author: 11 Chief Judge WILLIAM H. BYRNES III.

text:
    GULF OUTLET MARINA, INC. v. Joseph SPAIN.
    No. 2002-CA-1589.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 25, 2003.
    Writ Denied Nov. 7, 2003.

      Tracy Ann Petruccelli, Law Offices of Mary Beoubay Petruccelli, Chalmette, LA, for Plaintiff/Appellee.
    Mary Ann Hand, Salvador E. Gutierrez, Jr., Gutierrez and Hand, Chalmette, LA, for Defendant/Appellee.
    Allain F. Hardin, Fransen & Hardin, A.P.L.C., New Orleans, LA, and Chester C. Stetfelt, Jr., Metairie, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, and Judge TERRI F. LOVE).
   11 Chief Judge WILLIAM H. BYRNES III.

Joseph Spain, defendanVplaintiff in re-convention/third party plaintiffiappellant, as the owner of the vessel, Lady of Spain, appeals a November 13, 2001 judgment rendered, pursuant to a judge trial, against him in- favor of the plaintiffidefendant in reconvention/appellee, Gulf Outlet Marina (“Marina”), awarding the Marina $908.00 for past due rent for a boat slip and $1,500.00 for expenses incurred by the Marina for the preservation of the Lady of Spain and all costs. In the same judgment, Joseph Spain’s reconventional demands against the Marina as well as his third party demands against the Marina’s owner, Robert Berthelot, and Jack Stephens in his official capacity as the Sheriff of St. Bernard Parish (“Sheriff’) were dismissed. The trial court issued no written reasons.

On June 24, 1989, the plaintiff/defendant in reconvention/appellee, Gulf Outlet Marina (“Marina”), filed suit against Joseph Spain, defendant/plaintiff in reconvention/third party plaintiff/appellant, as the owner of the vessel, Lady of Spain, for nonpayment of $908.00 of rent allegedly from August 1988 through July of 1989 for a boat slip in the Marina. The rent was due pursuant to a written lease ^entered into on October 8, 1986 at the rate of $145.00 per month, plus $10.00 per day for late payments made after the tenth of the month.

Based on an affidavit signed by a Marina employee, Alvin Dodd, an ex parte order of sequestration was issued on July 24, 1989, without bond. The Sheriffs office seized the vessel at the Halter Marine shipyard on the same day.

On August 28, 1989, the Marina filed a supplemental and amending petition, amending the rental claim upward to $1,643.00, covering the period from August 1988 through August 1989. However, in paragraph “IV.A” of the supplemental and amended petition, the Marina qualified the nonpayment allegation with the following language:

[Spain] has failed to pay petitioner for the months of August 1988 through and including August 1989 more specifically the rent for February 1989 through August 1989 is past due and owing. [Emphasis added.]

In a series of pleadings, Joseph Spain filed various answers, reconventional demands and third party demands, contesting the allegations of nonpayment of rent and seeking damages to his vessel for the negligence and/or intentional acts of the Marina, Berthelot and the Sheriff. Spain’s claim for damages arises out of the fact that his seized vessel sank during the course of the sequestration and remained submerged for an extended period of time.

On October 19, 1990, the writ of sequestration was dissolved based on a rule filed by Joseph Spain alleging that the delinquency was actually only $141.00 and that the vessel was worth close to $100,000.00. An order was signed on October 24, 1990, allowing Joseph Spain to enter Marina’s premises to reclaim the vessel.

|P,I. DID THE TRIAL COURT FAIL TO COMPLY WITH LA. C.C. ART. 1636 CONCERNING PROFFERED EVIDENCE?

The most serious assignment of error asserted by Spain is that the trial court refused to allow him to make a proffer of certain evidence and testimony that it excluded from evidence. La. C.C.P. art. 1636(A) provides:

When the court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence. [Emphasis added.]

The effect of LSA-C.C.P. art. 1636 was explained in Anderson v. Casualty Reciprocal Exchange, 602 So.2d 282, 284 (La.App. 2 Cir.1992):

According to LSA-C.C.P. Art. 1636, “when a court rules against the admissibility of any evidence, it shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence.” .... LSA C.C.P. Art. 1636 is mandatory, not discretionary/ Hopkins v. Department of Highways, 350 So.2d 1271 (La.App. 3d Cir.1977), on remand 364 So.2d 616, writ denied 365 So.2d 262; Liberty Mutual Ins. Co. v. Bryant, 191 So.2d 747 (La.App. 2d Cir. 1966), writ denied 250 La. 16,193 So.2d 528. However, the trial judge has the discretion to receive the proffer in full, or to require a statement setting forth the nature of the evidence/ LSA-C.C.P. Art. 1636. Neither form of a proffer was allowed in this case.

Id.

This court agrees with Anderson that the opportunity to proffer excluded evidence is mandatory under La. C.C.P. art. 1636, but the trial court has the discretion to receive the proffer in full, or to require a statement setting forth the nature of the evidence.

Martin v. Esponge, 388 So.2d 128, 130 (LaApp. 1 Cir.1980), is consistent with the Anderson court’s conclusion that limiting the proffer to a statement of the nature of the excluded evidence rather than the reception of the evidence in full is sufficient under La. C.C.P. art. 1636:

The appellant is not prejudiced by a trial judge’s limiting his proffer to a statement setting forth the nature of the evidence rather than allowing him to make a complete record thereof, since the appellate court will remand for completion of the record if, in the former case, the evidence excluded is ruled admissible. [Emphasis added.]

Id

This Court agrees with both Anderson and Martin that a statement setting forth the nature of the excluded evidence is sufficient and within the discretion of the trial court.

Additionally, the appellees argue that if the trial court’s rulings on evidence and testimony sought to be proffered by Spain were error, they were harmless errors because the excluded proffers related to the issue of damages, and that issue is relevant only if the court found the Marina, and/or Berthelot and/or the Sheriff liable to Spain, which it did not.

The attempted proffer concerned evidence of value of Spain’s vessel to be offered by Sewell Williams, of the Sewell Williams Marine Survey Company, who was qualified by the court without objection as an expert in marine survey. Mr. Williams attempted to testify concerning a “retrospective appraisal” of the vessel. It is important to the disposition of this issue to consider carefully what testimony Mr. Williams was allowed to give and what was excluded:

Q.Did you have the opportunity to determine a valuation of that vessel?
Ik A. I was asked by Mr. Spain to do a retrospective appraisal of the vessel. At the time I looked at the vessel, it was blocked at a shipyard on the Chef Highway between the bridges, Chef bridge and the rigolets bridge. I don’t recall the name of the yard. Q. Did you also look at photographs of the vessel prior to its sinking?
A. I looked at photographs Mr. Spain had furnished me from his photo album, and he told me this was the boat as to when he was living on it.
Q. Based upon your examination of the vessel, based upon the photographs, based upon your knowledge in the area of marine surveying, as far as the value of that vessel, what did you determine it to be prior to that vessel—
MR. GUTIERREZ:
I object, Your Honor. I think, the proper foundation is not being laid. I think, Mr. Williams, in all due respect, did a retrospective survey in 1993 of a vessel on the Chef Pass which he is now surveying retrospectively as to what this vessel’s condition and value was in July of 1989, some four years earlier based on what he looked at in his report of his survey of 1976. I think, it’s totally improper. [Emphasis added.]
THE COURT:
I have to agree. I sustain the objection. You know, I think, Mr. Williams believes and agrees that on a retrospect four years after the fact cannot assist either this Court or anyone else in making a determination. Had he seen it a month after or a week afterwards, the Court may be inclined to listen. If he had seen it a year before, the Court may be inclined to listen. Some four years later, you know — [Emphasis added.]
MR. GUTIERREZ:
Additionally, Your Honor, my objection is also he based it on pictures. In all due respect to Mr. Williams, he doesn’t even know when these pictures were taken. He doesn’t know if the pictures were touched up. There is no foundation on the pictures. I think, it’s all speculation.
THE COURT:
IrI think, that would put Mr. Williams in a very precarious situation, you know. I am going to sustain the objection.
MR. HARDIN:
Your Honor, at this time, I would like to ask Mr. Williams some questions whether or not he as a marine surveyor feels comfortable with doing what he did in this case in order to determine valuation.
THE COURT:
Is he going to ask the Court whether I feel comfortable in accepting it?
MR. HARDIN:
Your Honor, what I would like to do, then, if that’s the case, is to proffer his testimony to at least create the record. I submit that in this kind of case, given what you were dealing with, it’s next to impossible to come up with a marine surveyor who would have seen the vessel right at the time that it was drafted in the water. This is actually the best evidence given a burden of more probable than not in terms of valuations. This is, I suggest, the appropriate method by which to approach it.
THE COURT:
Counsel?
MR. GUTIERREZ:
Your Honor, I mean, he is attempting to proffer evidence. It’s still, to me inadmissible evidence when a person is doing a survey of a vessel four years later for a condition four years earlier based on pictures. Also, if you read his report, it says, “In response to your request for our opinion of what the fair market value of subject vessel in caption could have been in the summer of 1989, we have concluded that the LADY OF SPAIN should have enjoyed a fair market value of approximately $20,000. [Emphasis added.] We base our retrospective appraisal on studying our 1976 survey report — [Emphasis added.]
MS. TRACY PETRUCELLI:
Seventeen years earlier.
|7MR. GUTIERREZ:
It’s much earlier. He is basing it four years after what he is telling it at based on something that he saw a survey that was—
THE COURT:
Seventeen years before, I understand.
MR. GUTIERREZ:
I don’t blame Mr. Williams for it. I just think it’s totally improper.
THE COURT:
The Court agrees, you know. I think, you put Mr. Williams in a very precarious position that calls — and I know that most of his job is opinion. However, this goes beyond pure opinion. Even to his own language indicates the hypothet that he has to draw upon to even get to there. So, I am going to sustain the objection. [Emphasis added.]
MS. TRACY PETRUCELLI:
Additionally, Your Honor, the sequestration was lifted, according to the judgment, which was offered in October of '90. Mr. Spain, apparently, didn’t get anybody to talk about this until over three years later. For that, it is just not proper evidence, Your Honor.

What the trial judge is saying is that he has no confidence in the basis upon which Mr. Williams opinion is grounded, which is a decision within the discretion of the trial judge to make (see authorities discussed later in this section of the opinion), and we find no abuse of the trial judge’s discretion in this regard.

At this point in the trial Spain’s attorney again asked to proffer Mr. Williams’ testimony, but he was again rebuffed by the trial court:

THE COURT:
lal agree. Mr. Williams did probably the best he could under the circumstances and for what he was hired. However, what the Court is saying is I am going to sustain the objection based upon the evidence, the hard evidence that is before the Court; that is, the original survey which was some 17 years prior to the actual sinking of the vessel or thereabouts and that the retrospective survey which was done some four years after. Based upon that, even in a proper situation, I feel that that tends to mislead and misca-tergorize the whole testimony and the whole situation of the incident. [Emphasis added.]

Again, the trial judge offers good reasons to support his lack of confidence in the foundation upon which Mr. Williams’ opinion is based.

Mr. Smith’s attorney then made another attempt to proffer:

MR. HARDIN:
May we proffer documentation into the record with regard to his testimony and photographs that he would have seen, his report, other yachts that he would have valued in terms of listing, that type of thing?

Again, the trail court disallowed the request to proffer. However, the trial court did allow Mr. Spain’s attorney to continue questioning Mr. Williams on the record:

BY MR. HARDIN:
Have you done retrospective valuations of vessels before?
A. Yes.
Q. Do you feel qualified? Do you feel that it is appropriate to do a retrospective valuation of this vessel?
A. I felt so.
MR. HARDIN:
| a Your Honor, at this time, what I would like to do is offer, file, and introduce into evidence those items that this gentlemen would have reviewed which include the photographs of the vessel, videotape of the vessel, his report, the 1976 report. That’s pretty much it.
MR. GUTIERREZ:
Judge, I object. All of those things are not relevant. No foundation was laid for the equipment that he has a list of equipment on his vessel for this man to look at from 1993 that is sitting on the Chef Pass that we don’t know if, in fact, it had that equipment on there. There is nobody here to testify to that. So, this is all a what if they had that stuff and what if this. This would be his conclusion. Williams because that’s all he has got is what if this boat looked like this, what if it had this equipment, and what if that would you then say that. I think, that’s all speculative and not— there is no evidence to all of that.

Once again the trial court denied the proffer, but allowed Mr. Smith’s attorney to continue his questioning of Mr. Williams, during the course of which Mr. Williams explained that wooden boats are highly prized because so few have been built since fiberglass became popular in the 1950’s. According to Mr. Williams, the wooden boats were hand built, implying a high degree of craftsmanship from which substantial pride of ownership could be derived. In other words, there was a considerable factor of aesthetic (La. C.C. art. 1998 employs the term, “nonpecuniary,” while the term “esoteric” was employed in the trial court) enjoyment in connection with the ownership of a wooden boat according to Mr. Williams. Eventually, Spain’s attorney again turned the testimony to the condition of the boat, but the Court refused to allow Mr. Williams to express an opinion of value based on a photograph of the vessel taken prior to the time it sank, but not immediately prior to that time.

_|ifiSpain’s attorney then tried to have Mr. Williams qualified as an expert on the duties of a “consent keeper.” Sheriff Stephens’ attorney objected. Based on the fact that Mr. Williams testified that, in essence, he had performed such duties only twice before, the trial court refused to qualify him as an expert. Additionally, the duties of a keeper are a matter of law, not a matter of Mr. Williams’ opinion.

Next Spain’s attorney asked to have Mr. Williams testify as to what it would cost to bring the vessel back to the condition it was in prior to the sinking based on Mr. Williams having seen it in 1993. In refusing this request from Spain’s attorney, the trial judge stated:

Again, we don’t know how much deterioration occurred from the time of seizure to the time he saw it. That is purely speculation , you know. We are at a point in this matter where we cannot ask this gentleman to give us any indication of that. There are other means of doing that. Counsel, I am not going to practice law for you. You know, this gentleman is not at this point in time some four years later capable of saying what it’s going to take to get that issue.

At this point Spain’s attorney again attempted a proffer, and again the trial court refused. Finally, the trial court permitted Mr. Williams to offer additional expressions of his opinion regarding the “esoteric” value of the boat, in spite of the fact that the trial court expressed the following reservations about his qualifications in that area:

His expertise as a surveyor does not deal with the esoteric nature of individual owners nor can he form an opinion as to what is in the mind of an individual owner at any point in time.

InFrom the extensive portions of the transcript quoted throughout this discussion of the proffer issue it is apparent that the trial court, while not allowing Spain to make a complete record of the evidence he sought to proffer, did effectively allow Spain to make the equivalent of a statement setting forth the nature of the excluded evidence. As may be seen by reference to the aforementioned quoted portions of the transcript, Mr. Williams was even allowed to state his conclusion that the vessel was worth $20,000.00 at the time it was sequestered. The testimony that Mr. Williams was allowed to put on the record along with the argument Spam’s counsel made on the record, make the nature of the excluded evidence abundantly clear. This is sufficient to comply with La. C.C.P. art. 1636 and Martin v. Esponge, supra.

Anderson v. Casualty Reciprocal Exchange, (La.App. 2 Cir.1992), 602 So.2d 282, does not support Spain’s position. In Anderson the trial judge did not allow the appellant either form of proffer mandated by La. C.C.P. art. 1636. The same is true in Michelli v. Michelli, 93 2128 (LaApp. 1 Cir. 5/5/95), 655 So.2d 1342. It is error to deny a party both forms of proffer. In the instant case Spain was effectively allowed to make a statement and the record also includes much of the testimony Spain sought to get into evidence, including his expert’s conclusion that the vessel had a value of $20,000.00 at the time of sequestration. Therefore, we find no error in the trial court’s rulings concerning Spain’s proffer of Mr. Williams’ testimony and evidence.

Moreover, had the trial court allowed the proffer, this court would not have reversed the trial court’s decision to exclude the evidence. The reasoning of the court in Gordon v. Levet, 96-600 (La.App. 5 Cir. 1/15/97), 688 So.2d 57, 68 based on analogous facts, is applicable in this case:

|1?.In the instant case, we have already concluded that the trial judge did not abuse his discretion in refusing to allow amendment of the pre-trial order, and in excluding the testimony at issue on the basis that the witnesses were not named in that order. Thus, even if the trial court had allowed the proffer, we would not have considered the testimony in this appeal. Therefore, the trial judge’s refusal to allow the proffer, under the circumstances of this case, is harmless error. [Emphasis added.]

Based on Gordon, supra, even were this court to assume for purposes of argument that it was error to disallow the Spain proffer, then the error was harmless because the trial court would have been acting within its discretion in disallowing the evidence, and/or in choosing to give it no weight, and/or in refusing to qualify Mr. Williams as an expert to place a value on Spain’s non pecuniary loss.

The weight to be given to the testimony of experts is largely dependent upon their qualifications and the facts upon which their opinions are based. Quinones v. United States Fidelity and Guaranty Company, 93-1648 (La.1/14/94), 630 So.2d 1303, 1308; Schiro v. State ex rel. Dept. of Transp. and Development, 99-2754 (La.App. 4 Cir. 3/21/01), 808 So.2d 500, 508, unit den. 01-1371 (La.6/22/01), 794 So.2d 795. Even uncontradicted expert testimony is not binding on the fact-finder. Mossy Motors, Inc. v. Sewerage & Water Bd. of City of New Orleans, 2001-0486 (La.App. 4 Cir. 9/19/01), 797 So.2d 133, 136, writ den. 01-2809 (La.1/4/02), 805 So.2d 203; Hansel v. Holyfield, 00-0062 (La.App. 4 Cir. 12/27/00), 779 So.2d 939; J.A.G. v. Schmaltz, 95-2755 (La.App. 4 Cir. 10/23/96), 682 So.2d 331, 337.

Glass v. Magnolia School, Inc., 01-1209 (La.App. 5 Cir. 3/13/02), 815 So.2d 143, 153-154, unit den. 02-1048 (La.6/7/02), 818 So.2d 776, demonstrates the worthlessness of an expert opinion not based upon a reliable foundation:

| ^Ultimately, the weight to be given expert testimony is dependent upon the facts on which it is based, as well as the professional qualifications and experience of the expert. For an expert opinion to be valid and to merit much weight, the facts on which it is based must be substantiated by the record. [Footnote omitted.]
In the present case, the record is devoid of any evidence that Wayne had a history of seizures, that he had ever suffered from any condition causing seizures, or that he had, in fact, ever experienced one. In short, Dr. Neuman had no more evidence on which to postulate a seizure than he did in ruling out diabetic blackout or heart attack. Because Magnolia presented no evidence that Wayne suffered from any conditions which would cause him to suddenly lose consciousness, Dr. Neu-man’s opinion was speculative at best. It has been held that a factfinder may not infer the existence of a defect based on the fact that an accident has occurred. [Footnote omitted.] Analogously, we hold that a factfinder may not infer the existence of one medical condition based solely on the lack of another explanation for an occurrence. To the extent that it did so, it was error for the jury to assign much weight to Dr. Neuman’s conclusion.

Just as Dr. Newman’s opinion in Glass is speculative at best, Mr. Williams’ valuation of Spain’s vessels in the instant case is speculative at best because it is based on information so far removed in time from the relevant valuation date.

Included in the credibility determination is the method by which the expert reached his conclusions. Annina v. Eschette, 00-1892 (La.App. 1 Cir. 11/21/01) 814 So.2d 13.

It is well settled in Louisiana that the trial court is not bound by the testimony of an expert, but such testimony is to be weighed the same as any other evidence. Fountain v. Fountain, 93-2176, p. 5 (La.App. 1 Cir. 10/7/94), 644 So.2d 733, 738. A trial court may accept or reject in whole or in part the opinion expressed by an expert. Id. The effect and weight to be given to expert testimony is within the broad discretion of the trial judge. Williams v. Rubicon, 2001-0074 (La.App. 1 Cir. 2/15/02), 808 So.2d 852. [Emphasis added.]

Lanasa v. Harrison, 02-0026 (La.App. 4 Cir. 8/7/02), 828 So.2d 602, 605, writ den. 02-2512 (La.11/27/02), 831 So.2d 286.

As the effect and weight to be given to Mr. Williams’ testimony is within the broad discretion of the trial judge, it was harmless error, if error at all, for the trial judge to exclude from both evidence and proffer Mr. Williams’ expert opinion when it is apparent for good and valid reasons, fully articulated by the trial judge in the transcript, that had the Mr. Williams’ opinion been allowed in, the trial judge would have given it no weight — and this Court would not have second guessed the trial court on appeal.

Mr. Williams was qualified as an expert marine surveyor, but was rejected as an expert on the aesthetic or non pecuniary value of the boat. The trial judge has wide discretion in deciding which expert testimony to admit and his judgment will not be disturbed unless clearly erroneous. Collins v. State ex rel. Louisiana Health Care Authority, 99-2308 (La.App. 4 Cir. 7/12/00), 774 So.2d 167, 172; Mistich v. Volkswagen, 95-0939 (La.1/29/96), 666 So.2d 1073. As to the issue of who should or should not be allowed to testify as an expert, it is very well established in the case law that the trial court has discretion and will not be reversed on appeal absent clear error. Doe v. Archdiocese of New Orleans, 2001-0739 (La.App. 4 Cir. 5/8/02), 823 So.2d 360, 363, writ den. 02-1960 (La.11/8/02), 828 So.2d 1127.

11sRegarding certain pictures and a video of the boat, along with a list of equipment supposedly on the boat that Spain was also prevented from proffering in connection with Mr. Williams’ testimony, it still comes back to the fact that the trial judge expressed no confidence in Spam’s expert and gave more than ample reasons on the record to allow us to conclude that the trial judge was acting well within his discretion in rejecting the evidence of the expert and that the pictures and the video would have not changed the trial judge’s decision in that regard. In other words, regardless of whether the trial judge had allowed the proffer of the pictures and video, or even if he had allowed them to actually be introduced into evidence, the result remains the same because the trial judge had no confidence in the process whereby the expert sought to value the vessel, the trial judge gave valid reasons to support that position, and the video and pictures would not have changed the thinking of the trial judge, nor would they have invalidated his reasoning. There is no abuse of discretion where the trial judge as fact finder chooses to give no weight to an expert valuation premised on a one-time observation of a vessel four years after the valuation date and a survey of the vessel admittedly done over fifteen years prior to the valuation date. Therefore, questions concerning whether the evidence and testimony should have been admitted or proffered become irrelevant where they have no impact on the outcome of the case under harmless error analysis.

hfiSpain offers an additional reason why it was error for the trial court to disallow certain photos and a video of the vessel: He contends they should have been allowed in because mention of them was made in the Court’s Case Management Order. The attorney for Sheriff Stephens objected on the basis that they had not been produced in response to the request for production. The Sheriff appears to be correct on this point. Therefore, it was within the trial court’s discretion to disallow the evidence. Regardless, as stated in the previous paragraph, neither the picture nor the video would cure the valid objection of the trial judge concerning the speculative nature of Mr. Williams’ attempt to value the vessel. Accordingly, were there any errors in the trial court rulings excluding the photos and the video, they were harmless.

It is clear that even had the trial judge allowed all of Mr. Williams’ evidence and testimony into evidence, he would have disregarded it. The trial judge’s excellent reasons for refusing to place any value on Mr. Williams’ expert opinion, that Mr. Williams’ opinion was based on a survey of the vessel done over fifteen years prior to the valuation date and that Mr. Williams’ did not actually observe the boat until approximately four years after the valuation date, demonstrate that the trial court acted well within its discretion in making . its decision to exclude the evidence.

II. IS SPAIN ENTITLED TO RECOVER DAMAGES PURSUANT TO HIS RECONVENTIONAL AND THIRD PARTY DEMANDS?

|17Spain filed a reconventional demand against the Marina, its owner, Ber-thelot, and the Sheriff asking for damages sustained by his vessel during the time it was seized under sequestration. He has not asserted a claim for wrongful seizure. Instead his claim is based on allegations that the defendant in reconvention and the third party defendants failed in their duty to properly maintain the vessel while it was under their control pursuant to the seizure. The burden is on Spain to prove his damages.

The record is replete with evidence that the vessel had sunk at least twice prior to its seizure, that Spain made no effort to maintain it, and that both before and after seizure it was the object of virtually constant bailing efforts which were ultimately unsuccessful. Spain failed to prove the condition of the vessel prior to sequestration. Spain himself testified that all of his belongings inside of his boat were wet prior to the sequestration, from which the trial judge could reasonably infer that the boat had been taking on water. The boat was never operated during the entire time it was at the Marina, a period of several years, and the only reasonable inference to be drawn from the record is that it was not operational for several years prior to the sequestration. It was towed into the Marina (it was not operational when it arrived) initially in 1986 and was never seen to be operational after that date through the time of the sequestration in 1989.

After the sequestration was released in October of 1990, Spain refloated the boat and moved it first to the Chef Pass Marina and then to Chuck’s Marina where he eventually relinquished the boat to the marina and gave his permission to have it disposed in any manner the marina chose.

l1RSpain contended that the value of the vessel’s wood (teak) alone was $30,000.00, but even his expert placed a value on the entire vessel of only $20,000.00. Spain was out of town much of the time the boat was at the Gulf Outlet Marina. Therefore, he has little real first hand knowledge of what went on in connection with his vessel in his absence from town. This in turn undermines the persuasive authority of his entire testimony.

The deplorable condition of the vessel antedated the sequestration. The preponderance of the evidence in the record supports a finding that the boat was a useless, non-operational, valueless, sinking wreck prior to the sequestration. Therefore, Spain has failed to prove that the vessel suffered any loss in value as a result of the sequestration. It was entirely within the discretion of the trial judge to discount Spain’s self-serving testimony as to the value and condition of the vessel, especially in view of the fact that the rest of the record did not support it and there was much in Spain’s testimony that could lead a reasonable fact finder to find it unreliable. In other words, under a manifest error standard of review, there is nothing in the record that would permit this Court to second-guess the trial court’s implicit findings regarding the lack of persuasive power of Spain’s testimony. For reasons explained earlier in this opinion, Spain’s expert was equally unpersuasive.

As Spain failed to prove any economic or non pecuniary loss, we need not address the various theories of liability he asserts against the defendant in reconvention and the third party defendants.

III. SHOULD THE RENTAL CONTRACT BE REFORMED BECAUSE OF MUTUAL MISTAKE?

119Spain notes that Carol Duplan-tis, a secretary at Gulf Outlet Marina and the party in charge of new boat rentals testified that the rental charge at the marina was based on $2.85 per foot. However, that would probably best be described as a rule of thumb, or as Mr. Berthelot testified: “It’s kind of a guideline.” It is not mentioned in the written rental agreement signed by the lessees, including Spain. The written agreement signed by Spain mentions the agreed upon monthly rental amount only.

Moreover, the footage upon which the rental amount is figured is supplied by the lessee. In the instant case Spain informed Ms. Duplantis that his boat was 50 feet long. Spain does not dispute this. On appeal Spain contends that subsequent to the time he signed the written rental agreement dated August 4, 1986, he learned that his boat was actually only 45 feet long. Spain testified that when he spoke to Mr. Berthelot about it he was told that it would be taken care of. However, Ms. Duplantis testified that no one ever spoke to her about this, including Spain who continued to make payments (when he made payments) at the rate called for in the original agreement. She testified that it was customary for lessees to bring rental complaints to her, but that Spain never made any such complaint. When rental discrepancies were brought to her attention, she would ask Mr. Berthelot about them. She would not undertake adjustments on her own authority. She said that in her 21 years of working at the marina she had never seen a dispute as to the length of a vessel.

| snMr. Berthelot testified that in Spain’s case the rental was “more or less” based on the length of Spain’s vessel. Mr. Ber-thelot could not recall having received a letter from Spain contesting the length of the boat, but he acknowledged his signature on the receipt for such a letter dated May 9, 1989. However, he stated that regardless he would not have lowered the rent on Spain’s account because it was not current.

Viewing the record as a whole, including the written agreement signed by Spain and the testimony of the witnesses, we cannot say that the trial judge was manifestly erroneous in implicitly concluding that the length of the vessel was only a guideline in fixing the rent, and that the actual rent was as agreed upon between the parties and that, therefore, the facts do not support Spain’s demand that the rental agreement be reformed. While a reasonable fact finder could take a different view of the evidence, it is not the function of this Court to prefer an alternative view of the facts when the one chosen by the trial court is not unreasonable.

IV. DID DAVID SPAIN SUPPLANT JOSEPH SPAIN ON THE RENTAL AGREEMENT?

Spain in his brief, in effect, does not contest the $908.00 calculation of rent due awarded by the judgment. Instead, Spain argues that $296.00 of this sum should not be charged to Spain, but to his brother David.

N Spain notes that La. C.C. art. 2685 provides that where a rental agreement has no stated term it is considered to be by the month. Spain’s rental agreement with Gulf Outlet Marina has no stated term. Therefore, Spain contends that as a matter of law the agreement is by the month. From this Spain argues that when his brother David agreed to commence paying the rent in January of 1989, this agreement superceded the original agreement that Spain had entered into, i.e., Spain’s had no future rental obligation from that day onward as long as his brother David was assuming the lease payments. Spain argues that the agreement with Spain’s brother, David, was a novation, extinguishing Spain’s original rental agreement. In his brief, Spain quotes the following colloquy from the transcript of Ms. Duplantis’ testimony:

Q. You mentioned that the contract was changed to David Spain in January of'89?
A. Right.
Q. He took it over?
A. He said, he would like to fill out, stay on the boat.
Q. So he took on the rent obligation of David Spain?

However, the part of Ms. Duplantis’ testimony quoted by Spain fails to consider the explanatory testimony given by Ms. Duplantis immediately following the portion quoted:

A.The contract was still under Joseph Spain.
A. I did not change the contract.
>}: Hí # *
A. There was no change in the contract, sir. The balance of the rent was still under Joseph Spain.

[ ¡.^Spain’s attorney asked Mr. Berthelot only two brief questions concerning this issue:

Q. You were aware that David Spain took over the rent, the brother of Joe Spain, took over the rent?
A. Yes, somewheres [ sic] in there.
Q. That was okay with you?
A. I didn’t care who paid the rent, just so somebody would pay it. We take money from anybody that paid the rent.

Spain points to an account card in his name, Joseph Spain, with a line though a list of payments and an arrow pointing to the statement, “brother took over.” Spain also notes a separate account card in the name of David Spain that commencing in January of 1989.

In reviewing the testimony of Ms. Duplantis and Mr. Berthelot, it must be remembered that they are not attorneys. Therefore, while Ms. Duplantis and Mr. Berthelot may have testified that David Spain “took over” the rent obligation, the trial court could reasonably infer that they did not infuse those words with the same legal connotations as Spain now urges this court to adopt. It is clear that there was never any intention to release Spain from his rental obligation. Nor was there ever any intention to substitute a new obligation for the existing obligation as is required for a novation under La. C.C. art. 1879 as cited by Spain. The payment of rent by David Spain during the period he was living on the boat was more in the nature of a sublease. It was not a novation. There is no question that at all times Spain remained the owner of the vessel, and as such was obligated to pay rent for occupying the slip at the marina.

1 While Spain relies on La. C.C. art. 1879, which does no more than define “no-vation,” we note that the Civil Code Articles immediately following which explain when novation occurs make it clear that no novation has taken place in the instant case.

La. C.C. art. 1880 provides:
The intention to extinguish the original obligation must be clear and unequivocal. Novation may not be presumed.

Both Ms. Duplantis and Mr. Berthelot testified that there was no intention to extinguish the original obligation. Therefore, under the language just quoted from La. C.C. art. 1880, we find no manifest error in the implicit finding of the trial court that no novation had occurred.

There is no express declaration by the parties of an intention to novate, one of the means whereby novation may take place pursuant to La. C.C. art. 1881. Spain was never discharged from his obligation by Gulf Outlet Marina, a prerequisite for no-vation under La. C.C. art. 1882. In fact, it is not reasonable to believe that Gulf Outlet Marina would ever intend to release Spain from the rental obligation as long as his boat occupied a marina slip.

There is no merit in this assignment of error.

Y. WAS IT ERROR TO AWARD $1,500.00 TO GULF OUTLET MARINA FOR MAINTENANCE OF THE VESSEL?

L/The judgment of the trial court condemns Spain to pay Gulf Outlet Marina $1,500.00 “for the maintenance of the Defendant’s boat.” The maintenance referred to in the judgment is pumping services rendered by Mr. Alvin Dodd in an effort to keep Spain’s vessel afloat. There is no dispute that the expenses were incurred prior to the sequestration of the vessel. Mr. Berthelot testified that although Mr. Dodd was an employee of the Marina, the work for which the $1,500.00 bill was submitted was performed by Mr. Dodd after hours on his own time.

There is nothing in the rental agreement giving the Marina the right to incur such expenses on Spain’s account. None of the witnesses testified that Spain had agreed in general to be responsible for such expenses as part of the lease agreement, i.e., there is no evidence of any general prior authorization by Spain to incur such expenses. There is no evidence that Spain gave any authorization to have this specific work done. The Marina’s brief refers to nothing in the law or record that would entitle the Marina to incur such expenses on Spain’s behalf. Mr. Berthelot gave the only testimony on behalf of the Marina in this regard, and it proves nothing: “[Alvin Dodd] gave me a bill for it [the $1,500.00] because I thought we would be able to collect the money from Mr. Spain.” Just prior to that Mr. Berthelot testified that the Marina’s efforts to make contact with Spain to discuss the vessels problems with taking on water were unsuccessful. It is clear that Spain never explicitly agreed to these services.

However, La. C.C. art 2292 defines neg-otiomm gestio as follows:

There is a management of affairs when a person, the manager, acts without authority to protect the interests of another, the owner, in the reasonable belief that the owner would approve of the action if made aware of the circumstances. [Emphasis added.]

| ?,r1995 Revision Comment (b) under this Civil Code Article provides in pertinent part:

The affair managed may be a material act, such as the protection of property from fire or flood, or the execution of a juridical act, such as the sale of perishable things. [Emphasis added.]

Mr. Spain does not contend that there was any pre-sequestration duty on the part of the Marina to bail his boat. Therefore, the Marina’s efforts to have Mr. Spain’s boat bailed were voluntary in the eyes of the law. The bailing of Mr. Spain’s boat by Mr. Dodd at the request of the Marina is very much analogous to the examples of protection of property from fire and flood set forth in the 1995 Revision Comment quoted above and should be treated the same way, as fire and flood are merely examples, not requirements. Additionally, the record supports a finding that the Marina acted “in the reasonable belief that the owner would approve the action if made aware of the circumstances.” La. C.C. art. 2292.

La. C.C. art. 2294 provides that:

The manager is bound, when the circumstances so warrant, to give notice to the owner that he has undertaken the management and to wait for the directions of the owner, unless there is immediate danger.

The record is replete with testimony concerning efforts by the Marina to communicate, albeit unsuccessfully, with Mr. Spain. The record supports a finding that La. C.C. art. 2294 was adequately complied with.

La. C.C. art. 2297 provides that:

The owner whose affair has been managed is bound to fulfill the obligations that the manager has undertaken as a prudent administrator and to reimburse the manager for all necessary and useful expenses. [Emphasis added.]

| ¡¡fiUnder this article, the Marina is entitled to be reimbursed for the expense of bailing. The fact that the Marina retained the services of a third party to perform the bailing does not defeat its claim under negotiorwm gestio.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      1. Emphasis original.

      2. Emphasis added.

      3. Emphasis added.

      4. Emphasis added.

      5. Emphasis added.

      . Mr. Williams used the term "esoteric.”

      . The term used La. C.C. art. 1998.

      . Spain makes the following argument in his brief:
      Ma. Duplantis in her testimony in fact separated the amount asserted to be owed. She said there was four months in 1998 (August to November) past due and then there were two months (June and July) in 1989, which would fall under David Spain’s obligation. The rent thus due, based on [the Marina’s] calculations, would be $612.00 by Joseph Spain (4 x $153.00) and $296.00 by David Spain ($153.00 + $143.00). David Spain was never sued by the defendants. Despite this the trial court rendered judgment over and against Joseph Spain for the sum of $908.00.
      Thus, on appeal Spain questions the allocation of responsibility for the past due rent as between himself and his brother David, but he does not challenge the Marina’s calculations.


source: Caselaw Access Project

author: | tMICHAEL E. KIRBY, Judge. JJOBIAS, J., | .MICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    Sivirino CARREON, Bulig-Bulig Kita Kamaganak Association, Renato Asistorga, Pedro B. Sorima, Arnel N. Galang, Elsa Montiagodo, Erasto Maghacut, Isabel Magno, Lorita Acosta, Acebedo Violeta, Sabulao Faiyaz, Julieta Benaso, Escolastica Baldo, Jose Baguhin v. CAL-TEX PHILIPPINES, INC., Cal-Tex Petroleum, Corp., Cal-Tex Asia, Ltd. Cal-Tex Oil Corp., California Texas Oil Corp., Cal-Tex Philippines Petroleum Company, Inc., Cal-Tex Trading and Transport Corp., Steamship Mutual, Vector Shipping Corp., et al.
    No. 2002-CA-1307.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 9, 2003.
    Order Granting Limited Rehearing Aug. 6, 2003.

      Michael J. Maloney, Maloney, Martin & Mitchell, L.L.P., Houston, TX, and Stevan C. Dittman, Gainsburgh, Benjamin, David, Meunier & Warshauer, New Orleans, LA, for Plaintiffs/Appellants.
    John A. Barrett, William R. Pakalka, Fulbright & Jaworski, Houston, TX, and Donald R. Abaunza, William W. Pugh, III, Thomas P. Diaz, Liskow & Lewis, New Orleans, LA, for Caltex (Philippines), Inc., Caltex Petroleum Corp., Caltex (Asia) Limited, Caltex Oil Corp. (Delaware), California Texas Oil Corp., Caltex Philippines Petroleum Co., Inc., and Caltex Trading and Transport Corp.
    John A. Bolles, Janet Wessler Marshall, Terriberry, Carroll & Yancey, L.L.P., New Orleans, LA, for The Steamship Mutual Underwriting Association (Bermuda) Limited.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR.).
   | tMICHAEL E. KIRBY, Judge.

This case arises from a collision between a Philippine passenger ferry and a Philippine tanker in waters off the coast of the Republic of the Philippines on December 20, 1987. A fiery explosion following the collision resulted in a very large number of deaths and injuries. Ml of the named plaintiffs in this matter are citizens and residents of the Philippines, and none of the named defendants is a Louisiana corporation. However, plaintiffs filed the instant lawsuit in Orleans Parish after discovery revealed that three of the named defendants have business contacts in Louisiana, thereby subjecting them to the personal jurisdiction of the Louisiana courts.

The procedural history of this case is lengthy and complex, but the instant appeal involves only the March 27, 2002 order of the trial court dismissing the lawsuit on forum non conveniens grounds. Citing La. C.C.P. article 123(C), the forum non conveniens article, the trial court ordered that this matter be dismissed conditionally, and further ordered that the plaintiffs file their action in the Regional Trial Court in Manila. The court further stated that the dismissal is conditioned upon allowing for reinstatement of the same cause of action in the same forum in the event a suit on the same cause of action or any cause of action arising out of the | ¡>same transaction or occurrence is commenced in an appropriate foreign forum within sixty days after rendition of the judgment of dismissal, and such foreign forum is unable to assume jurisdiction over the parties or does not recognize such cause of action or any cause of action arising out of the same transaction or occurrence. In its reasons for judgment, the trial court stated: “The Regional Trial Court in Manila is a venue where all plaintiffs can seek redress. It is infinitely more convenient to the plaintiffs.”

In appealing the March 27, 2002 judgment, one of the plaintiffs’ arguments is that La. C.C.P. article 123 requires that a lawsuit conditionally dismissed on the ground of forum non conveniens be reinstated when the foreign forum refuses to assume jurisdiction over the parties. In support of this argument, plaintiffs have filed a motion to supplement the record on appeal with a copy of a judgment issued on July 2, 2002 from the Regional Trial Court, Branch 39, Manila in the Republic of the Philippines. Plaintiffs argue that the Manila court has refused to assume jurisdiction over their claims, so the July 2, 2002 judgment from Manfla is relevant to the issue of whether or not dismissal of their claims on forum non conveniens grounds is appropriate.

Without addressing the contents of the July 2, 2002 Manila judgment, which is attached to plaintiffs’ brief but is not properly before this court at this time, we note that the main problem in this case is that the Civil District Court did not have the opportunity to consider the July 2, 2002 Manila court judgment when rendering its decision on whether this lawsuit should be dismissed on forum non conve-niens grounds. A court of appeal is a court of review. Lorbeck v. Lorbeck, 99-1257, p. 5 (La.App. 4 Cir. 5/23/01), 789 So.2d 656, 659, writ denied, 2001-2342 (La.11/16/01), 802 So.2d 615. It is limited in its review to the evidence submitted and | .^entered into the record at the trial court level. Id. Because the Manila judgment was rendered after the trial court issued its March 27, 2002 judgment, we conclude that it is inappropriate to supplement the record with the Manila judgment at this stage of the proceedings due to the fact that this evidence was not available to the trial court at the time its decision was rendered.

La. C.C.P. article 2164 authorizes this court to render any judgment that is just, legal and proper upon the record on appeal. Considering the special circumstances in the matter at hand, we find that judicial economy requires that this matter be remanded to allow the trial court the opportunity to review the July 2, 2002 Manila judgment and render a new ruling after determining what effect, if any, this foreign judgment has on its decision regarding whether this lawsuit should be dismissed on forum non conveniens grounds. We specifically state that we are not taking any position at this time as to whether or not the Manila judgment should have any effect on the trial court’s decision. Because we are remanding this matter for a new ruling to be rendered by the trial court after consideration of the Manila judgment, we need not address the issues presented in this appeal. The right to appeal the ruling of the trial court on remand is specifically reserved to all parties.

REMANDED.

TOBIAS, J., concurs and assigns reasons.

JJOBIAS, J.,

CONCURS AND ASSIGNS REASONS.

I respectfully concur.

Ordinarily, subsequently occurring events such as the asserted filing by the plaintiffs/appellants in the Philippines in response to the trial court’s ruling and the dismissal of their claims by a Filipino court should not be considered by this court because they are not matters that form part of the record on appeal. That is, as the majority correctly states, this court should not consider the supplemental filings by the plaintiffs/appellants and the attachments thereto because the trial court never considered them in rendering its 27 March 2002 judgment of dismissal for forum non conveniens. Ordinarily, we would rule upon the issues presented in the appeal ^without the supplementations leaving it to the parties thereafter to file appropriate pleadings in the trial court to address the matters contained in the attachments.

However, in this particular case, judicial economy warrants the remand for the trial court to consider what happened in the Filipino courts. La. C.C.P. art. 2164. The trial court can explore the questions that I have as well as any questions that it might have. My questions are, inter alia, (1) why the filings and judgments in the Philippines are written entirely in the English language; (2) if the pleadings and proceedings in the Philippines were not conducted entirely in the English language, where are the original pleadings and the certified English translations; (3) the extent to which the Filipino pleadings were contested by the defendants/appellees; (4) the extent to which the matter was briefed in the Philippines; (5) the extent of appellate judicial review sought by the parties to the Filipino litigation; (6) a brief of the law of the Philippines on the issues; and (7) why the fifing of suit in Louisiana did not interrupt or suspend the prescriptive period under the law of the Philippines.

ON APPLICATION FOR REHEARING

| .MICHAEL E. KIRBY, Judge.

We grant limited rehearing in this matter only to clarify a statement in our original opinion. Our statement regarding personal jurisdiction was an explanation of the plaintiffs-appellants’ allegations and, as the record reflects, the Caltex Defendants-Ap-pellees’ exception of no personal jurisdiction has yet to be heard or ruled on by the trial court. We express no opinion on the merits of that exception.

In all other respects our opinion on original hearing remains in full force and effect.

LIMITED REHEARING GRANTED.


author: LPETTIGREW, J. | T FITZSIMMONS, Judge,

text:
    Leo Joseph BABIN, Jr. v. Shirley Ann Schilling BABIN.
    No. 2002 CA 0396.
    Court of Appeal of Louisiana, First Circuit.
    July 30, 2003.
    Writ Denied Sept. 24, 2003.

      Michael R. Hubbell, Baton Rouge, for Plaintiff-Appellant Leo Joseph Babin, Jr.
    Lisa M. Prater, Baton Rouge, for Defen-danb-Appellee Sylvia Darce.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   LPETTIGREW, J.

In this case, plaintiff seeks review of a judgment whereby the trial court granted visitation to the maternal grandmother, allowing her to spend four hours every three weeks with her deceased daughter’s minor children. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Shirley Ann Schilling Babin (“Shirley”) and Leo Joseph Babin, Jr. (“Leo”) were married on May 9,1981. In 1988, Leo and Shirley adopted one child, Michelle Lynn Babin (“Michelle”), who was born on March 14, 1988. Leo Joseph Babin, III (“Joey”) was born of the marriage on September 19, 1994. In December 1997, Leo filed for divorce, and the parties entered into a stipulation as to various ancillary matters. The parties agreed to joint custody of the children, with Shirley being designated as the domiciliary parent. Leo and Shirley were later divorced in July 1998. During the parties’ separation and after the divorce, Michelle and Joey remained in Shirley’s custody, with Leo exercising reasonable visitation.

According to the record, Shirley had a long history of severe health problems, including two kidney transplants, liver failure, heart problems, and numerous hospitalizations and surgeries. As a result of these health problems, Shirley developed an addiction to prescription drugs, requiring treatment on several different occasions at both in-patient and out-patient treatment facilities. On May 15, 2000, Shirley passed away. Immediately following Shirley’s death, Leo assumed sole physical custody of his children.

On March 21, 2001, Sylvia Daree, Michelle and Joey’s maternal grandmother, filed a rule to establish grandparent visitation, seeking to maintain the “close and loving relationship” she had with her grandchildren prior to Shirley’s death. According to Sylvia’s petition, she had been unsuccessful in her attempts to negotiate a visitation schedule with Leo, who, in Sylvia’s opinion, was doing everything possible to “demean her relationship with her grandchildren.” Sylvia requested “reasonable visitation” with her grandchildren pursuant to La. R.S. 9:344.

|3Leo filed an answer to Sylvia’s petition for grandparent visitation, including in same exceptions raising the objection of no cause of action based on (1) the unconstitutionality of La. R.S. 9:344, on its face and as applied to the facts of this case, and (2) Sylvia’s failure to make an allegation of “serious circumstances” sufficient for the state to exercise its parens patriae power by intervening in the parent-child relationship. The matter proceeded to trial on June 25 and 27, 2001, at which time the court ruled on the constitutional issue, denying Leo’s no cause of action exception based on the facial unconstitutionality of La. R.S. 9:344. The court pretermitted ruling on Leo’s exceptions based on the constitutionality of La. R.S. 9:344 as applied to the facts of the case and based on the failure to allege “serious circumstances.”

After two days of trial, the matter was held over until September 24 and 26, 2001, for the introduction of further testimony. Prior to the trial resuming on September 24, 2001, Leo filed a motion for involuntary dismissal, which was denied as premature. Moreover, on September 24, 2001, the court issued written reasons for judgment, denying Leo’s objection of no cause of action based on the failure to allege “serious circumstances.” The court found that Sylvia was not required, either by statute or jurisprudence, to allege or prove “serious circumstances” in order to prevail in her rule for grandparent visitation. The court also ruled on the appropriate burden of proof required in this case, noting that Sylvia was required to prove, by a preponderance of the evidence, that visitation would be in the best interest of the children.

During the four-day trial of this matter, the trial court considered documentary evidence and the testimony of numerous witnesses in deciding what was in the best interest of Michelle and Joey relative to Sylvia’s request for grandparent visitation. Sylvia testified at length concerning her involvement in her grandchildren’s lives both before and after Shirley’s death in 2000. When asked about her relationship with Michelle and Joey before Shirley and Leo separated, Sylvia responded, “I was a grandmother to them. I loved them. We did things together. I was a part of their life.” Shirley indicated that during that time, she was enjoying retirement and was able to spend a lot of time with the children. When Shirley and Leo separated in 1997, Sylvia testified that she spent as Lmuch time as possible with the children. Although she had returned to work at that time, she would check in with Shirley and the children daily to be sure that things were taken care of. Sylvia indicated that in addition to taking care of things around the house like cooking, cleaning, and laundry, she would also spend time with the children shopping, going to church, and playing games.

After Shirley’s death in May 2000, the children began living with Leo. Although Sylvia and other members of Shirley’s family were initially allowed open and liberal visitation with the children, this changed several months later when Leo began to place restrictions on the visitation. Sylvia described a very strained relationship with Leo during this time and indicated that her visitation with the children, which became very limited, took place only at Leo’s home and under his supervision. Sylvia was not allowed any overnight visitation and was told not to call the children. In fact, Sylvia testified that her phone number was blocked on Leo’s home phone such that she could not even contact Leo without calling him at work. Sylvia also testified about a letter Leo sent her outlining, as she described it, “all [her] misguidings, all [her] faults, how bad of a time he had with Shirley and how [Sylvia had] influenced Michelle for 12 years.” According to Sylvia, this change in Leo’s attitude was due largely in part to the fact that Shirley’s last will and testament named her sister and brother-in-law, Debbie and Glen Smith, as beneficiaries to an IRA and life insurance policy, the only real assets left by Shirley at her death. Shirley’s will also established a trust for Michelle and Joey, with Debbie Smith named as trustee.

Leo testified that initially following his divorce from Shirley, he had liberal visitation with the children and would see them every other weekend. However, according to Leo, as time progressed, Michelle stopped visiting with him on a regular basis. When Shirley’s health began to deteriorate, Leo indicated he was concerned that Shirley could not handle the demands of raising the children. He would often talk to Shirley and Sylvia about the children coming to live with him. Leo stated he even considered filing for custody of the children but ultimately did not because he believed it would “destroy” Shirley as the children were “keeping her alive.”

| ¡^Following Shirley’s death, the children began living with Leo, but visitation with Shirley’s family was “open.” Leo indicated this “open” visitation continued through July, when things between he and Sylvia and Debbie became “uncomfortable.” According to Leo, he was concerned about his children’s financial future and continually asked Debbie for a copy of Shirley’s will. Leo eventually retained the services of a lawyer and was able to secure a copy of the will. Noting that problems escalated concerning the money Shirley left for the children, Leo described a strained relationship with Shirley’s family. Leo believed Sylvia and Debbie were using the money to “drive a wedge between [him] and [his] children.”

Leo stated that when the children would return from visitation with Sylvia, they were both “very undisciplined.” He began placing restrictions on Sylvia’s visitation with the children in September 2000. Leo testified about a letter he sent in September 2000, to Sylvia, Debbie and Glenn Smith, and Lorraine Andresen-McCor-mick, the succession attorney. He described the letter as “outlining a number of concerns [he] had having to do with the children’s spiritual values, the way they were raised, the way they were disciplined, the things that happened to Shirley that they were exposed to, things that [he] felt needed explanation, the fact that the money was not in a trust.” When asked what conditions he placed on the visitation at that point, Leo responded:

I said okay, for now the phone will stay blocked. For now, it will be one person at a time. For now, Sylvia will be the person and you may call me at work and let me know when you’ll be by. You’re to bring no gifts and no money. You’re to visit with Joey and Michelle by talking and playing with them, going to their rooms, let them show you stuff, ask them about school, find games to play or projects to work on.

Leo indicated Sylvia visited with the children two or three times after this letter, but visitation was completely stopped in November 2000. Asked what his reasons were for terminating Sylvia’s visitation rights, Leo stated, “She puts her own concerns ahead of others.”

| fiLeo’s September 20, 2000 letter, which spans over thirty pages, was introduced into evidence for the trial court’s consideration. Noting that he is the “parent, guardian and natural tutor” of his children, Leo stated in this letter that Debbie should “have been honest and forthcoming about the fate of Shirley’s estate by informing [him] as to what would happen regarding [his] children’s financial future.” Leo continued, adding that Debbie’s “reluctance to disclose information pertinent to [his] children’s future, has set a belligerent and non-cooperative tone to these proceedings.”

After considering all of the evidence introduced in this case, the trial court rendered oral reasons for judgment, finding visitation with Sylvia to be in the best interest of the children. The court ordered both Sylvia and Leo to attend counseling with Dr. Allen Taylor and granted Sylvia visitation with the children to start out at four hours every three weeks, working around the children’s schedules. The court further noted that any variation in this visitation schedule would depend on recommendations made by Dr. Taylor. A judgment in accordance with these findings was signed by the trial court on October 25, 2001.

It is from this judgment that Leo has appealed, assigning the following specifications of error:

1. The trial court erred as a matter of constitutional law in its application of the Louisiana Grandparent Visitation Statute (La. R.S. 9:344(A)) by refusing to require a threshold showing of “serious circumstances” to justify the court’s intervention in the parent/child relationship with consideration to Appellant’s constitutionally protected fundamental right of privacy.
2. The trial court erred as a matter of constitutional law in its application of the Louisiana Grandparent Visitation Statute (La. R.S. 9:344(A)) by refusing to require a clear and convincing burden of proof of (i) “serious circumstances” sufficient to justify the court’s intervention in the parent/child relationship and (ii) that such visitation is in the best interest of the children, in light of Appellant’s constitutionally protected fundamental right of privacy.

| STANDARD OF REVIEW

Every child custody case must be viewed in light of its own particular set of facts. Dettman v. Rablee, 2001-1228, p. 5 (La.App. 1 Cir. 9/28/01), 809 So.2d 373, 377. The trial court is in the best position to ascertain the best interest of the child given each unique set of circumstances. Bercegeay v. Bercegeay, 96-0516, p. 5 (La.App. 1 Cir. 2/14/97), 689 So.2d 674, 676. The trial court is vested with vast discre tion in matters of child custody and visitation. Accordingly, its determination regarding same is entitled to great weight and will not be disturbed on appeal unless an abuse of discretion is clearly shown. Stephens v. Stephens, 2002-0402, p. 4 (La.App. 1 Cir. 6/21/02), 822 So.2d 770, 774.

In the instant case, as in most custody cases, the trial court’s determination was based heavily on factual findings. As an appellate court, we cannot set aside the trial court’s factual findings unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel its own evaluations and inferences are as reasonable. Id.

DISCUSSION

Relying on the Supreme Court’s decision in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), Leo challenges the constitutionality of La. R.S. 9:344 and argues that clear and convincing evidence of “serious circumstances” must be presented before grandparent visitation can be awarded. As is discussed more fully | sbelow, this court has previously concluded that La. R.S. 9:344 does not violate the constitutional protections afforded parents. Moreover, we agree with the trial court that Sylvia was not required to allege or prove “serious circumstances” in order to prevail in her rule for grandparent visitation pursuant to La. R.S. 9:344. Accordingly, we find no merit to Leo’s arguments on appeal.

Recently, in Wood v. Wood, 2002-0860, pp. 4-6 (La.App. 1 Cir. 9/27/02), 836 So.2d 568, 571-572, writ denied, 2002-2514 (La.3/28/03), 840 So.2d 565, this court addressed the Supreme Court’s holding in Troxel:

In Troxel, the Supreme Court recognized that one of the byproducts of the changing infrastructure of society at large, and the family unit in particular, is an accommodation in the law for extending visitation to nonparents. While recognizing many benefits of this practice, the Supreme Court rejected any visitation scheme that trampled upon the sacred and paramount rights of a fit parent to dictate the best interests of his or her children. Troxel, 530 U.S. at 63-67,120 S.Ct. at 2059-61.
Specifically, Troxel involved a request by paternal grandparents, following the death of their son, for visitation with two granddaughters born of the relationship between their son and a companion whom he never married. Troxel, 530 U.S. at 60, 120 S.Ct. at 2057. The girls’ mother did not oppose all visitation, but objected to the amount sought by the Troxels. Troxel) 530 U.S. at 61, 120 S.Ct. at 2058. The Troxels’ request for visitation was made under authority of a Washington statute. The statute provided that: “Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.” Troxel, 530 U.S. at 61-62, 120 S.Ct. at 2057-8. The United States Supreme Court found the Washington statute “breathtakingly broad” and declared it unconstitutional as applied. Troxel, 530 U.S. at 67 & 73, 120 S.Ct. at 2060-61 & 2064. In doing so, the justices placed particular emphasis upon parents’ constitutionally protected fundamental right to make decisions concerning their children, the presumption that parents act in the best interest of their children, and the failure of the Washington statute or court to give some “material” or “special” weight to the parent’s own determination on the issue of visitation. Troxel, 530 U.S. at 65-72, 120 S.Ct. at 2060-63. The Supreme Court noted that the contested statute rendered a custodial parent effectively voiceless in deciding what is in the child’s best interest, while simultaneously extending unfettered discretion to the trial, judge to make such a determination. In the opinion of the Troxel court, the Washington statute allowed the trial judge to “disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge’s determination of the child’s best interests.” Trox-el, 530 U.S. at 67, 120 S.Ct. at 2061.

Subsequent to the Troxel decision, this court confronted the issue of nonparent visitation in the context of Louisiana’s two controlling provisions; i.e., La. Civ.Code art. [fl136 and La. R.S. 9:344. In Galjour v. Harris, 2000-2696, p. 9 (La.App. 1 Cir. 3/28/01), 795 So.2d 350, 356, writs denied, 2001-1238, 2001-1273 (La.6/1/01), 793 So.2d 1229, 1230, cert. denied, 534 U.S. 1020, 122 S.Ct. 545, 151 L.Ed.2d 422 (2001), one of the issues raised was the constitutionality of La. R.S. 9:344, which provides, in pertinent part, as follows:

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

In upholding the constitutionality of La. R.S. 9:344, this court concluded that the Louisiana statute was more narrowly drawn than the Washington statute at issue in Troxel and did not violate due process.

The Louisiana legislature has determined that in specified, limited situations, i.e., where one parent dies, is interdicted, or incarcerated, the parents of the deceased, interdicted, or incarcerated party may have reasonable visitation rights with the children provided the court finds said visitation to be in the best interest of the child. Unlike the Washington statute, the Louisiana legislature expressly limited the scope of La. R.S. 9:344 to the parents of the deceased or absent parent. Additionally, the statute’s grant of visitation does not contemplate a significant intrusion upon the child’s relationship with the other parent or interference with said parent’s fundamental right to make childrearing decisions.

Galjour, 2000-2696 at 11, 795 So.2d at 358 (emphasis in original).

In Galjour, this court recognized that the legislature eliminated the burden of showing “extraordinary circumstances,” as is required under La. Civ.Code art. 136(B), when the non-custodial parent is dead, interdicted, or incarcerated. Galjour, 2000-2696 at 7, 795 So.2d at 355. In essence, the legislature made the determination, rather than the court, that the death, interdiction, or incarceration of a parent qualified as “extraordinary circumstances.” Although the nonparent is relieved of one burden, the | innonparent must nevertheless show that the requested visitation is “reasonable” and in the “best interest” of the children. La. R.S. 9:344(A).

Moreover, with regard to the application of La. R.S. 9:344, this court has held there must be a balancing between the provisions of state laws and the constitutional protections afforded parents.

When granting or modifying visitation to a nonparent, the trial court must exercise care not to apply either Civil Code art. 136 or La. R.S. 9:344 in a vacuum. Instead, the trial judge must balance these state provisions against a fit parent’s constitutionally protected fundamental right of privacy in child rearing, and remember that any rights of nonparents are ancillary to that of a fit parent. Troxel, 530 U.S. at 65-73, 120 S.Ct. at 2060-64; Reinhardt v. Reinhardt, 97-1889, p. 5 (La.App. 1 Cir. 9/25/98), 720 So.2d 78, 80, writ denied, 98-2697 (La.12/18/98), 734 So.2d 635, cert. denied, 526 U.S. 1114, 119 S.Ct. 1761, 143 L.Ed.2d 792 (1999). The burden of proof is properly placed on the mover, the nonparent, to meet the legislative best interest requirement. It is the court’s responsibility to balance state requirements with constitutional protections. In considering the best interest of the child, the trial court must be aware that as nonparent visitation increases, the infringement and burden on the parent’s fundamental right of privacy in child rearing increases proportionally. Visitation that unduly burdens parental rights would be unconstitutional, regardless of the provisions of statutory law. [Reinhardt, 97-1889 at 5, 720 So.2d at 80.]

Wood, 2002-0860 at 8-9, 835 So.2d at 573. In granting visitation to Sylvia in the instant case, the trial court offered the following oral reasons for judgment:

The reason I say visitation is in the best interest of the children is because I want them to have a continuity with the family. I want them to know their grandmother. I want them to know their mom through the grandmother and that is a very positive burden that’s put on you. It is not a negative burden. It will only undermine this entire process if you diminish Mr. Babin’s authority, if you cut him down or belittle him in front of the children. That is not the point of my ordering this visitation.
Because of what’s happened in the past, it’s very obvious that the visitation — and I do think and I know that you said no, Mr. Babin, but I do think that the money triggered all of this. I don’t think that it’s a coincidence that the visitation cut off in August and your letter to Ms. Andresen-McCormick came in September, and I’ve looked through the entire document ... and it just comes through loud and clear that the money was the trigger. It may very well be and this is pretty much my take on it, that the money was the last straw to you; that you saw that as the family was just going to run it their way and they were taking the money and they were going to do with the money what they wanted to do and you saw that as the final straw. That may be how it went, but in any event, it was the money.
In With that said, visitation with the minor children has to start slowly because I’m ordering counseling and therapy for each of you. It has to be for the best interest of the children since my goal is to have these children have what is best for them. It’s obvious to me it’s not going to happen without some type of counseling....
Visitation starts off at four hours. It can increase as Dr. Taylor recommends. My goal would be to be at an overnight visitation within six months with the grandparents. The four hours at this point ... would be every three weeks. It would be on a weekend ... [and] around the children’s schedule ....

We have thoroughly reviewed the testimony in the record and the documentary evidence introduced by the parties in the instant case. The standard of review requires that great deference be given to the trier of fact’s findings when those findings are based on determinations regarding credibility of witnesses. Rosell, 549 So.2d at 844. Based on the extensive testimony from Sylvia regarding the length and quality of the relationship she enjoyed with her grandchildren prior to Shirley’s death, and considering the vast discretion given to the trial court, we cannot say the trial court abused its discretion in awarding visitation to Sylvia. The trial court was careful to limit the visitation so as not to be a significant intrusion upon the children’s relationship with their father. Moreover, the court was adamant that Sylvia not do anything to diminish Leo’s authority over the children or undermine his ability to raise the children as he sees fit. Under these circumstances, we do not find that the trial court erred in its determination that visitation with Sylvia was in the children’s best interest. Leo’s arguments to the contrary are without merit.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court is affirmed. All costs associated with this appeal are assessed against plaintiff/appellant, Leo Joseph Babin, Jr.

AFFIRMED.

FITZSIMMONS, J., concurs, and assigns reasons.

GUIDRY, J., concurs in the result.

| T FITZSIMMONS, Judge,

concurring, with reasons.

This is not a dispute between two parents who have an equal right to decide how the child will be raised. The parents’ right to make decisions, such as who the child will see or where the child will live, is a fundamental right protected by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. Troxel v. Granville, 530 U.S. 57, 65-66 & 72-73, 120 S.Ct. 2054, 2060 & 2064, 147 L.Ed.2d 49 (2000). Before a parent’s right to choose his children’s visitors can be infringed, Louisiana Revised Statutes 9:344 A requires a “best interest” analysis. If visitation is granted to extended family, it must be “reasonable” and not overly intrusive of the parent’s right to make decisions for his child. La. R.S. 9:344 A; Wood v. Wood, 2002-0860, pp. 8-9 (La.App. 1 Cir. 9/27/02), 835 So.2d 568, 573, writ denied, 2002-2514 (La.3/28/03), 840 So.2d 565. Although the factors listed in Civil Code articles 134 and 136 may be helpful in conducting a “best interest” analysis, the trial court must conduct the analysis in light of the constitutional protections enunciated by the United States Supreme Court in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000).

Parents, not grandparents, are entitled to a presumption that they act in the “best interest” of their children. Troxel, 530 U.S. 57, 68, 120 S.Ct. 2054, 2061, 147 L.Ed.2d 49 (2000). If a parent provides reasonable care for his child, “there will normally be no reason for the State to inject itself into the private realm of the family ... concerning the rearing of that parent’s children.” Troxel, 530 U.S. at 68-69, 120 S.Ct. at 2061. Thus, in deciding whether grandparent visitation is in the “best interest” of the child, the trial court must afford the objection of the parent “special weight.” Troxel, 530 U.S. at 70, 120 S.Ct. at 2062. Perhaps more importantly, a finding by the trial court that grandparent or extended family visitation is simply a “better” decision, than the decision of the parent to object, is not constitutionally valid. Troxel, 530 U.S. at 72-73, 120 S.Ct. at 2064.

li>For these reasons, I believe that the grandmother’s burden was to overcome the presumption in favor of the parent’s objection to visitation and show why the visitation was in the best interest of the children. From my review of this particular record, in light of the constitutional mandates of Troxel, I find this case to be a very close call. However, after considering the particular circumstances: the death of the mother, the established relationship of the grandmother with the children, and the trial court’s findings concerning some of the father’s motives for objecting, I respectfully agree with the result. My hesitation stems from my belief that this court, as an instrument of the State, must exercise restraint before interfering in child rearing decisions by parents. Of particular concern here is the trial court’s plan, despite a strong parental objection, for future substantial increases in visitation based on the report of a psychologist. In my opinion, extended visitation under the facts here would be overly intrusive and could not pass constitutional muster.

Emotionally, most would agree with the trial court that family continuity is better for a child and believe that extended family can enrich a child’s life. However, we also would not hesitate to recognize a parent’s right to move to another state with his children; a decision that would also interrupt family continuity. The parent’s decision on who his child may visit, including extended family, stems from the same parental right as the decision to move or to choose a particular school. Though painful to the grandparent and the child, that authority should not be infringed by the State based solely on the trial court’s belief in the benefits of an extended family and that visitation is a “better” decision for the child. More must be required as a basis for a grant of visitation in the face of an objection by a fit parent, and limited visitation must be the standard.

Finally, I raise the question of the validity of requiring parents to undergo intrusive counseling whenever a third party seeks to force visitation upon a non-consenting parent. Admittedly, the trial court sees from the pinnacle view. However, in the absence of a troubled child or family, I fear that automatic orders of counseling or testing for the parent impinges upon, or even has a chilling effect on, the parent’s right to make child rearing decisions. If the third party has the burden of proof, should not a prima facie showing be a threshold requirement before the parent must undergo psychological testing? Without good cause, such testing may im-permissibly impinge |3upon not only the parent’s fundamental right to raise his child, but also on the parent’s own right to privacy.

      . Although not an issue before us now, we note from the record that Leo initiated a succession proceeding involving Shirley's estate, making various accusations about Debbie’s Smith's management of the succession.

      . Leo also assigns error to the trial court's denial of his peremptory exception raising the objection of no cause of action and his motion for involuntary dismissal. The judgments denying both of these requests are interlocutory in nature and generally not appealable. However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to the review of the final judgment. See Landry v. Leonard J. Chabert Medical Center, 2002-1559, p. 5 n.4 (La.App. 1 Cir. 5/14/03), - So.2d-, n. 4, 2003 WL 21087973. Nonetheless, having found no merit to Leo's argument concerning these judgments, and for the reasons set forth more fully below, no further discussion of same is warranted.

      . Louisiana Civil Code article 136 provides, in pertinent part, for visitation by nonparents as follows:
      B. Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child....

      . Sylvia alleges in brief that shortly after the trial court rendered judgment in this case, Leo relinquished his parental rights as to Michelle to Michelle’s biological mother. There was also mention of same by Sylvia's counsel during oral arguments before this court. The record is void of any evidence to support this allegation. We note, however, that if Leo has taken this action with regard to his parental rights as to Michelle, then Michelle’s biological mother becomes an indispensable party to this action. Thus, Sylvia may need to pursue further legal action to secure any future visitation with Michelle.


author: I JOAN BERNARD ARMSTRONG, Judge.

text:
    STATE of Louisiana v. Bryan HOSNER.
    No. 2003-K-0534.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 6, 2003.

      Eddie J. Jordan, Jr., District Attorney, Burl Mahl, Assistant District Attorney, New Orleans, LA, For the State of Louisiana.
    Lance J. Robinson, Kenner, LA, for Defendant/Respondent.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR. and Judge LEON A. CANNIZZARO, JR.).
   I JOAN BERNARD ARMSTRONG, Judge.

STATEMENT OF THE CASE

On September 3, 2002 the defendant, Bryan Hosner, was charged with DWI, third offense, a charge to which he subsequently pled not guilty. On March 18, 2003 the court heard and granted his motion to suppress the evidence. The State now comes before this court seeking relief from this ruling. The State supplemented its application with the March 18 transcript, and the defendant has responded. For the following reasons we reverse the ruling of the trial court.

STATEMENT OF THE FACTS

On the evening of April 5, 2002 police officers set up a DWI checkpoint at the corner of Basin and St. Peter Streets. Pursuant to this checkpoint the officers stopped every fifth car. Sometime after 9:00 p.m. they stopped the defendant, who they discovered was not wearing his seat belt. Officer Battaglia, who conducted the stop, testified that in response to his request for the defendant’s driver’s license, registration, and insurance card, the defendant admitted he did not have his driver’s license with him. The officer soon learned the defendant’s license had been suspended. In addition, the officer could smell alcohol on the defendant’s breath. The officer ordered the defendant out of the car, and when the defendant complied lathe officer noticed the defendant had trouble keeping his balance and supported himself by leaning against his car. The officer conducted a field sobriety test, which consisted of various tests including a horizontal gaze and nystagmus test, heel-to-toe walking exercises, and a one-legged stand. The defendant performed poorly on all these tests, and the officer then advised him he was under arrest, advised him of his rights relating to a chemical test, and advised him of his Miranda rights.

Officer Battaglia testified that at first the defendant agreed to submit to an In-toxilizer, and he apparently tried more than once to take the breath test, but the machine was not functioning properly due to the fact that the officers had set up the checkpoint too close to a radio tower, which was interfering with the signal the portable machine needed to send to the main machine elsewhere. He indicated that he and the defendant had filled out a waiver form in connection with the Intoxi-lizer, but when it became apparent that the machine was malfunctioning, that paperwork was destroyed. He testified that another set was completed a few hours later, after the defendant had changed his mind and declined to submit to another Intoxilizer test. The officer admitted that although he advised the defendant of his rights after the defendant performed so poorly on the field sobriety test, he did not reduce this fact to writing. He also indicated that another officer' completed a questionnaire with the defendant, but he insisted this questionnaire was completed after he had advised the defendant of his Miranda rights. The officer testified that he was initially instructed by his supervisor to arrest the defendant only for driving with a suspended license and failure to use a seat belt, apparently awaiting the result of the Intoxilizer test, but when the machine malfunctioned, he also arrested lathe defendant for DWI based upon the defendant’s performance on the field sobriety test.

DISCUSSION

It appears the trial court suppressed the evidence in this case because it believed the officer should have advised the defendant of his rights prior to giving him the field sobriety test. However, as noted by the State in its application, an officer does not have to advise a suspect of any rights prior to conducting a field sobriety test in order to render the results of the test admissible at trial. See State v. Badon, 401 So.2d 1178 (La.1981). As noted by the court in State v. Finch, 31,888, p. 12 (La.App. 2 Cir.5/5/99), 733 So.2d 716, 725:

Furthermore, police officers may testify with regard to the results of field sobriety tests in the absence of proof that the defendant was first advised of his Miranda rights. State v. Badon, 401 So.2d 1178 (La.1981). As discussed in State v. Badon, supra, field sobriety tests are physical evidence and do not activate the protections afforded by the Fifth Amendment. Such tests are based on the relationship between intoxication and the loss of coordination caused by intoxication and do not force test subjects to betray their subjective knowledge through communication. Id. Therefore, we find that the results of the field sobriety tests were properly admitted even though the defendant was not read the Miranda rights prior to the tests.

See also State v. Beeland, 487 So.2d 703 (La.App. 5 Cir.1986).

Here, Officer Battaglia testified that he conducted the field sobriety test after he detected the odor of alcohol on the defendant’s breath and observed the defendant had trouble standing. He testified that he did not advise the defendant of any rights until after the defendant had failed the test. Thus, the officer was not obligated to advise the defendant of his rights prior to conducting the field sobriety |4test. Therefore, the trial court erred by suppressing the results of the field sobriety test.

In his response, the defendant emphasizes the fact that the Intoxilizer form was filled out approximately two hours after he was stopped. Officer Battaglia explained this form was the second form to be completed, after the defendant refused to take the Intoxilizer test again. In any event, because the defendant ultimately refused to take the test, there is no result to be suppressed, and the fact that this form was filled out two hours after the defendant was stopped has no bearing on the admissibility of the results of the field sobriety test, which was conducted shortly after the defendant was stopped.

The final piece of evidence is the questionnaire completed by another officer. Unlike the field sobriety test, which is not testimonial in nature, this questionnaire contained some answers which incriminate the defendant. However, Officer Battaglia repeatedly testified that this questionnaire was completed after he had read the defendant his Miranda rights. At no point did the trial court indicate he did not believe the officer’s testimony. As such, we find that this evidence would also be admissible. See State v. Vigne, 2001-2940 (La.6/21/02), 820 So.2d 533; State v. Jones, 2002-1171 (La.App. 4 Cir. 6/26/02), 822 So.2d 205.

For the foregoing reasons, this writ is granted, the ruling of the trial court is reversed, and the case remanded for further proceedings.

WRIT GRANTED; REVERSED AND REMANDED.