author: PICKETT, Judge. _JjAMY, J.,

text:
    STATE of Louisiana v. Kevin Duane GOODLEY.
    No. 00-846.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Earl B. Taylor, District Attorney, 27th J.D.C., Opelousas, LA, for State/Appellee, State of Louisiana.
    Edward Kelly Bauman, LA Appellate Project, Lake- Charles, LA, for Defendant/Appellant, Kevin Duane Goodley.
    Court composed of Judges SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT.
   PICKETT, Judge.

FACTS

The defendant, Kevin Duane Goodley, was indicted for second degree murder, a violation of La. R.S. 14:30.1. Following a trial before a jury on January 10-11, 2000, he was found guilty as charged. On April 20, 2000, the district court sentenced him to the mandatory term of life imprisonment without benefit of parole, probation, or suspension of sentence.

Subsequently, Defendant appealed his conviction, assigning three errors. This court reversed the conviction, holding the trial court had not thoroughly instructed the jury. State v. Goodley, 00-846 (La. App. 3 Cir. 12/13/00); 774 So.2d 374. However, the supreme court reversed this court and reinstated the conviction, holding the jury instructions were adequate. State v. Goodley, 01-0077 (La.6/21/02); 820 So.2d 478.

The case has been returned to this court for consideration of the two remaining assignments of error.

This court discussed the relevant facts in its previous opinion:

On October 21, 1998, the defendant and his cousin Mack Tezeno, a.k.a. Mack Gallow, stopped at Dupre’s Grocery, an old country store in St. Landry Parish. The defendant was driving. His .22-caliber rifle was in the backseat.
There is some dispute as to what happened next. It is undisputed, however, that Mack Tezeno entered the store and killed the 90-year-old proprietor, Elta Dupre, as he slept in a chair in the living quarter adjacent to the store. Tezeno killed Mr. Dupre with the defendant’s .22-caliber rifle.
Tezeno exited the store with the victim’s .22 caliber pistol and some cash. He gave the defendant fourteen dollars. The pair then drove to Ville Platte, where each was staying at the time.
The defendant was seen at the store by a former Ville Platte policeman, Russell George. He recognized the defendant, who was sitting behind the steering wheel of his vehicle at the time Mr. George | «.passed the store. Mr. George saw a second man with the defendant but could not identify him because he was wearing a hood and turned away as Mr. George passed.

Goodley, 774 So.2d at 375.

DISCUSSION

In his first assignment, the defendant argues the evidence adduced at trial was insufficient to support his second degree murder conviction. The review for sufficiency of the evidence arguments is settled, as this court has observed:

When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the appellate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, pp. 4-5 (La. App. 3 Cir. 5/7/97); 695 So.2d 1367, 1371, after remand, 97-1682 (La.App. 3 Cir. 6/3/98); 715 So.2d 518.

The defendant was convicted as a principal to a felony-murder. The felony-murder doctrine is codified at La.R.S. 14:30.1(A)(2)(a):

A. Second degree murder is the killing of a human being:
(2)(a) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, forcible rape, aggravated arson, aggravated burglary, aggravated kidnapping, second degree kidnapping, aggravated escape, drive-by shooting, armed robbery, first degree robbery, or simple robbery, even though he has no intent to kill or to inflict great bodily harm. (Emphasis added).

IqThe law of principals is contained at La. R.S. 14:24:

All persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals.

It is undisputed that Mack Tezeno killed the victim with the defendant’s .22 rifle. Thus, the state had to prove that the defendant aided or abetted the perpetration of a robbery, and that the victim was killed during the perpetration of said robbery.

The state’s theory was that an armed robbery had occurred. Armed robbery is defined at La.R.S. 14:64:

A. Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

Again, it is undisputed that Tezeno used a weapon, and the record also reveals that he took things of value, ie., the victim’s .22 pistol and cash. It is also reasonable to conclude that Tezeno’s use of the weapon facilitated the taking by eliminating any possible resistance. The defendant argued that a sleeping victim could not be the victim of an armed robbery, due to lack of awareness of the force applied. However, a victim need not be aware of the force being applied. State v. Brown, 96-1002, pp. 5-6 (La.App. 5 Cir. 4/9/97); 694 So.2d 435, 437-438, writ denied, 97-1310 (La.10/31/97); 703 So.2d 19.

We find the jury could reasonably have concluded that the defendant acted as a principal to an armed robbery and murder committed by Tezeno. The defendant drove the getaway car, provided the murder weapon, and accepted proceeds from the crime.

| ¿In another case involving a getaway driver’s role in an armed robbery, this court observed:

After reviewing the record, we conclude that a rational trier of fact could have found the Defendant possessed the requisite intent to assist [the co-defendant] in the commission of the armed robbery of [the victim]. Defendant played an integral role by operating the getaway car. During the robbery, the Defendant waited for [the co-defendant] while parked behind the bank. Following the robbery, [the co-defendant], wearing a mask or hood and carrying a black bag, entered the back seat of the vehicle, and the Defendant immediately drove him away from the scene. The Defendant then stopped the vehicle momentarily to allow [the co-defendant] to open the back door and release the red smoke from the exploded red dye packet. The Defendant attempted to elude a state trooper by traveling at high rates of speed until he lost control of the vehicle causing it to flip several times. When the vehicle came to a stop, the Defendant exited the driver’s side. The black bag containing the money stolen from the bank and the gun used in the robbery were found in the wrecked vehicle. The Defendant’s left thumb print was found on the clip or magazine which was attached to the gun.

State v. Valrie, 99-226 (La.App. 3 Cir. 10/13/99); 749 So.2d 11, 14, writ denied, 1999-3236 (La.4/20/00); 760 So.2d 343.

In another case, this court discussed relevant jurisprudence:

It is not necessary that a principal to armed robbery handle the weapon, or act as a lookout; it is sufficient that the evidence prove that the principal was concerned with the commission of the crime. In State v. Johnson, 440 So.2d 197 (La.App. 3 Cir.1983), writ denied, 444 So.2d 1240 (La.1984), the defendant was seen accompanying two men who later robbed a store. He was also seen with the men immediately after the robbery; plus, he drove the men away from the scene and received money from the robbery. Although the defendant was not present during the robbery, nor did he act as a lookout at the scene, the extent of his participation was such that he was convicted as a principal. In State v. Peters, 553 So.2d 1026 (La.App. 4 Cir.1989), the defendant’s friend robbed two newspaper deliverymen of their truck by pointing a gun at the driver while the defendant simply distracted the passenger. The defendant was convicted as a principal to the theft of the truck since it was proven he was with the armed codefendant several hours before the crime, he did nothing to intervene or stop the robbery, got into the truck after the codefendant ordered the driver out, and was captured several hours later still in possession of the stolen truck. In Peters, the court ruled that the evidence did not merely prove the defendant was present at the scene, but proved the defendant was concerned in the commission of the theft of the truck.

State v. Thomas, 95-1646, pp. 12-13 (La. App. 3 Cir. 5/8/96); 680 So.2d 37, 44. (Emphasis added).

The defendant testified that he and Tez-eno were on their way to Opelousas to buy tires, and that they pulled into Dupre’s to get matches. The defendant entered the store alone and saw Dupre was sleeping. He decided not to bother the elderly victim, so he went back outside. After he told Tezeno that Dupre was asleep, Tezeno exited the car, grabbed the .22 rifle from the back seat, and entered the store. The defendant testified that at that point he panicked and started the ear, but denied that Tezeno’s actions made him suspicious that a crime was being committed. He heard a gunshot, but remained outside, waiting for Tezeno, who returned to the car with an old pistol and cash. He stated that he had robbed the store, he gave fourteen dollars to the defendant, then they drove back to Ville Platte. However, prior to trial, the defendant told different versions of the robbery to different people.

Jeaneene Marie Riley, the sister of the defendant’s girlfriend, testified that he told her two different accounts of the robbery. The first time he told her about it, he said he and his cousin went to the store to rob it. He was inside during the robbery, and told his cousin not to shoot. According to this version, his take in the robbery was twenty dollars. He subsequently told Riley another version of events, in a telephone call from New Orleans. In that version, he was outside in the car when he heard a gunshot. He went inside and saw that his cousin had killed a man. He also told Riley that the killer had used his gun.

Robert Wilson, a friend of the defendant, also testified. He said that the defendant told him that he and Tezeno had robbed a store, and that Tezeno had killed a man. The defendant did not mention getting any money from the robbery, but did say that he had taken a case of antifreeze from the store. According to this version | fiof the robbery, the defendant and Tezeno took the antifreeze while Dupre slept, then Tezeno went back into the store and killed Dupre while the defendant was in the car. The defendant then told Tez-eno that the shooting was unnecessary. While recounting this version, the defendant and Wilson were riding in the getaway vehicle, the defendant’s blue Buick Regal. Tezeno flagged them down, and told the Defendant that he was going to Oklahoma.

Keeping in mind that the weight and credibility of the evidence were within the jury’s discretion, we find the defendant supplied sufficient information in his first account of the offense to support the conclusion that he was a principal to an armed robbery, during which a killing occurred. The jury was free to disbelieve the self-serving elements of his subsequent versions of the robbery. Added to the other evidence of his participation, as getaway driver and supplier of the weapon, the statements support his conviction. The defendant’s actions when Russell George drove by are also relevant. The men knew one another, and when George and the defendant made eye contact, both the defendant and co-defendant acted furtively, as if to conceal their identities.

Therefore, we find this assignment has no merit.

In his second assignment, the defendant argues the lower court erred by allowing the state to introduce improper “other crimes evidence.”

Before the jury entered for its first day of hearing evidence, the defendant made an oral Motion In Limine. He sought to exclude the introduction of his sawed-off shotgun, arguing that it had no connection to the crime at issue, and would prejudice his case. The state argued the defendant had possession of the shotgun during the crime, thus demonstrating intent. The court denied the defendant’s motion without ^reasons. The defendant re-urged his objection at trial, but it was overruled and the shotgun was admitted.

Other crimes evidence is governed by La.Code Evid. art. 404(B):

B. Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

The first question in the present analysis is whether the shotgun was evidence of an other crime or bad act, at all. The state argues that the shotgun related to the res gestae of the offense. We find the shotgun was not related to the res gestae of the offense, because no evidence actually linked it to the crime. The defendant admitted owning it, and testified that it was in the trunk of the Regal during the robbery. Although the state attempted to suggest that the defendant made use of the shotgun, during the robbery, there is no evidence that the shotgun was used in the robbery.

With no evidence linking the weapon to the offense, the state’s suggestions that the defendant may have armed himself amount to mere speculation. Thus, the shotgun was irrelevant. Ordinarily, it would be questionable whether owning a sawed-off shotgun would necessarily be a “bad act.” However, the state emphasized that such a weapon is unlikely to have legitimate uses. In its opening, the state argued that the defendant’s “car was a rolling armed robbery kit. They were armed to the tee [sic],” and that “the evidence is probably gonna [sic] show that he had a sawed off | sshotgun.” In its closing, the state apparently displayed the shotgun and argued that the defendant and Tezeno were “outfitted for an armed robbery.”

Thus, we find the shotgun constituted evidence of another “bad act,” and was inadmissible under La.Code Crim.P. art. 404(B). The state argues that the presence of the weapon showed that Goodley was a willing participant in the robbery, citing State v. Ledet, 337 So.2d 1126 (La.1976). Ledet was the getaway driver. Police recovered the co-defendant’s gun from the vehicle, and also recovered a pistol underneath the defendant’s seat. The trial court admitted the pistol over the defendant’s relevancy objection. Subsequently, the Louisiana Supreme Court affirmed the lower court’s action. The high court reasoned that the pistol was highly probative in establishing the defendant’s involvement, as he apparently realized the situation might require armament.

We find Ledet is distinguishable, because there is no evidence the shotgun in the present case ever left the trunk. Again, there is no evidence that the shotgun was in any way utilized in the robbery. The gun’s presence in the trunk of the car does not tend to show that Goodley was arming himself for a robbery, as it was not as readily accessible as the pistol in Ledet.

Nevertheless, we find the lower court’s error was harmless. Other crimes evidence is harmless if the verdict rendered is “surely unattributable” to the error. State v. Johnson, 94-1379 (La.11/27/95); 664 So.2d 94, 100, reconsideration denied, 94-1379 (La.4/8/96); 671 So.2d 332, citing Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). In Johnson, the mechanics of this analysis consisted of assessing the strength of the state’s case, without the evidence at issue. The Johnsoncowt held that the defendant’s prior guilty pleas to five counts of simple burglary were | ginadmissible other crimes evidence because the burglary charges were nolle pro-sequied by the state. However, the court also held that the error was harmless due to the strength of the state’s case, which included two eyewitnesses who saw the defendant commit the offense. Id. at 102. However, in State v. McArthur, 97-2918 (La.10/20/98); 719 So.2d 1037, the court held that the trial court’s error in admitting evidence of past attempted rape was not harmless. There were “numerous inconsistencies” in the victim’s testimony, and defense witnesses indicated the defendant and victim had a relationship and a history of mutual drug use. Id. at 1043.

The evidence against the defendant formed a solid case that he was a principal to the offense charged, although not an overwhelming one. The state proved beyond a reasonable doubt that the defendant was the getaway driver for, and accepted proceeds from, an armed robbery that resulted in a murder. Thus, he was a principal not only to the armed robbery, but to the felony-murder that resulted from the robbery.

The assignment has no merit, as the error was harmless.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. We find no errors patent.

CONCLUSION

The defendant’s conviction and sentence are affirmed.

AFFIRMED.

COOKS, J., concurs.

AMY, J., concurs and assigns written reasons.

_JjAMY, J.,

concurring.

I respectfully concur in the majority opinion. Although I agree that an affirmation is warranted, I differ in my analysis of the evidence related to the presence of the sawed-off shot gun in the trunk of the vehicle at the time of the offense. In my opinion, the presence of the weapon could properly be viewed as probative of “intent” pursuant to La.Code Evid. art. 404(B)(1). Finding this evidence admissible, I would not reach the harmless error analysis employed by the majority.


source: Caselaw Access Project

author: hGREMILLION, Judge.

license: Public Domain

text:
    PLAINVIEW AREA ASSOCIATION, INC. v. STATE of Louisiana, DEPT. OF TRANSPORTATION AND DEVELOPMENT.
    No. 02-0503.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      James Edward Hopkins, Sulphur, LA, for Plaintiff/Appellee, Plainview Area Association, Inc.
    James McCaleb Bookter, Baton Rouge, LA, for Defendant/Appellant/Exceptor, State of LA, Thru the DOTD.
    Court composed of NED E. DOUCET, JR., Chief Judge, MICHAEL G. SULLIVAN and GLENN B. GREMILLION, Judges.
   hGREMILLION, Judge.

The defendant, the State of Louisiana, through the Department of Transportation and Development, appeals the judgment of the trial court in favor of the plaintiffs, Plainview Area Association, Inc. (Association), Floy Stokes, Emma Lee Gass, Joseph L. Chance, and Billy E. Dowden, ordering the State to maintain the Horn-beck-Plainview Road. For the following reasons, we set aside the judgment of the trial court and remand with instructions.

FACTS

On August 7, 1995, the Association filed a Petition to Enforce Contract and for Damages for Breach of Contract, naming as defendant the State and the Department of Transportation and Development (DOTD). The petition seeks the enforcement of two contracts entered into by the State and the abutting land owners in 1958, for the construction, improvement, and maintenance of the Hornbeck-Plain-view Road located in the Parishes of Vernon and Sabine, Louisiana. The State obtained right-of-way agreements from the land owners, which were filed in the Sabine Parish Clerk’s Office on December 22, 1958, and in the Vernon Parish Clerk’s Office on December 30, 1958. The road was completed by DOTD in 1960, after which it performed an overlay of the road in 1976. However, no maintenance of the road has been performed since that time. When DOTD was contacted by residents living along the road in 1993, it informed them that the Hornbeck-Plainview Road was a parish road and that La.R.S. 48:756 rendered it unlawful for DOTD to perform | ^maintenance on the road since it was not a part of the state highway system.

This matter was tried based on a joint stipulation of facts and on the briefs submitted by the parties. Thereafter, the trial court issued a judgment in favor of the Association and the original landowners, finding that DOTD was responsible for maintaining the Hornbeck-Plainview Road. Following a request for written reasons by the Association, the trial court issued a Findings of Fact and Reasons for Judgment stating that the findings of fact were in accordance with the stipulated facts introduced into the record. It further adopted the Association’s brief as its reasons for judgment. Additionally, the trial court noted that the DOTD’s action in performing work on the road in 1976, after the passage of La.R.S. 48:756, supported the Association’s claim that the Hornbeck-Plainview Road was still part of the public road system despite DOTD’s claims to the contrary. This appeal by DOTD followed.

ISSUES

On appeal, DOTD raises five assignments of error. Essentially, it argues that the trial court erred in finding that the right-of-way agreements between the State and the Association were valid and enforceable, that the Hornbeck-Plainview Road was part of the state highway system, and that La.R.S. 48:757 was inapplicable to the facts at hand. DOTD has also filed a peremptory exception of prescription, which has been referred to the merits of this appeal. We will address this issue first.

PRESCRIPTION

DOTD argues that the Association’s contractual claim has prescribed pursuant to La.Civ.Code art. 3499, since the right-of-way agreements were executed in 1958 and the Association’s suit was filed in 1995. Article 3499 provides a ten year | Jiberative prescriptive period for actions based on personal actions. However, the ten year prescriptive period for contracts does not begin running until the date the contract is allegedly breached. Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242. In this instance, the only evidence that the contracts at issue were breached is the refusal of DOTD to perform the requested maintenance on the Hornbeck-Plainview Road in 1993. This suit was filed on August 7, 1995. Accordingly, we find that the Association’s suit was filed timely. DOTD’s peremptory exception of prescription is denied.

RIGHT-OF-WAY AGREEMENT

In its first assignment of error, DOTD argues that the trial court erred in finding that the right-of-way agreements between it and the Association continue to be valid and enforceable, especially in view of the passage of La.R.S. 48:757 and Article 7 § 27 of the Louisiana Constitution.

In 1974, the legislature enacted La.R.S. 48:756, which stated:

The state department of highways shall perform no work on the parish road system or on any other roads or streets which are not in the state highways system, whether such work is construction or maintenance and whether the work is done at the expense of the state or the expense of the governing authority of the parishes; except that in parishes whose population is 40,000 persons or less the department of highways may provide engineering services for a period not to exceed two years from the effective date of this act when, in the opinion of the director, personnel are available to perform such services. In an emergency as found and declared by the governor, the governor may expend state funds on parish roads. Any project that has been approved by the Director of the Department of Highways before the effective date of this act, not in the state highway system, may be completed.

In 1990, La.R.S. 48:756 was amended and redesignated, “La.R.S. 48:757. Off-system work; prohibitions; exceptions.” The amended statute provides:

|4A. (1) The Department of Transportation and Development shall perform no work on the parish road system or on any other roads or streets which are not in the state highway system, whether such work is construction or maintenance and whether the work is done at the expense of the state or at the expense of the governing authority of the parishes, except in the following circumstances:
(a) The department shall construct, maintain, and improve roads, whether hai’d surfaced or otherwise, within state parks and state historic sites as defined in R.S. 56:1684, and connect such sites with existing highways.
(b) The department is authorized to perform work on any off-system bridge which is included as a TIMED project within the provisions of R.S. 47:820.2(B)(l)(b).
(c) The department is authorized to perform work on intersectional improvements on parish roads or municipal streets and to perform work on parish roads or municipal streets for purposes of operational or safety reasons when the palish road or municipal street intersects with a state highway which is programmed for improvement or construction; however, the distance of such off-system work shall conform to AASH-TO design standards as adopted pursuant to R.S. 48:35.
(2) Any construction project undertaken by the department as provided in this Subsection shall be in accordance with the provisions of Subpart A of Part XIII of Chapter 1 of this Title.
B. In an emergency as found and declared by the governor, the governor may expend state funds on parish roads. However, the department may stripe parish roads upon the request of any parish, which the parish bearing the cost of said striping, when in the opinion of the secretary or his designee surplus manpower and equipment are available and the purchase of new equipment is not required.
C. In addition, in instances in which the federal government has established programs pertaining to off-system construction, maintenance, or improvement, the department may participate in said projects and provide necessary matching funds including but not limited to monies in the Transportation Trust Fund. Funding for programs under the provisions of this Subsection shall be subject to the availability and appropriation of funds in excess of the total funds appropriated for the Parish Transportation Fund in Fiscal Year 1994-1995.

|RIn addition to this statute, Article 7 § 27 of the Louisiana Constitution, created the Transportation Trust Fund, which became effective on January 1, 1990. Section 27(B) provides in, part that the monies located in the Transportation Trust Fund:

[S]hall be appropriated or dedicated solely and exclusively for the costs for and associated with construction and maintenance of the roads and bridges of the state and federal highway systems, the Statewide Flood-Control Program or its successor, ports, airports, transit, state police for traffic control purposes, and the Parish Transportation Fund or its successor and for the payment of all principal, interest, premium, if any, and other obligations incident to the issuance, security, and payment in respect of bonds or other obligations payable from the trust fund as authorized in Paragraph (D) hereof.

DOTD argues that the right-of-way agreements are no longer enforceable because the cause of the 1958 contracts has become illegal due to the passage of the aforementioned statute and constitutional article, which rendered the contracts subject to a resolutory condition. However, we feel that there is a question as to whether the passage of the now designated La.R.S. 48:757 and Article 7 § 27 violates the contract clause found in Article I, § 10 of the United States Constitution and Article 1, § 23 of the Louisiana Constitution. Article I, § 10(1) provides that, “No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligations of Contracts.” Article 1, § 23 provides, “No bill of attainder, ex post facto law, or law impairing the obligation of contracts shall be enacted.”

In United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977), the United States Supreme Court held that a state could not subsequently modify its own financial obligations through the passage of legislation unless the legislation was found to be reasonable and necessary in the furtherance of Ran important public purpose. The Court further stated that, in instances when a State’s financial obligations are at stake, “complete deference to a legislative assessment of reasonableness and necessity is not appropriate,” as it is in instances involving private contracts. Id. at 26, 1519, 97 S.Ct. 1505.

The application of the contract clause to this matter was not addressed by either the parties or the trial court. Accordingly, we remand this matter to the trial court for a determination of whether the passage of La.R.S. 48:757 and Article 7 § 27 impaired the contractual relations of the Association and DOTD, and, if so, whether the passage of the statute and the constitutional article were reasonable and necessary in the furtherance of an important public purpose.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and this matter is remanded for further proceedings, in accordance with this opinion. The costs of this appeal are held in abeyance pending the decision of the trial court.

SET ASIDE AND REMANDED WITH INSTRUCTIONS.

      . Floy, Gass, Chance, and Dowden were added as plaintiffs in this matter in the Association's First Supplemental and Amending Petition to Enforce Contract and for Damages for Breach of Contract.


author: L GREMILLION, Judge.

text:
    FERRELL LAVERGNE EAGLE PACIFIC INSURANCE COMPANY v. QUALITY FABRICATORS OF EUNICE, INC., et al.
    No. 02-0548.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Jere Jay Bice, Bice & Palermo, Lake Charles, LA, for Plaintiff/Appellee, Ferrell Lavergne.
    Henry Harvey LeBas, Todd Anthony Delcambre, Lafayette, LA, for Interve-nor/Appellant, Eagle Pacific Insurance Company.
    Michael J. Remondet, Jr., David Bruce Gooch, Jeansonne & Remondet, Lafayette, LA, for Defendants/Appellees, Quality Fabricators of Eunice, Inc., Clarendon American Ins. Co.
    Court composed of NED E. DOUCET, Jr., Chief Judge, MICHAEL G. SULLIVAN and GLENN B. GREMILLION, Judges.
   L GREMILLION, Judge.

The plaintiff-in-intervention, Eagle Pacific Insurance Company, appeals the judgment of the trial court stating that its claims against the defendants-in-intervention are dismissed with full prejudice. For the following reasons, we reverse and remand for farther proceedings.

FACTS

On June 6, 1998, the plaintiff, Ferrell Lavergne, suffered a work-related injury when the tank he was sandblasting started rolling. Thereafter, he filed suit against Quality Fabricators of Eunice, Inc. and its insurer, Clarendon America Insurance Company, for its failure to properly secure the tank to its trailer. Eagle Pacific intervened in the suit against Quality and Clarendon seeking the recovery of workers’ compensation and medical benefits paid to Lavergne.

On September 9 and 10, 2001, the parties stipulated to the following:

1.
Ferrell Lavergne claims that he was injured on June 6,1998.
2.
At the time of the accident, Ferrell Lavergne was an employee of L & L Sandblasting and was in the course and scope of his employment.
3.
At the time of the accident, L & L Sandblasting was insured under a policy of workers’ compensation insurance with Eagle Pacific Insurance Company.
4.
As a result of the claimed accident, Eagle Pacific Insurance Company has paid and continues to pay workers’ compensation indemnity benefits, such payments totaling $48,523.79 as of July 26, |92001.
5.
As a result of the claimed accident, Eagle Pacific Insurance Company has paid all medical treatment of plaintiff, such payments totaling $86,382.11.
6.
By virtue of the payments made, Eagle Pacific Insurance Company has a valid and enforceable lien upon the proceeds of any settlement or judgment in favor of plaintiff and has a preferential right of recovery.
7.
By signing below, the parties agree that these stipulations shall be admitted into the record of this suit and shall be deemed good and sufficient evidence of all facts recited herein. The parties also agree that Eagle will be allowed to submit at trial without objection an updated payment register to reflect payments made after July 26, 2001 through trial.

The matter proceeded to trial, with the question of liability to be decided by a jury, and the intervention to be decided by a bench trial. Counsel for Eagle Pacific was not present at the trial. After the matter was submitted to the jury, Lav-ergne reached a settlement agreement with Quality and Clarendon. The agreement, entitled a high/low agreement, provided that, in the event of a jury award of less than $25,000, Quality and Clarendon would pay Lavergne the sum of $25,000 plus judicial interest. If the jury awarded him more than $300,000, then Lavergne would not enforce judgment in excess of that amount, plus judicial interest. In exchange for this agreement, the parties agreed that there would be no post-trial motions or appeals filed by the parties. After the jury returned with a verdict, it found that Quality was not at fault in causing Lavergne’s work-related accident. On ^December 11, 2001, a final judgment was rendered by the trial court in favor of Quality and Clarendon and against Lav-ergne and Eagle Pacific dismissing all of their claims against them with full prejudice. This appeal by Eagle Pacific followed.

ISSUE

On appeal, Eagle Pacific argues that the trial court erred in dismissing all of its claims against Quality and Clarendon with full prejudice, instead of specifying that it was without prejudice as to its reimbursement claim, pursuant to La.R.S. 23:1102(0. We agree.

COMPROMISE

After considering the high/low agreement, we find that it does constitute a compromise between the parties. Pursuant to La.Civ.Code art. 3071, a compromise is an “agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining,, balanced by the danger of losing.” In this case, an agreement was reached between Lavergne and Quality, whereby they agreed to a high and low cap on the amount he would recover, contingent on the jury’s award, which agreement would put an end to the lawsuit between them. Since this agreement was recited- in open court, we find that it was a valid compromise.

- Additionally, La.R.S. 23:1102(0(1) provides:

When a suit has been filed against a third party defendant in which the' employer or his insurer has intervened, if the third party defendant or his insurer fails to obtain written approval of the compromise from the employer or his insurer at the time of or prior to such compromise and the employee fails to pay to the employer or his insurer the total amount of compensation benefits and medical benefits |4out of the funds received as a result of the compromise, the third party defendant or his insurer shall be required to reimburse the employer or his insurer to the extent of the total amount of compensation benefits and medical benefits previously paid to or on behalf of the employee to the extent said amounts have not been previously paid to the employer or his insurer by the employee pursuant to the provisions of Subsection B of this section. Notwithstanding such payments, all rights of the employer or his insurer to assert the defense provided herein against the employee’s claim of future compensation or medical benefits shall be reserved.

Thus', we find that Eagle Pacific’s right of reimbursement against Quality and Clarendon via its intervention continues since Lavergne failed to obtain written approval of the compromise and has failed to reimburse it for the compensation benefits he had received prior to the institution of this suit. Although the compromise has ended the suit between Lavergne and the two defendants, Eagle Pacific’s intervention is still viable. We further find that it is not required to file another suit in order to pursue its claim. Accordingly, we find that trial court incorrectly held that all of Eagle Pacific’s claims against Quality and Clarendon were dismissed with full prejudice.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed insofar as it dismisses the claims of Eagle Pacific Insurance Company against the defendants-in-intervention, Quality Fabricators of Eunice, Inc. and Clarendon America Insurance Company. The costs of this matter are assessed to the defendants-in-intervention.

REVERSED IN PART AND REMANDED.


author: [1AMY, Judge.

text:
    Helen June STERLING v. Melissa Cain Keeth SHIRLEY.
    No. 02-0915.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      LeRoy Smith, Jr., Tallulah, LA, for Plaintiff/Appellant: Helen June Sterling.
    Mark Lee Talley, Jena, LA, for Defendant/Appellee: Melissa Cain Keeth Shirley.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD and MARC T. AMY, Judges.
   [1AMY, Judge.

The plaintiff filed a petition seeking visitation with the minor child of the defendant. The defendant filed exceptions of no right of action and no cause of action, asserting that the plaintiffs status as the child’s fourth cousin was insufficient to qualify her as a “relative” under La.Civ. Code art. 136. The trial court granted the exceptions, dismissing the petition. For the following reasons, we affirm.

Factual and Procedural Background

The minor child at issue in this visitation matter, Caroline Keeth, was born of the marriage of the defendant, Melissa Cain Keeth Shirley, and George “Bubba” Keeth. The defendant and Mr. Keeth were divorced and shared joint custody of the child. Mr. Keeth subsequently died. The petition instituting this matter was filed on November 20, 2001, by the plaintiff, Helen June Sterling. Ms. Sterling alleges in her petition that she was Mr. Keeth’s third cousin and that, beginning in the Fall of 1998, she and Mr. Keeth had a close personal relationship. She contends that, during the periods that Mr. Keeth had physical custody of Caroline, she developed a “close and personal bond” with Caroline, her fourth cousin.

Ms. Sterling asserts in her petition that her contact with Caroline continued following Mr. Keeth’s death, but that the defendant eventually terminated any contact between the two. She alleges that it is important that she be granted visitation rights, pursuant to La.Civ.Code art. 136, so that she might facilitate a continued relationship between Caroline and Mr. Keeth’s children of a previous marriage. Ms. Sterling alleges that she has a relationship with these children. She also maintains that continued contact is necessary, as she is a trustee of the trust created by Mr. Keeth, of which Caroline is the principal beneficiary. Ms. Sterling asserts that contact is ^important “to know the ehilds [sic] needs; and it is important to foster a knowledge and relationship of Caroline Keeth with the Keeth family.”

The defendant filed exceptions of no right of action and no cause of action, pointing out that the plaintiff is the fourth cousin of the minor child and arguing that this relationship was not the degree of relative contemplated by La.Civ.Code art. 136. She also contends that the decision of the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), must be considered when analyzing the plaintiffs petition under Article 136.

The trial court granted the exceptions, dismissing the petition. The trial court explained that it concluded that Article 136 does not come “close to saying a fourth cousin is a relative.” The trial court continued, stating “if we allowed people who’ve had such passing relationships to interfere with a mother’s, the sole parent’s, ..., interfere with that family relationship and to say that they can have visitation or have any kind of say whatsoever in this child’s life would be way beyond the pale of what I think the legislature meant.” The plaintiff appeals, arguing that the trial court erred in finding that she was not a relative as contemplated by Article 136.

Discussion

As it relates to this case, Article 136 provides:

B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandpar-ent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. In determining the best interest of the child, the court shall consider:
|s(l) The length and quality of the prior relationship between the child and the relative.
(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.
(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.
(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.
(5) The mental and physical health of the child and the relative.

The defendant filed exceptions of no right of action and no cause of action. Both exceptions are listed in La.Code Civ.P. art. 927(A). Even if not specially pleaded, the exceptions of no right of action or no cause of action “may be noticed by either the trial court or appellate court of its own motion.” La.Code Civ.P. art. 927(B). In Fink v. Bryant, 01-0987 (La.11/28/01); 801 So.2d 346, the Louisiana Supreme Court explained that an exception of no cause of action questions whether a remedy is available to anyone under the factual allegations contained in the petition. The supreme court further stated:

The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, 616 So.2d 1234 (La.1993). No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Crv. Proo. Ann. art. 931. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. City of New Orleans v. Board of Commissioners, 93-0690 (La.7/5/94), 640 So.2d 237.

Id. at p. 3-4; 348-49. On review, we consider the matter de novo, as the exception presents a question of law. Id.

14Although the petition alleges that “extraordinary circumstances” exist, as is required by Article 136, we conclude that the petition is insufficient. Rather, the plaintiff represents that she is the third cousin of the late Mr. Keeth, making her the fourth cousin of Caroline, that she previously enjoyed a relationship with Caroline, and that she is the trustee of a trust created for the child’s benefit. She also alleges that she could facilitate a relationship between Melissa and Mr. Keeth’s children by a previous marriage. Importantly, the petition also states that the plaintiff had contact with Caroline “until recently when Melissa Cain Keeth Shirley terminated any contact between Helen June Sterling and Caroline Keeth.”

Considering the distance to which the plaintiff could be considered a “relative” and the allegation that any contact between the plaintiff and Caroline had been terminated at Caroline’s mother’s wishes, we conclude that the petition does not allege “extraordinary circumstances” sufficient to bring the action within the purview of Article 136. Accordingly, we find no error in the trial court’s determination that the petition does not state a cause of action under La.Civ.Code art. 136 and that the petition should be dismissed.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assigned to the plaintiff, Helen June Sterling.

AFFIRMED.

WOODARD, J., concurs in the result.

      . In Troxel, the Supreme Court found a mother's liberty interests in the care, custody, and control of her children violated by application of a Washington statute broadly permitting any person to petition the court for visitation. In that case, the trial court awarded visitation to paternal grandparents in excess of that found to be appropriate by the children's mother.


author: WOODARD, Judge.

text:
    Shirline L. JOUBERT v. Wayne BROUSSARD, Progressive Insurance Company, and Safeway Insurance Company of Louisiana.
    No. 02-911.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      David M. Kaufman, Lafayette, LA, for Plaintiff/Appellee, Shirlene L. Joubert.
    Keith M. Borne, Diane E. Cote’, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendant/Appellant, Safeway Insurance Company of Louisiana.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   WOODARD, Judge.

Safeway appeals a judgment assessing $5,000.00 against it for failing to initiate a loss adjustment of Ms. Joubert’s claim within fourteen days of notice of her accident, as the Insurance Code requires. We affirm.

* * * * *

This case originates from an automobile accident between Ms. Shirline Joubert and Mr. Wayne Broussard that occurred in Lafayette, Louisiana, in 1999. When Ms. Joubert initiated a suit against Mr. Brous-sard, his insurer, Progressive Insurance Company, and her own insurer, Safeway Insurance Company of Louisiana (Safeway), both insurers denied coverage because Safeway informed Ms. Joubert that her policy had lapsed and she was not covered on the date of the accident. Safeway later determined that it had made a clerical error and acknowledged that Ms. Joubert was, in fact, covered under the policy on the date in question. The parties resolved all issues of damages before trial, leaving the trial court with only one issue to adjudicate- — whether certain provisions of the Insurance Code entitled Ms. Joubert to penalties and attorney’s fees from Safeway. However, in her brief, Ms. Joubert withdrew her request for attorney’s fees.

The court below assessed penalties against Safeway in accordance with La.R.S 22:1220, based on a violation of La.R.S. 22:658, but declined to make any additional award based upon the independent provisions of La.R.S. 22:1220.

Therefore, we must review determinations the trial court made under both statutes.

Standard of Review

Because the decision to assess statutory penalties is a factual determination, in part, we review the trial court’s assessment of penalties against Safeway under the 12manifest error standard of review. We acknowledge that since the pertinent statutes subject insurers to penalties, we must construe them strictly.

Failure to Initiate Loss Adjustment

Among other things, La.R.S. 22:658 requires that the insurer initiate a loss adjustment of a property claim within fourteen days of being notified of the loss. La.R.S. 22:1220 mandates penalties for non-compliance.

When Ms. Joubert reported the accident to Safeway, its insurance agent checked the office’s computers and found that Ms. Joubert’s premium had lapsed. The agent requested additional internal documents, which verified that Ms. Joubert was not covered at the time of the accident. Accordingly, Safeway sent a letter informing her that it was closing her file because of these findings. Significantly, after the statutory period for initiating a loss adjustment had expired, Safeway determined that Ms. Joubert was, in fact, covered at the time of the accident and that its own clerical error had led it to believe she was not covered. Upon this discovery, it adjusted her claim.

Safeway argues that checking its office computer and sending Ms. Joubert the letter closing her file constitutes an “initiation” of the loss adjustment, and since it made these efforts within the statutory period, it should not be penalized. We cannot agree.

Safeway’s actions do not constitute “a substantive and affirmative step to accumulate the facts that are necessary to evaluate the claim [;]” (Emphasis added.) Rather, its actions were to evaluate coverage and, in fact, led it to make the erroneous determination that it need not take any action to evaluate Ms. Joubert’s claim. As the trial court correctly notes, while violations of the specific provisions of La.R.S. 22:1220 require a finding that the insurer was arbitrary, capricious, or without | ¡¡probable cause, failure to comply with La.R.S. 22:658(A)(3) “shall subject the insurer to the penalties provided in R.S. 22:1220,” irrespective of Safeway’s justifications.

Therefore, we cannot say that the trial court’s award of penalties against it for failure to initiate the loss adjustment within the statutory period was manifestly erroneous.

Denial of Coverage

La.R.S. 22:1220 provides that certain acts, “if knowingly committed or performed by an insurer” and, specifically, an insurer’s denial of coverage under specified circumstances, automatically constitutes a breach of a duty, permitting an award of penalties against the insurer. The trial court declined to entertain an award of penalties for denial of coverage, after assessing penalties for failure to initiate the loss adjustment, reasoning that “to do so would double the penalty based on the same circumstances.” We agree. The penalties already assessed, ultimately, stemmed from Safeway’s denial of coverage, as this erroneous determination is what prevented it from initiating the loss adjustment of the claim. Therefore, the trial court did not commit manifest error by refusing to assess additional penalties under this statute.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s assessment of $5,000.00 in penalties against Safeway and cast the costs for this appeal on Appellant, Safeway Insurance Company of Louisiana.

AFFIRMED.

      . McClendon v. Economy Fire & Cas. Ins. Co., 98-1537 (La.App. 3 Cir. 4/7/99); 732 So.2d 727.

      . Roberts v. Chargois, 98-1073 (La.App. 3 Cir. 2/24/99); 736 So.2d 910.

      . La.R.S. 22:658(A)(3).

      . Rogers v. Commercial Union Ins. Co., 01-443, p. 8 (La.App. 3 Cir. 10/3/01); 796 So.2d 862, 868.

      . La.R.S. 22:658(A)(3).

      . La.R.S. 22:1220(B).

        .See La.R.S. 22:1220(B)(3) and (C).


author: I, SAUNDERS, Judge.

text:
    Roderick J. ROWAN v. TOWN OF ARNAUDVILLE.
    No. 02-0882.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Patrick Craig Morrow Sr., Morrow, Morrow, Opelousas, LA, for Town of Ar-naudville, LA.
    Dwight David Reed, Attorney at Law, Opelousas, LA, for Roderick J. Rowan.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   I, SAUNDERS, Judge.

The appellant, Roderick J. Rowan, appeals the judgment of the trial court granting the Town of Arnaudville’s Peremptory Exception of No Right of Action. Mr. Rowan asserts that, as the successor in title to the property, he retains the same obligations and rights as the original owner.

FACTS

On March 8, 1991, Alveston Rowan and Lena Castille Rowan entered into a contract of lease with the Town of Arnaudville (hereinafter the “Town”). The lease term was twenty-five years and it called for payments of $200.00 per year, with a $25.00 increase every five years and a right to renew or re-lease for an additional twenty-five years at the end of the original lease term. Included in the lease was a servitude of passage for the Town’s water tower. Mrs. Rowan signed the contract of lease above a signature line captioned, “LENA CASTILLE ROWAN, LESSOR.”

An Act of Cash Sale was made on July 8, 1997, whereby Lena Castille Rowan sold to her son, Roderick J. Rowan, the property subject to the existing lease with the Town. The Act of Sale included a subrogation of all her rights and actions of warranty. The sale was made in consideration of the price of $1000.00 cash. The Act of Sale further noted that the property conveyed was not the family home of the vendor, but will be the family home of the vendee.

On January, 24, 2002, Mr. Rowan filed a “Petition on Suit,” seeking an annulment of the lease and removal, by the Town of Arnaudville, of all appurtenances placed there by the Town. Mr. Rowan seeks this annulment of the original lease on the basis that there was “no intent expressed therein by Lena Castille Rowan to lease her interest to the Town of Arnaudville.” Mr. Rowan claims the property leased to the Town was the separate property of Lena Castille Rowan, not community property | ¡>of the marriage of Alveston Rowan and Mrs. Rowan. It is argued that only Alveston Rowan was referenced in the text' of the contract of lease, and, therefore, Mrs. Rowan did not signify an intent to lease the property.

On February 19, 2002, the Town filed a Peremptory Exception of No Right of Action. At a hearing on March 27, 2002, the trial court granted the Town’s exception. On appeal, Mr. Rowan contends that the lease, between the Town and Mr. and Mrs. Rowan, was not valid because Mrs. Rowan never signified her intent to lease property. Since he has pm-chased the property subject to the lease, he claims he has acquired all rights and obligations of Mrs. Rowan with respect to said land. As such, he argues that he maintains a right of action to challenge the lease and the trial court erred in granting the Town’s peremptory exception.

LAW AND ARGUMENT

The Town argues that Roderick Rowan has no right of action to prosecute this suit. The lease was an authentic act, duly-recorded in the Public Records. The only claim by Mr. Rowan in his petition is that the lease should be annulled because Lena Castille Rowan expressed no intent to lease her interest in the property to the Town. The Town argues that this claim by Mr. Rowan is controverted by Mrs. Rowan’s signature on the lease, as the lessor of the property.

The standard for establishing the exception of no right of action is well developed and states that, “[w]hether a person has a right of action depends on whether the particular plaintiff belongs to the class in whose favor the law extends a remedy and raises the issue of whether plaintiff has the right to invoke a remedy that the law extends only conditionally.” Northshore Capital Enterprises v. St. Tammany Hosp. Dist. # 2, 01-1606 p. 4 (La.App 1 Cir. 6/21/02); 822 So.2d 109, 112. This court |ahas recently expressed the appropriate standard for review of an exception of no right of action in Mississippi Land Co. v. S & A Properties II, Inc., 01-1623 (La.App. 3 Cir. 5/8/02); 817 So.2d 1200, reh’g denied. “An exception of no right of action has the function of determining whether the plaintiff has any interest in the judicially enforced right asserted. The function of this exception is to terminate the suit brought by one who has no judicial right to enforce the right asserted in the lawsuit. The determination of whether a plaintiff has a right of action is a question of law. Accordingly we review exceptions of no right of action de novo.” (citations omitted) Id. at 1202-03.

The Town relies on Miles v. Miles, 328 So.2d 394 (La.App. 3 Cir.1976), to support its proposition that Mr. Rowan has no right of action in this case, and the trial court cited Miles when it granted the Town’s exception. The court in Miles stated that:

[A] sale of immovable property in the form of an authentic act which recites consideration cannot be attacked by a party thereto who attempts to controvert the recital of consideration by proof that the consideration was not actually given, unless the attacking party alleges fraud, mutual error, or force; or produces written evidence in the form of a counter-letter; or, the lack of consideration in indicated by answers to interrogatories or requests for admissions of fact.

Id. at 398. The court in Miles went on to hold that, since the plaintiffs did not allege fraud, mutual error, force, or that a counter-letter existed, they neither stated a cause of action nor did they have a right of action. We are troubled by the apparent conclusion of the court that, where there is no cause of action stated, there can be no right of action. We do not believe that to be the case and suspect that the court’s language is unintentionally over-broad and was not intended as a doctrinal statement.

In the Code of Civil Procedure, the legislature explicitly granted potential | ¿defendants the exceptions of no cause of action and no right of action. These exceptions are enumerated separately within the recitation of possible peremptory exceptions.

Art. 927. Objections raised by peremptory exception

A. The objections which may be raised through the peremptory exception include but are not limited to the following:
(1) Prescription.
(2) Res judicata.
(3) Nonjoinder of a party under Articles 641 and 642.
(4) No cause of action.
(5) No right of action, or no interest in the plaintiff to institute the suit.

La.Code Civ.P art. 927. These objections are clearly intended by the legislature to be distinct remedies that can be brought in conjunction with each other where appropriate. It is possible for one to have a right of action, but to state no valid cause of action, and therefore be entitled to no recovery. Despite this conclusion and for the reasons stated below, we find that Mr. Rowan has no right of action in the present case. The question of whether he has a valid cause of action was not addressed by the trial court and is not presently before us.

Mr. Rowan is correct in his assertion that the legal rights and obligations of the seller of immovable property pass to the purchaser of that immovable property. In Prados v. South Central Bell Tel. Co., 329 So.2d 744, 748 (La.1975), the Supreme Court has stated that, “[n]ot only the Obligation, but the Right resulting from a contract relative to immovable property, passes with the property ... and thus also the heir or other acquirer will have the right to enforce a contract made for the improvement of the property by the person from whom he acquired it.” This transfer of rights and obligations, however, also requires a subsequent purchaser of | .¡immovable property to honor contractual obligations affecting the land acquired. “When, however, the lessor sells property during the term of a recorded lease, the purchaser in absence of a contrary stipulation is bound by the obligations of the lessor.” Id. at 749.

However, the rights and obligations which automatically transfer to the purchaser, and which the court refers to above, are real rights. Jurisprudence clearly states that actions challenging the validity of a contract, or seeking to ratify or nullify a contract, even in the case of real estate transactions, are personal actions. See Fontenot v. Lewis, 215 So.2d 161 (La.App. 3 Cir.1968), Moore v. Wilson, 34,135 (La.App. 2 Cir. 11/3/00); 772 So.2d 373, Trinity Universal Ins. Co. v. Horton, 33-157 (La.App. 2 Cir. 4/5/00); 756 So.2d 637. Real rights and obligations transfer from the seller to the buyer without any special provision. La.Civ.Code art. 1763. Personal rights, however, do not transfer in the absence of a special assignment of rights to the buyer. La.Civ.Code art. 1764. Official Comment (d) of article 1764 states that, “a particular successor does not acquire, without stipulation to that effect, any personal rights that his author has with respect to the thing.” In the Act of Sale between Lena Castille Rowan and Mr. Rowan, the only specific assignment of rights involved warranty of title and a “subrogation of all her rights and actions of warranty against all previous owners.” (Emphasis added). The ability to challenge the validity of Mrs. Rowan’s consent to the lease of her land is a personal action belonging to Mrs. Rowan. That personal action did not automatically pass to Mr. Rowan when he purchased the property from her, and Mrs. Rowan clearly did not convey that right to him by assignment in the Act of Sale.

Additionally, Mr. Rowan brings this action to nullify the lease contract on the | (¡basis that Mrs. Rowan, the original owner of the property at the time the lease contract was enacted, did not consent to the lease of the property. Louisiana Civil Code article 2670 provides that, “[t]o the contract of a lease, as to that of sale, three things are absolutely necessary, to wit: the thing, the price, and the consent.” Mr. Rowan’s argument that Lena Castille Rowan lacked the intent to lease the property in question goes to the matter of her consent in entering into the contract. An attempt to nullify a contract on the basis of consent clearly falls within the category of relatively null contracts as provided by the Louisiana Civil Code.

Art.2031 — Relative nullity of contracts

A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed.
Relative nullity may be invoked only by those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own initiative.

This article speaks directly and ciearly to the facts of the case before us and makes it clear that Mr. Rowan is not a party who may validly invoke the relative nullity of the lease contract at issue. Article 2031 clearly states that relative nullity may only be invoked by “those persons for whose interest the ground for nullity was established.” Given this clear language, Mr. Rowan does not, as is required to maintain a right of action, belong to the class in whose favor the law extends a remedy. The concept of contract nullity is a remedy intended to protect the parties to a contract from being forced to honor contracts which they did not enter into freely. Mr. Rowan was not a party to the lease contract, and therefore is not a party for whose interest the ground for nullity was established.

Confirmation of a contract, as referred to in Article 2031 above, involves 17making the contract valid by formal assent. That assent can be evidenced through the typical actions signifying ratification of a defective contract. In the present case, Mrs. Rowan’s acceptance of rent from the Town for six years could arguably qualify as a ratification of the contract even in the event the Contract were deemed defective. While no clear definition exists in the statutes or case law as ' to what confirmation acts validate a relatively null contract, jurisprudence makes it clear that acts sufficient to ratify a contract will act as confirmation of the contract. Confirmation and ratification are used almost interchangeably, or as non-exclusive actions. When a contract is ratified through the subsequent actions of the parties, that contract is confirmed by that ratification. See Hamilton v. McKee, 371 So.2d 1115 (La.1979), Ponder v. Pechon, 274 So.2d 386 (La.1973), Placid Oil Co. v. Taylor, 291 So.2d 892, writ granted 294 So.2d 832 (La.1974).

We find no merit to Mr. Rowan’s contention that Mrs. Rowan did not intend to lease the property in question. Her signature appears on the lease contract, and under her signature she is clearly designated as “Lessor”. Additionally, Article 2031 provides that relatively null contracts are capable of being confirmed, through ratification, by the subsequent behavior of the parties. During the six years the lease was in effect prior to Mr. Rowan’s purchase of the land Mrs. Rowan indicated no desire to challenge the validity of this lease contract in any way. To the contrary, she accepted regular rent payments for the property for six years. The acceptance of rent has clearly been established by jurisprudence as a ratification of a lease contract. “[T]he two lessors who were minors at the time the lease was executed have accepted rental payments under the lease since reaching majority. Their acceptance of rent has clearly validated the lease in its entirety, including the mortgage provisions, by [¿ratification.” Kavanaugh v. Berkett, 407 So.2d 645, 648 (La.1981).

We have read the case law Mr. Rowan presents in support of his contention that, as owner of the property subject to the lease with the Town, he has the capacity to exercise any rights which are attached to that property. We find these cases, while dealing with the peremptory exception of no right of action in various legal contexts, are not analogous to the narrow facts and issues presently before the court in this matter. They do not deal with a plaintiff, not a party to the contract at issue, challenging the validity of the contract on the basis of a contracting party’s consent to enter into the agreement. Specifically, they do not deal with La.Civ.Code art. 2031, which is directly on point and controlling in this matter.

DECREE

Louisiana Civil Code Article 2031 is controlling. The Mr. Rowan has no right of action. The judgment of the trial court is affirmed. All costs of this appeal are assigned to Mr. Rowan.

AFFIRMED.

WOODARD and AMY, JJ., concur in the result.


text:
    STATE of Louisiana v. Joseph Ardis CEDARS.
    No. KA02-861.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Van H. Kyzar, District Attorney, Natch-itoches, LA, for State/Appellee: State of Louisiana.
    James S. Seaman, Natchitoches, LA, William D. Dyess, Many, LA, for Defendant/Appellant: Joseph Ardis Cedars.
    Court composed of JOHN D. SAUNDERS, BILLIE COLOMBARO WOODARD, and MARC T. AMY, Judges.
   WOODARD, Judge.

The trial court convicted Mr. Cedars of vehicular homicide and sentenced him to fifteen years at hard labor with at least five years to be served without benefit of probation, parole, or suspension of sentence. The trial court also found him guilty of vehicular negligent injuring and sentenced him to six months in the parish detention center, to be served concurrently with the vehicular homicide sentence. Mr. Cedars appealed his sentence for vehicular homicide, attacked the constitutionality of the sentencing scheme under the statute, and asserted ineffective assistance of counsel. We affirm his convictions on both charges and affirm his sentence for vehicular negligent injuring. However, we find that his sentence for vehicular homicide is indeterminate and, therefore, vacate it and remand the case for resentencing.

s{c sj:

The Defendant, Joseph Cedars, while traveling northbound in the southbound lane of Interstate 49, collided with another vehicle. As a result, John Ruben died; Shataka Cheney was injured. A blood alcohol test revealed that the Defendant had “a .18% grams of alcohol content in his blood.”

He was charged with one count of vehicular homicide, a violation of La.R.S. 14:32.1, and one count of vehicular negligent injuring, a violation of La.R.S. 14:39.1. Initially, he pled not guilty to both charges but then withdrew these pleas and entered a plea of guilty to vehicular negligent injuring, as well as vehicular homicide. After his sentencing, the court reconsidered his sentence, amending it as follows: 1) Vehicular homicide'—fifteen years at hard labor, at least five of which to be served without benefit of probation, parole, or suspension of sentence; 2) Vehicular negligent injuring—six months in the parish detention center, to run concurrently with the sentence imposed for vehicular homicide. The trial court left restitution to the discretion of the parole board.

Mr. Cedars appeals his conviction and sentence, alleging three assignments of error.

| ¡¿Errors Patent

In accordance with La.Code Crim.P. art. 920, we review the appeal for errors patent on the face of the record. After reviewing the record, we find several.

First, the vehicular homicide charge and the vehicular negligent injuring charge were improperly joined in the same bill of information. Because it may be punishable at hard labor, vehicular homicide is a felony and is triable by a jury of six. On the other hand, vehicular negligent injuring is not punishable at hard labor; thus, it is a misdemeanor. Because of the penalty, he was not entitled to a jury trial on this charge. Therefore, the two offenses were not triable by the same mode of trial and should not have been charged in the same bill of information. Notwithstanding, Mr. Cedars failed to file a motion to quash the information based on the misjoinder, waiving any objection to this error.

Second, the trial court imposed an indeterminate sentence when it ordered that “at least” five years of Mr. Cedar’s sentence for vehicular homicide be served without benefit of probation, parole, or suspension of sentence. The sentencing provision for vehicular homicide requires that at least one year of the sentence be served without probation, parole, or suspension of sentence. Thus, the trial court may order all or a portion, but at least one year, of the sentence to be served without benefits, but it must specify the term. Accordingly, we must vacate the sentence and remand the case for resentencing.

In addition to being indeterminate, the sentence for vehicular homicide is illegally lenient. The statute requires the imposition of a fine of not less than $2,000.00, nor more than $15,000.00, and also requires the court to order participation in a court-approved substance abuse program, driver improvement | aprogram, or both. The failure to assess Mr. Cedars with a fine and order him into a court-approved program provide additional grounds for vacating the sentence.

We must determine: 1) whether Mr. Cedars’ sentence for vehicular homicide is excessive; 2) the constitutional validity of the sentencing scheme under the vehicular homicide statute; and 3) whether Mr. Cedars received ineffective assistance of counsel.

Excessive Sentence

Mr. Cedars argues that fifteen years with the Louisiana Department of Corrections, with five of those years to be served without benefit of probation, parole, or suspension of sentence for the vehicular homicide charge is excessive. As we have already determined .that this sentence must be vacated, this assignment of error is moot.

Constitutionality of Vehicular Homicide Statute

Mr. Cedars claims that the sentencing scheme for vehicular homicide is facially unconstitutional. He urges that vehicular homicide, La.R.S. 14:32.1, is a subset of negligent homicide, La.R.S. 14:32, and, accordingly, should not carry a greater penalty; and while negligent homicide carries a maximum term of imprisonment of five years, vehicular homicide carries a maximum term of twenty years. However, negligent homicide is a responsive verdict of vehicular homicide; thus, vehicular homicide is the greater offense and should have the more severe penalty.

Mr. Cedars’ next argument focuses on the fact that vehicular homicide carries a minimum mandatory penalty, while manslaughter, first degree feticide, and second degree feticide do not. He also points out the maximum sentence for these offenses. — manslaughter carries a maximum of forty years, first degree feticide, a maximum of twenty years, and second degree feticide, a maximum of ten years. He maintains that these offenses require the offender to have some intent to cause death or serious bodily injury or to be involved in the perpetration of another crime when the death takes place. On the other hand, vehicular homicide is caused by criminal negligence Rrather than an intent to cause harm. He argues that for these reasons, the sentencing scheme is facially unconstitutional.

While such a comparison is relevant to the inquiry, it is not determinative. In State v. Baxley, the Louisiana Supreme Court provided us with guidance in evaluating whether a penalty provision is unconstitutional on its face:

“A punishment is constitutionally excessive if it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993). “A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice.” State v. Lobato, 603 So.2d 739, 751 (La.1992). It is a well established principle that the legislature has the unique responsibility to define criminal conduct and to provide for the penalties to be imposed against persons engaged in such conduct. The penalties provided by the legislature reflect the degree to which the criminal conduct affronts society. Courts must apply these penalties unless they are found to be unconstitutional.
In State v. Telsee, this court outlined several factors which are useful in determining whether a sentence, by its excessive length or severity, is grossly out of proportion to the underlying crime. This analysis is cumulative and focuses on a combination of these factors ... These factors include the nature of the offense and the offender, a comparison of the punishment with sentences imposed for similar crimes, the legislative purpose behind the punishment, and a comparison of the punishment provided for this crime in other jurisdictions.
If the definition of a crime or the penalty are not reflective of current societal values, it is for the legislature, not the courts, to reflect this change.

(Footnote omitted.)

Vehicular homicide punishes a different type of conduct than that punished by negligent homicide and the feticide statutes. By enacting vehicular homicide, the | .¡legislature decided to separately punish persons who cause a homicide by operating a motor vehicle while under the influence of alcohol or a controlled dangerous substance. Our supreme court has interpreted the legislature’s progressive increases in the penalty for vehicular homicide as a response to “the increasingly burdensome societal costs of drunken driving.” Considering the legislature’s concern regarding drunken driving and the societal cost associated with it, Mr. Cedars has not shown that the penalty provision for that offense is unconstitutionally excessive on its face.

He also argues that the definition of the statute is unconstitutional because, by definition, it is inconsistent with other laws, namely La.R.S. 14:98. Under La. R.S. 14:98, operating a vehicle while intoxicated, a driver is presumptively “under the influence” when his blood alcohol level is .10 percent, but a driver can be convicted for vehicular homicide if his blood alcohol level is .08 percent. “Thus,” Mr. Cedars asserts, “a driver could be operating his/her vehicle legally, yet still be punished for vehicular homicide, if he/she causes an accident that results in death.... These inconsistencies in the statute make it patently unfair, misleading, ambiguous, and furthermore, unconstitutional.”

We do not find this argument to be persuasive. The presumption of intoxication is merely that — a presumption; it is not the standard by which driving under the influence is established. A person may be found guilty of driving while intoxicated as well as vehicular homicide without the state proving the defendant’s blood alcohol level. “The evident purpose of the vehicular homicide statute is to curb traffic fatalities caused by the consumption of alcohol. It is not aimed at persons involved in vehicular fatalities whose alcohol consumption does not cause but merely coincides with such an accident.”

Thus, we find that the legislature has thoughtfully and carefully drafted a scheme for punishing conduct involving the operation of motor vehicles and the consumption of alcohol or controlled dangerous substances. Accordingly, this assignment lacks merit.

| (¡Ineffective Assistance of Counsel

Mr. Cedars claims he received ineffective assistance of counsel because his counsel did not present mitigating evidence at sentencing and did not obtain a definite sentence as part of his plea bargain. Our decision to vacate the sentence pretermits a discussion of this issue. However, we note that, at the original sentencing, Mr. Cedars was able to address the court and offer his apologies. His counsel then addressed the court and argued other mitigating factors — namely, his youth, lack of premeditation for the offense, admission of guilt, the lack of intent, good work and family history, status as a student, lack of a history of violence, good family support, and willingness to make restitution. Counsel also made the court aware of the Defendant’s desire to treat his problem with alcohol. Thus, the Mr. Cedars’ attorney argued mitigating factors to the trial court.

Regarding his claim that his attorney was ineffective for failing to obtain a definite sentence as part of his plea bargain, that claim should be relegated to post-conviction relief. Accordingly, this assignment lacks merit.

Therefore, we affirm his convictions and his sentence for vehicular negligent injuring. However, we vacate the sentence imposed for vehicular homicide, as it is indeterminate, and remand for resentencing.

CONCLUSION

For the foregoing reasons we affirm Mr. Cedars’ convictions and sentence for vehicular negligent injuring. We vacate his sentence for vehicular homicide and remand for resentencing.

CONVICTIONS AFFIRMED; SENTENCE FOR VEHICULAR NEGLIGENT INJURING AFFIRMED; SENTENCE FOR VEHICULAR HOMICIDE VACATED AND REMANDED FOR RE-SENTENCING.

      . La.Code Crim.P. art. 493.

      . La.Code Crim.P. art. 782.

      . La.Code Crim.P. art. 779.

      . La.Code Crim.P. art. 495. State v. Mallett, 357 So.2d 1105 (La.1978), cert. denied, 439 U.S. 1074, 99 S.Ct. 848, 59 L.Ed.2d 41 (1979).

      . La.Code Crim.P. art. 879.

      . La.R.S. 14:32.1.

      . La.Code Crim.P. art. 814.

      . State v. Baxley, 94-2982 (La.5/22/95); 656 So.2d 973.

        . Id. at 979-80.

      . State v. Cook, 95-2784, p. 3 (La.5/31/96); 674 So.2d 957, 959, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

      . State v. Taylor, 463 So.2d 1274, 1275 (La.1985).


author: YELVERTON, J.

text:
    STATE in the Interest of G.P.D. v. M.F.L.P. aka M.F.L.
    No. 02-840.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      Robert John Elliott, Dept, of Social Services, Alexandria, LA, for Plaintiff/Appel-lee, State of LA., Dept of Social Services.
    Thomas E. Papale, Marksville, LA, for Defendant/Appellant, M.F.L.P.
    Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   YELVERTON, J.

This appeal arises from a judgment terminating the parental rights of the Appellant, M.F.L., to her child, G.P.D. The trial court found that M.F.L. failed to substantially comply with the Department of Social Services’ (DSS) case plan established for her, and that there is no reasonable expectation of significant improvement in the near future. Additionally, the trial court ruled that termination of her parental rights was in the best interest of the child. The mother appeals, claiming that the DSS failed to carry its burden of proof. We disagree and affirm the ruling of the trial court.

On October 16, 2000, G.P.D., then nearly three, was removed from the care of his mother and placed in the custody of the DSS after an investigation revealed that the mother was severely neglecting the care, safety, and hygiene of her children. The mother is an admitted prescription drug abuser. G.P.D. was subsequently adjudicated a child in need of care and placed in a foster home. He was two-and-a-half years old at the time. Further investigation revealed that there had been several previous incidents of validated neglect or abuse involving the child. Furthermore, it was soon determined that G.P.D. was developmentally and mentally delayed as a result of this neglect. This caused the child to have difficulty in understanding simple commands, in reacting appropriately in certain situations, and caused the child to develop a speech impediment.

The DSS attempted to work with the mother to reunite her with her child. A case plan was developed in order to reach this goal. The plan included both in-patient and out-patient treatment for her substance abuse problem, parenting classes, and psychological evaluation. The most significant portion of her plan, however, dealt bwith her addictive problem, which was a major reason for the removal of her children. Almost one year passed from the removal of her children before she had completed the required parenting classes. During the same time, the mother had been dismissed from or checked herself out of five in-patient substance abuse programs, without having completed one. On January 25, 2002, the DSS filed for the termination of the mother’s parental rights. Later, one year and two months after the removal of her children, she finally completed the in-patient program on her sixth attempt. However, she still failed to meet the out-patient aftercare program as required by the DSS.

At the trial on the merits, the trial court found that more than one year had passed since the removal of the child, that there had been no substantial compliance with the case plan as required, and that there was no reasonable expectation of improvement in the mother’s behavior. Noting that the child had improved greatly in his development since being placed in the care of his foster mother, the trial court found that the best interest of the child dictated that the mother’s parental rights be terminated and that the child be freed for adoption. From this decision, the mother appeals.

The fundamental purpose of involuntary termination proceedings is to provide the best possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs by providing a judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. La.Ch.Code art. 1001. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. Id. State ex rel. J.A., 99-2905, pp. 7-8 (La.1/12/00), 752 So.2d 806, 810 (citations omitted), sets forth the following regarding the termination of parental rights:

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent.

Title X of the Children’s Code governs the involuntary termination of parental rights. The grounds for the termination of the mother’s parental rights in this case are set forth by Louisiana Children’s Code article 1015(5), which states:

Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

In order to sever the parental bond, the DSS must prove that the mother failed to substantially comply with her case plan by clear and convincing evidence. La.Ch. Code art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that the minimum standard of proof in termination of parental rights cases is clear and convincing evidence); State ex rel. J.A., 752 So.2d at 810. Not only must the DSS establish that statutory ground for termination, but the trial judge must also find that termination is in the best interest of the child. La.Ch.Code art. 1039.

14“It is well-settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong.” In re A.J.F., 00-948, p. 25 (La.6/30/00), 764 So.2d 47, 61. In its review, “it is important that the appellate court not substitute its opinion when it is the juvenile court who is in the unique position to see and hear the witnesses as they testify.” Id. at 62. “The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record.” Id.

In the case before us, the record clearly sets forth that the mother failed to substantially comply with the case plan laid out for her. She failed five times to complete her in-patient treatment, accomplishing this goal only after the DSS filed suit to terminate her rights to her child. She had still not completed her out-patient aftercare treatment as of the time of the trial. Even worse, she failed to remain drug-free, testing positive for drugs just prior to the trial. The record reflects that, even though she has complied with some aspects of the plan, the mother has never demonstrated that she has gained anything from her treatment or classes, nor has . she made the improvements necessary to get her child back.

Furthermore, the record supports the conclusion that there is no reasonable expectation of significant improvement from the mother. She was told specifically that she must be drug-free in order to regain custody of her child, yet she continued to take addictive prescription drugs against the advice of her counselors. She openly admitted taking prohibited drugs. Simply put, the evidence shows that her dependency would affect her ability to parent her child and would expose the child to a substantial risk of harm. Despite being told this time and time again, she failed to clean up as required by her plan. Additionally, she failed to attend meetings Irregularly as ordered by the plan. As noted by the trial court in its reasons for judgment, her pattern of behavior is that of failure to comply with the plan. The trial court committed no error in making this finding.

Finally, the trial court was correct in ruling that the child’s best interest requires that the mother’s parental rights be terminated. The best evidence of this is the child’s condition when taken from the care of the mother and his condition now. When taken from his mother, G.P.D. suffered from emotional and developmental problems as a result of the neglect he suffered at the hands of his mother. He was not toilet trained, and he was scared of strangers. He was very apprehensive and feared harm from people within his own family. He had nightmares, some involving suicide. Neglect and a lack of nurturing had caused him to develop a speech impediment. Now, after being in the care of his foster mother, G.P.D. has developed to a level appropriate for his age. He is relaxed and has become “very well adjusted, very happy.” He has bonded to his foster mother, who not only wants to adopt him, but would also allow the mother to visit with the child if she is allowed to adopt him. His speech has even- improved. The trial court ruled that termination of the mother’s parental rights was in the child’s best interest. The vast improvements the child has made since being removed from his mother’s custody supports this ruling.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed against the mother.

AFFIRMED.

      . G.P.D. has an older brother who was also removed from the mother’s care. He was placed in permanent foster care and is not involved in this litigation.

      . The DSS also filed for the termination of the biological father’s parental rights. He later voluntarily waived his rights to the child.


author: |, YELVERTON, J.

text:
    STATE of Louisiana in the Interest of S.W.
    No. 02-834.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 11, 2002.

      William Thomas Babin, Assistant District Attorney, Lafayette, LA, for Plaintiff/Appellee, State of LA., Dept of Social Services.
    Gregory L. Thibodeaux, Attorney at Law, Lafayette, LA, for S.W.
    Vivian Veron Neumann, Lafayette, LA, for Defendant/Appellant, L.W.
    Marcus Anthony Allen Sr., Lafayette, LA, for S.C.
    Court composed of HENRY L. YELVERTON, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   |, YELVERTON, J.

This appeal arises from a judgment terminating the parental rights of the Appellant, L.W., to her child, S.W. The trial court found that the mother could not support the child properly and failed to comply with the Department of Social Services’ case plan established for her. The mother appeals. For the reasons assigned, we affirm.

S.W. came into the custody of the Department of Social Services (DSS) shortly after his birth. When S.W. was born, L.W. had no bed for him, nor any of the things necessary to care for a newborn. L.W. suffers from cerebral palsy. She is wheelchair bound and has no control over the movement in her left arm and both legs. While the mother has some control over the use of her right arm, she is unable to hold objects in her hands and cannot hold her child without assistance. She is dependent upon a caregiver for all her needs. At the time of the termination hearing, L.W. was living at the home of the child’s grandmother — her mother and primary caregiver. The two slept on a mattress on the living room floor. The grandmother has a history of substance abuse and a varied criminal history, including arrests for prostitution, theft, and aggravated battery with a knife. Based on this information, the DSS felt that the child would be without adequate care and supervision if left in the care'and control of the mother; it sought to have the child removed to the custody of the DSS.

The child was placed with foster parents while an investigation was conducted. After a two-year investigation and the creation of a case plan which would allow the mother to regain custody of her child, the DSS found that the mother failed to make any “real attempts to regain custody of [her] son.” The DSS recommended termination of L.W.’s parental rights in order to free S.W. for adoption. The trial |2court agreed with the DSS and terminated the mother’s parental rights. From that decision, the mother appeals.

The fundamental purpose of involuntary termination proceedings is to provide the best possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs by providing a judicial process for the termination of all parental rights and responsibilities and to achieve permanency and stability for the child. La.Ch.Code art. 1001. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. Id. State ex rel. J.A., 99-2905, pp. 7-8 (La.1/12/00), 752 So.2d 806, 810 (citations omitted), sets forth the following regarding the termination of parental rights:

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. The parents have a natural, fundamental liberty interest to the continuing companionship, care, custody and management of their children warranting great deference and vigilant protection under the law, and due process requires that a fundamentally fair procedure be followed when the state seeks to terminate the parent-child legal relationship. However, the child has a profound interest, often at odds with those of his parents, in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care. In balancing these interests, the courts of this state have consistently found the interest of the child to be paramount over that of the parent.

Title X of the Children’s Code governs the involuntary termination of parental rights. The grounds for the termination of the mother’s parental rights in this case are set forth by Louisiana Children’s Code Article 1015(5), which states:

ls(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

In order to sever the parental bond, the DSS must prove that the mother failed to substantially comply with her case plan by clear and convincing evidence. La.Ch.Code art. 1035(A); Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (holding that the minimum standard of proof in termination of parental rights cases is clear and convincing evidence); State ex rel. J.A., 752 So.2d at 810. Not only must the DSS establish that statutory ground for termination, but the trial judge must also find that termination is in the best interest of the child. La.Ch.Code art. 1039.

“It is well-settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong.” In re A.J.F., 00-948, p. 25 (La.6/30/00), 764 So.2d 47, 61. In its review, “it is important that the appellate court not substitute its opinion when it is the juvenile court who ■ is in the unique position to see and hear the witnesses as they testify.” Id. at 62. “The trier of fact is not disadvantaged by the review of a cold record and is in a superior position to observe the nuances of demeanor evidence not revealed in a record.” Id.

In the case at hand, the record shows that the mother’s case plan set out 22 actions to be taken by her. She complied with only two, meeting with her case worker and maintaining visitation with her son. However, she failed to meet the 20 other actions required of her to regain custody of her son. These included failure to avail herself of the services of a personal care attendant from the Southwest Louisiana | ¿Independence Center, failure to provide a statement from a physician stating she is physically capable of raising the child, failure to undergo a psychological assessment, and failure to maintain clean and safe housing for the child. Thus, it is clear from the record that the mother failed to substantially comply with her case plan and that she is physically incapable of taking care of her child. Additionally, the record showed that the child was in good health and was happy in the care of the foster parents, who are hoping to adopt the child. The foster parents expressed a desire to allow L.W. to maintain a relationship with S.W. if that adoption were to occur.

While the plight of the mother is sad, it is the best interests of the child we are statutorily bound to consider as paramount. The trial court found that the mother had failed to comply with the case plan established by the DSS and that termination of L.W.’s parental rights would be in the best interest of S.W. There is no manifest error in this finding. Therefore, we must affirm the decision of the trial court.

For the reasons assigned, the judgment of the trial court is affirmed. Costs of this appeal are assessed against L.W.

AFFIRMED.

      . The DSS also recommended the termination of S.W.'s father's parental rights. The trial court also found that the father had failed to comply with his case plan and terminated his rights to the child as well. The father did not appeal and is no longer part of this litigation.