author: SAUNDERS, Judge. |,WOODARD, J.,

text:
    Janie Lynne DUPRE v. Timothy Anthony DUPRE.
    No. 02-0902.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2002.

      J. Nolan Sandoz, Attorney at Law, Lafayette, LA, for State of LA. Dept, of Social Serv., Off. of Support Enforce.
    Jeffery L. Brunson, Attorney at Law, Lafayette, LA, for State of LA. Dept, of Social Serv., Off. of Support Enforce.
    Cynthia Carrie LeBourgeois, Attorney at Law, Lafayette, LA, for Janie Lynne Dupre.
    Sandra Ann Broussard, Attorney at Law, Lafayette, LA, for State of LA. Dept, of Social Serv., Off. of Support Enforce.
    Helen' Joane Popich, Attorney at Law, Lafayette, LA, for Timothy Anthony Dupre.
    John Clay Lejeune, Attorney at Law, Lafayette, LA, for State of LA. Dept, of Social Serv., Off. of Support Enforce.
    Jessica Chatelain, In Proper Person, Carenco, LA, for Jessica Chatelain.
    Charles Chatelain, In Proper Person, Carenco, LA, for Charles Chatelain.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

Timothy Anthony Dupre appeals the trial court’s ordered visitation schedule and its change from a “seven and seven” physical sharing to every other weekend, and claims the trial court erred in awarding visitation rights for the daughter, Victoria Dupre, to her biological paternal grandmother and her husband. For the reasons outlined below, we affirm the trial courts visitation schedule, and its grant of visitation rights to the grandparents.

FACTUAL AND PROCEDURAL BACKGROUND

On July 17, 1992, Janie Bozant married Jason Lormand. On April 11, 1994, Janie and Jason were divorced. The next day, April 12, 1994, Janie married Timothy Dupre. At the time of her marriage to Timothy, Janie was pregnant with Victoria Dupre, their biological daughter, who was born three days after the marriage of Janie and Timothy, on April 15, 1994. On April 3, 1997, a Joint Custody and Child Support Plan between Janie and Jason was approved by the Fifteenth Judicial District for the Parish of Lafayette. In that Custody plan, Jason received physical custody of Victoria every other weekend, on alternating holidays, and every Father’s Day.

Janie gave birth to a second child, Tyler Dupre, on April 18, 1997. Timothy is Tyler Dupre’s biological father. On December 1, 2000, Janie filed for divorce from Timothy. The couple entered into a Consent Judgment and Custody Plan on December 4, 2000. This custody plan referred only to Tyler Dupre, and stated that Tyler Dupre was the only child born of the marriage between Janie and Timothy. This Consent Judgment granted Timothy visitation on alternating weekends, alternating holidays, and every Father’s Day. In addition, on weeks preceding Timothy’s scheduled visitation weekends he also received visitation on Tuesday and Wednesday; on weeks not preceding his scheduled weekend visitations he received visitation on Tuesday, Wednesday, and Thursday. On December 7, 2000, Janie and Timothy | ¡.entered into an agreement entitled “Grant of Visitation” affording Timothy the same visitation schedule with Victoria that he had with Tyler, with the exception of weekends when Victoria was scheduled to visit with her paternal grandmother Mrs. Chatelain.

In 1998, Jason Lormand was convicted of murder and is now serving a life sentence, without the benefit of probation or parole, for that conviction. On January 9, 2001, Jessica Chatelain filed a Petition for Intervention seeking a court ordered grant of visitation with Victoria. On April 20, 2001, Janie filed “Rule to Change Custody” against Timothy seeking a visitation schedule granting Timothy visitation every other weekend, and one evening a week. On May 25, 2001, Timothy filed a Answer and Reconventional Demand, which now listed Victoria as a child of the marriage between Janie and Timothy, and sought a formal custody plan with Victoria.

An Interim Consent Judgment was signed, pursuant to a Hearing Officer Conference held on May 30, 2001, recommending a “seven and seven” visitation schedule until the Rule seeking the change in visitation came before a trial judge. At the time of this Interim Consent Judgment, the merit hearing was scheduled for August, 2001. Due to a number of substitutions of legal counsel, and the appointment of an evaluator, the merit hearing was delayed from August until January of 2002. On October 24, 2001, Janie and Jason entered into a Consent Judgment agreeing that Janie and Jessica should share joint custody of Victoria Dupre. On December 28, 2001, Timothy filed a Supplemental and Amending Answer and Re-conventional Demand seeking a “seven and seven” physical custody judgment.

The hearing on the merits was held January 24 and 25, 2002, and the trial court set forth written reasons for judgment on February 13 and 20, 2002. In the court’s reasons for judgment it awarded Timothy Dupre physical custody of Victoria and |aTyler every other weekend from the close of school on Thursday until Monday morning when school opened. Additionally, the court awarded Timothy physical custody every Wednesday evening from 5:00pm until 8:00pm. The court also awarded Mr. Dupre two-thirds (2/3) of the summer vacation period, subject to the alternating weekend visitation of Mrs. Chatelain. Additionally, the court awarded Mr. Dupre at least one-half (1/2) of the major holidays.

As to grandparent visitation, the trial court awarded the Chatelains visitation with Victoria one weekend per month from 9:00am Saturday until 5:00pm. The court also specified that this visitation with the Chatelains is not to interfere with Timothy’s visitation periods.

DISCUSSION

We begin our analysis with a brief review of the well established rules of appellate review of trial court decisions. An appellate court may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). “However, where one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record.” Evans v. Lungrin, 97-0541, pp. 7-8 (La.2/6/98); 708 So.2d 731, 735. A legal error occurs when the trial court incorrectly applies principles of law and those errors are prejudicial. Id. There is no evidence of such legal error on the part of the trial court in the present case; therefore, we conduct only a manifest error review of the trial court’s ruling.

The determination of the trial court in establishing or modifying custody is entitled to great weight and will not be disturbed by an appellate court absent a clear showing of abuse of discretion. Thompson v. Thompson, 532 So.2d 101 (La.1988); Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96); 676 So.2d 619, writ denied, 96-1650 (La.10/25/96); 681 So.2d 365. “Because of the tribunal’s better opportunity to evaluate witnesses, and taking into account the proper allocation of trial and appellate functions, great deference is accorded to the decision of the court.” McKinley v. McKinley, 25,365, p. 5 (La.App. 2 Cir. 1/19/94); 631 So.2d 45, 48. This great discretion and deference granted to the fact finder on appellate review extends to its assessment of expert testimony. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106 (La.1990).

“In a proceeding for divorce, the court shall award custody of a child in accordance with the best interests of the child.” La.Civ.Code art. 131. The legislature has clearly demonstrated their preference for joint custody in La.Civ.Code art. 132, which states, “[i]n the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly.” Guidance for the determination of the physical custody allocation after an award of joint custody is provided by La.R.S. 9:335, which states in pertinent part:

A. (2)(a) The implementation order shall allocate the time periods during which each parent shall have physical custody of the child so that the child is assured of frequent and continuing contact with both parents.
(b) To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.
B. (2) The domiciliary parent is the parent with whom the child shall primarily reside, but the other parent shall have physical custody during time periods that assure that the child has frequent and continuing contact with both parents.

(emphasis added).

Modification of Physical Custody Schedule

In Mr. Dupre’s first issue on appeal, he alleges that the trial court erred when it changed his physical custody schedule from the “seven and seven” schedule | ¡^established by the Hearing Officer in July of 2001. Mr. Dupre relies on a number of outdated cases for his contention that joint custody agreements favor an equal sharing of physical custody. Based on this argument, Mr. Dupre alleges that the trial court erred in changing his physical custody from the “seven and seven” plan to alternating weekends and every Wednesday afternoon.

Mr. Dupre’s reliance on Remson v. Remson, 95-1951 (La.App. 1 Cir. 4/4/96); 672 So.2d 409, and Bynog v. Bynog, 95-173 (La.App. 3 Cir. 7/26/95); 663 So.2d 86, in support for his contention that the “seven and seven” custody arrangement should not be changed is misplaced, however, as these eases were decided using the prior version of La.R.S. 9:335, which was enacted in 1993 and revised in 1995. Most significantly, before the 1995 amendment, La.R.S. 9:335(A)(2)(b) read: “To the extent it is feasible, physical custody of the children shall be shared equally.” After the 1995 revision, this section reads, “To the extent it is feasible and in the best interest of the child, physical custody of the children should be shared equally.” The Louisiana Supreme Court addressed the impact of these revisions on the establishment of physical custody plans in Evans. “[T]he trial court’s application of the express mandate of the prior article 131 that to the extent feasible, physical custody of the children shall be shared equally, and the trial court’s determination that ‘joint custody with equal time for each parent is presumed to be in the best interest of the child,’ is legal error.” (emphasis in original) Evans, 708 So.2d at 736.

The Supreme Court’s holding clearly illustrates that the 1995 revision of 9:335(A)(2)(b) “changed the law from a mandate of equal sharing of the physical custody in a joint custody situation to a recommendation of equal sharing of the physical custody of a child that is subject to the requirement that such an arrangement be ‘feasible’ and ‘in the best interest of the child.’ ” (emphasis in original) Stephens. Stephens, 02-402, p. 7 (La.App. 1 Cir. 6/21/02); 822 So.2d 770, 776. As a result of this shift in emphasis on the evaluation of physical custody, recent jurisprudence states that “joint custody does not mandate a fifty-fifty sharing of physical custody.” Brown v. Brown, 96-743, p. 3 (La.App. 3 Cir. 2/26/97); 692 So.2d 458, 459-60.

Although Mr. Dupre acknowledges these legislative changes in the law of physical custody in joint custody circumstances, he argues that the trial court committed manifest error when it found that the “seven and seven” custody arrangement may have future detrimental effects on the children’s education and welfare. He bases this argument on select, out of context statements by the court appointed expert psychologist Dr. Lowe, in which Dr. Lowe states that he could not find any problems with the current “seven and seven” schedule in this particular situation. However, Dr. Lowe also repeatedly stated that he has a general aversion to these types of “seven and seven” physical custody arrangement as they generally do not work well and fail to provide children with the necessary stability and sense of home they need. Dr. Lowe also testified that in his experience and opinion, the traditional “every other weekend” visitation schedules increase each parent’s involvement yet provide as little disruption to the children’s school week stability as possible. Dr. Lowe’s testimony made it clear that he did not recommend a “seven and seven” custody schedule and he stressed the importance of quality of time over quantity of time.

It is important to note that the “seven and seven” physical custody schedule established by the hearing officer in July of 2001, was not intended to be a permanent custody arrangement. The original hearing on this matter was originally scheduled for August of 2001, and the Hearing Officer’s custody plan was an interim arrangement; a summer custody schedule intended to last only until a final disposition 17on this matter could be reached. Due to continuances, the “seven and seven” plan was in effect much longer than ever originally intended. Prior to the hearing officer’s custody arrangement, the physical custody schedule in effect was a more traditional every other weekend arrangement with additional visitation in the middle of the week. Under these circumstances, and in light of the discretion given to the trial court’s reliance on expert testimony, we do not feel the trial judge committed manifest error in modifying the physical custody schedule from a “seven and seven” schedule to the more traditional schedule of every other weekend visitations.

Visitation Rights of Grandparents

Mr. Dupre’s second issue on appeal concerns the trial court’s award of visitation rights to Victoria’s biological paternal grandmother and her husband. Mr. Dupre asserts that the determination to grant visitation rights to a grandparent is governed by Civil Code Article 136. Under article 136, in extraordinary circumstances, and in the best interest of the child, a relative by blood or affinity not granted custody of a child may be granted reasonable visitation rights. Mr. Dupre argues that there are no such extraordinary circumstances here; therefore, the court’s grant of visitation privileges to the Chatelains was not warranted.

Given the fact Victoria’s biological father is in prison, it is debatable that there are not extraordinary circumstances here sufficient to grant the Chatelains visitation rights under Article 136. In fact, because of the extraordinary nature of such a circumstance, Revised Statute 9:344(A) deals specifically with visitation by grandparents in cases where a child’s parent is incarcerated.

A. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its |sdiscretion finds that such visitation rights would be in the best interest of the child or children.

La.R.S. 9:344(A).

Mr. Dupre disputes the applicability of 9:344 in this matter on the basis that, because Victoria was born during his marriage with Janine, she is not a child of the marriage between Jason Lormand and Janie Bozant, but rather, is a child of his marriage with Janie. While we can find no specific definition of the phrase “child of the marriage” in either statute or jurisprudence, we find the language to be clear and unambiguous and referring to any child that is either conceived or born in the marriage. We find no jurisprudence even hinting that a child conceived within a valid marriage is not considered a child of that marriage should the parents divorce prior to the birth of that child. Such a result would be counterintuitive given the clear legislative intent behind the statute to ensure a conduit for contact with a child’s biological family when the parent most likely to ensure that contact cannot do so themselves.

The interpretation of the phrase “child of the marriage” as including children either conceived or born during the marriage is most commonly found in cases of dual paternity. “The concept of ‘dual paternity’ allows a child to seek support from his biological father notwithstanding that he was conceived or born during the mother’s marriage to another man, and therefore presumed to be the legitimate child of the marriage.” State Dept. of Soc. Services, Office of Family Support ex rel. Munson v. Washington, 32,550, pp. 2-3 (La.App. 2 Cir. 12/8/99); 747 So.2d 1245, 1247 (citations omitted); See also, State, Dept. of Social Services, Office of Family Support v. Williams, 605 So.2d 7 (La.App. 2 Cir.1992). Further, under La.R.S. 9:344(B), parents of a child’s biological parent who is incarcerated may seek reasonable visitation. “When |9the parents of a minor child or children live in concubinage and one of the parents dies, or is incarcerated, the parents of the deceased or incarcerated party may have reasonable visitation rights to the child or children during them minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.” La.R.S. 9:344(B). Such language shows a clear preference by the legislature to ensure a child’s contact with biological family members, regardless of the marital status of the child’s parents. Therefore, we find Mr. Dupre’s contention that Victoria is not a child of the marriage between Janie and Jason Lormand is without merit, and that La.R.S. 9:344 is the applicable statute to apply for the grant of visitation to Mrs. Chatelain.

Mr. Dupre also contests the trial judge’s award of visitation to Mrs. Chate-lain on the grounds that it violates his constitutionally protected parental liberty interest. In support of this contention, Mr. Dupre cites Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). We presume Mr. Dupre is basing his claim of parental liberty interest on a presumption of legal paternity under La. Civ.Code art. 184. That presumption of paternity issue, however, is not before this court and we will not examine it further here. It is unnecessary to address Timothy’s parental liberty interests in Victoria as La.R.S. 9:344 has already been distinguished from the statute at issue in Troxel by other Louisiana circuits.

This court has previously held that issues concerning non-parental visitation requests must now be decided in light of the United States Supreme Court’s decision in Troxel. State In re Satchfield v. Guillot, 2002-0150 (La.App. 3 Cir. 6/26/02); 820 So.2d 1255. We, therefore, feel it time to address the applicability of the Supreme Court’s holding in Troxel on grants of visitation under La.R.S. 9:344 head on. The Court emphasized the broad construction of the Washington statute in its | ^determination that it violates a parent’s liberty interests in raising their children.

Section 26.10.160(3), as applied to Gran-ville and her family in this case, unconstitutionally infringes on that fuhdamen-tal parental right. The Washington nonparental visitation statute is breathtakingly broad. According to the statute’s text, “[a]ny person may petition the court for visitation rights at any time,” and the-court may grant such visitation rights whenever “visitation may serve the best interest of the child.” §§ 26.10.160(3) (emphases added). That language effectively permits any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review. Once the visitation petition has been filed in court and the matter is placed before a judge, a parent’s decision that visitation would not be in the child’s best interest is accorded no deference. Section 26.10.160(3) contains no requirement that a court accord the parent’s decision any presumption of validity or any weight whatsoever. Instead, the Washington statute places the best-interest determination solely in the hands of the judge. Should the judge disagree with the parent’s estimation of the child’s best interests, the judge’s view necessarily prevails. Thus, in practical effect, in the State of Washington a court can disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interests. The Washington Supreme Court had the opportunity to give §§ 26.10.160(3) a narrower reading, but it declined to do so.

Troxel, 530 U.S. at 67, 120 S.Ct. 2054 (emphasis in original).

In the above quote, the Supreme Court implies that a more narrow construction of the statute could possibly pass constitutional inspection. We feel, and other circuits have agreed, that 9:344 is sufficiently narrowly drafted so as to not violate the fundamental liberty interests of parents.

[UJnlike the Washington statute determined to have been unconstitutional in Troxel, La.R.S. 9:344 is more narrowly drawn. The Louisiana legislature has determined that in specified, limited situations, i.e., where one parent dies, is interdicted, or incarcerated, the parents of the deceased, interdicted, or incarcerated party may have reasonable visitation rights with the children provided the court finds said visitation to be in the best interest of the child. Unlike the Washington statute, the Louisiana legislature expressly limited the scope of La. R.S. 9:344 to the parents of the deceased or absent parent.

Galjour v. Harris, 2000-2696, p. 11 (La.App. 1 Cir. 3/28/01); 795 So.2d 350, 358, writ denied, 01-1238 (La.6/1/01); 793 So.2d 1229, and writ denied, 01-1273 (La.6/1/01); 793 So.2d 1230, and cert. denied, 534 U.S. 1020, 122 S.Ct. 545, 151 L.Ed.2d 422 (2001) (emphasis in original). Even if we were to determine that La.R.S. 9:344 is not applicable in this case, the constitutionality of the corresponding Civil Code Article 136 has been challenged specifically on the grounds that it violates a parent’s fundamental liberty interests and it was found to be constitutional. See Reinhardt v. Reinhardt, 97-1889 (La.App. 1 Cir. 9/25/98); 720 So.2d 78, writ denied, 98-2697 (La.12/8/98); 734 So.2d 635, cert. denied, 526 U.S. 1114, 119 S.Ct. 1761, 143 L.Ed.2d 792 (1999).

For the reasons stated above and in light of Mrs. Chatelain’s past contact with Victoria, as well as her substantial economic support for the past several years, we find no error in the trial court’s determination that it is in Victoria’s best interest to ensure her continued contact with Mrs. Chatelain.

DECREE

For the foregoing reasons we affirm the trial court’s ruling changing the physical custody schedule from a “seven and seven” schedule, to an every other weekend schedule outlined above. We also affirm the trial court’s grant of visitation every third weekend with Victoria Dupre. All costs of this appeal are assigned to Mr. Dupre.

AFFIRMED.

WOODARD, J., Dissents in part and concurs in part and assigns written reasons.

AMY, J., Concurs.

|,WOODARD, J.,

dissenting in part and concurring in part.

Respectfully, I dissent in part and concur in part.

Regarding the parents’ custody/visitation issue, I recognize the great discretion that the trial court has in these matters; however, judges should put their personal predilections aside when faced with contrary evidence and decide a case based on the evidence before them. In the instant case, the trial court acknowledged that it relied on its personal view that a 7/7 schedule does not work, despite the contrary evidence that it was working well in this particular situation.

In affirming this portion of the lower court’s judgment, the majority gives great weight to the change that the 1995 revision made to La.R.S. 9:335. While it correctly notes that the revision removes the presumption, that sharing physical custody equally is in the best interest of the child, it fails to recognize that Tim Dupree does not need the benefit of that presumption. In the case sub judice, facts establish that, under this sharing arrangement, the children were well adjusted, doing well in school, and that |?there were no significant problems. Even Victoria liked it. Moreover, Dr. Lowe, the court appointed expert, admitted that while, generally, he too did not think the 7/7 arrangement was a good idea, it was working in this case.

Although the interim judgment, ordering the 7/7 arrangement, was to be in effect only until the court could hold a formal hearing in the matter, which was initially set for a couple of months later, the hearing was continued. Basically, this permitted the arrangement for more than six months. Thus, we have ample experience which demonstrates the effectiveness of the 7/7 plan in this case and, importantly, that this arrangement dramatically fosters these children’s best interest. Thus, I believe that the trial court’s failure to rely on the evidence was manifest error and should be reversed.

I concur in the majority’s decision regarding the grandparents’ visitation. I agree that La.R.S. 9:344(A) is determinative but find support for this statute’s application within the Code itself.

A review of the pertinent articles, in pari materia, demonstrates that Victoria is a child of the marriage between Jason and Janie, as iterated in La.R.S. 9:344(A). This statute provides that:

If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the ... incarcerated party ... may have reasonable visitation rights to the child ... if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

(Emphasis added.)

Standing alone, La.Civ.Code art. 184, which states that “The husband of the mother is presumed to be the father of any children bom or conceived during the marriage,” (emphasis added) creates some confusion because it establishes a presumption of legal paternity in favor of, both, Jason and Tim. Likewise, standing alone, La.Civ.Code. art. 186, which provides an exception to Article 184 when “another man is presumed to be the father,” is ambiguous concerning whether “another man” refers to the first husband, Jason, or the current husband, Tim. Nonetheless, an analysis of the statutory scheme, in pari materia, clarifies these ambiguities, yielding the conclusion that a child conceived during one marriage and Jjjborn into another is a “child of the marriage” between the two people who were married at the time of conception, rather than at birth.

Specifically, Article 188 applies to “[a] man who marries a pregnant woman and who knows that she is pregnant at the time of the marriage.” This article, which obviously applies to Tim, creates a presumption that Tim is the father unless “another man is presumed to be the father[.]” Thus, Article 188 specifically addresses the situation in the instant case. Furthermore, article 185 provides that “[a] child born less than three hundred days after the dissolution of the marriage is presumed to have been conceived during the marriage.” Thus, Jason, the biological father, was already presumed to be Victoria’s father at the time that Tim married Janie. Consequently, since there is no evidence in the record that Jason has disavowed Victoria, he is presumed to be the father.

Thus, the trial court had authority under La.R.S. 9:344 to grant reasonable visitation to the grandparents, provided it is in the children’s best interest. Given the evidence in the record, I am concerned about the grandparents’ willingness to foster a close relationship between Victoria and Tim, who has apparently provided her with consistent, excellent and significant primary care and love since her birth. This is a threshold tenet of Article 136 upon which a finding of best interest of the child is contingent. However, since we are required to defer to the trial court’s discretion and judgment in this regard, I concur in the majority opinion, affirming this ruling.

      . See State, DOTD v. August Christina & Bros., Inc., 97-244 (La.App. 5 Cir. 2/11/98); 716 So.2d 372.


source: Caselaw Access Project

author: | WOODARD, Judge. hAMY, J., h SANDERS, J,

license: Public Domain

text:
    Phyllis M. BROUSSARD v. CITGO PETROLEUM CORPORATION.
    No. 02-895.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2002.

      John Foster DeRosier, DeRosier & Barrett, Lake Charles, LA, for Phyllis M. Broussard.
    John Joseph Rabalais, Rabalais, Unland, and Lorio, Covington, LA, for Citgo Petroleum Corporation.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   | WOODARD, Judge.

Ms. Broussard appeals the WCJ’s grant of Citgo’s peremptory exception of prescription of her claim for disability benefits. We find that Ms. Broussard did not carry her burden of proving that prescription was interrupted and therefore affirm the WCJ’s ruling.

Ms. Broussard had worked for Citgo Petroleum Corporation (Citgo) for approximately twenty-one years, when her supervisor told her on April 14, 2000 that she “sure picked a hell of a day to quit sniffing glue.” She claims that this caused her to suffer from depression and to never return to work.

During her absence, Citgo continued to directly deposit money into her account, under its collective bargaining agreement, until it terminated her. At that time, it notified her that her last direct deposit would be in January 2001. She filed a disputed claim for compensation with the Office of Workers’ Compensation on October 30, 2001, approximately 18 months after the April 14, 2000 incident and approximately 10 months after receipt of Citgo’s final payroll payment.

Citgo responded by filing a peremptory exception of prescription which the WCJ granted, despite Ms. Broussard’s contention that Citgo’s continued payments had suspended or interrupted prescription. Ms. Broussard appeals.

Burden of Proof

The party alleging that the claim has prescribed generally bears the burden of proof. However, since Ms. Broussard first filed her claim with the Office of Workers’ Compensation on October 30, 2001, more than one year after the alleged accident on April 14, 2000, her claim has prescribed on its face. Accordingly, it is she who has the burden of proving that prescription was somehow suspended or interrupted. She attempted to prove this by maintaining that Citgo’s payments to her, after she left, lulled her into a false sense of security that she was receiving workers’ 1 ^compensation benefits. Thus, prescription was interrupted until its last payment to her in January 2001, rendering her claim timely.

Prescription

La.R.S. 23:1209(A) governs prescription of workers’ compensation claims and provides the claimant with one year after the alleged accident to bring a claim:

In case of personal injury ... all claims for payment shall be forever barred unless within one year after the accident ... the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment[.]

Thus, the one-year time period is prescriptive, rather than peremptive, and may be interrupted. However, the statute, itself, provides an exception to the general rule of prescription when the parties have agreed that workers’ compensation payments will be made. In that case, the prescriptive period does not begin to run until the final payment is made. Jurisprudence has further defined this exception to allow Ms. Broussard to prove interruption by showing that Citgo induced her not to file her claim by lulling her into a false sense of security that their payments to her were, in fact, in lieu of workers’ compensation.

False Sense of Security

To establish this, Ms. Broussard must show that through its words, actions, or inactions, Citgo induced her to withhold suit until after the claim had prescribed. We have held that where the employer pays wages in lieu of compensation to the ^claimant, such payment is sufficient to lull the claimant into a false sense of security. And, specifically, in Dupaquier v. City of New Orleans, the Louisiana Supreme Court found that where the plaintiff reasonably believed that the sick leave benefits, which he was receiving, included workers’ compensation, the employer was estopped from invoking the time bar under La.R.S. 23:1209.

Notwithstanding the above principle, in the instant case, we do not find that Ms. Broussard could have reasonably believed that she was receiving wages in lieu of compensation as opposed to sick leave benefits. Apparently, the only basis for her belief is that the amount of the payments were consistent with the amount she would have been paid had they actually been workers’ compensation payments. This is the case because, under the agreement, her pay schedule was based on the amount of time that she had worked for Citgo. Thus, whether she was unable to work because of a work-related injury or something completely unrelated to her job, she would have received the same amount of pay. However, the entirety of her sick leave benefits was deposited to her account by Citgo, while she would have received two separate deposits if the payments had been workers’ compensation benefits. Therefore, the form of the payments was consistent with sick leave benefits. She could not have reasonably believed otherwise, especially considering that she never even filed an accident or incident report with Citgo, and it is disputable whether she told anyone about the on-the-job “incident.”

Additionally, Ms. Broussard agreed that she knew that she was being paid according to the collective bargaining agreement. Moreover, she testified that during the course of her twenty-one years of employment with Citgo, she had previously received sick leave benefits under this agreement. Therefore, she should have been familiar with Citgo’s practice. Furthermore, during the discovery process, Ms. Broussard, herself, classified the payments as “sick benefits,” as the following excerpt from interrogatories to her indicates:

| ¿INTERROGATORY NO. 13:

Please list all sources of income of any kind since the date of your alleged work injury made the subject of this suit.

ANSWER TO INTERROGATORY NO. 13:

“Sick Benefits” from Citgo Petroleum Corporation from April, 1999[sic 2000], to December 1999[sic 2000].

Ms. Broussard’s testimony at trial was consistent with this belief. She does not testify that she perceived the payments to be in lieu of workers’ compensation. Rather, she states, only, that the payments indicated to her that she was being paid by Citgo, nothing more.

Accordingly, there simply is not enough evidence that she was lulled into a reasonable belief that Citgo was paying her workers’ compensation benefits. Thus, we find that her claim has prescribed and affirm the WCJ’s grant of Citgo’s peremptory exception.

CONCLUSION

Ms. Broussard filed a claim for workers’ compensation benefits beyond the one-year prescriptive period provided by statute. Since we find that she did not carry her burden of proving that prescription was interrupted, we affirm the WCJ’s grant of Citgo’s peremptory exception of prescription and cast her with the costs of this appeal.

AFFIRMED.

AMY, J., concurs and assigns written reasons.

SAUNDERS, J., dissents and assigns written reasons.

hAMY, J.,

concurring.

I agree that an affirmation of the ruling of the workers’ compensation judge is required. In addition to the claimant’s failure to sustain her burden of proof with regard to the prescription issue. I observe that the claimant also failed to allege a compensable accident within the definition of La.R.S. 1021(7)(b). The failure to state a cause of action may be noticed on the court’s own motion. See La.Code Civ.P. art. 927(B).

The claimant alleged only mental injury caused by mental stress. La.R.S. 23:1021(7)(b) provides:

Mental injury or illness resulting from work-related stress shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter, unless the mental injury was the result of a sudden, unexpected, and extraordinary stress related to the employment and is demonstrated by clear and convincing evidence.

There is no indication that the claimant’s alleged mental injury resulted from the type of “sudden, unexpected, or extraordinary stress” required by Section (7)(b).

For these reasons, I concur in the affirmation of the ruling of the workers’ compensation judge.

h SANDERS, J,

dissents.

I respectfully dissent from the majority opinion. Under the facts of this case, I find it reasonable for Ms. Broussard to believe that her continued deposits from Citgo were payments in lieu of compensation. As a result, I would find that the prescriptive period provided by La.R.S. 23:1209 was interrupted because Ms. Broussard was lulled into a false sense of security regarding her workers’ compensation benefits. As stated by the majority, La.R.S. 23:209 provides the prescriptive periods applicable for an employee’s claims for workers’ compensation benefits. Employees have one year from the time of an accident to file a workers’ compensation claim. La.R.S. 23:1209(A). When the claim for workers’ compensation has prescribed on its face, the claimant bears the burden of showing that the prescriptive period was interrupted by estoppel. The time period established by La.R.S. 23:1209(A) is prescriptive rather than preemptive and may be interrupted. Lester v. Rebel Crane & Servs. Co., 393 So.2d 674 (La.1981).

The purpose of the one year prescriptive period is to protect employers from the burdensome litigation of stale claims. When, however, the employer lulls the employee into a false sense of security, causing him to withhold suit until after the period has expired, the employer cannot invoke the time bar to defeat compensation.

Dupaquier v. City of New Orleans, 257 So.2d 385, 387-88 (La.1972). To establish that the claimant was lulled into such a false sense of security, they must show that the |gemployer induced him to withhold suit until after the claim has prescribed through its words, actions, or inac-tions. Desselle v. Dresser Indus. Valve, 96-374 (La.App. 3 Cir. 2/5/97); 689 So.2d 549. It is not necessary however, for the claimant to show that the employer intended to mislead them as to the nature of the benefits being paid or the time frame for prescription. Millican v. General Motors Corp., 34,207 (La.App. 2 Cir. 2000); 771 So.2d 234, writ denied, 01-001 (La.3/23/01); 788 So.2d 426.

The Louisiana Supreme Court has held that, under La.R.S. 23:1209, payment of unearned wages by an employer is considered compensation, and such payment serves to interrupt prescription. Dupaquier, 257 So.2d at 387. “The payment of wages in lieu of compensation interrupts prescription for workers’ compensation claims, because such payments lull workers into not filing their claims within the prescriptive period.” Krieg v. Krieg Bros. Terrazzo Co., Inc., 93-1065, p. 3 (La.App. 3 Cir. 9/28/94); 645 So.2d 661, 664, writ denied, 96-152 (La. 3/30/95); 651 So.2d 837. Prescription does not begin to run anew until the last payment. Dupaquier, 257 S0.2d at 387. “Wages in lieu of compensation are defined as unearned wages paid to an employee after an injury.” Krieg, 645 So.2d at 664.

It is clear that Ms. Broussard continued to receive regular payroll deposits after she ceased reporting to work following the April incident. These payroll direct deposits appear to have occurred on regularly scheduled payroll dates corresponding to when Ms. Broussard would have been paid, had she not sustained an alleged work related injury and continued working as usual. Initially, these payments were for her full salary amount. At some point, the amount of these regular deposits decreased, and they eventually stopped in October of 2000. Ms. Broussard received one final direct deposit amount following her termination by Citgo in January of 2001. In the termination letter from Cit-go, written by Mr. Baumgarten, Citgo’s Labor Relations | ..¡Manager, Ms. Broussard was told that her last paycheck would be direct deposited to her account on January 5, 2001. Citgo contends that it was unaware that Ms. Broussard’s absence from work was the result of an alleged workplace injury and, therefore, the payments were merely sick pay as mandated by the applicable collective bargaining agreement. Citgo argues that, according to Keller v. Marathon Oil Co., 613 So.2d 795 (La.App.5 Cir.1993), an employer’s payment of sick leave benefits is not enough to mislead his employee into a false sense of security sufficient to suspend prescription. What Citgo fails to identify however, is that the employee in Keller specifically chose to receive sick leave benefits rather than workers’ compensation benefits, because his sick leave benefits were greater. The court held that in specific circumstances, because of the employee’s affirmative choice of sick leave over workers’ compensation benefits, the employee could not claim to have been mislead.

Citgo also claims that receipt of disability benefits instead of workers compensation benefits is not sufficient to lull an employee into a false sense of security so as to suspend prescription. In support for this argument Citgo cites Siemssen v. Manpower Temporary Services, 95-CA-80 (La.App.5 Cir.5/30/95); 656 So.2d 1115, and Brown v. Caddo Career Center, 28,111 (La.App.2 Cir.2/28/96); 669 So.2d 712, writ denied, 96-1042 (La.5/31/96); 674 So.2d 262. As with Keller, however, these cases can be distinguished from the present case. In both cases, the facts indicated that the employees were fully aware they were receiving disability benefits instead of workers compensation benefits, and therefore, the employee was never mislead.

The test for whether an employee has been lulled into a false sense of security consists of both subjective and objective considerations. There must be a third party Lpayor making payments under circumstances where a reasonable person could believe the payments were wages in lieu of workers’ compensation benefits. I agree with Ms. Broussard’s argument that, with respect to the subjective portion of the test, the question is not what form of compensation Citgo believed the payroll deposits to be, but rather, what type of compensation Ms. Broussard believed the payroll deposits to be. The primary purpose behind the interruption of prescription where the employee is lulled into a false sense of security is to correct for an employee’s mistaken belief that they are receiving workers’ compensation benefits. In light of such a belief on the part of the employee, they would have no reason to file for workers’ compensation benefits, and cannot be expected to realize that their statutory time for claiming such benefits is running out. The key to the analysis of this issue is that the employee in question believes that he has no reason to file for workers’ compensation benefits. Unlike the majority, I find Ms. Brous-sard’s belief that she was receiving wages in lieu of workers’ compensation to be reasonable under the circumstances of this case.

The majority finds Ms. Broussard’s agreement that she knew she was being paid according to the collective bargaining agreement to be significant, as well as the fact that she had previously received sick leave benefits under this agreement. Ms. Broussard insists that she was unaware that her continued payroll deposits were not wages in lieu of compensation as provided by the Citgo Employee Agreement. It is entirely credible, in light of the Agreement’s indication that workers’ compensation benefits were identical in amount and payment schedule to sick leave benefits, that she would believe her payments to be wages in lieu of compensation. Moreover, her testimony on this point is uncontested. In light of such a belief, she would have no reason to file a workers’ compensation claim during the time period she was receiving those payments.

|sFor the reasons outlined above, I find Ms. Broussard has met her burden of showing that she believed she was receiving unearned wages from Citgo. In my opinion, the evidence was sufficient to show that these payments by Citgo effectively lulled Ms. Broussard into a false sense of security regarding her recovery of workers’ compensation benefits. Therefore, I would find that the prescriptive period was interrupted and did not begin to run anew until after the final payment by Citgo.

      . Richardson v. Tyson Foods, 01-427 (La.App. 3 Cir. 10/3/01); 796 So.2d 827.

      . Id.

      . Lester v. Rebel Crane & Serv. Co., 393 So.2d 674 (La.1981).

      . La.R.S. 23:1209(A).

      . Desselle v. Dresser Indus. Valve, 96-374 (La.App. 3 Cir. 2/5/97); 689 So.2d 549, writ denied, 97-618 (La.4/25/97); 692 So.2d 1086.

        . Id.

      . Krieg v. Krieg Bros. Terrazzo Co., Inc., 93-1065 (La.App. 3 Cir. 9/28/94); 645 So.2d 661, writ denied, 95-152 (La.3/30/95); 651 So.2d 837.

      . 260 La. 728, 257 So.2d 385 (1972).


author: WOODARD, Judge.

text:
    James A. SEAMAN, et ux v. Frank A. HOWARD and State of Louisiana, Department of Public Safety and Corrections.
    No. 02-855.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 30, 2002.

      Howard N. Nugent, Jr., Alexandria, Louisiana, for Plaintiff/Appellee.
    James A. Seaman, James E. Calhoun, Alexandria, Louisiana, For Defendants/Appellants.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   WOODARD, Judge.

Through the Department of Public Safety and Corrections (DPSC), the State of Louisiana appeals the trial court’s allocation of fault to DPSC for Mr. Larry Jean-sonne’s escape from the Vernon Parish Correctional Facility and Mr. James A. Seaman’s subsequent exposure to HIV. We reverse.

In August of 1993, Mr. Jeansonne was convicted of cocaine possession and sentenced to two years at hard labor. After sentencing, DPSC returned him to the East Baton Rouge Parish Correctional Facility. On January 13, 1994, it transferred him to the Vernon Parish Correctional Facility.

The Vernon Parish Sheriffs Department permitted him to work outside of the Correctional Facility, performing maintenance work on the Vernon Parish Police Jury’s vehicles. On February 23,1994, he stole a van from the repair shop and escaped. He lost control and ran into James Seaman’s front yard. Mr. Seaman, a former law enforcement officer, tackled him, ultimately, receiving multiple scrapes and open wounds on his knuckles, which became covered with Mr. Jeansonne’s blood. Additionally, Mr. Jeansonne repeatedly spit on him and other people at the scene.

Thus, the Vernon Parish Correctional Facility ordered a blood test which revealed that Mr. Jeansonne was HIV-positive. One week later, Mr. Seaman’s pastor, who was also the Vernon Parish .Correctional Facility’s chaplain, told him that Mr. Jeansonne was HIV positive. Mr. Seaman filed suit against DPSC and others, seeking damages for his exposure to HIV and for his fear of contracting AIDS. DPSC is the only party before us. After the trial court denied its motion for summary judgment, it applied for supervisory writs which this court denied. However, the Louisiana Supreme Court granted writs and remanded the case to us for arguments. This court affirmed the trial court’s denial of the motion and remanded the matter for a full trial on the merits.

At trial, the court found that DPSC owed a duty to discover and transmit the inmate’s communicable disease and escape histories to the parish sheriff and correctional facility. Thus, it rendered a judgment, absolving the Vernon Parish |2Sheriff of any responsibility for the escape and for Seaman’s exposure to HIV, assessed 100% fault against DPSC, and awarded $70,000.00 in damages to the Seaman family. From this judgment, DPSC perfects this appeal.

STANDARD OF REVIEW

We may not set aside a trial court’s finding of fact, absent manifest error or unless it is clearly wrong. As such, in order to reverse the trial court’s judgment, after reviewing the record in its entirety, we must find that a reasonable factual basis does not exist for the trial court’s finding and that the record establishes that the finding is clearly wrong.

DPSC’s Duty to Test for HIV and to Inform

The trial court found that DPSC had a duty to discover whether an inmate is afflicted with a communicable disease and to inform the Vernon Parish Sheriffs Office of his status. Contrarily, DPSC asserts that it had no duty to disclose medical records since it never had physical custody of Mr. Jeansonne.

In 1997, the Louisiana Legislature passed La. R.S. 15:739, which imposed a duty to test an inmate, who has been involved in an incident where bodily fluids or wastes are thrown on another person, for HIV and AIDS. However, the statute was not in effect at the time of this altercation.

In the instant case, neither party presented either statutorily or jurisprudentially imposed duties. After thoroughly searching jurisprudence and statutory provisions, we have failed to find a duty, in effect at the time of the incident, applicable to the facts presented. Rather, the statutes that we have found which were in effect at that time provide for the testing of convicted sexual offenders and the like. For example, La.R.S. 15:535 provides, in pertinent part:

A. When a sexual offender is convicted, the court shall order and direct the offender to submit to a blood and saliva test, to be made by qualified physicians or other qualified persons, under such restrictions Land direction as the court deems proper.
C. The court shall also order the person convicted of or adjudicated a delinquent for a sexual offense as defined in R.S. 14:42 through 43.4 to submit to a test designed to determine whether the person is infected with a sexually transmitted disease, or is infected with acquired immune deficiency syndrome (AIDS), the human immuno deficiency virus (HIV), HIV-1 antibodies, or any other probable causative agent of AIDS. The procedure or test shall be performed by a qualified physician or other qualified person who shall report any positive result to the Department of Public Safety and Corrections, make the notification of the test results to the victim of the alleged offense, and notify the victim or the parent or custodian of the victim of the offense, regardless of the results.

Thus, we believe that had the legislature intended that every inmate be tested for a communicable disease, it would have promulgated a statute to that effect and would not have provided the specific limitations found in La.R.S. 15:535. Consequently, we find that DPSC did not have a duty to test Mr. Jeansonne.

However, if DPSC had knowledge that Mr. Jeansonne was HIV positive, it had a duty to disclose such information to Vernon Parish Sheriffs Office upon transferring him. The parties stipulated that Mr. Jeansonne’s blood was drawn while he was at the East Baton Rouge Parish Correctional Facility, before his transfer. The implication is that the DPSC knew of Mr. Jeansonne’s HIV status but failed to pass on his medical records or disclose this condition. However, the record contains no evidence regarding the nature of the tests, if any, performed on Mr. Jeansonne’s blood or why the blood was drawn. Nor is there any evidence in the record that DPSC knew or should have known that he was HIV positive. Consequently, Mr. Seaman has not met his burden of proof that DPSC breached the duty to disclose.

Therefore, we reverse this portion of the trial court’s judgment.

DPSC’s Duty to Provide an EsCape History

Lt. Randolph Johnson, supervisor of the Louisiana Bureau of Criminal Identification and Information with DPSC’s Criminal Records Division, testified by affidavit that “the Criminal Records Division of the Office of the State Police ... maintains a central repository of criminal history record information in a database | identified as the ‘Louisiana Computerized Criminal History,’ which database contains criminal history record information contributed by state and local criminal justice agencies in the State of Louisiana[.]” (Emphasis added.) Furthermore, he said that the information was “accessible at no charge to any eligible criminal justice agency ... via the Law Enforcement Telecommunications Network.” Clearly, the DPSC had access to the databases in which we would normally find criminal history such as a rap sheet. However, it asserts that it did not have that information before the incident with Mr. Seaman because the information was not in the database system until March of 1994. The record also contains a stipulation that: “The Vernon Parish Sheriffs Department did not inquire from the Louisiana Department of Public Safety and Corrections data base regarding any matter concerning Larry Jeansonne.” While this court’s previous opinion in Seaman stated that Deputy Sheriff Yvonne Hall’s affidavit explained “that when she accessed the criminal history database to research Jeansonne’s history, she did not find a reference to Jeansonne’s history of escape,” actually, the affidavit merely states “that on June 17, 1998 as part of her aforesaid duties, Appearer had occasion to research the aforesaid records for the ‘rap sheet’ of Larry Joseph Jeansonne, date of birth December 16, 1959, Federal Bureau of Investigation No. 418816T1, which said ‘rap sheet’ is attached hereto and made a part hereof as Exhibit ‘A’; that the said “rap sheet” constitutes the sole such information available and accessible to the Vernon Parish Sheriff through the aforesaid system.” While Mr. Jeansonne’s rap sheet bears the letters “fug” three times, we have not been provided with any evidence that would indicate its significance; for example, whether it means that he escaped or simply failed to show up for a bench warrant or the like. Moreover, DPSC indicates that it did not have this rap sheet until after the incident in question.

Mr. Seaman bore the burden of proving that DPSC knew or should have known of Mr. Jeansonne’s escape history before March of 1994, the date that DPSC obtained custody of Mr. Jeansonne. However, Mr. Seaman has provided us with no law to indicate that DPSC had a duty to discover this information nor has he supplied us | ¡¿with the procedure for how it was to acquire it. Again, without evidence, we cannot determine whether DPSC had the information but negligently did not enter it into the database or was required to constantly inquire of or solicit it from other agencies but failed to do so.

Lt. Johnson’s statement that the “ ‘Louisiana Computerized Criminal History,’ which database contains criminal history record information contributed by state and local criminal justice agencies in the State of Louisiana” implies that DPSC must rely on other law enforcement agencies’ diligence to supply the pertinent information, as opposed to it having an affirmative duty to obtain it. Assuming that this is true, certainly, it did not have a duty to disclose what it did not have or have a duty to discover.

Moreover, our supreme court instructs us that once a prisoner is transferred to the physical custody of a Sheriff, although he may remain in the legal custody of the DPSC, he is considered to be in the custody of the Sheriff who has the exclusive responsibility for his work assignment and safekeeping. And, it absolves DPSC of having a duty to disclose information when law enforcement, which is housing the prisoner, also has knowledge of the same information, as in the instant case.

We find that Mr. Seaman has not met his burden of proving that DPSC had the information before March 1994 but failed to disclose it nor that it had a duty to discover Mr. Jeansonne’s criminal history. We reverse.

CONCLUSION

Mr. Larry Jeansonne escaped from the Vernon Parish Correctional Facility with a van, ran into Mr. James A. Seaman’s front yard, and fought with him. Mr. Seaman’s injuries were covered with Mr. Jean-sonne’s blood. The Vernon Parish Sheriff and Correctional Facility performed a blood test which revealed that the prisoner was HIV positive.

Mr. Seaman filed suit against DPSC for failing to inform the Vernon Parish Sheriff and Correctional Facility of Mr. Jean-sonne’s HIV-positive status and of his escape history. We find that Mr. Seaman failed to satisfy his burden of proving that |fithe DPSC had a duty to determine his HIV status and that it had a duty to discover Mr. Jeansonne’s escape history.

We reverse and assess costs against Mr. Seaman.

REVERSED.

AMY, J., concurs in the result.

      . Stobart v. State through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993).

      . Id.

      . 98-1492 pp. 5-6 (La.App. 3 Cir, 6/2/99), 743 So.2d 694.

      . Granger v. Guillory, 01-1539 (La.App. 3 Cir, 6/5/02); 819 So.2d 477 writ denied, 02-1841 (La.10/14/02); 826 So.2d 1132, citing Cangelosi v. Our Lady of the Lake Reg'l Med. Ctr., 564 So.2d 654 (La.1990).

      . Harper v. State, 96-47 (La.9/5/96); 679 So.2d 1321.

      . Id.


author: JjDREW, J.

text:
    Carolyn GRAVES, Plaintiff-Appellant, v. Charlotte GILLYARD, Defendant-Appellee.
    No. 35,750-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 23, 2002.
    Elton B. Richey, Shreveport, Counsel for Appellant.
    Rabalais, Hanna & Hebert by Kay Karre Gautreaux, Lafayette, Counsel for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   JjDREW, J.

Plaintiff, Carolyn Graves, appeals from a summary judgment in favor of one of the defendants, her employer, Progressive Health Care Providers, Inc. The trial judge dismissed her tort suit against Progressive, holding plaintiffs exclusive remedy to be in worker’s compensation. We reverse.

FACTS

Graves, the employee, and Charlotte Gillyard, her supervisor, did not get along. In fact, there was considerable personal friction between the two.

Graves was attacked for several minutes by a 16-year old mentally-challenged client of Progressive. Gillyard says the encounter lasted “5 to 10 minutes.” Graves, on the other hand, says there were actually three separate incidents of violence which took place in the presence of Gillyard. The cumulative testimony of Graves indicated the struggle(s) lasted perhaps twice as long as Gillyard estimated.

Graves admittedly never called out for help; Gillyard admittedly merely observed the altercation(s) and stated that several times she asked Graves if she needed assistance. It is disputed factually as to when and how Gillyard finally assisted Graves, during or after the actual prolonged struggle(s) with the teenager. Graves asserted Gillyard never assisted Graves during the altercations and Gill-yard did not discipline the child until after the struggle ended. In short, Graves’ and Gillyard’s versions of both the physical encounter(s) as well as Gillyard’s actions differ dramatically. These factual disputes make this an inappropriate case for summary judgment.

[¡Plaintiff has made out a prima facie case that the deliberate refusal of Gillyard to assist Graves during the prolonged, violent encounter, amounts to a clear “Intentional Act,” an exception to her exclusive worker’s compensation remedy.

In Weber v. State of Louisiana, 93-0062 (La.4/1/1994), 635 So.2d 188, the Louisiana Supreme Court held that an employer’s intentional refusal to provide medical treatment to an employee injured in the course and scope of employment in the face of knowledge to a substantial certainty that the refusal would cause death, fell within the scope of the intentional act exception. This is admittedly a less serious, though analogous situation.

The record shows this child has a history of violence. La. R.S. 23:13 directs that every employer shall furnish employment which is reasonably safe for employees. Further, every employer shall furnish and use safeguards and methods reasonably adequate to render the employment and the place of employment safe. To recover, Graves must show her injuries were caused by an unreasonable risk of harm created by the employer’s failure to properly fulfill the duties imposed by La. R.S. 23:13. Gorton v. Ouachita Parish Police Jury, 35432 (La.App.4/3/02), 814 So.2d 95.

If Graves’ version of the facts is believed by the trier of fact, the actions of Gillyard could easily meet the Weber standard. In the present stage of the litigation, Gill-yard’s behavior, if the trier of fact finds Graves to be truthful, is absolutely actionable in tort. Genuine issues of material fact exist as to the employer’s liability.

| ¡¡Certainly Motions for Summary Judgment are now favored, but not when the facts are this disparate. This matter is replete with genuine issues of material fact as to what took place and when.

We reverse the ruling of the trial court, and remand this matter for further disposition. All costs are assessed to Progressive.

REVERSED and REMANDED.


author: J^DREW, J.

text:
    Russell T. GREEN, Plaintiff-Appellant, v. STATE FARM GENERAL INSURANCE COMPANY, Defendant-Appellee.
    No. 35,775-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 23, 2002.

      James M. Johnson, Minden, Counsel for Appellant.
    Kitchens, Benton, Kitchens & Warren, Graydon K. Kitchens, III, Minden, Counsel for Appellee.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   J^DREW, J.

The sole issue is whether the trial court erred in granting defendants’ motion for summary judgment. ■ Russell Green, plaintiff, urged the trial court’s action was inappropriate and premature, in light of his intention to hire an expert to examine the allegedly defective ladder from which Green fell and his assertion that discovery had not been cut off. The judgment is affirmed.

Green, and the defendant, Dennis C. McMullen, Jr., were co-owners of real estate and a gas powered pressure washer which broke down occasionally. On November 27, 1997, Green was using the washer to clean a house owned solely by McMullen. While alone on the property cleaning the house, Green used a five foot aluminum ladder owned by McMullen. After using the ladder approximately 45 minutes, Green fell and was injured. McMullen and his insurer, State Farm Fire and Casualty Company, stated that Green fell from the ladder. Green asserted that the ladder collapsed and he was badly injured.

In his petition filed November 23, 1998, Green alleged that he was standing on the third rung of the ladder when it collapsed with the ladder legs bending inward. Green’s petition stated that he sustained a dislocated right elbow and a fractured right wrist which required hospitalization, surgery and physical therapy. Suing McMullen and his insurer, State Farm, Green asserted that McMullen was strictly liable to him for permitting him to use a defective ladder which he knew, or should have known was | ¡.defective. Green also urged that McMullen was negligent by leaving Green alone operating the power washer while standing on a ladder which he knew or should have known was defective. Both McMullen and State Fann filed answers which denied liability.

On April 22, 1999, the parties filed a joint motion for continuance of a May 17, 1999 trial date because discovery was incomplete and the plaintiff intended to take video depositions of medical doctors for trial which had not been able to be scheduled. The matter was continued without date.

On October 11, 1999, the trial judge signed a pretrial order. The parties set out their respective contentions and represented to the court that no motions were pending before the court. The defense position was that the accident was caused by the plaintiffs negligence in wrapping the hose of the power washer around the legs of the ladder, that the ladder was not defective and that McMullen had no knowledge nor should he have, that the ladder was defective.

The pre-trial order set out the contested issues: (1) Are the defendants solidarily liable for plaintiffs injuries and was the ladder defective and did defendant know (or should he have known) about the defect?; (2) Was plaintiff guilty of any negligence which would reduce his recovery under comparative fault?; and (3) quantum.

Both plaintiff and defendant represented in the pre-trial order that there were no contested legal issues. The parties supplied lists of their exhibits and witnesses. The defendants listed Ron McKinley, P.E. as their ^expert to inspect and give testimony about the condition of the aluminum ladder along with an economic expert to be selected. The plaintiffs witness list stated experts were to be selected to inspect and give testimony about the condition of the ladder and to provide testimony on economic issues. Both sides stated they had no requests for amendments to the pleadings and that neither party was aware of any additional matters to assist in the disposition of the action which they estimated would take two and one half days to try.

The next filing in the record came eighteen and one-half months later on May 1, 2001. The defendants, McMullen and State Farm, filed a motion for summary judgment based upon La. C.C. art. 2317.1 which requires that a defendant knew or should have known of the existence of the defect which caused the damages. The defendants asserted that the ladder was not defective, but that even if there was a defect, plaintiff could not satisfy his burden of proof because he had no evidence that McMullen knew or should have known of a defect in the ladder.

In support of the motion for summary judgment, defendants filed the affidavit of Ron McKinley, a licensed professional engineer. After examining the ladder, McKinley stated: the ladder legs had an outward taper that prevented downward pressure from causing an inward collapse; the damage to the ladder could not "have occurred from a downward load such as a person standing on the ladder; the fracture points were new and brittle and caused by sudden over-stressing of the metal; that force was applied to the outside of the ladder leg surfaces; the damage to the ladder and the fall |4was not caused by a structural failure in the ladder, but were more probably than not caused by Green’s loss of balance; and the damage to the ladder and to Green was caused when Green fell onto the ladder legs.

In his opposition to the Motion for Summary Judgment, Green stated that he planned to employ an expert engineer, that the case was not set for trial and that discovery had not been foreclosed. Therefore, it was premature and improper to grant the Motion for Summary Judgment which was improperly based upon defendant’s expert witness. Green urged that what McMullen knew or should have known about the condition of the ladder should be decided on the circumstantial evidence presented at trial. Green filed no affidavits or anything else to buttress the argument in his opposition.

On June 5, 2001, the trial judge granted the motion for summary judgment and dismissed plaintiffs action at his cost. On August 3, 2001 Green filed this appeal.

DISCUSSION

In Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.2/29/00), 755 So.2d 226, the supreme court explained that review of a grant or denial of a motion for summary judgment is de novo. A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The article was amended in 1996 to provide that summary judgment procedure is |5 designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). A 1997 amendment of the article specifically altered the burden of proof in summary judgment proceedings to provide that the burden of proof remains with the movant. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). This amendment levels the playing field between the parties in two ways: first, the supporting documentation submitted by the parties is scrutinized equally, and second, the presumption in favor of trial on the merits is removed. Independent Fire Ins. Co. v. Sunbeam Corp, supra.

La. C.C.P. art. 966(C)(2) establishes that while the burden of proof remains with the movant, if the movant will not bear the burden of proof at trial, the movant does not have to negate all essential elements of the adverse party’s claim, action, or defense, but must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. Then, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Hagood v. Brakefield, 35570 (La.App.2d Cir.1/23/02), 805 So.2d 1230.

A motion for summary judgment may be made at any time. La. C.C.P. art. 966(A). After adequate discovery or after a case is set for trial, a motion for summary judgment which shows that there is no genuine issue of material fact and that the movant is entitled to summary judgment as a | fimatter of law shall be granted. La. C.C.P. art. 966(C). Eason v. Finch, 32157 (La.App.2d Cir.8/18/99), 738 So.2d 1205, writ denied, 99-2767 (La.12/10/99), 751 So.2d 861.

Green contended that the trial court prematurely and incorrectly granted the summary judgment because discovery had not been foreclosed and because no trial date had been set. In Eason v. Finch, supra, the plaintiff complained on appeal that the trial court should not have granted summary judgment because discovery was not complete. In affirming the summary judgment, the court noted that parties may move for summary judgment and the court may consider the motion before the parties have completed discovery. The fact that discovery is incomplete does not procedurally bar the defendant from seeking a summary judgment. The trial court has the discretion to issue a summary judgment or order more discovery. While parties must have a fair opportunity to conduct discovery and present their claim, there is no absolute right to delay action on a motion for summary judgment until discovery is complete. In Eason, supra, the defendant filed an opposition which was supported by excerpts from depositions and answers to interrogatories. This court noted that the suit had been filed in October 1997 and defendant sought a summary judgment in September of 1998. The trial court granted the summary judgment in October of 1998. Concluding, in essence, that plaintiff had received a fair opportunity to conduct discovery and present her claim, this court found that the trial court did not abuse its discretion in granting the summary judgment instead of ordering more discovery.

17This court also affirmed the summary judgment granted in Berzas v. OXY USA, Inc., 29835 (La.App.2d Cir.9/24/97), 699 So.2d 1149. Apartment residents sued a number of defendants in 1991 to recover for their damages allegedly caused by toxic and hazardous wastes deposited in the ground including the site of their apartments. OXY conducted discovery and plaintiffs conducted no discovery. After discovery deadline and trial date were set, plaintiffs sought to continue the trial until government agencies completed their testing. OXY relied in part on plaintiffs’ failure to designate experts for claims that could not be proven absent expert testimony. The plaintiffs responded that they could not get experts until the EPA, DEQ and the La. Office of Public Health identified the toxins at the site. The court observed that once a motion for summary judgment has been properly supported, the failure of the nonmoving party to produce evidence of a material factual dispute mandates the granting of the motion for summary judgment. OXY" pointed out that in the five years the suit had been pending, plaintiffs had not conducted discovery. To oppose the summary judgment, plaintiffs supplied an affidavit from a government official that testing was incomplete. In granting the summary judgment, the court noted that plaintiffs had failed to show they were exposed to chemicals, that they had suffered any injury and that OXY was responsible for any alleged exposure. The court also pointed out that plaintiffs had ample time for discovery and made no efforts to factually support any element of their claim against OXY.

|8 In Barron v. Webb, 29707 (La.App.2d Cir.8/20/97), 698 So.2d 727, writ denied, 97-2357 (La.11/26/97), 703 So.2d 651, this court also affirmed a summary judgment which plaintiffs contended was granted prior to adequate discovery. The suit was filed in January of 1996 and the Motion for Summary Judgment was filed in August of 1997. Plaintiffs opposed the motion with an affidavit from their attorney stating one witness scheduled for deposition could not be found and the defendant-homeowners had not been deposed. This court observed that once a Motion for Summary Judgment is made and supported, the burden shifts to the opposing parties. This court found that there was no absolute right to delay an action until discovery is cut off and that plaintiffs had been given a fair opportunity to present their claim and filed only a conclusory affidavit instead of seeking to have discovery set. After concluding that the defense Motion for Summary Judgment had been properly supported and there was no material issue of genuine fact, this court affirmed the summary judgment.

The case has been pending over three years and a pre-trial order was signed in October 1999 which set out plaintiffs intent to retain experts on the condition of the ladder and economic issues, yet no action was taken. Plaintiffs response to the motion for summary judgment was to state again his intention to retain experts. The plaintiff in this case certainly had a fair opportunity to conduct discovery and to present his claim.

Before a summary judgment can be granted, the movant must establish that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(C)(1). In |9 Hagood v. Brakefield, supra, the court discussed liability for damage caused by defective things. La. C.C. 2317 and 2317.1 state:

We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.
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....

Enacted in 1996, La. C.C. art. 2317.1, effectively negated the concept of “strict liability” for defective things and prescribed a negligence standard based on the owner or custodian’s knowledge or constructive knowledge of a defect. However, the article 2317.1 requirement of constructive knowledge imposed a reasonable duty to discover apparent defects in things under the defendant’s garde. Hagood, supra. Hagood was injured when he fell and was cut by the chain saw he was using. The parties conceded the owner of the saw had no actual knowledge that the chain saw continued to run after the trigger was released. Hagood opposed the owner’s motion for summary judgment with affidavits from two witnesses of the defect in the saw and from an expert who stated the saw was unreasonably dangerous. Although the parties conceded the owner had no actual knowledge of the defect, this court reversed a summary judgment in favor of the owner after finding that Ha-good had opposed the motion with enough to raise a genuine issue of material fact as to the owner’s constructive knowledge.

|10 In this matter, one of Green’s complaints on appeal is that the trial court improperly considered the affidavit of defendant’s expert witness. The supreme court concluded that affidavits of experts may be considered for purposes of a motion for summary judgment. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2257 (La.2/29/00), 755 So.2d 226.

Supporting defendants’ motion for summary judgment was their affidavit from an expert engineer who, after setting out his scientific credentials, reported his examination of all portions of the ladder including the broken portion. The expert stated that the ladder was in good condition and that Green’s fall was not caused by structural failure of the ladder, but by his losing his balance and falling on the ladder legs. Concerning the owners’ constructive or actual knowledge of an alleged defect, defendants presented an excerpt from Green’s deposition at which he responded, “I don’t know that. Huh-uh,” to whether Green had any reason to think that all that McMullen knew that the ladder was defective or would fall. In the memorandum in support of the summary judgment and in response to Green’s allegation that McMul-len negligently caused his fall by leaving the premises instead of staying and holding the ladder, the defendants noted that Green had stated that McMullen left over an hour before the accident and that Green worked unassisted.

The defendants established there was no genuine issue of material fact as to McMullen’s negligence or actual and/or constructive knowledge of a defect. Instead of opposing the summary judgment with his own expert |nand lay testimony, Green simply indicated he would hire an expert and stated discovery was not complete and the matter did not have a trial date.

Summary judgment may be sought at any time. Plaintiff had a fair opportunity to conduct discovery and present this claim and had no absolute right to delay action on the motion for summary judgment until discovery was complete. Once the defendants presented the properly supported motion for summary judgment showing no genuine of issue of material fact, the burden shifted to Green to present evidence that genuine issues of material fact exist. Instead, Green simply sought to delay the long pending matter by repeating again his intention to hire a scientific expert.

DECREE

The trial court did not err in granting the defense motion for summary judgment and dismissing Green’s action with prejudice. Costs are assessed to Russell T. Green, plaintiff.

AFFIRMED.

      . Green's petition named as defendant “State Farm General Insurance Company.” In its answers on its own behalf and on behalf of McMullen, State Farm Fire and Casualty Company pointed out that Green had incorrectly stated the company's name.

      . That decision contains a specific and extensive discussion concerning the consideration of experts’ affidavits on motions for summary judgment.


author: CARLSON, J.,

text:
    Ed LITTLE v. MISSISSIPPI DEPARTMENT OF HUMAN SERVICES.
    No. 2001-CP-01970-SCT.
    Supreme Court of Mississippi.
    Nov. 7, 2002.
    Rehearing Denied Jan. 23, 2003.

      William E. Whitfield, III, Gulfport, Attorney for Appellee.
    Before McRAE, P.J., EASLEY and CARLSON, JJ.
   CARLSON, J.,

for the Court.

¶ 1. This is an appeal from a judgment of the Circuit Court of the Second Judicial District of Harrison County dismissing a complaint filed, pro se, by the plaintiff, Ed Little (Little), against the Mississippi Department of Human Services (DHS) alleging DHS improperly took custody of Little’s son. The matter out of which the complaint arose was brought by DHS in the Youth Court of Harrison County, from which Little did not appeal. Little instituted his circuit court suit for damages; however, the circuit court granted DHS’s motion for dismissal. Finding no reversible error, we affirm.

FACTS AND PROCEEDINGS IN TRIAL COURT

¶ 2. Little filed a complaint against the DHS on May 1, 2001, alleging that DHS held his son as a “hostage.” He also alleged that DHS acted under the guise of having a “blanket custody order to keep my son.” He.demanded judgment in the amount of $250,000. Little alleged also that DHS made false claims of Little’s son having various wounds on his body. The complaint made several accusations, namely: (1) that Harrison County Youth Court Judge Michael Ward had conspired with DHS to proceed in the “defunct” Harrison County Family Court; (2) that DHS convinced his son that he “couldn’t go back home;” (3) that DHS conspired with Judge Ward to “keep this one,” meaning his son; (4) that Judge Ward unlawfully took and tried to “run a magnet over” audio tapes made by Little during contact with DHS “when the assasins (sic) were trying to kill” Little; and (5) that DHS and Judge Ward were operating a “clandestine foster child ring” and DHS was trying to “kidnap my other kids.”

¶ 3. DHS filed its answer on September 21, 2001, responding that Little had failed to properly perfect service of process; that Little had not complied with statutory formalities of administrative procedures and had not exhausted his administrative remedies; and, that Little had not perfected his right to sue under the Mississippi Tort Claims Act (Miss.Code Ann. §§ 11^6-1 to -23 (2002)). The answer also avers that because the actions about which Little complained were the result of the actions of a judge, DHS is entitled to full judicial immunity. DHS also denied all allegations in the complaint.

¶ 4. On September 21, 2001, DHS filed a Rule 12(b)(6) motion to dismiss which was granted by the circuit court on November 21, 2001. In the order of dismissal, the trial judge found: (1) that Little failed to allege subject matter or in personam jurisdiction, failed to allege proper venue and failed to properly allege the nature of a cognizable party defendant; (2) that none of the allegations stated claims upon which relief could be granted; (3) that DHS was immune from suit since it exercised discretionary duties; and (4) that the circuit court was without jurisdiction to hear Little’s claims.

STANDARD OF REVIEW

¶ 5. A motion for dismissal under Miss. R. Civ. P. 12(b)(6) raises an issue of law. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990) (citing Lester Eng’g Co. v. Richland Water & Sewer Dist., 504 So.2d 1185, 1187 (Miss.1987); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357 at 593 (1969)). This Court conducts de novo review on questions of law. UHS-Qualicare, Inc. v. Gulf Coast Cmty. Hosp., Inc., 525 So.2d 746, 754 (Miss.1987).

¶ 6. A motion to dismiss under Miss. R. Civ. P. 12(b)(6) tests the legal sufficiency of the complaint. As stated in Franklin County Co-Op v. MFC Services (A.A.L.), 441 So.2d 1376, 1377 (Miss.1983), and Stanton & Associates, Inc. v. Bryant Construction Co., 464 So.2d 499 (Miss.1985), in order to grant a Rule 12(b)(6) motion to dismiss, there must appear to a certainty that the plaintiff is entitled to no relief under any set of facts that could be proved in support of the claim.

DISCUSSION

¶ 7. In his rambling, often incomprehensible, melodramatic brief, Little raises seven issues:

(1) Whether the trial court erred in granting the Mississippi Department of Human Services “Rule 12, Miss. R. Civ. P.” motion to dismiss; (2) Whether the trial court erred in granting the Mississippi Department of Human Services “Rule 12, Miss. R. Civ. P.” motion to dismiss out of venue; (3) Whether the Mississippi Department of Human Services has the authority to make or otherwise issue a “blanket custody order”; (4) Whether the family court of Harrison County was a competent court between the dates of January 29, 2000, and March 21, 2000; (5) Whether the trial court lacks jurisdiction over the Mississippi Department of Human Services, the subject matter of, or the venue in the case; (6) Whether § 11-46-11(3) of the Mississippi Code is unconstitutional on the grounds that it establishes separate and unequal class of defendants as well as a separate and unequal class of plaintiffs with disabilities which prohibit them from seeking redress in courts of the State of Mississippi, and therefore a violation Section 24 or 25 of the Constitution of the State of Mississippi; (7) What statutes say that Mississippi Department of Human Services and/or family court Judge Michael H. Ward may kill or attempt to kill me or may hold my son as hostage or may commit any other allegations in the Complaint.

¶ 8. DHS condenses these in three main issues:

(1) Little’s claim was improperly before the Circuit Court, (2) Little’s complaint was properly dismissed pursuant to Miss. R. Civ. P. 12 for failure to comply with the notice requirements of the Mississippi Tort Claims Act, (3) The circuit court properly dismissed Little’s complaint pursuant to Miss. R. Civ. P. 12 because Little’s allegations fail to state claims upon which relief can be granted.

We will address the pertinent issues as follows:

I. WHETHER LITTLE’S CLAIM WAS PROPERLY BEFORE THE CIRCUIT COURT.

¶ 9. Miss.Code Ann. § 43-21-651 (2000) provides in pertinent part:

(1) The court to which appeals may be taken from final orders or decrees of the youth court shall be the supreme court of Mississippi. In any case wherein an appeal is desired, written notice of intention to appeal shall be filed with the youth court clerk within ten (10) days after the rendition of the final order or decree to be appealed from....

¶ 10. According to Little’s brief, the decision of the youth court was handed down on January 31, 2000. There is no evidence in the record of any appeal taken from this judgment, much less any appeal taken within the requisite 10 days. Little filed a complaint against DHS on May 1, 2001, almost a year and a half later. As his proper method of seeking relief from the youth court’s determination would have been to file an appeal with this Court within ten days, the filing of an original circuit court complaint against DHS some year and a half later is not the appropriate remedy for seeking relief. Accordingly, the circuit properly held that it had no jurisdiction to hear Little’s claims.

II. WHETHER LITTLE’S COMPLAINT WAS PROPERLY DISMISSED UNDER MISS. R. CIV. P. 12 FOR FAILURE TO COMPLY WITH THE NOTICE REQUIREMENTS OF THE MISSISSIPPI TORT CLAIMS ACT.

¶ 11. Miss.Code Ann. § 11-46-11(1)(2002) provides that “[i]f the governmental entity to be sued is a state entity as defined in Section 11 — 46—l(j), service of notice of claim shall be had only upon that entity’s chief executive officer.” As DHS is a state “department” under Miss.Code Ann. § 11 — 46—l(j), proper service would be had on the chief executive officer of DHS. Little served the Attorney General’s office. Nothing in the record shows there was even an attempt to serve DHS’s chief executive officer, or anyone at DHS.

¶ 12. Miss.Code Ann. § 11-46-11(3) provides that any action brought under the Tort Claims Act must be commenced within one year of the date of the tortious conduct. Little’s complaint says the date of the conduct was somewhere between January 2000 and March 2000. The complaint was not filed until May 1, 2001. Even with the ambiguity of the date of the conduct alleged in the complaint, the suit was not filed within the statutory time period, and the applicable statute of limitations was not tolled by Little’s filing of a notice of claim as hereinafter discussed.

¶ 13. Miss.Code Ann. § 11-46-11(1) provides that after administrative avenues have been exhausted (which they never were in this case), a plaintiff must give notice that he will pursue the claim against the agency to the chief executive officer of the agency 90 days prior to the action being filed.

¶ 14. Little has not done anything which is required under the Mississippi Tort Claims Act to sue a governmental entity. Under the MTCA, we require substantial compliance with regard to filing a notice of claim and the institution of a suit. We held in Reaves ex rel. Rouse v. Randall, 729 So.2d 1237, 1240 (Miss.1998), that the MTCA left undefined the phrase “chief executive officer of the governmental entity,” but we provided a definition for it:

this term may be read to include any of the following: president of the board, chairman of the board, any board member, or such other person employed in an executive capacity by a board or commission who can be reasonably expected to notify the governmental entity of its potential liability ...

We also held in Reaves that the purpose of this provision was, obviously, to give notice of a claim to a CEO of an agency. Jurisdiction, however, will only attach when there has been “substantial compliance” with the statutes. Id. In Reaves, we found substantial compliance when the plaintiff served a superintendent of a school district with a claim against the school district.

¶ 15. The plaintiff must substantially comply with the provisions of the statute. Without doubt, Little has made no effort to comply with the applicable statutes. We note that this Court gives some latitude to a pro se plaintiff; however, we can hardly afford relief under the applicable

statutes when there is no effort to comply with the procedural mandates.

III. WHETHER THE CIRCUIT COURT PROPERLY DISMISSED THE COMPLAINT UNDER MISS. R. CIV. P. 12 BECAUSE NONE OF LITTLE’S ALLEGATIONS STATED

CLAIMS UPON WHICH RELIEF COULD BE GRANTED.

¶ 16. Little makes many allegations in the suit. Among them: (1) his son was held “hostage” from January 30, 2000, until March 21, 2000; (2) DHS acted under a “blanket custody order” to keep Little’s son; (3) DHS made a false statement under oath that Little’s son had fresh wounds on his body; (4) DHS contracted and conspired with Harrison County Youth Court Judge Michael Ward to intimidate or have Little killed; (5) Harrison County Family Court is defunct and DHS conspired with Little to use the defunct court; (6) DHS told Little’s son that “he couldn’t go home;” (7) DHS conspired with Judge Ward to delete audio tapes of Little’s attempted assassination; (8) DHS made false statements about and modified reports of doctors’ testimony in the custody hearing; and (9) DHS and Judge Ward conspired to keep Little’s son for a “clandestine foster child ring” and attempted to “kidnap” Little’s other children.

¶ 17. As for the first and second allegations of Little’s son being a “hostage” held under a “blanket custody order,” not only is DHS immune from suit under the Mississippi Tort Claims Act, but DHS is statutorily authorized to take a child into custody by Miss.Code Ann. § 43-21-301 (2000) when there is an order by a judge, the period of custody does not exceed 48 hours, excluding Saturdays, Sundays and

state holidays, and provided that there is probable cause to believe that:

(a) The child is within the jurisdiction of the court; and
(b) Custody is necessary; custody shall be deemed necessary:
(i) When a child is endangered or any person would be endangered by the child; or
(ii) To insure the child’s attendance in court at such time as required; or
(iii) When a parent, guardian or custodian is not available to provide for the care and supervision of the child; and
(c) There is no reasonable alternative to custody.

Miss.Code Ann. § 43-21-303 (2000) allows a law enforcement officer or DHS agent, in the exercise of discretion, to take custody of a child, and the statute further provides the criteria under which the officer or agent may take custody.

¶ 18. Little indicates in his brief that a child may not be held more than 24 hours, but the statutes specifically state that a judge may authorize temporary custody. Miss.Code Ann. § 43-21-303(4).

¶ 19. The scope of review of a Rule 12(b)(6) motion is that the allegations in the complaint must be taken as true, and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim. Overstreet v. Merlos, 570 So.2d 1196, 1197 (Miss.1990); Grantham v. Miss. Dep’t of Corrections, 522 So.2d 219, 220 (Miss.1988); Lester Eng’g Co. v. Richland Water & Sewer Dist., 504 So.2d 1185, 1187 (Miss.1987); Stanton & Assocs., Inc. v. Bryant Constr. Co., 464 So.2d 499, 505 (Miss.1985). Concerning Little’s first two allegations, it clearly appears beyond doubt that Little would be unable to prove any set of facts in support of these allegations. As for Little’s remaining allegations, there is no evidence in the record supporting any of these allegations, thus, once again, inasmuch as it appears beyond doubt that Little would be unable to prove any set of facts in support of any of these allegations, Rule 12(b)(6) dismissal by the circuit judge was not only appropriate, but mandated by law.

CONCLUSION

¶ 20. Inasmuch as Little’s claims were improperly before the circuit court, that court appropriately ruled that it had no jurisdiction to hear Little’s claims. Additionally, the circuit court was eminently correct in ruling that Rule 12(b) dismissal was appropriate due to Little’s failure to comply with the notice provisions of the Mississippi Tort Claims Act (Miss.Code Ann. §§ 11-46-1 to -23 (2002)) and Little’s failure to state any claim or claims upon which relief could be granted. The judgment of the Circuit Court of the Second Judicial District of Harrison County is therefore affirmed.

¶ 21. AFFIRMED.

PITTMAN, C.J., McRAE and SMITH, P.JJ., WALLER, COBB, DIAZ, EASLEY and GRAVES, JJ., concur.

      . Miss. R. Civ. P. 12(b)(6).

      . Miss.Code Ann. § 43-21-301 (2)(3).