author: JOAN BERNARD ARMSTRONG, Chief Judge. CANNIZZARO, J.,

text:
    Peterson M. YOKUM and Polly Elizabeth Anderson v. 615 BOURBON STREET, L.L.C. d/b/a The Rock, Old Opera House, Inc. d/b/a Old Opera House and Willie Mintz.
    No. 2006-CA-1057.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 20, 2007.
    Rehearing Denied Aug. 2, 2007.

      Stuart H. Smith, Michael G. Stag, Kimberly Wooten Rosenberg, Catherine B. Cummins, Smith Stag, L.L.C., Barry J. Cooper, Jr., Cooper Law Firm, L.L.C., New Orleans, LA, for Plaintiffs/Appellants.
    Irl R. Silverstein, Gretna, LA, for Defendant/Appellee, 615 Bourbon Street, L.L.C.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III and Judge LEON A. CANNIZARRO Jr.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

LThe plaintiffs-appellants, Peterson M. Yokum and Polly Elizabeth Anderson appeal the April 28, 2006 summary judgment dismissal of their claim against the defendant-appellee, 615 Bourbon Street, L.L.C. (“615 Bourbon”). We affirm.

The plaintiffs own a residence located at 723 Toulouse Street in the New Orleans French Quarter. The plaintiffs complain that loud music emanating from two bars disturbed the enjoyment of their home. One of the bars, the Rock, is operated on premises owned by the defendant, 615 Bourbon. The summary judgment which forms the basis of this appeal concerns only the Rock and not the other bar.

615 Bourbon moved for summary judgment contending that it could not be held liable for any damages caused by the music emanating from the Rock. The trial court judgment granted 615 Bourbon’s motion and dismissed the plaintiffs’ claim as to 615 Bourbon without written reasons.

The plaintiffs’ appeal is based on the obligations of vicinage arising out of La. C.C. art. 667-669.

We review summary judgments de novo: First, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 at pp. 16-17 (La.2/29/00), 755 So.2d 226, 236 (noting the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion”); See also Hebert v. St. Paul Fire and Marine Ins. Co., 99-0333 (La.App. 4th Cir.2/23/00), 757 So.2d 814.

Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

[According to La. C.C.P. 966(C)(2), the mover need not negate all essential elements of the adverse party’s claim, action, or defense, but rather need point out to the court that there is an absence of factual support of one or more elements of the claim. Once the movant negates such a necessary element(s) of the adverse party’s claim, the burden then shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Lozier v. Security Transfer and Inv. Corp., 96-2690 (La.App. 4 Cir. 4/30/97), 694 So.2d 497. The effect of the legislature’s 1996 amendment to La. C.C.P. art. 966 is that the non-moving party is not allowed to rely on the allegations of its pleadings in opposition to a properly supported motion for summary judgment. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488.

Moody v. City of New Orleans, 99-0708, p. 2 (La.App. 4 Cir. 9/13/00), 769 So.2d 670, 671.

The plaintiffs have cited no cases in which liability has been imposed upon the owner-lessor of property under La. C.C. art. 667 for acts of the lessee. In view of the numberless owner-lessor-lessee relationships known to exist in this State, it would be most extraordinary for owner-lessor liability for acts of the lessee under La. C.C. art. 667 to be res nova if it were the purpose of that Code article to impose such liability. Therefore, we believe that the lack of such cases says something in itself.

Burke v. Besthoff Realty Co., 196 So.2d 293, 297 (La.App. 4 Cir.1967) finds such liability, but Burke was overruled by this Court in Borenstein v. Jos. Fein Caterers, Inc., 255 So.2d 800, 804 (La.App. 4 Cir.1971).

| sBorenstein supports the decision of the trial court to grant the Property Owner’s motion for summary judgment. In Boren-stein this court noted that:

In this case plaintiffs are seeking to abate a nuisance. The nuisance is a condition, and the person legally liable for the nuisance is the person actually responsible for the existence of the condition. This includes the person who creates the nuisance and the person who participates in the active continuance thereof.
We therefore believe that the liability of a party as a proprietor under C.C. art. 677 in a nuisance and damage case should be determined on the basis of his responsibility for the existence of the condition which constitutes the nuisance.

Borenstein at p. 806.

The lessor-owner-defendant in the instant case is not “the person actually responsible for the existence of the condition,” i.e., the noise complained of by the plaintiffs in the instant case. The plaintiffs do not allege that the operation of a bar on the leased premises is contrary to any law or ordinance. The plaintiffs do not allege that the bar in question is prohibited from offering music. The plaintiffs’ only complaint is that the music is too loud. The record contains an affidavit of one Raymond Gonzales, Jr., stating that he is the manager of the defendant, 615 Bourbon Street, L.L.C., and that the defendant owns the property, but leases it to O’Reilly Properties. The affidavit also alleges that the defendant neither owns nor operates the bar known as “The Rock” located on the leased premises. The record contains no countervailing affidavit or other such evidence. In other words, there is no genuine issue of material fact concerning the operation of the bar by the defendant’s lessee. Thus, we are compelled to conclude from the record before us that the volume of the music on the premises is the result of the independent acts of the lessee. Therefore, there is no basis in law for holding the lessor-owner-defendant liable under La. C.C. art. 667. Our reading of Chaney v. Travelers Ins. Co., 259 La. 1, 249 So.2d 181, 183 (La.1971), does not suggest otherwise. Chaney presents the following fact situation:

The petition alleges that Jenkins contracted with the City-Parish to enlarge the Melrose Canal and install two lines of large concrete drainage pipe. Exceptionally heavy equipment and machines were required to accomplish this result. While the work was being performed, vibrations from the use of the heavy equipment in close proximity to Chaney’s house caused the interior sheetrock and plaster near doors and windows to crack with the resulting damage.

The Chaney court held the City-Parish liable for the acts of its contractor, stating that:

[T]he proprietor is likewise responsible not only for his own activity, but also for that carried on by his agents, contractors and representatives with his consent and permission. This liability which the law imposes attaches also to the agent or contractor, who, as in this ease, becomes solidarily liable with the proprietor if his activity causes damage to a neighbor.

Chaney, supra, at 186.

Chaney provides no authority for imposing La. C.C. art. 667 liability on the lessor-owner for acts of the lessee. The lessee in the instant case is not the agent of the lessor-owner; the lessee is not the contractor of the lessor-owner; and the lessee is not the representative of the lessor-owner.

Additionally, we find no language in Inabnet v. Exxon Corp., 93-0681 (La.9/6/94), 642 So.2d 1243, stating or implying either in the holding or in dicta that the lessor-owner has La. C.C. art. 667 liability for the independent acts of its lessee. Inabnet concerned a dispute between two lessees, one holding an oyster lease on the property, the other holding a surface lease and a canal right of way affecting the same property as well as other property. The property owner was not a party to the litigation. The Inabnet court held the surface lessee liable for |fidamages to the oyster lessee. No liability was imposed by the court on the surface lessor for the acts of its lessee. By way of analogy, Inabnet could arguably stand for the proposition that the lessee-operator of the “The Rock” bar in the instant case might be held responsible for the claims of the plaintiffs. But we find nothing in Inabnet suggesting that 615 Bourbon as owner-lessor of the premises could be held liable to the plaintiffs for the music played by its lessee.

We believe that to hold the lessor-owner liable under the facts of this case would represent an expansion of the scope of La.C.C. art. 667. Accordingly, we find no error in the decision of the trial court.

We note that the plaintiffs also complain that they were not given adequate time to conduct discovery because of Hurricane Katrina. The claim was filed on July 20, 2005. The defendant’s motion for summary judgment was filed on February 22, 2006. The hearing on the motion was not heard until two months later, on April 21, 2006. There is nothing in the record tending to show that the plaintiffs made any discovery attempts during that time. The record contains no motion for continuance for discovery purposes by the plaintiffs and they do not contend otherwise. The plaintiffs’ reference to Katrina is general in nature. The plaintiffs do not specify in what way Katrina prevented them from conducting discovery in this matter.

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

AFFIRMED.

CANNIZZARO, J., dissents with reasons.

CANNIZZARO, J.,

dissents with reasons.

hi respectfully dissent from the majority opinion. I would reverse the trial court judgment and remand the case to the trial court for further proceedings.

The majority concludes that because the plaintiffs have cited “no cases in which liability has been imposed upon the owner-lessor of property under La. C.C. art. 667 for acts of the lessee,” it must not be the purpose of article 667 to impose such liability. The clear language of article 667, however, instructs otherwise.

Article 667 provides that a “proprietor” cannot use his estate in such a way that he may “deprive his neighbor of the liberty of enjoying his own.” The very definition of the term “proprietor” means “owner.” See Merriam-Webster’s Collegiate Dictionary 934 (10th ed.2001) where one definition of “proprietor” is “one who has the legal right or exclusive title to something: OWNER” (capitalization in original) and Black’s Law Dictionary (8th ed.2004) where “proprietor” is defined to mean “[a]n owner, esp. one who runs a business.”

In the instant case 615 Bourbon Street, L.L.C., (the “Property Owner”) was the owner of the property from which the alleged noise emanated. Under the provisions of article 667, if the Property Owner “knew or, in the exercise of reasonable care, should have known” of any damage that was incurred by the plaintiffs, the Property Owner could be held liable. Just because property is leased |2to the party actually causing damage to a neighbor does not mean that the lessor who owns the property has no liability to the neighbor who is damaged, if the lessor was aware or should have been aware of the damage.

Such a reading of article 667 would lead to absurd results. This would mean, for example, that a lessor who leased its property to a lessee that the lessor knew planned to use the property in such a way that the neighbors would be damaged would have no liability to the neighbors. If the lessor is in the business of leasing its property, the lessor should be responsible for the actions of its lessees that cause damage to the neighbors if the lessor knew or should have known that damage would result from the lessee’s activities on the leased property.

In Inabnet v. Exxon Corp., 93-0681 (La.9/6/94), 642 So.2d 1243, the Louisiana Supreme Court discussed La. C.C. arts. 667-69. The Supreme Court stated:

Articles 667-669 place limitations on the rights of owners by setting out principles of responsibility applying the doctrine of sic utere tumn ut alienum non láedas, which requires an owner to use his property in such a manner as not to injure another. 4 A.N. Yiannopoulos, Louisiana Civil Law Treatise-Predial Servitudes §§ 25, 33 (1983). Article 667 prohibits uses which cause damage to neighbors or deprive them of the enjoyment of their property, while Article 668 permits uses which merely cause neighbors some inconvenience. Id. at § 34. Article 669 allows suppression of certain inconveniences, if excessive under local ordinances and customs, and requires tolerance of lesser inconveniences.

642 So.2d at 1250-51.

The Supreme Court in Inabnet further stated that “[ejxcessive inconveniences caused by ... noise ... need not be tolerated in the absence of a conventional servitude; whether an inconvenience is excessive or not is to be determined in the light of local ordinances and customs (Article 669).” Id. at 1251. The Supreme Court also made it clear that “conduct by a proprietor violative of Articles 667-669 |smay give rise to delictual liability, without negligence, as a species of fault within the meaning of La. Civ.Code art. 2315.” Id.

In the Inabnet case, the Supreme Court also discussed the definition of the term “proprietor” as used in La. Civil Code art. 667. The Supreme Court said that “[t]he term ‘proprietor’ in Article 667 also has been expansively interpreted by the courts to. apply not only to a landowner, but also to a person whose rights derive from the owner.” Id. See also Chaney v. Travelers Insurance Co., 259 La. 1, 249 So.2d 181 (1971), where the Supreme Court stated that “[t]his liability which the law imposes [under La. Civil Code art. 667] attaches also to the agent or contractor, who ... becomes solidarily liable with the proprietor if his activity causes damage to a neighbor.” 259 La. at 16-17, 249 So.2d at 186. Also, in A.N. Yiannopoulos, Louisiana Civil Law Treatise-Predial Servi-tudes § 44 (2004), it is made clear that the owner of land is liable not only for its own acts but may also be liable for those of others, “such as servants, guests, or lessees.”

I also find the majority’s reliance on the Inabnet case, the Chaney case, and Borenstein v. Joseph Fein Caterers, Inc., 255 So.2d 800 (La. 4th Cir.1972), to be misplaced. None of these cases support the proposition that an owner of property cannot in some cases be held liable for damages caused by the actions of its lessee that result in damage to neighboring property owners.

In the Borenstein case, this Court acknowledged that the term “proprietor,” as used Civil Code article 667, originally meant the owner of the property but then said that the term has been used more expansively in the jurisprudence to include also a lessee. 255 So.2d at 805-06. There is nothing in the Borenstein case to support the position that a lessor who knows or should have known of a lessee’s activities on the lessor’s property cannot be held liable for the damages caused by the lessee to the neighboring property owners. Both the lessor and the lessee were sued in Borenstein because of nuisances created by, among other things, a vine Rgrowing from the leased premises onto a neighboring property and an improperly installed planter. Both the lessor and lessee were sued, and the lessor was held liable for the nuisances whereas the lessee was found not to be liable. This was because the owner, not the lessee, had installed the planter and had planted the vine that caused the damage to the neighbor.

Likewise, in Inabnet there is nothing to indicate that a lessor may never be held liable for the activities of its lessee under Civil Code article 667. The Inabnet case involved a suit by an oyster lessee against a surface lessee. The Supreme Court in Inabnet permitted the oyster lessee to recover some of the damages it suffered as a result of the dredging activities conducted by the surface lessee, even though the surface lease expressly stated that the lessee could conduct dredging operations. This case in no way, however, stands for the proposition that an owner can never be liable for the actions of its lessee that cause damage to neighboring property owners. In fact, as shown by the language in Inabnet discussed above, it is clear that, depending on the facts of the case, a lessor may be responsible for activities conducted by its lessee.

Finally, in the Chaney case, the City of Baton Rouge was held liable for the damage to neighboring property that occurred as a result of construction undertaken by the city to improve a canal on city property. Although the city’s contractor actually caused the damage, the city was held liable. Thus, Chaney holds that an owner can be held liable for its contractor’s activities. By analogy, Chaney supports the position that an owner can be held liable for the activities of its lessee that cause damage to neighboring property, if the lessor permits or acquiesces in the activity.

1 ¡(Based on the foregoing, I would reverse the summary judgment granted by the trial court. It is my opinion the instant case should be remanded for trial.

      . The contractor was also held liable to the city on a third party claim for the damages the city had to pay the neighboring property owners.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge, Ad Hoe.

license: Public Domain

text:
    Lisa Alack PETERS, Individually and on Behalf of Her Minor Daughter Michelle Winterstein and Joseph Winterstein Individually v. J. Edward LAYRISSON, Sheriff, Individually and in His Official Capacity, Connie Lowery, Juvenile Officer, Tangipahoa Parish Sheriff's Office, Individually and in Her Official Capacity, Craig Andrews, Dale Frazier, Thomas Hall and Evelyn McKnight.
    No. 2005 CA 1713.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 18, 2006.
    David Dalia, New Orleans, Corbett Our-so, Jr., Hammond, for Plaintiff/Appellant, Lisa Alack Peters, et al.
    Sonceree Smith Clark, David Sanders, Baton Rouge, for Defendant/Appellee, State of Louisiana.

      Thomas Waterman, Bradley Berner, Ponchatoula, of Defendant/Appellee J. Edward Layrisson, Sheriff, et al.
    (Court composed of Judge CHARLES R. JONES, Judge DAVID S. GORBATY, Judge EDWIN A. LOMBARD, serving as judges ad hoc by special appointment of the Louisiana Supreme Court).
   CHARLES R. JONES, Judge, Ad Hoe.

It The Appellants, Lisa Alack Peters, Joseph Winterstein, and Michelle Winter-stein, appeal an adverse district court judgment that maintained Sheriff J. Edward Layrisson’s and Connie Lowery’s (the named Appellees) Exception of Prescription and dismissed the Appellants’ case with prejudice. We affirm.

FACTS AND PROCEDURAL HISTORY

The Appellants are the parents and older sibling of the deceased infant, Michael J. Alack, who was allegedly beaten to death while in foster care. The Appellants allege that the infant was physically abused from August 28, 1992, through June 23, 1997. They further allege that the Appellees, Sheriff J. Edward Layris-son and Connie Lowery, are individually and in their official capacities liable for various acts and omissions during 1992, 1993, and 1994, which may have resulted in Michael’s death.

Ms. Alack and Mr. Winterstein further allege that beginning on August 24, 1992, they first noticed that Michael had an injury to his skull after he returned from the home of Ms. Evelyn McKnight, his babysitter. Subsequently, on September 22, 1992, Ms. Alack and Mr. Winterstein took LMichael to the Seventh Ward General Hospital for a skull injury they noticed after leaving the babysitter’s home. Once again, after Michael had spent time at Ms. McKnight’s home on December 26, 1992, he was taken to the hospital the following day for injuries he had allegedly sustained while in her care. On December 29, 1992, Michael succumbed to his injuries and died.

Ms. Alack and Mr. Winterstein also allege that they were falsely arrested on January 2, 1992. Additionally, they further allege that their minor daughter, Michelle, was taken into foster care while they were in police custody. However, the Appellants later learned that Ms. McKnight was arrested on July 21, 1994. The Appellants point out that the date of Ms. McKnight’s arrest “brought about the revelation that Michael received his head injuries.. .while in the care and control of’ Ms. McKnight.

Initially, Ms. Alack and Mr. Winterstein filed suit against the Appellees in the United States District Court for the Eastern District of Louisiana. However, the U.S. District Court dismissed the federal law claims with prejudice and dismissed the state law claims without prejudice, thereby preserving Ms. Alack’s and Mr. Winter-stein’s right to bring state law claims against the Appellees. The U.S. Fifth Circuit Court of Appeals subsequently affirmed the judgment of the U.S. District Court.

Ms. Alack and Mr. Winterstein later filed suit in the Twenty First Judicial District Court on December 23, 2002. The suit was brought 13under Title 42 U.S.C. § 1983, the Fourth, Eighth, and Fourteenth Amendments of the United States Constitution, and La. Civ Code arts. 2315, 2315.1, 2315.2, and 2320. The named defendants were J. Edward Layrisson, Connie Lowery, Craig Andrews, Thomas Hall, Dale Frazier, and Evelyn McKnight.

A peremptory exception of prescription was filed by the Appellees, Sheriff Layris-son and Ms. Lowery, on April 29, 2003. In their memorandum in support of their exception, the Appellees argued that the Appellants’ claim had prescribed pursuant to La. Civ.Code art. 3492, which provides that “delictual actions are subject to a liberative prescription of one year.”

In opposition to the exceptions filed by the named defendants, Ms. Alack and Mr. Winterstein specifically argued that prescription had not run on their state law causes of action since La. R.S. 9:2800.9 was an exception to the one year liberative prescriptive period enumerated by La. Civ. Code art 3492. However, after a hearing on the exceptions, the district court | maintained the Appellees’ Exception of Prescription. No reasons were given by the district court. It is from this judgment the present appeal is taken.

LAW AND DISCUSSION

In Babineaux v. State ex rel. Dept. of Transp. and Development, 2004-2649 (La.App. 1 Cir. 12/22/05) 927 So.2d 1121, this Court stated “[wjhen evidence is introduced at the hearing on a peremptory exception of prescription, the trial court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261, 1267. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.” Babineaux, 927 So.2d at 1123.

In their first assignment of error, the Appellants argue that by maintaining the Appellees’ exception, the district court “in effect extended a statutory immunity to the named defendants, by unfairly dismissing the case with a trial against those defendants.” We disagree. Specifically, La. R.S. 9:2800.9(A), which is titled Action against a person for abuse of a minor, provides:

An action against a person for sexual abuse of a minor, or for physical abuse of a minor resulting in permanent impairment or permanent physical injury or scarring, is subject to a liberative prescriptive period of ten years. This prescription commences to run from the day the minor attains majority, and this prescription shall be suspended for all purposes until the minor reaches the age of majority. Abuse has the same meaning as provided in Louisiana Children’s Code Article 603(1). This prescriptive period shall be subject to any exception of peremption provided by law.

| BThe record indicates the Appellants have made several state law claims on the basis that the named defendants willfully and negligently supervised their subordinate employees, thereby acquiescing in the chain of events which may have led to Michael’s death. Additionally, the record indicates that the Appellants’ petition further alleged that “[ajlthough they [the defendants] are responsible for the investigation of out of home perpetrators under the circumstances presented in this case, they would not investigate out of home perpetrators on their own initiative, but only when the parent actively suspected an out of home perpetrator, such gross incompetence directly leading to the death of Michael Alack....” Thus, the Appellants contend that the Louisiana Office of Community Services, through its employees, was negligent in its failure to adequately supervise its employees and in its failure to investigate Ms. McKnight’s fitness to be a caregiver.

The starting point in the interpretation of any statute is the language of the statute itself. Theriot v. Midland Risk Ins., Co., 95-2895, p. 4, 694 So.2d 184, 186 (La.1997) citing Touchard v. Williams, 617 So.2d 885, 888 (La.1993). The statute gives a very specific right of action to a child who is a victim of abuse and preserves the child’s right to bring suit when he attains the age of majority. The ten (10) year prescriptive period is suspended until the child reaches majority and commences to run when the child reaches majority. However, in the facts of the instant case, we find that the district court was not manifestly erroneous in maintaining the Appellees’ exception. The language of the statute does not in any way extend immunity to the named defendants, rather the statute merely serves as an exception to liberative prescription by preserving a right to a minor so that the action may | fibe brought when he has the legal capacity to do so. Thus, based upon our review of the record, we find this assignment of error does not have merit.

In their second assignment of error, the Appellants argue that the district court erred in maintaining the Appellees’ Exception of Prescription where the applicable ten (10) year prescriptive period had not elapsed.

In Tramontin v. Tramontin, 2004-2286, (La.App. 1 Cir. 12/22/05), 928 So.2d 29, writ denied, 2006-0155 (La.5/26/06), 930 So.2d 20, this Court stated that “[t]he burden of proof is generally on the party pleading prescription. Hudson v. East Baton Rouge Parish School Board, 02-0987, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 282, 286. However, when the petition is prescribed on its face, the plaintiff has the burden of showing that prescription has been interrupted in some manner. Id." Tramontin, 928 So.2d at 32.

The record indicates that the petition was filed on December 27, 2002, nearly ten years after the death of Michael Alack on December 29, 1992, and the various acts of negligence claimed therein. Unfortunately, there is nothing in the record to support the Appellants’ argument that prescription has not run in the matter sub judice. They contend that 9:2800.9 is an exception to the one year prescriptive period provided for by law to the state law provisions cited in their petition. However, this Court is not persuaded by this argument that La. R.S. 9:2800.9 preserves their right to bring state law claims for ten years when the statute specifically preserves the injured child’s right, and not the parents, to bring suit once he reaches majority. Additionally, the Appellants have not cited any legal authority to support this argument. The statute does not contain any language purporting to 17extend this right to the surviving parents or sibling of a child who is injured by abuse. Furthermore, this Court further notes that there is also no indication in the record as to why the Appellants delayed in filing their suit in state court after Michael’s death. This is further substantiated by the fact that Ms. McKnight’s arrest supposedly alerted the Appellants to the possible claim as argued in their brief. Thus, we find that the district court was not manifestly erroneous nor clearly wrong in maintaining Sheriff Layrisson’s and Ms. Lowery’s Exception of Prescription.

DECREE

Accordingly, the judgment of the district court is Affirmed.

AFFIRMED.

      . In their brief, the Appellees incorrectly referred to Ms. Connie Lowery as "Connie Do-tey” in some instances.

      . For clarity, this opinion refers to the Appellants as "Ms. Alack and Mr. Winterstein,” but also includes their minor child, Michelle, who also is a named Appellant in this matter.

      .The Appellants were later released on August 20, 1993.

      . In addition to the civil suit related to Michael's death, the suit alleges other causes of action arising out their false arrest, Michelle's placement in foster care during Ms. Alack and Mr. Winterstein’s incarceration, and overall intimidation and harassment by Sheriff Lay-risson and Ms. Lowery and their subordinates.

      . La. Civ.Code art. 2315 is titled “Liability for acts causing damages.”

      . La. Civ.Code art. 2315.1, titled “Survival action,” provides that "[i]f a person who has been injured by1 an offense or quasi offense dies, the right to recover all damages for injury to that person, his property or otherwise, caused by the offense or quasi offense, shall survive for a period of one year from the death of the deceased.”

      . La. Civ.Code art. 2315.2, titled "Wrongful death action,” provides that "[i]f a person dies due to the fault of another, suit may be brought.. .to recover damages which they sustained as a result of the death [t]he right of action granted by this Article prescribes one year from the death of the deceased.”

      . La. Civ.Code art. 2320, titled “Acts of servants, students or apprentices,” provides that “[m] asters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.”

      . In the ■ Petition for Damages, Craig Anderson is identified as "Louisiana Office of Community Services Worker.”

      . In the Petition for Damages, Thomas Hall and Dale Frazier are identified as "Office of Community Services Supervisors.”

      . On May 7, 2003, the remaining defendants, Craig Andrews, Dale Frazier, and Thomas Hall filed a motion titled Peremptory Exception of No Cause of Action Raising Objections of Res Judicata and Prescription.


author: KUHN, J. WHIPPLE, J., McClendon, j., WELCH, J.,

text:
    Mark and Margaret SHAW v. Tonya Renee Shaw DUPUY.
    No. 2006 CU 0546.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 9, 2007.
    Writ Denied March 21, 2007.

      Michelle Alt Hazlett, Denham Springs, Counsel for Plaintiffs/Appellees Mark and Margaret Shaw.
    Leslie A. Burns, Denham Springs, Counsel for Defendant/Appellant Tonya Renee Shaw Dupuy.
    Before: WHIPPLE, KUHN, GAIDRY, MCCLENDON, and WELCH, JJ.
   KUHN, J.

12Tonya Renee Shaw Dupuy, the mother of the minor children, appeals a trial court judgment granting the maternal grandparents, Mark and Margaret Shaw, specific visitation privileges with the children. We reverse.

FACTUAL AND PROCEDURAL HISTORY

Tonya Dupuy is the mother of two children, A.A.S., born March 30, 1989, and B.D.L., born January 7, 1999. The identity and whereabouts of the father of A.A.S. are unknown. The father of B.D.L. is James Lacombe, from whom Ms. Dupuy is now divorced. Mark and Margaret Shaw are the children’s maternal grandparents.

On August 30, 2004, the Shaws filed a petition for visitation against their daughter, requesting that they be awarded specific visitation with their daughter’s minor children. After a hearing, the trial court rendered judgment awarding the Shaws visitation with A.A.S. and B.D.L. one “weekend” per month from Saturday at 4:00 p.m. until Sunday at 6:00 p.m., and one additional Sunday per month from 9:00 a.m. until 6:00 p.m.; one week during the summer; and one day and one night during the Thanksgiving, Christmas, and Easter holidays. The trial court also specified certain restrictions and requirements for the children during their visitation and ordered all parties to refrain from making negative comments about any other party in the presence of the children. A judgment in conformity with the trial court’s rulings was signed, and Ms. Dupuy appeals, challenging the trial court’s award of visitation.

DISCUSSION

The trial court is vested with vast discretion in matters of child visitation, and its determination regarding same is entitled to great weight and will not be | disturbed on appeal unless an abuse of discretion is clearly shown. Babin v. Babin, 02-0396, p. 7 (La.App. 1st Cir.7/30/03), 854 So.2d 403, 408, writ denied, 2003-2460 (La.9/24/03), 854 So.2d 338, cert. denied, 540 U.S. 1182, 124 S.Ct. 1421, 158 L.Ed.2d 86 (2004).

It is well settled that 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. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

In their petition for visitation, the Shaws requested an award of visitation with the children in accordance with La. C.C. art. 136. Ms. Dupuy asserts that the trial court erred in finding the requisite “ex-' traordinary circumstances” required by La. C.C. art. 136B existed.

La. C.C. art. 136B states in pertinent part:

Under extraordinary circumstances, a relative, by blood or affinity, or a former stepparent or stepgrandparent, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the best interest of the child.

^Louisiana Civil Code article 136(B) requires a threshold finding by the court of “extraordinary circumstances.” Although the term has not been defined in the jurisprudence, the “extraordinary circumstances” sufficient to warrant an award of visitation should be those that constitute “[a] highly unusual set of facts ... not commonly associated with a particular thing or event.” See Galjour, 00-2696, p. (La. 1st Cir.3/28/01), 795 So.2d 350, 355; Huber v. Midkiff, 02-0664 at p. 1, 838 So.2d at 778, (Weimer, J., concur-ringXquotmg BLACK’S LAW DICTIONARY 236 (7th ed.1999)). '

The record shows that at the time Ms. Dupuy gave birth to A.A.S., she was an unwed teenager. During her pregnancy, she resided primarily with Margaret Shaw with intermittent stays at the home of her grandmother. After A.A.S.’s birth, Ms. Dupuy continued to reside with her mother, who had taken time off of work to help with A.A.S.

In May 1989, Ms. Dupuy moved into her grandmother’s house, where she remained until October 1990. During this time period, Margaret Shaw began dating Mark Shaw. They took occasional trips to visit Mark Shaw’s family in Texas, and Ms. Dupuy allowed A.A.S. to go on these trips. In October 1990, Ms. Dupuy moved back into her mother’s home, where she resided with Margaret and Mark Shaw. The Shaws subsequently married, and Ms. Dupuy continued to reside "with them until March 1993, when she married Scott Jones and moved out of their house. Ms. Dupuy separated from Mr. Jones in February 1994, and again returned to the Shaws’ home until May 1994.

In the summers of 1994, 1995, 1997, and 1998, the Shaws, Ms. Dupuy, and A.A.S. went on family vacations together. In the late 1990s, Ms. Dupuy purchased a condominium, located about two miles from the Shaws, using money given to her by her parents for a down payment. In June 1998, Ms. Dupuy became pregnant with B.D.L, and married the child’s father, Mr. LaCombe.

Is After a physical altercation between Ms. Dupuy and Mr. LaCombe the night before B.D.L.’s birth, Mark Shaw accompanied his daughter to the hospital, where the Shaws remained with her until after the baby was born. In the spring 1999, Ms. Dupuy and Mr. LaCombe separated.

In 1998, 1999, and 2000, Mark Shaw was an assistant coach for A.A.S.’s ball team. During the 1999-00 and 2000-01 school years, A.A.S. took the bus home from school to the Shaws’. Mark Shaw assisted A.A.S. with her homework and projects after school.

In August 2001, Ms. Dupuy married Brad Dupuy, and they moved to Denham Springs, Louisiana. During the couple’s honeymoon, the Shaws watched A.A.S., B.D.L., and B.D. (Mr. Dupuy’s child from a prior relationship), taking them to Gulf Shores, Alabama. In June 2002, the Shaws again enjoyed a family vacation with the children.

In 2001, the Shaws started “family night,” where the family dined together every week or two. Family nights continued through 2004, although during January 2004 through June 2004, Ms. Dupuy did not participate.

According to the Shaws, A.A.S. and B.D.L. were no longer permitted to visit them beginning in the spring of 2004 because Ms. Dupuy had become upset with the Shaws’ participation in a foster parent program. The Shaws opined that Ms. Du-puy did not want to share her inheritance or that of her children with a foster child. They then filed this lawsuit in an effort to resume participation in their granddaughters’ lives.

Ms. Dupuy testified that her parents’ behavior and actions in front of the children contradicted and interfered with her beliefs and rules, which is why she terminated contact between the grandparents and the grandchildren. As examples, she stated that on numerous occasions they allowed A.A.S. to buy inappropriate clothing, including short shorts and a string bikini, and they permitted her ^unlimited amounts of unsupervised time on the internet. She is upset that her parents have told A.A.S. they will provide her with a car no matter what Ms. Dupuy says. She also is disturbed that her parents have offered A.A.S. a cell phone even though Ms. Du-puy does not want her daughter to have one until she feels the teenager is ready. Ms. Dupuy also takes issue with her parents’ tendency to undermine her authority by telling A.A.S. that they do not understand why Ms. Dupuy imposes restrictions on the teenager’s behavior. She recounted that Margaret Shaw showed A.A.S. a picture of Ms. Dupuy in short shorts when she was a younger age than A.A.S. was. Ms. Dupuy feels that her parents’ permissive attitude toward her daughters have caused the children to believe that they do not have to respect their mother’s decisions. Ms. Dupuy also has problems with her parents’ refusal to respect her desire to be the person who disciplines her children. She believes that the Shaws should stop attempting to override her parental authority and defer to her.

Insofar as the Shaws’ decision to become foster care parents, Ms. Dupuy testified that she was against it because of concerns for her mother’s health, indicating that a prior attempt by the Shaws to care for foster children had left Margaret Shaw seriously depressed. Ms. Dupuy also questioned Margaret Shaw’s ability to act as a foster parent. She stated that until the time she turned 18, her mother had not paid enough attention to her, took her places with her boyfriends, drank a lot, and frequently left her alone. Ms. Dupuy denied concerns about losing her inheritance as a result of the presence of foster children in the Shaws’ lives but admitted that she told her mother that she had hoped her children would inherit from them. She also acknowledged that she told the Shaws that she would distance herself from them if they chose to participate in the foster care program but said that she did not tell them she would remove the children from their lives. Subsequent to the placement of foster children in the Shaws’ care, A.A.S. and |7B.D.L. accompanied them to Gulf Shores with the Shaws.

Ms. Dupuy described the event that precipitated the termination of the Shaws’ visitation with her daughters. She explained that after her daughters, the foster children, and the Shaws returned from Gulf Shores, she was having a conversation with Mark Shaw and he began belittling her. She asked him to leave her house, and when he refused, she told him she would call the police. As she attempted to call the police, he removed .the cord from the jack. She moved to another phone in a different room, and Mark Shaw attempted to restrain her. She hit him on his fingers with the cordless phone. Mark Shaw told A.A.S., who was in another room, to pack her bags and that she should leave with him. Ms. Dupuy called the police, but did not pursue charges once A.A.S. was returned to her care.

Although the record demonstrates that the Shaws and Ms. Dupuy and her daughters were a close family who participated in each other’s lives in the past, the trial court was presented with divergent views of the basis for the chasm between Ms. Dupuy and her parents, which resulted in the termination of the frequent visitation the Shaws once enjoyed with their grandchildren. Inconsistencies in testimony are ordinarily matters of credibility allotted to the fact finder for resolution. But in this case, accepting only the Shaws’ version of the basis for the split between parents and daughter as true, we find that as a matter of law it is insufficient to constitute the “highly unusual set of facts” necessary to amount to the “extraordinary circumstances” justifying interference in a parent’s right to make decisions concerning the care, custody, and control of her children. Mindful that the record is devoid of any allegations or proof of the unfitness of the mother, see Flack v. Dickson, 2008-5, p. 5 (La.App. 3d Cir.4/30/03), 843 So.2d 1261, 1264, we find the trial court abused its discretion by awarding visitation of A.A.S. and B.D.L. to the Shaws. The inability of the mother and the grandparents to communicate or agree on many issues or the mother’s alleged concern for an lsencroachment on an inheritance she believes she and her children are entitled to receive from her parents does not amount to the extraordinary circumstances required by Article 136B to support an award of visitation to the relatives not granted custody of the children. Accordingly, the trial court’s award of visitation of A.A.S. and B.D.L to the Shaws is reversed.

DECREE

For these reasons, the trial court’s judgment, which awards visitation to the Shaws is reversed. Appeal costs are assessed to Mark and Margaret Shaw.

REVERSED.

WHIPPLE and McCLENDON, JJ. concur and- assign reasons.

WELCH, J., dissents with reasons.

WHIPPLE, J.,

concurring.

| ^though the majority pretermits discussion of the application of LSA-C.C. art. 136 to these proceedings, I find that, without doubt, LSA-C.C. art. 136 does not afford the Shaws a cause of action for visitation at the very least as to A.A.S. In Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000), the United States Supreme Court reaffirmed the fundamental right of parents to make decisions concerning the care, custody and control of their children. The Court further found the Washington statute at issue therein to be “breathtakingly broad” and to unconstitutionally infringe upon that constitutional right by “effectively permit[ting] any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review.” Troxel, 530 U.S. at 67, 120 S.Ct. at 2061.

In Galjour v. Harris, 2000-2696 (La.App. 1st Cir.3/28/01), 795 So.2d 350, this court, in addressing the constitutionality of LSA-R.S. 9:344 (visitation for the parents of a deceased, interdicted or incarcerated parent), concluded that LSA-R.S. 9:344 was constitutional because it was narrowly drawn in that it was expressly limited to the parents of the deceased or absent parent and it did not contemplate significant intrusion upon the child’s relationship with the other parent or interference with that parent’s fundamental right to make chil-drearing decisions.

As this court specifically noted in Troxel, LSA-C.C. art. 136 is located in the Divorce section of the Louisiana Civil Code and “contemplates a grant of reasonable visitation to relatives upon the parties’ divorce, if there are extraordinary circumstances and upon a finding by the court that such an award is |2in the best interest of the child.” Galjour, 795 So.2d at 355; see also Lingo v. Kelsay, 94-1038 (La.App. 3rd Cir.3/1/95), 651 So.2d 499.

To apply LSA-C.C. art. 136(B) to visitation issues would, in my opinion, “effectively permit[ ] any [relative] seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review.” Troxel, 530 U.S. at 67, 120 S.Ct. at 2061. Thus, I believe that this would be an unconstitutional application of LSA-C.C. art. 136(B) as to A.A.S., whose parents were never divorced. In my view, the article clearly does not apply to any claim by the Shaws, as A.A.S.’s maternal grandparents herein, where the child’s mother has custody and has simply chosen to limit the child’s contact with the maternal grandparents. (While Dupuy has not challenged the applicability of LSA-C.C. art. 136 to the Shaws’ request for visitation of B.D.L., I find merit to the trial court’s statements as quoted in Huber v. Midkiff, 2002-0664 (La.2/7/03), 838 So.2d 771, 775, where the trial court therein expressed its opinion that the legislature did not intend for LSA-C.C. art. 136(B) to apply to grandparents attempting to gain visitation of their grandchild from their own child.)

However, even if I were to conclude that the Shaws had any rights afforded to them under LSA-C.C. art. 186(B), I also would conclude that, under the facts presented, the trial court abused its discretion in awarding grandparent visitation to the Shaws. The record demonstrates that while this was a close family who participated in each other’s lives, at least in the past, there are no extraordinary circumstances warranting such visitation. Moreover, while A.A.S. had lived with her mother and maternal grandparents when she was very young, Mrs. Shaw acknowledged that A.A.S. had not lived in their household for many years and that B.D.L. had never lived in their household.

Additionally, I am unable to find that such visitation is in the children’s best interests. The record demonstrates that the Shaws clearly and repeatedly interfered Rwith Dupuy’s rights to make decisions about her children and undermined her authority and relationship with her children. The fact that the trial court felt compelled to include provisions in its judgment that Dupuy should make all major decisions for the children and that the Shaws should refrain from certain actions demonstrates the trial court’s own recognition of the Shaws’ ongoing interference with Dupuy’s right to make decisions for her children.

Moreover, I find the court-ordered visitation with B.D.L. was an abuse of the trial court’s discretion and constitutes an overbroad grant of visitation in that it interferes significantly with Dupuy’s relationship with that daughter in that she now has physical custody of B.D.L. only one weekend per month.

Given the evidence of the adoptive maternal grandfather’s and the biological maternal grandmother’s interference and lack of respect for the mother’s paramount rights as the parent (and, in particular, the events which required the summoning of the police on one occasion to return A.A.S. to Dupuy), I am unable to find that the judgment is legally proper or substantively in the children’s best interests. Instead, I sadly find this case to present the type of circumstances envisioned in Troxel when the Court again rejected state-court interference with parenting decisions.

Given the absence of any allegations or proof of unfitness of the mother, the well-documented inability of the mother and grandparents to communicate or agree on many issues, and some of the disclosures and acts of the grandparents (which I find shocking and inappropriate), the mother’s ultimate right and decision to limit or even end contact with the Shaws is legally protected, and must be respected and upheld (regardless of our view of the moral soundness of her reasons for doing so).

For these reasons, I concur in the majority’s decision to reverse the trial court’s judgment and dismiss the grandparents’ petition for visitation.

McClendon, j.,

concurs.

hBased on the totality of the facts presented herein, I concur with the result reached by the majority.

WELCH, J.,

Dissenting.

Ill respectfully disagree with the majority opinion in this case because the record in this matter clearly demonstrates that there are extraordinary circumstances and that visitation with Mark and Margaret Shaw would be in the best interest of the children.

As the majority notes, at the time Tonya Dupuy gave birth to A.A.S., she was an unwed teenager and resided primarily with her mother. Although she eventually moved out of the Shaw’s home, and gave birth to B.D.L., over the years, Tonya Dupuy’s unfortunate personal circumstances made it necessary for her to move back to the Shaw’s home with her children. And, since Tonya Dupuy was a young, working, single parent, Mark and Margaret Shaw’s role in their grandchildren’s lives became more that of a parent rather than grandparent. Indeed, the testimony indicated that it was Mark Shaw who coached A.A.S.’s ball team, who was at home to get A.A.S. off of the school bus, and who helped her with her homework and other school projects.

While Mark and Margaret Shaw contend that Tonya Dupuy discontinued allowing A.A.S. and B.D.L. to visit with them because she was upset with their participation in the Department of Social Service’s foster parent program, because she did not want to share “her inheritance” or “her children’s inheritance” with a foster child, Tonya Dupuy contends that she halted the visitation because the Shaw’s behavior and actions in the presence of the children interfered with her ability to parent her children. Although the evidence indicated that since Tonya |gDupuy married Brad Dupuy, she has now become more stable and has taken a more active role in parenting her children, there is no doubt that a strong bond has developed between the Shaws and the minor children that were, for the most part, reared in their household.

In concluding that Mark and Margaret Shaw had met their burden of proof under La. C.C. art. 136, the trial court found that Mark and Margaret Shaw demonstrated that they have had a long and lasting relationship with the children, that up until 2004, they had been very active in the children’s lives, and Mark and Margaret Shaw have had a positive influence on the children’s lives. The trial court also noted that it had never seen a family who had such a close and loving relationship move so far apart from each other as the Shaw family had done. However, in awarding visitation to Mark and Margaret Shaw, the trial court reminded them that they were grandparents and that they were to respect Tonya Dupuy’s wishes as the mother, and that they were not to make important decisions for the children.

I agree with the trial court and find these circumstances, where Mark and Margaret Shaw had a long standing relationship with the children, essentially reared at least one of the two children in their home, and willingly accepted a parental role in their grandchildren’s lives due to Tonya Dupuy life circumstances, to be extraordinary. This type of situation, i.e. grandparents rearing their grandchildren and grandparents acting in parental roles because of their children’s circumstances, arises all too often in today’s society. To judicially ignore such an extraordinary circumstance, as the majority does in this case, is a great injustice to the children. I also find the fact that Tonya Dupuy terminated the relationship between the Shaws and the minor children because of her perception that her inheritance would be adversely impacted by the presence of a foster child, to be “highly unusual” parenting behavior, and likewise, an extraordinary circumstance. ^Accordingly, I find no error in the trial court’s determination that extraordinary circumstances exist in this case.

Having determined that “extraordinary circumstances” exist, I also believe that the record demonstrates that visitation with Mark and Margaret Shaw is in the best interest of A.A.S. and B.D.L. Louisiana Civil Code article 136(B)(l)-(5) provides factors for the trial court to use in the “best interest” determination. The first factor, the length and quality of the prior relationship between the child and the relative, is clearly established by this record. It is undisputed that Mark and Margaret Shaw have provided stability for both of the children, and particularly with A.A.S. during her early years. Furthermore, Tonya Dupuy admitted that she wants her children to have a relationship with Mark and Margaret Shaw.

In analyzing the second factor, whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative, the record contains evidence that Mark and Margaret Shaw have taken an active role and have participated in the children’s school work, extracurricular activities, and religious upbringing. Additionally, Mark and Margaret Shaw have taken the children on numerous vacations to the beach, Disney World, and Texas.

With regard to the third factor, the preference of the child, although neither A.A.S. nor B.D.L. testified, the testimony elicited from the parties reflect that in the past, both children have anxiously awaited visitation with Mark and Margaret Shaw and that they desire to continue their relationship and visitation with them.

In considering the fourth factor, the willingness of the relative to encourage a close and continuing relationship between the child and his parent or parents, we note that Mark and Margaret Shaw testified that they have always promoted the children’s relationship with their mother and have always abided by Tonya Dupuy’s wishes with regard to her children when made known to them.

. The last factor for consideration in determining the best interest of the child |4is the health of the child and relative, both mentally and physically. The record reveals no physical or mental health problems with either the children or Mark and Margaret Shaw. Therefore, having considered all of the factors set forth in La. C.C. art. 136(B), I find no error in the trial court’s determination that visitation with Mark and Margaret Shaw was in A.A.S. and B.D.L.’s best interest.

Considering the length and quality of the relationship that Mark and Margaret Shaw have had with A.A.S. and B.D.L. and considering the vast discretion given to the trial court, I find a reasonable basis for the trial court’s findings that there were extraordinary circumstances in this case and that visitation with Mark and Margaret Shaw was in the children’s best interest. Furthermore, considering the fact that the judgment limited Mark and Margaret Shaw’s visitation so as not to be a significant intrusion upon the children’s relationship with the mother, specifically gave deference to Tonya Dupuy’s role as the children’s mother, and prohibited Mark and Margaret Shaw from acting in any manner which would diminish Tonya Dupuy’s authority over her children or undermine her ability to raise her children, I cannot say that the trial court abused its discretion in awarding visitation to Mark and Margaret Shaw. Accordingly, I would affirm the January 9, 2006 judgment of the trial court

For these reasons, I respectfully dissent.

      . Margaret Shaw is Ms. Dupuy's biological mother. Mark Shaw adopted Ms. Dupuy once she reached the age of majority See La. R.S. 9:461 and La. C.C. art. 214.

      . The Shaws1 petition also asserts entitlement to an award of visitation under La. R.S. 9:344. But La. R.S. 9:344 applies in those instances in which the child of the grandparents seeking visitation has died, or been interdicted or incarcerated. Because Ms. Dupuy has not died, or been interdicted or incarcerated, La. R.S. 9:344 is inapplicable.

      . Initially we note that in this case, the Shaws are the parents of the mother who has custody of the minor children. Thus, they are grandparents attempting to gain visitation of their grandchildren from their own child. In Huber v. Midkiff, 02-0664 (La.2/7/03), 838 So.2d 771, 775, the supreme court reversed the trial court’s declaration that Article 136B was an unconstitutional due process violation of the custodian’s rights to parent the children as applied to the situation before the court. In Huber, the grandparents attempted tp gain the visitation of their grandchild from their own child, reasoning that the challenge to the statute’s constitutionality had not been questioned in the trial court or specifically pleaded. Likewise in this case, the issue of whether application of Article 136B to the Shaws’ claim for visitation of their grandchildren from their own child unconstitutionally infringes upon Ms. Dupuy’s right to make decisions concerning the care, custody, and control of her children, see Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), has not been properly postured for disposition by this court. Thus, for purposes of this appeal, we assume without passing judgment that the application of Article 136B to the Shaws’ claim for visitation of their grandchildren from their daughter is constitutional. See Huber, 02-0664 at p. 6, 838 So.2d at 775-76.'

      . Having concluded that the record fails to establish "extraordinary circumstances” sufficient to warrant an award of visitation in favor of the Shaws under Article 136B, we find it unnecessary to address Ms. Dupuy’s contention that a proceeding for divorce between the parents of the child is a pre-requi-site to an action for visitation of the child under that statute. Thus, a discussion on whether Article 136B is applicable to the Shaws' claim for visitation since Ms. Dupuy never married A.A.S.'s father and, therefore, never divorced from him is pretermitted.


author: BELSOME, J.

text:
    Michael Wayne WEBSTER, Daffaney Webster & Lawanda Webster v. Sallie J. BALLARD & Farmers Insurance Company.
    No. 2005 CA 2247.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 2007.

      Doug G. Sweson, Baton Rouge, for Plaintiff/Appellee, Michael Wayne Webster, Daffaney Webster, & Lawanda Webster.
    James Eric Johnson, Baton Rouge, for Defendant/Appellant, Sallie J. Ballard & Farmers Ins. Company.
    Before: BAGNERIS, KIRBY, and BELSOME.
   BELSOME, J.

| gDefendants-Appellants, Sallie Ballard and Farmers Insurance Company, appeal the trial court’s award to Plaintiffs-Appel-lees for a property damage deductible and special damages. We affirm the judgment as amended.

FACTS AND PROCEDURAL HISTORY

On July 24, 2004, an automobile accident occurred involving Michael Wayne Webster, Daffaney Webster, and Lawanda Webster (collectively “Appellees”) and Sallie Ballard. On June 6, 2005, the case went to a bench trial and judgment was rendered for Appellees. The trial court subsequently awarded general and special damages to Appellees. The special damages were awarded for medical expenses incurred and for reimbursement of Appel-lees’ property damage deductible. No evidence was submitted, however, to demonstrate that the Appellees were entitled to reimbursement of their property damage deductible. Moreover, Appellees did not state a claim for the property damage deductible in their petition for damages.

A judgment was signed on August 8, 2005. This appeal followed regarding the award of special damages in the amount of $3,525.00 for medical expenses to Michael Wayne Webster; the award of special damages awarded to Daffaney Webster in the amount of $3,010.00; and $500.00 | ^awarded to Daffaney Webster and Michael Wayne Webster as reimbursement for their State Farm property damage deductible.

STANDARD OF REVIEW

A trial court is allowed vast discretion with regard to damage awards. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993). A trial court’s award of special damages is subject to the manifest error standard on appeal. See, e.g., Harvey v. Cole, 2000-1849, pp. 15-16 (La.App. 4 Cir. 1/23/02), 808 So.2d 771, 783, and a general damages award is reviewed under the abuse of discretion standard. See, e.g., Rico v. Sewerage and Water Bd. of New Orleans, 2004-2006 (La.App. 4 Cir. 3/8/06), 929 So.2d 143, 146. Likewise, a trial court’s findings of fact will not be disturbed on appeal unless manifestly erroneous. Id. Finally, appellate courts examine evidence in the light most favorable to the prevailing party when deciding whether the trial court was clearly wrong with regard to its findings. Theriot, 625 So.2d at 1340.

DISCUSSION

The first two assignments of error assert that the trial court erred by admitting non-certified medical expense recapitulations issued to Michael Wayne and Daffaney Webster as a result of the accident. The non-certified medical expense recapitulations were identified by Michael Wayne Webster and Daffaney Webster as such when they were admitted into evidence at trial, but were not identified by an expert, nor did any doctor testify as to the expenses or treatment, either at trial or by deposition. Appellees therefore Rassert that the medical bills are unreliable because they show overlapping dates and nearly identical treatment for both Michael Wayne Webster and Daffa-ney Webster although their alleged injuries were not similar.

Pursuant to LSA-R.S. 13:3714, medical records that are either certified or signed by the administrator or the medical records librarian of the hospital and are submitted to a court:

... shall be received in evidence by such court as prima facie proof of its contents, provided that the party against whom the bills, medical narrative, chart, or record is sought to be used may summon and examine those making the original of the bills, medical narrative, chart or record as witnesses under cross-examination.

LSA-R.S. 13:3714(A).

In this case, the trial court allowed the non-certified medical bills into evidence after permitting Mr. Webster to verify the records at trial over the Appellants’ objections. We find that this case is somewhat similar to the facts of White v. Washington, 303 So.2d 861, 863 (La.App. 1 Cir.1974), where this Court determined that a copy of a hospital bill, although not certified by the hospital, should be allowed into evidence over the Defendant’s objection and permitted the Plaintiff to recover medical expenses pursuant to that evidence. Additionally, other circuits have similarly found that plaintiffs may testify regarding their own medical bills and treatment.

| sLikewise, in this case, Appellants did not offer contradictory evidence to Michael Wayne or Daffaney Webster’s testimony verifying the amounts and treatment that they received at the Family Chiropractic Clinic, but rather objected only to the fact that the bills were not certified. The trial court overruled the objections, allowed the expense recapitulations into evidence, and awarded the full amount of the chiropractic expenses documented on the summaries submitted and verified in court by Michael Wayne Webster and Daffaney Webster.

In this case, the admission of the medical expense recapitulations on behalf of Daffaney and Michael Webster is ultimately a matter of the trial court’s discretion. Under these facts, we cannot say that the trial court was manifestly erroneous in awarding damages based on the medical bills submitted. In this case, the medical bills were submitted to prove the cost of medical treatment, the Appellees testified as to the treatment. based on their own personal knowledge, and Appellants were allowed the opportunity to cross-examine Plaintiffs regarding the reasonableness of the medical bills. See Guillory v. Shelter Mut. Ins. Co., 542 So.2d 850, 852 (La.App. 3 Cir.1989). Additionally, before the medical bills were admitted into evidence, |fiboth Daffaney and Michael Webster testified as to the events surrounding the automobile accident, their resulting injuries and subsequent treatment for their injuries; thus, in this case, we find that Appel-lees established a proper foundation for admitting the medical bills into evidence. See Guillory, 542 So.2d at 852. As was the scenario in Guillory, Appellants in this case have not attempted to “specifically attack the connexity or reasonableness of any charge billed” to the Plaintiffs “and allowed by the trial court as special damages.” Id. at 853. Finally, because we are not in a position to substitute our judgment for that of the trial court, Hoot v. Woman’s Hosp. Foundation, 96-1136 (La.App. 1 Cir. 3/27/97) 691 So.2d 786, 790, we find that even if the trial court erroneously admitted the non-certified medical bills into evidence, such error, if any, was harmless.

We note, however, that the trial court made a calculation error; the medical bills that were admitted into evidence reflect a slightly different amount than that awarded by the trial court. Because we find that the trial court intended to award special damages based on the medical expense recapitulations from the Family Chiropractic Clinic, we amend the judgment to reflect the amounts on the bills that were admitted into evidence.

In the third assignment of error, Appellants argue that the trial court erroneously awarded $500.00 in property damages when a claim for property damages was not asserted in the petition for damages. Appellants maintain that the property damage claim was arbitrated between Farmers Insurance and State Farm with a decision unfavorable to the Appellees’ |7insurer. Moreover, it appears that the actual amount of the property damage deductible, according to records submitted to arbitration by State Farm, was $250.00, not $500.00. Pursuant to LSA-C.C.P. art. 1154, a specific request for reimbursement of the deductible need not have been made in the Plaintiffs petition. Article 1154 provides, in relevant part:

When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleading. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits.

LSA-C.C.P. art. 1154 (emphasis added).

In this case, Appellants did not timely object to the Plaintiffs request for reimbursement of the property damage deductible. However, while Louisiana jurisprudence may permit expansion of pleadings, it cannot be construed to allow an erroneous award for a property damage deductible. In this case, the record demonstrates that the actual amount of the Plaintiffs’ deductible is $250.00, not $500.00. Accordingly, we amend the trial court’s judgment to reflect the correct amount of $250.00.

I «CONCLUSION

The trial court’s judgment is hereby amended as follows: the special damages awarded to Michael Webster are $3,865.00; the special damages awarded to Daffaney Webster are $3,635.00; and the damages awarded to the Appellees for the property damages are amended to reflect the amount of the deductible, $250.00.

JUDGMENT AFFIRMED AS AMENDED.

      . The court awarded Michael Wayne Webster general damages in the amount of $5,000.00 and special damages in the amount of $3,525.00; Daffaney Webster general damages in the amount of $5,000.00 and special damages in the amount of $3,010.00; Lawanda Webster general damages in the amount of $7,500.00 and special damages in the amount of $3,765.00.

      . The medical records and expense recapitulations for plaintiff Lawanda Webster from the same clinic were certified and were accordingly admitted into evidence without any objection. Additionally, medical records from other sources for Michael and Daffaney Webster were certified and also admitted without objection.

      . See, e.g., Daspit v. Barber, 786 So.2d 962, 969 (La.App. 4 Cir.2001)(holding that ''[wjhere the medical bills are clearly connected to the accident at issue and where there is no substantial conflicting evidence to the contrary, testimony from Mr. Daspit regarding receipt of the bills and treatment.. .is sufficient to allow the introduction of the medical bills in order to prove the cost of the treatment”), Jackson v. Tyson, 526 So.2d 398, 401 (La.App. 4 Cir.1988)(holding that where the plaintiff identified her medical bills at trial as proof of the cost of her treatment, such evidence was not hearsay, and that "[plaintiffs] testimony regarding her treatment, and not the bills, prove the fact of treatment”), Fowler v. Roberts, 526 So.2d 266, 279 (La. App. 2 Cir.1988), writ granted, 531 So.2d 257, writ denied, 531 So.2d 278, aff'd, 556 So.2d 1 (holding that medical bills for plaintiff's treatment were not inadmissible hearsay, but were evidence of medical expenses incurred for treatment); Howery v. Linton, 452 So.2d 295, 296 (La.App. 2 Cir.1984)(holding that pursuant to a trial court’s "great discretion in assessing personal injury damages,” a hospital and ambulance bill that were not inadmissible hearsay and were properly admitted to establish special damages).
      We note that in the Daspit case, supra, the court ultimately held that the medical bills were properly excluded from evidence by the trial court because the plaintiff "failed to establish a causal connection between the accident in question and the injury he alleged” and that accordingly, "the trial court had no basis for concluding that the bills were related to the accident." Daspit, 786 So.2d at 969. In this case, however, Appellants do not assert that the bills from Family Chiropractic Clinic were unrelated to the automobile accident.

      . The amount of the bill that was admitted into evidence for Michael Webster was $3,865.00; the amount of the bill that was admitted into evidence for Daffaney Webster was 3,635.00.

      . The arbitration decision states that State Farm failed to sustain the burden of proof; that there were conflicting statements as to how the accident occurred; and that there were no independent witnesses to the accident.