction. We consider this argument for fault as resting upon abandonment, and we reject it.

The real separation of the parties occurred prior to James’ lease of alternative housing, when his reckless financial actions led to the eviction of his family from their home. Donna and the children were forced into a smaller dwelling, which was not her parents’ home but was located on their property. James did not seek to join them there. Concerning the small two-bedroom house that James later rented and renovated, Donna testified that she never indicated any reconciliation with James and any agreement to reside in the rented residence. Under these facts, we do not find James’ assertions of abandonment free from his own fault. The family breakup occurred because of the eviction which he, with an admitted income of |12$5,000 per month, failed to prevent. The ruling of the trial court finding no fault on Donna for the breakup of the marriage is affirmed.

Despite this affirmance of the trial court’s ruling on Donna’s lack of fault, the trial court’s award of $750 per month for permanent spousal support must be revisited by the trial court in view of our ruling ending home schooling. Accordingly, we remand this matter to the trial court. Any adjustment or termination of permanent spousal support shall be made prospective only at the time of the hearing.

Conclusion

In accordance with this opinion, the trial court’s rulings allowing home schooling of the children is reversed. It is hereby ordered, adjudged and decreed that within seven days of the finality of this judgment, the children should be enrolled in the appropriate public schools in accordance with La. R.S. 17:236.2 and the rules and regulations of the local school board. Any costs associated with the children’s enrollment in the public schools shall be borne by appellant.. The case is remanded to the trial court for immediate docketing with a priority setting to assure compliance with this court’s order and to reconsider the award of $750 per month permanent spousal support, to determine if such award should be prospectively modified.

Costs of appeal are assessed to appellant.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . "CAT” refers to the California Achievement Test.

      . The teacher was not Charlotte, Hansen as ordered by the court. She was Donna’s friend, and she did not testify at the hearing.

      . The basic support obligation from the parties' combined income, including the income imputed to Donna, was $1559, of which James’ share was $1265. If only James' $5000 in. monthly income had been used, the basic support obligation is listed in La. R.S. 9:315.19 at $1349, which would be entirely paid by James.


author: h DREW, J.

text:
    James Thomas MILLAGE, Plaintiff-Appellee v. BUILDER’S LUMBER & SUPPLY COMPANY, Defendant-Appellant.
    No. 38,635-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    July 2, 2004.

      Rabalais, Unland & Lorio, by James C. Arceneaux, IV, for Appellant.
    Storms & Storms, by Richard R. Storms, P.C., Ruston, for Appellee.
    Before STEWART, DREW and HARRISON (Pro Tempore), JJ.
   h DREW, J.

On April 22, 2002, James Millage filed a disputed claim for workers’ compensation in the Office of Workers’ Compensation (OWC) alleging that on February 21, 2002, he injured his back in an accident while working for Builder’s Lumber and Supply Company (BLS). Worker’s Compensation Judge (WCJ) Sean Jackson in District 1W of the OWC awarded Millage temporary total disability benefits and medical benefits, but rejected his claim for penalties and attorney fees. BLS now appeals; Millage has answered the appeal seeking penalties and attorney fees. We reverse and render, further rejecting the claimant’s demand for penalties and attorney fees.

FACTS

Clarence Eugene Nichols, Jr., owns BLS, a building material supply store in Homer where claimant was a laborer. Millage’s tasks included moving lumber from shelves and loading it onto the customers’ trucks.

Millage testified that on February 21, 2002, he injured his back while moving a load of lumber. He said:

... I reached to get the plywood off the shelf. And I went to turn it and load it in the truck and that’s when I hurt my back, the lower part of my back.

He said that he felt an immediate pain in his back during this maneuver. There was no witness to the incident. Millage testified that he was able to load “a couple of’ other customers’ supplies and then went inside the office to tell his coworkers that he had hurt his back. Nichols was not in the office on the day Millage said he hurt his back, so Millage told Dorinda Gluck, the cashier, that he had hurt himself. Ms. Gluck confirmed that Millage told her on February 21, 2002, that he had just injured his back outside. Millage also testified that he told the supervisor on duty, Bill Burger, and learned that he would have to report the injury to Gene Nichols.

Nichols returned to work after the incident. In fact, Nichols testified that he spoke to Millage on February 21, 2002-the same date of the alleged injury:

I periodically walk the yard and I was out the morning of the, I think it was the 21st, and he [Millage] was limping a little bit, looked to be favoring his right leg. I asked him what was wrong and he said that he had a bunion on his foot that was killing him. And I said, man, I don’t see how you can work like that, why don’t you go to the doctor? And he said that he didn’t have any money.... I told him that things being like that, that I would send him to the doctor and pick up the tab, get the bunion checked on so he could — I don’t have that many employees so I like to keep them in shape. I offered to pick up the tab on it and let him go to the doctor to get the bunion checked on.

Nichols stated that Millage did not mention any back injury before Nichols sent Millage to the doctor.

According to the medical record exhibits, Millage saw Dr. Clifton Salmon on February 21, 2002, the same day that Millage testified that he injured his back. The doctor’s report states:

44 yo bm to clinic [complaining] of low back pain radiating down [illegible] legs, pt states that [symptoms] started a/b 2 weeks ago. Now reports that legs feel weak. Pt states that he can’t identify one specific thing that has caused the pain, but does state that he does a lot of heavy lifting and bending.

|3The doctor diagnosed Millage with a lumbar strain. On February 24, 2002, Dr. Salmon wrote a note specifying that Millage was to work only light duty with no lifting for one week' or be off work for one week, and the next day the doctor wrote another note specifying light duty for Millage “for 1 week until cleared by MD” or, if no light duty was available, then Millage was to stay home.

Millage returned to work on light duty, but he testified that his pain got worse after he went back to work. On March 8, 2002, Millage went to the emergency room at LSU Medical Center with complaints of back pain. He gave a history of low back pain and leg weakness for two weeks and that “he was lifting wood at work when he hurt his back.” Millage was .diagnosed with back strain and given ibuprofen.

On March 11, 2002, Dr. Salmon released Millage to work on light duty. That same day, Millage began seeing a chiropractor,. Dr. Pat Clawson, whose deposition was introduced into evidence. Via deposition, Dr. Clawson related that Millage initially gave a history of “trouble with his low back due to a job lifting or lifting injury at work. He couldn’t pinpoint exactly the specifics of it, but he just knew his back started hurting at work.” Dr. Clawson’s records state that Millage came for treatment “of injuries sustained during an industrial accident, which occurred while working for Builder’s Lumber Supply in Homer, LA. James’ chief complaints include LBP, onset one week prior to 2-24-02, at which time Dr. Cliff Salmon saw him.” The doctor believed that Millage suffered from a lumbar sprain/strain to the paraspinal muscles of the lumbrosacral region. _[|Pr. Clawson treated Millage with manual therapy, hot packs, and electrical stimulation. Millage saw Dr. Clawson again on March 12, 13, 15, 20, and 25.

On March 15, 2002, Millage obtained a new note from Dr. Salmon containing an instruction to do light duty work and to sit frequently. The employer was unable to accommodate this instruction and sent him home; he did not thereafter return to work. Milláge testified that he was subsequently unable to see Dr. Salmon because the employer would not pay for further therapy.

On March 18, 2002, Dr. Salmon wrote Millage a note “to whom it may concern” instructing that Millage not be allowed to lift more than 20 pounds for his own safety-

At the conclusion of his therapy with Dr. Clawson on March 25, 2002, Millage still had complaints of mild pain but had a normal range of motion. Dr. Clawson’s records also indicate his impression, related to an insurance adjuster on March 25, 2002, that “there was no specific incident that caused the pain to Millage.” In his deposition, Dr. Clawson explained:

Q: In your reports it indicates that it was your opinion that there was no specific incident that caused the pain to Millage. What did you mean by that?
A: He didn’t say, well, I picked up a 2 by 4 at 10:05.... He just said that day he noticed his back was hurting. He thought it would go away and then as time went on it continued to get worse and that’s when he reported it to his supervisor who I understood was supposed to report it to the boss.
Q: So he never told you that a specific accident occurred, he just told you that after a day of work he had aches and pains; is that what you recall?
|SA: I think it was during that day. I don’t think it was after work. He went and reported it the day that he thought he hurt himself. But he didn’t remember one specific shingle or one specific 2 by 4 that he picked up.

The doctor wrote in his records that Millage could return to work on March 25, 2002. To the contrary, Millage testified that his back got no better during his treatment with Dr. Clawson.

On April 1, 2002, Dr. Salmon wrote Millage another note excusing him from working until a functional capacity exam could be completed. These notes reflected that Millage was still complaining of lower back pain and spasm. The doctor’s report indicates: “BACK: Reveals subjective left lower para spinous tenderness,” indicates that the visit is for “[Follow up] of lumbar strain” of “low complexity”; the report does not include any objective finding of injury.

On June 30, 2002, Millage had an x-ray of his lower back. The radiologist’s impression after reviewing the x-ray was “negative lumbar spine series” and the “findings” section of the report did not indicate any abnormality.

On September 12, 2002, Millage returned to the LSU emergency room with complaints of lower back pain that, according to the history he gave, commenced “while lifting something on the job.” Doctors scheduled an MRI and advised him to continue taking anti-inflammatory medicine and to rest.

On November 6, 2002, Millage had an MRI, revealing degenerative disk disease at L4-5 and L5-S1. Millage made another visit to LSU on November 20, 2002, and repeated complaints of lower back pain as well as |ficomplaints of numbness in his legs. He was prescribed pain medicine.

On February 12, 2003, Millage returned to see Dr. Clawson for reevaluation. Millage gave Dr. Clawson a history of continuing back pain; Dr. Clawson’s records reflect that “James is here today for eval and exam of injuries sustained during an industrial accident, while working for Builders Lumber Supply in Homer, LA. The accident occurred on or about 2-17-02.”

At this visit, Millage completed a questionnaire concerning his pain. Dr. Claw-son assigned him a 40%, or moderate, disability rating. The doctor said that Millage was not, at the time of the examination, capable of returning to work as a laborer but that he would likely be able to return to some type of employment after completing a work-hardening program.

The OWC found that Millage suffered an accident at work on February 21, 2002, that he was entitled to temporary total disability benefits from February 25, 2002, through March 10, 2002, and from March 13, 2002, forward, and that he was entitled to payment of medical expenses. The OWC rejected the claimant’s demand for penalties and attorney fees. Finding no compensable work-related accident, we reverse.

DISCUSSION

The MRI of Millage’s back taken in late 2002 revealed that he suffered from degenerative disk disease. Degenerative disc disease is specifically excluded from the classification of occupational diseases and is not compensable under the Worker’s Compensation Act. La. R.S. 23:1031.1(B); Qualls v. Stone Container Corp., 29,794 (La.App.2d Cir.9/24/97), 699 So.2d 1137, writ denied, 1997-2929 (La.2/6/98), 709 So.2d R736. Accordingly, plaintiffs burden was to establish that an “accident” producing “injury” occurred in this instance as those terms have been defined under the Act. La. R.S. 23:1021(1) and (7) and 1031. Qualls, supra.

La. R.S. 23:1021 provides, in part:

(1) “Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.
(7)(a) “Injury” and “personal injuries” include only injuries by violence to the physical structure of the body and such disease or infections as naturally result therefrom. These terms shall in no case be construed to include any other form of disease or derangement, however caused or contracted.

In a workers’ compensation action, the plaintiff must establish a work-related accident by a preponderance of the evidence. Bruno v. Harbert International Inc., 593 So.2d 357 (La.1992). If the evidence leaves the probabilities evenly balanced, or if it shows only a possibility of a work-related event or leaves it to speculation or conjecture, then the plaintiff fails to carry his burden. Qualls, supra. As this court stated in Jones v. A T & T, 28, 059 (La.App.2d Cir.2/28/96), 669 So.2d 696:

While the worker’s testimony alone may be sufficient to discharge that burden, it will be inadequate where (1) other evidence discredits or casts serious doubt upon the worker’s version of the incident; or (2) the worker’s testimony is not corroborated by the circumstances following the alleged incident.... Such corroboration, of course, may include medical evidence and the testimony of fellow workers, spouses, or friends.... So too, although La. R.S. 23:1021(1) defines “accident” to encompass a weakened condition which collapses due to a precipitous event, that definition does not include a weakened condition which gradually degenerates over time. |sThus, in cases such as the matter at hand, the key requirement is that a precipitous event directly produce sudden objective findings of an injury rather than a mere manifestation of a gradual deterioration or progressive degeneration ....

(Citations omitted.)

Although a pre-existing medical condition will not bar recovery if the work accident aggravated, accelerated, or combined with the condition to produce the disability, a claimant still must establish by a preponderance of the evidence a causal relation between accident and disability. Jones, supra.

Although factual findings produced below must be afforded great deference on appeal, they should be reversed when clearly wrong in light of the entire record. Jones, supra.

We conclude that the WCJ was clearly wrong in finding that Millage suffered an “accident” while working for BLS. In nearly every respect, the record contradicts Millage’s version of events. Most notable among the numerous discordant pieces of evidence is the medical report of Dr. Salmon from February 21, 2002. This record specifies that Millage “can’t identify one specific thing that has caused the pain.... ” This is irreconcilable with Millage’s testimony that his pain had a sudden onset while lifting at work. In addition, the records of Dr. Clawson also indicate Dr. Clawson’s opinion that “there was no specific incident that caused the pain to Mr. Millage....” As the doctor explained, “He went and reported it the day that he thought he hurt himself. But he didn’t remember one specific shingle or one specific 2 by 4 that he picked up.” These inconsistencies are particularly noteworthy in this ease because there were no witnesses to the accident other than |9Millage himself. In such cases, evidence contradicting the worker’s version of events takes on greater significance. Compounding the problem in this case is the obvious error in the date of the incident given by Millage. At trial he testified that the incident at work happened on February 21, 2002, but the medical record from that date reflects that he had been having pain for as long as two weeks prior to that date. Ms. Gluck testified that Millage complained to her on February 21, 2002, that he had hurt his back that day, but again the medical records contradict the date. Nichols testified that he observed Millage limping on February 21, 2002, and said that Millage attributed his limp to a bunion, not to a lifting accident.

Even allowing for the trial court’s discretion to accept or reject the testimony of a witness, the constellation of inconsistencies in this record cannot support a finding that the claimant suffered an accident at work. The record at most shows the possibility that Millage suffered an accident at work.

Parenthetically, we also observe that Dr. Clawson had released Millage from treatment for a back sprain/strain as early as March 25, 2002, and that there was no proof in this record to connect Millage’s subsequent back problems, including degenerative disk disease, to any purported accident or injury at work.

DECREE

The judgment below is hereby reversed. Costs of this appeal are assessed to Millage, whose demand for penalties and attorney fees is likewise rejected.

REVERSED AND RENDERED.

      . This information is provided, and this opinion is published, .pursuant to La. R.S. 23:1310.5(F).

      . The transcript reads "Nicholson” but the owner indicated in his testimony that his name is Nichols.


author: DREW, J.

text:
    Bruce W. SANDERS and Deborah Sanders, Plaintiffs-Appellants v. BACKUS TRUE VALUE HARDWARE, INC., Joe C. Backus, Joe C. Backus, II, Backus True Value Hardware Partnership, Lincoln Builders of Ruston, Inc., ABC Insurance Company and DEF Insurance Company, Defendants-Appellees.
    No. 38,517-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 2, 2004.

      Richard L. Fewell, Jr., West Monroe, Robert T. Knight, Theodore J. Coenen, IV, Rayville, for Appellants, Bruce W. Sanders and Deborah Sanders.

      Hudson, Potts & Bernstein, L.L.P. by Mark J. Neal, Monroe, for Appellees, Backus True Value Hardware, Inc. and Twin City Fire Insurance Company.
    John Joseph Rabalais, Covington, Paul Eric Harrison, for Intervenor-Appellees, U.S. Specialty Insurance Company and Community Bridges Corp.
    Before BROWN, PEATROSS and DREW, JJ.
   DREW, J.

Bruce Sanders- and Deborah Sanders appeal a judgment dismissing their claim for damages sustained when Bruce Sanders (“Mr. Sanders”) slipped on a patch of ice.

We affirm.

FACTS

Bruce Sanders was employed as a maintenance man for Community Bridges, which managed group homes for mentally-retarded individuals in the Ruston area. On the morning of January 2, 2001, Mr. Sanders was called out to one of the homes to repair a clogged drain line. As he had done many times in the past, Mr. Sanders proceeded to Backus True Value Hardware in Ruston in order to rent “snakes” with which to unclog the line.

Mr. Sanders arrived at Backus True Value, entered the store, and proceeded as usual to the rental desk to rent the snakes. He was waited on by store clerk Jason Carpenter. After filling out the necessary paperwork, Mr. Sanders drove behind the store to the loading dock where the snakes were kept, which was the normal procedure.

A snow and ice storm had hit the region on New Year’s Eve and New Year’s Day of 2001. Mr. Sanders estimated that the area received six inches of snow. Mr. Sanders believed that' he complained about the conditions behind the store at this time, but he did not know to whom he complained. Carpenter stated that Mr. Sanders did not complain about the conditions outside the store when he was directed to the loading dock.

The snakes were kept- near the loading dock because they were covered in filth due to the nature of their use. Smaller snakes in selfijcontained2 units were kept inside the store. Carpenter described the snakes as being limber and not very heavy. The snakes were essentially spring steel, each snake measuring about ten feet in length and an inch and- a quarter in diameter, with a weight of approximately eight pounds. The snakes were the only items stored on the loading dock for customers to pick up. Except for .the occasional scaffolding or large ladder, all other rental items were picked up in the store.

-Upon arriving behind the store, Mr. Sanders unlocked his van and then helped Carpenter load the snakes into the van. Mr. Sanders testified that he was very afraid driving his van to the area behind the store because there was thick ice there. Mr. Sanders testified that he, Carpenter, and another person struggled to load the snakes because of the icy conditions. He also stated that he faced difficulty when he drove away. He recalled that it took him at least ten minutes to leave the area behind the store because he was “backing up and going very slowly” to keep from sliding out of control, as well as stopping at times to survey the situation. Mr! Sanders was fearful that his van would slide off the loading ramp and into a ditch running alongside the ramp.

Carpenter’s testimony on what occurred was different. He stated that he observed Mr. Sanders back the van up the loading ramp without difficulty to within eight to ten feet of the loading dock. Carpenter believed this area of the ramp was devoid of ice and snow. He also testified that he witnessed Mr. Sanders drive away and that he did not see Mr. Sanders’ van | flipping or sliding or doing anything that made him think Mr. Sanders was having difficulty driving the van.

A few hours later Mr. Sanders returned to rent additional lengths of snake in order to complete his task. He met with Carpenter inside the store, then was directed by Carpenter to go to the loading ramp. Mr. Sanders stated that he told Carpenter that he would not drive to the loading dock this time because the conditions were too treacherous and slippery. Mr. Sanders added that he told Carpenter that he would park at the bottom of the ramp where the sun was hitting, and that Carpenter would have to bring the snakes to him. However, Carpenter testified that Mr. Sanders did not complain at that time about the conditions behind the store. We also note Mr. Sanders’ deposition testimony that he spoke with a greeter when entering the store the second time and told him that he was not going to pull his van to the back, and that he did not see Carpenter in the store the second time.

Mr. Sanders parked his van in a driveway near the loading dock behind the Dollar General Store next to Backus True Value. The van faced Reynolds Drive, which runs parallel to the rear of the stores. It was a spot that Carpenter estimated was about 200 feet from the True Value loading dock. Mr, Sanders testified that the entire area behind the Dollar General store was icy, but he chose this particular spot as he considered it to be the safest.

14As Mr. Sanders exited his van, he asked or motioned for Carpenter to drag the snakes to him. Carpenter stated that Mr. Sanders also told him “there was too much ice back there.” Carpenter recalled that when Mr. Sanders turned to go around the van in order to unlock the rear doors, he slipped and the back of his head struck the concrete. Mr. Sanders testified that he slipped on a thin patch of ice as he was telling Carpenter to come to him.

Mr. Sanders did not lose consciousness and was able to pick himself up off the ground. Even though his head was hurting, the snakes were loaded into the van and Mr. Sanders left to complete his job. When he returned to True Value for the third time, he parked in a spot near where he fell. This time he remained in the van as the snakes were unloaded.

The impact caused a shunt in Mr. Sanders’ brain to malfunction. When Mr. Sanders was 19 years old, doctors discovered that he had hydrocephalus as well as a cyst on his brain. The shunt malfunction caused an increase in intra-cranial pressure, which probably caused damage to Mr. Sanders’ optic nerve and further limited his vision. Mr. Sanders already had right-side homonymous hemianopia consistent with his chronic hydrocephalus. Mr. Sanders noticed that he began having blurry vision to the right when he was 13 years old, and he gradually lost his vision to the right. Mr. Sanders also stated that beginning when he was a teenager, he would sometimes experience a “spider web” effect across his full field of vision upon exerting himself. After the fall at issue, Mr. Sanders could only see in the left upper | ^quadrant of his field of vision and a small area straddling the line between the upper and lower quadrants on the left side.

Mr. and Mrs. Sanders filed suit alleging that Backus True Value was negligent in: (i) requiring Bruce Sanders to deliver the returned rental equipment to the rear of the store where the ice conditions were hazardous; (ii) failing to maintain the loading area in the rear premises in a safe condition; (iii) failing to provide a safe alternative delivery location for réturned rental equipment; and (iv) failing to provide an alternative delivery procedure,- including but not limited to inside pickup and delivery of rental equipment.

■A jury trial was held in this matter over three days in April and May of 2003. The jury reached a verdict in which it answered “No” to the question of whether it found “by a preponderance of the evidence that Backus True Value Hardware was negligent and that its negligence was a legal cause of the accident of January 2, 2001.” Mr. and Mrs. Sanders appealed.

DISCUSSION

Appellants argue on appeal that the jury erred in determining that Backus True Value was not at fault for the accident.

A court of appeal may not set aside a jury’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). To reverse a factfinder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record | ^establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120 (La.1987).

A reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

Where there is conflict in the testimony, reasonable evaluations of credibility and, reasonable inferences, of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, supra. Wfiiere there are two permissible views of the evidence, the factfinder’s choice cannot be manifestly erroneous or clearly wrong. Stobart, supra.

■ When factual findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard of review demands great deference to the trier of fact’s findings, because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, supra.

Mr. and Mrs. Sanders first argue that Backus’ liability is based upon La. R.S. 9:2800.6, which provides:

A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe ' condition. This duty includes a treasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that, risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable 'care, the absence of a written or verbal uniform cleanup' or safety procedure is insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive, notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
(2) “Merchant” means one whose business is to sell goods, foods, wares, or merchandise at a fixed place of business. For purposes of this Section, a merchant includes an innkeeper with respect to those areas or aspects of the premises which are similar to those of a merchant, including but not limited to shops, restaurants, and lobby areas of or within the hotel, motel, or inn.
D. Nothing herein shall affect any liability which a merchant may have under Civil Code Arts. 660, 667, 669, 2317, 2322, or 2695.

Appellants assert that once a prima facie case had been established that a premises hazard existed, the burden of proof shifted to Backus True RValue to show it used reasonable care to avoid this hazard. In support of its position, appellants cite Stepherson v. Wal-Mart Stores, Inc., 34,547 (La.App.2d Cir.04/04/01), 785 So.2d 950; Wright v. Wal-Mart Stores, Inc., 31,764 (La.App.2d Cir.5/5/99), 737 So.2d 153; and Edwards v. K & B, Inc., 26,002 (La.App.2d Cir.8/17/94), 641 So.2d 1040. However, we note that each of those cases involved falling merchandise or objects in the store, which are governed by paragraph (A) of La. R.S. 9:2800.6. Falls on a store’s premises are governed by paragraph (B). Stepherson v. Wal-Mart Stores, Inc., supra. A plaintiff is required to prove each element of his cause of action under La. R.S. 9:2800.6(B). White v. Wal-Mart Stores, Inc., 97-0393 (La.9/9/97), 699 So.2d 1081.

Appellants further contend that Backus True Value is liable under La. C.C. art. 2317.1, which states:

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. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

The evidence established that Backus True Value acted reasonably under the circumstances. Reasonable measures were taken by Backus True Value to lessen the chance of injury in the area where it- intended its customers to pick up snakes. Floor manager Ray DeOliviera testified that rental section employees had removed the ice and snow from the steps and area adjacent to the loading dock by scraping, shoveling, and sweeping it |9off. He added that they did this to make the area as safe as possible for customers who would be in that area, although he conceded that the area where Mr. Sanders stopped the first time had not been cleared. Carpenter testified that store employees had been scooping up the ice in an area closer to Backus True Value’s loading dock, and were working their way toward the Dollar General side before Mr. Sanders fell. Carpenter believed that the area where Mr. Sanders parked his van the first time was without ice and snow. However, store owner and manager Joe Backus, II, testified that more areas of the loading ramp were covered by snow and ice than were not. Although icy conditions existed at the Backus True Value loading dock where Mr. Sanders was directed to go, neither he nor Carpenter slipped or fell when loading the snakes on Mr. Sanders’ first trip that morning.

Backus True Value typically stocked about five bags of ice melt at a time. Not one bag was sold during this winter storm. DeOliviera estimated that if the ice melt had been used by Backus True Value employees, it would have treated less than half of the area behind the store. It would have been used behind the hardware store and not where Mr. Sanders actually fell.

It is- asserted that Backus True Value should have delivered the snakes to Mr. Sanders in front of the store, which was clear of ice and snow. Carpenter stated that he would have done this had Mr. Sanders made this request. Backus testified that if Mr. Sanders had concerns about going behind the store and wanted the snakes brought to him, his employees would have addressed that concern. Mr. Sanders related that nobody |inoffered to bring the snakes through the store, and that he would have accepted if that had been offered. However, Mr. Sanders admitted that he never asked for the snakes to be brought to him in front of the store. Backus True Value also had a delivery service for an additional fee.

In any event, when Mr. Sanders returned to pick up additional snakes, he parked in an area that was at least 200 feet away from where he would normally park. This location was not even behind Backus True Value, but behind the Dollar General Store. Backus owned the building that houses the hardware store and the adjoining Dollar General.- However, the operators of Dollar General lease the space from him, and it is a separate and independent business. Mr. Sanders was familiar with the normal procedure of picking up the snakes as he had rented snakes as many as 21 times in prior years.

The owner of a commercial establishment is not ,the insurer of the safety of his patrons, and a store owner is not liable every time an accident occurs. Harrison v. Horseshoe Entertainment, 36,294 (La.App.2d Cir.8/14/02), 823 So.2d 1124. Clearly, Backus True Value could not have expected that its snake rental customers would park in the location where Mr. Sanders fell. Mr. Sanders admitted that nobody directed him to that spot, and he chose it because it was in the sunlight. Carpenter could not recall any customer stopping where Mr. Sanders stopped to receive the snakes.

Mr. Sanders was well aware of the conditions .on the ground. He agreed that his task was somewhat of an.emergency because two out of the Inthree bathrooms were not working in a home with eight residents and two staff members. Mr. Sanders admitted that, nothing prevented him from unlocking the van’s doors after leaving the store and before he drove to the back the second time. Mr, Sanders could have remained safely in the van while the snakes were loaded.

Based on our review of this record, we cannot conclude that the jury was clearly wrong in finding that Backus True Value was not at fault for the accident.

Appellants cite Keller v. Odin Management, Inc., 33,300 (La.App.2d Cir.5/10/00), 762 So.2d 657, writ denied, 2000-2144, 2152 (La.10/6/00), 771 So.2d 81, for support. Keller fell on an icy sidewalk outside a mall where she worked. The mall had earlier placed rock salt on the sidewalks, and then subsequently closed the mall. This court found that the mall had acted reasonably and did not breach its duty of care to Keller. Appellants argue that in contrast, Backus True Value did not spread salt and remained open for business. Appellants also submit Johnson v. Brookshire Grocery Company, Inc., 32,770 (La.App.2d Cir.3/1/00), 754 So.2d 346, writ denied, 2000-0938 (La.5/26/00), 762 So.2d 1107, in support of its argument. Johnson fell in a sunken area in the crosswalk between the store entrance and the parking lot. These two cases are readily distinguished from the case at hand because both Keller and Johnson were where they were expected to be. Backus True Value customers were expected to retrieve the snakes at the Backus True Value loading dock, not 200 feet away behind another store.

haDECREE

At appellants’ costs, the judgment is AFFIRMED.

      . Joe Backus, II, measured the distance as being about 225 feet.