author: _jjPETERS, J.

text:
    STATE of Louisiana v. Donald E. SNEED.
    No. 04-0540.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Edwin L. Cabra, Assistant District Attorney, Thirtieth Judicial District, Lees-ville, LA, for State of Louisiana.
    Elvin C. Fontenot, Jr., Attorney at Law, Leesville, LA, for Defendant/Appellant, Donald E. Sneed.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.

       John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as judge pro tempore.

   _jjPETERS, J.

We granted this application for supervisory writs to address the issue of whether a trial court can terminate a defendant’s probation and then reinstate the probation two years later. In this case, the trial court placed the defendant, Donald E. Sneed, on supervised probation on February 19, 1999; discharged him from that probation on April 1, 2000; and reinstated him to that on July 17, 2002. For the following reasons, we grant the writ application and vacate the trial court order that reinstated the defendant to probation.

DISCUSSION OF THE RECORD

Between December of 1997 and May of 1998, the defendant engaged in what can only be described as a crime spree in Vernon Parish, Louisiana, committing numerous thefts and burglaries. On September 21, 1998, the State of Louisiana (acting through the Vernon Parish District Attorney’s office, sometimes hereinafter referred to as the “District Attorney’s office” or the “state”) charged the defendant by bill of information with thirty-five separate offenses, including one count of simple criminal damage to property, a violation of La.R.S. 14:56; one count of aggravated burglary, a violation of La.R.S. 14:60; five counts of simple burglary, violations of La.R.S. 14:62; ten counts of simple burglary of an inhabited dwelling, violations of La.R.S. 14:62.2; and eighteen counts of theft, violations of La.R.S. 14:67. The defendant appeared in open court on September 21, 1998, and pled not guilty to all charges. On that same date, the trial court set all the charges for trial on December 14,1998.

|2On December 3, 1998, apparently pursuant to a plea agreement with the District Attorney’s office, the defendant withdrew his prior plea to ten of the burglary counts and entered guilty pleas to ten counts of simple burglary. The trial court ordered a presentenee investigation report and set a sentencing hearing for February 19,1999.

At the sentencing hearing, the trial court sentenced the defendant, on each count, to serve twelve years at hard labor and to pay a $1,000.00 fine; gave the defendant credit for time served; and ordered that the incarceration sentences run concurrently with each other and with any other sentence to which the defendant was then subjected. The trial court then suspended all but eight months of the incarceration sentence, suspended the payment of all but one of the fines imposed, placed the defendant on five years supervised probation, and made the supervised probation subject to both specific and general conditions.

On March 16, 2000, a probation and parole officer of the Louisiana Department of Corrections (DOC) filed a motion and order requesting that the trial court termi-natejjthe defendant’s probation effective April 1, 2000. The trial court had already executed the attached order granting DOC the relief requested. Although the motion requested that the defendant’s probation be terminated as having been unsatisfactorily completed, it also stated that the defendant “has complied with all Conditions of Probation.” The order was signed without a hearing, and DOC gave the District Attorney’s office no prior or subsequent notice of this action.

Two days after the effective date of the defendant’s probation termination, Edmond Lacaze, Jr., the district administrator of DOC, acting on behalf of the acting director of the probation and parole division of DOC, provided the defendant with a letter addressed “To Whom It May Concern,” specifically stating that the defendant had completed the sentences imposed upon him on February 19, 1999, and that he met “all of the requirements for an automatic first offender pardon, as outlined in R.S. 15:572.” The letter further stated:

Now, therefore, as provided by the constitution, this will certify and proclaim that effective 040100, SNEED, DONALD is fully pardoned for the offense above stated and that all rights of citizenship and franchise are restored in Louisiana, except the right to receive, possess or transport a firearm.

DOC did not provide the District Attorney’s office with a copy of this letter, although the letter purports to have provided the Vernon Parish Clerk of Court with a copy.

The matter is now before us because, on July 17, 2002, the trial court, on its own motion, executed an order reinstating the defendant to supervised probation. On August 9, 2002, the defendant filed a motion to set aside this reinstatement order, which motion the trial court rejected after a March 19, 2004 hearing. The defendant then timely filed this application for supervisory writs, seeking review of that reinstatement judgment.

^OPINION

The July 17, 2002 reinstatement order provided as follows:

Defendant was placed on five years probation on February 19, 1999, and ordered to satisfy numerous conditions. Defendant’s probation was terminated unsatisfactorily by order of this court dated April 1, 2000. This order was executed due to a mistake of fact which resulted in an illegal sentence under C.Cr.P. Article 897. Pursuant to Article 882 paragraph (A) the Court’s order of April 1, 2000 terminating defendant’s supervised probation is rescinded and defendant is returned to active probation forthwith subject to the conditions originally imposed.

At the March 19, 2004 hearing, the trial court explained that it had executed the order releasing the defendant from probation based on DOC’s assertion that, because the defendant had been incarcerated for a felony conviction arising in Sabine Parish, Louisiana, he could not satisfy the restitution and fine conditions of his probation. DOC considered it a vain and useless act to maintain the defendant on supervised probation during his incarceration.

The trial court explained that it executed the July 17, 2002 ex parte order because it had learned that, after his release from the Vernon Parish probation, the defendant paid $5,000.00 as restitution in Beauregard Parish before being released from probation on charges arising there. In the trial court’s words, “[I]f he’s going to pay restitution to victims in Beauregard Parish he ought to pay restitution to the victims in Vernon Parish.” In other words, the mistake of fact concerns whether the defendant could make restitution to the Vernon Parish victims while incarcerated.

|sThe trial court has the power to “modify, change, or discharge the conditions of probation, or add further conditions authorized by [La.Code Crim.P. art. 895]” at any time during a defendant’s probationary period. La.Code Crim.P. art. 896. However, “[i]n a felony case the court may terminate the defendant’s probation and discharge him at any time after the expiration of one year of probation.” La.Code Crim.P. art. 897. If discharged after the expiration of at least one year of probation, “the defendant shall have satisfied the sentence imposed.” La.Code Crim.P. art. 898. In the matter now before us, the defendant began probation on February 19, 1999, and was discharged on April 1, 2000. Thus, more than one year had passed since he was placed on probation.

The state argues that, notwithstanding the provisions of La.Code Crim.P. arts. 897 and 898, the March 16, 2000 order is invalid because it had no notice of the proposed action. The state points to the notification requirements of La.Code Crim.P. art. 822(A), which provides as follows:

(1) Should the court on its own motion or on motion of the defendant consider setting aside a guilty verdict or a plea of guilty or, after the sentence is imposed, consider amending or modifying the sentence imposed, the district attorney shall be notified and the motion shall be tried contradictorily with the district attorney unless the district attorney waives such contradictory hearing.
(2) Such motions include but are not limited to motions for a new trial, motions in arrest of judgment, motions for amendment, modification, or reconsideration of sentence, and motions for modification of conditions of probation or termination of probation.

(Emphasis added.)

In the matter before us, termination of the defendant’s probation did not result from the motion of the trial court or the defendant, but from the motion of DOC, an agency of the state. While La.Code Crim.P. art. 822 could easily require notice to the District | ^Attorney’s office in a situation such as that now before us, it does not, and we pannot read such a requirement into the Article.

DOC made a determination that the defendant’s supervised probation should not continue and requested relief from the trial court without communicating with the District Attorney’s office. The order executed by the trial court met the requirements of La.Code Crim.P. art. 897, and thus the defendant was deemed to have satisfied his sentence. La.Code Crim.P. art. 898. The defendant did nothing improper, and he had complied with all terms of probation at the time of the April 1, 2000 termination. We have been directed to no authority that would authorize the trial court to reinstate a defendant’s probation more than two years after he has been properly discharged.

DISPOSITION

For the foregoing reasons, we grant the defendant’s supervisory writ and vacate and set aside the trial court’s order rescinding its previous order terminating the defendant’s supervised probation. In doing so, we hereby release the defendant from any further obligations under his sentences for those offenses.

WRIT GRANTED AND MADE PEREMPTORY.

      . The trial court minutes of September 21, 1998, did not separate the simple burglary charges from the charges of simple burglary of an inhabited dwelling, but simply stated that the defendant entered a not guilty plea to fifteen counts of simple burglary. Additionally, on October 26, 1998, the state filed a second bill of information charging the defendant with the same offenses as described in the September 21, 1998 bill of information. The defendant was again arraigned on the charges and entered a not guilty plea to all charges. The court minutes of that date contain the same confusion concerning separation of the simple burglary charges from the simple burglary of an inhabited dwelling charges as did the court minutes of September 21, 1998. While the record contains no explanation for the second bill of information, it appears that it was filed because the September 21, 1998 bill of information contained only thirty-four charges. A close examination of that bill of information reflects an error in the numbering of the charges in that two separate charges were assigned the number "16.” Other than that error, we find no difference in the two bills of information.

      .The record contains only the minutes of the December 2, 1998 proceedings. The court minutes indicate that some of the counts to which the defendant pled were originally counts of simple burglary of an inhabited dwelling. Although neither the trial court minutes nor the remainder of the record reflects any amendment to the charges related to simple burglary of an inhabited dwelling, there appears to be no dispute over the fact that the defendant pled guilty only to the simple burglary charges, violations of La.R.S. 14:62.

      . The trial court also held a hearing on February 17, 1999, and received evidence relative to the pending sentencing. However, the record before us contains no transcript of that hearing.

      . It is not clear from the record how this eight-month period was derived. However, it appears that the eight-month period corresponded to the time the defendant had been incarcerated since his apprehension for the charged offenses.

      . While the record is silent concerning the particulars of the Sabine Parish conviction, it is obvious that its timing was such that it could not be used to revoke the defendant’s probation.

      . The record is silent concerning how the trial court became aware of the Beauregard Parish probation payments, or whether that which it had been told was in fact correct. The only thing that is clear is that the information did not come from the District Attorney’s office.


source: Caselaw Access Project

author: JjPICKETT, J.

license: Public Domain

text:
    Benjamin HEBERT v. Corey J. BROUSSARD, et al.
    No. 04-485.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      John F. Wilkes, III, Borne & Wilkes, Lafayette, LA, for Defendant/Appellee, City of New Iberia, Robert Feller, Chief of Police, Harry Hebert, Animal Control Officer, Cory J. Broussard, Sr., New Iberia Police Department Animal Control.
    Benjamin Hebert, In Proper Person, Lafayette, LA, for PlaintiffAppellant, Benjamin Hebert.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   JjPICKETT, J.

FACTS

This matter arises from an incident that occurred on July 8, 2002. On that date, the New Iberia Office of Animal Control received a call for assistance from Michelle Miholic after a rottweiler chased and pinned her husband, Vince Miholic, in his back yard. Animal Control Officer Harry Hebert responded to Ms. Miholic’s call for assistance. Officer Hebert attempted to catch the dog with his catch pole, but did not succeed. He called the New Iberia City Police Department for back up. Officer Corey J. Broussard responded to the dispatch. When Officer Broussard arrived at the scene the dog, Agnes, was in her owner’s backyard. The dog was still loose, the yard was unfenced, and, at that time, the officer had not established the identity of the owner. The dog chased Officer Hebert but stopped when he used his catch pole. The dog then charged Officer Broussard and leapt forward with her mouth open. Officer Broussard drew his service weapon and shot the dog, who later died.

On September 11, 2002, the dog’s owner, Benjamin Hebert, filed suit for damages against Officer Hebert, Officer Broussard, Chief Robert Feller of the New Iberia City Police Department, and the City of New Iberia. The defendants filed a motion for summary judgment on June 17, 2003, seeking dismissal of the suit pursuant to La. R.S. 3:2773(D), which grants statutory immunity to officers for the killing of any dangerous or vicious dog. The defendants’ motion was heard on July 21, 2003, at which time the trial court granted the motion and dismissed the plaintiffs suit with prejudice. It is from this judgment that the plaintiff appeals.

ASSIGNMENTS OF ERROR

The plaintiff sets forth two assignments of error:

1) The trial judge erred when he ruled that New Iberia City Policeman Corey Broussard should be given statutory immunity under Louisiana |2Revised Statute 3:2773(D).
2) The trial judge erred when he ruled that Officer Corey Broussard, Animal Control Officer Hebert, the City of New Iberia and Chief Feller were not guilty of negligence in the killing of Agnes.

DISCUSSION

Appellate courts review summary judgments de novo, using the same criteria applied by the trial courts to determine whether the summary judgment is appropriate. Potter v. First Fed. Sav. & Loan Ass’n of Scotlandville, 615 So.2d 318 (La.1993).

The law pertaining to motions for summary judgment is set forth in La.Code Civ.P. art. 966, which states, in pertinent part:

A. (2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.
C.(l) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.
(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, ... but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

If there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law, summary judgment shall be rendered. La.Code Civ.P. art. 966(B).

In the instant case, the appellant argues that the trial judge erred in ruling that IsOfficer Broussard was entitled to statutory immunity under La.R.S. 3:2773(D). That statute provides:

Any citizen or officer may kill any dangerous or vicious dog, and no citizen or officer shall be liable to damages or to prosecution by reason of killing any dangerous or vicious dog.

Id. (emphases added.)

In DuBois v. McGuire, 579 So.2d 1025, 1034 (La.App. 4 Cir.1991), writ denied, Martinez v. Waterman, 587 So.2d 696 (La.1991), the Fourth Circuit noted:

It is clear to the Court that in the state statute R.S. 3:2773, the authority to kill vicious dogs was meant to be exercised in emergency situations where the dog was attacking someone or someone’s property. Basically it is a recognition of the right of self defense, defense of others or defense of property. The Court’s view is reinforced by virtue of the fact that the only three reported cases on the subject occur in that context. See Collier v. Hoffman, 482 So.2d 922 (La.App. 2 Cir.1986); Chiasson v. Widman, 376 So.2d 350 (La.App. 3 Cir.1979) and Evans v. Litton, 334 So.2d 717 (La.App. 2 Cir.1976). In each of these cases dogs were killed while they were attacking children or farm animals.

Whether or not a dog is “vicious” or “dangerous” is a factual determination which must be determined on a case-by-case basis. The test is whether a reasonable person under similar circumstances would have concluded that the dogs were dangerous under the statute. Collier, 482 So.2d 922; Evans, 334 So.2d 717.

In Chiasson v. Widman, 376 So.2d 350, (La.App. 3 Cir.1979), this court noted that no previous vicious tendency of an animal need be shown by the defendant to exculpate himself from liability for the killing of such animal. What must be shown is that this defendant, when confronted with events such as these, acted in what he thought to be the most expedient and prudent manner in protecting himself or his family from what appeared to him to be an immediate and impending danger. The danger need not actually exist. It is only necessary that the actor have grounds which would lead an ordinary, reasonable man to believe it exists, and that he so believes. All the pertinent facts should be taken into account in assessing the reasonableness |4of the belief.

Louisiana’s statewide leash law is set forth in La.R.S. 3:2771 and sets forth that “No person shall suffer or permit any dog in his possession, or kept by him about his premises, to run at large on any unenclosed land, or trespass upon any enclosed or unenclosed lands of another.” The responsibility for enforcing La.R.S. 3:2771 is placed upon the sheriff, constable, or other police officers of any parish, ward, or municipality in R.S. 3:2773(B), which provides, in pertinent part, that “Any citizen may, ... or other police officers of any parish, ward, or municipality shall seize any dog found unaccompanied by its owner or keeper and running at large on any road, street, or other public place, or trespassing on any premises other than the premises of the owner.”

La.R.S. 3:2771 prohibits a person from allowing his dog to run at large. La.R.S. 3:2773(B) grants police officers the authority to seize any dog found unaccompanied by its owner or keeper. La.R.S. 3:2773(D) gives any officer the authority to kill any dangerous or vicious dog and not be liable for damages if he acted as a reasonably prudent man under the circumstances. Chiasson, 376 So.2d 350.

The uncontroverted facts set forth in the record establish that the dog at issue was at large. It chased and pinned Vince Mi-holic in his back yard. Animal Control was notified. Officer Harry Hebert was went to the scene but was unable to capture the dog. Officer Corey J. Broussard was dispatched to the scene to provide backup. When he arrived, the dog was in its backyard, however, the yard was unfenced. The dog was still unleashed. The dog charged Officer Hebert who stopped him with his catch pole. The dog charged toward Officer Broussard. Officer Brous-sard shot the lr,dog as it leapt toward him with its mouth open.

The facts establish that the dog was at large and, considering all the surrounding circumstances, a “dangerous” or “vicious” dog as contemplated by La.R.S. 3:2773(D). The trial court did not err in finding that Officer Broussard is entitled to statutory immunity in the shooting death of the dog. This assignment of error is without merit.

In his second assignment of error, the appellant argues that the trial court erred in ruling that Officer Corey Broussard, Animal Control Officer Hebert, the City of New Iberia, and Chief Feller were not guilty of negligence in the killing of Agnes. The appellant contends the City owed him a duty to safely contain his animal when it got loose and Officer Hebert breached that duty.

We disagree. Officer Broussard is entitled to statutory immunity under La. R.S. 3:2773 and cannot be held liable for damages. Accordingly, neither his employer nor supervisor can be held liable for Officer Broussard’s actions. We further find neither the city nor Officer Hebert had a duty to safely contain his animal after it got loose. The City’s duty was to protect the public from a dangerous or vicious animal running loose which might harm an innocent citizen. The only duty we find that was breached in the matter before us was the appellant’s duty under La.R.S. 3:2771 to keep his dog from running at large. We find no error in the trial court’s ruling. This assignment of error lacks merit.

Frivolous Appeal

The appellees answered the appeal, asserting that it is frivolous because it does not present a substantial legal question, as the statutory immunity granted under La.R.S. 3:2773(D) clearly applies in this matter. The appellees further argue that the | (¡appellant, who is a pro se litigant, does not seriously believe the view of the law that he advocates. The appellees seek an award of damages, attorney’s fees, and costs for defending the appeal.

This court has the discretion to award damages for a frivolous appeal pursuant to La.Code Civ.P art. 2164 which provides:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; and may tax the costs of the lower or appellate court, or any part thereof, against any party to the suit, as in its judgment may be considered equitable.

Damages for a frivolous appeal are appropriate when it is clear the appeal was taken for purpose of delay or when it is evident that the appellant’s counsel does not seriously advocate the position taken. Appeals are always favored and the slightest justification for an appeal precludes damages for frivolous appeal. Murphy v. Boeing Petroleum Servs., Inc., 600 So.2d 823 (La.App. 3 Cir.1992).

We decline to award damages for a frivolous appeal. Although he has been unsuccessful in his appeal, we find that the appellant genuinely believes in the merits of his petition. The costs of this appeal, however, are assessed to the appellant.

DECREE

We find no error in the trial court’s judgment granting the appellees’ Motion for Summary Judgment. The appellees’ request for damages for frivolous appeal is denied. The costs of this appeal are assessed to the appellant.

AFFIRMED.


author: JjPICKETT, Judge. h COOKS, J.

text:
    Carolyn Dauzat MARCOTTE v. Thomas Ernest MARCOTTE.
    No. 2004-293.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Anthony Salario, Attorney at Law, Marksville, LA, for Plaintiff/Appellee Carolyn Dauzat Marcotte.
    Angelo J. Piazza, III, Attorney at Law, Marksville, LA, for Defendant/Appellant Thomas Ernest Marcotte.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, GLENN B. GREMILLION, ELIZABETH A. PICKETT and BILLY H. EZELL, Judges.
   JjPICKETT, Judge.

The sole issue on appeal is whether the trial court erred in finding that Carolyn Marcotte met her burden of proof in her petition for divorce based on adultery. For the following reasons, we reverse the judgment of the trial court granting Mrs. Marcotte a divorce based on adultery.

FACTS

Carolyn Dauzat Marcotte and Thomas Ernest Marcotte were married on August 27, 1982. The Marcottes reside in Marks-ville, Louisiana. The couple were good friends of Marksville residents Terrill and Laura St. Romain. On April 8, 2003, Ter-rill St. Romain informed Mrs. Marcotte that he suspected his wife, Laura St. Ro-main, and Mr. Marcotte were having an affair. When Mr. Marcotte returned home that day, Mrs. Marcotte confronted him about the alleged affair. After the confrontation, Mr. Marcotte left the family home and went to stay with his sister. On April 11, 2003, Mrs. Marcotte filed a Petition for Divorce wherein she alleged that her husband had committed adultery.

A trial on the merits was held on November 17, 2003. After hearing testimony from both parties, and Mr. and Mrs. St. Romain, the trial court issued oral reasons for judgment. The trial court found that Thomas Marcotte and Laura St. Romain were having an adulterous relationship and granted Carolyn Marcotte a judgment of divorce on the grounds of adultery.

It is from this judgment that the defendant appeals.

LAW AND DISCUSSION

It is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989).

1.¡Louisiana Civil Code Article 103(2) provides that a petitioner shall be granted a divorce upon proof that the other spouse has committed adultery, (emphasis added.) By definition, adultery is a “violation of the marriage bed; sexual intercourse between a married man and a woman not his wife, or between a married woman and a man not her husband.” State v. Jack, 596 So.2d 323, 326 (La.App. 3 Cir.), writ denied, 600 So.2d 611 (La. 1992) (citing Webster’s New Universal Unabridged Dictionary 27 (2nd ed.1979)). Jurisprudence mandates that the one alleging adultery has the burden of proof. Furthermore, “[t]he facts and circumstances must be such as to lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition, i.e., the proof must be so convincing as to exclude any other reasonable hypothesis but that of guilt of adultery.” Lewis v. Lewis, 446 So.2d 995, 997 (La.App. 3 Cir.1984), citing Helms v. Helms, 349 So.2d 441 (La.App. 3 Cir.1977). The Louisiana Supreme Court noted in Hermes v. Hermes, 287 So.2d 789 (La.1973), the mere fact that a man and woman are alone together does not necessarily create a presumption that adultery was committed.

At the trial of this matter, Mr. St. Ro-main testified concerning the circumstances surrounding his divorce from his wife:

Q. What were the reasons for the divorce?
A. Adultery.
Q. What circumstances gave rise to the separation?
A. Telephone calls, she’d tell me that she’s in places where she wasn’t, suspicion, and then I confronted her.
Q. And what do you mean by that; how did you confront her?
A. I asked her if she was having an affair behind my back and pshe responded with what if I am and then I asked if it was with Thomas Marcotte and she said so what if it is.
Q. What gave you an indication that it could be with Thomas Marcotte?
A. Just him coming very much to the house and even if I wasn’t there he’d show up.
Q. And why would he come by your house other than for work; would he ever come by other than for doing the carpentry work?
A. No, he’d come to visit. We had grew as friends and we fished together and hunt together.
Q. Was he ever at your house, [t]o your knowledge, when you weren’t there?
A. I called several times, yes, he was there.
Q. Did you ever discover any other evidence that maybe an affair was going on between Thomas [Marcotte] and your wife?
A. Yes, sir, the phone calls; the phone bills.
Q. What I’ve marked as “Carolyn Mar-cotte Number 2” could you explain to the Court what that is?
A. Yes, all those highlighted are Mr. Marcotte’s either cell phone or beeper number and the 0066s which is I don’t, I haven’t counted all of them, but probably twice that month I called her. There’s about twenty times that someone else called her.
Q. And how did you verify the number?
A. He had given me a card prior to building the porch, so I had this cell phone and work phone.

On cross-examination, Mr. St. Romain testified as follows:

Q. Just a couple of hours ago, as you pointed out, your divorce Rwas obtained and it was obtained, was it not, on a six month separate and apart basis?
A. Well, it was agreed on, but there was some discrepancies in that, yes, sir.
A. Back in August in order ... she called and said in order not to slander her name and bring my son in court, it I would agree on just doing a six month divorce and I agreed if she would show me some kind of paper saying that she had committed adultery and when she said yes she’d agree, I agreed, but yet I have yet to have my paper.
Q. So as we sit here she never has to this point, admitted to it, right?
A. No, sir.

BY THE COURT:

Q. When did it become obvious that they were together out in the open that they were seeing each other?
A. The night I went to confront Mr. Marcotte, he wasn’t home, his wife was, so I talked to her and then I left from her house. I went back to my house, but my wife had already left. The following day she came back. She had a hickey on her neck and I confronted her with who had done it and she says don’t worry who did it. She says any man can suck on my neck and it’s her business. And I asked her if it was Mr. Marcotte and she said so what if it is.

The plaintiff, Carolyn Marcotte, testified at the trial of this matter as follows:

Q. And how did you become suspicious or have reason to think that he was committing adultery?
A. He would get telephone calls and when he’d get telephone calls he’d immediately leave. It didn’t matter if lights were on, if there was anything he left going in the back, he’d just take off and run like he lost his senses. This would happen around four, 4:15, 4:30 in the afternoons, sometimes later. There was times he said he was going to work that they had paged him to go to work because (UNINTELLIGIBLE).
Q. Did you ever obtain any information to confirm that he was having an affair on you and who with?
In A. On telephone calls I’ve picked up that him a woman’s [voice] talking and ... on the phone and then they would stop and then immediately the next day after we were separated Laura St. Romain was on the phone and she started telling me I’m sorry Carolyn[,] I’m sorry. And I said for what Laura destroying my life. And she just wouldn’t [say] anything any more.
Q. Do you recall when those photographs were taken, approximately, was it after April when y’all separated?
A. It was after April. It was ... I don’t remember the exact date.
Q. Let’s talk about the photographs. And then what did you do?
A. So in order to prove that there was something going on I just left one night and I did not know where this camp ronde vou [sic], where the camp was in Spring Bayou. I had a general idea. And when I got to this bridge some lights came on just like when kids go parking, the lights came on and then they were turned off on a vehicle. And I just pulled right up to the gate and there they were on this photo, together.
Q. Do you have any ... did you ever obtain any other information either documentation or any physical signs that he was having an affair?
A. I never went ... actually witnessed them in the action....

On cross-examination, Mrs. Marcotte testified as follows:

Q. Mrs. Marcotte, you are. aware that Tom did some work for the St. Ro-main’s at their home?
A. Yes.
Q. And as you say when you picked up the phone Mrs. St. Romain was talking to him about moving and hauling | fibranches at the camp?
Q. Both of these people had their clothes on at that time immediately, did they not?
A. Of course, in the pictures. I don’t know what transpired before. This is on the journey out from the camp. He was unlocking the chain.

BY THE' COURT:

Q. Oh, okay. But I mean do you have anything to indicate that they were having sex?
A. No.

BY MR. PIAZZA:

Q. So, basically, it’s ... you have no hard core direct evidence that they’ve ever had sex; they’ve both denied it, is that right?
A. I don’t know what Laura denied or what she said was true.
Q. Tom’s denied it, hasn’t he?
A. Yes. And then, yes, he’s denied it.

BY THE COURT:

Q. Mrs. Marcotte, do you have any evidence to indicate to me before April 11th, 2003 that Thomas Marcotte and Laura St. Romain were having sexual relations?
A. No, sir.
Q. These pictures came about after you filed for divorce?
A. Yes, sir, it was after, but the phone calls, the paper, the phone calls are stemmed [sic] in March and the beginning of April before April the 8th, the phone calls were going on.

At the close of Plaintiffs case, defense counsel moved for an involuntary dismissal of the divorce action based on adultery.

|7BY THE COURT:

Well, there has to be enough ... there has to be enough evidence to convince the reasonable trier of fact that this ... that adultery was being committed. That there was some type of physical relationship, not just the phone calls certainly show that they were having-some telephone contact, but phone calls[,] I don’t think you can have sex using telephone calls. That’s not adultery. It is fuel for the fire to indicate adultery, but we don’t even have anybody putting them together alone before April 11th, 2003.

Nonetheless, the trial court decided to hear the rest of the case before making a ruling. Mr. Marcotte testified at the trial of this matter as follows:

Q. Prior to the filing of any proceedings, in your case, have you ever engaged in any sexual conduct of any nature with Laura St. Romain?
A. I have not.
Q. You want to explain these pictures out at the camp at twelve thirty at night for the Ijjudge?
A. I was, at that time, Carolyn and I were separated. Laura had offered me to stay at the camp to rent and we was out there ... I was out there doing some plumbing work, she had leaks, she had mice in there. I was closing up the holes underneath the camp and she would cook something to eat and we w[ere] on our way back.
Q. Did you have sex that evening?
A. We did not.
Q. It’s your testimony that you have not engaged in any sexual intercourse with her?
A. I have not.

On cross-examination, Mr. Marcotte testified as follows:

Q. Now, did you engage in any type of sex, not necessarily with intercourse with her before your marriage or before |syour separation?
A. None whatsoever.
Q. You heard the testimony from Mr. St. Romain about her having some hickeys on her neck before they separated?
A. Yes, sir.
Q. You didn’t do that?
A. I did not.
Q. Do you dispute that you were making those telephone calls to her?
A. I do not. I don’t dispute that.
Q. And who were you calling?
A. I’d call Terrel [sic] sometimes we’d go fishing. I’d have fishing trips lined up and the only time that I went to his house that he wasn’t there I was supposed to met [sic] him at his house and he was late for work, late coming back from work.
Q. Did you hear his testimony that those calls weren’t to him?
A. Some of them were, some of them weren’t.
Q. So why would you need to call his wife if you had already stopped working for them?
A. We were friends. We’d talk.
Q. No, I’m talking about did you and Laura ever go anywhere together alone prior to either your separation or her separation?
A. No, sir.
Q. Do you deny that you were at the camp with her that night?
A. I don’t deny that.

BY THE COURT:

InQ. Were you in love with Laura St. Romain?
A. We’re real good friends.
Q. But still since April y’all haven’t had sex?
A. Never have.

Laura St. Romain testified at the trial of this matter as follows:

Q. What was your relationship with Thomas Mareotte at that time?
A. Friends.
Q. Had y’all ever done anything together?
A. No.
Q. Did y’all have any type of sexual relationship prior to you leaving your house?
A. No, I did not.
Q. What is your relationship since the point that you left the house with Thomas Mareotte?
A. We’re still friends, very good friends.
Q. Do y’all have any type of sexual relationship now?
A. No, we do not.
Q. There was some testimony from Terrel [sic] that prior to you leaving the house you came home and had some hickeys or something on your neck?
A. That’s what he thought they were. And that’s who he thought gave them to me as well.
Q. Well, what were they?
|inA. Allergy reactions.
Q. And why were y’all out there on that day?
A. I asked him to come and check out a stove that didn’t work, that I couldn’t get to work because I thought I’d probably be moving there.
Q. At anytime did you offer that Thomas could live at the camp after you separated?
A. We had maybe talked about it if he needed a place to go.
Q. Did you ask him to do any work out there?
A. Yes, I did.
Q. And what was the work going to be?
A. It was going to be cleaning up around there and plumbing, whatever I needed done that I couldn’t handle.
Q. Well, were you having an affair?
A. No, I was not.
Q. Well, why didn’t you just say no?
A. Because he had already accused me on occasion, another occasion of having an affair with someone who lived in Iowa and I was tired of being accused and I didn’t think it needed justification.

BY THE COURT:

Q. Why are you afraid to admit that y’all are in a relationship now other than just friends?
A. I’m not afraid to admit anything. I’m not doing it.
Q. You’re not?
InA. No, sir.

At the close of testimony, the trial court stated the following:

The cause in the law for adultery and the standard in the law is more probable than not. What more probable than not happened between these two individuals, Mr. Mareotte and Mrs. St. Romain prior to April 11th, 2003. In the initial presentation of the case by Mrs. Mareotte, there certainly was only enough evidence to indicate they might be having a relationship. However, Mr. Mareotte, then got up on the stand and began to testify and then Mrs. St. Romain testifies and low and behold their stories don’t match. They tried to get them to match. They match about one thing. That they weren’t having sex. They didn’t match about anything else.
Mr. Marcotte said he was working on the camp the night of the pictures because he was moving into the camp. Mrs. St. Romain said she was moving into the camp, so does that mean that they were moving in together or does that mean that they were mistaken as to getting their stories straight. First of all, after they filed for a divorce they can commit all ... they can have all the sex they want. They can be sleeping with ... had Mr. Marcotte come her[here] today and said oh, I left Carolyn and I been having a relationship with Laura and we’re in love and all this kind of stuff. Okay. Then I’d have good reason to believe that before April 11th, 2008 they were only in the talking stage and it didn’t progress until both of the marriages disintegrated. But once they got up here and told diffrent[different] stories then that stuff gets thrown out the window and then I look at circumstantial evidence as Judge Piazza said has every reasonable hypothesis been excluded to indicate that more probable than not Thomas Marcotte and Laura St. Romain were involved in a physical relationship prior to April 11th, 2003 and the answer is a resounding, yes.
I mean my goodness if it was not they’d be today admitting what was going on and everything would be fine and dandy and this case would have been over twenty minutes ago. That’s the finding of the court.
The Judgment of Divorce on the grounds of adultery is granted and that takes care of that issue now.

Initially, the trial court found the plaintiff did not present evidence of adultery. That evidence consisted of testimony from Mrs. Marcotte and Mr. St. Ro-main concerning phone calls, an alleged hickey on Mrs. St. Romain’s neck, photographs of the two of them alone at a camp taken after Mrs. Marcotte filed for divorce, Mr. 112Marcotte being at Mr. St. Romain’s home when he was not present and Mrs. St. Romain not being where she told her husband that she would be. The trial court, however, denied defense counsel’s Motion for an Involuntary Dismissal and proceeded with the hearing. At that time, Mr. Marcotte and Mrs. St. Romain testified. Both denied the allegations that they were having a sexual relationship before and after being separated from their spouses. After the close of the trial, the trial court then ruled in favor of Mrs. Marcotte, granting her a divorce on the grounds of adultery. The trial court granted the judgment of divorce based on the fact that Mr. Marcotte’s and Mrs. St. Romain’s testimony about what they were doing at the camp the night Mrs. Marcotte took the photographs of them “did not match.”

Although adultery may be established by indirect or circumstantial evidence as well as by direct evidence, the rule as stated by the court in Hayes v. Hayes, 225 La. 374, 73 So.2d 179 (1954), is that “the circumstantial proof in these cases must be so convincing as to exclude any other reasonable hypothesis but that of guilt.” Fister v. Fister, 131 So.2d 103 (La.App. 3 Cir.1961). The facts and circumstances must lead fairly and necessarily to the conclusion that adultery has been committed as alleged in the petition. In other words, the circumstantial proof in these cases must be so convincing that it establishes the guilt of the party accused to the exclusion of any other reasonable hypothesis.

Id. at 180.

Apparently the circumstantial proof presented in plaintiffs initial case did not convince the trial court that Mr. Marcotte was guilty of adultery. However, Mr. Marcotte’s and Mrs. St. Romain’s testimony concerning why they were at the camp caused the trial court to change its mind. Upon reviewing their trial testimony, we find that Mr. Marcotte testified he was at the camp doing some plumbing work and that they did not engage in sex that night. In addition, Mr. Marcotte testified that Mrs. St. Romain offered to let him stay at the camp to rent. We note that Mrs. St. Romain testified that she and Mr. Mar-cotte were not having an affair, that they did not 1 ishave sex at the camp and that Mr. Marcotte was there to do some cleaning up and plumbing. In addition, Mrs. St. Romain also testified that she and Mr. Marcotte had talked about him staying at the camp if he needed a place to go.

We must presume that the trial court found Mr. Marcotte guilty of adultery because it did not find his and Mrs. St. Romain’s testimony to be credible.

Adultery is a serious allegation and often difficult to prove due to lack of direct evidence. Therefore, the complaining spouse may prove an adulterous relationship by circumstantial evidence. However, in those cases where the spouse seeks to prove adultery solely using circumstantial evidence, there is a heightened burden of proof. The evidence must be so convincing as to exclude any other reasonable hypothesis but that of guilt of adultery. Therefore, even if Mr. Marcotte’s and Mrs. St. Romain’s camp testimonies did not match, and we find they do not truly conflict, conflicting testimony falls short of establishing adultery to the exclusion of any other reasonable hypothesis. Furthermore, the burden of proof is not satisfied merely by evidence that a man and woman were alone together or that the accused had the opportunity to commit adultery. Lachney v. Lachney, 579 So.2d 1097 (La.App. 2 Cir.1991). The accused spouse’s innocence of immoral acts is presumed. Fister, 131 So.2d 103. In the instant case, there was no evidence presented that the accused had a sexual relationship with Mrs. St. Romain.

DECREE

The trial court clearly stated that there was only enough evidence to indicate they might be having a relationship. That evidence, coupled with conflicting testimony, is not sufficient to prove a prima facie case of adultery. We, therefore, find that there is no evidence in the record that supports a judgment of divorce on the grounds of adultery. The judgment of the trial court granting Mrs. Marcotte a judgment on the 114grounds of adultery is clearly wrong. Accordingly, the judgment of the trial court is reversed and the matter is remanded to the trial court. The costs of this appeal are to be borne by the plaintiff-appellee, Mrs. Marcotte.

REVERSED AND REMANDED.

COOKS, J., dissents and assigns written reasons.

h COOKS, J.

dissenting.

I respectfully dissent from the majority opinion and agree with the finding of the trial court, who stated:

Mr. Marcotte, then got up on the stand and began to testify and then Mrs. St. Romain testifies and low and behold their stories don’t match. They tried to get them to match. They match about one thing. That they weren’t having sex. They didn’t match about anything else.
Mr. Marcotte said he was working on the camp the night of the pictures because he was moving into the camp. Mrs. St. Romain said she was moving into the camp, so does that mean that they were moving in together or does that mean that they were mistaken as to getting their stories straight.... But once they got up here and told different stories ... then I look at circumstantial evidence as Judge Piazza said has every reasonable hypothesis been excluded to indicate that more probable than not Thomas Marcotte and Laura St. Romain were involved in a physical relationship prior to April 11th, 2003 and the answer in a resounding, yes. I mean my goodness if it was not they’d be today admitting what was going on and everything would be fine and dandy and this case would have been over twenty minutes ago. That’s the finding of the court.

When proving adultery, the court, in Breaux v. Breaux, 323 So.2d 486 (La.App. 1 Cir.1975), stated:

Circumstantial proof of adultery requires production of indirect or circumstantial evidence, which fairly and necessarily justifies and supports the conclusions that adultery was committed. The degree of proof of adultery by circumstantial evidence is similar to proof of guilt in a criminal proceeding and in that the evidence must establish guilt of the party accused to the exclusion of any other reasonable hypothesis.

Id. at 488.

The telephone records produced at trial document numerous telephone calls 12between Mr. Marcotte and Mrs. St. Ro-main during the months prior to the separation and filing for divorce. Additionally, Mr. St. Romain testified Mrs. St. Romain came home one day with a “hickey” on her neck. He testified as follows:

She had a hickey on her neck and I confronted her with who had done it and she says don’t worry who did it. She says any man can suck on my neck and it’s her business. And I asked her if it was Mr. Marcotte and she said so what if it is.

Mrs. Marcotte testified she photographed her husband and Mrs. St. Romain in her husband’s truck parked at Mrs. St. Romain’s camp about midnight one night. Although this incident occurred after the April divorce filing, Mr. Marcotte and Mrs. St. Romain told conflicting stories about the circumstances surrounding their presence at the camp at midnight. Additionally, Mrs. Marcotte testified while her husband was still living at home, a woman would call their home and her husband would “just take off and run like he lost his senses. This would happen around four, 4:15, 4:30 in the afternoon, sometimes later.”

Mr. Marcotte testified at trial and denied causing the hickey on Mrs. St. Ro-main’s neck. He denied having a sexual relationship with Mrs. St. Romain even after his divorce and insisted he and Laura are “just friends.” When questioned about the night at the camp, he testified:

I was, at that time, Carolyn and I were separated. Laura had offered me to stay at the camp to rent and we was out there ... I was out there doing some plumbing work, she had leaks, she had mice in there. I was closing up the holes underneath the camp and she would cook something to eat and we was on our way back.

Mrs. St. Romain testified she and Mr. Marcotte are “very good friends” and they speak daily on the telephone. She denied having a sexual relationship with him before or after her divorce. When questioned about the night at the camp, her story differed from Mr. Marcotte’s. She testified:

I asked him [Mr. Marcotte] to come and check out a stove that | ^didn’t work, that I couldn’t get to work because I thought I’d probably be moving there.... I don’t think it was that time. I think it was about eleven o’clock at night. That we went and we built a campfire, we cooked out there.

I would find the circumstantial evidence (i.e., the numerous telephone calls, the “hickey” on Mrs. St. Romain’s neck, the presence at the camp after midnight, the conflicting testimony between the parties, the unbelievable denial of a sexual relationship even after the divorce) “fairly and necessarily justifies and supports the conclusions that adultery was committed.” Breaux v. Breaux, 323 So.2d at 488. Therefore, I respectfully dissent from the majority opinion.


author: | THIBODEAUX, Chief Judge.

text:
    Shirley GAUTHIER v. Newty Paul GAUTHIER.
    No. 2004-198.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      D. Beau Sylvester Tannehill & Sylvester, L.L.P., Pineville, for Plaintiff/Appel-lee — Shirley Gauthier.
    Miché Moreau, Marksville, LA, for Defendant/Áppellant — Newty Paul Gauthier.
    Newty Paul Gauthier, Hessmer, LA, In Proper Person.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   | THIBODEAUX, Chief Judge.

In this community partition case, appellant, Newty Paul Gauthier, appeals a judgment of the trial court which refused to grant an extension for him to file his descriptive list of the community assets and liabilities. As a result, his list was time barred and the trial court considered only his ex-wife, Shirley Gauthier’s, list. According to Mr. Gauthier, considering only Ms. Gauthier’s list resulted in an evidentia-ry lapse warranting a new trial. He also contends that the trial court should not have partitioned the property at the same time as the hearing in which it declared Ms. Gauthier’s list the authoritative record of the community’s assets and liabilities.

For the following reasons, we affirm.

I.

ISSUES

Mr. Gauthier’s appeal contains four issues for review. First, he claims that the trial court should have granted an additional extension in which he could file his detailed descriptive list of the community assets and liabilities. Second, he appeals the trial court’s denial of his motion for new trial. Third, he maintains that the trial court erred in partitioning the community property at the Rule to Show Cause, and instead should have reserved that issue for an ordinary, rather than a summary, proceeding. Fourth, the trial court erroneously failed to consider the sources of the community property when it allocated the assets and liabilities.

J¿I.

FACTS

Ms. Gauthier obtained a divorce in November 2000. On September 5, 2001, she filed a Petition for Partition of Community Property along with her detailed descriptive list of the community assets and liabilities, as required by La.R.S. 9:2801. Mr. Gauthier was given ninety days to file his own detailed descriptive list. This ninety day period represents an extension of forty-five days beyond the statutory period for filing a list. Mr. Gauthier, however, failed to file his list before the December 13 deadline. On May 30, 2002, Ms. Gau-thier filed a Rule to Show Cause why her list should not be considered a judicial determination of the community assets and liabilities. The rule was set for hearing on August 12, 2002. On July 30, 2002, more than seven months after the court’s extended deadline, Mr. Gauthier filed his detailed descriptive list, and amended it on August 9, 2002.

The trial court heard oral arguments from counsel for both parties at the August 12 hearing. Counsel for Mr. Gauthier admitted that he had failed to file timely his list because of an oversight, or because he had forgotten. The record indicates that, at the hearing, the court was asked to partition the community property. The court requested post-hearing memoranda from counsel and took the matter under advisement. Counsel for Ms. Gauthier filed the requested memorandum, but counsel for Mr. Gauthier did not. In its judgment, the court adopted Ms. Gauthier’s list of assets and liabilities and proceeded to allocate the property on the basis of that list. The court excluded Mr. Gauthier’s descriptive list, noting that he had exceeded an already extended deadline. Mr. Gauthier filed a motion for new trial and, additionally, a second detailed descriptive list. The court, however, determined that Mr. Gauthier failed to demonstrate that the judgment was clearly contrary to law and 13evidence, and he was, therefore, not entitled to a new trial. Mr. Gauthier now appeals.

III.

LAW AND DISCUSSION

Time Period For Filing Detailed Descriptive List

Mr. Gauthier asserts that the trial court erred when it declined to grant an extension allowing him to file his detailed descriptive list. Louisiana Revised Statutes 9:2801(A)(l)(a) states that “[wjithin forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property.... For good cause shown, the court may extend the time period for filing a detailed descriptive list.” Mr. Gauthier blames his former attorney for the delay, and urges the court not to penalize him for the failure of his attorney to meet court deadlines. Additionally, he maintains that permitting the extension would not have prejudiced Ms. Gauthier, and would have allowed him to present to the court his own account of the values and sources of the community assets.

Louisiana Revised Statutes 9:2801(A)(l)(a) sets a forty-five day period for the parties to file them respective lists. The court may grant an extension, should it find good cause to do so. Although there is no jurisprudential guidance on the meaning of good cause in relation to La. R.S. 9:2801, several courts have discussed the role of good cause in deciding whether or not to extend time in other contexts. Courts have agreed that “ ‘good cause’ must constitute, if not a compelling reason, certainly a reason of such significance and gravity that it would be inequitable to deny an extension.” Roan v. Roan, 38,383, pp. 21-22 (La.App. 2 Cir. 4/14/04), 870 So.2d 626, 639, quoting Piccione v. Piccione, 01-1086, p. 9 (La.App. 3 Cir. 5/22/02), 824 So.2d 427, 432.

[4Courts have consistently declined to grant exceptions for good cause in situations where attorneys have missed a statutory deadline through inadvertence or error. In Lewis v. Spence, 00-648, p. 1 (La.App. 3 Cir. 11/2/00), 772 So.2d 354, 355, a party’s counsel admitted that through “inadvertence and mistake or excusable neglect, the [deadline] was not calendared.” The court determined that no good cause existed to excuse plaintiffs failure to request timely service of process on a defendant. In a similar circumstance, the court concluded that “[p]laintiff counsel’s request of service one day after the ninety-day period expired strongly suggests she either miscalculated or miscalen-dared the deadline. Such inadvertence does not constitute good cause.” Young v. Roth, 01-2151, p. 1 (La.11/9/01), 800 So.2d 374, 374-75. In Norbert v. Loucks, 01-1229 (La.6/29/01), 791 So.2d 1283, defendants filed a motion to dismiss on the grounds that plaintiff failed to serve them within the statutory period. The plaintiff responded by invoking the good cause exception of the statute, explaining that his prior attorney did not know the defendant’s whereabouts. The court held that “inadvertence in requesting service on the part of the plaintiffs counsel is not a sufficient basis for good cause.” Id. at 1285.

Additionally, courts have discussed “good cause” in relation to showing the existence of an impediment beyond a party’s control that hampered their ability to meet their deadlines. Louisiana caselaw provides that “ ‘good cause’ relates to whether there was some impediment that prevented the plaintiff from requesting timely service on the defendant.” Johnson v. Brown, 03-679, p. 4 (La.App. 4 Cir. 6/25/03), 851 So.2d 319, 323. In a case where plaintiffs counsel explained that she was out of town for medical reasons for two weeks immediately prior to the deadline, the court remained unsympathetic, noting that “she has not shown any reason why she was prevented from requesting service within the first two months of the ninety day | ¡^period.” Young, 800 So.2d at 375. Furthermore, a court declined to find good cause excusing the delay where plaintiff argued his former attorney was unable to locate the defendant for service, observing that “[pjlaintiff does not contend that [defendant’s] address could not be ascertained or that [defendant] willfully made efforts to conceal her location.” Norbert, 791 So.2d at 1285.

Finally, lack of prejudice to the opposing party is not good cause to justify tardy filings. For example, in Naquin v. Titan Indemnity Co., 00-1585 (La.2/21/01), 779 So.2d 704, the plaintiff argued that, although their service on the defendant was delayed, the opposing party was not prejudiced because they had knowledge of the suit. The supreme court declined to find this supported good cause. Similarly, in Langlois v. East Baton Rouge Parish School Board, 01-1227, p. 7 (La.App. 1 Cir. 9/24/01), 809 So.2d 274, 278, the court found that the plaintiff had not demonstrated good cause for his failure to timely request service because “defendants’ admission that [opposing counsel] had knowledge of the claim ... [does] not excuse plaintiff from the requirement to timely request service.”

Good cause is a factual determination which should not be disturbed absent manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989). The trial court found that “ ‘good cause’ did not exist to warrant another time extension that would essentially have to be applied retroactively to encompass the time period in which [Mr. Gauthier] filed his descriptive list.” The court had already provided an extension of twice the statutory time limit, which Mr. Gauthier had failed to meet. He did not file any list at all until July 30, 2002, seven months beyond the extended deadline, nor did he request permission to file the overdue list. His attorney’s inadvertent failure to respond to the deadline does not constitute good cause. Young, 800 So.2d 374. Mr. Gauthier has otherwise provided no evidence of conditions ^beyond his or his attorney’s control that prevented him from producing the list on time. Finally, a mere lack of prejudice to Ms. Gauthier by permitting a tardy filing is not sufficient to support finding just cause for the delay in filing.

We disagree with Mr. Gauthier that he was entitled to a further extension of time to file his list of the community’s assets and liabilities. The statute is clear that the decision to extend time is within the discretion of the trial court. The trial court did not find good cause to grant the extension and, therefore, did not abuse its discretion in not doing so.

New Trial

After the court partitioned the community at the August 12 hearing, Mr. Gauthier filed a Motion for New Trial, invoking La.Code Civ.P. arts. 1972 and 1973. Although he did not file a memorandum in support of his motion, the motion asserted that a new trial was necessary to prevent a miscarriage of justice. The trial court denied his motion and Mr. Gauthier appeals, asserting that the allocation of the community assets and liabilities was contrary to the evidence, and did not take into consideration certain reimbursement claims Mr. Gauthier intended to raise. Mr. Gauthier also argues that his former attorney’s failure to submit documents, including the descriptive list, the post-hearing memorandum ordered by the trial court, and the memorandum in support of his motion for new trial, prevented the trial court from reviewing a complete array of evidence, resulting in a miscarriage of justice.

Articles 1972 and 1973 of the Louisiana Code of Civil Procedure set forth the grounds on which a trial court may grant a motion for new trial. Article 1972(1) states that a new trial shall be granted “[w]hen the verdict or judgment appears clearly contrary to the law and the evidence.” Article 1973 states that “[a] new trial may be granted in any case if there is good ground therefore, except as 17otherwise provided by law.” Article 1972 is considered peremptory, so that a trial court would be obligated to order a new trial if the conditions of Article 1972 were met, while Article 1973 is discretionary, and allows a trial court to grant a new trial if the circumstances require. Poland v. Poland, 34,085 (La.App. 2 Cir. 12/6/00), 779 So.2d 852; David v. Meek, 97-523 (La.App. 1 Cir. 4/8/98), 710 So.2d 1160. In either case, unless the trial court abused its generous discretion, its decision to grant or deny a new trial will not be reversed. Henderson v. Sellers, 03-747 (La.App. 3 Cir. 12/17/03), 861 So.2d 923; Bankston v. Bankston, 97-2509 (La.App. 1 Cir. 11/6/98), 722 So.2d 46.

Under La.Code Civ.P. art. 1972, the trial court is bound to grant a new trial if the judgment is contrary to law or the weight of the evidence. Although “the granting of a new trial is mandatory” in those circumstances, “the jurisprudence interpreting the provision recognizes the trial judge’s discretion in determining whether” the judgment contradicts the law or evidence. Zatarain v. WDSU-Television, Inc., 95-2600, p. 3 (La.App. 4 Cir. 4/24/96), 673 So.2d 1181, 1183; Martin v. Heritage Manor South Nursing Home, 00-1023 (La.4/3/01), 784 So.2d 627. In order to assess the congruence of the judgment to the facts, we must examine the record to determine whether the judgment is supportable by a fair or reasonable interpretation of the evidence. Davis v. Wal-Mart Stores, Inc., 00-445 (La.11/28/00), 774 So.2d 84. Courts agree that “a motion for new trial based on a contention that the verdict is contrary to the law and evidence should be denied if the verdict is supportable by any fair interpretation of evidence.” Zatarain, 673 So.2d at 1183; Martin, 784 So.2d 627; Lambert v. State through Dep’t of Tramp. & Dev., 96-160 (La.App. 5 Cir. 10/16/96), 683 So.2d 839.

Numerous cases have considered situations in which the jury interpreted |«the evidence in a certain way, and a new trial was requested on the basis that their interpretation was incorrect. The appellate courts in those cases reviewed the record to ascertain whether the verdict was supported by a reasonable interpretation of the evidence in the record. In Davis, 774 So.2d 84, the supreme court reversed a decision granting a new trial, concluding that the jury had had to weigh inconsistencies in the plaintiffs testimony and make serious decisions about the credibility of witnesses. The opinion concluded that one fair understanding of the evidence was that the plaintiffs testimony was untrustworthy, and that the jury was thus justified in reaching its verdict. Id. Similarly, the court in Zatarain, 673 So.2d 1181, found that the jury’s decision rested on the relative credibility of two sets of witnesses testifying to two different versions of the facts. Because the jury’s verdict was supported by a fair interpretation of the evidence, the court held that the trial judge did not abuse his discretion in denying the motion for new trial. Id. Finally, in Drury v. American Honda Motor Co., 93-1414 (La.App. 1 Cir. 12/22/94), 659 So.2d 738, writ denied, 95-1012 (La.6/23/95), 660 So.2d 437, the appellate court concluded that a new trial should not have been granted. The verdict was attributable to inconsistencies in plaintiffs testimony, his conflicting versions of the events leading up to the trial, and his deliberate misstatement of medical information. Id.

A second branch of cases assesses the sufficiency of the evidence in supporting the verdict. For instance, in Greene v. General Motors Corp., 00-1356 (La.App. 3 Cir. 3/14/01), 801 So.2d 1090, the court found that a car had been wrecked prior to sale and was therefore subject to rescission. The motion for new trial declared that this finding was contrary to the law and evidence. On appeal, the court observed that the service manager in charge of the sale gave “unrebutted testimony that the car had been wrecked before the Greenes had purchased it. This | flwas the primary basis for the trial court’s ... conclusion that there were redhibitory defects sufficient to warrant a rescission of the sale.” Id. at 1092. In a case concerning a default judgment against defendant First Guarantee Bank (FGB), FGB requested a new trial. The appellate court determined that “the default judgment was supported by sufficient evidence to establish a prima facie case.” Crump v. Bank One Corp., 35,990, p. 11 (La.App. 2 Cir. 5/8/02), 817 So.2d 1187, 1193. The documentary evidence showing that FGB had assumed certain obligations outweighed FGB’s assertion that it simply was not liable. Id. In these cases, the evidence buttressed the judgment.

Other opinions have declined to grant a new trial where the court determined the record was complete, the judgment accurately reflected the record, and it would not grant a new trial to introduce evidence that had been available before the trial. The appellant in Henderson, 861 So.2d 923, argued that the trial court erred in refusing to grant a new trial because the court did not consider an important affidavit in reaching its decision. The appellate court affirmed, noting that “[t]he trial court did not abuse its discretion by refusing to grant a new trial for the purpose of introducing evidence that was available at the time of trial.” Id. at 929. In Succession of Willis, 96-479, (La.App. 3 Cir. 11/6/96), 682 So.2d 920, the Willises argued the trial court erred in not granting their motion for new trial to correct an error in a measurement of acreage. The Willises asserted that a subsequent survey showed that the acreage was actually larger than previously thought, rendering the original measurement accepted by the court contrary to the law and evidence. On appeal, however, the court found that the Willises did not alert the trial judge to the discrepancy in the measurements, and that they presented no evidence at the hearing to traverse the original measurement. Their failure to maintain the discrepancy as an issue at the | shearing resulted in the trial court adopting the original measurement. The Willises had an opportunity to traverse the measurement at the hearing and did not do so; thus, they “cannot now be allowed to assert that the trial court wrongfully denied their motion for new trial.” Id. at 926. In contrast to the decision in Willis, the appellate court in Bankston, 722 So.2d 46, found that a settlement agreement reached after trial represented new evidence relevant to the issues of the case. Because the settlement did not come to fruition until after trial, “Ms. Bankston could not have discovered this evidence earlier nor could it have been properly considered by the trial court.” Id. at 48. Thus, the trial court should have granted a new trial.

Mr. Gauthier asserts that the allocation of the community assets is contrary to the evidence and that the community owes him reimbursement. He argues that his detailed descriptive list contained a list of assets purchased with his separate property, and that the trial court’s refusal to consider his version of the list of community assets resulted in a judgment contrary to the law and evidence under Article 1972. In its decision rejecting the motion for new trial, the trial court admitted that it could find nothing clearly contrary to law and evidence in the initial judgment. The court based its decision to partition the community property on evidence submitted in Ms. Gauthier’s list, and the partition adequately reflects that evidence. The court allocated certain debts to Ms. Gau-thier and required that she pay Mr. Gau-thier an equalizing payment. Not only are these findings a fair interpretation of the evidence presented to the court, but they also are sufficiently supported by the weight of the evidence. The evidence presented to the court at trial provided adequate facts on which the court could make its decision. Crump, 817 So.2d 1187.

Mr. Gauthier’s assertion that the court’s refusal to consider his list accounts for the evidentiary insufficiency still does not warrant a new trial. He had | n ample opportunity to introduce his version of the list, and had no good reason for his failure to provide the list within the time provided. The trial court was within its discretion in refusing to consider his list as part of the evidence before it. Furthermore, once the court had adopted Ms. Gauthier’s list as the judicial determination of the community property, Mr. Gauthier could not traverse that list. La.R.S. 9:2801. Thus, the trial court did not abuse its discretion in concluding that the evidence was sufficient to support the judgment, since Ms. Gauthier’s list represented the entire body of evidence the initial trial court could consider. Henderson, 861 So .2d 923; Willis, 682 So.2d 920.

The discovery of a miscarriage of justice serves as an alternate basis for granting a new trial. Courts adopt “the well-established principle that a new trial should be granted in cases where the enforcement of the judgment would be inequitable and unconscionable.” Hairston v. Monroe Gas Corp., 308 So.2d 809, 811 (La.App. 2 Cir.1975); Crump, 817 So.2d 1187. Thus, if a trial court is convinced that the judgment, even if free from legal error, does not do substantial justice, it may properly grant a new trial. Gilley v. Wendy’s, Inc., 31,353 (La.App. 2 Cir. 12/9/98), 723 So.2d 517; Dawson v. Mazda Motors of America, Inc., 475 So.2d 372 (La.App. 1 Cir.1985). Courts have specifically considered circumstances where a party asserts that the conduct of an attorney has created a miscarriage of justice warranting a new trial. Lapse of legal rights due to a party’s delay, in particular, has not been held to warrant a new trial. In Crump, FGB’s failure to file an answer resulted in a default judgment against FGB. The court declined to grant a new trial, noting that FGB lacked a good excuse or reason for its failure to file an answer and held that the “mere failure to file an answer, without more, is not adequate grounds to grant a new trial.” Cramp, 817 So.2d at 1193. Similarly, in circumstances where a defendant failed to | t afíle an answer to a default judgment and asserted only human error as his defense, the court declined to find an abuse of discretion in the trial court’s denial of the motion for new trial, commenting that “[m]ere human error was not enough to convince the trial court that a miscarriage of justice would result if a new trial was not granted.” Hickman v. Wm. Wrigley, Jr. Co., 33,896, p. 4 (La.App. 2 Cir. 10/4/00), 768 So.2d 812, 816. In Maxie v. Gines, 95-986, p. 5 (La.App. 3 Cir. 1/31/96), 670 So.2d 344, 347, writ denied, 96-560 (La.5/10/96), 672 So.2d 921, the trial court denied the motion for new trial, finding that “[ajfter her initial response to citation, the defendant took no affirmative actions in defense of this case, even in spite of receiving Notice.” Three years passed between the date she filed her exceptions and the date she answered. The appellate court refused to find that her pure delay warranted a new trial. Id.

Similarly, inadvertent technical errors do not favor granting a motion for new trial. In Warner v. Carimi Law Firm, 98-613 (La.App. 5 Cir. 12/16/98), 725 So.2d 592, writ denied, 99-466 (La.4/1/99), 742 So.2d 560, the appellant pointed out that, through inadvertence, two fees appearing on worksheet representing legal fees were incorrect. Warner argued that this was a simple accounting error and requested a new trial. The trial court denied the motion for new trial, stating that “the time for submitting evidence regarding these motions has long passed.” The appellate court agreed, finding “no abuse of discretion in the refusal of the trial court to consider evidence which could have been presented at the original trial of the matter.” Id. at 597. Mr. Gauthier makes much of his attorney’s failure to file the necessary documents on time. Louisiana jurisprudence, however, does not consider delay or error in the attorney’s performance of his duty, even if inadvertent, as grounds for |13granting a new trial. Mr. Gauthier had sufficient opportunity to file the paperwork. The court had already granted an extension of the statutory deadline. Mr. Gauthier missed it by a significant amount of time, and did not provide any good reason for doing so. The court did not abuse its discretion in declining to consider the untimely list. He cannot now argue that this negligence on the part of his attorney resulted in a miscarriage of justice warranting a new trial. Maxie, 670 So.2d 344.

Courts have also considered whether a new trial would likely have a different result. In Stout v. Nehi Bottling Co., 146 So. 720, 721 (La.App. 1 Cir.1933) (citation omitted), the court recognized that “motions for new trials are addressed to the sound legal discretion of the court, and should never be granted, ‘unless the application discloses matter sufficient to render it probable that justice has not been done and that a re-examination would vary the result.’ ” In Morales v. Toye Bros. Yellow Cab Co., 246 So.2d 52, 57 (La.App. 4 Cir. 1971), the trial court denied a motion for new trial, finding that “a fall and complete record has been made up. A new trial would only result in the very same testimony and evidence being submitted to another jury.” The appellate court found that this was not an abuse of discretion. Here, because Mr. Gauthier’s list was untimely and therefore inadmissible, a new trial would still not avail him the opportunity to submit his version of the list for review. Furthermore, once the court adopted Ms. Gauthier’s list as the judicial determination of the assets and liabilities of the community, Mr. Gauthier lost his right to traverse her list. A new trial would review the same body of evidence and, therefore, most likely yield the same result in partition.

The second trial court did not err when it declined to grant Mr. Gauthier’s motion for a new trial. The evidence provided in Ms. Gauthier’s descriptive list was sufficient to support the judgment, and the interpretation of that 114evidence, even absent Mr. Gauthier’s list, reasonably supports that judgment.

Proceedings for Allocation of Community Property

Mr. Gauthier contends that the trial court erred when it partitioned the community property in its judgment on the Rule to Show Cause. He maintains that the Rule to Show Cause was a summary proceeding, while partition normally occurs in an ordinary proceeding. Mr. Gauthier claims that, had the partition occurred in an ordinary proceeding, he would have been able to present documents supporting his interpretation of the contents of Ms. Gauthier’s list, such as information suggesting that portions of the list were actually his own separate property. Because he did not receive notice that the court intended to partition the property at the Rule, he expected the hearing to be limited to the Rule. He did not expect the court to allocate the community assets and he was unprepared to present this information.

The Rule to Show Cause on Ms. Gauthier’s list of the community’s assets and liabilities was a summary proceeding; usually, a judicial partition of property occurs at an ordinary proceeding. La. Code Civ.P. art. 4603. The record indicates, however, that the trial court was apparently requested to partition the community at the August 12 hearing, based on Ms. Gau-thier’s previous filings. Ms. Gauthier initially filed a Petition to Partition the community property on September 5, 2001. Louisiana Civil Code Article 1328 obligates a judge hearing a petition for partition to “pronounce thereon in a summary manner, by which is always meant with the least possible delay.” Furthermore, La.Code Civ.P. art. 194(1) permits a judge independently to sign a judgment decreeing or homologating a partition, when unopposed. In this case, the trial court pronounced Ms. Gauthier’s list the judicial determination of the community assets and liabilities. Once it did so, La.R.S. 9:2801(A)(l)(a) no longer permitted Mr. Gauthier to traverse the contents of the list. |1fiThus, because there was a request to partition at the hearing and no traversal could be allowed of the list, the trial court was entitled to make an immediate decision on the partition of the community property.

In Little v. Little, 371 So.2d 1194 (La. App. 1 Cir.1979), the court held that a summary proceeding to partition community property was inappropriate where the first time property ownership and division were raised as issues was in the Rule to Show Cause. The divorce judgment did not mention property ownership or partition, neither party had filed a descriptive list, and any agreement as to the distribution of the property was alleged to have been settled privately between the parties. Thus, when Ms. Little filed a motion to show cause to order Mr. Little to return a set of china, this was the first time property ownership and division were put at issue. The appellate court reversed the trial court’s decision overruling Mr. Little’s exception of unauthorized use of summary proceeding, holding that “[a] partition of community property ... must be requested in the [divorce] petition and handled in an ordinary proceeding.” Id. at 1196. In Stringer v. Stringer, 96-1990 (La.App. 1 Cir. 6/20/97), 698 So.2d 965, writ denied, 97-2586 (La.12/19/97), 706 So.2d 463, an ex-wife failed to file a rule to show cause why the trial court should not adopt her list as a judicial determination of the community assets and liabilities. The trial court simply allocated the community property on the basis of her list, as the ex-husband had not filed any list at all. Ms. Stringer asserted that her ex-husband lost' the right to dispute the allocation of property since he had not filed his list, as required. The appellate court disagreed. Although La.Code Civ.P. art. 194(1) allows a trial court to sign a judgment decreeing a partition when unopposed, Mr. Stringer not only opposed the allocation, but was unable to justify his position because of the lack of a Rule to Show cause. The court explained that the Rule “provides the opposing party with an ^opportunity to advocate its position in open court.” Stringer, 698 So.2d at 967. Because Ms. Stringer did not file a Rule, Mr. Stringer was unable to oppose the partition, and the Article 194(1) caveat that a summary partition is permitted only when unopposed was not met. In the present case, Ms. Gauthier had filed appropriate pleadings to institute partition, so that when the request for partition was made at the August 12 hearing, it was not the first time the issue was raised.

The Louisiana Fifth Circuit recently found no error in a trial court’s decision to partition the community property immediately after declaring as true and correct an ex-wife’s list of community assets. Graefenstein v. Graefenstein, 03-1077 (La.App. 5 Cir. 1/27/04), 866 So.2d 958. Ms. Graefenstein, the ex-wife, had filed her detailed descriptive list, followed by a Rule to Show Cause why her list should not be accepted as true. Mr. Graefenstein failed to file his list and appealed, arguing that the partition was invalid because it did not comply with La.R.S. 9:2801. The appellate court reasoned that because Mr. Graefenstein did not file his descriptive list, while Ms. Graefenstein filed the proper motion under La.R.S. 9:2801 to have her list judicially recognized as the accurate record of the community property, the partition according to her list was unopposed. Because a judge may sign in chambers a judgment decreeing or homologating a partition when unopposed, once the trial judge decided her Rule to Show Cause and accepted the list as determinative, he did not err in immediately proceeding to partition the property. Id.

Mr. Gauthier cites Mathews v. Mathews, 457 So.2d 746 (La.App. 2 Cir.1984), for the proposition that La.R.S. 9:2801 does not prohibit further proceedings to resolve enhancement of community property by separate funds. That case, however, is consistent with Graefenstein. Ms. Mathews had filed a petition to partition the community in September, along with her detailed descriptive list. Her 117ex-husband, however, did not file his descriptive list until December 29. The trial court sustained Ms. Mathews’ objection to the introduction of her ex-husband’s list. He then appealed the judgment, arguing the trial court erred in forbidding him to traverse her list. The appellate court did not find any error in the trial court’s decision, noting that the statute permits the court to try all issues at one hearing. Mathews, 457 So.2d 746. As far as Mr. Gauthier’s opinion that La. R.S. 9:2801 does not prohibit further proceedings to resolve whether one party’s separate property enhanced the community, Godwin v. Godwin, 533 So.2d 1009 (La.App. 1 Cir.1988), writ denied, 537 So.2d 1165 (La.1989), held that even where a defendant had timely submitted his detailed descriptive list, the trial court was within its discretion in excluding his testimony regarding a sum of reimbursement owed him. There, the defendant argued the trial court erred in preventing him from providing evidence of payments he made from his separate property toward community debts. The defendant’s list, however, did not contain any information about the payments, and therefore the trial court was within its discretion in refusing to consider his claims for reimbursement. Id.

The trial court’s decision to partition the community at the Rule to Show Cause, a summary proceeding, did not constitute reversible error. We agree with Mr. Gauthier that normally, an ordinary proceeding is the appropriate method for partitioning property. In this instance, however, the trial judge was entitled to move directly from his decision to accept Ms. Gauthier’s list as definitive to partitioning the property. Because Mr. Gauthier was no longer allowed to traverse the judicially recognized list, Louisiana jurisprudence permits a judge to sign independently a judgment partitioning property, when unopposed.

| lfiAsset Valuation

Mr. Gauthier asserts that even when a court only considers the descriptive lists of one party, the court is not required to accept automatically the valuation of debts and assets of the community. Louisiana Revised Statutes 9:2801(A)(4)(c) directs the court to consider the nature and source of the asset or liability in partitioning the community property. While it is true that courts need not accept as definitive one party’s assessment of those values, the trial judge nevertheless “is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses.” Graefenstein, 866 So.2d at 961. Appellate courts uniformly agree that “[i]f the trial court’s valuations are reasonably supported by the record and do not constitute an abuse of discretion, its determinations should be affirmed.” Sherrod v. Sherrod, 97-907, p. 6 (La.App. 5 Cir. 3/25/98), 709 So.2d 352, 355, writ denied, 98-1121 (La.6/5/98), 720 So.2d 687. The trial court did assess an equalizing payment to Ms. Gauthier. Because Mr. Gauthier is unable to show any manifest error in the valuations, we may not set aside the factual findings made by the trial court while valuing or allocating assets and liabilities to partition community property. Alford v. Alford, 94-1464 (La.App. 3 Cir. 4/5/95), 653 So.2d 133; Chance v. Chance, 29,591, p. 1 (La.App. 2 Cir. 5/7/97), 694 So.2d 613, 615; Ellington v. Ellington, 36,943 (La.App. 2 Cir. 3/18/03), 842 So.2d 1160, writ denied, 03-1092 (La.6/27/03), 847 So.2d 1269.

IV.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. Costs of appeal are assessed to appellant, Newty Paul Gauthier.

AFFIRMED.


author: hDECUIR, Judge.

text:
    84 LUMBER COMPANY and Lumbermen’s Mutual Casualty Company v. Honorable Allen M. BABINEAUX, In His Capacity as Curator for Interdict, Randall Marks, Nursing Corporation of America, Inc., Nursing America, Inc., Olsten-Kimberly Quality Care, Blue Cross and Blue Shield of Mississippi (d/b/a Trispan Health Services), Centers for Medicare and Medicaid Services, U.S. Department of Health and Human Services, Jim Letten, U.S. Attorney for the Eastern District of the United States of America, Tommy Thompson, Director of the U.S. Department of Health and Human Services, Our Lady of Lourdes Regional Medical Center, Inc. and Opelousas General Hospital.
    No. 04-620.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.
    Philip E. Roberts, Roy, Bivins, Judice, Lafayette, LA, for Defendant/Appellee, Our Lady of Lourdes Regional Medical Center, Inc.
    Hugh B. Exnieios, Jr., Exnicios Legal Center, Folsom, LA, for Defendant/Appel-lee, Honorable Allen M. Babineaux, in his capacity as Curator for Interdict, Randall Marks.
    James B. Letten, Attorney at Law, New Orleans, LA, for Defendant/Appellee, U.S. Attorney General’s Office for the Eastern District of Louisiana.
    James Steven Gates, Morrow, Morrow, et al., Opelousas, LA, for Defendani/Appel-lee, Nursing America, Inc., Nursing Corporation of America, Inc.
    Donald Wayne Washington, Attorney at Law, Shreveport, LA, for Defendant/Ap-pellee, U.S. Attorney General’s Office for the Western District of Louisiana.
    Lawrence B. Frieman, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Me-tairie, LA, for Plaintiffs/Appellants, Lumbermen’s Mutual Casualty Company, 84 Lumber Company.
    Nicholas Gachassin III, The Gachassin Law Firm, Lafayette, LA, for Defendant/Appellee, Opelousas General Hospital.
    Agent C.T. Corporation System, Agent for Service, Baton Rouge, LA, for Defendant/Appellee, Olsten-Kimberly Quality Care.
    Services Center of Medicare and Medicaid, Baltimore, MD, for Defendant/Appel-lee, Center of Medicare and Medicaid Services.
    Tommy Thompson, Director of U.S. Department of Health & Human Services, Washington, DC, for Defendant/Appellee, Tommy Thompson.
    Gentiva Health Services, Inc., Melville, NY, for Defendant/Appellee, Gentiva Health Services, Inc.
    John Ashcroft, U.S. Attorney General, Washington, DC, for Defendant/Appellee, Department of Health & Human Resources.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS and OSWALD A. DECUIR, Judges.
   hDECUIR, Judge.

This lawsuit stems from a workers’ compensation claim filed by Randall Marks against his employer, 84 Lumber Company, and its insurer, Lumbermen’s Mutual Casualty Company. After final judgment was rendered in the compensation proceedings, 84 Lumber and Lumbermen’s Mutual filed the instant action in district court against Marks and numerous health care providers seeking reimbursement of medical expenses paid to or on behalf of Marks pursuant to his workers’ compensation claim. The trial court maintained Marks’ exception of res judicata and dismissed the suit against all defendants. For the following reasons, we affirm the dismissal of the plaintiffs’ petition.

Essentially, in the prior proceedings, the workers’ compensation judge determined that Marks had sustained a work-related accident which caused a head injury and resulted in disabling depression. He found temporary, total disability and specifically awarded medical benefits for the treatment of depression. The workers’ compensation judge further ruled that Marks had not met his burden of proving with clear and convincing evidence that the injury caused further physical problems:

[T]he court denies the remaining claims, including the compensability of Mr. Marks’ syncope or fainting spells. Marks has had more than twenty-four thousand documented spells, and wears a helmet which was prescribed to prevent head injury when he falls. He falls without protecting himself, and many of the doctors were persuaded at one point in time that the falls were genuine. Some experts continued to believe the falls are not feigned. However, the court finds overwhelming evidence that there is no physical basis for the syncope spells, and that the weight of the evidence establishes that the falls are conscious and deliberate, and therefore that aspect of the claim will be denied.

The decision of the Office of Workers’ Compensation was affirmed at Marks v. 84 Lumber Co., 00-322 (La.App. 3 Cir. 10/11/00), 771 So.2d 751.

The present case involves a claim for reimbursement of medical benefits expended for the diagnosis and treatment of Marks’ syncope episodes, a cause of paction ordinarily addressed in an administrative forum by a workers’ compensation judge. Therefore, we first addi-ess the obvious question of whether the trial court had jurisdiction over the subject matter of this action. This issue was raised by Marks among other exceptions and was briefly addressed and overruled by the trial court. In this appeal, it is raised by appellee, Opelousas General Hospital, in support of its position that the dismissal of all health care providers was proper. We discuss the jurisdictional question first, as a determination that the district court did not have subject matter jurisdiction will end our review. La.Code Civ. Proc. art. 3; DeHaven v. DeHaven, 412 So.2d 537 (La.1982); Landrum v. Board of Com’rs of the Orleans Levee Dist., 95-1591 (La.App. 4 Cir. 11/27/96), 685 So.2d 382.

Subject matter jurisdiction may be raised at any stage of litigation or may be recognized by a court on its own motion. La.Code Civ. Proc. art. 925; Nerness v. Christian Fidelity Life Ins. Co., 98-1827 (La.App. 3 Cir. 4/21/99), 733 So.2d 146. The workers’ compensation statute specifically grants exclusive jurisdiction to the workers’ compensation courts of all claims or disputes arising under that statute. La. R.S. 23:1310.3(E) provides:

Except as otherwise provided by R.S. 23:1101(D) and 1378(E), the workers’ compensation judge shall be vested with original, exclusive jurisdiction over all claims or disputes arising out of this Chapter, including but not limited to workers’ compensation insurance coverage disputes, employer demands for recovery for overpayment of benefits, the determination and recognition of employer credits as provided for in this Chapter, and cross-claims between employers or workers’ compensation insurers for indemnification or contribution.

In addressing jurisdictional questions which arise under this statute, the courts distinguish between matters arising within the context of the workers’ compensation laws and cases which merely relate to a compensation claim. In Broussard, Bolton, Halcomb & Vizzier v. Williams, 01-0219 (La.App. 3 Cir. 10/3/01), 796 So.2d 791, a fee dispute between two attorneys who represented a workers’ compensation | «claimant was found to be outside the jurisdiction of the OWC. In Covington v. A-Able Roofing, Inc., 95-1126 (La.App. 3 Cir. 3/6/96), 670 So.2d 611, the court found the OWC did not have subject matter jurisdiction in a case involving the Business Corporation Law, La.R.S. 12:1 et seq. By contrast, this court in Ellender’s Portable Bldgs., Inc. v. Cormier, 00-1724 (La.App. 3 Cir. 6/6/01), 787 So.2d 601, held the OWC has jurisdiction over a petition to nullify a compensation settlement. Similarly, in Lee v. M & O, Inc., 00-1497 (La.App. 3 Cir. 2/28/01), 782 So.2d 124, writ denied, 01-1253 (La.6/15/01), 793 So.2d 1249, an employer’s action to recoup an overpayment of benefits was held to be within the jurisdiction of the OWC.

Nunez v. Loomis Fargo & Co., 00-2519 (La.App. 4 Cir. 1/23/02), 807 So.2d 1063, writ denied, 02-0574 (La.5/24/02), 816 So.2d 307, was a third party tort suit in which a compensation carrier intervened to recover compensation and medical benefits paid and a credit for future payments. The fourth circuit held the district court did not have jurisdiction to determine the issue of future credits, “a matter that arises out of the Worker’s Compensation Act, and not merely a question that tangentially relates to worker’s compensation in general.” 00-2519, p. 14, 807 So.2d at 1070-71.

Specifically when faced with an employer’s suit to recover benefits previously paid to a claimant as a result of the claimant’s fraudulent acts, the courts have found the workers’ compensation judge to have exclusive jurisdiction, based on the current statutory language providing for such. See, Our Lady of the Lake Regional Medical Center v. Helms, 98-1931 (La.App. 1 Cir. 9/24/99), 754 So.2d 1049, 1052-1053, writ denied, 99-3057 (La.1/7/00), 752 So.2d 863. The second circuit cited Our Lady of the Lake with approval and held:

An employer, under the quasi contractual obligation of unjust enrichment, is entitled to recover benefits wrongly paid as the result of |4fraud. Where one is unjustly enriched at the impoverishment of another, without cause, the value of that enrichment must be restituted. Our Lady of the Lake, supra, citing Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); and La. C.C. arts. 2298 and 2299. Accordingly, the 1997 amendment does not change the law substantively, but only sets forth that the Office of Workers’ Compensation has jurisdiction to award a reimbursement of benefits.

Yarnell Ice Cream Co. v. Allen, 33,020 (La.App. 2 Cir. 5/10/00), 759 So.2d 1066, 1071, writ recalled, 00-1520 (La.1/17/01), 777 So.2d 472. Subsequently, in Allen v. Fireman’s Fund Ins. Co., 36,606 (La.App. 2 Cir. 11/6/02), 830 So.2d 1120, writ denied, 02-2981 (La.2/14/03), 836 So.2d 114, the second circuit again held the OWC, not the district court, has jurisdiction to resolve disputes arising out of this state’s compensation laws. See also, Yarnell Ice Cream Co. v. Allen, 38,262 (La.App. 2 Cir. 3/3/04), 867 So.2d 969.

The instant case involves issues arising under the workers’ compensation laws, including such questions as the claimant’s right to diagnostic testing, and the medical distinction between his compensable depression and his non-compensable fainting syndrome. We find the workers’ compensation court has exclusive jurisdiction of the controversy presented herein. Consequently, because the trial court was without jurisdiction to hear the case before it, the judgment dismissing the proceedings in favor of all defendants, albeit on other grounds, is affirmed.

Costs of this appeal are assessed to the plaintiffs.

AFFIRMED.