author: | THIBODEAUX, Chief Judge.

text:
    Brandon J. MOURET v. Roxsan GODEAUX.
    No. 04-496.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      David L. Carriere, Opelousas, LA, for Defendant/Appellee, Roxsan Godeaux.
    Howard C. Dejean, Opelousas, LA, for Plaintiff/Appellant, Brandon J. Mouret.
    Court composed of ULYSSES GENE THIBODEAUX, C.J., GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   | THIBODEAUX, Chief Judge.

Appellant, Brandon Mouret, attempted to establish his paternity of Christian Go-deaux, appellee Roxsan Godeaux’s child, through a Petition to Establish Filiation. Godeaux raised several exceptions, including the effect on the continued existence of Mouret’s parental rights of his failure to support or contact Christian. The trial court found that Mouret’s long absence from the child’s life, as well as his lack of support or contribution, constituted abandonment under La.Ch.Code art. 1015, and terminated his parental rights. Mouret appeals, arguing that termination was premature without first ascertaining his biological relationship to Christian.

While we affirm the trial court’s denial of Mouret’s claims for relief, we do so for different reasons than those articulated in the Reasons for Judgment. We recognize on our own motion the failure of Mouret to disclose a cause of action. The Louisiana Legislature recently enacted Article 191 of the Civil Code and La.R.S. 9:395.1 pursuant to 2004 La. Acts No. 530. Louisiana Civil Code Article 191 legislatively provides for an avowal action and a two-year peremptive period to establish paternity. Section three of 2004 La. Acts No. 530 mandates prospective and retroactive application of the Act to all pending and existing claims. Mouret’s petition was filed more than two years from the date of birth of the child. His claim is perempted and his cause of action is vitiated.

I.

ISSUE

We must determine whether the avowal action asserted by Mr. Mouret is perempt-ed and is, therefore, no longer viable as a cause of action.

Jill-

FACTS

Godeaux separated from her husband, Scott Matthew Matt (Matt), in 1993. On March 9, 2001, Godeaux’s petition for divorce was granted. On July 18, 2001, Go-deaux gave birth to a son, Christian. Because she had had a relationship with Mouret, it was possible that Mouret was the biological father of the child. Since the child was born within three hundred days of the dissolution of her marriage, Matt is considered the legal father of Christian. La.Civ.Code art. 185.

Mouret visited Godeaux and the child on a few occasions in the first two to three months immediately after the birth. During one of these visits, Mouret surreptitiously obtained biological samples from the child and had them tested to determine if he was, in fact, the father. Mouret received the test results on October 5, 2001. While the results were not admitted as evidence of paternity, they purport to show that Mouret is the biological father of the child. After receiving the test results, however, Mouret vanished from St. Landry Parish and broke all contact with both Godeaux and Christian. He also wrote a letter to a friend in which he indicated he was contemplating “skip[p]ing out on the next eighteen years on someone that’s a part of me.” The letter was dated October 14, 2001, just after Mouret received the DNA test results. Twenty-one months passed, during which Godeaux and Matt resumed living together as a family in the spring of 2003. Together, they are raising two children, including Christian.

On July 30, 2003, Mouret filed a Motion for Joint Custody and Visitation. In response to Godeaux’s exceptions to his Motion, Mouret filed a Petition to Establish Filiation, seeking to be declared the biological father of Christian and naming both Godeaux and Matt as defendants. On November 7, the trial court heard oral arguments from both sides regarding Go-deaux’s exceptions to the Motion | afor Joint Custody and Visitation and the Petition to Establish Filiation. The court rendered its judgment on December 16, 2003, and ordered termination of Mouret’s parental rights. Mouret now appeals the judgment.

III.

LAW AND DISCUSSION

Although Mouret’s pleading at issue here was styled as a “Petition to Establish Filiation,” the proper proceeding should be an action for avowal. An action for filiation belongs to the child, while an action for avowal belongs to the parent. La.Civ.Code arts. 193-197. Because Mouret’s petition makes clear, however, that his intention is to bring an avowal action, we interpret his petition as an avowal action. Not only does the brief for Godeaux concede as much, but La.Code Civ.P. art. 865 requires us to construe each pleading so as to do substantial justice. Mason v. Kansas City S. Ry. Co., 00-208 (La.App. 5 Cir. 9/26/00), 769 So.2d 1249. Additionally, La.Code Civ.P. art. 854 states that no technical form is required for pleadings. The substance of Mouret’s action relates to avowal, and we construe it as such.

In its Reasons for Judgment on Mour-et’s petition to establish his parental rights in relation to Christian, the trial court declined to consider Godeaux’s exceptions relating to whether Mouret lost his right to assert an avowal action because of his delay in time. The court considered only Godeaux’s arguments relating to termination of Mouret’s parental rights on grounds of abandonment.

Louisiana Children’s Code Article 1015(4) permits termination of parental rights where a parent has abandoned a child. The court found that Mouret had made no significant contributions to Christian’s care and support, and had failed to maintain significant contact with Christian for six consecutive months. Under La.Ch. Code arts. 1015(4)(b) and (c), this constitutes abandonment by the parent, and | ¿the trial court terminated Mouret’s parental rights. The Louisiana Children’s Code, however, makes abundantly clear that only the State or an authorized State official may institute termination proceedings. La.Ch.Code art. 1004. There is no private right of action to terminate another parent’s parental rights, and “[t]here are no circumstances under which one parent may file a petition to terminate the parental rights of another parent.” State ex rel D.M., 00-451, pp. 2-3 (La.App. 4 Cir. 3/14/01), 785 So.2d 857, 858.

Furthermore, these procedural requirements are not flexible. Courts have widely acknowledged the sanctity of parental rights, stating that “[pjarental rights to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law.” State ex rel. A.C.H., 02-1014, p. 4 (La.App. 3 Cir. 2/12/03), 846 So.2d 791, 794, writ denied, 03-566 (La.3/14/03), 839 So.2d 50 (quotation omitted). Thus, termination of parental rights “is one of the most drastic actions the State can take against its citizens.” State ex rel. J.A., 99-2905, p. 9 (La.1/12/00), 752 So.2d 806, 811. As a result, the Louisiana legislature “has imposed strict procedural and evidentiary requirements that must be met before the issuance of a judgment terminating parental rights.” State ex rel. E.C., 99-629, p. 5 (La.App. 1 Cir. 6/25/99), 739 So.2d 318, 321; A.C.H., 846 So.2d 791.

In this case, the trial court did not follow the proper procedures for termination under La.Ch.Code art. 1004. The State, through the District Attorney or the Department, did not petition for termination, nor did the court on its own motion order the filing of such a petition. Finally, neither the court nor the District Attorney authorized a special private counsel to bring such a petition. Rather, the court based its termination of Mouret’s parental rights on an exception raised in Godeaux’s brief. 1 sThis contravenes the strict procedural requirements of termination proceedings, implemented by the legislature to safeguard parental rights.

Ms. Godeaux has filed a Motion to Dismiss the Appeal. This appeal is untimely, she asserts, because La.Ch.Code art. 332 provides for a fifteen-day appeal delay from the signing of a judgment or from mailing a notice of the judgment in a termination of parental rights proceeding. Mouret waited more than fifteen days before filing his appeal. Because we have concluded that this is an improper procedure for terminating parental rights, the provisions of the Children’s Code are not implicated. We, therefore, deny Ms. Go-deaux’s motion.

The Louisiana Civil Code did not previously provide a statutory means by which a biological father may recognize his illegitimate child. Therefore, courts created the avowal action. This judicially created cause of action enabled “biological fathers [to] establish their paternity of their illegitimate children.” Bolden v. Rodgers, 99-417, p. 7 (La.App. 5 Cir. 9/28/99), 746 So.2d 88, 92; Mason, 769 So.2d 1249; T.D. v. M.M.M., 98-167 (La.3/2/99), 730 So.2d 873. Biological fathers “have a right of action to establish their paternity to children born during the mother’s marriage to another man despite the statutory presumption of the husband’s paternity.” Smith v. Jones, 566 So.2d 408, 411 (La. App. 1 Cir.), writ denied, 569 So.2d 981 (La.1990), citing Finnerty v. Boyett, 469 So.2d 287 (La.App. 2 Cir.1985); Smith v. Cole, 553 So.2d 847 (La.1989); T.D. v. M.M.M., 730 So.2d 873; Bolden, 746 So.2d 88. Thus, a biological father could assert an avowal action despite the presumption of Article 184 that the mother’s husband is the father of all children born or conceived during the marriage. This created the potential of “dual paternity,” where the mother’s husband is the child’s legal father, but the biological father may also assert some parental rights. Bolden, 746 So.2d 88. Thus, an alleged biological father such as |fiMouret had the right to assert an avowal action to obtain some parental rights in relation to Christian, even though Matt is the legal father.

The recently enacted legislation, Civil Code Article 191, elevates the judicially-created avowal action to law. Section 1 of the new article permits a man to “establish his paternity of a child presumed to be the child of another man even though the presumption has not been rebutted.” Thus, a man in the position in which Mouret found himself after Christian’s birth may now rely on this statute to establish paternity. Furthermore, Article 191 eliminates the necessity of weighing the father’s commitment to involving himself in his child’s future against the length and reason for his delay in bringing the avowal action in favor of a statutory peremptive period of two years from the child’s birth. Section 1 states that the avowal action “shall be instituted within two years from the date of birth of the child.” The article provides an exception only where the mother has “in bad faith deceive[d] the father of the child regarding his paternity.” Finally, the legislation provides for retroactive application of this two year peremptory period to all pending and existing claims. La. Civ.Code art. 191(3).

Article 191 creates a peremption period, rather than a prescription period, in which a biological father may exercise his right. Louisiana Civil Code Article 3458 defines peremption as a “period of time fixed by law for the existence of a right.” The right ceases to exist at the end of the peremption period. In contrast to prescription, which terminates the ability to enforce the right but permits the continued existence of the right, peremption destroys the underlying legal right if it is not timely exercised. Dufrene v. Video Co-Op, 02-1147 (La.4/9/03), 843 So.2d 1066. Moreover, a peremption period may not be suspended or interrupted. La.Civ.Code art. 3461; Jumonville v. King, 38,235 (La.App. 2 Cir. 4/7/04), 870 So.2d 462. Thus, if a biological father does not bring an avowal action within two years after the birth of the child, his right to bring such an action ceases to exist.

An appellate court has that authority to raise an exception of no cause of action on its own motion. La.Code Civ.P. art. 927. When considering a cause of action, we look to the averments of the petition and accept them as true. La.Code Civ.P. art 931; Gibson v. State, 03-1112 (La.App. 5 Cir. 2/10/04), 866 So.2d 375. The court’s purpose is to determine whether, on the face of the petition, the plaintiff is entitled to the relief sought. Gibson, 866 So.2d 375.

The petitions yield sufficient evidence to resolve whether or not Mouret has a valid cause of action. Christian, the child Mour-et claims to be his own, was born on July 18, 2001. Mouret first initiated legal action in pursuance of establishing paternity on July 30, 2003, when he filed a Motion for Joint Custody and Visitation. Next, in response to Godeaux’s exceptions, Mouret filed a Petition to Establish Filiation on October 2, 2003.

Although neither of Mouret’s actions to assert paternity are an avowal action as such, we understand that this litigation was in substance an avowal action. Even assuming his earliest petition, the Motion for Joint Custody, represents an avowal action, however, it is still untimely. The Iegislation specifically provides for retroactive application to both pending and existing claims. La.Civ.Code art. 191(3). Thus, Mouret filed both his actions outside of the two-year peremption period in which a putative biological father may bring an avowal action. By effect of peremption, Mouret’s cause of action is extinguished.

J¿V.

CONCLUSION

For the above reasons, the judgment of the trial court is affirmed. The avowal action asserted by appellant, Brandon Mouret, is no longer a viable cause of action because it was asserted more than two years after the birth of the minor child, Christian Godeaux. Costs of appeal are assessed to appellant Brandon Mouret.

AFFIRMED.

      . Because 2004 La. Acts No. 530 was enacted during the pendency of this appeal, neither the trial court nor this court has been asked to adjudicate the constitutionality of its provisions.

      . Although. Article 191 contains a limited exception for circumstances in which the child's mother has misled the father regarding paternity, there is no evidence that Ms. Godeaux concealed information about Christian from Mr. Mouret. Rather, Mr. Mouret deliberately chose not to pursue information he himself obtained about his possible biological relationship with Christian. Additionally, Mr. Mouret does not suggest that Ms. Godeaux is responsible for his failure to contact or bond with Christian. The record does not indicate that she hampered his attempts to visit with the child, nor does it suggest she actively or passively created a misimpression about the child’s paternity.


source: Caselaw Access Project

author: h SAUNDERS, J.

license: Public Domain

text:
    Debra Parish PHILMON v. Jake C. PHILMON.
    No. CA 04-673.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Walter Marshall Sanchez, Attorney At Law, Lake Charles, LA, for Defendanf/Ap-pellee Jake C. Philmon.
    Kathleen Kay, Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant Debra Parish Philmon.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and OSWALD A. DECUIR, Judges.
   h SAUNDERS, J.

Issues before the court arise out of a community property partition in which Mrs. Haymark seeks the rental value of the home for the period during which Mr. Philmon resided in the home. Mr. Phil-mon seeks reimbursement for mortgage payments he made on the home between February 2001 until June 2003. Moreover, the trial court appointed an appraiser to value the home and Mrs. Haymark challenges that action by the court.

FACTS

Debra Haymark and Jake Philmon were married on June 2, 1972. After twenty-eight years of marriage, the couple divorced on August 4, 2000. In Mrs. Hay-mark’s petition for divorce, she requested the use and occupancy of the family home, which the court granted. She also requested interim spousal support. Mr. Philmon was ordered to pay interim spousal support in the form of the mortgage payment, the van note and $350.00 cash per month. Once the van note was paid in full, Mr. Philmon would then pay $600.00 a month plus the mortgage. In that agreement, she waived her right to reimbursement of the mortgage payment, and he waived his right to rental reimbursement. The interim spousal support was set to terminate on January 31, 2001. Upon termination, she requested final periodic support, which the court granted to last until some point in 2004. The final periodic support no longer provided for Mr. Phil-mon to pay the mortgage payment on the family home as part of the support award. The amount ordered was less than the mortgage payment on the home. In February 2001, Mrs. Haymark left the family home, and that same month, Mr. Philmon moved into the family home. On March 30, 2001, she requested that Mr. Philmon be awarded use and occupancy of the family home and that she be | ggranted the fair rental value for his use of the home. The parties agreed to defer these issues to the community property partition.

The trial on the community property partition was held on June 18, 2003, and disposed of all the issues except (1) the fair market value of the home, (2) Mr. Phil-mon’s entitlement to reimbursement for mortgage payments made between February 1, 2001 through June 18, 2003, and (3) Mrs. Haymark’s entitlement to rental value of the home during Mr. Philmon’s occupancy. Mrs. Haymark’s appraiser, David Bordelon, appraised the fair market value of the home at $158,000.00. Mr. Philmon’s appraiser, Michael Mitchell, appraised the home at $134,000.00. In September 2003, in the written reasons for judgment, the court granted Mr. Philmon mortgage payment reimbursement, denied Mrs. Hay-mark’s request for rental reimbursement, and appointed an appraiser to set the value of the home. The court appointed appraiser valued the home at $115,000.00.

PROCEDURAL HISTORY

The parties were divorced on August 4, 2000. On September 23, 2003, the trial court denied the plaintiffs claim for rental reimbursement, granted the defendant’s request for reimbursement of mortgage payments, and appointed an appraiser to value the home without affording an opportunity to the parties to cross examine the appraiser. The plaintiff filed a timely suspensive appeal on April 2, 2004.

ASSIGNMENT OF ERRORS

1) The plaintiff argues that the trial court erroneously concluded that Haymark was not entitled to rental value on Philmon’s use of the family home from time of his occupancy until date of the trial of the partition.

2) The plaintiff contends the trial court erroneously allowed Philmon a reimbursement of mortgage payments made after termination of the [..¡community.

3) The plaintiff contends the trial court erroneously appointed an expert without issuing a rule to show cause as required by La.Code Evid. art. 706, after the close of evidence, and ordered that the value assigned by that expert would be the value found by the court without allowing any party an opportunity to cross-examine the expert.

LAW AND ANALYSIS

Findings of the trial court are reviewable on appeal, and the third circuit’s requisite standard of review has been clearly established. A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

ASSIGNMENT OF ERROR NUMBER ONE

The plaintiff requests this court to reverse the trial court’s finding that rental reimbursement was not appropriate. The starting point for determining whether rent is appropriate is La.R.S. 9:374(C), which provides:

A spouse who uses and occupies or is awarded by the court the use and occupancy of the family residence pending either the termination of the marriage or the partition of the community property in accordance with the provisions of R.S. 9:374(A) or (B) shall not be liable to the other spouse for rental for the use and occupancy, unless otherwise agreed by the spouses or ordered by the court.

McCarroll is the leading Louisiana Supreme Court authority interpreting this statute. McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280. In McCarroll, the court stated, “... that rental payments may not be retroactively assessed under La.R.S. 9:374(C) unless otherwise agreed by the spouses or ordered by the court.” Id. at 1289.

In the present case, Mrs. Hay-mark abandoned her court ordered use of the family home in February 2001, and Mr. Philmon, as co-owner, moved in. Mr. Philmon moved into the home prior to Mrs. Haymark’s petition to place him in possession of the home. According to La. R.S. 9:374(C), rent is not assessed retroactively. “Once the community of acquets and gains is dissolved by separation, the spouses become co-owners in indivisión of the marital home.” Kline v. Kline, 98-1206, p. 5 (La.App. 3 Cir. 2/10/99), 741 So.2d 670, 672.

The use and management of a thing held in indivisión is determined by agreement of all the co-owners. A co-owner is entitled to use the thing held in indivisión according to its destination, but he cannot prevent another co-owner from making such use of it. Nevertheless, it is well established that a co-owner need not pay rent to another co-owner for his exclusive use of the co-owned property.

McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280, 1289 (citations omitted.)

Once Mrs. Haymark abandoned the home, she could not prevent Mr. Phil-mon from using or occupying the property. As co-owners, once her use ended by her own choice, he had the right to step in and use the property regardless of her request to the court to grant him the use of the property. As a co-owner, Mr. Philmon does not need the court’s permission to occupy abandoned co-owned property.

This right of co-owners to possession of the property being equal and co-extensive, neither becomes indebted to the other for his personal occupancy and enjoyment, save, probably, that a co-owner, who has Isbeen deprived of the right of possession by reason of his co-owner’s exclusive occupancy, may claim damages from the date upon which he has demanded occupancy and has been refused by the possessor.

Id. at 1290 (citations omitted).

Under the principles enunciated in Juneau, a co-owner in exclusive possession may be liable for rent, but only beginning on the date another co-oimer has demanded occupancy and has been refused. This underlying principle amply supports the requirement that for the assessment of rent under La.R.S. 9:374(C), there must be an agreement between the spouses or a court order for rent contemporaneous with the award of occupancy.... Public policy also weighs heavily against the retroactive award of rent under La.R.S. 9:374(C). As is plainly illustrated by the case sub judice [Juneau], when the community is not partitioned for many years, the retroactive assessment of rent is extremely prejudicial to the occupying spouse. Such retroactive assessment deprives the occupying spouse of the ability to make an informed and meaningful decision regarding his or her finances and housing budget. There is no corollary prejudice to the non-occupying spouse under this interpretation of the statute, since that spouse has the ability to invoke a court proceeding to determine occupancy and rent at any time. La. Civ.Code art. 105.

McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280, 1290.

Mrs. Haymark willingly and voluntarily left the family home. From that date, she never demanded to re-occupy the home, but rather requested the court to grant Mr. Philmon the right to occupy the home. Therefore, we affirm the trial court’s decision to deny the plaintiffs request for rental reimbursement for the defendant’s use of the home while the home remained community property.

ASSIGNMENT OF ERROR NUMBER TWO

The plaintiff requests that this court reverse the trial court’s decision to grant Mr. Philmon mortgage payment reimbursement. In February 2001, Mrs. Haymark abandoned her court ordered use and occupancy of the family home. Upon her abandonment, Mr. Philmon, as co-owner, asserted his right to use and occupancy by [(¡moving into the home. From February 1, 2001 through June 18, 2003 (date of partition where he was awarded the home) he lived in the home, maintained the home and paid all mortgage payments, and also paid Mrs. Hay-mark’s final periodic support.

Mrs. Haymark contends that Sheridon supports disallowance of reimbursement for mortgage payments, however, this reading of Sheridon is incorrect. Sheridon v. Sheridon, 03-103 (La.App. 3 Cir. 2/4/04), 867 So.2d 38. In Sheridon, the court allowed Mrs. Sheridon to receive reimbursement for mortgage payments made from October 5, 1999 until November 15, 2001 (period from the date Mrs. Sheridon filed for divorce until the date of partition). The court disallowed the reimbursement of mortgage payments made from November 15, 2001 until August 15, 2002 (the date of partition to the date of judgment). The portion of the opinion Mrs. Haymark quotes pertains to reimbursement for payments made on a community movable and does not pertain to a community immovable.

Mr. Philmon maintained the family home and paid all the mortgage payments from February 2001 through June 2003. This time period is prior to the community partition and as such, the home remained community property. The Sheridon case supports our decision today as they allowed reimbursement for the period the home was community property, but disallowed reimbursement for the period of time following the partition. Therefore, we affirm the trial court’s decision to award the defendant reimbursement for mortgage payments made on the family home from February 2001 until June 2003.

ASSIGNMENT OF ERROR NUMBER THREE

Both Mrs. Haymark and Mr. Philmon supplied the court with a detailed 17appraisal of the home. Mr. Philmon enlisted Michael Mitchell to appraise the home and his appraisal, conducted on March 15, 2001, valued the home at $134,000.00. Mrs. Haymark hired Broker’s Price to conduct an appraisal. The home was appraised at $158,000.00 on June 10, 2003. There is a difference of $24,000.00 between the two appraisals. The trial court did not consider either appraisal, but merely took note of the two and after trial ordered an independent appraisal. This appraisal was ordered to be accepted as the court approved valuation of the home.

Louisiana Code of Evidence article 702 provides when expert testimony may be used. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Also, Louisiana Code of Evidence article 706(A) provides when the court may appoint an expert.

In a civil case, the court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless he consents to act. A witness so appointed shall be informed of his duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have the opportunity to participate. A witness so appointed shall advise the parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party.

Mrs. Haymark contends and Mr. Philmon concedes that the court abused its discretion by ordering an expert without an order to show cause. She also contends that the court abused its discretion when it ordered that the expert’s appraisal would be the value accepted by the court, thus, denying the parties an opportunity to cross ^examine the expert. “Moreover, that expert, as any other expert, clearly should be subject to cross examination by the parties. Otherwise, ... the report is objectionable and inadmissible as hearsay. The authority of the trial court ... however broad, does not include the right ex parte to consider evidence obtained without affording the parties the opportunity of cross examination.” Petroutson v. First Nat’l Bank of Jefferson Parish, 631 So.2d 1172, 1174 (La.App. 5 Cir.), writ denied, 635 So.2d 1113 (La.1994). Dufhilo states “[although La.C.E. art. 706(A) does not so provide, it seems to us that fundamental fairness requires that a court-appointed expert should be subject to cross-examination.” Dufhilo v. D’Aquin, 615 So.2d 522, 526 (La.App. 3 Cir.1993).

The trial court did not afford the parties an opportunity to cross examine the court appointed expert. We therefore reverse the trial court’s appraisal of $115,000.00 and based on the evidence, we will set the value of the home.

When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to preter-mit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo. Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993).

Mr. Philmon had the home appraised on March 15, 2001, and it was appraised at $134,000.00. More than two years later, Mrs. Haymark had the house appraised and it was valued at $158,000.00. During this two-year period, Mr. Philmon had performed numerous improvements on the home. He painted the kitchen, changed the bathroom fixtures, and had the sheet rock repaired. Wallpaper was added, tile installed and carpet was installed in the living room, the four bedrooms, the hall and the closets. The total costs of improvements was $7,468.65. These improvements 13added value to the home over that of the first appraisal of $134,000.00 and, as such, equity would dictate that the costs for improvements should be deducted from Mrs. Haymark’s appraisal. Deduction for the costs of improvements from Mrs. Haymark’s appraisal reduces her appraised value to approximately $150,000.00. The difference between the two appraisals is now $16,000.00. We grant equal weight to the two appraisals and therefore set the value of the home at $142,000.00.

CONCLUSION

We affirm the trial court’s denial of rental reimbursement to Mrs. Haymark, and affirm the decision to grant Mr. Phil-mon mortgage payment reimbursement. We reverse the trial court’s decision to appoint an appraiser and adopt that value as the value of the home, and thus set the value of the home at $142,000.00. Costs of this appeal are to be split between the parties, with Mrs. Haymark paying 2/3 of the costs and Mr. Philmon to pay 1/3 of the costs.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.


author: hSAUNDERS, J.

text:
    Fred Lee PERKINS v. WURSTER OIL CORP., et al.
    No. CA 04-692.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      John Craig Jones, Attorney at Law, Oakdale, LA, James David Cain, Jr., Lun-dy & Davis, Lake Charles, LA, for Plaintiff/Appellant Fred Lee Perkins.
    David R. Rabalais, Attorney at Law, Lafayette, LA, for DefendanVAppellee Wurster Oil Corp.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and OSWALD A. DECUIR, Judges.
   hSAUNDERS, J.

The issues on appeal to this court arise from an accident occurring when Plaintiff was filling his automobile with gasoline. Fred Perkins stopped at a gas station to fill his truck. While the process was ongoing, static electricity ignited the fuel vapors. Mr. Perkins was burned by the fire and filed suit alleging that he was never warned of the dangers of static electricity and that the pump was improperly grounded.

FACTS

The facts of this case are largely undisputed. On March 4, 2000, Fred Perkins stopped at a convenience store in Oakdale, Louisiana, the “Stop & Shop,” to fill his truck with gasoline. Mr. Perkins was accompanied by Corey Fontenot and Josh Domingue. Upon arrival at the Stop & Shop, Plaintiff pulled up to a pump and turned off his truck. Mr. Fontenot went inside to pay for $15.00 worth of gas and Plaintiff got out of the vehicle to begin pumping the gasoline. Mr. Perkins put the nozzle into his tank and engaged the automatic dispenser level. As the fuel was being pumped, Plaintiff re-entered the cab of the truck. Apparently, he sat down to flip through some of his compact discs. When the gauge on the pump reached $13.00, Plaintiff got out of the vehicle so that he could stop it at $15.00.

Plaintiff claims that he touched the bed of his truck before he reached for the nozzle; however, Defendant contests this allegation. Essentially, this is the only disputed fact in the case. Plaintiff then reached for the nozzle and a spark ignited the gas vapors. Both parties agree that the spark was caused by static electricity. Plaintiff then jerked the hose away from his truck and he was sprayed with gas and caught on fire. Because he was trapped between the open truck door and the flames [gat the rear of his truck, Plaintiff crawled through the vehicle to the other side. A bystander pushed him to the ground and extinguished the flames.

The fire produced a small area of third degree burns surrounded by an area of second degree burns with first degree burns at the edges. Plaintiff was treated twice at Oakdale Community Hospital before beginning treatment at the LSU Burn Center in Shreveport on March 7, 2000. After his initial visit to Shreveport, Plaintiff returned to the burn center once a week for follow-up examinations and dressing changes. By the beginning of May 2000, the majority of Plaintiffs wounds had healed. The area of skin covered by third degree burns, however, had not. Plaintiff underwent skin graft surgery to replace that area on May 8, 2000 and has permanent scars from the burns.

PROCEDURAL HISTORY

Suit was filed against Wurster Oil Corporation, Petron Inc., and Trinity Universal Insurance Company on September 16, 2001. Plaintiff alleged that the static electricity emanated from the pump and that Defendants failed to warn him of the dangers posed by static electricity. Trial on the merits began on December 1, 2003 in the Thirty Third Judicial District Court. The jury found in favor of Defendants and a judgment to that effect was signed on January 2, 2004. Plaintiff filed a Motion for New Trial and a Motion for JNOV, both of which were denied. Plaintiff has now appealed.

ASSIGNMENTS OF ERROR

1) The jury’s findings of fact were “manifestly erroneous.” The record reflects that there is no reasonable factual basis for the findings of the 13trial court. The record establishes that the findings of the trial court regarding the liability of the Defendants, Wurster Oil and Petron, Inc., is “clearly wrong.”

2) The trial judge committed reversible error as a matter of law in not instructing the jury regarding the doctrine of res ipsa loquitur. Failure of the trial judge to properly instruct the jury contributed to the verdict, for the jury charges as a whole did not adequately provide the correct principles of law as applied to the issues framed in the pleadings and presented at trial so as to properly guide the jury in its deliberations.

3) The trial judge erred in failing to strike the testimony of James Roberts and admonishing the jury to disregard his testimony after he testified regarding documents (blueprints/schematics) of the subject pump and gas dispensing system after the Defendants were sanctioned for failing to comply with a judgment on Plaintiffs Motion to Compel in failing to produce these documents, which were the basis of Mr. Roberts’ testimony which constituted unfair surprise and trial by ambush.

4) The trial judge erred by denying Plaintiffs Motion for JNOV and/or New Trial based upon Defendants’ complete disregard for the rules of discovery and in failing to produce documents that Plaintiff sought pre trial, including blueprints and schematics upon which Mr. Roberts’ testimony was based. Defendants were ordered to comply with Plaintiffs Motion to Compel and, thereafter, were sanctioned for violating the Court’s judgment on Plaintiffs Motion to Compel. In |4addition, the evidence, as a whole, clearly established the Defendants’ liability for the fire that caused Plaintiffs injuries.

LAW AND ANALYSIS

The standard of review for findings of the trial court has been clearly established in this circuit. A court of appeal may not set aside a judge’s factual finding unless that finding was manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t Of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112. Furthermore, when reviewing questions of law, appellate courts are to determine if the trial court’s ruling was legally correct or not. Cleland v. City of Lake Charles, 01-1463 (La.App. 3 Cir. 3/5/03), 840 So.2d 686, writ denied, 03-1380, 03-1385 (La.9/19/03), 853 So.2d 644, 645. Because our holding regarding Plaintiffs second assignment of error pretermits a discussion regarding other assignments, we will address it first.

ASSIGNMENT OF ERROR NUMBER 2

In Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654 (La.1989), on rehearing, our supreme court examined the doctrine of res ipsa loquitur. That court explained that res ipsa loquitur permits a factfinder to examine the circumstances surrounding an incident and infer negligence on the defendant’s |Rpart. Id. It assists a plaintiff in presenting a prima facie case when direct evidence is not available. Id. For res ipsa loquitur to apply, “the injury must be of the type which does not ordinarily occur in the absence of negligence.” Id. at 666. This means that a person of ordinary experience would, given the nature of the incident, infer negligence. Id. Knowledge common to the community is the basis for determining if the injury is one from which an ordinary person would infer negligence. Id.

In addition to establishing that the injury suffered does not normally occur in the absence of negligence, a plaintiff must show that the negligence of someone other than the defendant is not a more probable cause of the injury and that the negligence was within defendant’s duty to the plaintiff. Id. A showing that the injury causing instrumentality was under the defendant’s control is generally sufficient to demonstrate that the defendant’s negligence was within the scope of his duty to the plaintiff. Id.

In Cangelosi, the supreme court also set forth the criteria trial courts are to use when determining whether or not to instruct the jury on the doctrine of res ipsa loquitur. Id. The trial judge should give a res ipsa instruction if he finds that reasonable persons could reach different conclusions regarding the negligence of the defendant as implicated by the circumstances surrounding the event. Id. Stated another way, the trial judge must instruct on res ipsa unless “the facts and inferences point so strongly and overwhelmingly in favor of one party that reasonable men could not arrive at a contrary verdict.” Id. at 666-67. It is the jury’s job to decide if the inference permitted by res ipsa loquitur should be drawn. Id.

In Granger v. Guillory, et al., 01-1639, 02-83 (La.App. 3 Cir. 6/5/02), 819 So.2d 477 writ denied, 02-1841, 02-1826 (La.10/4/02), 826 So.2d 1132, this court examined the supreme court’s decision in Cangelosi. We noted, as did the supreme court in Cangelosi, that res ipsa loquitur is a rule of circumstantial evidence that fills the gap in a negligence case when there is no direct evidence available to the plaintiff. Id.

We believe that res ipsa loquitur is applicable to the current matter. First, we conclude that the injury suffered by Plaintiff does not occur in the absence of negligence. Frankly, people are not supposed to burst into flames when they put gas in their vehicles. Additionally, due to the conflicting nature of the evidence presented at trial, we find that reasonable people could reach different conclusions regarding Defendants’ possible negligence. Accordingly, we feel that the trial judge erred in not instructing the jury on res ipsa loqui-tur. Because we believe that this error of law skewed the findings of material fact and pretermits other issues on appeal, we will render judgment based upon the record before us after applying the corrected law and determining the essential facts de novo. Lasha v. Olin Corp., 93-0044 (La.10/18/93), 625 So.2d 1002.

We must first decide whether the inference of negligence permitted by res ipsa loquitur should be made. This determination must be based upon an examination of the factors set forth by the supreme court in Cangelosi and applied by this court in Granger. First, this injury does not normally occur in the absence of negligence. Ordinary experience tells us that people generally do not emit sparks, ignite fuel vapors, and catch on fire when using a gasoline pump. Being set on fire while 17performing a task as routine as fueling a vehicle indicates that someone must have been negligent. Second, in order to warrant the res ipsa inference, Plaintiff must sufficiently exclude his own responsibility for the accident. The supreme court has determined that, unless the “facts and inferences point so strongly and overwhelmingly” in Defendants’ favor, the finder of fact should determine whether or not the res ipsa inference is proper. Cangelosi, 564 So.2d at 666-67. We believe Plaintiffs testimony that he touched the bed of his truck before reaching for the nozzle is sufficient to shift the burden to Defendants. The facts and inferences in this matter simply do not overwhelmingly favor Defendants. Finally, Defendants’ negligence must be within the scope of his duty to Plaintiff. The fact that Defendants were in exclusive control of the gasoline pump indicates that Defendants’ negligence was, in fact, within the scope of the duty to Plaintiff.

In addition to the fact that we believe this injury does not happen in the absence of negligence, we find that the res ipsa inference is appropriate because some of the physical evidence bearing on this case was either destroyed or discarded. Defendants maintain that they had the entire pumping apparatus, from the ground to the tip of the nozzle, tested four days after the incident and no defects were found. By the time Plaintiff secured an expert and had him travel here to examine the pumping apparatus, the hose, swivel and nozzle had been removed and discarded. Defendants were sanctioned for the spoliation of this evidence. Defendants attempt to explain these actions by claiming that Plaintiff never requested this evidence be preserved; however, we find this unpersuasive. First, Defendants should be aware that this evidence should have been made available to Plaintiff. Second, if the tests run by | sDefendants truly did indicate that they were not liable for the accident, why would they not want to preserve this evidence? Res ipsa loquitur is a rule of circumstantial evidence available to a plaintiff when direct evidence is not present. Based on our belief that this type of accident doesn’t occur in the absence of negligence and the lack of direct evidence, we infer negligence on Defendants’ part. After inferring negligence, we will examine the facts to determine if this inference was rebutted. Both parties agree that the spark causing the fire occurred in the area where Plaintiffs hand touched or got closest to the nozzle. The spark must have emanated from this area because static electricity can only jump, or arc, over a very small distance. Accordingly, the most logical place for this to occur was between Plaintiffs hand and the nozzle because they were in very close proximity, if not touching. While they agree on where the spark arose, the parties disagree on its source. Plaintiff blames an improperly ground dispensing system but Defendant argues that the spark resulted from the build up of static electricity on Plaintiff while he was in the truck during the fueling process.

Plaintiffs expert, Mike Schultz, examined Mr. Perkins’ truck and determined that its fuel system was not the cause of the static spark. Additionally, Mr. Schultz examined the fabric on the interior of the truck as well as Plaintiffs clothes to determine if either produced the static electricity. He found both materials to be poor conductors of electricity; therefore, he excluded them as possible sources of the static electricity. This left the dispensing-system as the only possible source of the electric charge. In further support of his contention, Mr. Schultz noted that there was no spark when Plaintiff initially approached the pump. If Plaintiff was the source of the | flelectricity, Schultz concluded, he would have felt a spark the first time he got out of his truck. Accordingly, Mr. Schultz surmised that the static electricity originated in the dispensing system. This conclusion is in harmony with the fact that gasoline, by virtue of its physical properties, generates significant amounts of static electricity as it flows through pipes. Mr. Schultz’ testimony that static electricity is created when gas flows through a closed system, such as a gas pump, was uncontradieted; therefore, it is logical to assume that the dispensing system was the source of the static electricity resulting in the spark.

Plaintiff also claims that when he exited the vehicle for the second time he put his hand on the bed of the truck before reaching for the nozzle. This is significant because if, in fact, static electricity built up on Plaintiffs person it would have dissipated when he touched the metal bed of the truck. This means that if static electricity was present it could only have come from the gas pump. Defendants argue that Plaintiff is lying about this fact in order to establish liability on their part. Given the circumstances of Plaintiffs initial exit from the vehicle, we find this debate to be irrelevant. Plaintiff left the door to his truck open and only had to touch the non-metallic instruments to open his door and exit the vehicle. Plaintiff, however, never experienced a static electricity spark, or arc, at any time when he initially exited the vehicle. Therefore, even assuming Defendants are correct and Plaintiff did not touch the bed when he exited the second time, they offer no explanation as to why static electricity would have built up on Plaintiff while sitting in his truck during the fueling process but not when driving to the station. The only difference between the first and second time Plaintiff approached the pump is that gas was flowing through it the Imsecond time. It has already been established that this process generates static electricity.

Defendants called only one witness on their behalf who addressed the static electricity issue. James Roberts, a maintenance supervisor for Petron, Inc., offered no explanation regarding the fact that Plaintiff experienced no static spark or arc when he initially exited his vehicle. Rather, he testified that he checked the electrical continuity of the pump four days after the accident. Mr. Roberts claims that the entire system was continuous, meaning that static electricity could not have built up because the pump was properly grounded. Again, it should be noted that Plaintiff was never able to test the entire system, or even just the hose, swivel and nozzle, for electrical continuity. Mr. Roberts further testified that, if the pump had not been properly grounded, it may have exhibited technical problems. No such problems were reported on the day of the accident. We find that this testimony falls short of explaining the aforementioned discrepancy regarding the fact that Plaintiff did not experience any static electricity when he originally left his vehicle, which would be expected if he were the source of the static. Unfortunately, we cannot be certain because the evidence is not available.

Even if the pump itself was not the source of the static spark, as contended by Defendants, they must nevertheless bear responsibility because Plaintiff was never warned that it was possible for static electricity to accumulate on his person and ignite-' the gasoline vapors. The evidence indicates that the pump contained a warning against smoking and leaving the vehicle running. There was no warning, however, regarding the possibility that the person using the pump could, themselves, be a Insource of fire when fueling their vehicles. Business customers are invitees and, as such, are owed ordinary care. Alpha Alpha, Inc. v. Southland Aviation, 96-928 (La.App. 3 Cir. 7/9/97), 697 So.2d 1364. Accordingly, if it is possible for customers to generate a charge that will ignite gas vapors simply by sitting in their cars, they should be warned. The common experience of the motoring public simply does not comprehend that motorists can ignite such a dangerous fire by merely sitting in their vehicles. Here, Plaintiff contends that it is extremely unlikely that he was the source of the spark given the fact that both his clothing and the interior of his truck are poor conductors of electricity. Regardless of whether or not Plaintiff is correct, he should have been warned if this danger exists. Not only would such a warning protect Plaintiff, it would protect everyone else on the premises because a gasoline fire at a gas station puts everyone there in extreme danger.

When the gravity of harm that may be suffered in these situations is considered, it becomes obvious that a reasonably prudent owner of such equipment would warn of this danger, regardless of how remote it might be. The victim basically bursts into flames when this hazard is realized. Furthermore, everyone on the premises is endangered because of the volatile nature of gas fires. Accordingly, it becomes apparent that inviting people to use your gas pumps but not informing them that merely sitting in their car could lead to this kind of situation is a breach of the duty of ordinary care.

After finding Defendants liable for the injuries sustained by Mr. Perkins, we now turn to the apportionment of damages. As owner of the pump at issue in this matter, Petron had the duty to guarantee that the pump was in working order and to 112warn customers of potential hazards associated with its use. Due to the fact the Defendants discarded some of the physical evidence in this matter without all parties having the opportunity to examine it, it is impossible to definitively determine whether Plaintiff or the pump was the source of the static electricity. It is clear, however, that no warning was provided to Plaintiff. Petron is responsible for placing appropriate warnings on their own pumps; therefore, we conclude that Petron is entirely at fault. Plaintiff has incurred $11,025.05 in past medical expenses and faces future medical costs of $9,693.00 for surgery and related treatments to repair the damaged portions of Plaintiffs skin. Additionally, we award Plaintiff general damages for past and future pain and suffering in the amount of $150,000.00.

CONCLUSION

We reverse the trial court’s decision refusing to instruct the jury on res ipsa loquitur. This error skewed the jury’s verdict; therefore, we conducted a de novo review of the record. We find in favor of Plaintiff and award $11,025.05 for past medical expenses, $9,693.00 for future medical expenses, and $150,000.00 for past and future pain and suffering. All costs of this appeal are to be assessed against Pe-tron, Inc.

REVERSED.

COOKS, J., concurs in the result.


author: I,SCOFIELD, Judge.

text:
    Dexter BENJAMIN v. LAFAYETTE PARISH SCHOOL BOARD.
    No. 2004-723.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Dexter Benjamin, In Proper Person, Lafayette, LA, for Plaintiff/Appellant, Dexter Benjamin.
    L. Lane Roy, Dawn L. Morris, Preis, Kraft & Roy, Lafayette, LA, for Defendant/Appellee, Lafayette Parish School Board.
    Court composed of JIMMIE C. PETERS, MICHAEL G. SULLIVAN, and JOHN B. SCOFIELD, Judges.
   I,SCOFIELD, Judge.

Claimant, Dexter Benjamin, appeals a decision of an Office of Workers’ Compensation Judge (WCJ) in favor of Defendant, the Lafayette Parish School Board, dismissing Claimant’s petition for additional benefits past December 2002, when Claimant’s treating physician opined that Claimant had reached maximum medical improvement. We affirm the decision of the WCJ.

PROCEEDINGS BEFORE THE WORKERS’ COMPENSATION JUDGE

The WCJ, after carefully and thoroughly considering all the evidence and testimony, issued the following “REASONS FOR JUDGMENT,” with which we agree and adopt as our own (emphasis ours):

This matter came for trial on the issues of whether the claimant’s current left arm complaints are related to his 1996 work accident and whether the employer properly terminated workers’ compensation indemnity benefits as of January 28, 2002. For the reasons that follow, the Workers’ Compensation Judge (‘WCJ”) finds in favor of the employer on both issues.
In June 1996 Dexter Benjamin (“Benjamin”) was employed as a custodian with the Lafayette Parish School Board (“School Board”). On or about June 3, 1996, he slipped and fell while working resulting in injuries to his neck and back. The current claim concerns impingement tendonitis at the left shoulder. That diagnosis was not made until some two years after the 1996 accident and after an intervening motor vehicle accident in January of 1998. Therefore, the development of shoulder symptoms must be viewed both before and after the January 1998 accident.
Immediately after the 1996 accident, Benjamin treated with Dr. St. Cyr and Dr. Nickerson. The parties did not provide those initial records of treatment so the WCJ has no information about Benjamin’s complaints immediately after the work accident. The first available report is that of Dr. David S. Muldowny, the orthopedic surgeon who treated Benjamin for the work accident. Dr. Muldowny’s December 16, 1996 report begins with the following history: “This is a 37 year old male, complaining of primarily neck pain, but also low back pain since 12June of 1996.” Under “Current Symptoms” Dr. Muldowny notes: “He is complaining of neck pain, headaches, occasional right arm pain and shoulder pain with a bilateral shocking sensation in his hands.” Dr. Muldowny considered surgery as an option.
On March 11, 1997, Benjamin was examined by Dr. Gregory Gidman, the employer’s choice of orthopedic specialist. In his “cervical spine & upper extremity exam” Dr. Gidman found no muscle atrophy or muscle fasciculation in the upper extremities. The shoulder range of motion was full.
Dr. Muldowny had Benjamin seen by Dr. Cobb for a discogram. The discography report of June 12, 1997 indicated three levels of cervical disease but noted “the 5-6 level was the level that reproduced the left arm pain” and “was the worse space in terms of pain with reproduction of neck pain and left sided radic-ulitis.” In September 1997 Dr. Muldow-ny performed an anterior cervical fusion at three levels. After the surgery, Dr. Muldowny saw Benjamin on October 2, November 6, and December 4, 1997. At the visits in October and November, Benjamin made no complaints of arm or shoulder pain. (Dr. Muldowny’s deposition, page 23). In his report of December 4, the doctor noted Benjamin was still having significant pain, with some pain in the shoulder blade region. Dr. Muldowny testified since he did not indicate the pain was on either one side of the body or the other and assumes it was on both sides. (Dr. Muldowny deposition, page 25).
The December 4, 1997 exam was the last physical examination of Benjamin prior to the January 1998 motor vehicle accident. From the beginning of Dr. Muldoimy’s treatment until this time, there are no complaints of left shoulder pain. There are complaints of right arm pain, left arm pain, and complaints of shoulder pain, but no complaints specific to the left shoulder. In fact, Benjamin’s pain drawings depicts [sic] stabbing pain to both shoulders. (See defendant’s exhibit #4 and plaintiffs exhibit # 1, item 6, records from Orthopedic & Sports PT Clinic of Lafayette).
Benjamin was involved in a motor vehicle accident on January 8, 1998. He was seen by Dr. Muldowny on February 12, but failed to mention the automobile accident. The doctor noted that “his neck is improved” and wanted to try to rehabilitate his neck muscles and shoulders, meaning both shoulders. (Dr. Muldowny deposition, pages 25-26). Benjamin next saw Dr. Muldowny May 11, and the doctor found him “overall better than before surgery” with “some left trapezius tenderness” and “his range of motion is quite good” referring probably to the neck. (Dr. Muldowny deposition, page 27). A functional capacity evaluation performed by Dr. Hodges on May 26 classified Benjamin at medium duty capacity.
|3The next day, May 27, Benjamin began seeing Dr. Jerald L. Watts, an orthopedic surgeon, for injuries associated with the January 8 automobile accident. Benjamin testified in his August 3, 2000 deposition that he treated with a different doctor in the same field of specialty to avoid “confusion.” (Defendant’s exhibit 12, page 36). In his report of May 27, Dr. Watts noted complaints of pain in the neck and both shoulder blades, radiating into the left upper extremity to the mid forearm, and numbness and tingling in the left upper extremity to the fingers. Dr. Watts found no atrophy or weakness in the major muscle groups of the upper extremities.
Over the next few months Benjamin continued to treat with both Dr. Mul-downy and Dr. Watts, then Dr. Shepherd when Dr. Watts retired. Significantly, as of his July 30, 1998 exam, Dr. Muldowny began testing Benjamin for possible rotator cuff and impingement problems. On July 30 those tests were negative. (Dr. Muldowny’s deposition, page 33). On August 25 the rotator cuff test produced pain but no weakness and the impingement sign was mildly positive. (Dr. Muldowny deposition page 36). In his report of September 28, 1998, Dr. Muldowny noted there was no pain or weakness on the rotator cuff testing. He recommended EMG/NCV testing which showed subacute left C5 radicular changes and carpal tunnel syndrome. In his October 22, 1998 report, Dr. Muldowny indicates that the rotator cuff and impingement tests are negative and opines that Benjamin’s shoulder symptoms are a residual from his neck. Dr. Muldowny then released Benjamin to light duty, with restrictions.
In his report of November 17, 1998, Dr. Shepherd noted mild deltoid atrophy and a slightly positive impingement test. Dr. Shepherd reviewed the results of the EMG/NCV testing and stated that the left C5 radicular changes could contribute to the atrophy he found, but believes the atrophy could also be from a shoulder injury. Dr. Shepherd states that Benjamin “really seems to be very concerned about his left shoulder, and he says he cannot abduct the shoulder greater than 90 degrees. He was able to do that before the accident. He thinks the car accident aggravated it more, and there is more damage.” Yet less than a month later Benjamin saw Dr. Leo deAlvare for a neurological exam at the request of the workers’ compensation employer and told Dr. deAlvare that he was involved in a motor vehicle accident in January “but he does not feel that he sustained much in the way of injuries.” (plaintiffs exhibit # 1, item 7, December 15, 1998). The day [of] the exam with Dr. deAl-vare, Benjamin saw Dr. Shepherd. In his report of December 16, 1998, Dr. Shepherd found mild deltoid atrophy and winging of the left shoulder with atrophy of the left interscapular musculature. Dr. Shepherd thought these conditions could be from the neck or should[er], but thought it more likely they were coming from a shoulder condition. Dr. Shepherd then notes:
|/‘This man tells me that before the accident of January 8, 1998, he had pain in his neck and pain in his back, but he had no problems with his shoulder whatsoever. He states that as a result of the motor vehicle accident it increased the intensity of the pain in his neck and back and increased the frequency of the pain in his neck and back and caused the shoulder condition.”
On January 4, 1999 Dr. Muldowny noted that Benjamin “continues to complain of headaches and left arm pain. He relates his current condition to an automobile accident in January 1998. This incident aggravated his neck. An MRI of the shoulder ordered by Dr. Shepherd indicated signs of impingement with no evidence of a rotator cuff tear.
Benjamin continued treating with Dr. Muldowny. The December 16, 1998 visit appears to have been Benjamin’s last exam with Dr. Shepherd. Dr. Muldow-ny recommended an arthroscopic decompression of the left shoulder. Dr. Mul-downy and the workers’ compensation administrator questioned the relation of the left shoulder symptoms to the 1996 work accident. However, when Benjamin later told Dr. Muldowny his complaints are the same complaints he has had since 1996, Dr. Muldowny related the shoulder injury to the 1996 accident.
The WCJ does not relate the shoulder bursitis/impingement condition to the 1996 work accident. Dr. Muldowny admits in his deposition that Benjamin’s symptoms change at different times, making it difficult “to really get a feel that on every single visit it’s the same thing” and causing the doctor to question lohether the arthroscopic decompression luould really help. (Dr. Mul-downy deposition page 94)[.] Therefore, even though Dr. Muldowny ultimately relates the shoulder condition to the 1996 work injury, his testimony is equivocal and it appears he relates it primarily because his patient tells him it is the same pain. On the other hand, Dr. Shepherd relates the impingement to the automobile accident. Benjamin has told Dr. Shepherd that the shoulder injury was caused by the automobile accident. Further, and quite significantly, Dr. Shepherd testified that had the impingement been present for a long time, it tvould have caused a tear in the rota-tor cuff. (Dr. Shepherd’s deposition, page 61).
The evidence available points to the January 1998 motor vehicle accident as the more likely cause of the shoulder impingement. Dr. Watts found no atrophy in May 1998. Dr. Shepherd first noted mild atrophy six months later in November. The EMG of October 15, 1998 showed “subacute” C5 radicular changes, which Dr. Shepherd defined as six weeks to a year [old]. (Dr. Shepherd deposition page 26). The |sleft shoulder MRI of around December 1998 showed a spur on the rotator cuff “creating early impingement syndrome.” (Dr. Shepherd deposition, pages 51-52). Dr. Shepherd testified that it takes “months” for spurs to develop. (Dr. Shepherd deposition, page 51). Logic points to an event in January 1998 as causing the changes seen later that year as opposed to an event more than two years earlier. Benjamines] testimony to the contrary cannot be given any credence due to the different versions he espoused to different doctors.
The WCJ further finds that indemnity benefits were properly terminated in December 2002 after Benjamin’s treating physical medicine doctor, Dr. Nickerson, found him to have reached maximum medical improvement and approved several sedentary jobs.

LAW AND DISCUSSION

It is well settled that a workers’ compensation claimant must prove by a preponderance of the evidence, not only that an employment accident occurred, but that the accident had a causal relationship to the disability claimed; if the testimony and documentary evidence leave the probabilities evenly balanced, the claimant has failed to carry his burden of proof. Harvey v. Bogalusa Concrete, Inc., 97-2945 (La.App. 1 Cir. 9/25/98), 719 So.2d 1130; Wilkerson v. City of New Orleans Fire Dep’t., 03-1550 (La.App. 4 Cir. 3/3/04), 871 So.2d 375; and Grant v. Assumption Parish Sch. Bd., 01-0272 (La.App. 1 Cir. 3/28/02), 813 So.2d 622.

The law applicable to the appellate review of workers’ compensation cases is likewise well settled:

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556; Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Banks, 96-2840 at pp. 7-8, 696 So.2d at 556; Freeman, 93-1530 at p. 5, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993). Where there are two permissible views of the evidence, a factfinder’s choice between them |fican never be manifestly erroneous or clearly wrong. Banks, 96-2840 at p. 8, 696 So.2d at 556; Stobart, 617 So.2d at 882. “Thus, ‘if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Banks, 96-2840 at p. 8, 696 So.2d at 556 (quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

Seal v. Gaylord Container Corp., 97-0688, pp. 4-5 (La.12/02/97), 704 So.2d 1161, 1164.

In the case sub judice, the WCJ considered all the testimony and documentary evidence and reached the conclusion that Claimant failed to prove his left shoulder complaints were connected to his on-the-job injury, but rather resulted from his vehicular accident of January 8, 1998. Examining the documentary evidence and testimony, we cannot say that her conclusion was manifestly erroneous. We are especially persuaded by those portions of her well-written reasons for judgment to which we have added emphasis. First, Dr. Muldowny’s records show Claimant made no shoulder complaints on his October, November or December 1997 visits; Dr. Muldowny’s notes of Claimant’s January 1999 visit revealed that Mr. Benjamin, himself, related his shoulder complaints to his January 1998 vehicular accident; and Dr. Muldowny’s deposition testimony stated that Claimant’s symptoms were different at different times, making it difficult to accurately diagnose Claimant’s problems. Second, there are the reports and testimony of Dr. Shepherd which point out that Claimant admitted that his inability to abduct his left shoulder above 90 degrees did not occur until after the 1998 automobile accident; likewise there is Claimant’s statement to Dr. Shepherd that before the January 1998, he had no problems whatsoever with his shoulder. Dr. Shepherd testified that had the shoulder 17impingement been present for a long period of time, it would have caused a tear in the rotator cuff. Tests confirmed Claimant had no tear in his rotator cuff.

In sum, we agree with the WCJ that Dr. Muldowny’s conclusion, that Claimant’s present shoulder discomfort could relate to the 1996 on the job accident, was based upon his patient’s very belated, self-serving complaints. Furthermore, we find no manifest error in the WCJ’s decision to give more credence to that abundant portion of the medical evidence, especially that of Dr. Shepherd, which relates Claimant’s present complaints to the automobile accident of January 8, 1998.

Accordingly, for the reasons stated, we affirm the judgment of the Office of Workers’ Compensation Judge. All costs of this appeal are assessed against Claimant, Dexter Benjamin.

AFFIRMED.

      . Honorable John B. Scofield participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.


author: | JETERS, J.

text:
    Metra BARRAKA, et vir. v. Joann BOWIE, et al.
    No. 2004-0738.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Malcolm X. Larvadain, Attorney at Law, Alexandria, LA, for Plaintiffs/Appellants, Metra Barraka, et vir.
    Keith M. Borne, Borne & Wilkes, L.L.P., Lafayette, LA, for Defendants/Ap-pellees, Joann Bowie, et al.
    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.

   | JETERS, J.

Omatu and Metra Barraka, husband and wife, appeal a judgment of involuntary dismissal with prejudice of their suit against Joann Bowie and her automobile liability insurer, Safeway Insurance Company of Louisiana (Safeway). For the following reasons, we affirm the trial court judgment in all respects.

DISCUSSION OF THE RECORD

This litigation arises from a May 30, 2002 automobile accident which occurred in Alexandria, Rapides Parish, Louisiana. A vehicle driven by Mrs. Barraka was struck from the rear by a vehicle owned by Ms. Bowie and driven by John F. Simmons. The Bowie vehicle was insured for liability purposes by Safeway. The Barra-kas brought suit against Ms. Bowie and Safeway to recover the property damages and medical expenses they sustained, as well as Mrs. Barraka’s personal injury-damages and Mr. Barraka’s loss of consortium damages.

The plaintiffs alleged in their petition that Mr. Simmons was “an unlicensed minor and inexperienced driver” and that Ms. Bowie had given him permission to operate her vehicle. However, while asserting that Mr. Simmons negligently struck Mrs. Barraka’s vehicle, the plaintiffs did not bring suit against Mr. Simmons or his legal representative (assuming he was a minor). Instead, the plaintiffs asserted that Ms. Bowie and Safeway were liable for their damages because Mr. Simmons “was on a mission for [Ms. Bowie], or in the alternative, [Ms. Bowie] negligently entrusted her vehicle to [Mr.] Simmons” and because Safeway was the liability insurer of Ms. Bowie.

In their answer to the petition, Safeway and Ms. Bowie denied that Ms. Bowie had given permission to Mr. Simmons to operate the vehicle and asserted that Mr. Simmons was operating the vehicle “without [Ms. Bowie’s] knowledge and/or | {.consent.” However, the defendants went further in their answer, asserting that the Safeway insurance policy provided no coverage for Mr. Simmons in the accident, an issue not raised by the plaintiffs in their pleadings.

As the trial on the merits began, the litigants stipulated that, as a result of the accident, the plaintiffs sustained $473.60 in property damages and $944.99 in medical expenses. In support of their claims, the plaintiffs then introduced medical reports and a copy of Safeway’s insurance policy and offered their testimony as well as that of two other witnesses.

Concerning the permission issue, Mrs. Barraka testified that soon after the accident, Ms. Bowie arrived at the accident scene and informed her that she had insurance to cover the accident. Mr. Barraka, who also arrived at the scene soon after the accident, overheard Ms. Bowie’s comment concerning insurance as well. Additionally, Jermaine Morris, a seventeen-year-old high school student and a passenger in the Bowie vehicle at the time of the accident, testified that he had ridden with Mr. Simmons in Ms. Bowie’s vehicle in the past and that Ms. Bowie had been aware of Mr. Simmons’ use of the vehicle. The final witness, Deeleen Morris, who is the mother of Jermaine Morris, testified that she had seen her son and Mr. Simmons in Ms. Bowie’s vehicle on numerous occasions and that she had conversed with Ms. Bowie concerning Mr. Simmons using the vehicle.

The plaintiffs presented no evidence to establish that Mr. Simmons was an inexperienced driver. In fact, Mr. Morris testified that, at all times, he considered Mr. Simmons to be a safe driver.

The remaining evidence presented by the plaintiffs addressed the particulars of the accident and the extent of their damages. Upon the completion of the 1 ¡¡plaintiffs’ case, the defendants moved for an involuntary dismissal pursuant to La. Code Civ.P. art. 1672(B), which motion the trial court granted. In granting the motion, the trial court found that the plaintiffs had failed to establish by a preponderance of the evidence that Mr. Simmons was either on a mission for Ms. Bowie or that she had negligently entrusted the vehicle to him. Thus, the trial court concluded that the plaintiffs failed to establish either independent negligence or vicarious liability on Ms. Bowie’s part. Noting that Safeway’s status as a defendant arose only as the insurer of Ms. Bowie, the trial court dismissed Safeway as well. The plaintiffs then perfected this appeal.

OPINION

The procedure for an involuntary dismissal is set fourth in La.Code Civ.P. art. 1672. If the matter is tried as a bench trial, the defendant may move for a dismissal of the plaintiffs action at the close of the plaintiffs case based “on the ground that upon the facts and law, the plaintiff has shown no right to relief.” La.Code Civ.P. art. 1672(B). At that point, the trial court may either render judgment or decline to render judgment until the close of all of the evidence. Id. The trial court is required to weigh and evaluate all of the evidence presented by the plaintiff and to grant the dismissal if the plaintiff has failed to prove his claim by a preponderance of the evidence. Guillory v. Int’l Harvester Co., 99-593 (La.App. 3 Cir. 10/13/99), 745 So.2d 733, writ denied, 99-3237 (La.1/14/00), 753 So.2d 220. “The grant of an involuntary dismissal is subject to the manifest error standard of review.” Kite v. Carter, 03-378, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271, 1274.

We find no manifest error in the trial court’s conclusion that the plaintiffs failed to establish by a preponderance of the evidence either that Mr. Simmons was |¿¡on a mission for Ms. Bowie or that she negligently entrusted her vehicle to him. We also agree that the plaintiffs neither pleaded nor proved a basis for establishing any other form of vicarious liability on the part of Ms. Bowie. Therefore, we find no error in the trial court’s dismissal of Ms. Bowie as a party defendant at the close of the plaintiffs’ case.

Concomitantly, we reach the same conclusion regarding Safeway. Although the trial court did not reach the permission issue, our examination of the record causes us to conclude that the plaintiffs established by a preponderance of the evidence that Mr. Simmons was driving with Ms. Bowie’s permission. That being the case, Mr. Simmons was unquestionably an omnibus insured under the Safeway policy. However, for whatever reason, the plaintiffs did not sue Mr. Simmons or his legal representative. Therefore, Safeway was not sued in its capacity as the omnibus insurer of Mr. Simmons. The only issue before the trial court was whether Ms. Bowie was at fault. Thus, the resulting judgment finding no fault on Ms. Bowie’s part had the effect of releasing Safeway from liability as well.

DISPOSITION

For these reasons, we affirm the judgment of involuntary dismissal with prejudice as to both Joann Bowie and Safeway Insurance Company of Louisiana. We assess all costs of this appeal to Omatu and Metra Barraka.

AFFIRMED.


author: I,SULLIVAN, Judge.

text:
    Kenneth TRAHAN and Lisa A. Trahan v. STATE of Louisiana through The DEPARTMENT OF HEALTH AND HOSPITALS.
    No. 2004-743.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 10, 2004.

      Colleen McDaniel, Assistant Attorney General, Lafayette, LA, for Defendant/Ap-pellee, State of Louisiana, Department of Health & Hospitals, Louisiana Health Care Authority, University Medical Center.

      Robert W. Hallack, Attorney at Law, Baton Rouge, LA, J. Clemille Simon, Attorney at Law, Lafayette, LA, for Plaintiff Appellant, Lisa A. Trahan, Kenneth Tra-han.
    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.

   I,SULLIVAN, Judge.

Kenneth and Lisa Trahan appeal various discovery rulings made by the trial court and the dismissal of their claims against the State of Louisiana, through the Department of Health and Hospitals (the State), for failure to comply with court-ordered discovery. We affirm in part, reverse in part, and remand for further proceedings.

Facts

On February 23, 1993, while employed by Incendere, Inc., a waste management service specializing in medical waste management, Kenneth Trahan was injured when he opened the door of a trailer transporting boxes of medical waste and one of the boxes fell on him. The medical waste was owned and loaded in the trailer by University Medical Center (UMC). Kenneth and his wife, Lisa, filed suit against the State of Louisiana, alleging that Kenneth’s injuries occurred as a result of the negligence of the UMC employees who improperly loaded the medical waste. Kenneth and Lisa separated in December 1995 and were thereafter divorced. Lisa moved from Louisiana and currently resides in Virginia.

Initially, this matter was vigorously litigated. A motion for summary judgment was granted in favor of the State; then the pace of the litigation slowed. The grant of summary judgment was reversed on appeal in 1995. However, activity in the matter did not increase until June 2001 when new counsel enrolled on behalf of the Trahans and responded to interrogatories and requests for production propounded by the State in 1994. Shortly thereafter, the State noticed the depositions of the Trahans. It then filed a motion to dismiss for failure to prosecute, pursuant to La. Code Civ.P. art. 561, which was denied.

pOn May 15, 2002, the State deposed Kenneth. That same day, the State began deposing Lisa, who appeared by telephone, but terminated the deposition when Lisa testified that she would come to Louisiana to be deposed. Thereafter, a number of discovery issues were presented to the trial court for determination. Ultimately, by judgment dated March 26, 2004, the trial court dismissed the Trahans’ claims because they failed to comply with the trial court’s order which directed them to answer the 1994 interrogatories and requests for production “fully, under oath, and in writing on or before January 7, 2004” and which directed Lisa to “submit in person to a deposition ... in this Parish and State by February 6, 2004.”

The Trahans assign six errors: five arise out of discovery rulings made by the trial court and the last arises out of the dismissal of the their claims.

Standard of Review

Trial courts have broad discretion in ruling on discovery matters that are presented during the course of litigation, including the scope of discovery. Moak v. Ill. Cent. R.R. Co., 93-783 (La.1/14/94), 631 So.2d 401; Ward v. Tenneco Oil Co., 564 So.2d 814 (La.App. 3 Cir.1990). Such discretion will not be disturbed on appeal absent a clear showing of abuse. Moak, 631 So.2d 401.

Dismissal for Failure to Comply with Discovery

We first consider whether the dismissal of the Trahans’ claims for failure to respond to court-ordered discovery was error. Pursuant to La.Code Civ.P. art. 1471, a trial court can impose sanctions for a litigant’s failure to respond to discovery. It provides in part:

If a party or an officer, director, or managing agent of a party or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the faction is pending may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

In Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199, the supreme court addressed the propriety of the dismissal of a plaintiffs claims for failure to comply with discovery, observing that “[tjhere is a distinction between the sanctions available for failure to comply with discovery and the sanctions available for disobedience of court ordered discovery” and that “[t]rial judges must have severe sanctions available to deter litigants from flouting discovery orders.” Id. at 203. The court further noted that dismissal is a “draconian” penalty which should only be applied in “extreme circumstances.” Id.

|4Comparing the Louisiana rule for sanctioning a party who fails to comply with discovery with the Federal rule, the Horton court identified four factors appellate courts should consider when determining whether a trial court’s dismissal of a plaintiffs claims is an abuse of discretion:

(1) whether the violation was willful or resulted from inability to comply;
(2) whether less drastic sanctions would be effective;
(3) whether the violations prejudiced the opposing party’s trial preparation; and
(4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.

Id. The court further observed that “[t]he record must support ‘a finding that the failure was due to ... wilfulness, bad faith, or fault’ ” before dismissal of a plaintiffs claims is appropriate. Id. quoting Allen v. Smith, 890 So.2d 1300, 1302 (La.1980).

In In re Wiley, 03-793 (La.App. 3 Cir. 12/23/03), 862 So.2d 1243, this court determined that without sworn testimony no assessment of these factors could be made. Here, as in Wiley, only counsels’ arguments are available for us to consider. Without evidence concerning these factors, we cannot determine whether the trial court’s dismissal of the Trahans’ claims was error. Accordingly, the judgment of dismissal is vacated, and the matter is remanded for an evidentiary hearing in accordance with Horton, 635 So.2d 199, and Allen, 390 So.2d 1300.

Termination of Lisa Trahan’s Deposition

Shortly after new counsel enrolled for the Trahans, the State noticed their depositions. Two days prior to the scheduled deposition, the Trahans’ attorney notified counsel for the State that Lisa would not appear in person for her deposition but would be available by telephone. On the date of the scheduled deposition, 1 Rcounsel for the State began the deposition and questioned Lisa but terminated the deposition after Lisa testified that she could appear in Louisiana for her deposition. The Trahans’ attorney then began questioning Lisa. Counsel for the State objected to continuing the deposition. The trial judge was contacted, and after a conference, the trial judge ordered that the deposition be terminated.

This issue was previously addressed pursuant to an application for writs filed by the Trahans with this court. No error was found with the trial court’s termination of Lisa’s deposition. See Trahan v. State of Louisiana, 02-626 (La. 3 Cir. 6/3/02), an unpublished opinion. Lisa again urges that the trial court erred in terminating her telephone deposition. Relying on La.Code Civ.P. art. 1444, she argues that without evidence that the questioning was in “bad faith” or was in an “unreasonable manner,” termination of the deposition was error.

As this issue has been previously considered by this court, application of the “law of the case” doctrine must be considered. This doctrine applies to prior rulings of the appellate court and/or supreme court in the same case. It applies to parties who were involved in the litigation at the time of the prior ruling and had their day in court. The doctrine provides that “an appellate court ordinarily will not reconsider its own rulings of law in the same case.” Sharkey v. Sterling Drug, Inc., 600 So.2d 701, 705 (La.App. 1 Cir.), writs denied, 605 So.2d 1099, 1100 (La.1992). The purposes of the doctrine are to avoid litigating the same issue again, promote consistency of result within the case, promote essential fairness to the parties, and judicial efficiency. Cree Oil Co. v. Home Ins. Co., 94-1219 (La.App. 3 Cir. 3/8/95), 653 So.2d 620, writ denied, 95-1554 (La.9/29/95), 660 So.2d 875. Application of the doctrine is discretionary and is inapplicable to cases in which the prior decision Lwas palpably erroneous or its application would result in manifest injustice. Willett v. Premier Bank, 97-187 (La.App. 3 Cir. 6/4/97), 696 So.2d 196.

Lisa testified that she was willing to attend a deposition in Louisiana. Additionally, her argument does not address the fact that the State was not notified until just days before her scheduled deposition that she would not be present for the deposition but would be available by telephone for her deposition. We find no error with the trial court’s termination of her deposition and will not reconsider our prior decision.

The State’s Failure to Comply with Uniform Local Rule 10.1

Local Rule 10.1 of the Uniform Rules for District Courts requires that any party filing a discovery motion first attempt to arrange a conference with the opposing party to try to amicably resolve the discovery dispute and that a discovery motion must include a certificate stating that the parties conferred and why they were unable to agree or that opposing counsel refused to confer after reasonable notice. In August 2003, counsel for the State contacted the Trahans’ attorney by telephone to discuss various pending discovery issues and, during that conversation, notified him that she considered the conversation to be a Rule 10.1 conference. The Trahans filed a motion to dismiss the motion to compel for failure to comply with Local Rule 10.1, arguing that, because counsel for the State did not notify their attorney prior to the telephone conference that she intended it to serve as a Rule 10.1 conference and the required certificate was not attached to the motion to compel, the motion did not satisfy the requirements of Rule 10.1 and should not be considered by the trial court. After conducting a hearing on all of the pending motions, the trial court determined that the telephone conversation satisfied the requirements of Rule 10.1.

17“Local rules of court are intended solely to aid in the orderly and efficient conduct of litigation and are not to be construed so literally as to defeat their intended purpose .... the trial court has great discretion in the construction, interpretation, application or enforcement of its own rules.” Miller v. Miller, 35,934 (La.App. 2 Cir. 5/8/02), 817 So.2d 1166, 1172, writ denied, 02-1890 (La.10/25/02), 827 So.2d 1154 (citation omitted). We find no error in the trial court’s consideration of the motion to compel.

Exception of Vagueness

In its motion to compel, the State asserted that the Trahans’ responses to discovery were “not only incomplete but false.” The State did not specify how the responses were deficient but referenced its prior motion to dismiss, stating its “objections to the discovery were set forth in its Motion to Dismiss for Failure to Prosecute filed May 2, 2002, and supporting memorandum.” The Trahans filed an exception of vagueness in response to the motion to compel, asserting that the allegations contained therein were vague.

The State had alleged in its motion to dismiss that the Trahans’ responses “do not contain materials older than 1993 and 1994” and “were not sworn to by KENNETH or LISA TRAHAN ‘under oath’ as required by La. C.C.P. Art. 1458.” In its Reasons for Ruling on the motion to compel, the trial court found the “adequacy 1 sof the plaintiffs’ discovery responses was previously briefed in the motion to dismiss for failure to prosecute.”

There is no information in either the motion to dismiss or the motion to compel as to what the State contends is false. However, Kenneth testified in his deposition that at least one of the answers to interrogatories prepared by his attorney was “incorrect” and “false.” Having been in attendance at that deposition, counsel for the Trahans was aware that at least one response to the propounded discovery was indeed false. We find no error with the trial court’s refusal to grant the exception of vagueness.

Discovery Responses

In its motion to compel, the State also asserted that the Trahans’ responses to its discovery were not “full and complete.” In addition to referring to its previously filed motion to dismiss for failure to prosecute, the State also stated in its motion to compel that “the Plaintiffs had neither been aware of the discovery nor had they participated in answering it.” The State did not specify why the responses provided by the Trahans were not “full and complete.” As previously noted, the State had indicated in its motion to dismiss for failure to prosecute that the responses were insufficient because the answers provided at the time the motion to compel was filed did not contain materials older than 1993 or 1994 and were not sworn to by the Trahans.

A review of the Trahans’ answers to their interrogatories and the record reveals that their attorney initially answered the interrogatories at a time when he had not met or been in contact with either of them. The Trahans’ depositions also reveal that some of the answers provided were not correct at the time that their attorney answered lathe interrogatories. In August 2003, the Trahans supplemented their original answers under oath but did not answer each interrogatory.

The State wants the Trahans to respond to its discovery requests as though their attorney had never responded on their behalf. The trial court ordered them to do so. Under these circumstances, we do not find the trial court’s order an abuse of discretion.

Lisa Trahan’s Appearance for Deposition in Louisiana

In its motion to compel, the State also requested that the trial court order Lisa to appear in Louisiana for her deposition. The trial court granted the request and ordered Lisa to appear for her deposition before February 6, 2004 “or face dismissal of her claim with prejudice at her cost.” Lisa sought a protective order which would require the State to pay her travel expenses. She argued that it would be a hardship for her to travel to Louisiana for her deposition because she is a pauper, lives in Newport News, Virginia, and is the single parent of a young child who would need supervision during her absence. She further argued that her potential for recovery is extremely limited as she and Kenneth Trahan separated shortly after his injury. This ruling of the trial court was also the subject of a writ application to this court which was denied. See Trahan v. UMC, 04-201 (La.App. 3 Cir. 2/7/04), an unpublished opinion.

In light of our remand of this matter, Lisa will need to travel to Lafayette for the evidentiary hearing on whether the trial court properly dismissed her and Kenneth’s claims; the State will be able to depose her at that time. Accordingly, we need not consider this issue.

1 mDisposition

All of the trial court’s rulings issued in conjunction with discovery motions are affirmed. The trial court’s judgment of dismissal is vacated, and this matter is remanded for proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS IN ACCORDANCE WITH INSTRUCTIONS HEREIN.

      . UMC is operated by the Department of Health and Hospitals.

      . Pursuant to La.Code Civ.P. art. 926, an exception of vagueness is a dilatory exception filed in response to a petition to compel the plaintiff to amplify and define his claims to allow the defendant to adequately prepare his defense. Snoddy v. City of Marksville, 97-327 (La.App. 3 Cir. 10/8/97), 702 So.2d 890. Therefore, filing an exception of vagueness in response to a motion to compel is technically incorrect. However, a pleading is to be treated based on the allegations therein, not the title. See Smith v. Williams (La.App. 2 Cir. 1988), 535 So.2d 959. Accordingly, we address the Trahans' allegations regarding the State’s failure to specify what was incomplete or false in their discovery responses.