author: STEWART, J.

text:
    Jessica PHILLIPS, Plaintiff-Appellant, v. STATE of Louisiana, DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS and Richard L. Fewell in his Capacity as Ouachita Parish Sheriff, Defendants-Appellees.
    No. 43,143-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Anthony J. Bruscato, Monroe, for Appellant Jessica Phillips.
    Neal G. Johnson, Monroe, for Appellee Richard L. Fewell, Sr., Sheriff.
    Before STEWART, MOORE and LOLLEY, JJ.
   STEWART, J.

hThe plaintiff, Jessica Phillips, filed suit for damages against the defendant, Oua-chita Parish Sheriff Richard Fewell. She alleged that she developed sores on her ankles as a result of remaining shackled for an extended period of time and was not provided any medical treatment while held at the Ouachita Parish Correctional Center (O.C.C.). At the close of plaintiffs case, the defendant moved for a directed verdict. The trial court took no action on the motion, and the defendant presented its evidence. At the close of the trial, the trial court took the matter under advisement and later rendered a judgment granting a directed verdict in favor of the defendant. The plaintiff appealed. Because we find the trial court erred in granting the directed verdict, we reverse the trial court’s judgment and, upon reviewing the record de novo, render in favor of the plaintiff as set forth in this opinion.

FACTS

On April 1, 2004, Jessica Phillips was arrested for simple burglary by the Monroe Police Department. After first being taken to Richwood Detention Center, she was transported to O.C.C., booked, and placed in a holding cell shortly after midnight where she remained until late afternoon on April 3, 2004. During her entire time in the holding cell, she wore shackles around her ankles. Jessica claimed that she complained the shackles were hurting her but that no one helped. She developed ugly sores on the backs of both ankles where the skin was rubbed raw from contact with the metal shackles.

|2Jessica filed suit against the State of Louisiana Department of Public Safety and Corrections (“DPSC”) and Richard Fewell, the Ouachita Parish Sheriff. Because DPSC did not exercise control over O.C.C., Jessica’s claims against it were dismissed on summary judgment. A bench trial was held on Jessica’s claims against Fewell on July 23, 2007.

Trial Testimony

Jessica testified no one responded to her complaints while in the holding cell, even though she pressed a buzzer for help three times and tried to get the attention of deputies as they brought other women in and out. No one looked at her ankles or loosened the shackles. Late in the day on April 3, 2004, the shacMes were finally removed after her transfer to the women’s dormitory. Jessica testified that the skin was rubbed off the backs of her ankles, leaving green and yellow looking sores that bled. She said that her ankles hurt and were “horrible.” Though she asked for medical assistance “numerous times,” none was provided.

No prior injuries to Jessica’s ankles are noted on the health intake done by O.C.C. during booking. The O.C.C.’s records also indicate an “H & P done per MD Twite-hell” at 8:00 a.m. on April 6, 2004. Two hours later at 9:50 a.m., Jessica filed O.C.C.’s Administrative Remedy Procedure (“ARP”) on which she complained of sores on her ankles from the shackles and wrote:

On April 1, 2004 I was arrested. They put me in holding tank B3, with [shackles] on. I stayed in the tank until that Sat. night. The whole time I was in the tank I had the [shackles] on with no socks. The [shackles] started cutting into my ankles. I brought it to several different people’s attention, including the nurse. They never once put any kind of cream or [bandages] |3on them. Now they are infected <& swole up [sic]. When I ask them or go to show them for something to put on them all they do is look at me like “Oh my God.” This morning I spoke to Sgt. Davis & he told me to fill out an ARP.

The shift supervisor, Sgt. Newman, responded to the ARP by writing, “Jessica Philips, I don’t know anything about your complaint. You did not say anything to me concerning your ordeal.” Jessica felt she had no choice but to accept the decision, because no one had done anything to help her.

O.C.C.’s records also include a sick call request filed by Jessica at 10:00 p.m., on April 8, 2004. She was finally seen by a nurse on April 9, 2004. The nurse looked at both ankles and noted “minor abrasions” but no “swelling or signs of infection.” She told Jessica the sores were “healing well” and “instructed her to clean with soap and water — apply TAD once a day.”

Later that day, Jessica was transferred to Richwood Detention Center and then to Richland Parish Detention Center (“Rich-land”) at 12:54 a.m., on April 10, 2004. Jessica reported to Richland that O.C.C. left her shackled for three days. Her injuries were documented by photographs, and Althea Smith, a certified nursing assistant, treated the wounds with antibiotic cream and bandages.

After her release, Jessica continued to treat her wounds at home. Believing that the sores were infected and not healing, she sought treatment at St. Francis Medical Center’s emergency room on April 23, 2004. Medical records state no signs of infection were found. Jessica was told to apply Neosporin or a similar ointment daily to the drying scabs. Jessica testified that she could not wear tennis shoes for two to three months. She [ testified that her ankles are scarred and that she has some discomfort when wearing shoes due to the skin on the backs of her ankles now feeling “thin.”

Althea Smith, the CNA who treated Jessica at Richland, identified the photographs of Jessica’s wounds, but she had no independent recollection of Jessica. Janet L. Philips, Jessica’s mother, also took photographs of Jessica’s ankles after her release. Janet testified that the wounds looked infected and did not appear to be healing.

At the close of Jessica’s case, the defendant moved for a directed verdict. He argued that Jessica’s case was based on the failure of O.C.C. to provide medical treatment and that she did not prove, particularly without presenting any expert medical testimony, that the failure to do so either caused or increased her injury. In response, Jessica’s counsel argued that her claim included both the failure to provide medical treatment and the failure to “attend to her when her shackles were too tight.” He argued that had O.C.C.’s personnel either adjusted the shackles or provided medical care when the injuries occurred, the sores would not have been as bad. Rather than ruling on the motion, the trial court took the matter under advisement, and the trial proceeded.

Fewell presented the testimony of Captain Connie Murray, Deputy Vicky Christy, Deputy Patricia Hopkins, and Sgt. Belinda Newman. None of these witnesses from O.C.C. could recall the plaintiff. Connie Murray logged in Jessica’s arrival at O.C.C. She described the booking area where the holding cell was located as “wild” and “hectic.” According to Murray, all inmates wear shackles while in the holding cell to prevent escapes in the | fihigh traffic area. She testified that there is a buzzer in the holding cell that sounds in Master Control when an inmate needs something. Murray testified that they are often called to loosen shackles, so all personnel have keys to the shackles. When shown pictures of Jessica’s injuries, Murray stated that she had never seen abrasions like that on an inmate. She explained that a person might be kept in the holding cell for a longer period if waiting on a bond. However, there was no evidence that Jessica was kept in the holding cell for this reason. Vicky Christy’s testimony was similar to Murray’s testimony regarding what happens in the fast-paced booking and holding cell area.

Patricia Hopkins worked in the female dormitory in April 2004. She logged Jessica’s clothing when she changed to the dormitory uniform. Hopkins testified that she did not recall any complaints by Jessica; however, she had no independent recollection of her. She testified that the prisoners “dress out” all during the night as soon as the paperwork for booking is done. She stated that prisoners are usually “dressed out” within 24 hours of arrival. She did not know why anyone would be kept in the holding cell as long as Jessica was kept there, but she did state that prisoners remain shackled while in the holding cell. Hopkins noted that females are not always wearing socks when they arrive, so they are more likely to get slight bruises or cuts from the shackles. However, she had not seen anyone with injuries as severe as Jessica’s appeared in the photographs.

Belinda Newman was the security sergeant for the female dormitory and the officer who responded to Jessica’s ARP. Newman testified that she lBcould not recall whether she had received any prior complaints by Jessica about her ankles. She also testified that she had been off work from March 21 through April 5, and had no knowledge of what occurred during that time. She claimed that she always returns an ARP in person and reads her decision to the inmate. If the decision is accepted, the matter goes no further. She also claimed that anytime she receives an ARP and sees an injury, she calls for medical assistance. She testified that if she had seen an injury like that shown in the photographs of Jessica’s ankles, she would have called for medical assistance.

At the close of the defendant’s case, the trial court ordered post-trial briefing and took the matter under advisement. On August 21, 2007, he rendered a written ruling that granted a directed verdict in favor of the defendant. The trial court agreed with the defendant’s contention that Jessica sought at trial to expand her pleadings to include the claim that O.C.C. negligently placed her and left her in shackles that were too tight. The trial court determined that Jessica’s petition complained only of the failure to provide medical care. In sustaining the motion for a directed verdict, the court stated, “Had Plaintiff ‘pled’ otherwise, a different result may [sic] be warranted.” A judgment dismissing Jessica’s claim was rendered on August 21, 2007. Jessica’s appeal from the directed verdict in favor of the defendant followed.

DISCUSSION

Directed Verdict

A motion for a directed verdict is a procedural device available in jury trials. King of Hearts, Inc. v. Wal-Mart Stores, Inc., 27,137 (La.App.2d Cir.8/23/95), 660 So.2d 524. The motion is to be made at the close of the opposing party’s evidence. La. C.C.P. art. 1810. The trial court must consider all evidentiary inferences in the light most favorable to the nonmoving party. When the facts and inferences overwhelmingly favor a verdict in favor of the moving party, and it is clear that reasonable minds could not arrive at a different conclusion, the motion for directed verdict should be granted. King of Hearts, supra. The directed verdict procedure serves judicial economy. Id.

Because this matter was tried by a judge rather than a jury, use of the directed verdict procedure and granting of a directed verdict, especially at the close of trial, were in error. Rather than taking the motion under advisement when made by the defendant, the trial court should have evaluated the plaintiffs evidence in light of the standards set forth in the preceding paragraph and then determined whether to grant or deny the motion. Taking the motion under advisement until the end of trial, when a judgment on the merits based on all of the evidence should be rendered, makes the directed verdict procedure meaningless. Ordinarily, a trial court is accorded much discretion in its decision to grant a directed verdict. Clifton v. Coleman, 32,612 (La.App.2d Cir.12/23/99), 748 So.2d 1263, writ denied, 2000-0201 (La.3/24/00), 758 So.2d 151. The circumstances here compel the conclusion that the trial court abused its discretion in granting the directed verdict in favor of the defendant.

A procedure akin to the motion for directed verdict is provided for use in bench trials. The motion for an involuntary dismissal can be made at | sthe close of the plaintiffs ease on the grounds that the plaintiff failed to show a right to relief under the facts and law of the matter. La. C.C.P. art. 1672; King of Hearts, supra. In determining whether to grant a motion for involuntary dismissal, the trial judge evaluates the plaintiffs evidence without any special inferences favoring the plaintiff and determines whether the preponderance of the evidence establishes a prima facie case. Id.; Haworth v. L’Hoste, 95-0714 (La.App. 4th Cir.11/30/95), 664 So.2d 1335, writ denied, 96-0408 (La.3/29/96), 670 So.2d 1235. If so, an involuntary dismissal is not granted, and judgment is not rendered until the close of all the evidence presented. Because the trial court did not render judgment until the close of all the evidence in this case, we will not review its judgment under the standards for an involuntary dismissal.

Even considering the merits of the trial court’s judgment, we find error. Both the defendant’s argument for a directed verdict and the trial court’s judgment narrowly interpreted Jessica’s petition as claiming only that the defendant failed to provide medical treatment. Every pleading shall be construed so as to do substantial justice. La. C.C.P. art. 865. Pleadings must be interpreted to allow the petitioner his day in court so long as the opposing party is not prejudiced. Hinds v. Poo-Yie’s, Inc., 520 So.2d 1016 (La.App. 3d Cir.1987). If the pleadings are so insufficient or inadequate that they fail to put the opposing party on notice of the claims asserted, then prejudice occurs. Id.

Jessica’s petition alleged that she “remained shackled at both legs” while at O.C.C., and that she “asked a nurse at the facility to look at the | nsores on her ankles as a result of wearing the shackles for a long period of time, but the nurse refused saying it was not her job.” Jessica further alleged that her injuries were caused by the defendant’s failure to provide medical care, failure to act responsibly toward her medical needs, and indifference to her medical needs and welfare. Read as a whole, her petition put the defendant on notice that her claim related to the cause of the injuries to her ankles and the failure to provide medical care for the injuries. The trial court erred in narrowly interpreting the petition to state only a claim relating to the failure to provide medical care.

Because we find that the trial court erred as a matter of law in granting a directed verdict and as a matter of fact in its interpretation of the petition, we will conduct a de novo review of the entire record, which is complete, to render a judgment on the merits. See We Sell Used Cars, Inc. v. United Nat. Ins. Co., 30,671 (La.App.2d Cir.6/24/98), 715 So.2d 656.

De Novo Review

To prevail on a negligence claim, the plaintiff must prove that the defendant owed a duty to the plaintiff, that the defendant breached the duty, that the breach was the cause of the plaintiffs injuries, and that the plaintiff sustained damages. Johnson v. Bennett, 27,051 (La.App.2d Cir.6/21/95), 658 So.2d 712; Vig v. City of Shreveport, 28,530 (La.App.2d Cir.8/21/96), 679 So.2d 524, unit denied, 96-2285 (La.11/15/96), 682 So.2d 775.

The duty element is easily satisfied. A police officer owes a duty to a person in custody to protect him from injury and to care for his safety. Evans v. Hawley, 559 So.2d 500 (La.App. 2d Cir. 1990), writ denied, 563 So.2d 1156 (La. 1990); Saine v. City of Scott, 2002-265 (La.App. 3d Cir.6/12/02), 819 So.2d 496. An officer also has the duty to see that reasonable medical care is provided to a person in his custody when the need for such care is indicated by the person’s mental or physical condition. Evans v. Haw-ley, supra; Cobb v. Jeansonne, 50 So.2d 100 (La.App. 2d Cir.1951).

The defendant breached the duties owed to the plaintiff while in custody. The record establishes that Jessica remained shackled for over 36 hours. She complained the shackles hurt, but no one responded. The shackles rubbed away the skin on both ankles, leaving ugly sores that bled. Jessica’s testimony regarding her time in the holding cell and her complaints was uncontradicted. None of O.C.C.’s witnesses specifically recalled Jessica. Testimony established that the holding cell area is very hectic and wild, but that prisoners are generally transferred to the dormitory soon after booking is complete. This did not happen in Jessica’s case. Though testimony on the time lapse between booking and transfer was not specific, none of the witnesses could clearly explain why Jessica would have remained in the holding cell for such a long period. The booking paperwork in the record shows that it was generated in the early morning hours after her arrest, yet Jessica remained shackled until late afternoon on April 3, 2004, before being moved to the female dormitory. This is unacceptable.

Jessica also testified that she asked for medical assistance numerous times and was ignored. We note O.C.C.’s records show that Jessica was Inseen by a doctor at 8:00 a.m. on April 6, for an exam, and that there is no mention of injury to her ankles. Jessica testified that she did not recall any examination by a doctor. We do not find the record of a doctor’s visit to undermine Jessica’s claim. Later that same day, she filed the ARP, in which she related her injury and her unsuccessful efforts to get some medical assistance. Had she been able to get any medical treatment from a visiting doctor that morning, surely the ARP would have been unnecessary. The defendant’s pattern of indifference is shown in the response to the ARP, by which Sgt. Newman said that she did not “know anything” about Jessica’s complaint and that Jessica had not said anything to her concerning the “ordeal.” This response to a claim of injury by a prisoner is also unacceptable. Finally, Jessica filed a sick call request at 10:00 p.m., on April 8, 2004, complaining that her ankles appeared infected. She was seen by a nurse on April 9, 2004, the day of her transfer to Richland. The nurse told her to clean the wounds with soap and water.

Overall, the record establishes indifference by O.C.C. to the safety and medical needs of Jessica. O.C.C. allowed her to remain in shackles for over 36 hours. As a result of being shackled for this extended period, Jessica developed sores on both ankles from the metal rubbing against bare skin. Her complaints were ignored until the day she left O.C.C. Lacking treatment, Jessica became concerned that the wounds were becoming infected. Fortunately, infection did not develop. The defendant clearly breached its duty to protect a person in its custody from injury and to provide medical care as indicated by the person’s physical condition. It was |1g;O.C.C.’s failure to pay attention to how long Jessica remained in the holding cell and to respond to her complaints about the shackles that caused the injuries to her ankles. Also, O.C.C.’s failure to provide any medical treatment until Jessica’s last day in the facility caused her to suffer with untreated wounds and fear that they were becoming infected. The record establishes that Jessica sustained damages, and we must determine the appropriate compensation.

After her release from Richland, Jessica sought treatment from St. Francis Medical Center on April 23, 2004, to check for infection. Her injuries were minor, though she claimed to experience some tenderness for two to three months when wearing shoes. She claimed at trial to still have scars on her ankles. Though the record indicates that she showed her ankles to the trial judge, the record does not state any comment by the trial judge regarding the extent of any scarring. Considering the injuries sustained by Jessica as a result of the negligent indifference exhibited by O.C.C. personnel in keeping Jessica shackled for over 36 hours and by not responding in a timely manner to her pleas for medical care, we award general damages of $2,000. Additionally, the defendant is ordered to pay special damages totaling $189.94 for medical and related expenses.

CONCLUSION

For the reasons stated, the judgment of the trial court is reversed, and judgment is rendered in favor of the plaintiff, Jessica Phillips, for a total of $2,189.94. In accordance with La. R.S. 13:5112, we assess costs of this appeal totaling $975 against the defendant.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: GASKINS, J. BROWN, Chief Judge,

license: Public Domain

text:
    FIA CARD SERVICES, N.A., Plaintiff-Appellant, v. Bryan Scott GIBSON, Defendant-Appellee.
    No. 43,131-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Eaton Group Attorneys, L.L.C. by Linda L. Lynch, Gregory M. Eaton, Baton Rouge, for Plaintiff-Appellant.
    Robert A. Booth, Jr., for Defendant Appellee.
    Before BROWN, GASKINS and LOLLEY, JJ.
   GASKINS, J.

hThe plaintiff, FIA Card Services, N.A., appeals from a trial court judgment denying its petition to confirm an arbitration award against the defendant, Bryan Scott Gibson. In effect, the trial court granted a peremptory exception of no right of action, finding that the plaintiff was not the proper party to seek confirmation of the arbitration award. For the following reasons, we affirm the judgment insofar as it grants the exception, but amend and remand this matter to permit the plaintiff to amend its petition, if possible, to establish a right of action.

FACTS

On December 15, 2006, FIA Card Services, N.A. (FIA) filed a petition in Bossier City Court to confirm and recognize an arbitration award for $10,762.13 against the defendant, Bryan Scott Gibson. The arbitration award contained in the record shows that the claimant is MBNA America Bank, N.A. (MBNA), not FIA. This award is dated September 26, 2006. The defendant answered, claiming that he was not indebted to the plaintiff, there was no evidence that he signed any agreement, he had no knowledge of the arbitration proceedings, and he did not agree to arbitration.

In May 2007, FIA filed a motion and memorandum to confirm the arbitration award. A hearing on the motion was held on July 30, 2007. Zach Blanchard represented the plaintiff and Robert Booth represented the defendant. At the hearing, in effect, the lower court granted an exception of no right of action in favor of the defendant. The following exchange transpired before the lower court:

MR. BLANCHARD: Zach Blanchard for the plaintiff, Your Honor. This was submitted for arbitration and an award was ^rendered on 26th of September 2006, in the amount of $10,762.13 and the matter is before the Court this afternoon to make that arbitration award ex-ecutory in this Court.
THE COURT: All right, Mr. Booth, do you wish to be heard?
MR. BOOTH: Yes sir. The arbitration award was made to MBNA, American [sic] Bank. The suit is filed under FIA Card Services. I have nothing in the file to indicate any sort of assignment. It looks like they have gotten the wrong arbitration in the wrong suit. That is all I can figure out. Do you have those?
MR. BLANCHARD: I don’t know how FIA became a party to this suit, Your Honor.
THE COURT: The arbitration award is in favor of MBNA? Is that right, Mr. Blanchard?
MR. BLANCHARD: Yes sir.
THE COURT: The suit that is before us today is brought by FIA Card Services, NA? Is that right?
INAUDIBLE VOICE: Yes sir, Your Honor.
MR. BOOTH: We would move to have the matter dismissed with prejudice. THE COURT: Mr. Blanchard, I think Mr. Booth’s question is certainly a legitimate question. Anything else you have to add, Mr. Blanchard?
MR. BLANCHARD: No sir, Your Hon- or.
THE COURT: Based on the record and what has been presented today, I will have to deny the plaintiffs request. I will have to deny the, ah, this is up on a motion to confirm the arbitration award. That motion will be denied with prejudice at the cost of the plaintiff....

On August 27, 2007, the trial court signed a judgment denying with prejudice the plaintiffs motion to confirm the arbitration award, at the plaintiffs cost. The plaintiff appealed, claiming that the lower court erred Lin failing to confirm the arbitration award and in granting the exception of no right of action.

ARBITRATION

FIA argues that the trial court erred in failing to confirm and recognize the arbitration award. This argument is without merit.

Arbitration is a process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. The object of arbitration is the speedy disposition of differences through informal procedures without resort to court action. Conagra Poultry Company v. Collingsworth, 30,155 (La.App.2d Cir.1/21/98), 705 So.2d 1280.

Louisiana has adopted a policy favoring arbitration. Aguillard v. Auction Management ‘ Corporation, 2004-2804 (La.6/29/05), 908 So.2d 1; Broussard v. Compulink Business Systems, Inc., 41,276 (La.App.2d Cir.8/23/06), 939 So.2d 506. Arbitration in this state is governed by the Louisiana Arbitration Act found in La. R.S. 9:4201 et seq. La. R.S. 9:4201 provides:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

La. R.S. 9:4209 provides that, at any time within one year after the award is made, any party to the arbitration may apply to the court in and for the parish within which the award was made for an order confirming the Laward and thereupon the court shall grant such an order unless the award is vacated, modified, or corrected as prescribed in La. R.S. 9:4210 and 9:4211. La. R.S. 9:4210 provides:

In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
A. Where the award was procured by corruption, fraud, or undue means.
B. Where there was evident partiality or corruption on the part of the arbitrators or any of them.
C. Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
Where an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.

La. R.S. 9:4211 states:

In any of the following cases the court in and for the parish wherein the award was made shall issue an order modifying or correcting the award upon the application of any party to the arbitration.
A. Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
B. Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted.
|BC. Where the award is imperfect in matter of form not affecting the merits of the controversy.
The order shall modify and correct the award so as to effect the intent thereof and promote justice between the parties.

La. R.S. 9:4213 specifies in pertinent part that notice of a motion to vacate, modify, or correct an award shall be served upon the adverse party or his attorney within three months after the award is filed or delivered, as prescribed by law for service of a motion in an action. According to FIA, under this provision, the defendant had three months following the filing or delivery of the arbitration award in which to assert any grounds that he may have had for vacating, modifying, or correcting the award. Due to the expiration of this time period without any action by the defendant to seek to attack the arbitration award, FIA contends that any objections by the defendant have prescribed and the lower court could not have entertained any arguments raised by the defendant for any reason. FIA further asserts that the statutory scheme for arbitration precludes the lower court from addressing the merits of the award. FIA points out that arbitration is favored and the scope of review of such awards is narrow. Based upon these factors, FIA maintains that the lower court had no choice but to affirm the arbitration award and erred in failing to do so.

In examining the lower court judgment, it is clear that court did not consider or rule upon the objections to the arbitration award raised by the defendant in his answer. The only issue considered and ruled upon, in the short hearing held in the lower court, was the exception of no right of action. As discussed below, the lower court did not consider the issues [ ^regarding confirmation of the arbitration award because FIA failed to show that it was the proper party to petition for confirmation of the award. Because the lower court did not rule upon these issues, there is no judgment rejecting the substantive claims of FIA to enforce the award. Therefore, FIA’s argument in this regard is without merit.

RIGHT OF ACTION

The plaintiff argues that the trial court erred in sustaining a peremptory exception of no right of action raised by the defendant orally at the hearing in this matter. This argument is without merit.

Generally, an action can only be brought by a person having a real and actual interest which he asserts. La. C.C.P. art. 681; Downs v. Hammett Properties, Inc., 39,568 (La.App.2d Cir.4/6/05), 899 So.2d 792. The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action. La. C.C.P. art. 927(5). The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit. Downs v. Hammett Properties, Inc., supra; North Central Utilities, Inc. v. East Columbia Water District, 449 So.2d 1186 (La.App. 2d Cir.1984).

La. C.C.P. art. 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

[7The decision to allow amendment of a pleading to cure the grounds for a peremptory exception is within the discretion of the trial court. Downs v. Hammett Properties, Inc., supra.

The defendant was correct in asserting that there is no showing in the record that FIA has the right to enforce an arbitration award in favor of MBNA. There is no dispute that MBNA had the right to assign the arbitration award to another party. While MBNA may have assigned the arbitration award to FIA and FIA may, by virtue of the assignment, be entitled to • seek enforcement of the arbitration award, FIA made, no showing that such an assignment was, in fact, made. Without this basic showing, the trial court was correct in sustaining what, in essence, was an oral peremptory exception of no right of action raised by the defendant.

Further, there is no merit to FIA’s complaint that the exception was raised for the first time orally at the hearing on this matter. We recognize that exceptions are pleadings which are to be made in writing. La. C.C.P. art. 852. Accordingly, an oral exception is not proper. However, La. C.C.P. art. 927 specifies that the failure to disclose a right or interest in the plaintiff to institute the suit may be noticed by either the trial or appellate court of its own motion. Therefore, even though the exception of no right of action was not properly raised by the defendant, it was proper for the trial court to address the exception and it is properly before this court for review. See Murrill v. Edwards, 613 So.2d 185 (La.App. 1st Cir.1992), writ denied, 614 So.2d 65 (La.1993). Also, we find that the lower court could properly |sdecide the exception of no right of action which goes to the heart of the fundamental fairness of the arbitration award.

FIA simply failed to make any showing that it was entitled to seek enforcement of the arbitration award in this case. Based upon the record before us for review, the trial court was correct in sustaining the exception of no right of action raised by the defendant. We affirm that portion of the trial court judgment.

However, we find that the trial court erred in dismissing the matter with prejudice. Rather, the trial court should have granted FIA the opportunity to amend its petition to state a right of action in this matter. La. C.C.P. art. 934 provides that when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. We amend the trial court judgment to make the dismissal without prejudice and remand to allow FIA an opportunity to amend the petition to show that it has a right of action to enforce the arbitration award in this matter against the defendant, and to provide documentation, if needed. If FIA is able to remove the grounds for the exception of no right of action, then this matter shall proceed for the lower court to also consider the merits of this matter, within the legal parameters set forth above.

CONCLUSION

For the reasons stated above, that portion of the judgment sustaining the exception of no right of action is affirmed. However, the judgment is |8amended to make the dismissal without prejudice and to allow the plaintiff 15 days from the rendition of this judgment in which to amend the petition to show that the plaintiff, FIA Card Services, N.A., has a right of action to enforce the arbitration award in this matter against the defendant, Bryan Scott Gibson. If this showing is made, then this matter shall then be heard on the confirmation of the arbitration award.

AMENDED AND AFFIRMED; REMANDED.

BROWN, C.J., concurs with written reasons.

BROWN, Chief Judge,

Concurring.

11This was a hearing/trial of plaintiffs motion/petition, and plaintiff simply failed to prove its case. I agree that the trial court was correct in dismissing the action. I would not characterize it an exception of no right of action and would affirm the dismissal with prejudice.

      . Even though the review of arbitration awards is limited to the grounds set forth in the Louisiana Arbitration Act, the appellate court’s function is to determine whether the arbitration proceedings have been fundamentally fair. Montelepre v. Waring Architects, 2000-0671 (La.App. 4th Cir.5/16/01), 787 So.2d 1127.


author: LOLLEY, J.

text:
    STATE of Louisiana, Appellee, v. Maveon JONES, Appellant.
    No. 43,115-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.

      Maveon Jones, Pro Se.
    William J. Franklin, for Appellant.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Laura W. Fulco, Assistant District Attorneys, for Appellee.
    Before STEWART, MOORE and LOLLEY, JJ.
   LOLLEY, J.

hThe defendant, Maveon Jones, appeals a judgment of the First Judicial District Court, Parish of Caddo, Louisiana, following his guilty plea of manslaughter. He was sentenced to serve 33 years of imprisonment at hard labor and payment of court costs or 30 days in default of payment. Jones’s appellate counsel has filed a motion to withdraw, along with an Anders brief in support of the motion. The state declined to file a brief in the matter, noting appellate counsel’s Anders brief. On January 16, 2008, this court notified Jones that he may file a brief in this appeal within 30 days of its order; however, Jones has not requested the record and has not filed any brief. Accordingly, the motion to withdraw is granted, and Jones’s conviction is affirmed; however, due to an error patent in his sentencing, Jones’s sentence is amended, and as amended, affirmed.

Facts

Jones was charged by indictment with the first degree murder of Johnny L. Johnson, Jr., in violation of La. R.S. 14:30. As part of a plea bargain agreement, Jones pled guilty to the responsive charge of manslaughter, a violation of La. R.S. 14:31, with the understanding that his sentencing range would be between 25 and 40 years of imprisonment at hard labor. Ultimately, Jones was sentenced to serve 33 years’ imprisonment at hard labor and payment of court costs or 30 days in default of payment. Jones filed several motions to reconsider sentence which were denied by the trial court. This appeal ensued.

|2Discussion

Jones was appointed appellate counsel, who has filed an Anders brief seeking to withdraw on the grounds that after “a conscientious review of the record,” he could find no non-frivolous issues to raise on appeal. See Anders, supra; State v. Mouton, 1995-0981 (La.04/28/95), 653 So.2d 1176; State v. Benjamin, 573 So.2d 528 (La.App. 4th Cir.1990). As required, Jones’s appellate counsel’s brief outlines the facts and procedural history of the case. See State v. Jyles, 1996-2669 (La.1997), 704 So.2d 241. Jones’s appellate counsel further verifies that he has mailed copies of the motion to withdraw and his brief to Jones in accordance with applicable jurisprudence. In accordance with the applicable jurisprudence, appellate defense counsel also notified Jones of his right to file a pro se brief and sought to withdraw from the case. This court held the motion to withdraw in abeyance and advised Jones of his right to file an appellate brief within 30 days of this court’s January 9, 2008, order deferring a ruling on counsel’s motion to withdraw. As of this date, Jones has not responded to the notice.

We note that in this case the Anders brief filed by Jones’s appellate counsel was sufficient in light of the fact that Jones ultimately pled guilty. As noted in State v. Jyles, supra at 241, “a brief which offers ‘no hint of a discussion of arguments that might be raised and why counsel believes them to be frivolous’ does not comply with Anders” (citation omitted). It is not sufficient to make the naked statement that no non-frivolous issues exist, [abut the appellate counsel “must demonstrate to the appellate court by full discussion and analysis that he has cast an advocate’s eye” over the entire record. Id. (citations omitted).

We have thoroughly examined the entire appellate record-all of the pleadings filed in the trial court, all of the trial court proceedings, the bill of information, and all transcripts contained in the record. We note that Jones was properly charged by bill of information. Jones was present in court and represented by counsel at all important states of the proceedings. His guilty plea complied with the law. The record reflects no error up until Jones’s sentencing. However, our review of the record does reveal an error patent in regards to Jones’s sentence.

At sentencing, the trial court sentenced Jones to pay court costs or in default to serve 30 days in jail, which was in error. An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983); State v. Monson, 576 So.2d 517 (La.1991); State v. Kerrigan, 27,846 (La.App.2d Cir.04/03/96), 671 So.2d 1242. A defendant’s claim of indigence in such a situation may be discerned from the record. State v. Conway, 604 So.2d 205 (La.App. 2d Cir.1992), writ denied, 610 So.2d 797 (La.1993); State v. Williams, 484 So.2d 662 (La.1986). The record shows that the defendant was and is an indigent. Jones was represented at trial and on appeal by the indigent defenders’ office and the Louisiana Appellate Project, respectively. Therefore, the portion of the sentence imposing additional jail time for failure to pay the fine is vacated.

|4No other errors were found in the review of the record. The motion to withdraw is granted, and Jones’s conviction is affirmed. The sentence is amended to delete the portion of the sentence requiring jail time in default of the payment of the court costs. In all other respects, the sentence is affirmed.

MOTION GRANTED; CONVICTION AFFIRMED; SENTENCE AMENDED, AND AS AMENDED, AFFIRMED.

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

      . Jones was inadvertently omitted from the mailing list when the order was originally mailed on January 9th. As a result, he was later informed of the order and allowed additional time for requesting the record and seven more days for filing his brief.


text:
    STATE of Louisiana, Appellee, v. Jeffery WINN, Appellant.
    No. 43,114-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.
    Rehearing Denied April 18, 2008.

      John Cucci, Jr., Shreveport, for Appellant.
    Jeffery Winn, Pro se.
    Paul J. Carmouche, District Attorney, Catherine M. Estopinal, Lea R. Hall, Jr., Brady D. O’Callaghan, Assistant District Attorneys, for Appellee.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   STEWART, J.

pThe defendant, Jeffery Winn, was convicted of second degree murder and sentenced to life imprisonment at hard labor without benefits. He appeals his conviction, urging that the trial court erred in allowing “other crimes” evidence to be introduced at trial. Finding no merit to the assignment of error, we affirm the defendant’s conviction and sentence.

FACTS

On the morning of August 11, 2005, Shreveport police officers responded to a reported stabbing at a Fina gas station. The victim, Eddie Savannah, Jr., was found lying face down on the pavement in front of the store entrance in an enormous pool of blood. He had no pulse. Savannah suffered approximately 22 lacerations and stab wounds to his head, face, neck, back, and chest.

Within seconds of the 911 call, officers en route to the scene saw the defendant running on the sidewalk near David Raines Road and Skelly Street. The defendant was holding a bloody knife and had blood on his hands and shirt. Officer Daniel Denby ordered the defendant to drop the knife and to get down on the ground. The defendant complied and was handcuffed. The knife was secured, and two .357 handguns were taken from the defendant’s pockets. Because the defendant had a large cut on his left index finger, he was taken to an emergency room for treatment before being transported to the police department.

After being advised of and waiving his Miranda rights, the defendant gave a free and voluntary recorded statement in which he admitted killing the victim. He attempted to justify the murder by claiming that the victim !¡>had raped him 10 or 11 years ago and threatened to do so again. He also claimed that the victim and his family have continually taunted him about the rape, thrown rocks at his house, and urinated on his house and yard. There was no police report of the alleged prior rape to substantiate the defendant’s claims.

DNA testing revealed that the DNA profile of the blood sample from the blade of the. knife taken from the defendant was consistent with the DNA profile of the victim. Also, the DNA profile of the blood sample from the knife’s handle was consistent with the defendant being the major contributor and the victim being the minor contributor.

The defendant was charged by bill of indictment with second degree murder. On the day of the trial, the defendant withdrew his plea of not guilty and entered a plea of not guilty and not guilty by reason of insanity. The state’s case was consistent with the facts set forth herein-above.

The defendant took the stand for the defense. He admitted that he stabbed Savannah and knew that what he was doing at the time was wrong. He explained that Savannah had driven by him on the way to the gas station, rolled down his car window, and said that he and his family would “get” the defendant. The two men then “got into it” at the gas station. The defendant told the jury that he had nothing against Savannah, but he then made the allegation that Savannah had raped him years ago. He explained that his then live-in girlfriend, Diane Dotie, had let Savannah and two other men into his house. He alleged that they covered his eyes and held him down, and he stated that he awoke the next morning to find that he had two needle | amarks on him and a sore “behind.” However, the defendant neither sought treatment at a hospital nor reported the alleged attack. He claimed that he was embarrassed, that the Savannah family “gets away with murder” and that reporting would have done no good. He claimed to have heard that the same three people were going to either rape him again or kill him. Therefore, he carried the two guns and the knife for his protection. The defendant also suggested that the Savannah family had previously sold drugs from his house, and he believed that money or drugs might still be hidden somewhere in the house. He also claimed that people threw rocks at and urinated on his house. On cross-examination, the defendant admitted to a prior conviction for “selling a little of weed,” but he denied that approximately $14,000 found in a safety deposit box was drug money. He claimed to have inherited the money from his father.

To support the claim of insanity, the defense called Sergeant H.H. Hopkins of the Shreveport Police Department. Hopkins had responded to a complaint in July 2005, by a Dion Savannah alleging that the defendant had thrown a brick at him without provocation. Hopkins testified that the defendant was agitated and rambled Bible verses. He advised defendant’s family to contact the coroner’s office “to have him committed.” However, Hopkins admitted to having no psychological training, and no medical evidence was presented to support the plea of insanity.

On rebuttal, the state called Diane Do-tie, who testified that she dated the defendant from the late 1980’s until 1995, and that she knew the victim. She denied allowing anyone to enter the defendant’s home to drug and rape l4him. She also denied any knowledge of a grudge against the defendant by the victim or his family. Dotie related an incident in 2004, when the defendant approached her in a car while she was walking. They “had words,” after which he showed her a gun and threatened to kill her by shooting her in the back. He told her that he would “beat the charge” by pleading insanity. Knowing him to be abusive, she immediately reported the threat to the police. The trial court overruled the defense’s objection to the admissibility of this testimony.

The jury returned a unanimous verdict of guilty as charged of second degree murder. The trial court denied the defendant’s motions for new trial, post-verdict judgment of acquittal, and arrest of judgment based on the inadmissibility of Do-tie’s testimony. The trial court ruled that her testimony was completely relevant and proper rebuttal testimony. The sentence of life imprisonment at hard labor and without benefits was imposed. This appeal followed.

DISCUSSION

The defendant’s sole assignment of error is that the trial court erred in allowing “other crimes” evidence at trial, namely the testimony of Diane Dotie. He claims that Dotie’s testimony was adduced without prior notice and in violation of the Louisiana Code of Evidence, and he claims her testimony resulted in a “poisoning of the jury” and an unfair trial. He asserts that Dotie’s testimony related a “second hand story” suggesting his bad character and bore no relevance to any issue at trial. Moreover, he ^asserts that the probative value of her testimony did not outweigh its prejudicial effect.

The state responds that the defendant obtained through discovery a copy of the police report on Dotie’s complaint about the defendant’s threat to her. The state also maintains that prior notice was not necessary, because the defendant’s testimony made the other crimes evidence relevant. Finally, the state asserts that the trial court’s decision to admit the evidence is entitled to great weight and that any error resulting from the allowance of Do-tie’s testimony was harmless considering the overwhelming evidence of the defendant’s guilt.

Generally, evidence of other acts of misconduct is not admissible due to the risk that the defendant will be convicted of the present offense on the basis that the unrelated evidence establishes him or her as a “bad person.” La. C.E. art. 404(B)(1); State v. Jackson, 625 So.2d 146, 148 (La. 1993). This exclusionary rule stems from the “substantial risk of grave prejudice to the defendant” from the introduction of evidence regarding his unrelated criminal acts. State v. Prieur, 277 So.2d 126, 128 (La.1973). However, statutory and jurisprudential exceptions exist when the “evidence of other acts tends to prove a material issue and has independent relevance other than showing that the defendant is a man of bad character.” State v. Silguero, 608 So.2d 627, 629 (La.1992).

Admission of other crimes evidence requires an independent and relevant reason, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or when it relates Lto- conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding. La. C.E. art. 404(B)(1); State v. Roberson, 40,809 (La.App.2d Cir.4/19/06), 929 So.2d 789. Still, evidence of other crimes is not admissible under Article 404 unless it tends to prove a material fact at issue or to rebut a defense, and the probative value of the extraneous crimes evidence outweighs its prejudicial effect. La. C.E. art. 403; State v. Jacobs, 99-0991 (La.5/15/01), 803 So.2d 933, 951, cert. denied, 534 U.S. 1087, 122 S.Ct. 826, 151 L.Ed.2d 707 (2002).

Explaining the state’s duty relative to the admission of other crimes evidence, the supreme court in State v. Silguero, supra, stated:

Within a reasonable time before trial the state must furnish defendant with a statement in writing of the criminal acts or offenses it intends to offer in evidence specifying the exception to the general exclusionary rule upon which it relies for admissibility. State v. Prieur, 277 So.2d 126 (La.1973); La. C.E. art. 1103. Absent evidence that the state evaded Pri-eur notice requirements by deliberately reserving its other crimes evidence for cross-examination or rebuttal, the Pri-eur notice requirements do not apply where, as here, defendant, through his own testimony, makes the other crimes evidence relevant. (Citation omitted.)
The record does not reveal that the state withheld the other crimes evidence in its case-in-chief to circumvent Prieur notice requirements. Thus, under the circumstances, the other crimes evidence was admissible without Prieur notice.

Silguero, 608 So.2d at 630. (Emphasis added).

A trial court’s ruling on the admissibility of other crimes evidence will not be overturned absent an abuse of discretion. State v. Cooks, 36,613 (La.App.2d Cir.12/04/02), 833 So.2d 1034. Moreover, the erroneous introduction of other crimes evidence is subject to harmless error review to determine whether the verdict rendered was surely unattributable to the alleged error. Id.

[7Clearly, the record supports the trial court’s ruling that the contested evidence was admissible. The defendant has not shown that the trial court abused its discretion in allowing Dotie’s testimony. The rebuttal testimony by Dotie regarding the defendant’s “other crimes, wrongs or acts” was offered to show his motive, intent, or plan to use insanity to avoid punishment, and it was admissible to rebut the defendant’s insanity defense. The probative value of the testimony more than outweighed any prejudicial effect considering the magnitude of the evidence establishing the defendant’s guilt. Furthermore, there is no evidence that the state evaded the Prieur notice requirements by deliberately reserving this other crimes evidence for rebuttal. The defendant’s testimony, particularly his allegations about the Savannahs and the alleged rape, made the other crimes evidence relevant. Therefore, the Prieur notice requirements do not apply under the circumstances of this case.

Even if the admissibility of the rebuttal testimony by Dotie was found to be in error, it would be considered harmless error. The verdict of guilt was supported by other evidence, including the defendant’s own testimony, that more than sufficed to prove that he committed second degree murder of Eddie Savannah, Jr., by stabbing him numerous times.

We find, as did the trial court, that the rebuttal evidence of other crimes, wrongs or acts was admissible.

CONCLUSION

Finding no merit to the defendant’s assignment of error, we affirm his conviction and sentence.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, STEWART, PEATROSS and MOORE, JJ.

Rehearing denied.


text:
    John MENEWEATHER, Plaintiff-Appellant, v. SHELTER INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 43,109-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 19, 2008.
    Rehearing Denied April 24, 2008.

      Anthony J. Bruscato, Monroe, for Appellant.
    Hudson, Potts & Bernstein by Donald H. Zeigler, III, Jay P. Adams, Monroe, for Appellees, Shelter Ins. Co. and Louis Thomas.
    Before STEWART, GASKINS and DREW, JJ.
   STEWART, J.

| ¶ John Meneweather appeals the trial court’s judgment entered in favor of Louis Thomas and Shelter Mutual Insurance Company. Finding no merit in his claims, we affirm the trial court’s judgment.

FACTS

This case arises out of an accident that occurred on April 26, 2006. Louis Thomas, a roofer, collects scrap metal to sell on trash days when he does not have a roofing job scheduled. In the early morning of April 26, 2006, Mr. Thomas and his friend, Mr. Clark, began collecting scrap metal. They collected two refrigerators, which they laid side by side in the bed of Mr. Thomas’s pickup truck. Mr. Thomas and Mr. Clark also discovered a chain link metal gate, which they laid flat across the top of the refrigerators.

After Mr. Thomas and Mr. Clark loaded the chain link gate onto the pickup truck, they proceeded down Florida Street, a two-way road with no physical separation. Mr. Thomas parked his truck on the right side of the southbound lane of Florida Street to retrieve a microwave from a ditch on the other side of the road. He testified that because the road was narrow, his truck completely blocked the southbound lane. Mr. Thomas stated that the chain link metal gate protruded at least six to eight inches from the left side of the truck.

Mr. Meneweather, who was traveling in the southbound lane of Florida Avenue, approached Mr. Thomas’s pickup truck at a speed of approximately five to ten miles per hour. Because Mr. Thomas’s truck was blocking the southbound lane, Mr. Me-neweather had to go into the northbound lane in order to pass Mr. Thomas’s truck. As Mr. Meneweather 12passed Mr. Thomas’s truck, his vehicle collided with the chain link metal gate that was protruding from the left side of the truck.

Mr. Meneweather subsequently filed suit, contending that he incurred property damage, as well as personal injury, from a car accident caused by the negligence of Mr. Thomas. The defendants in this matter are Mr. Thomas and Shelter Insurance Company.

Taking into consideration Mr. Menew-eather’s conflicting statements regarding his injuries and the nature of the accident, the trial court rendered judgment in favor of Mr. Thomas and Shelter Insurance Company. The trial court found Mr. Me-neweather 100 percent at fault and explained:

After considering all offerings submitted by this Court in advance of and in opposition to the filed claim, this Court notes that the credibility of Mr. Thomas and Mr. Clark weighs more favorably with this Court than the credibility of Plaintiff. Too, the provisions of law relating to the duty of a passing motorists along with the fact that the Plaintiff clearly failed to see what, he should have seen causes the Court to reject the claims of Plaintiff.

Mr. Meneweather now appeals the judgment, arguing that the trial court erred in finding him solely at fault in causing the collision. In support of the trial court’s judgment, Louis Thomas and Shelter Mutual Insurance Company assert that the trial court did not err in rendering the judgment in them favor, after finding that Mr. Thomas and Mr. Clark were more credible than Mr. Meneweather.

DISCUSSION

Mr. Meneweather contends that the trial court’s determination that Mr. Thomas was completely free of fault was manifestly erroneous. More specifically, Mr. Menew-eather argues that even if the testimonies of Mr. 13Thomas and Mr. Clark are correct in all respects, they do not hide the fact that Mr. Thomas is at fault in causing the collision. Additionally, Mr. Meneweather alleges that the trial court erred in failing to reach the issue of quantum.

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Id. at 1333.

The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the trier of fact’s conclusion was a reasonable one. Stobart v. State of Louisiana, Through Department of Transportation and Development, 617 So.2d 880 (La.1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have ruled differently. Id. at 882-883.

When the findings by the trier of fact are based on credibility, respect must be given to the fact finder’s determination, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on understanding and believing what is said. Bolton v. Louisiana State University Medical Center, 601 So.2d 677 (La.App. 2 Cir.1992). A factfin-der’s determination of credibility is subject to the manifest error |4standard of review. Thibodeaux v. Jurgelsky, 04-2004, (La.3/11/05) 898 So.2d 299, 316.

In the present case, there is conflict in the testimony of Mr. Meneweather on a number of crucial points, including Mr. Meneweather’s personal injuries from the accident in question and previous damages that his pickup truck has incurred.

At the scene of the accident, Mr. Meneweather stated that he was not injured. Two days after the accident, Mr. Meneweather gave a statement to Mr. Thomas’s insurer, Shelter Insurance Company, again stating that he was not injured. However, Mr. Meneweather testified at trial that he did begin to feel pain a couple of days after the accident, but did not mention this fact to the insurer because he only wanted to get his truck repaired. He stated that he was afraid that if he asserted a personal injury claim, he would have more difficulty getting his truck fixed.

Additionally, Mr. Meneweather initially testified at trial that his truck had never been damaged before the accident in the instant case. He later admitted that his truck had been damaged on one other occasion when he scraped it on a parking post at a gas station.

Mr. Meneweather also denied being involved in any prior accidents, when in fact he had. Mr. Meneweather revealed in his deposition that he was involved in three additional accidents, the first occurring in 1994 and the later two in 2005.

Considering the conflicts in Mr. Menew-eather’s testimony, the trial court was not manifestly erroneous in dismissing Mr. Meneweather’s | ^claims. The trial court correctly found Mr. Meneweather’s credibility lacking, after he admitted that he had previously lied with respect to his personal injury claim in this case, the existence of damages to his truck and the prior accidents that he had. Therefore, Mr. Meneweather’s claim lacks merit. Because we are affirming the trial court’s judgment, there is no need to address the issue of quantum.

CONCLUSION

After a thorough review of the record, we cannot say that the findings of the trial court made in favor of the defendants were manifestly erroneous. Accordingly, we affirm the trial court’s judgment. Costs of the appeal are assessed to the appellant.

AFFIRMED.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, GASKINS, CARAWAY and DREW, JJ.

Rehearing denied.


author: CLARENCE E. McMANUS, Judge.

text:
    Wayne COLBERT and Dawn Colbert v. BANK ONE/J.P. MORGAN CHASE.
    No. 07-CA-846.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 25, 2008.
    Rehearing Denied April 21, 2008.
    Robert G. Harvey, Sr., Attorney at Law, New Orleans, LA, for Plaintiffs/Appellees.

      John W. Hite, III, Salle, Hite, Rivera & Mercer, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

\ STATEMENT OF THE CASE

Plaintiffs, Wayne and Dawn Colbert, filed a Rule to Show Cause on August 19, 2005 naming JPMorgan Chase, formerly Bank One (“Chase”) as defendant. Wayne Colbert was employed by Chase as a branch manager. Dawn Colbert was employed by Chase as a Senior Training Specialist. Wayne Colbert received a letter, dated May 4, 2005, from the District Manager of Chase advising that his employment had been terminated. Dawn Colbert received a telephone call from the manager at the branch where she worked on May 5, 2005 advising that her employment had been terminated.

Wayne and Dawn Colbert received a letter dated May 5, 2005 from John C. Holt of Global Corporate Security for Chase. This letter advised the Colberts that Chase had chosen to close their Ban-kOne accounts and they were not to enter any branch of Chase or its affiliates, even during business hours. The letter stated that “[y]our JPMorganChase/BANK ONE CORPORATION accounts are being closed and all business relationships between you and this corporation are being ended.”

In response, Wayne and Dawn Colbert each sent a letter, dated May 10, 2005, to the Personnel Department of the Bank One branch on Severn Ave. in Metairie, Louisiana, stating that any wages, including benefits, vacation, etc. should be sent to 2668 Foliage Drive, Marrero, Louisiana 70072 immediately. The Colberts allege Chase never paid them the wages plus vacation time they were ^entitled to. Therefore, pursuant to LSA-R.S. 23:631 and 23:632, the Louisiana Wage Payment Statute, the Colberts sought these wages and vacation pay plus penalties, attorneys’ fees and costs from Chase.

Following discovery, Chase filed a Motion for Summary Judgment on January 9, 2007. Chase contended that payment of wages and vacation time had been timely paid to both Wayne and Dawn Colbert. Chase contended that both employees had authorized Chase to direct deposit their wages into their Bank One checking account while employed and this authorization had never been rescinded. Chase stated that Wayne was entitled to a gross amount of $1,133.21, which represented 45.33 hours of work at $24.999077 pre hour, plus 5.33 hours of unused vacation, and 8 unused floating holiday hours. Chase claims the net amount due to Wayne after taxes and benefits, was $971.72. Chase claims this amount was deposited into Wayne’s Bank One checking account by direct deposit on May 15, 2005.

Chase claims Dawn was entitled to a gross amount of $1,076.81, which represented 53.33 hours of work at $20.191531 per hour, 13.33 unused vacation hours, and 16 unused floating holiday hours. Chase mistakenly calculated the gross amount due to Dawn $1,750.00. The net amount due to Dawn, based on the mistaken calculation, and after taxes and benefits, was $1,349.03. This amount was deposited into Dawn’s Bank One checking account on May 13, 2005.

Tom Murray, District Manager of Chase’s retail banking district for this area, and Wayne Colbert’s direct supervisor, had also sent a letter to the Colberts on May 5, 2005 informing them that Chase had exercised its right to close their deposit accounts and enclosed checks for the balances in each account as of that date. The letter also advised the Colberts that their three other accounts, an IRA, a mortgage, and an investment account, could not be closed and the Colberts were | responsible for closing those accounts at their earliest convenience. Before this letter was sent, Murray had taken the steps necessary in the computerized retail account management system to close the Colberts’ deposit accounts and the accounts were closed.

However, the checking account ending in 3878, which was the account designated for direct deposit of the Colberts paychecks, was re-activated and re-opened on May 11, 2005. In the Chase banking system, the pre-authorized deposit of money into a closed checking account, where the authorization date precedes the date the account was closed, re-activates the account and re-opens it for all purposes. A travel expense reimbursement for Wayne Colbert was authorized before the account was closed and when this deposit of $865.49 was made into the checking account ending in 3878, this closed checking account was re-opened.

Wayne and Dawn Colbert both had direct deposit of their paychecks into their Bank One checking account ending in 3878 during the course of their employment with Chase. Chase’s payroll system is automated and the payroll department only becomes aware of the closure of a direct deposit account if a payroll direct deposit attempt is rejected by the bank. If that happens, payroll will issue a live check and mail it to the last known address of the employee. Chase’s automated payroll system attempted to deposit the Colberts’ final paychecks into the checking account ending in 3878, on May 13 and 16, 2005, and the checking account did not reject the deposit. Therefore, the Colbert’s last paychecks were direct deposited into their Bank One checking account and the payroll department was not alerted to any possible closure of the checking account.

The Colberts never contacted Tom Murray, nor any other employee of Chase, to inquire about the status of their final paychecks, prior to filing the Rule to Show Cause. Chase does recognize that it received letters from both Wayne and | RDawn on May 10, 2005 stating they would like their final paychecks mailed to their home. However, no action was taken because the letter did not revoke the authorization previously given to Chase to direct deposit their paychecks into their checking account. Chase contends that the Col-berts received their final pay in the same manner they had customarily received it during their employment.

Chase also contends that the Colberts logged into the Chase online banking system on June 2 and 13, 2005. Chase argues that the balance and activity for the Col-berts’ checking account ending in 3878 would have been visible on the opening screen after each of these log-ins. In addition, paper statements were mailed to the Colberts’ home address monthly. The statement for the time period of May 11, 2005 through June 9, 2005, and those thereafter, would have reflected the deposits. Therefore, Chase argues the Colberts knew their final paychecks had been deposited directly into their checking account and the Colberts had access to these funds.

Chase’s motion for summary judgment was heard on February 17, 2007 and denied on that day. Also on that day, the trial court, with no objections from the parties, granted judgment on the summary proceedings in favor of the plaintiffs. The trial court ruled in open court the day of the hearing, and signed a written judgment on April 24, 2007. The trial court awarded Wayne Colbert $1,133.21 in past wages, plus ninety days of penalty wages totaling $17,999.34, twenty-five percent attorney fees, all costs and interest. The trial court awarded Dawn Colbert past wages of $1,076.81, plus ninety days of penalty wages totaling $14,537.90, twenty-five percent attorney fees, all costs and interest.

Chase filed a Motion for New Trial which was denied on June 29, 2007. Chase now appeals. For the reasons which follow, we reverse the trial court’s judgment.

| «DISCUSSION

On appeal, Chase argues six assignments of error. By assignments of error numbers one, three, and four Chase argues the trial court erred by ruling that Chase’s timely deposit of the full amount of the final paychecks into the account of terminated employees, Wayne and Dawn Colbert, did not comply with La. R.S. 23:631 (Louisiana Wage Statute). Chase also argues the trial court erred by finding that the plaintiffs did not know that Chase had deposited their last paychecks into their account, when it was undisputed that the plaintiffs had twice accessed their account online subsequent to the deposit and it was undisputed that Chase had mailed monthly statements to the plaintiffs reflecting the deposit of the paychecks into their account. Next, Chase argues the trial court erred by requiring Chase to pay plaintiffs the same wages it had already deposited into their account, constituting a double recovery.

La. R.S. 23:631 provides, in part:

A. (l)(a) Upon the discharge of any laborer or other employee of any kind whatever, it shall be the duty of the person employing such laborer or other employee to pay the amount then due under the terms of employment, whether the employment is by the hour, day, week, or month, on or before the next regular payday or no later than fifteen days following the date of discharge, whichever occurs first.
(2) Payment shall be made at the place and in the manner which has been customary during the employment, except that payment may be made via United States mail to the laborer or other employee, provided postage has been prepaid and the envelope properly addressed with the employee’s or laborer’s current address as shown in the employer’s records.

We find Chase did not fail to pay or refuse to pay the Colberts their final paychecks after termination. We find Chase paid the Colberts the amounts due to them, within fifteen days of their termination, and in a manner which had been customary during their employment. We recognize that a Chase employee sent a [7letter to the Colberts indicating that their accounts were closed, and subsequently them paychecks were direct deposited into one of the supposedly closed accounts. We also note that the Colberts requested by letter that their paychecks be mailed to their home address.

However, we also must recognize that the Chase payroll system is automated, therefore, when the paychecks were requested, the computerized system handled the payment in the same manner in which it had for the Colberts’ entire employment with Chase. The computerized system paid the Colberts by direct deposit. While this might not have been the most efficient manner in which to handle this matter, we do not find it to be a refusal to pay by Chase.

Therefore, we find that Chase did not violate La. R.S. 23:631. Chase paid the Colberts their final paychecks, within fifteen days of termination, and in a manner which had been customary during their employment. The statute does provide that payment may be mailed, however, the employer is not required to do so. Despite the mix-up with the account closure and re-opening, we find Chase timely paid the Colberts, in accordance with La. R.S. 23:631.

In addition, we find the Colberts knew, or should have known, that their paychecks had been deposited in their checking account and they had full access to these funds. Chase records indicate the Colberts logged into their online banking system and accessed their accounts twice in June 2005 and received paper statements which would also have indicated these deposits. As former Chase employees, the Colberts had knowledge of the banking system and there is no reason to believe they did not have knowledge that the paychecks had been deposited into their account. Those funds still remain in the checking account of the Colberts and they continue to have access to those funds for withdrawal at any time.

IsBased on the above, we find the trial court erred in finding that Chase had failed to timely pay the Colberts their final paychecks in violation of La. R.S. 23:631. We reverse the award of past wages of $1,133121 for Wayne Colbert and $1,076.81 for Dawn Colbert and find that these amounts remain in their Chase banking account for their withdrawal at any time.

By assignments of error number two and five, Chase argues the trial court erred by finding that it had acted in “bad faith” pursuant to the Louisiana Wage Statute. Chase argues it was undisputed that Chase had timely direct deposited the full amount of the last paychecks into the account of the plaintiffs, which was the ordinary and customary manner of paying the plaintiffs during their employment. In addition, Chase argues it was undisputed that at all times Chase fully believed it had complied with the Louisiana Wage Statute and the trial court erred by allowing the plaintiffs to manufacture and create a claim under the Louisiana Wage Statute and wrongfully enrich themselves with penalties and attorney’s fees and cause needless, frivolous and unnecessary litigation.

La. R.S. 23:632 states:

Any employer who fails or refuses to comply with the provisions of R.S. 23:631 shall be liable to the employee either for ninety days wages at the employee’s daily rate of pay, or else for full wages from the time the employee’s demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. Reasonable attorney fees shall be allowed the laborer or employee by the court which shall be taxed as costs to be paid by the employer, in the event a well-founded suit for any unpaid wages whatsoever be filed by the laborer or employee after three days shall have elapsed from time of making the first demand following discharge or resignation.

Since we have found that Chase did not violate the provisions of La. R.S. 23:631, we find the Colberts are not entitled to penalties, attorney fees and costs pursuant to La. R.S. 23:632. We also agree with Chase that it did not act in bad | ¡¿faith. As discussed above, Chase’s payroll system is automated and the payments were made to the Colberts as they always had been. The Colberts did not contact Chase to indicate a problem. As far as Chase’s records were concerned, the Colberts had been timely paid. Chase was not aware of a problem. This is not a situation which warrants penalties due to a failure to pay. Again, we recognize the mix-up and issues related to the account closure and re-opening, however, we find this does not warrant the payment of penalties by Chase. We also find the Colberts are not entitled to attorney fees or costs.

Finally, by assignment of error number six, Chase argues the trial court erred by failing to give reasonable notice of the trial pursuant to La. C.C.P. art. 2594 and 2595, which require that a copy of the Order assigning the date of the trial be served upon the defendant, and the trial court further erred by deciding the summary proceeding based “on the pleadings.” We find the trial court did not err in deciding this summary proceeding on the pleadings. At the hearing on the motion for summary judgment, the trial court indicated that it was the court’s understanding that the parties had no objection to deciding the matter on the pleadings. Chase’s counsel was present at that hearing and indicated no objection. Therefore, we find the trial court properly moved forward with summary proceedings deciding the matter on the pleadings.

Accordingly, we reverse the judgment of the trial court awarding the Colberts past wages, penalties, attorney fees, and costs.

REVERSED.


author: CARAWAY, J.

text:
    Linda COUTEE, Plaintiff, v. Adrian HILL, et al, Defendants.
    No. 43,292-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 2008.
    Brenda F. Ford, Shreveport, for Defen-danL-Appellants, Willie J. Hill and Shirley Hill.
    Richard Z. Johnson, Jr., Baton Rouge, for Plaintiff-Appellee, Linda Coutee.
    W. Charles Brown, for Defendant>-Ap-pellee, Adrian Hill.
    Before BROWN, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

[ j After the mother’s death, the great aunt of the decedent’s daughter sued for custody of the 8-year-old child. The child’s father was an absentee, and plaintiff petitioned for a curator ad hoc to represent him. After a brief hearing at which only plaintiff appeared, the trial court awarded temporary custody of the child to the plaintiff. Three days after the notice of judgment was filed, the paternal grandparents petitioned to nullify the temporary custody order, asserting they received no notice of the initial hearing, and had exercised physical custody of the child both after the mother’s death and when the child was younger. The trial court refused to nullify its prior ruling for temporary custody. Because we find that the trial court’s rulings are not subject to appeal pursuant to La. C.C.P. art.2083, we dismiss the grandparents’ appeal.

Facts and Procedural History

Valerie L. Owens (“Owens”), the mother of T.K.O. (the now 9-year-old child), died from natural causes after a three month illness on August 21, 2007. Immediately prior to her death, Owens and her minor children, including T.K.O., resided with Owens’s maternal aunt, Linda Coutee (“Coutee”). The child’s father, Adrian M. Hill, resided in Dallas but his parents (T.K.O.’s paternal grandparents), Willie J. Hill and Shirley Hill (the “Hills”), lived in the same town as Owens and her family. Adrian Hill attended Owens’s funeral and at some point, exercised physical custody of IgT.K.O. along with his parents. In their allegations in this case, the Hills also claim prior periodic custody of T.K.O. when she was between 8 months and 4 years of age, and thereafter, on weekends until Owens became ill.

Coutee filed this petition for custody on September 4, 2007, naming Adrian Hill as the defendant. Her petition alleged that he resided in Texas and requested a curator be appointed to notify him of the proceeding. Coutee prayed for domiciliary custody of T.K.O. based on the children’s residing with her during Owens’s last illness, and Owens’s reputed desire that her children remain with Coutee to be raised together. The petition stated that Adrian Hill paid child support and visited T.K.O. sporadically. Coutee’s petition made no mention of the Hills’ relationship with T.K.O. but described the contest as only between herself and Adrian Hill.

On September 5, 2007, the trial court signed an order setting the initial custody hearing for October 16, 2007, and appointed a curator ad hoc. The trial court indicated on the order that “temporary custody was denied,” supporting the inference that T.K.O. was not in Coutee’s custody at that time.

At the October 16, 2007 hearing, at which only Coutee appeared, the trial court questioned her about Adrian Hill’s contact with T.KO. Coutee testified that before dying on August 21, 2007, Owens had been ill since May, and that Adrian Hill attended Owens’s funeral. Coutee testified that T.KO.’s father had not had any contact with T.K.O. since Owens’s funeral. The trial court left the record open for information concerning service returns and answers by the curator, and later that day, signed a judgment | .¡awarding Coutee temporary custody of T.K.O. pending a hearing on the matter. The judgment further ordered that counsel for the parties set the hearing date on the issue of permanent custody.

Three days later, on October 25, 2007, the Hills moved to set aside the judgment, alleging that Coutee’s custody was obtained by withholding information about their status as custodians and through the help of the local police. The Hills’ motion also requested that T.HO.’s custody be returned to them. The motion included a “Provisional Custody by Mandate” executed by Adrian Hill in favor of his parents on September 10, 2007, which alleged that the child resided at the same address as the grandparents, and invested them with the authority provided under the applicable law dealing with custody by mandate.

The court-appointed curator filed an answer in the proceeding on behalf of Adrian Hill on October 26, 2007. The answer made a general denial of Coutee’s allegations.

The Hills’ motion was heard on November 13, 2007. The trial court was notified by counsel for Coutee that Adrian Hill was presently incarcerated. The trial court then questioned counsel for Coutee and the Hills as follows:

THE COURT The question we have is this, at the time a curator was appointed, they did not know where he was. Is that right?
MR. JOHNSON That is correct, Your Honor.
|4MS. FORD That is alleged in the proceedings but that is not correct.
THE COURT Okay. What evidence do you have that they knew where this person was and was the person out of state even if they knew where he was? Is he in Dallas?
MS. FORD The person was out of state. However, the parent ...
THE COURT So the appointment of the curator and service on the curator was valid. Is that correct?
MS. FORD That is correct.
THE COURT Motion to set aside the judgment is denied. You need to use the proper procedural vehicle.

On November 15, 2007, the Hills obtained an order of appeal for the October 16, 2007 judgment and the trial court’s November 13, 2007 denial of their motion.

Discussion

This is a private custody matter initially instituted by a nonparent against the father of the child. The initial custody disposition in favor of the nonparent was made in the form of an interim order for “temporary custody,” pending trial for the award of permanent custody. Claiming rights as grandparents and through their son, the child’s father, the Hills have effectively intervened in this action seeking to annul the temporary custody award.

The award of custody of a child is made in accordance with the best interest of the child. La. C.C. art. 131. The various parties in this matter, the father, the grandparents, and the great aunt, may all seek custody in this case. Parental primacy for custody, of course, forms the foundation for any custodial claim by Adrian Hill. Nevertheless, Civil Code Article 133 addresses the award of custody in favor of a nonparent when a custody [fiaward to either parent would result in substantial harm to the child. See Hill v. Hill, 602 So.2d 287 (La.App. 2d Cir.1992). Additionally, the Hills, as grandparents, have standing for seeking visitation from the implications of various Louisiana statutes and for custody pursuant to Article 133. La. R.S. 9:344; La. C.C. art. 256(B); McCoy v. Brock, 41,948 (La.App.2d Cir.2/28/07), 953 So.2d 885.

Regardless of the potential rights .of all the parties to assert custody for T.K.O., the trial court was correct in overruling the Hills’ motion to set aside the temporary custody arrangement and in referring them to the “proper procedural vehicle” for the determination of custody.

Custody proceedings are summary proceedings conducted with rapidity, within the delays allowed by the court. La. C.C.P. arts. 2591 and 2592(8). The custody judgment on the rule to show cause used for the summary process becomes a final custody judgment pursuant to La. C.C. arts. 131 and 133, and La. C.C.P. art. 2592(8). See Trettin v. Trettin, 37,260 (La. App.2d Cir.3/17/03), 839 So.2d 1272. On the other hand, a judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. Pursuant to La. C.C.P. art.2083, an interim interlocutory order regarding temporary custody would only be appealable through the ordinary appeal process if it caused irreparable injury. The jurisprudence holds that such provisional custody award which is made pending a full trial on the merits does not cause irreparable injury. The recourse of the party who objects to such | (jinterim order is to seek an immediate trial of his rule for custody. Trettin v. Trettin, supra.

Our ruling in Trettin v. Trettin, supra, involved the appeal of an interim order for custody in the context of a divorce and resulted in the dismissal of the appeal under the above principles. Those principles are applicable regarding the two interlocutory rulings pertaining to temporary custody in this case. In the absence of immediate and irreparable injury to the child, the “proper procedural vehicle” for the Hills following their intervention in this case is for a summary rule for the determination of custody.

Conclusion

Since there is no showing of actual, irreparable harm, the two rulings of the trial court maintaining the temporary custody of Linda Coutee are not appealable judgments under the provisions of La. C.C.P. art.2083. Accordingly, the appeal is dismissed. Costs of the appeal are assessed to the Hills.

APPEAL DISMISSED.

      . La. C.C.P. art.2083 provides in part that "[a]n interlocutory judgment is appealable only when expressly provided by law.”

      . The petition alleges that another minor child of Owens is the subject of a separate proceeding due to the different paternity of that child.

      . La. R.S. 9:951(A) provides:
      A. Parents acting jointly or, in the event of divorce, or separation from bed and board, or illegitimacy, the natural tutor, tutrix, or cotutors acting jointly, may authorize any person of legal age to provide for the care, custody, and control of a minor child.

      . Additionally, the existence of immediate and irreparable injury to a child affords the special remedy for injunctive relief under La. C.C.P. art. 3945, but that it not the basis of the Hills’ action in this matter.