author: CARAWAY, J.

text:
    Raymond HEAD, Jr., et al., Plaintiffs-Appellees v. Adolphus Lee GRAY and Richard Mutter and Cindy Mutter, Defendants-Appellants.
    No. 41,290-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Davidson, Jones & Summers, by Allison A. Jones, Shreveport, for Appellants.
    Smith & Jacobs, by Charles A. Smith, Edward C. Jacobs, Springhill, for Appel-lee.
    Before WILLIAMS, GASKINS and CARAWAY, JJ.
   CARAWAY, J.

|-i Owners in a subdivision brought this action to enjoin the use of a manufactured home on a neighbor’s lot based upon a recorded building restriction. The building restriction which was part of the general plan for the residential development was directed against temporary structures, including mobile homes. Defendants’ home, which was designed in two sections for placement on a permanent foundation, was ordered to be removed from the subdivision by the trial court. Finding doubt as to the extent of the building restriction, we reverse.

Facts

Cypress Point Subdivision adjoins Cypress Bayou Reservoir in Bossier Parish. In July 1977, the Estate of W.B. Jacobs, Inc. (“Jacobs, Inc.”) subdivided the land comprising the subdivision. As a part of this process, Jacobs, Inc. declared and recorded protective covenants and building restrictions (hereinafter “Covenants”) governing the use of subdivision property. The disputed restriction, labeled “Temporary Structures” (Restriction #8, infra), provides that no “mobile home” shall be placed or used on a subdivision lot.

Richard and Cinder Mutter now occupy Lot 8, Cypress Point Subdivision. The Mutters own a home manufactured by Franklin Homes, Inc. The Mutters’ home was previously in another subdivision nearby for a period of time but was not secured on a foundation there and its roof was apparently never finished. On a date not specified in the record, the Mutters [¡.had the home moved to the Cypress Point lot. The structure’s two sections were then completely assembled and attached to the foundation.

Thereafter, a group of Cypress Point lot owners brought this action for injunctive relief against the owner of Lot 8, Adolphus Lee Gray, and the Mutters claiming a violation of the Covenants by the Mutters’ construction of their modular/mobile home on the lot. Plaintiffs asked the court to prohibit the defendants “from allowing the placement of said mobile home or manufactured home in said subdivision.... ” Plaintiffs subsequently filed an amended petition recognizing that the Mutters had already placed and assembled the home on the site and seeking an injunction for its removal.

None of the parties testified at trial. However, Russell Foster testified that his modular home was placed on a lot next to Lot 8 in August 2003. The structure was placed on the concrete foundation one section at a time by a crane and attached to the foundation and bolted together. Although he characterized the home as a permanent dwelling, he acknowledged it could be moved like any other permanent home. Foster also identified photos of various lots with outbuildings, sheds, metal garages, motor homes and other temporary structures which were allegedly out of compliance with the building restrictions.

Photographs showing the transport and assembly of the Mutters’ home were also submitted into evidence. This home was comprised of rectangularly-shaped sections, approximately 75 feet long by 15 feet wide. 13The interior length of each module was exposed so the two sections could be fastened together on site to complete the unified structure. The sections were framed with wooden studs and rafters like a site-built dwelling and the pitch of the roof line produced some attic space. The home sections comply with the same building codes applicable to site-built homes.

After completion of construction, each module is put on a separate, wheeled chassis that permits transportation from the factory. This road chassis is removable and does not furnish any structural integrity to the completed unit. The assembled home is not equipped with wheels.

The foundation for the Mutters’ home consisted of a concrete footing poured around the perimeter for the 75' x 30' home. Along the centerline of the foundation where the two sections are joined, a series of cement cinder block piers support the structure.

At the close of trial, the court concluded that the placement of the Mutters’ home was prohibited by the Covenants and signed a judgment granting a permanent injunction against the placement of the home in the subdivision. It is from this judgment that defendants appeal.

Discussion

I.

Defendants first argue that the restrictions are invalid because the public records contain no evidence that Neilson S. Jacobs had the authority, by corporate resolution, to act on behalf of Jacobs, Inc. to establish the restrictions in 1977. Plaintiffs respond by citing the prescriptive protection |4against challenges to the lack of such recorded corporate acts provided in La. R.S. 9:5681, as follows:

A. (1) Any action to set aside a sale, transfer, lease, mortgage, encumbrance, or any other document by any legal entity or unincorporated association affecting any immovable property located in this state on the ground that the officer, agent, or other representative of the legal entity or unincorporated association signing the document was without authority to do so is prescribed by ten years, reckoning from the day the act of sale was recorded in the mortgage or conveyance records, or both as applicable, of the parish in which the immovable property is located. Nothing contained in this Section shall be construed to limit or to establish a prescriptive period as to any proceeding which may arise between the legal entity or unincorporated association and the person acting in a representative position.

There is no evidence in this case of any lawsuit successfully challenging the authority of Jacobs to act for the corporation. Such a suit could have in turn affected the rights of parties, such as plaintiffs, who acquired their property in reliance upon the recorded Covenants. With no successful challenge to the instrument having previously occurred, plaintiffs gain the protection of this ten-year prescription. Accordingly, the time for raising any challenge to Jacobs’ authority to act for Jacobs, Inc. has expired. This claim attacking the force of the Covenants is without merit.

ii.

Building restrictions are governed by the Louisiana Civil Code Articles 775, et seq. Building restrictions are incorporeal immovables and real rights likened to predial servitudes. They are regulated by application of the rules governing predial seivitudes to the extent that their application is compatible with the nature of building restrictions. La. C.C. art. 777. 15Building restrictions terminate by abandonment of the whole plan or by a general abandonment of a particular restriction. La. C.C. art. 782.

Doubt as to the existence, validity, or extent of building restrictions is resolved in favor of the unrestricted use of the immovable. La. C.C. art. 783. See generally Tri-State Sand & Gravel, L.L.C. v. Cox, 38,217 (La.App. 2d Cir.4/7/04), 871 So.2d 1253, writ denied, 2004-1357 (La.9/24/04), 882 So.2d 1144. The words of a contract must be given their generally prevailing meaning. La. C.C. art. 2047. Words of art and technical terms must be given their technical meaning when the contract involves a technical matter. Id. The law favors the free and unrestrained use of immovable property, and it follows that any doubt as to the interpretation of a servitude encumbering property must be resolved in favor of the property owner. McGuffy v. Weil, 240 La. 758, 125 So.2d 154 (1960). The intention of the proprietor to establish a servitude must clearly appear from the title document. McGuffy v. Weil, supra, citing Noel Estate v. Kansas City Southern & Gulf Ry. Co., 187 La. 717, 175 So. 468 (1937). From these principles, if the instrument purporting to create a building restriction is susceptible to two or more reasonable interpretations thereby creating ambiguity and doubt as to the subdivider’s intent, the interpretation that least restricts the property will apply regardless of an actual intent for a greater restriction.

There are various provisions in the Covenants for this subdivision which should be reviewed in order to place the disputed “Temporary | fiStructures” restriction in context. We consider the following restrictions of the Covenants relevant for our interpretation of the disputed provision:

1. LAND USE AND BUILDING TYPE. No lot shall be used except for residential purposes. No building or structure shall be erected, altered, placed, or permitted to remain on any lot other than one single family dwelling, private garage, carport, and associated lakeshore structures. No garage apartments shall be erected on any lot....

2. DWELLING SIZE. The habitable heated area of the main structure, exclusive of open porches and garages, shall be not less than 1200 square feet.

% *

4. LOT AREA AND WIDTH. No dwelling shall be erected or placed on any lot having a width of less than 65 feet at the minimum set back line....

* * *

8. TEMPORARY STRUCTURES. No structure of any temporary character, trailer, mobile home, tent, shack, barn, or other similar outbuilding shall be placed or used on any lot at any time as a residence either temporarily or permanently.

* * *

16. ARCHITECTURAL CONTROL. No building or fence shall be erected, placed or altered on any lot until the construction plans and specifications and a plan showing the location of the structure and/or fence have been approved by the Architectural Control Committee as being in compliance with these covenants. The Committee’s approval or disapproval as required in these covenants shall be in writing. In the event the Committee or its designated representative fails to approve or disapprove within 30 days after plans and specifications have been submitted to it, or in any event, if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with.

From a jurisprudential context, it is noteworthy that closely similar versions of the language of Restriction # 8 have been the subject of a rich history of dispute in Louisiana and other states. See, Smith v. DeVincent, 322 So.2d 257 (La.App. 2d Cir.1975), and cases from other states cited |7therein; Jackson Square Towne House Homes Ass’n, Inc. v. Mims, 393 So.2d 816 (La.App. 2d Cir.1981); Mitchell v. Killins, 408 So.2d 969 (La.App. 2d Cir.1981); Webb v. Johnson, 95-1518 (La.App. 3d Cir.4/3/96), 671 So.2d 1120; Ritter v. Fabacher, 517 So.2d 914 (La.App. 3d Cir.1987); Mouille v. Henry, 321 So.2d 377 (La.App. 3d Cir.1975). These cases suggest that the language and phraseology of Restriction # 8 have some common source, possibly evolving from an early formulary. With changing contexts for employing the restriction, some alteration in its language and differing schemes envisioned for individual subdivision plans, disputes have arisen.

Most of these cases, including our initial review of language closely similar to Restriction # 8 in Smith, deal principally with the issue of whether the use of “trailer” alone in early versions included the concept of mobile home. As Smith points out, cases in other states gave conflicting answers to that question. Some of the above cases also discussed the degree of permanent attachment or immobilization in situations where the chassis, wheels and tongue/tow bar were removed from a mobile home and the remaining structure was placed on piers and other such foundations. Finally, the Smith case had to address the phrase, “used on any lot at any time as a residence either temporarily or permanently.” Unlike the present Covenants, which make clear that “residential purposes” is an overriding restriction on the lots in Cypress Point Subdivision, the limited set of covenants in Smith had no such general restriction. Therefore, the Smith court was restrained to conclude, rather anomalistically, that while the | ¡^defendants’ mobile homes were included within the meaning of the word “trailer” as used in the restriction in that case, the defendants were not required to remove their mobile homes/trailers from the subdivision because of the lack of a clear building restriction prohibiting their placement in the subdivision. The owners in Smith were only enjoined from using their mobile homes as residences within the subdivision. The court concluded:

If this subdivider had intended to prohibit the placement of trailers (or mobile homes), temporary structures, even barns, sheds or outbuildings on the subdivided property, as well as to prohibit their ‘use’ as a residence, the restrictions should have and could have been phrased so as to expressly and unequivocally provide.
Presented here is an example of imprecise draftsmanship and our ruling herein should serve as notice to those who would restrict either or both the strue-tures on their property and the uses which may be made of permitted structures to be precise in drafting restrictive covenants.

Smith, supra at 263.

In contrast to the limited set of restrictions in Smith, our later ruling in Mitchell, supra, involved subdivision covenants with a “residential purposes” restriction almost identical to Restriction # 1 of the present Covenants and a “Re-location of Buildings” restriction which required every residence to be constructed on site. This court therefore affirmed the mandatory injunction granted by the trial court in Mitchell for removal of a mobile home immobilized in the subdivision. The “temporary structure” restriction in Mitchell was identical to the disputed restriction central to the Smith ruling. Yet, because the entire set of restrictions for each subdivision differed, the outcomes of the two cases using the very same restriction were different.

1 ^Smith and Mitchell demonstrate the importance of considering the entire framework for the subdivision’s “general plan” which is identified in the Civil Code definition for building restrictions under Article 775. As the Civil Code further provides, “[e]ach provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.” La. C.C. art. 2050. Accordingly, we first examine the overall context or “general plan” for the Cypress Point Subdivision as reflected in the above quoted restrictions.

Restriction # 1 of the Covenants begins with a general prohibition against uses other than for “residential purposes.” More significantly, the second sentence specifically limits the subdivision lots, listing the “single family dwelling, private garage, carport, and associated lakeshore structures” as the only structures permitted on them. This would arguably prohibit certain things listed in Restriction #8, such as an “RV trailer,” “tent,” “shack” and “barn,” from use as a structure on the lots since these are not generally understood as structures for the accommodation of a “single family dwelling.” Thus, the limitation of Restriction #8 is in many respects already addressed by the broad limitation of Restriction # 1. Nevertheless, it adds explanation by addressing “outbuildings” of a “temporary character,” so as to make it more than superfluous.

The next important contextual feature of these Covenants is the consistent use of the term “placed” as it pertains to buildings and structures. Most of the quoted restrictions discuss an allowance for structures to be “placed” on a lot, and three of them specifically use “placed or erected” as | ^contrasting verbs. This indicates that a house with a pier-and-beam structure built long before the advent of mobile homes and modern manufactured housing could be brought in and “placed” on the same foundation which the Mutters constructed for their home. Such house might have a roof pitch and attic space like the Mutters’ home so that its aesthetic features would be virtually the same. Unlike the “Re-Location of Buildings” restriction in Mitchell, which required every residence in that subdivision to be constructed on site, the Covenants for Cypress Point do not prevent a home built elsewhere from being moved and placed in the subdivision.

A third feature of these building restrictions is their lack of specific limits on aesthetic features. Aesthetic considerations play a small part in these Covenants when dealing with square footage for the homes and minimum setback lines. The Covenants do not however attempt to specify particular construction features, such as brick veneer or roof material or pitch, that might have a more pronounced aesthetic impact on the subdivision and tend indirectly to restrict the use of manufactured housing. See, Travosos v. Stoma, 95-1568 (La.App. 3d Cir.4/3/96), 672 So.2d 1070, writ denied, 96-1633 (La.9/27/96), 679 So.2d 1343. Thus, any objections by the plaintiffs that might relate to the aesthetic features of the Mutters’ manufactured home gain no support by affirmative or negative duties set out in the Covenants so as to sanction an injunction for the home’s removal.

InLast, before considering the meaning and scope of the term “mobile home,” the context of Restriction # 8 must be reviewed. This restriction expresses certain general concepts that do not relate to the Mutters’ home. First, the restriction is labeled “Temporary Structure” and its language speaks of a “temporary character” for the listed structures. This is aimed as a restriction on the way the building is built. The Mutters’ home rests on a foundation like any other pier-and-beam home that might have been constructed on site. That concrete foundation may be considered as permanent in that it is embedded in the ground and cannot be removed without destroying its structure. The fact that an assembled manufactured home is placed on a foundation and may be disassembled and removed does not mean that the Mutters’ home is a “temporary structure” with a “temporary character.” It is more reasonable to characterize this home, like any pier-and-beam home constructed on site, as permanent in nature. Restriction #8 also concludes its specific listing of structures with the phrase “or other similar outbuilding,” reflecting a use restriction. Unquestionably, every structure identified in Restriction # 8 can be used as an outbuilding, or a structure separate in its identity and use from the principal “single family dwelling” of each residential lot. The Mutters’ manufactured housing, however, is not being used as an outbuilding. Thus, the general expressions within Restriction # 8 — “temporary” “outbuildings” — arguably define its prohibitory focus, and the Mutters’ home does not fall within that focus.

| ^Plaintiffs’ position is that Restriction # 8 must be interpreted literally, that “no mobile home ... shall be placed or used” on Cypress Point lots, and that this interpretation controls without regard to any other contextual expressions in the restriction itself or in the Covenants. They also maintain that the meaning of “mobile home” includes within its scope the Mutters’ double-wide manufactured structure.

From our review of the law and jurisprudence, we find various expressions attempting to define the term mobile home. For example, in 1975, two years before these Covenants were drafted, the Third Circuit Court of Appeal in Mouille, supra, considered Webster’s definition for mobile home as “a trailer that is used as a permanent dwelling.” Mouille at 378. At the same time of that ruling, La. R.S. 51:911.22, which was included in Louisiana’s Uniform Standards Code for Mobile Homes, provided a definition as follows:

(5) “Mobile home” means a factory-assembled structure or structures equipped with the necessary connections and made so as to be readily movable over roads and highways as a unit or units, which exceeds eight body feet in width or is thirty-two feet or more in body length and is designed for occupancy with or without a permanent foundation. It may consist of one or more units which can be telescoped when towed and expanded later for additional capacity, or may consist of two or more units, separately towable but designed to be joined into one integral unit.

Act 281 of 1974. Later, this definition in the Revised Statutes was amended several times. At one point, “mobile home,” “manufactured home” and “manufactured housing” were used together in La. R.S. 51:911.22 and said to be interchangeable. Act 576 of 1984. The present version of the statute defines mobile home differently from manufactured home. La. R.S. 1^51:911.22. Finally, in our law pertaining to highway regulations, La. R.S. 32:1 has its own definition of “mobile home” placing emphasis on the “trailer or semitrailer” design of the structure which “is equipped for use as a conveyance on highways.”

At trial, the Mutters attempted through expert testimony to raise distinctions between a mobile home and a manufactured or modular home. The mobile home was said to have a permanent chassis that forms a part of its structure, while the Mutters’ home was moved on a separate transporter/trailer and lifted into place onto a permanent foundation. An executive of the company that built the Mutters’ home testified that the modular home was built to the same building codes as a pier- and-beam constructed home. The building standards for a mobile home were said to be different. Also, the testimony discussed the legal requirement for a mobile home to have a vehicle identification number for transport as a vehicle while no such requirement applied to the Mutters’ home.

Noteworthy distinguishing features of the Mutters’ home are its roof pitch and attic space. The photos of the home as it was moved on a trailer into the subdivision reveal that its roof was incomplete with only a lower, temporary roof covering each home section. The lower roof obviously allowed for easier transport along the highway. Once at its destination, a steeper roof with rafters was added to each section, and a gabled roof with attic space comprised the finished structure. Foster’s manufactured home located next door had an even steeper roof since his modular home units were designed to accommodate an upstairs living area.

| uContrary to the plaintiffs’ argument, the term “mobile home” does not have such a generally prevailing meaning as to clearly include all forms of manufactured housing, hence the need to detail the scope of its meaning as illustrated by varying definitions in our statutes. Another reasonable and narrower interpretation might recognize the mobile home’s origins as a trailer with a tow bar, comprising a single self-contained living area and designed to sit on its own axle. Our ruling in Smith had little difficulty recognizing that the single unit mobile home in that case was essentially a “trailer,” which was the only term utilized in the early version of the “temporary structure” restriction which Smith addressed. The court observed:

By whatever name, these homes convey to reasonable minds a rather elongated structure (10 to 14 feet in width by 40 to 80 feet in length), capable of being towed on the highways, with axles and wheels attached to the frame of the structure. The very name mobile or trailer conveys this meaning. The overall appearance, as distinguished from exterior decor, of one mobile home is not grossly dissimilar to another, and in the eyes of reasonable men, they all “look alike.” We also take note that occasionally they may be immobilized on a particular location, but nonetheless, remain capable of being mobilized without too much effort and expense. They are not so much “constructed” or “assembled” even in a small part on the location the owner desires but are “connected” to sewerage and utilities. Indeed, one of their greatest selling points is their complete containment, ease of connection, and mobility.

Smith v. DeVincent, supra at 263.

The Mutters’ home was assembled; its roof and attic constructed; and its re-mobilization would now require much effort and expense. Though double-wide trailers requiring assembly existed at the time of Smith (see Act 281 of 1974), this court’s definitional description plainly suggests that | TSmodern manufactured housing units designed for placement on a foundation by a crane and requiring roof construction would not be included in its 1975 view of the trailer/mobile home.

Moreover, as seen by the detailed definitions for “mobile home” utilized in the above Louisiana statutes, careful drafting avoids the question of whether a mobile home with a permanent foundation is still to be considered a mobile home. That question is reasonable, and the question raises doubt. In the Mitchell case, the subdivision restrictions were clear that an immobilized mobile home would not be considered as an acceptable permanent residence because they further provided that every residence also be constructed on site. Other restrictions specifying aesthetic features of a residence could also effectively prevent most manufactured housing in a subdivision if that is indeed a goal for the subdivision plan.

In summary, we determine that issues exist in the Covenants creating reasonable doubt under Civil Code Article 783 as to the extent of the application of these building restrictions for Cypress Point Subdivision. There is doubt as to the meaning and scope of the term “mobile home.” Mobile structures are allowed to be “placed” in the subdivision with no requirement that every residence be “erected” on site. Most significantly, even if the term mobile home may be broadly construed to include all forms of manufactured and modular housing, the context of Restriction # 8 suggests a limited interpretation for its application. That interpretation of Restriction # 8 prevents the placement on a lot of such manufactured housing with a less than permanent foundation for use as an outbuilding |1fiserving the main dwelling. Such an interpretation by a third party viewing the public records and reading these Covenants is reasonable, whether or not it is the only interpretation that can be understood for Restriction # 8. It thus becomes the interpretation the law mandates for the most free and unrestrained use of the immovable.

Conclusion

The permanent injunction issued by the trial court is reversed. Costs of appeal are assessed to appellees.

REVERSED AND RENDERED.

      . The trial court noted that a similar action was pending against Foster, who lives next door to the Mutters.

      . The architectural control provision has not been raised by the parties as operative in this case with enforcement by the Control Committee. We cite the provision to show that the control envisioned by the provision does not appear to address outbuildings or the temporary structures discussed in Restriction # 8, since such restriction can be interpreted as totally barring placement of such temporary structures in the subdivision.


source: Caselaw Access Project

author: MOORE, J.

license: Public Domain

text:
    Sarah Jane BALL, Individually and as the Surviving Wife of Robert L. Ball, Jr., Plaintiff-Appellant v. CHARTER FOREST BEHAVIORAL HEALTH SYSTEM, INC. d/b/a Charter Forest Hospital and Richard W. Williams, M.D., in Solido, Defendant-Appellees.
    No. 41,329-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Rice & Kendig by William F. Kendig, Shreveport, for Appellant.
    Walter F. Clawson, Shreveport, for Ap-pellees.
    Before WILLIAMS, CARAWAY and MOORE, JJ.
   MOORE, J.

|-i Sarah Jane Ball appeals a jury verdict that rejected her claims for wrongful death and survival damages against the Louisiana Patients’ Compensation Fund (“PCF”). Mrs. Ball alleged that her husband, Robert Ball Jr., sustained fatal head injuries shortly after being admitted to Charter Forest Behavioral Health System (“Charter Forest”) for chemical dependency treatment in July 1998. Evidence showed that Mr. Ball was trying to bolt from the facility when he suffered a grand mal seizure and fell to the floor, severely injuring his head. The jury found that Charter Forest did not breach the applicable standard of care, and we now affirm.

Factual Background

The 53-year-old Robert Ball had been a serious alcoholic for many years. He met the future Mrs. Ball in 1996 and they got married in May 1998, about two months before he died. It was Mrs. Ball’s fourth marriage. At her insistence, Robert had stopped drinking but he soon lapsed. She insisted that he get treatment, but he was apprehensive and resistant. On July 13, 1998, she drove him do Charter Forest, where he agreed to only a “partial inpatient” admission which failed; he went home and got drunk again. The next morning, July 14, she again took him to Charter Forest; fearful and apprehensive, Robert drank two beers along the way.

According to Charter Forest’s records, the Balls arrived about 10:30 AM and met with a counselor for about 30 minutes. They then met with Dr. Richard Williams, a psychiatrist and certified addiction physician, for about 45 minutes. Dr. Williams saw that Robert was shaking, sweating and agitated — all symptoms of withdrawal. Dr. Williams and Mrs. Ball finally | i>,persuaded Robert to be admitted as an inpatient. At 11:45, they walked him to the nurses’ station, where Nurse Laughlin sat him down at the vital signs machine. Dr. Williams ordered a dose of 25 mg Librium to ease the effects of withdrawal. At trial, several witnesses (including Nurse Laughlin) discussed this dosage and whether it was unusually low; however, Dr. Williams felt it was an appropriate initial dosage.

After Nurse Laughlin gave Robert the pill, Dr. Williams left to complete his rounds and Mrs. Ball went outside to fetch some of her husband’s toiletries from the car; she lingered a few minutes to smoke a cigarette. Nurse Laughlin testified that alone with Robert, she knelt beside his chair, made good eye contact and reassured him that the medicine would help him to start feeling better. She thought they established a good rapport. At 11:55, however, she got his vital signs: blood pressure “172/118 (and elevating)” and pulse “126 (irregular).” Thinking that Robert was in much more acute withdrawal than Dr. Williams had realized, Nurse Laughlin decided to call the doctor and ask for additional medication. She testified that she told Robert, “I want you to stay here in this chair and allow the Librium to work,” and he nodded in apparent understanding. She then left his side and took three steps around the counter, some seven feet away, to phone Dr. Williams.

After she dialed the number, she saw in the corner of her eye that Robert had risen from the chair and was hustling down the curved hallway, going toward the main entrance. She shouted at him to come back, dropped the phone and ran in pursuit. Once she rounded the hall, she saw Robert | ¡¡lying face-up on the floor, having a seizure. She depressed his tongue and called for assistance, but he soon went into a grand mal seizure.

Robert was promptly carried to Highland Hospital and operated on by Dr. David Cavanaugh, but he died the next day. Dr. George McCormick, the late coroner for Caddo Parish, performed an autopsy, concluding that Robert died from closed head injuries received when the back of his head struck the floor. He and Dr. Cavanaugh excluded stroke or any other cause of death.

Mrs. Ball filed the instant suit in July 1999 against Charter Forest and Dr. Williams, alleging that both breached the applicable standards of care in various ways. A medical review panel found that Dr. Williams and Charter Forest breached the standard of care by failing to admit Robert when he first appeared on July 13, but made no finding as to Nurse Laugh-lin’s conduct on July 14. In late 2002, Mrs. Ball settled with Dr. Williams and Charter Forest (by then known as Brent-wood Hospital) for $75,000, reserving all rights against the PCF. The PCF prayed for a jury trial, which was held over four days in late June 2005.

The 12-member jury deliberated one hour before unanimously deciding that neither Charter Forest nor any of its employees deviated from or violated the standard of care owed to Robert. The district court rendered judgment in accordance with the verdict, dismissing Mrs. Ball’s claims. She took this appeal.

| ¿Applicable Law

In a malpractice claim against a hospital or, as in this case, a chemical dependency facility, the plaintiff is required to prove by a preponderance of the evidence, as in any negligence action, that defendant owed plaintiff a duty to protect against the risk involved (or the applicable standard of care), defendant breached its duty (or the applicable standard of care), and the injury was caused by the breach. La. R.S. 9:2794 A; Pfiffner v. Correa, 94-0992 (La.10/17/94), 643 So.2d 1228; Hinson v. The Glen Oak Retirement Syst., 37,550 (La.App. 2 Cir. 8/20/03), 853 So.2d 726, writ denied, 2003-2835 (La.12/19/03), 861 So.2d 572.

Nurses and other health care providers are subject to the same standard as physicians. Cangelosi v. Our Lady of the Lake Regional Med. Center, 564 So.2d 654 (La.1989); Hinson v. The Glen Oak, supra. The nurse’s duty is to exercise the degree of skill ordinarily employed, under similar circumstances, by members of the nursing or health care profession in good standing in the same community or locality, and to use reasonable care and diligence, along with his or her best judgment, in the application of his or her skill to the case. Hinson v. The Glen Oak, supra, and citations therein.

Injury alone does not raise a presumption of negligence. La. R.S. 9:2794 C; Campo v. Correa, 2001-2707 (La.6/21/02), 828 So.2d 502; Fluck v. Coffman, 37,739 (La.App. 2 Cir. 12/12/03), 862 So.2d 1105. Hindsight or subsequent events cannot be considered when determining whether the actions of the nursing staff were reasonable and met the | ¡¡standard of care. Instead, the professional judgment and conduct of the nurses are evaluated under the then existing circumstances, not in terms of result or in light of subsequent events. Hinson v. The Glen Oak, supra, and citations therein.

The jury’s finding in a medical malpractice case is subject to manifest error review: it cannot be set aside unless the appellate court finds that it is manifestly erroneous or clearly wrong. Salvant v. State, 2005-2126 (La.7/6/06), 935 So.2d 646; Jackson v. State, 39,759 (La.App. 2 Cir.6/29/05), 907 So.2d 250. In order to reverse the jury’s finding of fact, the appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Salvant v. State, supra. The appellate court must not re-weigh the evidence or substitute its own factual findings because it would have decided the case differently. Id.; Pinsonneault v. Merchants & Farmers Bank & Tr. Co., 2001-2217 (La.4/3/02), 816 So.2d 270. Where there are two permissible views of the evidence, the jury’s choice between them cannot be manifestly erroneous or plainly wrong. Id.

Discussion

By her first assignment of error, Mrs. Ball urges the jury erred in finding no breach of the standard of care. She concedes that the manifest error standard applies, but argues that the appellate court will reverse a jury verdict of no liability when it appears the verdict was unduly influenced by the doctor’s depiction as a “good person.” Walker v. Corsetti, 04-784 (La.App.6 5 Cir. 3/29/05), 900 So.2d 991, writs denied, 2001-1101, -1110 (La.6/17/05), 904 So.2d 700, 702. To establish the standard of care, she cites Dr. Williams’s own statement in deposition:

A patient that I believe is going through withdrawal needs to be watched. They need to be sitting down or lying down. I wouldn’t want them standing up and walking around. The typical protocol for how a nurse would handle a situation would be to sit them down, get their history, take their blood pressure, put them in a bed closest to the nurse’s station where they can watch them, come check on them every 15 minutes.

She notes that her own expert witness in addiction medicine, Dr. Nancy Johnson, expressly agreed with Dr. Williams’s formulation; Dr. James Phillips, a psychiatrist who served on the medical review panel, called it a “fairly good standard”; and the PCF’s expert psychiatrist and physiologist, Dr. George Seiden, essentially agreed, adding only that the patient should eventually be put in the nearest bed.

Mrs. Ball then contends that Nurse Laughlin breached this standard by leaving Robert unattended at the nurses’ station, allowing him to wander off. Mrs. Ball argues it was unnecessary for Nurse Laughlin to call the doctor so soon, as all witnesses agreed the Librium would not kick in for 20 to 30 minutes; there was a phone right there on the counter, which she could have used without leaving the patient’s side; and even if she felt the need to phone the doctor, she could have called another nurse to sit with Robert while she (Nurse Laughlin) paged him. Mrs. Ball also disputes Nurse Laughlin’s testimony that she instructed Robert to stay seated, and argues that even if she did so, a patient in his condition could not be expected to heed her directive. She concludes that Nurse Laughlin “had only one job |7during the 5-7 minutes Mrs. Ball was walking to and from her car: stay with Mr. Ball and make sure he remained seated or lying down so that he was not up walking around,” and she breached it.

Finally, Mrs. Ball contends that this breach caused her husband’s death, citing expert testimony that patients experiencing acute withdrawal are much more subject to seizures than the average population. She also shows that in a grand mal seizure, the patient loses consciousness and cannot break his fall. Had Robert been sitting in the chair or moved to a bed, he would not have sustained the severe concussion and contrecoup frontal injury identified by Drs. McCormick and Cava-naugh as the cause of death.

The PCF responds by citing the manifest error rule and submits that Walker v. Corsetti, supra, is distinguishable in that Dr. Corsetti admitted a series of mistakes. The PCF urges that Nurse Laughlin complied with the standard of care by giving Robert the Librium as directed by Dr. Williams, kneeling next to him and constantly reassuring him; however, his vital signs were still high and he still appeared nervous, so she thought he urgently needed more medication. Robert appeared to understand when she told him to stay put while she made a phone call to help him, replying he felt “lucky to be in this chair,” but in an flash he got up and hurried down the hall. The PCF urges this was an act of his own volition, not the result of any negligence on Nurse Laughlin’s part. It submits that “moving seven feet from immediately adjacent to Mr. Ball to telephone within the nurses’ station, where she maintained an unobstructed view of Mr. Ball,” did not | Rconstitute leaving him unattended.

The PCF also shows that both Dr. Seiden and Dr. Phillips found in Nurse Laugh-lin’s conduct no deviation from the standard of care; citing their testimony, the PCF urges that the alternative of moving Robert to a room to lie down would have been even more intimidating and was inadvisable. It concludes the verdict was reasonable and should not be disturbed.

We agree with the PCF’s reading of' Walker v. Corsetti, supra: there, the defendant doctor admitted “a series of mis-identifications during the laparoscopic cholecystectomy procedure,” thus undermining the jury’s apparent finding that the plaintiff suffered “simply a case of a recognized complication.” There is no such admission of error in the instant case; all witnesses agreed Nurse Laugh-lin was an experienced and competent nurse. There is no suggestion that the PCF unfairly misrepresented her as a “good person” in the effort to depict Robert as bad or Mrs. Ball as unworthy. We perceive no impropriety.

Mrs. Ball relied almost exclusively on one passage from Dr. Williams’s deposition to argue that the nurse could not leave the patient’s side under any circumstances. Dr. Johnson fully endorsed this formulation of the standard of care, finding that Robert needed the “closest observation,” especially in the first hour, and that Nurse Laughlin plainly breached this standard.

There was, however, abundant record evidence from which the jury could infer that this formulation of the standard of care was incomplete. | flEven Dr. Williams, on cross examination, admitted that if the patient had Robert’s vital signs, it was appropriate for the nurse to notify the treating physician. He declined to agree that Nurse Laughlin should not have moved seven feet away to place the call. Dr. Seiden testified that he would want to be informed about the patient’s vital signs, if they were as elevated as Robert’s, and that he would expect the nurse to convey these to him. He did not conclude that Nurse Laughlin breached the standard of care by going to a phone seven feet away. Dr. Phillips testified that the patient walked in on his own strength, suggesting to Nurse Laughlin that his situation was not severe, but when she independently assessed him and saw his very elevated vital signs, she attempted to relay this to the treating physician. He felt she did not breach the standard of care.

In short, the standard of care appears to encompass a duty to notify the treating physician of any unusual vital signs; on this record, Nurse Laughlin appears to have assessed the patient properly and made a reasonable effort to notify Dr. Williams.

Mrs. Ball further argues that even if Nurse Laughlin really needed to contact Dr. Williams, she should have done so differently. She suggests that Nurse Laughlin could have summoned another nurse or aide to stay with Robert while she phoned Dr. Williams, but Nurse Laughlin testified that nobody else was in the immediate area at the time. She also suggests that Nurse Laughlin could have moved him to a bed in a nearby room, but Drs. Seiden and Phillips both testified that without the application of physical restraints, which were impermissible with a voluntary patient, even |inplacing him in a bed would not have prevented Robert from getting up and running away. Mrs. Ball finally suggests that Nurse Laughlin’s testimony is simply not credible insofar as she claimed to tell Robert to stay in the chair while she made a phone call, as her nurses’ notes do not include this detail. However, the jury was fully aware of the discrepancy between the testimony and the nurses’ notes, and chose to accept her testimony. We will not disturb their reasonable credibility call. Salvant v. State, supra; Pinsonneault v. Merchants & Farmers Bank & Tr. Co., supra.

The record convinces us that events unfolded very quickly at 11:55 AM at Charter Forest that day. With the benefit of hindsight, we can theorize that a more perspicacious nurse could have anticipated that Robert, with his aversion to seeking treatment and his high anxiety, was a risk to bolt and run. On the other hand, Nurse Laughlin stayed at his side for several minutes, trying to calm him; when she found his vital signs alarmingly high, she asked him to remain seated and walked a very short distance to phone the doctor. The jury found this conduct did not deviate from the standard of care, and on this record we cannot say the jury was plainly wrong.

By her second assignment of error, Mrs. Ball urges the jury erred in not reaching the issue of damages. In light of our finding with respect to liability, we preter-mit any discussion of damages.

Conclusion

For the reasons expressed, the judgment is affirmed. Costs are to be paid by the appellant, Mrs. Sarah Jane Ball.

AFFIRMED.


author: STEWART, J.

text:
    Terry L. NEWSOME, Plaintiff-Appellant v. ATMOS ENERGY, Defendant-Appellee.
    No. 41,413-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Smith & Nwokorie, by Anselm N. Nwokorie, Monroe, for Appellant.
    Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell, by Robert A. Dunk-elman, Shreveport, for Appellee.
    Before WILLIAMS, STEWART and LOLLEY, JJ.
   STEWART, J.

11 Terry Newsome appeals the Workers Compensation Judge’s (WCJ) involuntary dismissal of his claim for benefits. In answer to the appeal, Newsome’s employer, Atmos Energy, asks for damages for frivolous appeal. For the reasons that follow, we affirm the decision of the WCJ and deny Atmos Energy’s claim for damages for frivolous appeal.

FACTS

On January 2, 2004, Terry Newsome was employed as a meter reader by Atmos Energy. While reading meters, he had to jump over a fence and some bushes to get to a particular meter on his route. While scaling the fence, he felt what seemed like a muscle pull on his hip. However, he continued his route in spite of the fact that his pain increased as time went by. New-some did not report the incident or his injuries to any of his supervisors on the date of the incident because there was no supervisor in the office. Later that evening, Newsome’s wife took him to the emergency room. The emergency room doctor determined that he had a muscle strain. Newsome followed up with his personal doctor who diagnosed him with avascular necrosis.

Newsome filed for workers’ compensation benefits alleging that his injuries were caused by the January 2 incident. At the time of the trial, the parties stipulated to medical records and depositions of Dr. Noble, Newsome’s treating physician, medical records from North Monroe Hospital, the Orthopedic Clinic and Dr. Spires, and the depositions of Eddie Lemly and Dr. Clinton Guillory, the emergency room doctor.

|?At the end of the plaintiffs case in chief, Atmos Energy moved for an involuntary dismissal which was granted by the trial court. This appeal ensued.

DISCUSSION

Standard of Review

Newsome asserts that the WCJ erred in her determination that while he was injured during the course and scope of his employment with Atmos Energy, New-some did not prove a causal connection between the accident and the injuries at issue.

In order to recover workers’ compensation benefits, an injured employee must prove by a preponderance of the evidence that he suffered a “personal injury by accident arising out of and in the course of his employment.” La. R.S. 2S:1031(A). As the court explained in Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992) (citations omitted):

A worker’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses or friends. Corroboration may also be provided by medical evidence.
In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Indeed, the manifest error/clearly wrong standard of appellate review applies in compensation 13actions even when the trial court’s decision is based solely upon written reports, records or depositions.

Provided that the plaintiff has completed the presentation of his case, an involuntary dismissal may be granted in a workers’ compensation case. See LAC 40:1:6211; Taylor v. Tommie’s Gaming, 04-2254 (La.5/24/05), 902 So.2d 380. La. C.C.P. art. 1672 provides, in part:

B. In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

La. R.S. 23:1317 provides, in pertinent part:

A. If an answer has been filed within the delays allowed by law or granted by the workers’ compensation judge, or if no judgment has been entered as provided in R.S. 23:1316 at the time for hearing or any adjournment thereof, the workers’ compensation judge shall hear the evidence that may be presented by each party. Each party shall have the right to be present at any hearing or to appear through an attorney. The workers’ compensation judge shall not be bound by technical rules of evidence or procedure other than as herein provided, but all findings of fact must be based upon competent evidence and all compensation payments provided for in this Chapter shall mean and be defined to be for only such injuries as are proven by competent evidence, or for which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself. The workers’ compensation judge shall decide the merits of the controversy as equitably, summarily, and simply as may be. (Emphasis added.)

Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the workers’ compensation judge. Lewis v. Chateau D’Arbonne Nurse Care Center, 438,394 (La.App. 2d Cir.04/07/04), 870 So.2d 515. Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Culotta v. A.L. & W. Moore Trucking Company, 35,344 (La.App. 2d Cir.03/05/03), 839 So.2d 1063, writ denied, 03-0998 (La.05/30/03), 845 So.2d 1052.

When 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 its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). The manifest error standard applies even when the workers’ compensation judge’s decision is based upon written reports, records or depositions. Bruno v. Harbert International, Inc., supra

In her reasons for judgment, the WCJ started by saying that she initially found the plaintiffs testimony to be credible, but the record indicates that the WCJ noted discrepancies in his testimony and the record. Specifically, the WCJ noted that the emergency room records did not indicate that Newsome shared that his pain was the result of scaling a fence while at work. He also denied any injury to his hip in the medical reports of the North Monroe Medical Center.

Moreover, to the extent that the WCJ found the plaintiff to be credible, that alone is insufficient to prove the occurrence of an accident. First, there are grounds to believe that the accident alleged by plaintiff did not occur. In the emergency room report, plaintiff denied any injury to his hip. When asked why he gave this account of his injuries the plaintiff |BsimpIy declared that he was in too much pain to give an accurate record of how his injury occurred. However, the deposition testimony of Edie Lemley establishes that the questions asked in the emergency room were detailed and would have elicited a positive response had there been any history of a work accident or trauma. Moreover, plaintiffs wife was present at the time of the examination and although she knew of the alleged work related accident, she relayed nothing about it to the doctor.

On plaintiffs visit to his family doctor, Dr. Noble, he gave a history of “toting shingles up a ladder.” Dr. Noble testified that this history corresponded to the initial onset of symptoms. Although the appel-lees do not know what Newsome did Friday after he got home from work, it is clear that the history given to his family physician is devoid of any reference to an on-the-job accident while in the course and scope of employment with Atmos Energy and instead references roofing work.

While it is true that uncontradicted testimony of a worker’s compensation claimant may be sufficient to establish a claim, the rule only apples if there is no other evidence that casts serious doubt on the plaintiffs version of the accident, and the plaintiffs version is corroborated by the facts and circumstances following the accident. Bruno v. Harbert Int’l, Inc., supra. Both criteria are missing from the plaintiffs case in that the medical records cast serious doubts on his version of the accident and entirely fail to corroborate his story that he was injured on the job. Additionally, plaintiff never gave a history of an on the job accident to his employer. Instead, he went out of work receiving various employer provided benefits which | fiwould not be payable in the case of a worker’s compensation accident. It was only when all of these other work related benefits expired that plaintiff first claimed that he was injured on the job. The plaintiff, even if he could prove injury, never proved the occurrence of a work related accident. Thus, the WCJ was correct in her decision to dismiss his claim.

Plaintiff also failed to established the causation of his injury. In this case it is not entirely clear that plaintiff was in good health prior to the accident. His prior hip problems were documented in his medical records.

The only medical evidence offered by the plaintiff regarding avascular necrosis was the testimony of Dr. Noble. Dr. Noble had no history of a work related accident when he treated the plaintiff. The only history given by Newsome was that he injured himself while toting shingles up a ladder. Dr. Noble testified that the only plausible way that Newsome could have developed avascular necrosis in the manner described by Newsome is that he had a fracture in the hip area, and in the absence of such a fracture, he could not have the injury complained of from this alleged work related incident.

Contrary to Newsome’s arguments, it is questionable that the WCJ determined that Newsome was entirely credible. The WCJ noted no support for plaintiffs testimony about the occurrence of an on the job accident in his medical records.

In sum, Newsome failed to prove that an accident occurred. He also failed to prove that it has any causal connection between the accident and his injury.

J[¿Frivolous Appeal

Atmos Energy also asks this court to award damages for frivolous appeal. Pursuant to La. C.C.P. art. 2164, this court may award such damages when there is no serious legal question presented and when it is evident that the appellant’s counsel and/or appellant does not seriously believe in the position that he advocates. It is also clear that the court may award frivolous appeal damages against both the claimant and his attorney. State Farm Mut. Auto. Ins. Co. v. Callahan, 571 So.2d 852 (La.App. 3d Cir.1990).

We note that appeals are favored and appellate courts are therefore reluctant to impose damages for frivolous appeal. Moseley v. Mustin, 38,455 (La.App. 2d Cir.7/28/04), 880 So.2d 105. La. C.C.P. art. 2164 provides for the imposition of damages for frivolous appeals. This provision is penal in nature and must be strictly construed. Moseley, supra. Damages will not be awarded unless it appears that the appeal was taken solely for the purpose of delay, serious legal questions are not raised, or the appellate counsel does not seriously believe in the position he advocates. Even when the contentions on appeal are found to lack merit but raise legitimate issues, damages for a frivolous appeal are not allowed. Moseley, supra; Thomas v. Gould Street Logging, 27,192 (La.App. 2d Cir.9/27/95), 661 So.2d 546.

In this case we find that, in spite of the involuntary dismissal of Newsome’s claim by the WCJ, there were legitimate legal issues for appeal. Thus, we deny Atmos Energy’s claim for damages for frivolous appeal.

| «CONCLUSION

Based on the above, we affirm the decision of the WCJ and deny Atmos Energy’s claim for damages for frivolous appeal. Costs assessed to appellant.

AFFIRMED.


author: DREW, J.

text:
    Berta Mae CLARK, Plaintiff-Appellant v. Kemmeka DAVIS, Al Ater, Secretary of State of Louisiana, and Ernest L. Sikes, Clerk of Court, Tensas Parish, Defendants-Appellees.
    No. 41,769-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Spears & Spears, by Ike Spears, Pedro F. Galeas, New Orleans, Evelyn Denise Collins Kelly, Calvin B. Lester, Jr., Shreveport, for Appellant, Berta Mae Clark.
    Kemmeka Davis, In Proper Person.
    Stephen D. Hawkland, Baton Rouge, for Appellee, Al Ater, Secretary of State.
    Before WILLIAMS, STEWART, PEATROSS, DREW and LOLLEY, JJ.
   DREW, J.

|!Plaintiff, Berta Mae Clark, a duly qualified elector in the Town of Waterproof, filed this action objecting to the candidacy of defendant, Kemmeka Davis, for the office of Mayor of Waterproof. Clark alleged that Davis was not a duly qualified resident of Waterproof and had not been legally domiciled in Waterproof for the one-year period required by law. The trial court ruled in favor of Davis, finding that Clark failed to prove her case. For the following reasons, we affirm the trial court’s ruling.

FACTS

On August 15, 2006, Clark filed a petition objecting to Davis’ qualifications for Mayor of the Town of Waterproof. The following factual allegations in the petition are undisputed and are fully supported by the evidence:

• Davis registered to vote in Tensas Parish on January 20, 2006.
• On the date Davis registered to vote in Tensas Parish, she gave her address as 609 Fifth Street, Waterproof, Louisiana.
• Immediately prior to registering to vote in Tensas Parish, Davis had been registered to vote in East Baton Rouge Parish.

Alleging that Davis failed to meet the requisite qualifications for mayor because she was not a duly qualified resident and had not been legally domiciled in Waterproof for the required year, Clark prayed that Davis be disqualified as a candidate for Mayor of Waterproof.

In compliance with the provisions of La. R.S. 18:1406, the trial court ordered Davis to be served and to appear in court on August 18, 2006, for trial. On that date, Clark’s attorney first introduced evidence showing that Clark was a duly qualified elector in the Town of Waterproof. Next, the 12attorney introduced voter registration records on Davis that established the three facts listed above. Davis herself then was called to the stand. She testified that for the preceding six months she had resided at 607 Fifth Street in Waterproof, and that prior to living at that address, she lived at 229 Main Street in Waterproof for approximately 11 months, making a total of 17 months of residency in the town. She further indicated that since May 2006, she had been employed with Macon Ridge CDC, and prior to that had been employed with Pride of Waterproof Community Association where she had worked since 2008 as the director of that non-profit corporation.

When asked if she had evidence to show that she lived for 11 months at 229 Main Street, Davis responded in the negative; when asked if she had evidence to prove that she lived at 607 Fifth Street for six months, Davis also responded in the negative. When asked about her voter registration, she indicated that she had initially registered to vote in Tensas Parish in 1998, but changed her registration in 2003 to East Baton Rouge Parish where she maintained her registration until 2006. She further testified that while she was registered to vote in East Baton Rouge Parish, she had voted in the presidential election. Then, on January 20, 2006, she changed her voting registration back to Tensas Parish, giving the address of 609 Fifth Street, Waterproof. She concluded her testimony by acknowledging that at the time she qualified as a candidate for Mayor of Waterproof on August 11, 2006, she realized that she was required to have been domiciled and actually presiding in Waterproof for the year prior to that date, and that she realized she had not registered to vote in Tensas Parish until January 20, 2006.

Clark presented no further evidence. Davis called no witnesses, and only introduced a copy of a judicial opinion from the Third Circuit Court of Appeal as “evidence.” After hearing argument from Clark’s counsel and from Davis, the trial court rejected Clark’s challenge to Davis’ candidacy. The court later issued written reasons for judgment stating that Clark simply failed to carry her burden of proof that Davis either was not domiciled, or did not actually reside in Waterproof for the one-year period required by La. R.S. 83:384. The court noted that the only evidence tending to support Clark’s claim was that Davis registered to vote in Ten-sas Parish on January 20, 2006. However, the court concluded that such evidence, standing alone, was not sufficient to carry Clark’s burden of proof, and that being registered to vote for one year is not a qualification for mayor. This timely appeal followed.

DISCUSSION

The pertinent requirements for qualification in this case are set forth in the provisions of La. R.S. 33:384:

The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled and actually resided for at least the immediately preceding year in the municipality.

The trial court found that Clark failed to prove that Davis did not meet the statutory requirements of domicile and actual residence. These are factual findings, and longstanding case law from the Louisiana Supreme Court demands that courts of appeal give great deference to a trier of fact’s | ¿factual findings based on credibility judgments. Landiak v. Richmond, 2005-0758 (La.3/24/05), 899 So.2d 535.

Furthermore, because election laws must be interpreted to give the electorate the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that a candidate is disqualified; when domicile is required for candidacy, the burden of proving lack of domicile is on the party objecting to candidacy. Landiak, supra.

In this case, the trial court plainly believed Davis’ testimony concerning domicile and actual residence, and found the other evidence supported her testimony with the exception of her registering to vote in Tensas Parish in January 2006. Clark had the burden of proof to show that Davis had not been domiciled and actually resided in Tensas Parish for the requisite year. This she failed to do.

We note that we do not read Davis’ testimony to indicate she could not produce further proof of her residence at the Waterproof addresses, but only that she had no such proof with her at trial. We further note that there is no indication Clark attempted to have Davis bring such proof to court.

Given the facts and legal principles discussed above, and for the additional reasons set forth below, we must reject Clark’s argument on appeal that Clark presented a prima facie case of disqualification based on lack of domicile and actual residence that shifted the burden of going forward to Davis.

In Davis v. English, 28,251 (La.App. 2d Cir.9/22/95), 660 So.2d 576, we were called upon to interpret the domicile requirements for a | ¡¡candidate for the Louisiana State Senate. The constitutional provisions required, in part, that a candidate must have been “actually domiciled for the preceding year in the legislative district from which he seeks election....” In discussing the domicile requirement, we noted the provisions of La. C.C. art. 38:

The domicile of each citizen is in the parish wherein he has his principal establishment.
The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has not declared his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.

We indicated in Davis our cognizance of jurisprudence favoring in close cases a candidate’s right of political suffrage, and we noted that the law governing the conduct of elections should be liberally interpreted so as to promote rather than to defeat candidacy.

Similarly, in Landiak, supra, the Supreme Court cited Article 38 when discussing domicile in an election case.

We conclude, as did the trial court herein, that the majority of the evidence indicates Davis had her “habitual residence” in Waterproof. This is not a case in which Davis resided alternatively in several places; in fact, there is no evidence that Davis had any actual residence other than a Waterproof residence over the preceding 17 months.

As for the weight to be given Davis’ change in voter registration in January 2006, we observe that is commonplace for a citizen not to change | fivoter registration immediately upon moving from one parish of residence to another. Instead, citizens often may not change registration until they wish to vote in an election. For this reason, voter registration is only one factor, albeit an important factor, in determining domicile and actual residence. The statutory requirements do not include a requirement that a mayoral candidate shall be an elector of the municipality for at least the immediately preceding year, and the jurisprudence, while adverting to voter registration as one factor to consider for purposes of domicile, does not hold that voter registration is a sine qua non for domicile. Thus, change of voter registration in January 2006 was not sufficient, when considered with Davis’ testimony and her sworn candidacy form, to shift the burden of going forward to Davis on the question of domicile and actual residence.

In summary, we will not disturb the trial court’s decision here, in consideration of the following:

• the plaintiffs burden to establish by a preponderance of the evidence the defendant’s lack of qualifications,
• the evidence adduced herein, and
• the trial court’s great discretion in determining factual issues.

CONCLUSION

For the reasons set forth above, the judgment of the trial court is hereby affirmed at appellant’s costs.

AFFIRMED.

      . Although the voter registration form lists her address as 609 Fifth Street, we recognize that Davis testified that she lives at 607 Fifth Street.


author: LOLLEY, J.

text:
    STATE of Louisiana In the Interest of S.A.C.
    No. 41,474-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 23, 2006.

      Steven Randal Thomas, Mansfield, for Confidential Party, S.A.C.
    Brian C. McRae, for Appellant Laquita Shana Casey.
    Minifield & Harper by Pamela Harper Jacob, for Appellee State of LA Dept, of Social Services.
    Joseph D. Toups, Jr., for Appellee James Lacee Thomas.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

b Laquita Shana Casey appeals a judgment of the 11th Judicial District Court, Parish of DeSoto, State of Louisiana, which, following a hearing, terminated her parental rights as to S.A.C. For the following reasons, we affirm.

FACTS

Laquita Shana Casey is the mother of S.A.C., a female child born August 22, 2003. On or about September 25, 2003, Casey brought the child to the LSU Health Sciences Center emergency room in Shreveport, Louisiana, stating that the baby was in pain from a minor surgery she had on September 22, 2003. Upon examination the child appeared normal; however, S.A.C. was admitted in order to monitor Casey’s behavior which concerned the hospital staff. During S.A.C.’s time at the hospital, Casey displayed several incidents of erratic behavior including one occasion where she was found nude in the middle of the hospital room stating that she had contracted a disease from wearing her boyfriend’s underwear.

Casey also had a history with the Department of Social Services, Office of Community Services (“OCS”). In 2001, OCS investigated the suspicious death of her infant male son. During this investigation, OCS found that there was physical abuse and inadequate supervision regarding Casey’s two other minor daughters. The minor daughters were removed, and after failing to complete her case plan, guardianship was given to the children’s godmother.

In light of Casey’s behavior at the hospital and her history with OCS, S.A.C. was removed from Casey’s custody and was adjudicated as a child in |2need of care. The initial goal was reunification of S.A.C. and Casey. However, OCS contended that Casey failed to substantially comply with the case plans, and, subsequently on December 19, 2005, OCS filed a Petition for Involuntary Termination of Parental Rights of Casey and the father. At the hearing, Dana English, the case manager, and Dr. Jody Meek, Casey’s psychiatrist, testified for OCS. Casey testified on her own behalf. After hearing all the testimony, the trial court agreed with OCS and terminated Casey’s parental rights. Casey perfects this appeal.

DISCUSSION

Laquita Casey, mother of S.A.C., assigns as error that the state failed to prove by clear and convincing evidence that (1) there is no reasonable expectation of reformation in the foreseeable future, and (2) that there has been no substantial parental compliance with the case plan. The issue of parental compliance with a case plan, the parent’s expected success of rehabilitation, and the expectation of significant improvement in the parent’s condition and conduct are questions of fact in a proceeding for termination of parental rights. State ex rel. A.R.H. v. Hines, 35,800 (La.App.2d Cir.02/27/02), 810 So.2d 1166. An appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Id. In the instant case, a review of the record reveals no manifest error in the trial court’s findings.

In any case to involuntarily terminate parental rights, there are two private interests involved: those of the parents and those of the child. State, 3in the interest of L.B. v. G.B.B., 02-1715 (La.12/04/02), 831 So.2d 918. In Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982), the Supreme Court held that the clear and convincing evidence standard of proof strikes a fair balance between the natural parents’ rights and the State’s concerns for the child’s welfare and placement in a permanent home. Title X of the Louisiana Children’s Code governs the involuntary termination of parental rights and codifies the standard set forth by the Santosky court. See La. Ch. C. art. 1015 and 1035.

Specifically, the statutory grounds for involuntary termination of parental rights are set forth in La. Ch. C. art 1015, which provides, in pertinent part:

(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

The state must prove, by clear and convincing evidence, a minimum of one of the enumerated grounds provided for in La. Ch. C. Art. 1015, but the trial court must also find that termination is in the best interest of the child. State ex rel. S.M.W., 00-3277 (La.02/21/01), 781 So.2d 1223. This court carefully reviews all appeals of termination of parental rights cases. This review is to ensure that all parties have been afforded the rights guaranteed in these proceedings by statutes and reported case law. ^Furthermore, this court is very mindful that in affirming the ruling of a trial court that has ordered the termination of the parental rights of one or both parents of a child that it severs the most natural and strongest of all known bonds, that of parent and child. An order of termination of parental rights serves, in fact, as the parental death penalty.

Expectation of Reformation

The substantive elements proving lack of a reasonable expectation of significant improvement in the near future are set forth in La. Ch. C. art. 1036(D), which provides that this prong may be shown by one or more of the following:

(1) Any physical or mental illness, mental deficiency, substance abuse or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

Here, although Casey completed substance abuse treatment, attended parenting and anger management classes, Dana English, the case manager, testified that Casey “continued to exhibit behaviors that were not [indicative of] successfully completing this type of treatment....” Furthermore, within weeks of completing these classes, Casey was arrested and incarcerated for | ¡¡aggravated assault. As for her mental health, Dr. Jody Meek, Casey’s psychiatrist for nearly five years, testified that Casey needed long-term mental health treatment, including taking long-term anti-depressant medication. Casey testified that she did not take the medication because she did not think she needed them. On the issue of financial stability, at the time of the hearing, she had quit her job with no future employment secured.

Compliance with the Case Plan

Louisiana Ch. C. art. 1036(C) enumerates the substantive elements proving lack of substantial compliance with a court-approved case plan. This prong may be evidenced by one or more of the following:

(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

In the instant case, Casey was observed having difficulty visiting S.A.C. English testified that Casey had outbursts and cursed during the | ^visits, often forcing the visits to end prematurely. In addition, Casey made threats to agency personnel and OCS transportation workers. As a result, Casey’s visits were terminated in February, 2005. English further testified that Casey was not supportive of S.A.C.’s placement, and made several attempts to call the foster parents’ home and demanded to speak with S.A.C.

Furthermore, Casey’s temper created conflict and strained relationships with family members. Casey’s mother obtained a restraining order against Casey because of continued threats against her. Casey also had an altercation with the guardian of her two older children. In addition, there is evidence that Casey would harass her sister at church for not helping her with S.A.C. Because of Casey’s interference with relatives, S.A.C. could not be placed with any of them. However, we do note that S.A.C.’s present foster parents have expressed interest in adopting her. We find that the trial court properly evaluated all of the applicable relevant evidence and ruled accordingly.

We conclude that the state, by clear and convincing evidence, established that it is in S.A.C.’s best interest to terminate Casey’s parental rights. Casey did not improve her situation despite being given several opportunities to do so. In light of the testimony and evidence presented at the trial court, we find Casey’s arguments without merit.

We further conclude that Casey, as found by the trial court, is incapable of providing S.A.C. with the very essential values that every child has the right to expect. Consistency, stability and nurturing are of critical importance in any young child’s life and directly lead to that child’s outcome in later life.

IvCONCLUSION

On review, we affirm the ruling of the trial court ordering the termination of La-quita Shana Casey’s parental rights to S.A.C.

AFFIRMED.