text:
    M.W., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-2281.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 2004.
    Sanford Rockowitz, for appellant.
    Calianne P. Lantz, for appellee.
    Before COPE, GREEN and SHEVIN, JJ.
   COPE, J.

M.W. appeals an order adjudicating his three natural daughters dependent. We conclude that the evidence was legally sufficient and affirm the dependency order.

I.

According to the petition for dependency, on July 1, 2001 M.W. was arrested for sexual battery on his stepdaughter, J.G. 1. The petition alleges that M.W. had sexual intercourse with his stepdaughter over a three-year period, beginning when the child was ten years old. As to the criminal charges, M.W. was released on bail and the criminal charges remain pending.

The Department filed a petition for dependency as to the stepdaughter J.G. 1 (also referred to as “the stepdaughter”) and M.W.’s natural daughters, J.W. 1, J.W. 2, and J.W. 3 (also referred to as “the natural daughters”).

With regard to the stepdaughter, M.W. entered a consent plea to the dependency petition. See Fla. R. Juv. P. 8.520(c). Pursuant to this consent, the stepdaughter was adjudicated dependent as to M.W.

Four days later, the trial court conducted an adjudicatory hearing on the petition for dependency as to M.W.’s natural daughters. They were eight, seven, and three years old at the time of the dependency hearing. M.W. was present at the hearing and represented by counsel, but did not testify.

The trial court received testimony from a psychologist who had evaluated M.W., and took judicial notice of the consent order relating to the stepdaughter. The court entered an order adjudicating the natural daughters dependent as to M.W. The order states, in part:

2. On or about March 24, 2003, the Father, [M.W.] entered a plea of consent to an adjudication of dependency regarding the Children’s half sister, [J.G. 1]. The findings of fact made by the Court pursuant to the Father’s plea were as follows: “[M.W.], the Father of [J.W. 1, J.W. 2, and J.W. 3] and stepfather of [J.G. 1 and J.G. 2] on or about July 1, 2001 was arrested for sexual battery on a minor [J.G. 1] and sexual battery on a familial person under the age of 18 by a person over the age of 18. The Child [J.G. 1] disclosed that her step-father had been having sexual intercourse with her over a three (3) year period. The step-father, [M.W.’s] actions place the Child at risk of harm.”
3. The Court took Judicial Notice of said Adjudicatory Order at the request of the Florida Department of Children and Families.
4. Based on the testimony of Edward Sczechowicz, Ph.D., BCF (hereinafter referred to as Dr. Schzechowicz), the Court makes the following findings of fact:
4a. Dr. Schzechowicz testified that [M.W.], during his evaluation, disclosed that his step-daughter, [J.G. 1] had touched him on his genitals and that [M.W.] also stated that “his fingers could have touched her vagina.” The Court does not find [M.W.’s] statement to be credible and in fact, found this statement to be demonstrative of [M.W.’s] lack of insight.
4b. Dr. Schzechowicz testified that there would be a high risk of sexual abuse re-occurring if [M.W.] had access to the Child [J.G. 1]. As such, no contact with [J.G. 1] was recommended. Dr. Schzechowicz further recommended that [M.W.] be ordered to attend and successfully complete the Mentally Disordered Sex Offender (MDSO) Program.
4c. Dr. Schzechowicz testified that even though according to the testing [M.W.] had exhibited a low risk of recidivism [as to J.W. 1, J.W. 2, and J.W. 3], there were concerns regarding his psychological functioning and he presented as a psychologically] maladjusted individual. [M.W.] showed no remorse and blamed the victim-child for any alleged misconduct. Hence, the risk to the Children [J.W. 1, J.W. 2, and J.W. 3] according to Dr. Schzechowicz, was increased by [MW.’s] commission of a similar act on another Child, to-wit: [J.G. 1], the Children’s half-sister.
5. The Father, [M.W.], entered a plea of consent regarding the Child [J.G. 1]. The Court made findings of fact which included that the Father was arrested and charged with Sexual Battery on a Minor and Sexual Battery on a Familial Person under the Age of Eighteen, to-wit, the Child, [J.G. 1].
6. The Court finds, that based on the totality of the circumstances, and after reviewing the documents admitted into evidence as well as hearing expert testimony on the matter, the risk of imminent sexual abuse to the above captioned Children is increased by the Father [M.W.’s] commission of a similar act on another Child, to-wit, the Children’s half-sibling, [J.G. 1], his lack of remorse and his psychological functioning.
It is hereby ORDERED and ADJUDGED that the above captioned Children be adjudicated dependent within the meaning and intent of Florida Statutes Chapter 39.

M.W. has appealed.

II.

M.W. argues that the evidence was legally insufficient to support the dependency order. He argues that his sexual abuse of his stepdaughter is insufficient to support a dependency adjudication as to his natural daughters. He contends that the psychologist’s testimony defeats the Department’s petition. We disagree.

The Florida Supreme Court has said, “The purpose of a dependency proceeding is not to punish the offending parent but to protect and care for a child who has been neglected, abandoned, or abused.” M.F. v. Florida Department of Children and Families, 770 So.2d 1189, 1193 (Fla.2000) (citation omitted); see also § 39.501(2), Fla. Stat. (2002).

In administering the child protection system, “The health and safety of the children served shall be of paramount concern.” § 39.001(l)(b)l., Fla. Stat. (2002).

Under the statute, a dependent child includes one who is “at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.” Id. § 39.01(14)(f). In making that determination, the trial court is to look at the totality of the circumstances. M.F., 770 So.2d at 1194.

M.W. relies on the M.F. decision, but that reliance is misplaced. In M.F., the father had sexually abused one of his children, K.F. The father was convicted of sexual battery and imprisoned for fifteen years. K.F. was adjudicated dependent as to the father.

In further proceedings, the trial court found M.F.’s other children dependent, on the theory that the other children were at risk of prospective abuse. Rejecting that rationale for the dependency order, the Florida Supreme Court reasoned that since the father was imprisoned for fifteen years and presumably would have no contact with the children, it would follow that there was no risk of prospective abuse.

The present case differs from M.F. In the present case the father is at liberty on bail and there is thus no physical impediment to his having contact with the children. The remaining children are all younger daughters, who are plainly not old enough to protect themselves.

The M.F. court ruled that an adjudication of dependency based on the fact that a parent has sexually abused one child is a factor which can be considered in deciding whether the remaining children are at prospective risk. Id. The father has admitted to having repeated sexual intercourse with his stepdaughter and an adjudication of dependency as to that child has been entered.

M.W. argues, however, that the following testimony of the psychologist supports his position that the instant order should be reversed:

Q Do you have an opinion regarding whether M.W. is at high risk to reengage in sexually illegal behavior in the future?
A If you’re talking about M.W., and I’m going to make an assumption here that he did engage in the behavior he’s charged with, if he actually did this, then if you were to give him unfettered access to the alleged victim in this case, then my opinion is there would be a very high risk to his stepdaughter.
If we’re talking about the other children, the signs would indicate that he is not a high risk and if these are his natural children.
Based on both the Static Actuarial and Dynamic Risk Factors.
Q Just so that we can be clear.
Supposing, let’s assume that M.W. is found guilty of this offense that he was arrested and charged with. Is there an increased risk for his natural children?
A Of course, ma’am.
Any time someone engages in sexually inappropriate behavior, the likelihood of future behavior increases.
The results of the testing would indicate that the likelihood in terms of his sexually abusing his natural children is below base rates, but it’s not zero, by any means.

TR. March 27, 2003, at 19-20 (emphasis added).

M.W. argues that since the psychologist said M.W. is not a high risk to his natural children, it follows that the legal standard for a dependency order has not been satisfied. We disagree.

In deciding whether there is a substantial risk of imminent abuse, the trial court is to examine all of the circumstances. This includes the severity of potential harm as well as the likelihood it will occur.

In this case the risk to be protected against is sexual abuse of minor children. It is among the greatest of harms that can be inflicted on children. It is physical harm which is serious criminal conduct.

Because the nature of the harm is so great, it is intolerable to allow even a low probability that M.W. will sexually abuse the other children. The psychologist here testified that while the danger to the natural children was below base rates, “it’s not zero, by any means.” (Emphasis added).

As we interpret M.W.’s position, he wants us to rule that the trial court cannot order protective services unless there is reason to believe that, more probably than not, he will sexually abuse his other children. The contention apparently is that if the likelihood is below fifty percent, then the young children must be left to fend for themselves. That analysis is incorrect under the statute and under the M.F. decision.

Quite apart from the psychological evaluation results, in M.W.’s own statements to the psychologist he denied responsibility and blamed the victim. Further, at the time of the proceeding below, treatment in the MDSO program had been recommended, but it is not clear whether treatment had begun. In any event, M.W. had completed no such program. These factors, too, support the conclusion that M.W. cannot be left to his own devices.

The trial court applied the correct legal standard and the dependency order is fully supported by the evidence.

Affirmed.

      . The petition included another stepchild, J.G. 2, not at issue on this appeal.

      . The dependency order was upheld on other grounds, not pertinent here. See M.F., 770 sold at 1194-95.

      . At the time of the interview, M.W. "basically denied having inappropriate sexual contact with his stepdaughter.” TR. March 27, 2003, at 13. By the time of the hearing, however, M.W. had admitted (for purposes of the dependency proceeding) that he had engaged in the charged conduct.


source: Caselaw Access Project

author: ORFINGER, J.

license: Public Domain

text:
    Stephen BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3783.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Stephen Barnes, Jasper, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

In this Anders appeal, Stephen Barnes, pro se, appeals his convictions for robbery and grand theft. On appeal, he contends that his dual convictions, which arose out of a single taking of a woman’s purse, violate the double jeopardy clauses of the state and federal constitutions. The State concedes that in Sirmons v. State, 634 So.2d 153 (Fla.1994), the supreme court held that dual convictions for grand theft and robbery of the same property violate the double jeopardy prohibition. However, it argues that because the error was not preserved by presenting it to the trial court for consideration, it cannot be raised for the first time on appeal. Because case law has concluded such errors are fundamental, we disagree.

Unless knowingly and intentionally waived in the plea bargaining process, a double jeopardy violation is a fundamental error that can be raised for the first time on direct appeal or in postconviction proceedings. See Lippman v. State, 633 So.2d 1061 (Fla.1994); State v. Johnson, 483 So.2d 420 (Fla.1986); Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004); Davis v. State, 775 So.2d 427 (Fla. 5th DCA 2001).

As a result, we affirm Barnes’s conviction and sentence for robbery, but reverse his conviction and sentence for grand theft. We remand the matter to the trial court for resentencing. See Swilley v. State, 845 So.2d 930 (Fla. 5th DCA 2003).

We find no merit in the remaining issues.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

SAWAYA, C.J. and SHARP, W, J., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: THOMPSON, J.

text:
    K.A., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3749.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   THOMPSON, J.

AFFIRMED. See A.J. v. State, 826 So.2d 528 (Fla. 5th DCA 2002).

GRIFFIN and ORFINGER, JJ., concur.


text:
    Daniel RYAN, Appellant, v. Carmen RYAN, Appellee.
    No. 5D04-6.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.
    Daniel Ryan, Cleveland, OH, pro se.
    No Appearance for Appellee.
   THOMPSON, J.

Daniel Ryan appeals an order setting aside a default. We dismiss for lack of jurisdiction because this is a non-final order that is not appealable pursuant to Florida Rule of Appellate Procedure 9.130(a). See Tieche v. Florida Physicians Ins. Reciprocal, 431 So.2d 287 (Fla. 5th DCA 1983); see also Bruno v. A.E. Handy & Associates, Inc., 787 So.2d 251 (Fla. 5th DCA 2001); Kolb v. Florida Fruit & Vegetable Ass’n. Inc., 718 So.2d 957 (Fla. 5th DCA 1998).

DISMISSED.

GRIFFIN and ORFINGER, JJ., concur.


author: PER CURIAM.

text:
    SONIC AUTOMOTIVE, etc. et. al., Appellant, v. James C. SHOFER, Appellee.
    No. 5D04-706.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.
    Edmund J. McKenna of Ford & Harrison LLP, Tampa, for Appellant.
    Gregory W. Stoner, Orlando, and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

Sonic Automotive appeals the non-final order entered by the trial court denying its motion for summary judgment, arguing that reversal of the order is warranted because the trial court should have concluded that Sonic was immune from suit based upon the inapplicability of the intentional torts exception to the workers’ compensation statute. See § 440.11(1), Fla. Stat. (2002)(providing that employee lawsuits based upon injuries caused by employers’ intentional torts are not barred by the exclusive remedy provision of Florida’s Workers’ Compensation Act). However, in refusing to enter summary judgment in Sonic’s favor,- the trial court did not make a conclusive and final determination, as a matter of law, that an intentional tort had been established, but rather, the court decided that genuine issues of material fact exist in the record on this issue. As such, this court lacks jurisdiction to review the propriety of said decision. See Fla. R.App.P. 9.130(a)(3)(C)(v)(authorizing the district courts jurisdiction to review non-final orders determining as a matter of law that a party is not entitled to workers’ compensation immunity). See also Wheeled Coach Industries, Inc. v. Annulis, 852 So.2d 430 (Fla. 5th DCA 2003). Accordingly, the instant appeal must be dismissed.

DISMISSED.

SHARP, W., PALMER and TORPY, JJ., concur.


text:
    In re Matthew J. NASUTI.
    No. 2004-OB-1213.
    Supreme Court of Louisiana.
    June 18, 2004.
   ORDER

Considering the Petition for Resignation from the Practice of Law filed by respondent, Matthew J. Nasuti,

IT IS ORDERED that the request of Matthew J. Nasuti, Louisiana Bar Roll number 9901, for resignation from the practice of law be and is hereby granted, pursuant to Supreme Court Rule XVIII, § 5.

/s/ John L. Weimer Justice, Supreme Court of Louisiana


text:
    In re Eric Charles LABOURDETTE.
    No. 2004-OB-1847.
    Supreme Court of Louisiana.
    July 23, 2004.
   ORDER

Considering the Joint Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Eric Charles Labourdette, Louisiana Bar Roll number 26673, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B). Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately,

/s/ Catherine D. Kimball Justice, Supreme Court of Louisiana


author: I .PER CURIAM.

text:
    In re S. Judd TOOKE.
    No. 2004-B-0533.
    Supreme Court of Louisiana.
    Sept. 3, 2004.
   ATTORNEY DISCIPLINARY PROCEEDINGS.

I .PER CURIAM.

This disciplinary matter arises from one count of formal charges filed by the Office of Disciplinary Counsel (“ODC”) against respondent, S. Judd Tooke, an attorney licensed to practice law in Louisiana.

UNDERLYING PACTS

In November 1985, Eugene James retained respondent to handle a dispute arising out of the construction of a pond on a tract of land in Bienville Parish known as the Loggy Bayou Plantation. Respondent filed a petition for damages on behalf of Mr. James in February 1988. Eugene James d/b/a Eugene James Constr. Co., et al. v. C. Markham Dickson, et al., No. 341,064 on the docket of the First Judicial District Court for the Parish of Caddo. It appears from the suit record that respondent was actively involved in the litigation until approximately May 1993, when he associated another attorney, John Collins-worth, to assist him in handling the case. Mr. Collinsworth was not formally enrolled as counsel for Mr. James — respondent at all times remained the designated attorney of record — but nevertheless, respondent’s interest and participation in the case dwindled after Mr. Collinsworth’s engagement, as did respondent’s communication with his client.

[¡>At some point after May 1996, Mr. Collinsworth stopped working on Mr. James’ case. In August 1999, and again in March 2000, Mr. James sent respondent letters inquiring about the status of the matter. Respondent did not reply to this correspondence. On April 7, 2000, the defendants filed a motion to dismiss Mr. James’ case on grounds of abandonment. The trial judge signed the motion on April 10, 2000 and dismissed the case with prejudice as to all defendants. On April 14, 2000, the court’s judgment was personally served upon respondent by the Caddo Parish Sheriffs Office, but he did nothing in response. Mr. James did not learn of the dismissal of his case until March 2001, when he personally checked the court record and discovered the judgment rendered some eleven months earlier.

In April 2001, Mr. James filed a complaint against respondent with the ODC. Respondent answered the complaint and admitted that he “put the [James] matter on the back burner and paid attention to the other matters in my office.”

DISCIPLINARY PROCEEDINGS

On August 15, 2002, the ODC filed one count of formal charges against respondent, alleging that his conduct in the James matter violated the following provisions of the Rules of Professional Conduct: Rules 1.3 (failure to act with reasonable diligence and promptness in representing a client), 1.4 (failure to communicate with a client), 8.4(a) (violation of the Rules of Professional Conduct), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The |sformal charges were served upon respondent by certified mail delivered on August 19, 2002.

Respondent failed to answer or otherwise reply to the formal charges. Accordingly, the factual allegations contained therein were deemed admitted and proven by clear and convincing evidence pursuant to Supreme Court Rule XIX, § 11(E)(3). No formal hearing was held, but the parties were given an opportunity to file with the hearing committee written arguments and documentary evidence on the issue of sanctions.

Hearing Committee Recommendation

After consideration of the ODC’s submission in response to the deemed admitted order, the hearing committee found respondent’s inaction caused harm to Mr. James, who has lost the right to pursue his suit against the defendants. However, the committee did not find the harm was substantial, reasoning that the case had been pending for sixteen years and involved a number of counsel for Mr. James, including Mr. Collinsworth, who was lead trial counsel for the seven years prior to the dismissal of the action. Based on these findings, the committee determined that respondent’s conduct was negligent, rather than intentionally dishonest. The committee concluded respondent violated Rules 1.3 and 1.4 of the Rules of Professional Conduct, but found respondent did not violate Rules 8.4(a) or 8.4(d).

The committee found the following mitigating factors are present in this case: absence of a dishonest or selfish motive, full and free disclosure to the disciplinary board and a cooperative attitude toward the proceedings, and remorse. As ^aggravating factors, the committee recognized respondent’s prior disciplinary offenses, as well as his substantial experience in the practice of law (admitted 1973).

Under the circumstances of this case, the committee recommended that respondent be publicly reprimanded.

Neither respondent nor the ODC filed an objection to the hearing committee’s recommendation.

Disciplinary Board Recommendation

After reviewing this matter, the disciplinary board accepted the hearing committee’s factual findings and application of the Rules of Professional Conduct. The board determined respondent violated a duty owed to his client, Mr. James, and that his conduct was both negligent and knowing. Actual injury to Mr. James is present in that he lost his right to pursue his suit against the defendants. The board concurred in the aggravating and mitigating factors cited by the hearing committee.

Turning to the issue of an appropriate sanction for respondent’s misconduct, the board suggested that the reprimand proposed by the hearing committee may be too lenient. Considering the ABA’s Standards for Imposing Lawyer Sanctions, the board observed that respondent’s conduct appears to be more negligent than knowing as to the lack of diligence violation. While respondent did fail to take the appropriate action in Mr. James’ lawsuit for over three years, causing the suit to be dismissed for lack of | ^prosecution, he relied (albeit unwisely) upon Mr. Collins-worth to help with the “trial/procedural” aspects of the case. As to the lack of communication issue, the record indicates that respondent was served with the order dismissing Mr. James’ case for lack of prosecution, but that he did not communicate with his client concerning the matter. This conduct appears to be knowing. In light of these considerations, and the prior jurisprudence discussing misconduct similar to respondent’s, the board concluded that a brief suspension, with all or part deferred, appears to be more appropriate than a public reprimand.

Accordingly, the board recommended that respondent be suspended from the practice of law for four months, deferred, with any misconduct occurring during a four-month period following the finality of the court’s order being grounds for making the deferred period of suspension executo-ry. The board also recommended that respondent be assessed with all costs and expenses of these proceedings.

One board member dissented, on the ground that a fully deferred suspension is too lenient.

Neither respondent nor the ODC filed an objection to the disciplinary board’s recommendation.

I (¿DISCUSSION

The deemed admitted facts in this case support a finding that respondent neglected Mr. James’ legal matter and failed to advise him that his suit was dismissed as abandoned, in violation of Rules 1.3, 1.4, and 8.4(a) of the Rules of Professional Conduct. Accordingly, the sole issue presented for our consideration is the appropriate sanction for respondent’s misconduct.

In fashioning an appropriate sanction, we are mindful that the purpose of lawyer disciplinary proceedings is not primarily to punish the lawyer, but rather to maintain appropriate standards of professional conduct to safeguard the public, to preserve the integrity of the legal profession, and to deter other lawyers from engaging in violations of the standards of the profession. Louisiana State Bar Ass’n v. Guidry, 571 So.2d 161 (La.1990). The discipline to be imposed depends upon the facts of each case and the seriousness of the offenses involved, considered in light of any aggravating and mitigating circumstances. Louisiana State Bar Ass’n v. Whittington, 459 So.2d 520 (La.1984).

The disciplinary board correctly determined that respondent’s handling of Mr. James’' lawsuit was partly negligent and partly knowing. While respondent may have delegated responsibility for the litigation to another attorney, he still had the duty of ensuring that Mr. James was informed of the status of his case. Moreover, once respondent was notified in April 2000 that Mr. James’ suit had been dismissed for want of prosecution, he had an obligation to communicate with Mr. James concerning that fact. However, he failed to do so, and Mr. James did not learn of the dismissal until he reviewed the court record himself in March 2001. Under these circumstances, we find the baseline sanction for respondent’s misconduct is a suspension from the practice of law.

17Considering the record as a whole, we conclude a four-month suspension is appropriate. Given the absence of any dishonest or selfish motive on respondent’s part, we will defer this suspension in its entirety. However, we caution respondent that any misconduct during the four-month period following the finality of this judgment may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

DECREE

Upon review of the findings and recommendation of the hearing committee and disciplinary board, and considering the record filed herein, it is ordered that Starr Judd Tooke, Louisiana Bar Roll number 12862, be suspended from the practice of law for a period of four months, which shall be deferred in its entirety. Any misconduct by respondent during a four-month period following the date of finality of this court’s judgment may be grounds for making the deferred suspension execu-tory, or imposing additional discipline, as appropriate. All costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.

      . Mr. James was aware of Mr. Collinsworth's involvement in the case, as by letter dated May 26, 1993, respondent notified Mr. James that Mr. Collinsworth "has agreed to help litigate your matter.”

      . In 1998, Mr. Collinsworth converted funds from his client trust account and his law firm’s operating account, then failed to cooperate with the ODC in its investigation of the matter. He was disbarred for that conduct in 2001. In re: Collinsworth, 01-1628 (La.9/21/01), 795 So.2d 312. Mr. Collins-worth was recently adjudged guilty of additional violations warranting discipline, which will be added to his record for consideration in the event he applies for readmission after becoming eligible to do so. In re: Collins-worth, 04-0167 (La.6/25/04), 877 So.2d 967.

      . Respondent filed nothing for the hearing committee’s consideration.

      . In 1995, respondent was admonished by the disciplinary board for failing to communicate to a client the basis or rate of his fee (see 95-ADB-004).

      . The board specifically credited respondent with demonstrating a cooperative attitude toward the disciplinary proceeding, on the ground that he answered Mr. James' complaint and "subsequently allowed the matter to proceed as a deemed admitted case. This actually made the disciplinary process easier, not harder, for ODC.” The court does not adopt this reasoning. As a general principle, the mitigating factor of a "cooperative attitude” is appropriately applied in consent discipline cases or in disputed matters in which the respondent displays an extraordinary level of cooperation in the disciplinary process. We can conceive of no circumstance in which it would be appropriately applied in a "deemed admitted” case.

      . The board particularly noted In re: Hammond, 01-0318 (La.6/29/01), 789 So.2d 1259, and In re: Dowd, 94-1365 (La.10/28/94), 644 So.2d 372. In Hammond, the respondent filed suit on behalf of a plaintiff, but later let a claim against one of the defendants be dismissed for failure to prosecute. He also failed to communicate with his client about the status of the case and failed to cooperate with ODC. This conduct caused actual harm to the respondent’s client, who was required to file a disciplinary complaint and retain new counsel to pursue a legal malpractice claim. In light of the significant mitigating factors present, including inexperience in the practice of law, absence of a prior disciplinary record, and absence of a dishonest or selfish motive, the court imposed a fully deferred four-month suspension, subject to a two-year period of supervised probation with conditions.
      In Dowd, the respondent was hired to handle two cases for a client, one of which was subsequently dismissed for lack of prosecution. Respondent failed to inform his client about the status of the matter and deceived his client by concealing the truth, and also failed to cooperate with ODC in its investigation. Citing several mitigating factors, including remorse and personal and emotional problems, the court imposed a six-month suspension.


author: It CALOGERO,

text:
    STATE of Louisiana v. Kedrick Donell MOSES
    No. 2004-K-0526.
    Supreme Court of Louisiana.
    Sept. 3, 2004.
   In Re Moses, Kedrick Donell; — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Rapides, 9th Judicial District Court Div. A, Nos. 255,576; to the Court of Appeal, Third Circuit, No. 03-1145.

Denied.

CALOGERO, C.J., would grant the writ and assigns reasons.

It CALOGERO,

Chief Justice, would grant and assigns reasons.

I would grant the writ application to consider two issues presented by this case, in which the victim had apparently vanished as a result of the kidnapping, never to be seen again, and was not available to testify: (1) whether the evidence, both direct and circumstantial, was sufficient under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), to prove that this defendant was a principal under La.Rev.Stat. 14:24 to the offense of second degree kidnapping and (2) whether the evidence was sufficient under Jackson to establish either of two aggravating factors for second degree kidnapping set forth in La.Rev.Stat. 14:44.1(A)(3) and (4), i.e., that the victim was physically injured or that he was imprisoned or kidnapped for seventy-two hours or more.


author: _JjLEON A. CANNIZZARO, JR., Judge.

text:
    Donald DOLESE v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC., d/b/a Regional Transit Authority and/or RTA, Lexington Insurance Company, and LaDorothy T. Demanuel.
    No. 2003-CA-1670.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 28, 2004.
    Rehearing Denied Sept. 30, 2004.

      David I. Courcelle, Courcelle & Burkhal-ter, LLC, and Gregory G. Faia, Faia & Faia, Metairie, LA, and Glen A. Woods, New Orleans, LA, for Plaintiff/Appellee, Donald Dolese.
    Nat G. Kiefer, Jr., Metairie, LA, for Defendant/Appellant, Transit Management of Southeast Louisiana, Inc.
    Hervin A. Guidry, Bastían & Brooks, New Orleans, LA, for Defendant/Appellant, Lexington Insurance Company.
    (Court composed of Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, Judge LEON A. CANNIZZARO, JR.).
   _JjLEON A. CANNIZZARO, JR., Judge.

This case involves an accident in which a pedestrian, Donald Dolese, was hit by a bus owned by the New Orleans Regional Transit Authority (the “RTA”). After a bench trial, the trial court judge held that the fault for the accident should be allocated ninety percent to the bus driver and ten percent to Mr. Dolese. Transit Management of Southeast Louisiana, Inc., a private corporation that manages the RTA’s transit operations, was held liable for $1,000,000.00 in general damages and $506,760.75 in past and future medical expenses. This award was reduced by ten percent due to the fault of Mr. Dolese. Transit Management is now appealing the judgment. Mr. Dolese answered the appeal claiming that the amount of the award should be increased. Lexington Insurance Company is also a party to this appeal. Lexington was the excess insurance carrier for Transit Management at the time of the accident, and its interests are aligned with those of Transit Management.

| .STATEMENT OF FACTS

Mr. Dolese was a sixty-three year old, mentally retarded gentlemen who suffered injuries when he was hit by an RTA bus. At approximately 8:00 p.m. in the evening on June 5, 1999, an RTA bus driven by LaDorothy Demanuel, a Transit Management employee, hit Mr. Dolese as he was running across Elysian Fields Avenue near its intersection with Dauphine Street in New Orleans.

Mr. Dolese was on the paved strip in the median of Elysian Fields where Elysian Fields intersected with Dauphine when he began to run at an angle across Elysian Fields in a riverbound direction. Elysian Fields had three lanes of traffic on either side of the median. As Mr. Dolese ran across Elysian Fields, the bus driven by Ms. Demanuel was traveling in a river-bound direction in the right lane on a green light. Although Mr. Dolese crossed the left and middle lanes of Elysian Fields, he was struck by the bus in the right riverbound lane.

Two motorists, Jamie Gisevius and his then wife, Elisa Gisevius, observed the accident. They were traveling on Elysian Fields in the vicinity of the bus when the accident happened. Mr. Gisevius testified at the trial, and Mrs. Gisevius’ deposition was introduced into evidence. Both of the Giseviuses observed Mr. Dolese running through the traffic just before he was hit by the bus. Mr. Dolese was the only other witness who testified at the trial with respect to liability.

bMr. Gisevius testified that he first saw the bus when he was driving away from the corner of St. Claude Avenue and Elysian Fields. Mr. Gisevius testified that he was in the middle lane of Elysian Fields driving in a riverbound direction when the bus was in the right lane moving in the same direction. Mr. Gisevius wanted to merge into the right lane to make a right turn on Royal Street, and he thought he could pass the bus. He was traveling at a rate of speed of 35 miles per hour, and he could not overtake the bus. Therefore, he slowed down so that he could merge into the right lane behind the bus.

After he was in the right lane behind the bus, he saw a pedestrian on the sidewalk in the Elysian Fields median. Mr. Gisevi-us testified that the bus was approaching a red light at the corner of Dauphine and Elysian Fields but that it did not come to a complete stop as it approached the red light, but he also said that it “[s]eemed like it stopped.” Mr. Gisevius did, however, see the brake lights on the bus. When the traffic light turned green, the bus “took off.” Mr. Gisevius testified that when he saw the bus accelerate when the light turned green, he “was horrified. Because [sic]I saw the guy crossing in front of the bus.” Mr. Gisevius testified that the “guy ended up under the back right-hand tire of the bus.”

Mr. Gisevius further testified that the traffic light for pedestrians was yellow when the pedestrian left the median. Additionally, Mr. Gisevius said that when the bus stopped prior to entering the intersection where Elysian Fields crossed Dau-phine, a car was also stopped in the left, riverbound lane of Elysian Fields. Mr. Gisevius also thought there might have been a car stopped in the middle lane. Mr. Gisevius testified that when the light at the intersection turned green, the cars began to proceed through the intersection, but they reduced their speed, “because you could see the guy was getting run over.”

|4Mr. Gisevius saw the pedestrian cross the left and middle riverbound lanes of Elysian Fields before he was hit by the bus in the right lane. Mr. Gisevius testified that the pedestrian was running or jogging across Elysian Fields at an angle in a riverbound direction when he was hit by the bus at a point that was approximately two bus lengths away from the intersection of Dauphine and Elysian Fields. Mr. Gisevius testified that after the pedestrian was hit by the bus, he heard people screaming for the bus to stop and for the bus driver to move the bus off of the pedestrian.

Mrs. Gisevius testified in her deposition that when the bus hit the pedestrian, she was sitting in the front seat of the car that her husband was driving riverbound on Elysian Fields. She testified that the car was in the middle lane on Elysian Fields and that the bus was in the riverbound right lane. Mrs. Gisevius first noticed the bus about a block before it reached the site of the accident. She said that when the bus slowed down for the red light at the intersection of Elysian Fields and Dau-phine, the car in which she was riding was positioned beside the bus with the bus in the right lane and the car in the middle lane.

When Mrs. Gisevius first saw the pedestrian, he was in the left lane of Elysian Fields, and he was running toward an upcoming bus stop. Mrs. Gisevius testified that when the bus hit the pedestrian, the car in which she was riding might have actually been behind the bus in the right lane. Mrs. Gisevius did not recall seeing any brake lights on the bus immediately prior to its hitting the pedestrian, but she did testify that the bus “proceeded to drive over this man and finally stopped on the back wheel — he was under the back wheel of the bus.” Mrs. Gisevius asked her husband to “pull over,” and when he did, she approached the accident scene.

IfiAt the scene of the accident, she “saw the man under the wheel of the bus and asked the driver of the bus to, please, roll off of him.” The bus driver responded to Mrs. Gisevius’ request by saying, “No, I can’t move until I make a phone call.” Mrs. Gisevius then said, “You must move off of him now.” At this point the bus driver “rolled backwards ... to get off of him.”

Mrs. Gisevius further testified that when the accident occurred, it was daylight and she did not see any vehicles in the area with headlights on. She also said that she was not sure when the accident occurred, but she was certain that it was not as late as 8:00 p.m. Additionally, Mrs. Gisevius could not estimate the speed of the bus from the point that the bus entered the intersection of Dauphine and Elysian Fields until the time of the accident, but she did state that the pedestrian was outside of the crosswalk when he was running diagonally in the direction of the river across Elysian Fields.

Mr. Dolese, the pedestrian who was hit by the bus, testified at the trial. Mr. Dolese testified that he was fifty years old, that he did not like living in the nursing home where he lived, and that he wanted to live alone. Regarding the accident, Mr. Dolese stated, “Me walked. The city bus rolled over my leg.” When he was asked whether it hurt when the bus rolled over his leg, Mr. Dolese said, “Sure.” He also testified that he had “two ponies” or beers prior to the accident and that he had gone to a parade that day.

On cross-examination, Mr. Dolese responded in the affirmative when he was asked whether he had been in a bar prior to the accident, whether he was hurrying home because he had to use the bathroom, and whether he saw that the bus was | ^moving when he left the median. Mr. Dolese responded negatively when he was asked on cross-examination whether he thought he could cross the street without getting hit by the bus. When he was asked why he did not stop when he knew the bus would hit him, Mr. Dolese answered, “I’m going pee-pee.” Finally, Mr. Dolese answered affirmatively when he was asked on cross-examination whether he had been hit in two other accidents, once by a truck and once by a car.

Neither Mr. Dolese nor Transit Management presented the testimony of an accident reconstruction expert at the trial. They did stipulate, however, that if the accident reconstruction experts that they had consulted in connection with this case were to testify, they would testify that the point of impact between the bus and Mr. Dolese was approximately 56 feet from the crosswalk at the intersection of Dauphine and Elysian Fields. The crosswalk to which the stipulation referred was the crosswalk on the river side of the intersection.

Robin Steiner, a social worker at Fern-crest Manor, where Mr. Dolese was a resident, testified that Mr. Dolese refused to use the prosthetic leg that had been prescribed for him. She further testified that Mr. Dolese had conflicts with his roommates, that he wanted to live alone, and that he had a hard time living with anyone. She also testified generally regarding the care Mr. Dolese was given at the nursing home and the cost of that care.

James Hunnicutt and his wife, Frances Hunnicutt, testified at the trial regarding Mr. Dolese’s lifestyle both prior to the accident and after the accident. Mr. Dolese had been employed by Mr. Hunni-cutt as a drugstore delivery man. He made deliveries on his bicycle and did odd jobs at the store. Mr. Dolese worked for Mr. Hunnicutt until he closed his drugstore. Mr. and Mrs. Hunnicutt had helped Mr. Dolese manage his affairs for a number of years, and they were still doing so |7at the time Mr. Dolese was injured. They saw Mr. Dolese almost daily prior to his accident, and they visited the nursing home once a week after he moved there. The Hunnicutts testified that Mr. Dolese spent a lot of time prior to his accident riding his bicycle, which was something he enjoyed doing. They also testified that he was unhappy at the nursing home and wanted to live independently.

At the trial the parties stipulated that the total figure for the future medical and rehabilitation expenses for Mr. Dolese would be $345,000. Additionally, Dr. Robert A. Sellards testified at the trial regarding the medical aspects of the case. Dr. Sellards testified that Mr. Dolese arrived at the emergency room at Charity Hospital with injuries to both of his lower legs. Despite aggressive treatment and several surgical procedures, Mr. Dolese’s left leg had to be amputated above the knee. The deposition of Dr. Farokh Contractor, a rehabilitation specialist at Touro Infirmary where Mr. Dolese underwent rehabilitation after his discharge from Charity Hospital, was also entered into evidence. Dr. Contractor testified that Mr. Dolese was a good candidate for a prosthetic leg.

At the trial several exhibits were introduced into evidence. One exhibit contained Mr. Dolese’s medical records showing that the percentage of ethanol in his blood when he was admitted to the emergency room at Charity Hospital on the night of the accident was 0.211 percent, an amount well above the legal limit of blood alcohol permitted for driving a vehicle. Another exhibit showed that on the date of the accident sunset was at 7:59 p.m. and that on that date the end of civil twilight, the time at which artificial lighting is needed, was 8:26 p.m.

^DISCUSSION

Standard of Review

In Rosell v. ESCO, 549 So.2d 840 (La. 1989), the Louisiana Supreme Court discussed the scope of the appellate court’s review of a trial court’s findings of fact as follows:

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.
Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. ...
When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.

Id. at 844.

Where the trier of fact, however, has not applied the correct law in arriving at its conclusions, the standard of review that this Court must use is different. In the Rosell case, the Supreme Court stated:

Nevertheless, when the court of appeal finds that a reversible error of law or manifest error of material fact was made in the trial court, it is required to redetermine the facts de novo from the entire record and render a judgment on the merits.

549 So.2d at 844, n. 2, citing Gonzales v. Xerox Corp., 320 So.2d 163 (La.1975).

| JBasis of the Trial Court’s Judgment

In her reasons for judgment the trial court judge noted that La. R.S. 32:213 imposes a duty on pedestrians to refrain from entering the path of oncoming traffic. La. R.S. 32:213 provides as follows:

A. Every pedestrian crossing a roadway at any point other than within a marked cross walk or within an unmarked cross walk at an intersection shall yield the right of way to all vehicles upon the roadway.
B. Between adjacent intersections at which traffic-control signals are in operation pedestrians shall not cross at any place except in a marked cross walk.

Nevertheless, the trial court judge found that Mr. Dolese’s violation of this statute did “not operate as a complete bar to recovery.” She then noted that La. R.S. 32:214 requires motorists to exercise care to avoid collisions with pedestrians. La. R.S. 32:214 reads as follows:

Notwithstanding the foregoing provisions of this Part, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn when necessary and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a highway.

The trial court judge then stated in her reasons for judgment that “the transit operator, LaDorothy Demanuel failed to see the plaintiff, Donald Dolese, who could have been seen if she were maintaining a sharp and vigilant lookout ahead.” The trial court judge also found that there was no evidence that Ms. Demanuel’s view was obstructed, that there was no reason that Ms. Demanuel could not have seen Mr. Dolese, and that she could have avoided hitting Mr. Dolese had she seen him. The trial court judge then apportioned fault between Mr. Dolese and Ms. Demanuel in the amounts of ten percent and ninety percent, respectively. The trial |incourt judgment based her findings regarding the relative liability of the parties on the doctrine of last clear chance.

Last Clear Chance

The doctrine of last clear chance was originated to ameliorate the harsh results that could occur under the concept of contributory fault, which barred any recovery by the plaintiff if he were negligent in any way. In fact, at least one commentator has commented that “[i]t is almost universally accepted that the last clear chance doctrine must disappear whenever a comparative fault regime — particularly, a ‘pure’ comparative fault regime like Louisiana’s — goes into effect.” David W. Robertson, Love and Fury: Recent Radical Revisions to the Law of Comparative Fault, 59 La. L.R. 175, 188-89 (Fall 1998). Nevertheless, as in the instant case, courts still invoke the doctrine of last clear chance to apportion fault when a plaintiff is negligent.

In Delta Fire & Casualty Co. v. Texas & Pacific Railway Co., 229 La. 710, 715, 86 So.2d 681, 682 (1956), the Louisiana Supreme Court stated that the plaintiff bears the burden of proof in showing that a defendant had the last clear chance to avoid an accident. See also Parks v. Texas Pacific-Missouri Pacific Terminal Railroad of New Orleans, 152 So.2d 845, 848 (La.App. 4th Cir.1963), where this Court stated that “[i]n order for the doctrine of last clear chance to control the' case, the burden of proof was upon the plaintiff. ...”

In Scott v. Glazer, 164 So.2d 185 (La. App. 4th Cir.1964), this Court discussed the doctrine of last clear chance as follows:

A litigant relying upon the doctrine of last clear chance has the burden of proving all facts and circumstances essential to its application. Before the doctrine can be successfully invoked three essential facts must be established: (1) that the person invoking the |n doctrine was in a position of peril of which he was unaware or from which he was unable to extricate himself; (2) that the person against whom the doctrine is invoked actually discovered or was in a position where he could and should have discovered such other person’s peril; and (3) that at such time the person against whom the doctrine is invoked could have avoided the accident with the exercise of reasonable care.

164 So.2d at 187 (citations omitted).

Liability for the Accident

The evidence in this case shows very clearly that Mr. Dolese was negligent. He crossed a three-lane thoroughfare outside of a crosswalk against the pedestrian traffic light either without considering the consequences of his actions or in complete disregard of those consequences. The testimony of the Giseviuses and of Mr. Dolese himself establishes Mr. Dolese’s negligence. Additionally, the medical evidence shows that at the time of the accident Mr. Dolese was very intoxicated. His level of intoxication was sufficient to seriously impair one’s judgment as well as one’s motor skills.

The only evidence that Ms. Demanuel was negligent is the testimony of the Gi-seviuses. That evidence consists of their statements that they and other motorists driving on Elysian Fields at the time of the accident were able to see and avoid hitting him. There is no evidence that Ms. Demanuel was inattentive to her driving, no evidence that she was speeding or in violation of any traffic laws, and no evidence that she saw or should have seen Mr. Dolese. The vantage point from which the Giseviuses saw Mr. Dolese running across Elysian Fields was very different from the vantage point of Ms. Deman-uel. She was in a bus in the right lane; they were in a car either in the right or the middle lane, depending on whose testimony is considered. The differences between the vantage points of the | ^Giseviuses and Ms. Demanuel are too great to extrapolate liability to Ms. De-manuel based on what the Giseviuses observed.

Unfortunately, Ms. Demanuel was not a witness at the trial, and we cannot determine from the record what she saw or should have seen as Mr. Dolese was crossing Elysian Fields. There is insufficient evidence in the record for us to determine the angle at which Mr. Dolese was running across the street. If he were running closely alongside the bus and suddenly darted in front of the bus, it would have been more difficult for Ms. Demanuel to have seen him than if he had been running perpendicular to the front of the bus in the range of the driver’s peripheral vision. The record. is devoid of critical evidence needed to determine whether Ms. Deman-uel saw or should have seen Mr. Dolese in time to avoid the accident.

In LeBlanc v. Stevenson, 2000-0157, p. 3 (La.10/17/00), 770 So.2d 766, 770, the Louisiana Supreme Court stated that “[a]l-though the appellate court must accord deference to the trial court, it is cognizant of our constitutional duty to review facts, not to decide if it, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or dearly without evidentiary support.” (Emphasis added.) In the instant case we find that the conclusion that Ms. Demanuel was negligent in hitting Mr. Dolese is clearly without evidentiary support. Additionally, we find that Mr. Dolese did not meet the burden of proof required to invoke the doctrine of last clear chance. The only evidence in this case that would even suggest that Ms. Demanuel had an opportunity to avoid the accident was the testimony of Mr. and Mrs. Gisevius. Their testimony presumes, without evidence, that Ms. De-manuel could have avoided the accident had she been appropriately attentive.

| ^Because there is a lack of eviden-tiary support for the finding that Ms. De-manuel was negligent in hitting Mr. Dolese and because Mr. Dolese did not meet the necessary burden of proof to show that Ms. Demanuel had the last clear chance to avoid hitting Mr. Dolese, we have reviewed the record in this case de novo as required by Rosell v. ESCO, 549 So.2d 840, 844, n. 2 (La.1989). After reviewing the record de novo, we have determined that Mr. Dolese’s negligence in running across Elysian Fields outside of a crosswalk when the light for the vehicles traveling on that thoroughfare was green was the sole proximate cause of his being hit by the bus driven by Ms. Demanuel. Conversely, we find that Ms. Demanuel was free from fault in hitting Mr. Dolese.

Liability for the Intentional Acts of Ms. Demanuel

There is unrefuted evidence from the testimony of both of the Giseviuses that after the bus hit Mr. Dolese, his legs were unnecessarily trapped under the right rear tires of the bus for approximately thirty seconds. Ms. Demanuel initially refused to move the bus off of Mr. Dolese’s legs, because she wanted to make a telephone call first. Only after Mrs. Gisevius, and possibly others, demanded that Ms. Demanuel move the bus off of Mr. Dolese’s legs did she do so. Because of her intentional refusal to move the bus, Mr. Dolese suffered unnecessary pain and suffering from having the weight of the bus on his legs at least thirty seconds longer than was necessary.

La. C.C. art. 2320 provides that “[mjasters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” When an employee commits an intentional | utort, however, vicarious liability will attach only when the employee is acting within the ambit of the employee’s assigned duties and in furtherance of the employer’s objective. See, e.g., Baumeister v. Plunkett, 95-2270 (La.5/21/96), 673 So.2d 994, 996; Faust v. Greater Lakeside Corp., 98-2853, p. 7 (La.App. 4 Cir. 9/12/01), 797 So.2d 748, 754.

In the instant case we find that Ms. Demanuel was acting within the scope of her employment when she refused to move the bus. Therefore, Transit Management is liable for her intentional failure to immediately relieve the pain and suffering caused by the bus being on top of Mr. Dolese’s legs. Therefore, we have determined that there should be judgment in favor of Mr. Dolese and against Transit Management in the amount of $100,000.00. We think that this amount is sufficient to compensate Mr. Dolese for the pain and suffering he incurred during the extra thirty seconds that the bus remained on his legs after it could have been moved. Trial Court Judgment

Because we have determined that Mr. Dolese failed to prove by a preponderance of the evidence that Transit Management’s negligence was a proximate cause of the accident that occurred when the bus driven by Ms. Demanuel hit him, it is unnecessary for us to address the assignments of error raised by Transit Management in its brief. We do, however, need to render a judgment on the merits of the case, because we have determined that there was 1T irreversible error in the trial court judgment. See Rosell v. ESCO, 549 So.2d 840, 844, n. 2 (La.1989).

The judgment of the trial court is hereby reversed, and we hereby render judgment against Transit Management and in favor of Mr. Dolese in the amount of one hundred thousand ($100,000.00) dollars in general damages plus legal interest from the date of judicial demand until paid. All parties shall bear their own costs.

CONCLUSION

For the foregoing reasons, we find that there was no negligence or liability on the part of Transit Management for the damages Mr. Dolese incurred when he was hit by the bus. We do find, however, that Ms. Demanuel committed an intentional tort when she refused to move the bus off of Mr. Dolese’s legs for a period of thirty seconds. We, therefore, award Mr. Dolese general damages in the amount of one hundred thousand ($100,000.00) dollars as compensation for his additional pain and suffering.

JUDGMENT REVERSED AND RENDERED.

      . In the original judgment rendered by the trial court, Lexington and Transit Management were both held liable for the entire amount of the damages awarded to Mr. Dolese. Lexington then filed a motion for a new trial limited to the issue of the insurance coverage owed by Lexington. The motion for a new trial was granted, and a new judgment was rendered providing that "in the event that the principal, interest, and costs due under this judgment should exceed the sum of two million dollars,” Lexington would be solidarity liable with Transit Management for all sums due in excess of that amount. Transit Management would be solely liable for all amounts up to two million dollars.

      . In her Reasons for Judgment the trial court judge stated that the accident occurred at approximately 8:00 p.m., but both Mr. Dolese and Transit Management state in their briefs that the accident occurred at approximately 8:25 p.m.

      .Although Ms. Demanuel did not testify at the trial, the parties stipulated that Ms. De-manuel was driving the bus in the course and scope of her employment with Transit Management at the time of the accident. Ms. Demanuel was a named defendant in this case, but she was never served. She was dismissed from the litigation with prejudice at the trial. Transit Management remained liable, however, for any negligence on the part of Ms. Demanuel under the doctrine of re-spondeat superior. La. C.C. art. 2320.

      . He was actually in his mid-sixties at the time of the trial.

      . Evidence that there were no parades scheduled in New Orleans on the day of the accident was presented at the trial.

      . Mr. Gisevius testified that the bus remained on Mr. Dolese’s legs for thirty seconds before the bus driver moved the bus.

      . The record does not reflect exactly why Ms. Demanuel refused to move the bus other than that she wanted to make a telephone call first. At oral argument there were indications that she wanted to telephone her supervisor for instructions before she moved the bus.


author: | Judge MICHAEL E. KIRBY.

text:
    ACTION FINANCIAL SERVICES, INC. v. Curtis J. CONEY, Jr. and Robert G. Harvey, Jr.
    No. 2003-CA-1787.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 28, 2004.

      Gary A. Cotogno, Pickering & Cotogno, New Orleans, LA, for Plaintiff/Appellant.
    Mark P. Glago, The Law Office of Mark P. Glago, L.L.C. New Orleans, LA, for Defendant/Appellee (Robert G. Harvey, Sr.).
    Keith A. Doley, Catrice A. Johnson, New Orleans, LA, for Defendant/Appellee (Curtis J. Coney, Jr.).
    (Court composed of Judge MICHAEL E. KIRBY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   | Judge MICHAEL E. KIRBY.

Plaintiff, Action Financial Services, Inc., appeals the trial court judgment granting partial summary judgment in favor of defendants, Curtis J. Coney, Jr. and Robert G. Harvey, Jr., declaring that the continuing guarantee executed by defendants secured only loans made to Curtis Coney Law Service, and granting summary judgment in favor of defendant Harvey dismissing him from this lawsuit. We affirm.

Plaintiff filed suit against defendants on March 5, 1992, alleging that defendants were liable to plaintiff in the sum of $159,869.75 plus interest, costs and fees for unpaid loans extended to clients of defendants. According to the petition, the defendants guaranteed funds advanced by plaintiff to Coney Law Service up to $300,000.00 pursuant to continuing guarantees executed by defendants on October 11 and 12, 1982. In a supplemental and amending petition, plaintiff alleged that even though the loans were made in the names of the individual clients of Coney Law Service, it was the intent and practice of the parties that Mr. Coney and Mr. Harvey would guarantee these individual loans. This petition asked that the trial court reform the continuing guarantees to reflect the true intent of the contracting parties.

12Mr. Harvey and Mr. Coney both filed motions for summary judgment, arguing that under the clear and unambiguous wording of the continuing guarantees, they can only be held liable for sums loaned to Coney Law Service. In support of their motions, Mr. Harvey and Mr. Coney attached copies of the continuing guarantees, a copy of plaintiff’s original petition and letters to plaintiff from Mr. Coney requesting loans for clients. Furthermore, Mr. Harvey argues that he should be dismissed from this lawsuit because he did not sign any of the letters requesting loans from plaintiff.

Plaintiff also filed a motion for summary judgment, arguing that the loans to individuals advanced at the request of Coney Law Service are secured by the continuing guarantees, or alternatively, that the guarantees should be reformed to represent the intent of the parties to secure the loans to Coney Law Service clients with the continuing guarantees. Plaintiff attached several exhibits to its opposition, including the deposition of its CEO John Onstott; the depositions of Mr. Coney and Mr. Harvey; the continuing guarantees; the affidavit of plaintiffs manager, Tina Lane; the deposition of Alice Crull, who occasionally closed loans for plaintiff and letters to plaintiff signed by Mr. Coney requesting loans for certain individuals.

Following a hearing on the motions for summary judgment, the trial court rendered judgment on June 24, 2002 denying plaintiffs motion for summary judgment, granting partial summary judgments in favor of Mr. Coney and Mr. Harvey against plaintiff declaring that the continuing guarantees secured only loans made to Coney Law Service and granting summary judgment in favor of Mr. Harvey against plaintiff, dismissing plaintiffs suit against that defendant. In reasons for judgment, the trial court stated that it found that the continuing | ..¡guarantees are clear and unambiguous, and do not guarantee debts of the clients of Coney Law Service as alleged by plaintiff. Plaintiff appeals.

Before addressing the merits of this appeal, we note that on March 4, 2004, this Court ordered plaintiff to show cause why this appeal should not be dismissed as not immediately appealable under La. C.C.P. article 1915 because there are parties whose liability has not yet been determined and the judgment was not properly designated by the trial court as a final judgment. Plaintiff responded with a memorandum, which pointed out that its petition was filed in 1992, and at that time, La. C.C.P. article 1915 did not require the trial court to certify an appeal as final in order to be immediately appealable, even when there are parties remaining whose liability has not yet been determined. We agree with plaintiff that the judgment in this matter is immediately appealable.

On appeal, plaintiff argues that the trial court erred in granting partial summary judgment in favor of defendants Coney and Harvey, declaring that the continuing guarantees executed by them secured only loans made to Curtis Coney Law Service, and in granting summary judgment in favor of defendant Harvey dismissing plaintiffs claims against him. Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. Article 966 was amended in 1996, but the burden of proof remains with the mover to show that no genuine issue of material fact exists. If the mover will not bear the burden of proof at trial, his burden on the motion does not require him to negate all essential elements of the plaintiffs claim, but rather to point out that there is an absence of factual support for one or more elements essential to the 14claim. La. C.C.P. art. 966 C(2); Fairbanks v. Tulane University, 98-1228 (La.App. 4 Cir. 3/31/99), 731 So.2d 983. After the mover has met its initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966 C(2); Smith v. General Motors Corp., 31, 258 (La.App. 2 Cir. 12/9/98), 722 So.2d 348. If the non-moving party fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judg ment as a matter of law. La. C.C.P. art. 966; Schwarz v. Administrators of Tulane Educational Fund, 97-0222 (La.App. 4 Cir. 9/10/97), 699 So.2d 895. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.

La. C.C. article 2046 states as follows:

When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.

The continuing guarantee executed by Mr. Coney guarantees extensions of credit by plaintiff to “Curtis Coney’s Law Service,” and the continuing guarantee executed by Mr. Harvey guarantees extensions of credit by plaintiff to “Coney’s Law Service.” Neither guarantee contains any statement that the defendants also agreed to guarantee amounts loaned by plaintiff to clients of the Coney Law Service. The terms of the continuing guarantees are clear and unambiguous, and do not lead to absurd consequences. Therefore, no further interpretation may be made of the parties’ intent. The continuing guarantees only cover debts of the Coney Law Service, and do not extend to loans made by plaintiff to the clients of Coney Law Service. The trial court correctly granted partial summary judgment |5declaring that the continuing guarantees executed by defendants secured only loans made to Curtis Coney Law Service.

Plaintiff also argues that the trial court erred in granting summary judgment in favor of Mr. Harvey and dismissing plaintiffs suit against him. In support of his motion for summary judgment asking to be dismissed from this action, Mr. Harvey introduced letters written to plaintiff requesting that plaintiff extend a loan to certain individuals. Mr. Coney signed all of these letters. Plaintiff submitted one letter signed by Mr. Harvey requesting a loan to an individual, but that letter was not addressed to plaintiff. It was addressed to a separate entity called Magnolia Credit, Inc.

Plaintiff argues that there is a question of fact as to Mr. Harvey’s liability in this case because of the continuing guarantees and the letters requesting that loans be extended to certain individuals. As stated above, the continuing guarantees signed by Mr. Coney and Mr. Harvey clearly and unambiguously secured only loans made to the Coney Law Service, and Mr. Harvey did not sign any of the letters written to plaintiff requesting that loans be made to certain individuals. Thus, plaintiff has not offered any support for its claim that Mr. Harvey is personally liable for loans made by plaintiff to clients of the Coney Law Service. We find that summary judgment was appropriately granted in favor of Mr. Harvey, dismissing him from this lawsuit. Furthermore, we find that the trial court complied with the time limits set forth in La. C.C.P. article 966(D), and plaintiffs argument to the contrary is without merit.

|fiFor the reasons stated above, we affirm the trial court judgment. We deny plaintiffs motion to strike Mr. Coney’s brief, but we note that the plaintiffs action against Mr. Coney is still viable.

AFFIRMED.


author: JjMAX N. TOBIAS, JR., Judge.

text:
    David Anthony BATES, et al. v. Chavez CARUSO, et al.
    No. 2003-CA-2150.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 28, 2004.

      Glenn C. McGovern, New Orleans, LA, for Plaintiffs/Appellants.
    Sherry S. Landry, City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, Annabelle H. Walker, Deputy City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, and Judge MAX N. TOBIAS, JR.).
   JjMAX N. TOBIAS, JR., Judge.

Plaintiff/appellant, David Bates (“Bates”), appeals from a judgment rendered in favor of the defendant/appellee, the City of New Orleans (hereinafter “the City”), stemming from sexual abuse perpetrated upon Bates by former police officer, Chavez Caruso (“Caruso”). After a review of the record and the applicable law, we affirm the judgment.

On 1 October 1992, the City of New Orleans entered into an agreement with the New Orleans Police Athletic League (hereinafter “PAL”) to develop a scouting program within the already-existing PAL program. PAL is a recreation-oriented juvenile crime prevention program that relies heavily on athletics and recreational activities to “create and cement the bond between the police officers and the kid on the street.” PAL was administered by the New Orleans Police Department (hereinafter “NOPD”) as a separate unit of the department. Police officers working with PAL were assigned to the unit and had no other police duties, although they were still paid by the City.

| ^Caruso was assigned as the scoutmaster of PAL Boy Scout Troup # 92. However, as recognized by the trial court, and as supported by the record, the troop was never officially sanctioned by the Boy Scouts of America or its local affiliate. Further, no evidence exists that Caruso received any training on his duties as scoutmaster or that the NOPD promulgated any written rules pertaining to the duties and/or limitations of a scoutmaster.

Caruso had been engaged in an on-again, off-again relationship with the Bates’ mother (“Mrs. Bates”), who passed away in 1998. In approximately 1993, after the relationship had ended, Caruso asked Mrs. Bates if the appellant could join Boy Scout Troup # 92. Bates was 15 years of age at the time. In addition to scout meetings, camping trips, and marching in Mardi Gras parades, the members of Troup # 92 often spent time at Caruso’s home. Some of them, including Bates, would spend a weekend night at Caruso’s house. In particular, Mrs. Bates would frequently allow Bates to spend weekends there, dropping him off on Fridays and picking him up on Sunday mornings. Caruso also had another minor boy living in his home.

On several occasions, while sleeping at Caruso’s house, Caruso sexually abused Bates. The abuse never occurred during a scouting activity or scouting overnight. Bates finally told his mother of the abuse in 1995 when he was 16 years old. The abuse was reported to the NOPD, which conducted surveillance and ^confirmed that adolescent boys were present in Caruso’s house. Caruso was eventually arrested and, on 12 August 1997, pled guilty to two counts of molestation, violations of La. R.S. 14:81.2, and one count of aggravated crime against nature, a violation of La. R.S. 14:89.1. He was sentenced to three years at hard labor without benefit of probation, parole, or suspension of sentence.

In October 1997, Bates and his mother, individually and as his administratrix and natural tutor, filed a petition for damages against Caruso, the City, the NOPD, the New Orleans Area Counsel Boy Scouts of America, and Caruso’s homeowner’s insurer, for pecuniary and non-pecuniary damages suffered as a result of the abuse.

A default judgment was entered against Caruso, while the New Orleans Area Counsel Boy Scouts of America (now the Southeast Louisiana Counsel, Boy Scouts of America) was dismissed without prejudice. However, before being dismissed, the New Orleans Area Counsel Boy Scouts of America answered Bates’ discovery. The discovery responses, which were filed into the record, reveal that: (1) Caruso was never affiliated in any capacity as a registered leader with the New Orleans Area Counsel Boy Scouts of America; (2) the appellant was not a registered scout as reflected by the Counsel’s records; (3) based upon a search of records back to 1976, Troup # 92 was not a New Orleans Troup, but is located in St. John the Baptist Parish; and (4) the computer files failed to reveal that either Bates or Caruso were ever associated with any organization within the New Orleans Area Counsel.

LA bench trial was held on 13 April 2003. On 7 May 2003, the trial court rendered judgment in favor of the City. In its reasons for judgment, the trial court stated:

The threshold question is whether or not Caruso’s conduct was in the course and scope of his employment. The Court finds that the conduct was not. The factors to be considered in determining whether an employer may be liable for an intentional tort of an employee are whether the tortious act was primarily employment rooted, reasonably incidental to the performance of the employee’s duties, occurred on the employer’s premises, and occurred during the hours of employment duties as to be regarded as a risk of harm fairly attributable to the employer’s business imposes vicarious liability on an employer. In the case at bar, the acts were committed at the employee’s home outside of work hours. The acts did nothing to further the employer’s interest, they were entirely personal. This is not to say that the Court is condoning the extraordinarily sloppy policies of the NOPD. To the contrary. But under the relevant case law, the NOPD and the City of New Orleans aren’t liable to David Bates.

The issue presented for appeal is whether Caruso’s intentional conduct was sufficiently employment-related so that vicarious liability should be imposed upon the City. This question is a mixed question of fact and law, and the trial court’s resolution of that question is entitled to great deference on review by the court of appeal under the manifest error standard. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. Nevertheless; the reviewing court must determine that the record contains sufficient support in the evidence, viewed in the light most favorable to the party that prevailed in the trial court, for a rational trier of fact to have found that the tortious conduct was or was not employment-related. The reviewing court can only reverse a lower court’s factual findings when (1) the | ^record reflects that a reasonable factual basis does not exist for the finding of the trial court and (2) the record establishes that the finding is clearly wrong. Russell v. Noullet, 98-0816, p. 5 (La.12/1/98), 721 So.2d 868, 871-72.

The Supreme Court stated as follows in Russell:

The principle of vicarious liability is codified in La. Civ.Code art. 2320, which provides that an employer is liable for the tortious acts of its employees “in the exercise of the functions in which they are employed.” While the course of employment test refers to time and place, the scope of employment test examines the employment-related risk of injury. Baumeister v. Plunkett, 95-2270 (La.5/21/96); 673 So.2d 994, 996, citing Benoit v. Capitol Mfg. Co., 617 So.2d 477, 479 (La.1993). The inquiry requires the trier of fact to determine whether the employee’s tortious conduct was “so closely connected in time, place and causation to his employment-duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations entirely extraneous to the employer’s interests.” LeBrane v. Lewis, 292 So.2d 216, 218 (La.1974).

Id. at p. 4, 721 So.2d at 871. It is not necessary that all four factors be met in order to find liability. There are no magical requirements and each case must be decided on its own merits. Miller v. Keat-ing, 349 So.2d 265 (La.1977). “Generally speaking, an employee’s conduct is within the course and scope of his employment if the conduct is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least | fiin part by a purpose to serve the employer.” Orgeron v. McDonald, 93-1353, p. 4 (La.7/5/94), 639 So.2d 224, 226-27.

The record clearly demonstrates that the City promoted the PAL scouting program and that the program was used to raise money for it and other PAL activities. In addition, the City received benefits in the form of good publicity from promoting the program through public appearances, like marching in Mardi Gras parades. Insofar as fundraising, businesses in the City contributed money to the PAL program, such as Freeport McMoRan and Entergy.

This court is deeply troubled by the City’s actions in this matter. The evidence demonstrates that it promoted a “bona fide” scouting program that did not exist, at least according to the Boy Scouts of America. In addition, it placed Caruso in charge as scoutmaster, despite any confirmation that he had a scouting background and/or the ability or training to assume that position. Further, the record is devoid of any evidence that Caruso was in any way supervised in his activities as a scoutmaster. The City placed Caruso in a position of trust with these young men and their parents without any knowledge or confirmation that any trust was warranted.

On the other hand, as recognized by the trial court, Caruso’s crimes were intentional acts that were committed at his home outside of his working hours as a scoutmaster or member of the PAL program. We cannot ignore the fact that Caruso was a presence in Bates’ life before the scouting activities began, although the “sleepovers” did not begin until after Bates joined the scouts. In fact, the testimony was that Mrs. Bates viewed Caruso as a “father figure” to her boys and was in favor of the additional time Bates spent with Caruso. This is not to say that Mrs. Bates was in any way responsible for what happened to her son. Instead, it ^demonstrates that Bates spent time with Caruso that was not primarily employment related or motivated.

We are also aware of the testimony in which Bates links his visits to the Caruso home with the scout meetings that took place on Saturday mornings. While this might explain an occasional Friday night sleepover, it does not account for the additional time spent with Caruso, and does not necessarily confer vicarious liability on the City.

Bates urges the court to follow the reasoning in Applewhite v. City of Baton Rouge, 380 So.2d 119 (La.App. 1 Cir.1979), and Turner v. State, 494 So.2d 1292 (La. App. 2 Cir.1986), to impose liability. However, both cases are distinguishable from the matter before us. In Applewhite, the plaintiff was taken into police custody by a police officer for the City of Baton Rouge, and taken to a desolate location where she was forced to engage in sexual acts with him and a corrections officer employed by the State of Louisiana. The court found that the City of Baton Rouge was liable because the acts were committed by an armed uniformed officer in a vehicle provided by the City under the apparent authority of his position. Id. at 120-21. In the instant matter, no employment-related basis existed for the overnight visits at Caruso’s home. We find no connection between the overnights and the approved scouting activities so as to impose liability upon the City.

In Turner, a recruiting officer for the Louisiana National Guard (“LNG”) was invited to the Turner home to discuss with four young women their joining the LNG. The officer interviewed the women and then deceived them into believing that he had the authority to conduct a physical exam. He then proceeded to touch lathe women inappropriately. After being denied admission to the LNG and upon learning that the officer was not authorized to conduct the physical, suit was filed.

Liability was imposed because the court found:

Sudduth’s battery upon the young women was closely connected in time, place, and causation to his employment duties. The sergeant visited the girls in his capacity as a recruiting officer after they expressed a desire to enter the LNG. The Turner home where the incident occurred was located in Tensas Parish which was part of the recruiting area assigned to Sgt. Sudduth and the incident occurred during working hours. During the interview process, he mislead the young women into believing that he had authority to conduct a physical examination. Thus, the tortious conduct committed by Sgt. Sudduth was reasonably incidental to the performance of his duties as a recruiting officer although totally unauthorized by the employer and obviously motivated by his personal interests. Furthermore, the sergeant’s actions were so closely connected to his employment duties that the risk of harm faced by the young women was fairly attributable to his employer, who had placed the sergeant in a position of trust and authority in contacting young persons for recruitment into the guard. See Applewhite v. City of Baton Rouge, 380 So.2d 119 (La.App. 1st Cir.1979) in which the City was held liable for the conduct of police officers who used their position of trust and authority to order the plaintiff into their patrol car where they raped her.
Sudduth’s conduct, we conclude, was within the scope of his employment. The State of Louisiana is thus answerable in damages for the injuries sustained by the plaintiffs.

Id. at 1296. In this case, however, Caruso was not acting as a scoutmaster for the PAL scouting program when the abuse took place. While the City placed Caruso in a position of trust and authority, his actions were not so closely connected to his employment duties that the risk of harm faced by Bates is fairly attributable to his employer.

In addition, we reject the argument that Caruso was always “on the job” as a police officer. For example, in Roberts v. Benoit, 605 So.2d 1032 (La.1991), the 19court found the sheriffs office was not liable for an accidental shooting by an off-duty employee (a cook) who had been commissioned as a deputy sheriff. The court based its decision partly on the fact that the sheriffs office had neither given the gun to the cook/deputy, nor was he required to carry one. In its brief, the City quotes a passage from a 1959 New York case, which was also quoted by the Roberts court:

It is important to distinguish this situation from the cases in which intoxicated or unbalanced police officers, generally after a tour of the bars, proceeded to shoot some innocent bystander. Absent proof of prior notice of such propensities on the part of the authorities, the city may not be held liable under the doctrine because the officer has then gone “outside of his employment, and without regard to his service, acting maliciously, or in order to effect some purpose of his own.”

Roberts, supra, at 1038, quoting Collins v. City of New York, 11 Misc.2d 76, 171 N.Y.S.2d 710, 714 (Sup.Ct.1958), aff'd 7 N.Y.2d 822, 196 N.Y.S.2d 700, 164 N.E.2d 719 (1959).

In the instant matter, the City had no knowledge of Caruso’s propensity to abuse teenage boys. We conclude that Caruso was outside his employment and was effecting a purpose of his own when the abuse took place.

Admittedly, this is a troubling case, one that we may have decided differently. However, in light of the evidence in the record, we do not find that the trial court was manifestly erroneous or clearly wrong by finding in favor of the City. Consequently, we affirm the judgment.

AFFIRMED.

      . The initial monies for the PAL program came from a federal block grant, but the program continued though donations from people and companies in the New Orleans area.

      .There is some evidence in the record that Mrs. Bates and Caruso were dating at the time the abuse took place, however, the appellant never spent a night at Caruso’s home prior to joining the PAL scouting program.

      . The appellant is a mentally challenged young man.

      . There is conflicting evidence in the record on this point

      . The LeBrane factors inquire into:
      (1) whether the tortious act was primarily employment rooted;
      (2) whether the violence was reasonably incidental to the performance of the employee's duties; (3) whether the act occurred on the employer’s premises; and
      (4) whether it occurred during the hours of employment.

        LeBrane, 292 So.2d at 218.


author: hTERRI F. LOVE, Judge.

text:
    STATE of Louisiana in the Interest of D.S.
    No. 2004-CA-0327.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 28, 2004.
    Hilliard C. Fazande, III, Orleans Indigent Defender Program, New Orleans, LA, for Appellant.
    Eddie J. Jordan, Jr., District Attorney, Zata W. Ard, Asst. District Attorney, New Orleans, LA, for Appellee.
    (Court composed of Judge JAMES F. McKAY III, Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR.).
   hTERRI F. LOVE, Judge.

The State of Louisiana placed the minor child, D.S., into temporary custody finding the child was a victim of abuse. The trial court ruled the child to be in need of care from both parents. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Pursuant to a request from the Department of Social Services, an Instanter Order was issued on November 24, 2003, placing the minor child, D.S., in the temporary custody of the State of Louisiana. A full hearing to determine custody of D.S. occurred on January 28, 2004, wherein the child’s father, David Harold (“Harold”), was present and represented by counsel, but his mother, Gifton Stewart (“Stewart”), was not present.

Marion Johnson, a child protection investigator with the New Orleans Child Protection Office of Community Services, testified they received a referral indicating D.S. and his brother were being abused by their mother. The agency’s efforts to locate Stewart and the children were unsuccessful. On November 20, 2003, the agency learned D.S.’s brother died, and they were able to locate D.S. at the residence of Ms. Lisa Martin. Ms. Johnson personally observed a bruise on D.S.’s head, scars, and other marks on his body. She further testified D.S. told her |Pthat his mother, Stewart, had caused the injuries, and that his mother had grabbed him around the neck and threw him into a wall causing the “hickey” on his head. Ms. Johnson further testified that on November 25, 2003, she participated in a telephone interview with the child’s father, Harold. During the conversation, Harold stated that he was aware that Stewart was abusing their son.

The second witness was Lisa Martin. D.S. was under the care of Ms. Martin during the State’s investigation. She testified that D.S. began living with her in July of 2003. At that time, he had numerous scars, scratches, and a busted lip. She further testified that D.S. identified his mother as the person who punched him. Stewart had also tied him up and locked him in a closet. Ms. Martin refused to return D.S. to Stewart threatening to call authorities. Ms. Martin testified she notified D.S.’s father, Harold, and he cared for the child for approximately three weeks. Harold’s girlfriend returned D.S. to Ms. Martin indicating Harold was incarcerated and could no longer care for his son.

The third and final witness, Troy August, testified he personally witnessed Stewart’s abuse of D.S., and further that he specifically told Harold of the “hickey” incident.

After a full hearing on the matter, the trial court rendered judgment on January 28, 2004, finding D.S. to be a child in need of care as to his mother and father. The trial court made the following findings:

... D.S. (D.O.B.: 11/1/97) is hereby found to be a child in need of care as to the mother, Gifton Stewart, based on the testimony to abuse by Gifton Stewart as it relates to her child, D.S., as to statements made by the child regarding how he sustained various injuries and the worker’s testimony regarding statements that the mother made to her regarding how D.S. sustained the injuries. The Court finds D.S. in need of care as to the father, David Harold, based on the testimony by the worker that David Harold knew of the abuse |sto D.S. and yet took no steps to remove the child from the care of the mother.

Harold has instituted this appeal.

ANALYSIS

The appellant, Harold, asserts the trial court erred when it ruled that D.S. was a child in need as to his father. Harold argues that the State’s only evidence the appellant knew of his son’s abuse was contradicted by its own witness and that the specific time and date of abuse was not supplied. The defendant further contends that no medical evidence was offered to establish if the child’s injuries were caused by abuse.

The State argues the record is sufficient to establish that Harold was aware of the abuse suffered by his son, yet he did not initiate the appropriate response to protect him from the abuse.

The trial judge is vested with great discretion and such a decision will not be reversed on appeal absent a showing of abuse of that discretion. State of Louisiana in the Interest of M.L., 611 So.2d 658, 660 (La.App. 4 Cir.1992). It is well settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. State in the Interest of S.M.W., 2000-3277, p. 14 (La.2/21/01), 781 So.2d 1223, 1233, citing In re A.J.F., 2000-0948 (La.6/30/00), 764 So.2d 47. In its manifest error review, it is important that the appellate court not substitute its opinion when it is the juvenile court judge who is in the unique position to see and hear the witnesses as they testify. Id.

La. Ch. C. art. 606 provides in pertinent part:

A. Allegations that a child is in need of care must assert one or more of the following grounds:
|4(1) The child is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker, by a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or by a person living in the same residence with the parent or caretaker as a spouse whether married or not, and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.

Moreover, the State shall have the burden to prove the allegations of a child in need of care petition by a preponderance of evidence. La. Ch. C. art. 665; State in Interest of H.P., 98-1015 (La.App. 3 Cir.10/28/98), 721 So.2d 546; State ex rel. J.T. v. James, 34,024 (La.App. 2 Cir. 8/23/00), 765 So.2d 1220.

This court has heretofore held that a determination that a parent knows of the abuse of a child by another, but fails to protect the child, is sufficient to affirm the trial court’s finding that a child is in need of care. State ex rel J.W., 03-1180, p. 9 (La.App. 4 Cir. 10/22/03), 860 So.2d 576, 582.

In the present case, the State presented undisputed testimony that Stewart abused D.S. by witnesses Marion Johnson, Lisa Martin, and Troy August. The previously mentioned witnesses also testified that Harold was aware of the abuse. Harold’s contention that he was not present during an abusive incident which is supported by the testimony of Troy August does not negate the fact that he was aware abuse was present. Harold was aware D.S. was a victim of abuse and failed to protect the child. We find the trial court properly determined that D.S. was a child in need of care.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court decreeing D.S. to be a child in need of care as to his father.

AFFIRMED.

      . In accordance with the practices of this Court, we have used initials in order to protect the children's privacy.