author: | ¡WHIPPLE, J. | ^OWNING, J.,

text:
    Janice M. THOMAS, Yolanda M. Pierre, Geraldine Williams, Deana E. Francis, Gaile Montgomery, Mary H. Knight, Cindy Woods, Janell Jones, Iris Reed Phipps and Georgia Caston v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS, Municipal Officers’ Supplemental Pay Board of Review and the Individual Members Thereof, Sid Gautreaux, President, Robert Rachal and Kay F. DeBenedetto.
    No. 2003 CA 2271.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.

      Gerald Wasserman, Metairie, for Plaintiffs/Appellees, Janice M. Thomas, et al.
    W.L. West, Willie E. Broome, Baton Rouge, for Defendants/Appellants, Louisiana Department of Public Safety And Corrections, Municipal Police Officers’ Supplemental Pay Board of Review, et al.
    Before: WHIPPLE, FITZSIMMONS and DOWNING, JJ.
   | ¡WHIPPLE, J.

In this appeal, defendants challenge the judgment of the district court reversing the decision of the Louisiana Department of Public Safety and Corrections, Municipal Police Officers’ Supplemental Pay Board of Review, which had denied plaintiffs’ applications for supplemental pay. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs are full-time radio dispatchers for the City of New Orleans Police Department who were employed prior to January 1, 1986 and who are paid solely from municipal funds. In May of 2000, plaintiffs and their employer, the City of New Orleans, executed forms for “Municipal Police Officers’ Supplement Pay pursuant to R.S. 83:2218.1, et seq., Act 49 of 1959,” seeking state supplemental pay. The forms were forwarded to the Municipal Police Officers’ Supplemental Pay Board of Review (“Board of Review”). However, the Board of Review denied plaintiffs’ requests for supplemental pay on the basis that these officers were not POST (Peace Officer Standards and Training) certified. Plaintiffs’ request for reconsideration was also denied.

Plaintiffs then filed a petition for judicial review in the Nineteenth Judicial District Court. The parties stipulated to the facts at issue, and following oral argument, the district court reversed the Board of Review’s decision. The district court determined that it was the legislature’s intent that these radio dispatchers receive state supplemental pay, despite their lack of POST certification, in that they were all hired prior to the 1986 date after which POST certification was required as a prerequisite to eligibility for state supplemental pay. Thus, the district court reversed the Board of Review’s decision that had denied plaintiffs state supplemental pay. From |3this judgment, the Board of Review and its individual members appeal, contending that the district court erred as a matter of law in reversing the determination of the Board of Review that plaintiffs were ineligible to receive state supplemental pay.

STANDARD OF REVIEW

The right to judicial review of final decisions in administrative adjudication proceedings is set forth in LSA-R.S. 49:964(A). When reviewing an administrative final decision in an adjudication proceeding, the district court functions in part as an appellate court. Mayo v. Municipal Police Board of Review, 98-1864, p. 6 (La. App. 1st Cir.11/5/99), 745 So.2d 188, 191. The standard of review to be applied by the reviewing court is set forth in subsection G as follows:

The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(1) In violation of constitutional or statutory provisions;
(2) In excess of the statutory authority of the agency;
(3) Made upon unlawful procedure;
(4) Affected by other error of law;
(5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
(6) Not supported and sustainable by a preponderance of evidence as determined by the reviewing court. In the application of this rule, the court shall make its own determination and conclusions of fact by a preponderance of evidence based upon its own evaluation of the record reviewed in its entirety upon judicial review. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first-hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.

LSA-R.S. 49:964(G).

The present case does not involve a factual dispute. Instead, the parties disagree on the application of the eligibility requirements for | supplemental pay set forth in LSA-R.S. 33:2218.2(A)(1) to the stipulated facts herein. Accordingly, the issue on appeal is whether the Board erred in its interpretation and application of the eligibility requirements of LSA-R.S. 33:2218.2(A)(1). See Mayo, 98-1864 at p. 6, 745 So.2d at 191.

DISCUSSION

Louisiana Revised Statute 33:2218.1, et seq., provides for the creation of a special fund in the state treasury for the payment of supplemental salaries to municipal police officers and full-time commissioned deputy sheriffs. Anderson v. State, 363 So.2d 728, 729 n. 1 (La.App. 2nd Cir.), unit denied, 364 So.2d 600 (La.1978). Louisiana Revised Statute 33:2218.2 sets forth the eligibility requirements for entitlement to state supplemental pay. At the time plaintiffs applied for supplemental pay, this statute provided in pertinent part as follows:

A. (1) In addition to the compensation now paid by any municipality included in this Subpart ... to any police officer, every police officer employed by any municipality ... who devotes his full working time to law enforcement, and for those hired after March 31, 1986, who have completed and passed a council-certified training program as provided in R.S. 40:2405, shall be paid by the state extra compensation in the amount of three hundred dollars per month for each full-time municipal ... officer who has completed or who thereafter completes one year of service.
C. For purposes of this Subpart a municipal ... police officer entitled to additional pay out of state funds shall mean and refer to:
(5) Any person employed on a full-time basis by a municipality ... and all of whose compensation out of public funds is paid solely from municipal ... funds for full-time work as a radio dispatcher.

LSA-R.S. 33:2218.2.

| ^Section (A)(1) generally establishes who is eligible for supplemental pay, while Section (C) specifically describes who “shall” be deemed a “police officer entitled to [supplemental] pay.” Mayo, 98-1864 at p. 7, 745 So.2d at 193. Because plaintiffs are all full-time radio dispatchers, they clearly fall within the category of those police officers deemed to be entitled to supplement pay, as established by Section (C)(5) of LSA-R.S. 33:2218.2. Thus, the question before this court is whether plaintiffs satisfy the eligibility requirements of Section (A)(1) of LSA-R.S. 33:2218.2.

Section (A)(1) of LSA-R.S. 33:2218.2 requires that the police officer (as specifically described in Section (C)) devote his full working time to law enforcement and further requires that for those employees hired after March 31, 1986, the officer seeking supplemental pay be POST-certified as provided in LSA-R.S. 40:2405. Mayo, 98-1864 at p. 9, 745 So.2d at 193-194. Under the clear language of this statute, there is no requirement that plaintiffs, all of whom were hired before the operative date of March 31, 1986, fulfill the additional requirement of POST certification. Thus, their lack of POST certification could not serve as the basis for denial of their | ^claims for state supplemental pay under LSA-R.S. 33:2218.2(A)(1).

Nonetheless, on appeal, the Board of Review argues that LSA-R.S. 40:2405(0) is controlling over LSA-R.S. 33:2218.2(A)(1) and that plaintiffs were not entitled to supplemental pay under the “grandfather” clause in LSA-R.S. 40:2405(0), because none of them were actually receiving supplemental pay prior to January 1, 1986, the operative date in that statute.

Louisiana Revised Statute 40:2405 governs POST certification, and Section (A) of that statute provides that “any person who begins employment as a peace officer in Louisiana subsequent to January 1, 1986, must successfully complete a certified training program approved by the council and successfully pass a council-approved comprehensive examination within one calendar year from the date of initial employment.” (Emphasis added). Section (B) of LSA-R.S. 40:2405 further provides that state supplemental pay will be contingent upon POST certification for certain officers as follows: “the receipt of supplemental pay from the municipal police officers fund ... shall be contingent upon the recipient’s beginning employment as a peace officer after January 1, 1986, successfully completing a council-approved training program, and passing the council-approved examination within one calendar year from date of initial employment." Finally, Section (C) exempts certain officers from JjPOST certification as follows: “Peace officers employed as such prior to January 1, 1986, may continue their employment and their receipt of supplemental pay without compliance with the provisions of this Section.”

On appeal, the Board of Review argues that this court should infer from the wording of LSA-R.S. 40:2405(C), allowing peace officers employed prior to January 1, 1986 to “continue ... their receipt of supplemental pay” (emphasis added) without obtaining POST certification, that those officers who, although eligible, were not actually receiving supplemental pay prior to January 1, 1986 must comply with the requirements of LSA-R.S. 40:2405(A) and obtain POST certification to be eligible for state supplemental pay.

The function of statutory interpretation and the construction to be given to legislative acts rests with the judicial branch of government. Grant v. Grace, 2003-2021, p. 4 (La.4/14/04), 870 So.2d 1011, 1013. However, the starting point in the interpretation of any statute is the language of the statute itself. When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature. LSA-C.C. art. 9; State Civil Service Commission v. Department of Public Safety Director, 2003-1702, p. 5 (La.4/14/04), 873 So.2d 636, 640. 'Moreover, laws are presumed to be passed with deliberation and with full knowledge of all existing ones on the same subject. Thus, in interpreting statutes on the same subject matter, the court will give harmonious effect to all acts on a subject when reasonably possible. Grant, 2003-2021 at pp. 4-5, 870 So.2d at 1014.

At the outset, we note that the interpretation of LSA-R.S. 40:2405(C) suggested by the Board of Review ignores the language of LSA-R.S. |s40:2405(B) establishing who must obtain POST certification to be eligible for state supplemental pay. Specifically, by the clear wording of LSA-R.S. 40:2405(B), the requirement that the recipient of state supplemental pay be POST-certified applies only to peace officers hired after January 1, 1986. Additionally, by giving Section (C) the adverse inference suggested by the Board of Review (i.e., that peace officers employed pri- or to January 1, 1986, who were eligible for state supplemental pay, but who for whatever reason were not actually receiving such pay, are now required to comply with the provisions of this Section and obtain POST certification in order to obtain state supplemental pay, while their counterparts who had actually been receiving such pay as of January 1, 1986 would not be required to obtain such certification), this court would then be negating, at least in part, the clear and direct language of LSA-R.S. 33:2218.2(A)(1) that specifically states that only those police officers hired after March 31, 1986 shall be required to obtain POST-certifieation to be eligible for state supplemental pay. In essence, the interpretation of LSA-R.S. 40:2405(C) suggested by the Board of Review would impose an additional requirement to LSA-R.S. 33:2218.2(A)(1) not included by the legislature, ie., that officers hired prior to March 31, 1986 who were not already receiving state' supplemental pay would be required to obtain POST certification to be eligible for state supplemental pay. The clear wording of LSA-R.S. 33:2218.2(A)(1) mandates against such a requirement.

The strained reading of LSA-R.S. 40:2405(0) suggested by the Board of Review, requiring the application of an adverse inference and ignoring the specific language of LSA-R.S. 40:2405(B) and LSA-R.S. 33:2218.2(A)(1), is simply untenable. A more reasonable interpretation LSA-R.S. 40:2405(0 (which can be garnered from the clear wording of the statute alone) is that 19this statute simply ensures that those peace officers hired prior to January 1, 1986 who were already receiving state supplemental pay on that date would still be entitled to that pay. Revised Statute 40:2405(0 simply does not address the factual situation of eligibility for state supplemental pay for those officers hired prior to January 1, 1986, who, although eligible, were not receiving state supplemental pay at that time.

Moreover, this plain reading of LSA-R.S. 40:2405(0 would not conflict in anyway with the clear language of LSA-R.S. 33:2218.2(A)(1), which mandates that only those police officers hired after March 31, 1986 are required to receive POST certification to be eligible for state supplemental pay.

In interpreting these statutes in this manner, we conclude that LSA-R.S. 40:2405(0) clearly has no application to the stipulated factual situation herein. Rather, LSA-R.S. 33:2218.2(A)(1) is the applicable statute, and its application herein clearly provides that plaintiffs are entitled to state supplemental pay. Because plaintiffs were employed as police officers prior to March 31, 1986, they were not required to obtain POST certification as a requisite for state supplemental pay eligibility. Accordingly, we find no error in the judgment of the district court which reversed the Board of Review’s denial of plaintiffs’ applications for state supplemental pay on the basis that plaintiffs were not POST certified.

| ^CONCLUSION

For the above and foregoing reasons, the August 19, 2003 judgment of the district court is affirmed. Costs of this appeal in the amount of $360.78 are assessed against the Louisiana Department of Public Safety and Corrections, Municipal Officers’ Supplemental Pay Board of Review.

AFFIRMED.

DOWNING, J., concurs with reasons.

FITZSIMMONS, J., concurs without reasons.

| ^OWNING, J.,

concurring.

Even though I agree with the opinion, I would encourage radio dispatchers to become POST certified. Considering the current state of world affairs and conflict and the threat of attack on our country, all law enforcement officers should be trained and vigilant.

      . We note that Section (A)(2)(a) of LSA-R.S. 33:2218.2 has been declared unconstitutional by the Louisiana Supreme Court. State Civil Service Commission v. Department of Public Safety Director, 2003-1702, pp. 12-18 (La.4/14/04), 873 So.2d 636, 644-648. Specifically, the Supreme Court determined that Section (A)(2)(a), which provided for state supplemental pay for officers employed by the state or it political subdivisions, was unconstitutional because it infringed upon the constitutional powers of the State Civil Service Commission to regulate compensation for state classified employees. State Civil Service Commission, 2003-1702 atpp. 7-8, 849 So.2d at 641-642, pp. 12-18, 849 So.2d at 644-648.
      In the instant case, however, plaintiffs are not state classified employees, see Lafleur v. City of New Orleans, 2001-3224, p. 4 (La. 12/4/02), 831 So.2d 941, 943 (generally, officers of the New Orleans Police Department are included within the classified city civil service), and they rely upon Section (A)(1) of LSA-R.S. 33:2218.2, governing supplemental pay for municipal police officers, rather than Section (A)(2)(a). See also LSA-Const. art. 6, sec. 14(B)(5), LSA-Const. art. 7, sec. 10(D)(3), and New Orleans Firefighters Association v. Civil Service Commission of City of New Orleans, 422 So.2d 402, 409-411 (La.1982) (State supplemental pay for firemen was outside the city civil service commission's authority and did not infringe on the commission’s powers where LSA-Const. art. 6, sec. 14 granted the legislature the power to provide for minimum wages for firemen and municipal policemen).

      . A "peace officer” is defined in LSA-R.S. 40:2402(1) as:
      [A]ny full-time employee of the state, a municipality, a sheriff, or other public agency, whose permanent duties actually include the making of arrests, the performing of searches and seizures, or the execution of criminal warrants, and is responsible for the prevention or detection of crime or for the enforcement of the penal, traffic, or highway laws of this state, but not including any elected or appointed head of a law enforcement department.
      Subsection (l)(b) of LSA-R.S. 40:2402 further provides that "peace officer” shall also include "those sheriff's deputies whose duties include the care, custody, and control of inmates.” The parties herein have not raised the issue of whether plaintiffs meet the definition of “peace officer” so as to be subject to the requirement of POST certification.

      . We do note a potential conflict between LSA-R.S. 33:2218(A)(1) (requiring "police officers” hired after March 31, 1986 to obtain POST certification as a requisite for eligibility for state supplemental pay) and LSA-R.S. 40:2405(8) (which requires that a "peace officer” hired after January 1, 1986 obtain POST certification as a requisite for eligibility for state supplemental pay). To the extent that an officer would meet the definition of both "police officer” and "peace officer” and would have been hired between January 2, 1986 and March 31, 1986, these two statutes suggest a different result regarding eligibility for state supplemental pay. However, because the parties herein have stipulated that plaintiffs were all hired prior to January 1, 1986, this potential conflict is not at issue herein and we specifically do not decide this issue here.


source: Caselaw Access Project

author: J^FITZSIMMONS, J.

license: Public Domain

text:
    WEST FELICIANA PARISH POLICE JURY v. Clayton M. PERKINS, Jr.
    No. 2003 CA 2404.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.

      Dennis John Hauge, Prairieville, Counsel for Plaintiff/Appellee West Feliciana Parish Police Jury.
    Jerry F. Davis, Baton Rouge, Counsel for Defendant/Appellant Clayton M. Perkins, Jr.
    Before: WHIPPLE, FITZSIMMONS, and DOWNING, JJ.
   J^FITZSIMMONS, J.

Defendant/appellant, Clayton M. Perkins, appeals the sum of attorney fees awarded by the trial court in conjunction with an expropriation of Mr. Perkins’ property by plaintiff/appellee, West Felici-ana Parish Police Jury (Parish). We affirm as amended the award of attorney fees.

Following a trial on the merits, the court awarded Mr. Perkins the sum of $170,550.00 in compensation for the expropriation of his property by the Parish. In a subsequent hearing, the trial court awarded $10,000.00 in attorney fees. On appeal, Mr. Perkins asserts that the trial court did not apply the proper statutory standard in its consideration of attorney fees. Specifically, he alleges that the trial court legally erred in the method it utilized to compute attorney fees and, moreover, it manifestly erred in its determination of the highest amount offered to Perkins prior to trial on the merits.

Pursuant to La. R.S. 19:8 A, attorney fees may be awarded in expropriation cases when the compensation granted by the court exceeds the sum offered to the property owner prior to trial. That statute provides in pertinent part:

“Immediately after compensation has been determined, the plaintiff shall, upon motion of the defendant, present evidence as to the highest amount it offered the defendant for the property prior to trial on the merits. After hearing evidence on the issue, the court shall determine the highest amount offered. If the highest amount offered is less than the compensation awarded, the court may award reasonable attorney fees_” (Emphasis added.)

In the instant case, the Parish maintained that it offered Mr. Perkins $150,000.00 prior to trial; whereas, Mr. Perkins testified that the highest sum tendered by the Parish was $55,000.00. The trial court factually found that the |3Parish offered $150,000.00. Notwithstanding the fact that both sums were deficient relative to the $170,000.00 compensation award, the parties hotly contested the final sum extended by the Parish to Mr. Perkins. Indeed, it is not unusual to find similar expropriation proceedings in which attorney fees have been computed by a trial court based on the difference between the highest offer by the public body and the ultimate compensation award. This mathematical formula, however, lacks a statutory basis in general expropriation.

On appeal, Mr. Perkins aptly observes that the equation employing twenty-five percent of the difference between the highest offer and the compensation award distinguishably applies to declarations of “takings” of property for highway purposes by the Louisiana Department of Transportation and Development, pursuant to La. R.S. 48:453. Moreover, in those “takings” cases, the estimated compensation is required to be deposited into the registry of the court prior to trial. In the expropriation of property before this court, the trial court judge expressly stated that he was not going to apply the difference between $150,000.00 and the compensation award or the contingency fee that legal counsel had arranged with Mr. Perkins. Instead, the trial court elected to apply a “hybrid.”

The legal significance of the actual sum offered prior to trial is statutorily limited to whether or not the amount offered exceeded the amount of compensation awarded in general expropriation cases. We are unable to discern any statutory | ¿language in which the amount of attorney fees awarded in a general expropriation case becomes tethered to the amount of the deficiency in the public body’s offer. Pursuant to La. R.S. 19:8 A, the court “may award reasonable attorney fees.” (Emphasis added.) Indeed, the statute grants a trial court the reasonable discretion of not awarding any attorney fees whatsoever in certain circumstances. In considering reasonable attorney fees, the court must consider: “(1) the ultimate result obtained; (2) responsibility in-curred; (3) the importance of the litigation; (4) the amount involved; (5) the extent and character of the labor performed; (6) the legal knowledge and attainment and skill of the attorney; (7) the number of appearances made; (8) the intricacies of the facts and law involved; (9) the diligence and skill of counsel; and (10) the Court’s own knowledge.” State v. Ran-some, 392 So.2d 490, 495 (La.App. 1st Cir. 1980).

The standard of review by an appellate court is whether the court has abused its discretionary option of awarding “reasonable attorney fees” pursuant to La. R.S. 19:8 A. Accordingly, this court’s review is limited to whether or not the fee of $10,000.00 was reasonable, or if it extended beyond the discretion of the trial court. Prentice Oil & Gas Company v. State, Department of Transportation and Development, 421 So.2d 937, 940 (La.App. 1st Cir.), writ denied, 423 So.2d 1165 (La.1982).

Counsel for Mr. Perkins asserted at the hearing on attorney fees that he charged his client an hourly rate of $175.00. No written attorney-client contract was submitted into evidence. In support of the claim for an increase in attorney fees, Mr. Perkins’ counsel filed into evidence a handwritten timesheet reflecting charges for legal services rendered on behalf of Mr. Perkins between September 13, 2001 and April 29, 2002. The charges were presented in an abbreviated note form. At the hearing, Mr. Perkins’ counsel acknowledged that he |fihad been forced to reconstruct the time charges shortly prior to the hearing date due to a “pilot error” that caused his computer to erase the actual encoded time descriptions. The cumulative amount of hours reflected on the time-sheet that was admitted into evidence amounted to 294.80 hours. The total request for legal services rendered was $52,025.00.

Trial of the instant expropriation consumed two days. Various witnesses testified, including a realtor, a realtor/appraiser, architects, a licensed builder of residences, a lessee of comparable property, and various political personages associated with West Feliciana and/or St. Francisville. Additionally, several real estate appraisal reports were introduced regarding the subject property. The Parish argued that much of the attorney’s delineation of his work product was indecipherable; however, no objection to its introduction into evidence was made. This court takes judicial notice of the fact that expropriation cases generally involve a morass of papers and time, as well as a specialized area of the law. Notwithstanding the discretion vested in the trial court vis-a-vis awards of attorney fees, the sum awarded for attorney fees appears abusively low when the time and expertise involved to produce a favorable outcome for Mr. Perkins are taken into account. It constitutes an abuse of discretion.

Accordingly, the award of attorney fees is amended to $30,000.00. Costs associated with this appeal in the sum of $265.70 are assessed to West Feliciana Parish Police Jury.

AFFIRMED AS AMENDED.

DOWNING, J., concurs in the result.

      .The testimony by Mr. Perkins from which the court concluded that an offer of $150,000.00 had been tendered to Mr. Perkins demonstrates that the figure of $150,000.00 had been raised in a settlement conference. Testimony on behalf of the Parish further indicates that the Parish had given its counsel the authority to settle up to the limit of $150,000.00. There is, however, no evidence presented in the record that the sum of $150,000.00 was actually tendered as an offer to Mr. Perkins. Although we would find manifest error in the court's factual conclusion, the amount of the deficiency in the offer does not substantively impact our review of reasonable attorney fees.

      . Floyd L. Younger, Parish manager, stated that after suit was filed, the Parish made an offer of $135,000.00.

      . See, e.g., Pointe Coupee Electric Membership Corporation v. Mounger, 447 So.2d 1104, 1112 (La.App. 1st Cir. 1984); City of Shreveport v. Pupillo, 390 So.2d 941, 948 (La.App. 2nd Cir.1980), writ denied, 396 So.2d 921 (La.1981).

      . Counsel testified that he expended 274 hours of service on the case, as well as $400.00 out-of-pocket expenses; however, the variance from the hours reflected on the time-sheet appears to be an inadvertent error.


author: | ¡.CARTER, C. J. | PETTIGREW, J.,

text:
    STATE of Louisiana v. Justin K. HARRIS.
    No. 2003 CA 2328.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 17, 2004.
    Hon. Doug Moreau, Kay Howell, Stacey L. Wright, Baton Rouge, for Appellee, State of Louisiana.
    Thomas C. Damico, Baton Rouge, for Appellant, Safety National Casualty Corp.
    Before: CARTER, C.J., PETTIGREW, and MCDONALD, JJ.
   | ¡.CARTER, C. J.

This is an appeal by Safety National Casualty Corporation (Safety National) from a judgment denying its motion for discharge of surety that had been furnished to insure a defendant’s appearance in court.

FACTS

Safety National, through its agent, Bail Bonding Underwriters, Inc. (BBU), executed a $40,000 appearance bond for the release from custody of Justin K. Harris, who was arrested for and subsequently charged with bank fraud. When Mr. Harris failed to appear in court for arraignment on March 13, 2001, the trial court rendered a bond forfeiture judgment in favor of the State of Louisiana and against Mr. Harris as principal and Safety National as surety in the sum of $40,000. The trial court also issued a bench warrant for Mr. Harris’s arrest.

On March 29, 2001, BBU representatives requested that the East Baton Rouge Parish Sheriffs Office (the Sheriffs Office) enter information regarding the bench warrant for Mr. Harris’s arrest into the National Crime Information Center (NCIC) Registry. BBU also tendered the $25 processing fee required by LSA-C.Cr.P. art. 345G. However, the Sheriffs Office did not enter the information into the NCIC Registry, because it had been instructed by Leon Denham of the District Attorney’s Office not to honor such requests from bonding agents.

Bonding agents under contract with BBU detained Mr. Harris in Atlanta, Georgia, prior to the running of the six-month bond forfeiture date. But, upon coming into contact with the Atlanta Police, they were forced to release Mr. Harris because the Atlanta Police were not able to verify through |3a check of the NCIC Registry that there was a felony bench warrant out of the State of Louisiana for Mr. Harris’s arrest.

Safety National filed a motion for discharge of surety contending that it should be released from all obligations and that the bond forfeiture judgment is invalid because the Sheriffs Office failed to enter the bench warrant into the NCIC Registry. The trial court denied the motion. Safety National now appeals.

DISCUSSION

The issue presented by this appeal concerns the interpretation of LSA-C.Cr.P. art. 345G, which provides:

During the six-month period provided for surrendering the defendant, the surety may request from the officer originally charged with a felony defendant’s detention that the felony defendant’s name be placed into the National Crime Information Center registry. Upon such a request, the surety shall pay to the officer originally charged with the felony defendant’s detention a fee of twenty-five dollars for processing such placement. If, after the request by the surety and payment of the twenty-five dollar fee, the defendant’s name is removed from the National Crime Information Center registry without cause during the six-month period provided for surrendering the defendant, the surety shall be relieved of all obligations under the bond.

Specifically, the question before the court is whether it is discretionary or mandatory that the Sheriffs Office enter a defendant’s name in the NCIC Registry after the surety has requested that it do so and paid the applicable processing fee.

Provisions of the Code of Criminal Procedure are intended to provide for the just determination of criminal proceedings and shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay. LSA-C.Cr.P. art. 2. The provisions must be given a genuine construction consistent with the plain meaning of the | ¿language in light of its context and with reference to the purpose of the provision. LSA-R.S. 14:3; State v. Campbell, 03-3035 (La.7/6/04), 877 So.2d 112, 117-118.

In applying guidelines of statutory construction, we find that a genuine construction of LSA-C.Cr.P. art. 345G that gives fair import to its wording requires that the Sheriffs Office enter the defendant’s name into the NCIC registry after a request is properly made and after the processing fee is accepted. By accepting the processing fee, the Sheriffs Office was obliged to honor BBU’s request. Failure to do so is tantamount to removing the defendant’s name from the NCIC registry. We note that the article does allow a defendant’s name to be removed from the registry for cause. The Sheriffs Office asserts that it acted in accordance with directions from the district attorney’s office, however, in our opinion this does not constitute “cause” as contemplated by the article. Accordingly, we find that in this situation, Safety National is relieved of its obligation under the bond. If the Sheriffs Office had complied with BBU’s request, the defendant would have been arrested in Atlanta and Safety National also relieved of its obligations under the bond.

CONCLUSION

For the foregoing reasons, the judgment appealed from is reversed. Judgment is entered granting the motion for discharge of surety. Costs of this appeal in the amount of $330.30 are assessed to the State of Louisiana.

REVERSED AND RENDERED.

PETTIGREW, J., concurs and assigns reasons.

| PETTIGREW, J.,

concurring.

I agree with the majority opinion. I note, however, that the majority chose not to address the issue of whether the sheriff has the discretion to refuse the $25.00 application fee and not honor a surety’s request that the name of a defendant be entered into the NCIC registry. As this issue was not before the court, it was appropriate for the majority to do so. However, I feel compelled to address same.

Louisiana Revised Statutes 14:134, in part, provides as follows.

Malfeasance in office is committed

when any public officer or public employee shall:

(1)Intentionally refuse or fail to perform any duty lawfully required of him, as such officer or employee; or
(2) Intentionally perform any such duty in an unlawful manner; or
(3) Knowingly permit any other public officer or public employee, under his authority, to intentionally refuse or fail to perform any duty lawfully required of him, or to perform any such duty in an unlawful manner.

The rights and limitations on bail are a constitutionally protected area of our law. La. Const, art. I, § 18. See also U.S. Const, amend. VIII. Bail is the security given by a person to assure his appearance before the proper court whenever required. La.Code Crim. P. art. 311. Bail exists to ensure that the accused will appear at trial. Harper v. Laysisson, 99-0544, p. 8 (LaApp. 1 Cir. 4/10/00), 764 So.2d 1061, 1065, writ denied, 2000-1312 (La.6/23/00), 765 So.2d 1044. The purpose of requiring bail for the release of a prisoner is, primarily, not to collect for his becoming fugitive, but to compel him to remain within the court’s jurisdiction. State v. Richardson, 176 La. 750, 146 So. 737, 738 (La.1933).

The duties of the sheriff are partially defined in La. R.S. 33:1435A, in part, as follows:

| ¡>Each sheriff or deputy shall attend every court that is held in his parish, and shall execute all writs, orders, and process of the court or judge thereof directed to him.
Each sheriff shall be keeper of the public jail of his parish and shall preserve the peace and apprehend public offenders.

It is my humble opinion that the sheriff has no discretion if a surety makes a timely request and tenders the $25.00 application fee as required by La.Code Crim. P. art. 345. For the sheriff to do otherwise, in my humble opinion, borders on malfeasance.

      . We do not address the interpretation to be given the article in situations in which the Sheriffs Office refuses to accept the application fee and in doing so informs the one making the request that the request will not be honored.


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

text:
    Melonee PREVOST v. INTERIOR GARDENS, INC.
    No. 2004-CA-0274.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 2004.
    Melonee Williams/Prevost, New Orleans, LA, In Proper Person, Plaintiff/Appellant.
    Frank E. Brown, III, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellee.
    (Court Composed of Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge MAX N. TOBIAS JR.).
   JjMAX N. TOBIAS, JR., Judge.

Claimant/appellant, Melonee Prevost (“Prevost”), appeals from a final judgment of the Office of Workers’ Compensation, which found that she had not proven a work-related injury to her neck, shoulders, legs, knees, or heels. After a review of the record and the applicable law, we affirm the judgment.

Prevost filed a 1008 disputed claim form with the Office of Workers’ Compensation, seeking workers’ compensation benefits for an accident that occurred on or about 23 December 2001 while lifting large watering cans for her employer, Interior Gardens, Inc. On 2 December 2003, there was a trial on the merits. After considering the law and the evidence presented, the workers’ compensation judge held as follows:

1. Claimant Melonee Prevost failed to carry her burden of proof that she suffered a work-related injury in 2001 that caused injury to her neck, shoulders, legs, knees, or heels; and
2. Accordingly, claimant Melonee Pre-vost is not entitled to any workers’ compensation benefits for alleged injury to those areas of the body; and
3. It is not disputed that claimant suffered a work-related injury to her arms and/or wrists and is |aentitled to continue to receive necessary and reasonable medical treatment for those areas of the body; and
4. Claimant’s case is DISMISSED WITH PREJUDICE; and
5. Each party is to bear its own costs.

Prevost contends that the lower court erred by disallowing benefits for injuries to her neck, shoulders, legs, knees, or heels. In addition she contends that the failure to receive appropriate medical care has caused her to suffer from depression, which has prevented her from returning to gainful employment.

Prevost’s testimony is that she sought medical attention for pain and swelling in her hands and arms after December 2001. Although she also had pain in her neck and back, she was not authorized by the workers’ compensation carrier to obtain medical attention for these areas due to previous injuries and problems. Prevost stated that she did not complain about neck and back pain to her primary care physician until February 2003. However, she maintains that she should receive medical benefits from the compensation carrier for treatment by Dr. Wojciech Wojcik, a chiropractor, who has been treating her for her neck and back pain, as well as her arms and wrists.

Under cross-examination, Prevost admitted that when she first reported the incident to her employer, she only complained of arm pain; she did not then need assistance for her neck or back. Her employer told her to contact its workers’ compensation carrier, the Louisiana Workers’ Compensation Corporation (“LWCC”). Prevost did so, informing the LWCC representative that her arm was |3hurting; Prevost was referred to Dr. Eric George, a hand specialist, who treated her conservatively until April 2002. She became dissatisfied with Dr. George’s treatment because he released her to return to full work, which Prevost believed caused her more damage.

In August 2002, the LWCC authorized Prevost to seek treatment from a second hand specialist, Dr. Kathleen Robertson of Tulane Medical Center, to whom she reported her neck and back pain. In the initial background questionnaire, Prevost indicated that some of her problems could be related to arthritis, although no doctor has diagnosed her with it. She also admitted that she had been having back and shoulder pain for many years and was treating with Dr. Wojcik for six to eight months preceding the accident in December 2001 for stress reduction, which may be causing her neck and back pain.

We review workers’ compensation cases using the manifest error or clearly wrong standard. Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992). This standard precludes setting aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). In applying the manifest error standard, we need not determine whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart, 617 So.2d at 882. As the Louisiana Supreme Court has stated, “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the |4evidence differently.” Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990).

In Millon v. Clarion Hotel, 98-0002 (La. App. 4 Cir. 9/16/98), 719 So.2d 568, writ denied, 98-2973 (La.1/29/99), 736 So.2d 836, this court stated the burden of proof for a claim of a work-related accident as follows:

The claimant in a worker’s [sic] compensation case has the burden of proving a work-related accident by a preponderance of the evidence. Woods v. Ryan Chevrolet, Inc., 30,206 (La.App. 2 Cir. 2/25/98), 709 So.2d 251, writ denied, 98-1169 (La.6/5/98), 720 So.2d 689, citing Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992). Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not.

Id. at p. 4, 709 So.2d at 254.

In the instant matter, Prevost fails to carry her burden of proving that the work-related accident in December 2001 that caused injury to her neck, shoulders, legs, knees, and/or heels. Nothing exists in Prevost’s medical records demonstrating a correlation between the December 2001 accident and her neck and back pain. Even her own testimony reveals prior neck and back problems, which she herself relates to stress. However, as found by the court below, Prevost has proven a work-related injury to her arms and/or wrists. Consequently, we affirm the judgment of the Office of Workers’ Compensation in its entirety.

AFFIRMED.

      . Interior Gardens, Inc. provides indoor plant care to plants located in office buildings, etc.

      . The brief filed by Prevost, who represents herself in these proceedings, is less than clear. However, a careful reading of her brief reveals the nature of her assignments of error.

      .We do not find that this issue was raised in the court below; therefore, we will not address it on appeal.

      . Later in testimony, Prevost contended that she told the LWCC representative that she had “all over body pain,” although she did not inform Dr. George of this complaint. She contends that she did not do so because she was seeing Dr. George specifically about her hand.


author: | JAMES L. CANNELLA, Judge.

text:
    Agnes G. DESSELLE, Carol Desselle Garcia, Rene’ Desselle, Patricia Desselle and Rachel Desselle, Gwendolyn Desselle Broussard and David M. Desselle v. JEFFERSON PARISH HOSPITAL DISTRICT NO. 2 D/B/A East Jefferson General Hospital.
    No. 04-CA-455.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Brian L. Reboul, Metairie, LA, for Plaintiff/Appellant.
    Thomas P. Anzelmo, Sr., Jacqueline Blankenship, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD, JAMES L. CANNELLA.
   | JAMES L. CANNELLA, Judge.

The Plaintiffs, Agnes Desselle, Carol Desselle Garcia, Rene Desselle, Patricia Desselle, Rachel Desselle, Gwendolyn Des-selle Broussard and David M. Desselle, appeal from a judgment in their suit filed for the injuries and death of their husband and father, Louis Roy Desselle, the decedent, against the Defendant, Jefferson Parish Hospital District No. 2 d/b/a East Jefferson General Hospital (EJGH). We affirm.

The 79 year-old decedent entered EJGH on July 13, 2001 for surgery due to colon cancer. He had suffered from a myriad of physical problems and had been on the blood thinner, Coumadin, for 20 years. On July 16, 2001, Sharmika Gibson (Gibson) an employee of EJGH, arrived at his room to transport him to the radiology department for a Computerized Axial Tomography (CAT) scan of his brain due to episodes of mental confusion originating after heart surgery which he had undergone some months before. Gibson pushed the gurney to the bed and instructed the deceased to roll over onto the gurney. She went to the |shead of the bed, rather than supporting it from the side. Either she failed to set the brake or the brake failed. When the deceased rolled over, the gurney moved away from the bed causing the decedent to fall to the floor. The decedent’s wife was in the room at the time. After ascertaining that the decedent was not apparently injured, he was transported to radiology and the CAT scan was performed 48 minutes later. No brain hemorrhaging or other head/brain injury was detected at that time. On July 21, 2001, the deceased began complaining of a severe headache. Another CAT scan disclosed a massive parenchymal hemorrhage of the right side of the decedent’s brain. A third CAT scan on July 26, 2001 showed that the bleed was continuing. On July 27, 2001, he died from the brain hemorrhage.

The Plaintiffs filed a medical malpractice suit on June 11, 2003 against the Defendant. In addition to damages for wrongful death, survival damages and damages due to the fall, the Plaintiffs claimed damages for the spoliation of evidence (the gurney.) A judge trial was held on December 10, 11, and 12, 2003. The trial judge found the Defendant liable for injuries to the decedent due to the fall from his hospital bed and awarded the Plaintiffs’ $18,000 for his pain and suffering. He found no causation between the fall and the brain hemorrhage that resulted in the death of the decedent and dismissed the claims for wrongful death and survival. In addition, the trial judge denied the claim for spoliation on the basis that the only damages the Plaintiffs could recover are for the non-death related damages, which have already been awarded.

On appeal, the Plaintiffs assert that the trial judge erred in failing to apply the presumption of legal causation for the death, in erroneously determining that the death was not caused by the negligence of the Defendant, in failing to | ¿reasonably consider the deposition testimony of Dr. John Stirling Meyer, in failing to properly interpret the expert medical testimony, and in failing to find the Defendant negligent in maintaining inaccurate and incomplete medical records. The Plaintiffs further assert that the trial judge awarded inadequate damages for the fall and erred in failing to award damages for the mental anguish, loss of consortium and inconvenience to the family members. The Plaintiffs contend that the trial judge erred in failing to find that the Defendant breached the standard of care for administering excessive anticoagulants, thereby increasing his risk of excessive bleeding, and for not awarding damages for overmedicating the deceased. They also argue that the trial judge erred in denying their claim for spoliation of the evidence.

STANDARD OF REVIEW

On appellate review, the court’s function is to determine whether the findings of the trier of fact were clearly wrong or manifestly erroneous. Matta v. Snow, 01-760, p. 7 (La.App. 5th Cir.l/15/02),807 So.2d 934, 938; Brown v. Seimers, 98-694, p. 6 (La.App. 5th Cir.1/13/99), 726 So.2d 1018, 1021, writ denied, 99-0430 (La.4/1/99), 742 So.2d 556; Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where there is a 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. Matta, 01-760 at p. 7, 807 So.2d at 938; Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Rosell, 549 So.2d at 844. The issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one. Matta, 01-760 at p. 7, 807 So.2d at 938; Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Stobart v. State, Through DOTD, 617 So.2d 880, 882 (La.1993).

I,.PRESUMPTION OF LEGAL CAUSATION

A plaintiff in a personal injury lawsuit must prove causation by a preponderance of the evidence. Farrell v. Pierre, 02-1136, p. 8 (La.App. 5th Cir.4/8/03), 846 So.2d 49, 54; Calcagno v. Kuebel, Fuchs Partnership, 01-691, p. 11 (La.App. 5th Cir.11/14/01), 802 So.2d 746, 752; Dabog v. Deris, 625 So.2d 492, 493 (La.1993). The plaintiff is aided in this endeavor by the legal presumption that a medical condition producing a disability resulted from a preceding accident if the injured person was in good health prior to the accident, the disabling condition manifested itself shortly after the accident, and the medical evidence indicates that there is a reasonable possibility of a causal connection between the accident and the disabling condition. Farrell, 02-1136 at 8, 846 So.2d at 54, citing Calcagno, 01-691 at 11, 802 So.2d at 746, 752; Dabog, 625 So.2d at 494, citing Housley v. Cerise, 579 So.2d 973, 980 (La.1991).

A hospital can be held responsible for the negligence of its employees under the doctrine of respondeat superior. LeRay v. Bartholomew, 03-1370, p. 23 (La. App. 5th Cir.3/30/04), 871 So.2d 492, 507. Under this theory, the same standard of care and burden of proof for the physician or nurse whose activities are questioned are appropriate. Id. The burden of proof for medical malpractice is set forth in La. R.S. 9:2794 and requires a showing that the medical treatment fell below the ordinary standard of care expected of physicians in that field of medical care, and a causal relationship between the injury and the alleged negligent treatment. LeRay, 03-1370 at 23, 871 So.2d at 507.

The deceased was admitted to East Jefferson on July 13th with a diagnosis of lower GI bleed as a result of colon cancer. His medical history included cerebral vascular insufficiency and vascular disease. He had undergone coronary artery bypass surgery and aortic valve replacement. He was on chronic anticoagulant therapy. The deceased had chronic liver disease with cirrhosis, carcinoma of the | r,colon and depression. His artificial heart valve and chronic atrial fibrillation required him to take the blood thinner, Coumadin, which he had been on for 20 years. However, there was no indication that he had suffered any brain hemorrhaging before he was admitted for the colon surgery. Surgery was scheduled for July 20, 2001.

The deceased’s wife, Agnes Desselle, witnessed the accident with the gurney. She testified that she did not see her husband strike his head when he fell off. the bed, but he told her so. He also told her later that he had a headache. Mrs. Desselle and her adult daughter, Rachael Desselle (Rachael) testified that before he entered the hospital, the deceased was having mild episodes of confusion, but only in the evening (“twilight confusion”). They contended that this condition worsened after the fall. They testified that the deceased became increasingly disoriented about where he was, the year, and was having hallucinations. The deceased thought that Rachael was a drug dealer at one point. He did not want anyone touching him and was irritable. The Plaintiffs further contend that the deceased developed severe diarrhea after the fall and, that from the time of the accident onward, complained of headaches. Mrs. Desselle admitted that he had some incontinence before the fall, but claimed it too became worse after the accident.

Rachael testified that she filled out the admission form on Friday, June 13, 2001. She said that her father was unsteady and confused when he was admitted into the hospital. She stated that the deceased’s confusion started after the carotid artery surgery, but was limited to the evenings. Otherwise, he was fine mentally. Because she worked out of town, Rachael was only there over the first week-end. She returned on the following Thursday to find that her father’s condition had deteriorated “beyond belief.”

|7Pr. Songy, the deceased’s treating physician and personal friend for over 20 years, testified that the deceased’s medical condition and neurological status had been worsening over the weeks preceding the admission, and that the deceased was disoriented, confused and slower than normal when he was admitted. The deceased had undergone carotid artery surgery before he was scheduled for the colon surgery and had been confused and halluci-náting since then. The angiogram taken at that time showed severe arterial sclerotic disease. The surgery to the carotid artery had to be performed before the colon surgery because narrowing of the artery predisposed him to suffering a stroke. Because of the severity of the arterial sclerotic disease, one side of the neck was inoperable.

On July 16, 2001, Dr/ Donald Adams, a neurologist, started treating the deceased for his confusion because the colon procedure could not be performed until the deceased’s mental condition improved. Dr. Adams ordered a CAT scan. The deceased was being transported for the scan when the accident occurred.

According to Dr. Songy and Dr. Adams, when the colon cancer was first discovered, the deceased’s multiple problems made it too risky to operate, so the decision to remove the cancer in his colon was deferred. When he began to have gastrointestinal bleeding, it became necessary to operate. Before surgery could be performed, the Coumadin had to be stopped and he had to be placed on a shorter acting blood thinner so that he did not bleed-out during the surgery. He had to be kept on blood thinners so that he did not develop blood clots that could migrate to the brain. Thus, Heparin was substituted for the Coumadin by intravenous injection (IV). The clotting levels were monitored to obtain the optimum level, but it reached a “panic state” (120) when the Heparin was first injected. It was immediately discontinued. Dr. Songy noted that because Heparin was short acting, the blood thinning effect stopped when the IV was discontinued. Dr. Songy wanted the level to be between 60-90. Over the next few days, the clotting time, |swhich is referred to as the partial thromboplastin time (PPT) level, still remained higher than 90, but Dr. Songy was trying to get a level that was not too low, thereby increasing the risk of a migrating blood clot, or too high, risking hemorrhaging. When it failed to come down further, Dr. Songy replaced the Heparin with Lovenox, another short acting blood thinner.

Dr. Adams testified that the deceased’s various pre-existing conditions created a “medical nightmare.” Dr. Adams noted that it was a “damned if you do and damned if you don’t” situation because stopping the blood thinners to perform the cancer surgery increased the risk of the formation of blood clots that could migrate from the heart into the brain causing “really nasty strokes.” He also noted that if even if the cancer had been operated upon, there was a risk of mental confusion that does not always clear up.

Both Dr. Songy and Dr. Adams testified that the incontinence was expected. The doctors ordered a strong laxative in preparation for a colon study and the surgery. The doctors wanted the bowels cleaned and expected the deceased to have diarrhea from the laxative. In addition, the deceased was on medication to reduce his blood ammonia level, which also causes loose stools. He was incontinent because he had poor mobility and was confused, so was unable to make it to the bathroom at times.

The Plaintiffs argue that the deceased exhibited no symptoms of a cerebral hemorrhage prior to the accident. They note that the CAT scan taken 48 minutes after the fall showed no indication of old or pre-existing cerebral hemorrhage. Thus, they argue that it is reasonable to conclude that overmedication and the fall from the gurney caused the hemorrhage and that the Court should apply the presumption of causation. We disagree. The decedent suffered from degrees of confusion, hallucinations and incontinence prior to the accident. He was not in good health prior to the accident and there was no disabling condition resulting | ¡¡from the fall that manifested itself shortly after the accident. See: Farrell, 02-1136 at p. 8, 846 So.2d at 54. Thus, we find that the test for applying the presumption was not met in this case and the trial judge did not err in declining to apply it.

CAUSATION

The primary issue is whether the trial judge committed manifest error in concluding that the fall and/or the overmedi-cation did not cause the brain hemorrhage five days later. The Plaintiffs assert that the trial judge erred in failing to consider the deposition testimony of Dr. John Stirling Meyer, in failing to properly interpret the expert medical testimony, and in failing to find the Defendant negligent in maintaining inaccurate and incomplete medical records.

On July 14, 2001, the Coumadin was replaced with a short acting anticoagulant, Heparin. The nurse failed to read the doctor’s orders and administered a “bolus” to boost the level, per hospital protocol, but the doctor’s orders stated “no bolus.” This caused the deceased’s PPT level to rise to a “panic state” of 120.8. The PPT measures the blood clotting speed. The higher the number, the more likely the patient is to have some bleeding. The Heparin was immediately discontinued when the laboratory reported the emergency. Two days later, on the 16th, the level was 94.5, still outside the acceptable range for E JGH, but was not overly excessive according to Dr. Songy. That was because the deceased was being given levels of the medication based on the erroneous determination of his weight. Dr. Son-gy testified that he wanted the levels to be between 60 and 90 because of the implications for surgery. The therapeutic range is between 60-70. Nevertheless, on July 16, 2001, the anticoagulant was changed from Heparin to Lovenox, which does not need monitoring and is administered by injection instead of IV. Lovenoex is a “low molecule Heparin.”

|inDr. John Stirling Meyer, an expert neurologist, testified that the overmedication by the Defendant’s nurses harmed the vessel walls. He testified that there was a 7% increase in the likelihood of a cerebral vascular accident for each increment of time (every 10 seconds) that the increased medication was in the patient’s blood stream. He referred to an article in a medical journal, Circulation, documenting that fact. The defense experts, Dr. Songy and Dr. Adams, did not dispute that fact. Dr. Meyer also pointed to the deceased’s low platelet count as a condition predisposing him to bleeding. He concluded that the force of the fall contributed to the hemorrhage due to the deceased’s predisposition to hemorrhage from the compromised vascular walls and overmedication. Dr. Meyer concluded that it was more probable than not that the hemorrhage was caused by the negligence of the Defendant.

There is no question that the anticoagulant medication levels were higher than the protocol or higher than Dr. Songy’s target level for several days, and could have compromised the blood vessels. However, Dr. Songy, Dr. Adams, Dr. Michael Puente, a neurologist, and Dr. Daniel Fontanez, the radiologist that performed the scans on the deceased, testified that neither the fall nor the overmedication was responsible for the brain hemorrhaging. They pointed out that regular doses, as well as excessive doses of anticoagulants can cause intrapar-enchymal hemorrhage. There was no disagreement by the doctors that anticoagulants predispose patients to bleeding and make the patient more susceptible to a hemorrhage if the patient sustains a head injury, or that it would take less force from a fall to trigger a hemorrhage in a person being given anticoagulants. However, all of the physicians, except for Dr. Meyer, concluded that an anti-coagulant-caused hemorrhaging would more likely have occurred on July 14, 2001 when the PPT level was 120. Further, the hemorrhaging would Inhave developed at the latest within 24-48 hours, or by July 18, 2001. Here, the bleeding occurred on June 21, 2001.

Dr. Songy noted that the symptoms of a brain hemorrhage include confusion, hallucinations, irritation, personality changes, impatience, incontinence and abnormal electroencephalogram (EEG). However, he testified that the deceased had been having problems with confusion and hallucinations since his carotid artery surgery prior to this hospitalization. When the deceased was admitted, he was slower than normal. In addition, the deceased was taking a medication ordered by Dr. Adams, that can cause hallucinations. Dr. Songy also testified that, although the deceased’s EEG was abnormal on July 17, 2001, this was attributable to the prior cognitive decline. Dr. Songy stated that the nursing report showed that the deceased became incontinent of both bowel and urine (which had been normal) on July 18, 2001. However, the notes also state that the deceased was feeling good and looked good. On that same day, Dr. Adams also reported that the deceased’s brain function was improving, he reported no headaches, had no complaints and his mind was clear. In addition, the deceased did not exhibit the end stage breathing effect of a brain problem until July 22, 2001.

Dr. Songy testified that he examined the deceased every day and saw no sign of a head injury. There was no change is his level of consciousness, respiration or vital signs. A contusion on the brain would have been visible early on the CT scan. Here, none was detected. Dr. Songy testified that a hematoma enlargement can extend for a number of hours from onset to 20 hours, but not for five days. The bleeding here was not seen until July 22, 2001. Had the hemorrhaging been from the fall, deterioration would have occurred within 24 hahours. Again, he stated that the deterioration in the brain would not have taken five days to manifest.

In reference to the fall, Dr. Songy testified that he was informed by the nursing staff when the accident happened, but was not told that the deceased actually fell to the floor. He thought that deceased fell from the bed to the gurney. He further stated that the family, whom he had known for 20 years, did not tell him that the deceased suffered a fall in which he struck his head.

Dr. Fontanez performed the CT scans on July 16, 22 and 26, 2001. The scans showed age related changes on July 16th, but nothing consistent with a head injury. He testified that intercerebral bleeding would have shown up one hour after the injury, although minute petechial hemorrhaging could show up later. That type of bleeding is manifested as small red dots, which can show up on the scan. However, he said that the bleeding that caused the deceased’s death was in an area not normally associated with this condition, that this type of hemorrhaging is usually associated with hypertension, and that it would not evolve into a lesion such as caused the deceased’s death. In his opinion, that hemorrhage was a fresh event, around twelve hours old. Furthermore, Dr. Fon-tanez noted that he did not find any evidence of damage from axonal shearing where the parts of the brain are shaken back and forth. That damage would show up immediately and a three foot fall would not cause it.

Dr. Songy, Dr. Adams and Dr. Puente testified that the deceased’s incontinence was caused by the laxative that he was given in preparation for the surgery scheduled for July 20, 2001 and to attempt to clear up the mental confusion. Dr. Songy explained that the changes in the deceased’s mental status could have been attributed to his liver condition. The doctor stated that cirrhoses can cause bleeding in the intestine, infusing the intestine with protein, which in turn |iacan trigger confusion and agitation, referred to as hepatic encephalopity. A laxative is given to empty the area of the protein. He doubted that the mental status of the deceased had anything to do with the deceased’s incontinence, which was more likely caused by the laxative.

On July 19, 2001, the decedent’s PPT level was 72.9, the deceased reported no headaches and no bleeding was detected. However, when Dr. Songy saw him that evening, the deceased again had no idea where he was. Because the deceased continued to have the episodes of confusion, disorientation and hallucination from the time of his admission, that were not getting better, Dr. Songy talked to the family about canceling the surgery, which they agreed to do after a family meeting. The reason was that the anesthesia can also cause confusion, and with the deceased’s continued problems in that area, the doctors would not know if the anesthesia was causing the problem. Dr. Songy testified that the deceased had not shown any changes in his mental state between July 17 and July 21, 2001, otherwise he would have noted it in the records.

Dr. Puente’s testimony tracked the testimony of Dr. Songy, Dr. Adams and Dr. Fontanez. He agreed with their conclusion that there was no connection between the brain hemorrhage and the medications or the fall. He stated that patients’ of the deceased’s age often suffered from this type of hemorrhage and that the doctors often do not know the cause. It can happen spontaneously. He stated that the hemorrhage more likely would have occurred within a few hours had trauma been the cause. He also testified that the CAT scan indicated that that hemorrhage was fairly fresh development. Dr. Puente noted that the deceased’s condition could have deteriorated due to the medications, metabolic changes, sodium changes and/or changes in the liver.

|uThe Plaintiffs argue that the trial judge erroneously discounted Dr. Meyer’s testimony because it did not support his conclusions. We agree with the Plaintiffs that Dr. Meyer supported his conclusions, but several other physicians disagreed with that opinion. The trial judge’s rejection of Dr. Meyer’s testimony was a credibility determination. The standard of review by this Court is whether the trial judge manifestly erred in relying on the testimony of the other doctors to determine that the brain hemorrhage that caused the death of the Plaintiffs’ husband and father was not caused by the fall or overmedication of anticoagulants. In that regard, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Brown, 98-694 at p. 6, 726 So.2d 1018 at 1021; Stobart, 617 So.2d at 882. Only where the documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable factfinder would not credit the witness’s story, may the court of appeal find manifest error, even in a finding purportedly based upon a credibility determination. Brown, 98-694 at p. 7, 726 So.2d at 1021; Rosell, 549 So.2d at 844-45.

The deceased in this case suffered from numerous physical complaints and had been troubled with mental confusion and disorientation for several months prior to the accident. He was unstable and confused when he was admitted. He suffered from some incontinence before he fell from the bed, was being given strong laxatives, and was not very mobile, which accounts for his incontinence problems. Although the Plaintiffs testified these conditions worsened after the fall, the Plaintiffs did not show by a preponderance of the evidence that those symptoms worsened due to overmedication or the fall. While we agree that the Defendant’s employees negligently overmedicated the deceased with the short |1Bacting Heparin, once the infusion was stopped, the effect also stopped. This happened on the day of the fall, but the brain hemorrhage did not occur until five days later. There was credible medical testimony by two neurologists, the treating primary physician and the radiologist that the fall was too minor and too remote in time to have caused the hemorrhage, as was the overmedication. Although Dr. Meyer disagreed with these opinions, the trial judge’s choice to reject his conclusions was a reasonable one based on the evidence. Thus, we find no manifest error in the trial judge’s factual finding that the Defendant’s actions did not cause the death of the deceased and in dismissing the claims for wrongful death and survival damages.

The Plaintiffs argue that the trial judge failed to find the Defendant negligent in maintaining inaccurate and incomplete medical records. However, in light of our conclusions on liability, we find no error in this regard.

DAMAGES

The Plaintiffs further assert that the trial judge awarded inadequate damages for the fall and erred in failing to award damages for the mental anguish, loss of consortium and inconvenience to the family members.

The trial judge awarded the Plaintiffs $18,000 for the deceased’s pain and suffering from the fall. There were no apparent injuries. At the most, the deceased complained of a headache. There was no evidence that the fall, without its connection to the deceased’s death, affected the family members in any significant way. Thus, we find no error in the award of general damages for the deceased’s pain and suffering from the accident.

SPOLIATION

The Plaintiffs also assert that the trial judge erred in denying their claim for spoliation of the evidence. They contend that the Defendant failed to [1fipreserve the gurney in the condition in which it existed at the time of the accident, thereby depriving them of their ability to maintain a lawsuit against the manufacturer.

The theory of “spoliation of evidence” refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. Pham v. Contico Intern. Inc., 99-945, p. 4 (La.App. 5th Cir.3/22/00), 759 So.2d 880, 882; Quinn v. RISO Investments, Inc., 03-0903, p. 5 (La. App. 4th Cir.3/3/04), 869 So.2d 922, 927. A plaintiff asserting a state law tort claim for spoliation of evidence must allege that the defendant intentionally destroyed evidence. Allegations of negligent conduct are insufficient. Pham, 99-945 at 4, 759 So.2d at 882; Quinn, 03-0903 at 5, 869 So.2d at 927. Where suit has not been filed and there is no evidence that a party knew suit would be filed when the evidence was discarded, the theory of spoliation of evidence does not apply. Quinn, 03-0903, p. 5, 869 So.2d at 927; Smith v. Jitney Jungle of Am., 35,100, p. 11 (La.App. 2nd Cir.12/5/01), 802 So.2d 988, 995, writ denied, 02-0039 (La.3/15/02), 811 So.2d 913. The tort of spoliation of evidence has its roots in the evidentiary doctrine of “adverse presumption,” which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained. Pham, 99-945 at 4, 759 So.2d at 882; Quinn, 03-0903 at 5, 869 So.2d at 927.

The trial judge agreed that the Defendant was negligent in this regard, but there was no prejudice to the Plaintiffs since the accident did not cause the death and he awarded the Plaintiffs damages related to the defective gurney. Under Pham, this Circuit does not recognize a tort of negligent spoliation. Furthermore, there is no evidence that the Defendant “destroyed” the gurney |17knowing that suit would be filed. Thus, the trial judge did not err in failing to award damages for spoliation of the evidence.

Accordingly, the judgment of the trial court is hereby affirmed. Costs of this appeal are to be paid by Plaintiffs.

AFFIRMED.

      . The medical malpractice review panel found that the Defendant was negligent in injuring the deceased in the fall, but that the fall did not cause or contribute to the brain hemorrhage.


author: I ¡WALTER J. ROTHSCHILD, Judge.

text:
    Dianne J. BLOUNT v. EAST JEFFERSON GENERAL HOSPITAL and XYZ Insurance Company.
    No. 04-CA-407.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Richard C. Bates, Harvey, LA, for Plaintiff/Appellant.
    Thomas P. Anzelmo, Sr., Jacqueline Blankenship, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   I ¡WALTER J. ROTHSCHILD, Judge.

In this slip and fall case, plaintiff appeals from a summary judgment rendered against her. For the reasons stated herein, we affirm.

Facts

Dianne Blount filed the instant petition for damages against East Jefferson General Hospital and its insurer alleging that on March 13, 1997, she slipped and fell in a slippery substance on the floor of the hospital cafeteria. On the date of the accident, Ms. Blount was accompanying a friend, Clara Parnell, to visit Ms. Parnell’s mother who was a patient in the hospital. At the time of the fall, Ms. Blount and Ms. Parnell were attempting to get lunch from the cafeteria and to return to the hospital room.

The hospital answered plaintiffs petition generally denying the allegations, and further averring that the fall was caused by plaintiffs inadvertence. Defendant also affirmatively averred that it exercised reasonable care to keep the premises free from hazardous conditions and that 13it had no prior notice of any hazardous condition in the cafeteria on the date of plaintiffs accident.

Following discovery in this matter, defendant brought a motion for summary judgment contending that plaintiff failed to produce any factual support for her allegations of fault on the part of the hospital. Defendant attached to this motion a copy of plaintiffs deposition in which she stated that she did not recall seeing a substance on the floor at the time of her fall. Defendant also attached a copy of the deposition of plaintiffs companion, Clara Parnell, who stated that she noticed a clear substance on the floor after plaintiffs fall but did not know how long it had been there. Defendant also attached a copy of the cafeteria safety policy and several unsworn statements of hospital employees to indicate that the hospital maintained policies and procedures for observing and maintaining a safe hazard-free cafeteria.

Plaintiff filed an opposition to the motion for summary judgment contending that Ms. Parnell’s deposition testimony that she saw a liquid substance on the floor and that the fall occurred near the cafeteria cashier is sufficient to create an issue of material fact as to the hospital’s knowledge of the condition of the floor. Further, plaintiff argues that the cleaning log and statements from hospital employees charged with cleaning the cafeteria are insufficient to meet defendant’s burden in obtaining a summary judgment.

By judgment rendered October 24, 2002, the trial court granted defendant’s motion for summary judgment and dismissed plaintiffs suit. Plaintiff now appeals from this judgment.

Law and Discussion

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to 14material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966. Under the amended version of article 966, the initial burden continues to remain with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The nonmoving party then must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Id.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Haley v. Roberts, 02-30 (La.App. 5 Cir. 5/29/02), 820 So.2d 1114, 1116. Whether a particular fact in dispute is material can only be determined in light of the substantive law applicable to the case. Sanders v. Ashland Oil, Inc., 96-1751 (La. App. 1 Cir.6/20/97), 696 So.2d 1031, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29.

Plaintiff asserts a claim under theories of both negligence and strict liability. Under the negligence standard, a hospital owes a duty to its visitors to exercise reasonable care to keep the premises in a safe condition commensurate with the particular circumstances involved; but the duty owed is less than that owed by a merchant. Reynolds v. St. Francis Medical Center, 597 So.2d 1121 (La.App. 2d Cir.1992). Morrison v. Baton Rouge General Medical Center, 93-1055 (La.App. 1st Cir.4/8/94), 635 So.2d 768, unit denied, 94-1192 (La.7/1/94), 639 So.2d 1165. Under a negligence theory, plaintiff must also prove that the owner or custodian knew or should | shave known of the unreasonable risk of harm posed by the property. Waters v. McDaniel Recreation Center, Inc., 521 So.2d 788 (La.App. 2 Cir.1988), writ denied, 524 So.2d 520 (La.1988). Under a theory of strict liability, the hospital is liable for defective things in its custody only upon a showing that it knew or, in the exercise of reasonable care, should have known of the defect which caused the damage and failed to correct it with reasonable diligence. La. C.C. art. 2317.1; La. R.S. 9:2800.

Thus, under either theory of liability, plaintiff has the burden to prove actual or constructive notice of defendant. In order to maintain a claim for damages caused by the condition of things within the care and custody of a public entity, the complainant has the burden of proving that the public body had actual or constructive notice' of the hazard and had a reasonable opportunity to remedy the condition, but failed to do so. La.R.S. 9:2800(B). Constructive notice is defined as “the existence of facts which infer actual knowledge.” La.R.S. 9:2800(C). Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Maldonado v. Louisiana Superdome Comm’n, 95-2490 (La.App. 4 Cir. 1/22/97), 687 So.2d 1087, writ denied, 97-0469 (La.4/18/97), 692 So.2d 448. The plaintiff bears the burden at trial of proving actual or constructive notice. Bridges v. FCS Entertainment, 00-1041 (La.App. 4 Cir. 5/23/01), 789 So.2d 691.

Defendant’s motion for summary judgment in this case is based on its assertion that there is an absence of factual support for a finding that defendant had actual or constructive notice of the condition that caused plaintiffs fall, an element that is essential to plaintiffs claim. In order to | (¡defeat summary judgment in this case, plaintiff had the burden to produce factual support sufficient to establish that she will be able to satisfy her eviden-tiary burden at trial, specifically to prove that the hospital had actual or constructive notice of a spill on the cafeteria floor which they failed to remedy with reasonable diligence prior to plaintiffs fall.

To meet this burden, plaintiff relies on the testimony of Clara Parnell that she saw a substance on the floor near the cashier’s station after plaintiffs fall. However, a review of Ms. Parnell’s testimony fails to indicate that the substance had been present for a period of time during which the hospital employees should have learned of its presence with reasonable diligence. In fact, Ms. Parnell admitted that she had no information as to how long the liquid was on the floor before plaintiffs fall, and she had no information that anyone from the hospital was aware of the liquid on the floor. Further, although Ms. Parnell stated that the substance was located near the cashier’s station, the witness failed to produce factual support that the cashier was in a position to see the substance on the floor prior to plaintiffs fall. In fact, Ms. Parnell stated that she was only guessing that the cashier saw plaintiff fall.

To support her claim that her fall was caused by a liquid on the cafeteria floor, plaintiff also relies on her deposition testimony in which she stated that she was wet after the fall. A review of this deposition shows that plaintiff stated that she fell in the hospital cafeteria, but did not notice a substance on the floor prior to the fall or feel anything wet after the fall. Although she did say she knew she was wet because her sister told her so when she was in the emergency room, this testimony is insufficient to create |7an issue of fact as to whether there was a liquid substance on the cafeteria floor that caused plaintiffs fall. Further, plaintiff has failed to submit any competent evidence regarding the hospital staffs prior knowledge of the substance they allege was the cause of plaintiffs injuries.

Rather, the record contains copies of the hospital’s policies and procedures for cafeteria safety which required hospital employees to monitor the dining area for spills or debris on the floors. The record also contains a cafeteria log entitled “Cleanliness/Safety Check” which indicates that the hospital maintained cleaning and inspection procedures and that hospital employees inspected the area for dangerous conditions every thirty minutes on the day of plaintiffs accident.

Finally, the record contains un-sworn statements from several hospital employees who worked in the cafeteria on the date of the accident. An unsworn and unverified document is insufficient and shall have no evidentiary value on a motion for summary judgment. Premier Restaurants, Inc. v. Kenner Plaza Shopping Center, L.L.C., 99-1310, 99-1311 (La.App. 5 Cir. 8/29/00), 767 So.2d 927, 932-33. However, in the present case, the hospital presented other competent evidence that there is an absence of factual support for the element of plaintiffs claim that the hospital had knowledge of the alleged substance on the floor. Plaintiff did not produce any countervailing evidence that the hospital staff knew or should have known of the presence of the liquid yet failed to remove it from the floor with the exercise of reasonable care. Thus, although the unsworn statements of the hospital employees may have no evidentiary value, the record before us nevertheless indicates that plaintiff failed to carry her burden to defeat summary judgment in this case.

|RAfter a review of the record in this case, including the pleadings, depositions, hospital records and employees’ statements, we find no error of the trial court in granting summary judgment in favor of defendant in this case. Plaintiff failed to carry her burden of proving that she will meet her evidentiary burden at trial of showing actual or constructive knowledge of the alleged spill on the part of the hospital staff. Under these circumstances, defendant is entitled to judgment as a matter or law. Accordingly, the judgment of the trial court in favor of East Jefferson General Hospital dismissing plaintiffs claims against it is hereby affirmed at plaintiffs costs.

AFFIRMED.

      . This case is distinguishable from the case of Maldonado v. Louisiana Superdome Comm’n, 95-2490 (La.App. 4 Cir. 1/22/97), 687 So.2d 1087, writ denied, 97-0469 (La.4/18/97), 692 So.2d 448, where there was evidence presented that the ticket-taker in the sports facility had the opportunity to notice the spill in the entrance gate prior to plaintiffs slip and fall.


author: LSUSAN M. CHEHARDY, Judge.

text:
    Todd DENNIS v. GAIL WASHINGTON STEWART, Tiffany K. Scott, Tarra K. Scott, Tamarra Scott Landry, Tanica K. Scott and Tamonica K. Scott.
    No. 04-CA-405.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 2004.

      Malinda Hills-Holmes, Kenner, LA, for Defendants/Appellants, Gail Washington Stewart and Tiffany K. Scott.
    Gregory A. Miller, Norco, LA, for Plain-tiffAppellee, Todd Dennis.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and WALTER J. ROTHSCHILD.
   LSUSAN M. CHEHARDY, Judge.

This is a declaratory judgment proceeding to establish that plaintiff, Todd Dennis, is the sole heir of the late Baldwin Dennis, in opposition to six out-of-marriage descendants of the decedent. The trial court granted a summary judgment in favor of the plaintiff and two of the defendants appealed. We affirm.

This appeal presents a case study of the difference between formal and informal acknowledgment of children born outside of marriage.

The uncontested facts, as set out in the various pleadings and exhibits filed in connection with the motion for summary judgment, are as follows:

Baldwin Dennis was married to Dorothy Louise Pryor on March 16,1957. The only child of their marriage was Todd Dennis, born on November 4, 1959. Baldwin Dennis died on October 31, 1994. Todd Dennis was placed into possession of Baldwin Dennis’ estate by judgment of possession dated November 6, 2002, including immovable property located at 166 Diamond Road in Norco, St. Charles Parish.

Todd Dennis subsequently signed a sales purchase agreement for a portion of the Diamond Road property, subject to his clearing a cloud on the property’s title | ^arising from claims of Baldwin Dennis’ descendants by out-of-marriage relationships. Todd Dennis then filed this suit for declaratory judgment against Gail Washington Stewart, Tiffany K. Scott, Tarra K. Scott, Tamarra Scott Landry, Tanica K. Scott and Tamonica K. Scott.

Plaintiff did not contest that Baldwin Dennis was the biological father of Deborah Scott and Gail Stewart. Plaintiff contended, however, that because Baldwin Dennis never formally acknowledged Deborah Scott or Gail Stewart, and neither Gail Stewart nor Deborah Scott timely filed filiation proceedings, defendants are forever barred from being named heirs of Baldwin Scott.

Tiffany K. Scott, Tarra K. Scott, Tamar-ra Scott Landry, Tanica K. Scott, and Ta-monica K. Scott are the children of the late Deborah Dennis Scott, who was born on September 8, 1949 and died on November 28, 1997. Deborah Dennis Scott was the daughter of Birthena Brown by an out-of-marriage relationship with Baldwin Dennis. Deborah Scott was 45 years old when Baldwin Dennis died.

Gail Washington Stewart, born on January 24, 1954, is the daughter of Isabelle Washington by an out-of-marriage relationship with Baldwin Dennis. Gail Washington Stewart was 40 years old when Baldwin Dennis died.

Baldwin Dennis never acknowledged the birth of either Deborah Dennis Scott or of Gail Washington Stewart on any birth or baptismal certificate; he never adopted either of them; he never recognized either of them as his child by notarial act. Neither Deborah Dennis Scott nor Gail Washington Stewart ever filed a filiation proceeding regarding Baldwin Dennis.

Both Deborah Scott and Gail Stewart were listed in the obituaries of Dorothy Dennis and Baldwin Dennis as their children. In August 1993, Deborah Scott was listed as a joint signer with Baldwin Scott and designated as “daughter” on a disability/survivor benefits direct deposit authorization form of the Teachers’ |4Retirement System of Louisiana. Baldwin Dennis and Deborah Scott had a joint checking account; later, Deborah Scott and Todd Dennis had a joint checking account. Deborah Scott was beneficiary of a policy insuring the life of Baldwin Dennis. Baldwin Dennis was listed as Deborah Scott’s father in her application for a Social Security Number. Deborah Scott also is listed as “Informant” on Baldwin Dennis’ death certificate. The expenses for Baldwin Scott’s funeral were billed to Deborah Scott.

A document drafted by a notary public, purporting to be a last will and testament of Baldwin Dennis, bearing a date of February 1994 but never signed, contained the following pertinent language:

I leave and bequeath all my property, both real and personal and both separate and community, conjointly to my children, Deborah Dennis, wife of Harry Scott; Gail Washington, wife of Robert Stewart; and Todd M. Dennis, in equal shares, share and share alike.
I appoint my daughter, Deborah Dennis Scott, as executrix of this, my last will and testament, with full seizin and without bond.

In a letter directed “To Whom It May Concern,” Victor B. Dennis, Jr., nephew of Baldwin Dennis, stated that Baldwin Dennis claimed Deborah Scott and Gail Stewart as his daughters, that Deborah was the primary caregiver for Baldwin Scott in the last years of his life, that at his death he was staying with Deborah and her family full-time, and that Gail Stewart assisted Deborah in caring for him as needed. A letter from Ophelia Dennis Cloudet, niece of Baldwin Dennis, stated that Baldwin Dennis always acknowledged Deborah Scott and Gail Washington as his daughters.

An affidavit from Tarra Scott and Tiffany Scott stated that they have always known Baldwin Dennis as their grandfather; that Baldwin Dennis lived in front of | ¡¿heir house, where they visited him every day and called him Grandpa Bob; that Baldwin Dennis lived with their mother and her family after the death of his wife, until his death in 1994; at all times Baldwin Dennis acknowledged their mother, Deborah Dennis Scott, as his daughter in front of friends and family members; and Baldwin Dennis attended the weddings of the grandchildren in the role of a grandfather.

In granting the summary judgment, the trial court stated:

[WJhile the defendants did have legal rights at one time ... the legislature gave you a time line to exercise those rights. Basically, y’all didn’t do it-
The record is devoid and has no information whatsoever showing that legal proceedings were had as required by Louisiana law or that the people took the appropriate steps to have themselves declared the children of the late Baldwin Dennis. I’m not saying they are not his children. I’m just saying they did not do the legal steps necessary to be declared the children of Mr. Dennis. So the result is harsh. The result in my opinion [is] cruel, but I have to follow the law. The law is that these actions were not taken and I have no recourse but to grant the relief sought by Mr. Todd Dennis, granting the Motion for Summary Judgment.

Gail Stewart and Tiffany K. Scott joined in a petition for appeal, but the other defendants did not appeal; therefore, the judgment is final as to them.

In the absence of valid testamentary disposition, the undisposed property of the deceased devolves by operation of law in favor of his descendants first. La.C.C. art. 880. Descendants succeed to the property of their ascendants. La.C.C. art. 888.

Children. Under this name are included those persons born of the marriage, those adopted, and those whose filiation to the parent has been established in the manner provided by law, as well as descendants of them in the direct line.

A child born of marriage is a child conceived or born during the marriage of his parents or adopted by them.

LA child born outside of marriage is a child conceived and born outside of the marriage of his parents.

La.C.C. art. 3506(8), as amended by Acts 2004, No. 23 (eff. Aug. 15, 2004).

Acknowledgment of an illegitimate child shall be made by a declaration executed before a notary public, in the presence of two witnesses, by the father and mother or either or them, or it may be made in the registering of the birth or baptism of such child. La.C.C. art. 203(A). An acknowledgment by notarial act is deemed to be a legal finding of paternity, while an acknowledgment by registry creates a rebut-table presumption of paternity. La.C.C. art. 203(B).

To establish filiation, a child born out of marriage who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209. • La.C.C. art. 208. La.C.C. art. 209 sets out the methods to prove filiation:

A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation, except for the sole purpose of establishing the right to recover damages under Article 2315. A proceeding for that purpose may 17be brought within one year of the death of the alleged parent and may be cumulated with the action to recover damages.
D. The right to bring this proceeding is heritable.

Had a proceeding under Art. 209 been filed timely, defendants’ evidence might have been sufficient to prove their claims. As the trial court pointed out, however, the time is long past for taking such action. Article 209 was amended to substantially its present form by Acts 1981, No. 720. At that time, Section 2 of the act granted a grace period of one year from the act’s effective date for persons affected by the act to bring a proceeding to establish filiation of a child. Section 2 provided further, “If no such proceeding is timely instituted, such filiation may not thereafter be established.”

Thus, both Debra Dennis Scott and Gail Washington Stewart, who were past the age of 19 years at the time Act 720 was passed in 1981, had one year from its effective date to file a proceeding under Article 209 to prove their relationship to Baldwin Dennis, who was still alive at that time. Because they never filed a filiation proceeding, they lost forever their opportunity to be recognized in law as his children.

We acknowledge, as did the trial court, that the result is harsh, especially in a case such as this, in which the defendants have been recognized informally all their lives as the child or grandchildren of the decedent. Nevertheless, we are bound to follow the law and we cannot change this result.

For the foregoing reasons, the judgment is affirmed. Costs of appeal as assessed against the defendants-appellants.

AFFIRMED.

      . Pursuant to Acts 2004, No. 26 (eff. August 15, 2004), many of our codal and statutory laws no longer use the terms "legitimate” and "illegitimate” to denote the status of children. Instead, Act 26 of 2004 changed the terminology to "child bom of marriage” and "child born outside of marriage,” in designated articles of the various Codes and in designated sections of the Revised Statutes.

      . Neither of these letters was in the form of an affidavit or otherwise authenticated so as to be considered valid evidence.