author: McClendon, j. GAIDRY, J.,

text:
    Jeff L. THIBODAUX & Kathleen Hartman Thibodaux v. ARTHUR RUTENBERG HOMES, INC. Southmark Construction Co., L.L.C., ABC Insurance and DEF Insurance Company.
    No. 2004 CA 1500.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      Adam McNeil, Eric J. Simonson, Margaret Diamond, New Orleans, Michael H. Rubin, Baton Rouge, Lewis J. Conwell, Marjorie Breaux, Tampa, FL, Counsel for Plaintiff/Appellee Arthur Rutenberg Homes, Inc. (as assignee of the claims of Jeff & Kathy Thibodaux).
    James T. Rivera, Lafayette, Counsel for Defendant/Appellant Maryland Casualty Co.
    Before: GUIDRY, GAIDRY, and McClendon, jj.
   McClendon, j.

|aThe threshold issues in this suit for damages are whether the New Home Warranty Act, LSA-R.S. 9:3141, et seq. (HWA), prohibits a builder from contractually assuming enforceable warranties and obligations beyond those offered in the HWA, and whether the builder in this case clearly agreed to such greater warranties and obligations. Finding the exclusive remedy in this case to be the HWA, we reverse, in part.

FACTUAL AND PROCEDURAL BACKGROUND

The landowners, Jeff and Kathleen Thi-bodaux, purchased a lot on the Amite River in Livingston Parish to build a home. On August 31, 1999, they entered into a construction contract with the builder, SouthMark Construction Co., L.L.C. (Southmark). Southmark agreed to build their home from plans originally designed by its franchisor, Arthur Rutenberg Homes, Inc. (Rutenberg). However, the finalized plans were a combination of more than one Rutenberg design, with additional input from the owners. Although the preliminary Rutenberg designs and the Thibo-daux plans contained notices to consult a structural engineer for certain construction elements, an engineer never reviewed or approved the final plans for the Thibo-daux home.

The Thibodauxs took occupancy of the home in April of 2000. Shortly thereafter, they discovered several defects in the construction, some of which violated the applicable building codes. By certified letter dated November 22, 2000, the Thibodauxs, citing provisions of the HWA, notified Ru-tenberg and Southmark of the defects, and gave the builder a reasonable time to repair or correct the problems. Southmark accepted responsibility for some of the listed problems, including cracked and discolored stucco and sheetrock, a need for joist hangers on the lower level of the home, cracked hdoors and gaps around door-frames, and baseboard repairs. However, Southmark failed to effect any repairs.

On January 8, 2001, the Thibodauxs filed suit for damages under the HWA and for breach of the construction contract. Named defendants included Rutenberg, Southmark, and Southmark’s insurer, Maryland Casualty Company (Maryland). By the time of trial, the Thibodauxs had settled with Rutenberg for more than'' ⅛⅛ ■ purchase price of the home, assigned their litigious rights to Rutenberg, and dismissed all their claims against Rutenberg as a defendant. On July 2, 2002, the trial court signed an order dismissing all the plaintiffs’ claims against Rutenberg and assigning the plaintiffs’ remaining claims to Rutenberg. After Southmark declared bankruptcy, Maryland took over the defense of the claim.

After an extensive trial, the trial court made the following findings in its reasons for judgment:

1. Rutenberg was an assignee of the owners, the Thibodauxs;
2. Rutenberg could pursue claims under the HWA and for breach of contract;
3. Southmark violated several provisions of the applicable building codes and breached its “contractual obligation to correct all defective and non-code compliant work in the home”; and,
4. non-pecuniary damages were awardable for the breach of the contract.

By judgment dated January 22, 2004, the trial court held against Maryland and awarded Rutenberg damages of $369,518.18, non-pecuniary damages of $100,000.00, expert witness fees of $30,704.29, and attorney fees of $145,111.78. Legal interest on the total amount was awarded from the date of judicial demand.

| ¿Maryland suspensively appealed and assigned several errors to the trial court’s judgment. Essentially, Maryland asserts that:

1. HWA is the exclusive remedy for construction defects and controls the amount and type of damages;
2. Rutenberg was not a proper as-signee;
3. Maryland’s policy did not provide coverage for professional services and the covered damage did not manifest itself during the policy period;
4. the amount of attorney fees was improper; and,
5. legal interest on the attorney fees should have been awarded only from the date of judgment.

Rutenberg answered the appeal. In its answer, Rutenberg asked that it be awarded attorney fees for its appellate work.

TWO CAUSES OF ACTION: HWA AND BREACH OF CONTRACT

A contract is the law between the parties, and is assignable, unless prohibited by the terms of the contract or voided by law. LSA-C.C. arts. 1983-84. In pertinent part, the construction contract at issue provided, as follows:

9.3 The Contractor warrants to the Owner for a period of one calendar year from the established date of Substantial Completion that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from normal defects not inherent in the quality required or permitted, and that the Work will conform with the requirements of the Contract Documents.
9.5 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities bearing on performance of the Work. The Contractor shall promptly notify the Owner if the Drawings and Specifications are observed by the Contractor to be at variance therewith.
| s17.1 The Contractor shall promptly correct Work failing to conform to the requirements of the Contract Documents within a period of one year from the date of Substantial Completion of the Contract or by terms of an applicable special warranty required by the Contract Documents. The provisions of this Article 17 are to apply to Work done by Subcontractors as well as to Work done by direct employees of the Contractor.

Based on these provisions, Rutenberg argues on appeal that Southmark obligated itself to make the home “structurally sound and code compliant, along with the cost of correcting the incomplete and defectively constructed components of the home, plus damages for mental anguish

Conversely, Maryland asserts that the HWA is the exclusive remedy for defects arising from construction. As authority, Maryland cites LSA-R.S. 9:3150, which at the time of the contract stated in part that: “This Chapter provides the exclusive remedies, warranties, and prescriptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibi-tory vices and defects shall apply.” (emphasis added).

At the time of the August 31, 1999 agreement, LSA-R.S. 9:3144 A provided the following warranties:

(1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
(2) Two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards.
(3) Ten years following the warranty commencement date, the home will be free from major structural defects due to noneompliance with the building standards or due to other | ¡¡defects in materials or workmanship not regulated by building standards.

Specifically, the provisions of LSA-R.S. 9:3144 C “establish minimum required warranties and shall not be waived by the owner or reduced by the builder provided the home is a single or multiple family dwelling to be occupied by an owner as his home.” (emphasis added). At the time in question, an owner was defined as “the initial purchaser of a home and any of his successors in title to a home during the time the warranties provided under this Chapter are in effect.” LSA-R.S. 9:3143(6). A builder is defined as “any person, corporation, ... or other entity which constructs a home .... ” LSA-R.S. 9:3143(1). If a builder breaches a warranty contained in the HWA, an owner has a cause of action for “actual damages, including attorney fees and court costs, arising out of the violation.” LSA-R.S. 9:3149 A. However, the damages for all defects “shall not exceed the original purchase price of the home.” Id.

Although the HWA controls over other Louisiana warranty and redhibitory defects law, it contains no language forbidding the parties to enter into a valid building contract. See Graf v. Jim Walter Homes, Inc., 97-1143, p. 9 (La.App. 1 Cir. 5/15/98), 713 So.2d 682, 690. Certainly, it provides that the minimum warranties may not be waived, but it also recognizes areas where the builder may contractually assume obligations preliminarily excluded by the HWA. See LSA-R.S. 9:3144 B & C. Thus, if a builder did assume greater warranties or obligations, the owner may have a cause of action based on the breach of those specific contract provisions.

The minimum one year warranty afforded by the HWA was for “any defect due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building 17standards.” LSA-R.S. 9:3144 A(l) (emphasis added). In the construction contract, the builder contractually agreed that “the Work will be free from normal defects,” and that the builder “shall promptly correct” those defects. (Emphasis added.) A simple comparison of this language shows that the two warranties are virtually identical, and, if anything, the HWA provides broader warranties than does the construction contract. Thus, Rutenberg did not establish the existence of abnormal defects outside the broad coverage offered by the HWA. For the defects at issue here, the HWA provides the exclusive remedy, including the damages cap of the original purchase price of the home. See LSA-R.S. 9:3149 A.

Non-Pecuniary Damages

Having found that the HWA is the exclusive remedy in this case, its provisions also control the award of damages. Specifically, “[u]nless the parties otherwise agree in writing,” Louisiana Revised Statutes 9:3144 B(8) excludes from warranty any “[l]oss or damage which does not constitute a defect in the construction of the home by the builder, or any employee, agent, or subcontractor of the builder.” Section B(13) excludes “any condition which does not result in actual physical damage to the home,” and section (17) excludes “[consequential damages.” (Emphasis added.) Under LSA-R.S. 9:3149 A, recovery is limited to “actual damages ... arising out of the violation.” Reading those provisions together, we find that, in the absence of a clearly written contract to the contrary, the HWA excludes non-pecuniary damage, “that is, damage of a moral nature which does not affect a ‘material’ or tangible part of a person’s patrimony.” See LSA-C.C. art. 1998, Revision Comments-1984, comment (b) (citation omitted). The written contract at issue contains no agreement by the builder to pay for non-pecuniary damages.

| ¡^Assignment

Maryland argues that Rutenberg cannot recover because it is not an owner under the HWA. In addition, Maryland fears it could be sued by the third party owner for the same claims asserted by Rutenberg.

The owners of the home, Mr. and Mrs. Thibodaux, filed suit against the builder, Southmark and its insurer, Maryland. Subsequently, pursuant to Louisiana law of assignment, the Thibodauxs assigned all their litigious rights arising from the contract and the construction of their home to Rutenberg. See LSA-C.C. art. 2652. On July 2, 2002, the trial court signed an order dismissing plaintiffs’ claims against Rutenberg, and assigning to Rutenberg all of plaintiffs’ remaining claims. Maryland did not attack the assignment itself in the pre-trial order or at trial. Thus, without objection, Rutenberg stepped into the shoes of the plaintiffs in this suit.

From our review of the pertinent evidence in this record, we see no basis to invalidate the assignment agreement. Neither the contract nor the HWA voids the law of assignment of litigious rights, especially in this case where the owners, who possessed those rights, timely initiated the suit. See LSA-C.C. arts. 1984 & 2642, et seq.; Graf, 97-1143 at pp. 8-9, 713 So.2d at 690 (HWA does not provide blanket override of the freedom to contract). Notwithstanding the assignment, Maryland has no greater exposure to a second suit by a third party owner than it would if the Thibodauxs had obtained the judgment, rather than Rutenberg.

COVERAGE

| flMaryland raises two coverage issues. The first is based on the policy’s professional services exclusion. Specific to the first issue, Maryland argues that the damages claimed arose from the builder’s failure to consult a structural engineer or the builder’s professional decision to approve the plans itself. Thus, based on the exclusion for professional services, the policy affords no coverage.

We disagree with Maryland’s analysis. From our review of Maryland’s policy, the professional services exclusion does not apply to the facts before us. The damages claimed are based on defective construction and warranties; not the rendering of professional design services. More importantly, the policy exclusion itself contains an exclusion for “construction work performed by [the insured],” and the builder’s or contractor’s work or product is defined in the policy as including “[wjarranties.”

Secondly, Maryland argues that the policy provides coverage only for property damage caused by an occurrence, and the claimed damage does not fit within the policy definition of an occurrence during the policy period. For support, Maryland relies on the holding in Swarts v. Woodlawn, Inc., 610 So.2d 888 (La.App. 1 Cir.1992). In Swarts, this court held that where the liability of the contractor was based solely on improper construction, there had been no “occurrence” under the policy language sufficient to trigger coverage for construction defects. Swarts, 610 So.2d at 890.

As authority for its holding, Swarts cites several cases, including Fredeman Shipyard, Inc. v. Weldon Miller Contractors, Inc., 497 So.2d 370 (La.App. 3d Cir.1986), which interpreted the same policy language at issue in Swarts. Based on the policy definition of “occurrence” as “an accident, including continuous or repeated exposure to conditions, which |Tnresults in bodily injury or property damage neither expected nor intended from the standpoint of the insured,” and on a work product exclusion, the third circuit found no coverage for improper construction or faulty repair. Fredeman Shipyard, Inc., 497 So.2d at 374-75. However, in the Maryland policy before us, a different definition is used. An “occurrence” is defined only as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.”

In Gaylord Chemical Corporation v. Propump, Inc., 98-2367, p. 5 (La.App. 1 Cir. 2/18/00), 753 So.2d 349, 353, this court analyzed the same definition of “occurrence” relied on by Maryland in the case before us, and applied it to a defectively manufactured product. First, Gaylord determined that the property damage should be viewed from the standpoint of the victim or owner, rather than the insured. Gaylord, 98-2367 at p. 6, 753 So.2d at 354. Then, after reviewing the holdings of other circuits, this court concluded that an unforeseen or unexpected loss by a victim during the policy period constituted an “accident,” and thus, an “occurrence,” as that term was defined in the policy.

Although the Gaylord court found coverage for a defectively manufactured product, and the language of the policy was identical to the insurance policy here, the Gaylord opinion also recognized the Swarts holding as part of a consistent line of jurisprudence based on claims of redhi-bition or warranty. Gaylord, 98-2367 at p. 5, 753 So.2d at 353 & n. 5. Therefore, it is not clear from the opinion whether the Gaylord decision overruled Swarts or merely distinguished it. However, despite any ambiguity in Gaylord, it directly held that defective workmanship or the incorporation of defective materials is an accident, which results in an unexpected loss to the victim. That holding inferentially, if not directly, | nvoided the primary basis for the decisions in Swarts and similar cases. For clarity, we specifically reject the line of jurisprudence that refused to find that defective workmanship or the incorporation of defective materials that resulted in unexpected losses is an accident. See Rando v. Top Notch Properties, L.L.C., 03-1800 (La.App. 4 Cir. 6/2/04), 879 So.2d 821, 825-34, and cited authority, including William Shelby McKenzie and H.- Alston Johnson, III, Insurance Law and Practice § 183, at 370, in 15 Louisiana Civil Law Treatise (2d ed.1996); Oxner v. Montgomery, 34,727 & 34,766, pp. 7-9 (La.App. 2 Cir. 8/1/01), 794 So.2d 86, 91-92, writ denied, 01-2489 (La.12/7/01), 803 So.2d 36; LSA-R.S. 9:3143(5), 3144 B(8), 3144 B(13) & 3149 A.

Of course, the finding of an accident alone does not answer the question of coverage. Coverage is not triggered unless “the defect causes property damage within the policy term.” Oxner, 34,727 & 34,766 at p. 8, 794 So.2d at 91, writ denied, 01-2489 (La.12/7/01), 803 So.2d 36; see LSA-R.S. 9:3143(5), 3144 B(8), 3144 B(13) & 3149 A (recovery for actual damages).

From our review of the record in this particular case, we find that the improper construction and incorporation of defective materials resulted in unexpected losses, which constituted an accident, and that the accident occurred during the policy period. Thus, there was coverage under the Maryland policy.

Alternatively, Maryland argues that even assuming some coverage, speculative awards for repair of anticipated future damage are not covered by the policy. Maryland also claims that the record contains insufficient evidence of structural damage occurring during the policy period.

LaThe process to correct or remedy the actual damage from the construction defects may include demolition or initially cause further damage to existing structures before repairs can be finalized. Apparently, Maryland attempts to separate one stage of the repair process from another. However, the so-called anticipated or speculative damage could have reasonably been found to be a part or element of the overall process necessary to repair the covered damage.

As to the claim the record does not support a finding of demonstrable structural damage, Maryland’s argument also fails. The HWA provides recovery for actual damages; a broader concept than structural damage. LSA-R.S. 9:3149 A. The Maryland policy covered the period from February 19, 2000 to February 19, 2001. Among other evidence, the Thibo-dauxs testified to seeing unmistakable signs of damage caused by structural, materials, and workmanship defects; damage which was confirmed by their experts. The majority of the damage was observed by the owners during the policy period in the year 2000. A demand letter detailing the more serious damage was sent on November 22, 2000. Thus, the record reasonably supports the trial court’s finding that actual damage, including structural, was observed in the disputed areas during the policy period.

This home suffered extensive damage. One of Rutenber’s’ experts testified that the home was not structurally safe, and continued to deteriorate. If Maryland did not agree with the assessment or the estimates for the repair procedures offered by Rutenberg, Maryland could have submitted its own detailed estimates for disputed repairs or procedures. Where alternative testimony on damage reports and estimates was submitted, our review revealed no manifest error in the trial court’s acceptance of one expert’s testimony over another. See Boyd v. Allied Signal, Inc., 03-1840, 1841, 1842 & 1843, pp. 21-22 (La.App. 1 Cir. 12/30/04), 898 So.2d 450, 463, writ denied, 05-0191 (La.4/1/05), 897 So.2d 606.

Attorney Fees

Maryland asserts that Rutenberg is not entitled to the attorney fees it incurred after the assignment. Maryland does not argue that the disputed fees would not have been incurred by the owners if they had continued the suit themselves. Rather, it specifically argues that Rutenberg cannot recover because it is not an owner.

The valid assignment of the litigious rights held by the Thibodauxs included “any and all claims that they might have arising out of the construction of their home ..., whether now known or hereafter discovered, for ... attorneys fees, ... under the laws of the State of Louisiana ..., or under any contract .... ” We find no basis in this record for a rejection of fees arising from the pursuit of the claim merely because they arose after the date of the assignment.

Maryland also assigned error to the trial court’s award of interest on the legal fees from the date of judicial demand. We agree. The judgment is amended to award interest on the attorney fees from the date of judgment. See Sharbono v. Steve Lang & Son Loggers, 97-0110, p. 10 (La.7/1/97), 696 So.2d 1382, 1388.

The final issue concerns Ruten-berg’s answer to the appeal and prayer for attorney fees for the work on the appeal. From our review of the record, including the briefs and participation in oral argument, and considering that 114the appellant was successful in some respects, we award the appellee, Rutenberg, attorney fees of $13,250.00 for its work on appeal.

For these reasons, we reverse the trial court’s recognition of the breach of contract cause of action, reduce the damages for correction of the defects to the original purchase price of the home, $156,700.00, and delete the award of $100,000.00 for non-pecuniary damages. Legal interest on the attorney fees is awarded from the date of judgment only. Further, we award Ru-tenberg $13,250.00 for attorney fees on appeal. The remainder of the judgment is affirmed. The costs of the appeal are assessed one-half to appellant, Maryland, and one half to the appellee, Rutenberg.

REVERSED IN PART, AMENDED, AFFIRMED IN PART, AS AMENDED, AND RENDERED.

GAIDRY, J., concurs with reasons.

GUIDRY, J., concurs in the result.

GAIDRY, J.,

concurring.

hi agree with the ultimate result expressed in the majority opinion. Although the policy at issue contains a work product exclusion, its potential effect on the issues before us was evidently not submitted to the trial court, nor was its applicability set forth in Maryland’s assignments of error. Thus, the effect of that exclusion is beyond the scope of our review. Uniform Rules of Louisiana Courts of Appeal, Rule 1-3.

I concur rather than join in the majority opinion because it indulges in a misplaced comparison of this court’s opinions in Swarts v. Woodlawn, Inc., 610 So.2d 888 (La.App. 1st Cir.1992), and Gaylord Chemical Corporation v. ProPump, Inc., 98-2367 (La.App. 1st Cir.2/18/00), 753 So.2d 349. The majority misinterprets dicta in Swarts, related to the policy definition of “occurrence,” as the primary basis for its holding, when it is clear that its holding was actually based upon application of a work product exclusion. The majority then compounds its error by characterizing the Gaylord opinion as ambiguous, and suggests that Gaylord “overruled Swarts Lor ... distinguished it.” It did neither. The Gaylord court cited Swarts with approval in a footnote for the proposition that coverage for damage to the insured’s defective work or product is generally excluded under commercial general liability policies. Gaylord, 98-2367 at p. 5 n. 5, 753 So.2d at 353 n. 5. The Gaylord court thus recognized the true basis of the Swarts decision, as the majority fails to do here. The majority’s speculative interpretation of the cited cases is erroneous and serves no useful purpose in the context of this case.

I respectfully concur.

      . Since the date of the assignment at issue here, the legislature amended LSA-R.S. 9:3143(6) through Acts 2003, No. 333, § 1, and specifically recognized assigns as owners.

      . We also note that the definition of an owner is limited to owners and their successors " during the time the warranties provided under [the HWA] are in effect.” LSA-R.S. 9:3143(6); see LSA-R.S. 9:3144 A & 3146. Sale of the home does not extend the warranty. LSA-R.S. 9:3148.

      . In its brief, Rutenberg also objects to Maryland's failure to file memoranda and proposed findings of fact in the court below. However, the trial court did not directly sanction Maryland for any failure to file the requested pleadings, and we see basis to do so in this court. Maryland’s claims stand or fall on the record evidence.


source: Caselaw Access Project

author: McCLENDON, J. WELCH, J.,

license: Public Domain

text:
    Donnie FRANKLIN v. Tiffany FRANKLIN.
    No. 2005 CU 1814.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.
    Writ Denied Feb. 17, 2006.

      Rebecca E. May-Ricks, J. Arthur Smith, III, Baton Rouge, Counsel for Plaintiff/Ap-pellee Donnie Franklin.
    H. Michael Aaron, Baton Rouge, Counsel for Defendant/Appellant Tiffany Franklin.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

lain this child custody case, the trial court maintained joint custody, but changed the domiciliary parent to the father, Donnie Franklin, and awarded the mother, Tiffany Franklin, visitation. Mrs. Franklin appealed. We reverse and remand for a new trial.

PROCEDURAL BACKGROUND

The parties were granted a divorce by a judgment signed on July 29, 2003. On September 11, 2003, Mrs. Franklin filed a petition for change of custody. She alleged that a prior stipulated judgment of joint custody, with the mother designated as the domiciliary parent, was never signed, and that one of the two children had been abused. In the prayer, Mrs. Franklin sought an ex parte order awarding her sole custody of the parties’ two children, or a provisional award of sole custody pending a hearing. She also asked for a hearing where Mr. Franklin would show cause why Mrs. Franklin should not be awarded sole custody or, alternatively, designated as the domiciliary parent in a new plan of joint custody. According to the court minutes of September 15, 2003, the court ordered a show cause hearing, and awarded Mrs. Franklin temporary custody, with supervised visitation for Mr. Franklin. On September 19, 2003, Mr. Franklin filed an opposing motion asking for sole custody based on Mrs. Franklin’s marriage to a “convicted drug dealer,” and her accusations of child abuse against Mr. Franklin.

The hearing was held on August 25, 2004. In written reasons issued after the hearing, the trial court ordered the parties to prepare a joint custody plan, designating Mr. Franklin as the domiciliary parent, with frequent visitation for Mrs. Franklin. By judgment signed on May 13, 2005, the trial court decreed that the “filed ... Joint Custody Implementation Plan be and | ¡¿hereby is accepted by this Court, made a part of the record, adopted by and given the same force and effect as a Judgment of this Court.”

Mrs. Franklin appealed and assigned errors to the May, 2005 judgment. One of her assignments challenged the admission of a polygraph examination. Finding merit in the claim, we pretermit consideration of her other assignments of error.

ADMISSIBILITY OF POLYGRAPH UNDER DAUBERT TEST

At trial, Mr. Franklin’s counsel sought to have Mr. Don Zuelke qualified as an expert who would testify to the results of a polygraph examination given to Mr. Franklin. However, before the evidence could be admitted, the trial court ordered Mr. Franklin to show not only that Mr. Zuelke was an expert polygra-phist, but that the field of polygraph examinations met the requirements of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

To be generally admissible, evidence must be relevant and not unduly prejudicial. LSA-C.E. arts. 104 & 401-403. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” LSA-C.E. art. 702.

Additionally, the Louisiana Supreme Court has adopted the reasoning and observations set forth in Daubert, which specifically rejected the “general acceptance” test and set forth guidelines for determining the reliability and admissibility of expert scientific testimony. See State v. Foret, 628 So.2d 1116, 1122-23 (La.1993). In Daubert, the United States Supreme Court “stated that an inference or assertion of scientific knowledge must be derived by the scientific method. Proposed testimony must be supported by appropriate validation, ie., ‘good grounds,’ based on what is known.” State v. Manning, 03-1982, p. 44 (La.10/19/04), 885 So.2d 1044, 1086-1087, cert. denied, 544 U.S. 967, 125 S.Ct. 1745, 161 L.Ed.2d 612 (2005), quoting from Daubert, 509 U.S. at 590, 113 S.Ct. at 2795. “In short, evidentiary reliability will be based on scientific validity.” State v. Manning, 03-1982 at p. 44, 885 So.2d at 1087, citing, Daubert, 509 U.S. at 590 n. 9, 113 S.Ct. at 2795 n. 9.

The Daubert/Foret guidelines are used as an aid in interpreting article 702 and ensure that scientific and technical expert testimony meets minimal standards of reliability and relevance. See State v. Foret, 628 So.2d at 1123. The Daubert/Foret guidelines require that expert opinions be grounded in approved methods and procedures of science, rather than subjective belief or unsupported speculation. The trial court must also ensure that the scientific “evidence admitted is not only relevant, but reliable.” Daubert, 509 U.S. at 589, 113 S.Ct at 2795; see LSA-C.E. 104 & 401-403. Before the expert opinion can be admitted, the trial court must make “a preliminary assessment that the reasoning or methodology underlying the testimony is scientifically valid” and of whether that reasoning or methodology properly can be applied to the facts at issue. Vardaman v. Baker Center, Inc., 96-2611, p. 6 n. 6 (La.App. 1 Cir. 3/13/98), 711 So.2d 727, 731 n. 6. The court must also determine whether the “probative value” of the expert testimony or opinion would be “substantially outweighed by the danger of’ confusion or an undue prejudicial effect on the fact finder. LSA-C.E. art. 403; see Foret, 628 So.2d at 1127; Fussell v. Roadrunner Towing and Recovery, Inc., 99-0194, p. 3 (La.App. 1 Cir. 3/31/00), 765 So.2d 373, 376, writ denied, 00-1264 (La.6/23/00), 765 So.2d 1042; State v. Brooks, 98-1151, p. 19 (La.App. 1 Cir. 4/15/99), 734 So.2d 1232, 1242, writ denied, 99-1462 (La.11/12/99), 749 So.2d 651. To fulfill the trial court’s gatekeeper function for proposed expert evidence, various factors may be considered by the trial judge: (1) whether the technique has been subjected to peer review or publication, (2) the “known or potential rate of error,” (3) a “reliability assessment,” in which the “degree of acceptance” within a scientific community may be determined and reviewed, and (4) the “testability” of the technique. Wingfield v. State, Department of Transportation and Development, 01-2668, pp. 9-10 (La.App. 1 Cir. 11/8/02), 835 So.2d 785, 796, writs denied, 03-0313 (La.5/30/03), 845 So.2d 1059 and 03-0339 & 03-0349 (La.5/30/03), 845 So.2d 1060, cert. denied, 540 U.S. 950, 124 S.Ct. 419, 157 L.Ed.2d 282 (2003), quoting from Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-97. However, the approach is a flexible one, and the list of factors is neither exclusive nor mandatory. Daubert, 509 U.S. at 593-94, 113 S.Ct. at 2796-2797; Wingfield, 01-2668 at p. 9, 835 So.2d at 796. The admission of evidence, expert or otherwise, is subject to the trial court’s discretion. Wingfield, 01-2668 at pp. 9-10, 835 So.2d at 796; Fussell, 99-0194 at p. 3, 765 So.2d at 375; see State v. Catanese, 368 So.2d 975, 983 (La.1979).

The Louisiana Supreme Court has ruled that polygraphs are not admissible in criminal trials, but are admissible under certain conditions in an administrative hearing. See Evans v. DeRidder Municipal Fire, 01-2466, pp. 7 & 13 (La.4/3/02), 815 So.2d 61, 67 & 71, cert. denied, 537 U.S. 1108, 123 S.Ct. 884, 154 L.Ed.2d 779 (2003). However, the court has not ruled on whether polygraphs are admissible , in a civil trial. Evans, 01-2466 at p. 6, 815 So.2d at 66.

During the Daubert hearing, Mr. Zuelke testified that polygraphs are widely used in the law enforcement field, that polygraph examiners, or polygraphists, are licensed in Louisiana, that his examinations had a ninety-eight percent rate of correctness, and that the American Polygraph Association would give the overall rate of correctness for polygraphs as ninety percent. After Mr. Franklin’s counsel asked that the expert testimony of Mr. Zuelke be admitted, Mrs. Franklin’s counsel objected to the acceptance of polygraphs based on the absence of empirical scientific research supporting the reliability of polygraph examinations and the lack of evidence on whether the examination was accepted by the scientific community outside the examiners themselves. Based on the initial testimony, the trial court ruled that Mr. Franklin had not yet met the Daubert/For-et requirements or test for reliability.

In response, Mr. Zuelke further testified that he was aware of studies in the field conducted by polygraph examiners. Although Mr. Zuelke was generally aware of those studies, he was unable to give any specifics of the studies beyond the finding of most that the overall correctness rate was ninety percent. Nor did he relate the names of the studies, where published, or how they were conducted.

On cross-examination, Mr. Zuelke admitted that he had never been qualified as an expert by a federal court or by a district court in Louisiana, and that to his knowledge, the field of polygraph examinations had not successfully passed the Dau-bert/Foret test in Louisiana. He also admitted pthat he had read a study by the National Academy of Science and was aware of a study done by the federal government, which noted the lack of research validating screening polygraphs. When asked about the results of the studies, Mr. Zuelke distinguished both studies because they were concerned with screening examinations involving multiple issues, and not the single issue testing Mr. Zuelke used. However, Mr. Zuelke was not aware of any outside scientific studies validating single issue polygraphs. For the three studies conducted by polygraphists mentioned by Mr. Zuelke, he testified that all but one found a correctness rate in the high ninety percentile. He gave no information on the publication of the studies, the method of testing employed, or the statistical basis underlying the correctness rate. During the cross examination, Mr. Zuelke also testified that the “biggest problem of studying polygraph[s] is that it’s not like other sciences where you can create a laboratory setting” and that creates “a problem in determining accuracy.” Further, he agreed that the alleged ninety percent overall rate of correctness could not be validated using the scientific method of testing.

During the testimony, the trial court asked questions, and seemed focused on how the examination was conducted and on certain questions and Mr. Franklin’s answers. At the end of the Daubert hearing, the trial court qualified Mr. Zuelke as an expert, and allowed him to testify about the polygraph test given to Mr. Franklin, including Mr. Zuelke’s opinion that Mr. Franklin was truthful in answering that he had not abused his daughter.

After reviewing the totality of the record on this issue, we find that the trial court abused its discretion in ruling that the polygraph examination was admissible. It did not meet the Daubert analysis. Therefore, we find that |sthe improper admission of the polygraph impermissibly interdicted the fact finding process.

STANDARD FOR APPELLATE REVIEW AND REMAND

Generally, when a legal error interdicts the fact finding process, the manifest error standard no longer applies. If the record is otherwise complete, the reviewing court should conduct a de novo review. Landry v. Bellanger, 02-1443, p. 15 (La.5/20/03), 851 So.2d 943, 954; Ragas v. Argonaut Southwest Insurance Co., 388 So.2d 707, 708 (La.1980); Savin v. Allstate Insurance Company, 579 So.2d 453, 457 (La.App. 1 Cir.1991); Moore v. Clark, 517 So.2d 293, 302 (La.App. 1 Cir.1987). However, “[t]here are cases where the weight of the evidence is so nearly equal that a first-hand view of witnesses is essential to a fair resolution of the issues.” Ragas, 388 So.2d at 708; see Landry, 02-1443 at p. 15, 851 So.2d at 954. Where such a need arises, “the case should be remanded for a new trial.” Landry, 02-1443 at p. 15, 851 So.2d at 954; Ragas, 388 So.2d at 708. It is the duty of the appellate court to determine when “the court can fairly find a preponderance of the evidence from the cold record,” or whether the case should be remanded. Id.

As in Savin, the evidence here is in substantial conflict. The trial court’s firsthand view of the witnesses is necessary for a fair determination of credibility, especially in this custody case with equivocal allegations of child abuse. With such substantial conflicts and the need for numerous credibility determinations, a preponderance of the evidence cannot be fairly determined from this cold record. Therefore, we are convinced that the interests of justice will be best served by remanding this case for a new trial. See Savin, 579 So.2d at 457-58; LSA-C.C. P. art. 2164.

^CONCLUSION

For these reasons, we reverse the judgment and remand for a new trial, to be heard as expeditiously as possible. However, based on the conflicts and ambiguity in the record on the best arrangement for the children, and children’s overall need for stability and continuity, the present custody is maintained. See Bergeron v. Bergeron, 492 So.2d 1193, 1199 (La.1986). Of course, upon remand, the parties have at their disposal all the legal avenues for requesting emergency changes of custody, if that is deemed necessary. The costs of the appeal are assessed to the appellee, Donnie Franklin.

REVERSED AND REMANDED.

WELCH, J., concurs with reasons.

WELCH, J.,

Concurring.

hi respectfully concur. I agree with the majority’s finding that the trial court abused its discretion in ruling the testimony of Mr. Don Zuelke, the polygraphist, and the results of the polygraph he performed on Donnie Franklin were admissible under the Daubert/Foret standards. This erroneous admission of evidence constituted legal error that impermissibly interdicted the fact finding process. Therefore, this matter should be remanded for a new trial. However, because the inadmissible polygraph evidence has already tainted the fact finder in this matter, I believe that it is inappropriate to remand this matter back to the same fact finder. Therefore, not only should this matter be remanded for a new trial, but I also believe that it should be re-allotted to another division of the Family Court.

      . In the record, Mr. Franklin is sometimes referred to as Donald W. Franklin.

      . Although the implementation plan was not included in the record before us on appeal, it is undisputed that the joint custody was maintained and the father was designated the domiciliary parent.

      . Courts outside Louisiana have made similar rulings limiting the use of polygraphs. See Cassamassima v. Florida, 657 So.2d 906 (Fla.App. 5th DCA 1995), and cases cited therein. The Florida appellate court in Cassamassima also noted that the finder of fact may give "disproportionate weight” to the polygraph as a means of determining credibility. Cassamassima, 657 So.2d at 908.

      . We do not address the admissibility of polygraphs upon a proper showing of the Dau-bertToret requirements for reliability.

      . Although we pretermitted the other assignments of error, we note that any possible errors may be cured by the order of a new trial, and the trial court may be aided by the admission of additional evidence.

      . While I have great respect for the trial judge in this matter, from a litigant's perspective, they would believe that it would be impossible for any trial judge to ''erase” from his mind the polygraph evidence that he has already heard and considered. Therefore, any decision reached would appear to be tainted by the prior polygraph evidence.


author: GUIDRY, J. KUHN, J.,

text:
    Jonelle M. SHILLING on Behalf of her Minor Son Christian Taylor SHILLING v. STATE of Louisiana, through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2005 CA 0172.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.
    Writ Denied April 24, 2006.

      Charles C. Foti, Jr., Attorney General, E. Wade Shows, Carlos A. Romanach, Ronnie J. Berthelot, Special Assistant Attorney Generals, Baton Rouge, Counsel for Defendant/Appellant Louisiana Department of Transportation and Development.
    Leonard Cardenas, III, Baton Rouge, Counsel for PlaintiffiAppellee Jonelle M. Shilling, on behalf of her minor son, Christian Taylor Shilling.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

|gThe State of Louisiana, through the Department of Transportation and Development (DOTD), appeals the trial court’s judgment, rendered in conformity with a jury verdict, finding it liable for the wrongful death of a driver who was fatally injured when he drove off the roadway into a roadside ditch. The driver’s former spouse answered the appeal on behalf of her minor son seeking an increase in the damage award.

FACTS AND PROCEDURAL HISTORY

Late in the evening on January 22, 2002, Hiram Justin Shilling (Justin) sustained fatal injuries when he hit a culvert after driving off of Louisiana Highway 1031, commonly known as Hatchell Lane, into an adjacent roadside ditch to avoid a collision with another motorist who had imprudently swerved into his lane of travel. After settling claims against the other motorist who had caused the accident, Justin’s ex-spouse, Jonelle Shilling (Jonelle), filed a wrongful death suit against DOTD on behalf of her son, Christian Taylor Shilling (Christian), born of her marriage to Justin. Jonelle later amended the petition to add a survival action claim. In answer to both petitions, DOTD denied liability for Justin’s death, asserting the sole fault for the accident resulting in Justin’s death was attributable to the negligent motorist who had caused him to drive off the roadway.

Prior to trial, Jonelle filed a motion in limine to prohibit DOTD from referring to or introducing any evidence regarding alleged drug use by the decedent or collateral sources of payment, which motion the trial court took under advisement. After hearing additional argument from counsel on the motion, the trial court granted the motion in limine at the commencement of the jury trial, which was held on May 18-21, 2004. Following the trial on the merits, a unanimous jury found DOTD liable and apportioned it with ninety percent fault in the wrongful death of Justin. The remaining ten percent was apportioned to the ^negligent driver who had caused Justin to leave the roadway. The jury awarded Christian a total of $250,000 in general and special damages on the wrongful death and survival action claims, and the trial court rendered judgment in conformity with the jury’s verdict.

In response to the jury’s verdict, DOTD filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, a motion for new trial, asserting that the jury’s apportionment of fault was contrary to the law and the evidence. Jonelle filed a motion for a partial JNOV seeking to increase the jury’s award for wrongful death damages and to reduce the award for medical and funeral expenses to the amount actually proven at trial. Jonelle also filed a separate motion to tax costs in this matter. Following a hearing on the motions, the trial court rendered judgment denying DOTD’s motions for JNOV, and in the alternative, for new trial. The trial court partially granted Jonelle’s motion for partial JNOV, reducing the jury’s award of medical and funeral expenses. The trial court also partially granted Jonelle’s motion to tax costs.

It is from the liability determinations of the jury’s verdict that DOTD suspensively appeals. Jonelle answered the appeal disputing the amount the jury awarded Christian for the wrongful death of his father.

ASSIGNMENTS OF ERROR

DOTD assigns the following as error on appeal:

1.The Judgment of the Trial Court containing the Jury Verdict assessing liability and 90 percent fault against DOTD was manifestly erroneous because the plaintiff failed to meet the burden of proof required by LSA-R.S. 9:2800.
2. The Trial Court’s supplemental jury charge, in response to the jury’s second interrogatory during its deliberations, prejudiced DOTD and interdicted the fact-finding process
3. The Judgment of the Trial Court awarding $145,000.00 in loss of financial support damages to plaintiff was manifestly erroneous.
|44. Trial Court erred when it granted plaintiffs motion in limine prohibiting DOTD from introducing any evidence of Justin Shilling’s drug use to defend against plaintiffs loss of financial support claim.

In answer to the appeal, Jonelle alleges that the jury’s award of $70,000 in wrongful death damages was abusively low, and as such, the trial court erred in denying the motion for a partial JNOV to increase the award.

STANDARD OF REVIEW

For an appellate court to reverse a trial court’s factual findings, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court or, even if' a reasonable factual basis exists, that the record as a whole establishes that the finding is clearly wrong. Irion v. State ex rel. Department of Transportation and Development, 98-2616, p. 10 (La.App. 1st Cir.5/12/00), 760 So.2d 1220, 1229, writ denied, 00-2865 (La.11/13/00), 773 So.2d 727. Thus, the reviewing court must do more than simply review the record for some evidence that supports or controverts the trial court’s finding. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly erroneous. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

DISCUSSION

LIABILITY OF DOTD

In its first assignment of error, DOTD basically argues that Jonelle failed to prove all the elements of her claim. A plaintiff may recover damages from DOTD, a public entity, under a theory of negligence based on La. C.C. art. 2315 or |Ra theory of strict liability based on La. C.C. art. 2317, as limited by La. R.S. 9:2800. The burden of proof is the same under either theory, that is: (1) DOTD had custody of the thing that caused plaintiffs damages; (2) the thing was defective because it had a condition that created an unreasonable risk of harm; (3) DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time; and (4) the defect was a cause-in-fact of plaintiffs injuries. Netecke v. State, DOTD, 98-1182, p. 7 (La.10/19/99), 747 So.2d 489, 494; Brown v. Louisiana Indemnity Company, 97-1344, p. 3 (La.3/4/98), 707 So.2d 1240, 1242.

DOTD does not dispute its custody and ownership of Hatchell Lane, which was added to the state highway system in December 1939; rather, it argues that because no roadway defect caused Justin to drive off of Hatchell Lane, all fault for the accident resulting in Justin’s death should be attributable to the negligent motorist who caused Justin to the leave the roadway. We disagree, finding no manifest error in jury’s findings..

In Aucoin v. State, Department of Transportation and Development, 97-1938 (La.4/24/98), 712 So.2d 62, the plaintiff and her minor daughter sustained |fiinjuries when she swerved her car off of the roadway to avoid hitting a dog. Unfortunately, a narrow shoulder of approximately one-foot width and a ditch of a very steep slope abutted the road on which she was traveling. On entering the ditch, the plaintiffs vehicle traveled 123 feet before hitting a tree that was growing on the back slope of the ditch in DOTD’s right of way. Aucoin, 97-1938 at 2, 712 So.2d at 64. In that case, the court’s decision did not turn on whether any defects in the roadway caused the accident or presented an unreasonable risk of harm, but rather its determination that DOTD was liable stemmed from defects off of the roadway, but still within DOTD’s right of way. As noted by the court in Aueoin, “DOTD owes a duty to maintain its right of way in a condition that does not present an unreasonable risk of harm.” Aucoin, 97-1938 at 4, 712 So.2d at 65.

In this case, according to the testimony of both DOTD and Jonelle’s expert witnesses, current American Association of State Highway and Transportation Officials (AASHTO) guidelines provide that for a roadway such as Hatchell Lane, with a traffic flow of over 6,000 vehicles per day, the minimum shoulder width is eight feet on each side of the roadway and that the slope of an adjacent ditch should be no greater than a 3:1 ratio (three feet across for every one foot vertical drop in slope). The shoulders on Hatchell Lane in the area of the accident were only five feet wide and the slope of the adjacent ditch was between a 1:1 and 2:1 ratio, making it a very steeply sloped ditch. Dr. Joseph David Blaschke, DOTD’s own expert in the areas of highway traffic and roadway design, acknowledged the dangerous condition that existed off of'the roadway:

Certainly, if the driver goes off the roadway and encounters the ditch, yes, there is a danger there. There’s a potential for a significant damages [sic] and injuries as we experienced in Mr. Shilling’s case, unfortunately. But the roadway itself as it exist [sic] — as long as you stay on the roadway or slightly off the roadway, the roadway’s fine. It’s not unreasonably dangerous. You exit far enough off the roadway and encounter the ditch, then you have some danger.

17Similar to the roadway in Aucoin, Hatchell Lane’s admission into the state highway system predated the promulgation of the minimum design standard guidelines issued by AASHTO, which have been held to apply only to new construction or the reconstruction of existing roadways. See Temple v. State ex rel. Department of Transportation and Development, 02-1977, p. 7 (La.App. 1st Cir.6/27/03), 858 So.2d 569, 576, writ denied, 03-2116 (La.11/7/03), 857 So.2d 501. However, as observed in Aucoin, “[w]hile failure to adhere to AASHTO standards may not in itself attach liability, whether DOTD has conformed to those standards is a relevant factor in determining the ultimate issue of whether a roadway is dangerous.” Aucoin, 97-1938 at 7, 712 So.2d at 66.

Testimony by experts for both Jonelle and DOTD established that because of the steepness of the adjacent ditch, once a motorist enters the ditch, it is impossible for the motorist to recover, and thus the ditch was defective. Dr. Olin K. Dart, offered by Jonelle as an expert in the fields of traffic engineering, highway design, traffic safety and accident reconstruction, opined that increasing the width of the shoulder by at least three feet could have increased Justin’s chances of recovery without encountering the steeply-sloped ditch; however, he insisted that the best solution for improving the safety of Hatchell Lane was to combine increasing the width of the shoulder with decreasing the slope of the ditch. In absence of increasing the shoulder width and decreasing the slope of the ditch, Dr. Dart’s alternative recommendation was to make the drainage subsurface to increase the safety of motorist traveling in that area of Hatc-hell Lane. DOTD’s own expert, Dr. Blasch-ke admitted that based on the highway safety standards in place at the time of the accident, Hatchell Lane was substandard.

Whether an unreasonably dangerous defect caused the plaintiffs damages is a finding of fact and an appellate court may not overturn a jury’s finding of fact in absence of manifest error or unless clearly wrong. Temple, 02-1977 at 10, 858 So.2d at 577-578. Considering the evidence presented, we cannot say the jury was manifestly erroneous in concluding that the reduced shoulder width and the steeply sloped ditch abutting Hatchell Lane presented an unreasonable risk of harm. Nor do we find any merit in DOTD’s contention that it had no notice of the defective condition of the roadway. Noel Kent Israel, a road design engineer administrator for DOTD accepted by the trial court as an expert in civil and design engineering, testified that in 1988, DOTD widened Hatchell Lane reducing the shoulder to five feet on each side of the roadway. Further, James Delaune, the former mayor of Denham Springs testified that the second highest number of accidents in the city occurred on Hatchell Lane during his tenure in office from 1991 to 2002. He also testified that five or six people were killed on Hatchell Lane during his term of office.

Thus, we find, as did the court in Au-coin, that although the road surface of Hatchell Lane was in good condition, the dangerous condition posed by the substandard shoulder and the non-recoverable slope was sufficient to make DOTD liable for injuries sustained by a driver, such as Justin, who travels off the roadway due to a sudden emergency. As observed by the Aucoin court, “[t]he combination of more than one dangerous condition was allowed to accumulate by DOTD, rendering this off roadway area unreasonably dangerous to the motoring public. Under these circumstances, DOTD has a duty to maintain this off roadway area so it does not pose an unreasonably dangerous condition to the motoring public, notwithstanding that the roadway at issue is an old highway.” Aucoin, 97-1938 at 8, 712 So.2d at 67. Accordingly, we reject DOTD’s assertion that the jury erred in finding it liable for the wrongful death of Justin.

Supplemental Jury Instruction

In its second assignment of error, DOTD contends that the trial court erred in giving the following supplemental jury instruction when queried by the jurors as lato the proper application of the principles of comparative fault: “[i]n apportioning fault among various parties, you may consider the relative percentages each party’s fault played, if any, in the harm sustained in the accident.” DOTD contends that this supplemental charge prejudiced the jury and interdicted the fact-finding process by identifying fault with harm and not with negligence.

When assessing an alleged erroneous jury instruction, it is the duty of the reviewing court to evaluate such impropriety in light of the entire jury charge to determine if it adequately provides the correct principles of law as applied to the issues and whether they adequately guided the jury in its deliberation. Duzon v. Stallworth, 01-1187, p. 278 (La.App. 1st Cir.12/11/02), 866 So.2d 837, 858, writs denied, 03-0589, 03-0605 (La.5/2/03), 842 So.2d 1101, 1110. An appellate court must exercise great restraint before overturning a jury verdict on the suggestion that the jury instructions were so erroneous as to be prejudicial. Bell v. Whitten, 97-2359, p. 7 (La.App. 1st Cir.11/6/98), 722 So.2d 1057, 1061.

We find no merit in DOTD’s argument since the language of the instruction comports with that of La. C.C. art. 2323, wherein the apportionment of fault of all tortfeasors is mandated. Article 2323 states, in pertinent part: “[i]n any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined.” Comparing the language of the supplemental jury charge with that of the statute, we find that the trial court correctly expressed the principles of law applicable to the jury’s determination of comparative fault and apportionment of liability in this case. We thus reject this assignment of error.

Exclusion of Evidence

In its final two assignments of error, DOTD argues that based on the trial court’s failure to allow it to present evidence regarding Justin’s alleged drug use, Imthe jury committed manifest error in awarding Christian $145,000 for loss of financial support. For the following reasons, we reject these assignments of error.

The Louisiana Code of Evidence provides that evidence of other crimes, wrongs, or acts is generally inadmissible to prove the character of a person in order to show that he acted in conformity therewith. La. C.E. art. 404(B). In the matter before us, DOTD sought to admit evidence of the decedent’s prior drug use in order to prove that his past conduct in using-drugs would adversely effect his future earning potential. The trial court, however, found that the prejudicial effect of admitting such evidence would outweigh the possible evidentiary value-of the evidence, if any. Having reviewed the proffered testimony relative to Justin’s drug use, we agree.

On proffer, DOTD offered many fact witnesses who testified to either witnessing Justin use illegal and prescription drugs or having obtained such drugs from him. Further, in conjunction with the testimony of those fact witnesses, DOTD proffered the testimony of Dr. Vincent Wilson as an expert in the fields of pharmacology and toxicology. Dr. Wilson opined that based on the type of drugs ingested by Justin, the decedent likely suffered from extensive brain damage, which typically manifests itself in the disruption of sensory perception or as the loss or impairment of working memory and which is key to information processing, simple problem solving, and logical reasoning. Dr. Wilson admitted that his testimony was speculative regarding the degree of impairment Justin possibly suffered, since he could only generally opine that Justin suffered some impairment without having performed specific testing and assessment of Justin’s abilities before and after drug usage. Further, the probative value of the excluded testimony is discredited by testimony from Justin’s family, co-workers, and supervisor indicating that he was a reliable, hard-working employee, who did not |1Tmiss work and who often worked overtime to earn additional money to support his family, even up to the time of his death, despite his history of prior drug use.

Thus, in light of the speculative nature of Dr. Wilson’s testimony, whose dire predictions of permanent impairment relative to Justin’s drug use were not corroborated by Justin’s ability to function and provide support for himself and his family before his untimely death, we find that the trial court properly disallowed such evidence as overly prejudicial.

Wrongful Death Damages

In answer to the appeal, Jonelle challenges the jury’s award of $70,000 for the wrongful death of Justin, arguing that the amount awarded was abusively low. The elements of damage for a wrongful death action are loss of love, affection, companionship, support and funeral expenses. Gibson v. State, Department of Transportation and Development, 95-1418, p. 14 (La.App. 1st Cir.4/4/96), 674 So.2d 996, 1006, writs denied, 96-1862, 96-1895, 96-1902 (La.10/25/96), 681 So.2d 373, 374. At the time of his father’s death, Christian was four years old. There was testimony by friends and family members, as well as photographs introduced into evidence, attesting to the close, loving relationship between Justin and Christian. Witnesses testified that Justin took Christian hunting, fishing and camping, and that he generally just loved spending time with his son.

Nevertheless, at the time of his father’s death, Christian’s parents, Justin and Jo-nelle, were divorced and living in separate households with Jonelle having primary custody of Christian. Michael Speziale, Justin’s best friend, testified that following Justin’s divorce, he spent quite a bit of time with Justin “because Christian was with Jonelle most of the time, so during the hunting season, me and Justin probably saw each other four or five days out of the seven days of the week.” Judy Spez-iale, Michael’s mother, testified that although she frequently saw Justin following his divorce from Jonelle, she only occasionally saw Justin 112with Christian. As she explained, “[i]t wasn’t often, but as I said, you know, it would just be on weekends and things that he would have the child.”

There was also testimony by a clinical social worker, Anita Compton Evans, who evaluated Christian on February 11, 2002, less than a month following his father’s death. Ms. Evans evaluated Christian at the request of Jonelle and Christian’s paternal grandmother, Mary Shilling, who were concerned about Christian acting out, exhibiting angry outbursts, growing quiet and hitting Jonelle following Justin’s death. After meeting with Christian both individually and with his mother and grandmother for approximately 45 minutes, Ms. Evans’ clinical observation of the child was of a somber, unsmiling, quiet, four-year-old, who appeared to be sad, quiet, and somewhat withdrawn. Ms. Evans did not see Christian again until November 4, 2003, when Jonelle again asked that he be evaluated for acting out, which Ms. Evans concluded was in response to Jonelle having recently given birth to another child. Ms. Evans last visit with Christian was on November 11, 2003. Although she diagnosed Christian as suffering from bereavement and adjustment disorder, her overall impression of Christian was of a handsome and intelligent young boy who has the tools and mental ability to progress and succeed in life. She conceded upon questioning that her diagnosis of adjustment disorder was relative to her prior meetings with Christian and was not definitive of Christian’s emotional state at the time of trial.

DOTD offered the testimony of Megan Ciota, a psychologist accepted by the court as an expert in clinical and neuropsycholo-gy. Ms. Ciota found Christian to be on target in academics and intellectual functioning. When she questioned Christian regarding the death of his father, Christian’s response was that he did not remember a lot because he was really little when his father died. Ms. Ciota testified that according to her research, children who lose a parent and go through the grieving process are quite similar to children who have not suffered a loss in |1sthe long run; the loss of a parent by such children is not associated with depression or anxiety in adulthood. She disagreed with Ms. Evans’ diagnosis of adjustment disorder, explaining that it is improper to diagnosis adjustment disorder during the period of bereavement. Ms. Ciota’s overall prognosis for Christian was very good for a healthy and adjusted future.

As previously noted, generally wrongful death damages include loss of support and funeral expenses in addition to damages for the loss of love, affection and companionship. Considering the evidence presented and that the jury awarded Christian $145,000 for lost financial support, $11,620.85 for funeral and burial expenses, in addition to the $70,000 specifically designated as wrongful death damages, we cannot say that the total sum awarded Christian for the wrongful death of his father was abusively low.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court finding DOTD liable for the wrongful death of Justin Shilling. The costs of this appeal in the amount of $2,682 are to be borne equally by the parties.

AFFIRMED.

KUHN, J., concurs.

KUHN, J.,

concurring.

hThe State urges that dictum found in Capone v. Ormet Corp., 01-0060 (La.App. 1st Cir.6/21/02), 822 So.2d 684, 702, should be controlling. Therein, the Capone court stated that based on the language of the jurisprudence of this court and based on La. R.S. 48:1(22), “there is no duty on the part of a governmental entity (state, parish or municipal) to construct or maintain a roadside ditch in such a way that it does not pose an unreasonable risk of harm to motorists on an adjacent roadway.” Id. The majority herein does not specifically rebut this argument but correctly addresses the applicable jurisprudence, citing Au-coin v. State, Dept, of Transp. and Dev., 97-1938 (La.4/24/98), 712 So.2d 62, and finding that the State has a duty to maintain roadside shoulders and ditches in such a manner that they do not present an unreasonable risk of harm to motorists using the adjacent roadway. Likewise, the majority refers to Netecke v. State, DOTD, 98-1182, 98-1197 (La.10/19/99), 747 So.2d 489, wherein the Supreme Court concluded that “DOTD must maintain the shoulders and the area off the shoulders, within its right-of-way, in such a condition that they do not present an unreasonable risk of harm to motorists using the adjacent roadway .... ” Accordingly, the majority’s position is well supported by the governing jurisprudence and the Capone dictum is properly ignored.

      . In its first assignment of error, DOTD alleged that the jury erred in finding it liable for the wrongful death of Justin and in its apportionment of fault. In briefing this assignment of error, however, DOTD only discussed the liability finding. Thus, based on DOTD’s failure to brief that portion of its assignment of error alleging that the jury manifestly erred in apportioning fault, we deem this portion of the assignment of error to be abandoned in accordance with Uniform Rules, Courts of Appeal, Rule 2-12.4.

      . Prior to its amendment by 2003 La. Acts, Nos. 725 and 1077, the applicable version of La. R.S. 9:2800 provided, in pertinent part:
      A.A public entity is responsible under Civil Code Article 2317 for damages caused by the condition of building within its care and custody.
      B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.
      C. Constructive notice shall mean the existence of facts which infer actual knowledge.

      E. "Public entity” means and includes ... political subdivisions and the departments, offices, agencies, boards, commissions, in-strumentalities, officers, officials, and employees of such political subdivisions....


author: PARRO, J.

text:
    Arthur A. CLARK v. Clayton M. WILCOX, Superintendent, Individually and in His Official Capacity and East Baton Rouge Parish School Board.
    No. 2004 CW 2254R.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.

      Benn Hamilton, Baton Rouge, for Plaintiff-Respondent Arthur A. Clark.
    Karen D. Murphy, Kenneth F. Sills, Hammonds & Sills, Baton Rouge, for Defendants-Relators Clayton M. Wilcox and the East Baton Rouge Parish School Board.
    Before: PARRO, KUHN, and WELCH, JJ.
   PARRO, J.

| aThe defendants filed an application for a supervisory writ in connection with the trial court judgment overruling their peremptory exception raising the objection of prescription with respect to the causes of action stated in the original petition for reinstatement and damages by its former employee.

Factual and Procedural Background

On February 6, 2004, Arthur A. Clark (Clark), a coach and teacher formerly employed by the East Baton Rouge Parish School Board (School Board) at Scotland-ville Middle School, filed suit against the School Board and its superintendent, Clayton W. Wilcox (collectively referred to as defendants), asserting claims arising from his allegations of wrongful termination and defamation. In his petition, Clark alleged that on January 8, 2003, as he was displaying a knife, that he had found on the school grounds or seized from a student, to a small group of students and cautioning them against bringing such contraband to school, a sixth grade student made disrespectful comments to Clark and ran away. Clark claimed that he pursued the student and ordered him to report to the principal’s office.

According to Clark’s petition, the student reported to the principal that Clark had pulled a knife on him. In his petition, Clark averred that the principal had reported the alleged knife-pulling incident to the East Baton Rouge Parish Sheriffs Office on January 8, 2003, and that the principal had ordered him to report to the human resources office. Annette Mire (Mire) of the human resources office proposed that Clark voluntarily resign to spare all of the parties some time and energy, which Clark declined to do. The next day, Clark learned during a telephone call to his home from a sheriffs deputy that he was wanted for questioning and that a warrant had been issued for his arrest.

Subsequently, Clark again met with Mire, who advised him that if he had resigned, Clark would have avoided adverse publicity and the possibility of being publicly arrested. During this meeting, Mire allegedly offered to grant Clark’s family 65 percent of his family health insurance plan as further inducement for a voluntary | .^resignation in the face of a threatened termination proceeding. That day, on January 9, 2003, Clark submitted a voluntary resignation from his tenured teaching position.

In his petition, Clark also alleged that certain School Board employees intentionally and maliciously misrepresented facts to the local authorities and the general public for the purpose of defaming him. Specifically, Clark asserted that on January 11, 2003, the School Board’s public information officer told the local newspaper that two other students saw Clark pull a knife on another student and that Clark was temporarily suspended pending the outcome of the investigation.

In his petition, Clark sought reinstatement to his former position as a tenured teacher, along with back pay, bonuses, raises, vacation pay, or any other emolument of payment or compensation from January 10, 2003, to the present. He also sought damages for the mental anguish, emotional distress, and defamation of character caused by the defendants’ actions regarding the January 8th and 9th events.

The defendants filed a peremptory exception raising the objection of prescription, asserting that Clark’s claims arising from his allegations of wrongful termination and defamation were subject to the one-year liberative prescriptive period applicable to delictual actions provided for in LSA-C.C. art. 3492. The defendants noted that Clark’s petition alleged conduct occurring over a three to four-day period from January 8 to 11, 2003. They maintained that Clark’s causes of action arising from his allegations of wrongful termination and defamation arose at the latest on January 11, 2003, the date by which Clark had actual notice of the alleged tor-tious actions of the School Board. Since Clark did not file suit until February 6, 2004, the defendants urged that his claims were barred by prescription. The defendants also contended that Clark was not entitled to the protection of the teacher tenure law since he had voluntarily resigned, and therefore, the School Board’s failure to terminate him pursuant to those provisions did not provide a basis for suspending prescription on the wrongful termination claim.

|4In response, Clark urged that LSA-R.S. 17:443 of the teacher tenure law requires that a hearing be held before a tenured teacher can be terminated, and as one was never held, prescription on his wrongful termination claim never began to run. He submitted that before any determination can be made on the issue of prescription, the voluntariness of his resignation must be determined. He argued that if the resignation was not voluntary, it is ineffective, and should the School Board desire to dismiss him, it must comply with the requirements of LSA-R.S. 17:443. Further, he argued that the claim for reinstatement, a personal one based on contract, is subject to a 10-year prescriptive period.

Following a hearing, the trial court denied the exception raising the objection of prescription. Pursuant to an application for supervisory writs to this court, the defendants sought review of the trial court’s judgment, which was denied. Clark v. Wilcox, 04-2254 (La.App. 1st Cir.12/30/04) (unpublished writ action). Subsequently, the defendants sought a writ of certiorari from the supreme court, which was granted, and the matter was remanded to this court for the issuance of a written opinion following briefing and argument by the parties. Clark v. Wilcox, 05-0254 (La.4/22/05), 899 So.2d 583.

Discussion

On January 8 and 9, 2003, Clark had discussions with the School Board’s human resources officer concerning the knife-pulling allegation by a student. During these discussions, the officer allegedly threatened that Clark would be facing termination if he did not resign. After their initial conversation on January 9th, Clark received a call from a deputy with the sheriffs office, who informed him that he was wanted for questioning and that a warrant had been issued for his arrest. Later the same day, Clark submitted his resignation. Clark alleged in his petition that two days later, on January 11, 2003, the public information officer ■ for the School Board reported the incident to the local newspaper. On February 6, 2004, Clark filed the instant suit seeking reinstatement to | Shis teaching position, as well as damages for defamation and wrongful termination, to which the defendants raised the issue of prescription.

Wrongful Termination

Generally, a claim for wrongful discharge or termination is a delictual action subject to a one-year prescriptive period provided for in LSA-C.C. art. 3492. This prescriptive period commences to run when the plaintiff has actual or constructive notice of the alleged wrongful termination. Nicholson v. St John the Baptist Parish School Board, 97-846 (La.App. 5th Cir.1/14/98), 707 So.2d 94, 95, writ not considered, 98-0411 (La.3/27/98), 716 So.2d 879; Rozas v. Department of Health and Human Resources, 522 So.2d 1195, 1196 (La.App. 4th Cir.), writ denied, 523 So.2d 1338 (La.1988); see Velez v. Carbonett, 99-2891 (La.App. 1st Cir.12/22/00), 779 So.2d 12, 14.

The defendants argued that the petition was untimely, on its face, because his claims were based on alleged wrongful acts occurring more than one year prior to the filing of the suit. They submitted that Clark had notice of the tortious act, that is, the alleged “forced” resignation, the resulting damages, and the causal connection between the two no later than January 9, 2003, the date on-which he-submitted a resignation. Clark, on the other hand, argued that the prescriptive period was interrupted because the defendants failed to comply with the teacher tenure law’s procedural provisions, and therefore, prescription never began to run on the termination claim.

The removal of a teacher is governed by the teacher tenure law, LSA-R.S. 17:441 et seq., which is designed to protect the job security of teachers in the best interest of the public school system. Jackson v. St. Landry Parish School System, 407 So.2d 51, 53 (La.App. 3rd Cir. 1981), writs denied, 412 So.2d 98 and 99 (La.1982). The teacher tenure law sets forth detailed procedures which must be adhered to in order to perfect the proper removal of a teacher who has attained permanent status. Jackson, 407 So.2d at 55. Prior to its amendment by 2003 La. Acts, No. 273, § 1, LSA-R.S. 17:443 provided:

IfiA. A permanent teacher shall not be removed from office except upon written and signed charges of willful neglect of duty, or incompetency, or dishonesty, or of being a member of or contributing to any group, organization, movement, or corporation that is by law or injunction prohibited from operating in the state of Louisiana, and then only if found guilty aftet a hearing by the school board of the parish or city, as the case may be, which hearing may be private or public, at the option of the teacher. At least twenty days in advance of the date of the hearing, the superintendent with approval of the school board shall furnish the teacher with a copy of the written charges. Such statement of charges shall include a complete and detailed list of the specific reasons for such charges and shall include but not be limited to the following: date and place of alleged offense or offenses, names of individuals involved in or witnessing such offense or offenses, names of witnesses called or to be called to testify against the teacher at said hearing, and whether or not any such charges previously have been brought against the teacher. The teacher shall have the right to appear before the board with witnesses in his behalf and with counsel of his selection, all of whom shall be heard by the board at said hearing. For the purpose of conducting hearings hereunder, the board shall have the power to issue subpoenas to compel the attendance of all witnesses on behalf of the teacher. Nothing herein contained shall impair the right of appeal to a court of competent jurisdiction.
B. If a permanent teacher is found guilty by a school board, after due and legal hearing as provided herein, on charges of willful neglect of duty, or of incompetency, or dishonesty, or of being a member of or contributing to any group, organization, movement, or corporation that is by law or injunction prohibited from operating in the state of Louisiana, and ordered removed from office, or disciplined by the board, the superintendent with approval of the board shall furnish to the teacher a written statement of recommendation of removal or discipline, which shall include but not be limited to the exact reason(s), offense(s), or instance(s) upon which the recommendation is based. Such teacher may, not more than one year from the date of the said finding, petition a court of competent jurisdiction for a full hearing to review the action of the school board, and the court shall have jurisdiction to affirm or reverse the action of the school board in the matter. If the finding of the school board is reversed by the court and the teacher is ordered reinstated and restored to duty, the teacher shall be entitled to full pay for any loss of time or salary he or she may have sustained by reason of the action of the said school board.

Once a teacher achieves permanent teacher status, he is subject to removal only for cause and in the manner set forth in LSA-R.S. 17:443. State ex rel. DeBarge v. Cameron Parish School Board, 202 So.2d 34, 37 (La.App. 3rd Cir.), writ denied, 251 La. 386, 204 So.2d 572 (1967).

The record clearly reflects that the formal removal procedure did not take place in this case. If Clark’s resignation was not voluntary and instead constituted a |7removal, it would not have had any legal effect at that time in light of the School Board’s failure to comply with the teacher tenure law. See Jackson, 407 So.2d at 55; see also Brown v. Red River Parish School Board, 469 So.2d 1110, 1115 (La.App. 2nd Cir.1985). In such a case, Clark would have been entitled to be reinstated to a teaching position in the East Baton Rouge Parish school system. See Jackson, 407 So.2d at 55.

Wben a permanent teacher is found guilty by a school board after a due and legal hearing, LSA-R.S. 17:443(B) affords a teacher a one-year period in which to seek judicial review by a district court. Fields v. Rapides Parish School Board, 231 La. 914, 93 So.2d 214, 216 (1957). However, where there has been no formal school board hearing, the one-year limitation in LSA-R.S. 17:443 is inapplicable. Jackson, 407 So.2d at 55. Nonetheless, if a tenured teacher is terminated without compliance with the provisions of LSA-R.S. 17:443, such action would constitute a wrongful act, giving rise to a cause of action that is delictual in nature and subject to LSA-C.C. art. 3492’s one-year prescriptive period. See Jackson v. Ascension Parish School Bd., 573 So.2d 501, 503 (La. App. 1st Cir.), writ denied, 569 So.2d 989 (La.1990).

As to his claim for wrongful termination, we conclude that Clark’s petition on its face clearly was filed more than one year after he had actual or constructive notice of the alleged wrongful termination. With respect to this claim, Clark failed to prove the interruption or suspension of the applicable one-year limitation period imposed by LSAjC.C.g art. 3492. Furthermore, in an effort to preserve his claim for reinstatement, Clark urged the applicability of the 10-year prescriptive period applicable to contracts. Based on the allegations of Clark’s petition, we conclude that Clark’s action is not a suit on a contract, as the primary basis for his claim for reinstatement is the alleged failure of the public body to follow the express provisions of the tenure law. See Hill v. Caddo Parish School Board, 250 So.2d 446, 449 (La.App. 2nd Cir.1971). Accordingly, we conclude that the trial court erred in overruling the defendants’ objection of prescription as to Clark’s wrongful termination claim.

Defamation

To prevail in an action for defamation, the plaintiff must prove: defamatory words, publication, falsity, malice (actual or implied), and resulting injury. Steed v. St. Paul’s United Methodist Church, 31,521 (La.App. 2nd Cir.2/24/99), 728 So.2d 931, 940, writ denied, 99-0877 (La.5/7/99), 740 So.2d 1290, citing Cangelosi v. Schwegmann Brothers Giant Super Markets, 390 So.2d 196, 198 (La.1980). Thus, the truth or falsity of the School Board’s words are at the heart of a defamation action; whereas, the truth value of the School Board’s words is not at issue in an action under LSA-R.S. 17:443. Brown, 469 So.2d at 1115.

Claims for defamation are del-ictual in nature and are subject to LSA-C.C. art. 3492’s one-year prescriptive period, which commences to run from the day injury or damage is sustained. See Wiggins v. Creary, 475 So.2d 780, 781 (La.App. 1st Cir.), writ denied, 478 So.2d 910 (La. 1985). For prescription purposes, damages are sustained from the date the injury is inflicted, if immediately apparent to the victim, even though the extent of the damages may not yet be known. Wiggins, 475 So.2d at 781. This court in Wiggins and Rice v. Felterman, 00-2525 (La.App. 1st Cir.3/28/02), 814 So.2d 696, has found that knowledge of the damage-causing publication by the | splaintiff is required for the commencement of the one-year prescriptive period. Rice, 814 So.2d at 699; Wiggins, 475 So.2d at 781; see Rozas, 522 So.2d at 1196-97.

The defendants argued that the trial court erred in failing to grant their exception raising the objection of prescription based on the fact that Clark admitted in his petition that he had actual notice of the alleged defamatory actions of the School Board’s employees no later than January 11, 2003. In examining Clark’s petition, we note the following pertinent allegations: the school’s principal reported the alleged knife-pulling incident to the sheriffs office on January 8, 2003; a sheriffs deputy telephoned Clark’s house on January 9, 2003, and advised him that he was wanted for questioning and that a warrant had been issued for his arrest; and certain information was released to the local paper by the School Board’s public information officer on January 11, 2003. According to Clark’s petition, the school’s principal, the School Board’s public information officer, and the human resource officer intentionally and maliciously misstated and misrepresented the facts to the authorities and the general public.

These allegations make it clear that on January 9th Clark was aware that information had been communicated by the school’s principal to the local law enforcement authorities. Thus, we conclude from the face of the petition that Clark’s defamation action relative to the January 8th communication to the sheriffs office was filed outside of the one-year prescriptive period.

Relative to the running of prescription on the claim for defamation regarding communication to the local paper, Clark does not make any allegation other than that the communication by the School Board’s public information officer to the local newspaper occurred on January 11, 2003. Absent from the petition is an allegation that Clark did not obtain knowledge of this communication within one year of that date or that he was prevented from filing a defamation claim with respect to this communication within the one-year time frame. Thus, we conclude that from the face of the petition Clark’s defamation action relative to the January 11th communication to the local paper was filed outside of the one-year prescriptive period.

Accordingly, it was incumbent on Clark to show that his claims related to the January 8th and 11th communications were not prescribed. See Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 508. The record on appeal is devoid of any evidence by Clark at the hearing on the exceptions. Therefore, we conclude that any defamation claims that he may have had with respect to the January 8th communication to the local authorities and the January 11th communication to the local paper had prescribed by the time of his February 6, 2004 filing.

In so holding, we are mindful that each and every publication, or communication, of a defamatory statement to a third person constitutes a separate cause of action. Wiggins, 475 So.2d at 781. However, we note that Clark did not advance any republication theory, i.e., publishing in the newspaper or subsequent criminal proceedings, in his petition so as to make a timely claim for defamation. Accordingly, the trial court erred in failing to sustain the defendants’ objection of prescription relative to the defamation claims asserted in Clark’s petition.

Decree

For the foregoing reasons, the - defendants’ application for supervisory writs is granted with respect to Clark’s claims arising from his allegations of wrongful termination and defamation. The trial court judgment overruling the defendants’ exception is reversed, and judgment is rendered in favor of the defendants, sustaining their objection of prescription relative to Clarks’ claims arising from his allegations of wrongful termination and defamation and dismissing these actions. Costs of this writ application are assessed to Arthur A. Clark.

WRIT GRANTED; JUDGMENT REVERSED AND RENDERED.

      . On May 14, 2004, Clark filed a petition for a writ of mandamus in connection with this incident, seeking reinstatement and back pay.

      . The defendants filed a separate exception raising the objection of prescription, as well as one asserting the objection of no cause of action, relative to the mandamus action.

      . The exceptions relating to the mandamus action were also denied. However, the trial court signed a judgment on the same date that denied and dismissed Clark’s petition for writ of mandamus. No action has been taken by Clark relative to the judgment dismissing his petition for writ of mandamus; thus, that portion of the defendants' writ action pertaining to the denial of their exception in the mandamus action is moot.

      . The, plaintiff has the burden of proving an interruption or suspension of the prescriptive period when his action has prescribed on the face'of his petition. Nicholson, 707 So.2d at 95.

      .In the case of a voluntary resignation, a teacher does not come within the provisions and protection of the tenure law. Thus, if Clark's departure was the result of a voluntary resignation, the School Board would not have been required to follow the provisions of the tenure law.

      . The School Board had no right to remove Clark from his position without first giving him a copy of the formal written charges and a hearing as prescribed by the statute. See State ex rel. DeBarge, 202 So.2d at 37.

      . A writ of mandamus pursuant to LSA-C.C.P. arts. 3861 through 3866 is the appropriate remedy to enforce a teacher’s rights where a permanent teacher is discharged without compliance with the provisions of the tenure law. The duty of a school board to follow the statutory provisions governing dismissal of a permanent teacher is purely ministerial and may be coerced by mandamus. A teacher covered by the tenure law who has been discharged without compliance with the provisions of the law is entitled to a writ of mandamus directing reinstatement and, incidentally, payment of salary. Hill v. Caddo Parish School Board, 250 So.2d 446, 449 (La.App. 2nd Cir.1971), citing State ex rel. Fields v. Rapides Parish School Board, 227 La. 290, 79 So.2d 312, 314 (1955). In this case, Clark filed a petition for writ of mandamus, which was dismissed by the trial court. There is no record of an appeal from that decision.

      . This provision contemplates the institution of an ordinary suit, by regular petition and citation, and after the filing of an answer by , the school board, a trial on the merits of the controversy. Houeye v. St. Helena Parish School Board, 220 La. 252, 56 So.2d 413, 415 (1951).

      . When words expressly or implicitly accuse the plaintiff of criminal conduct, the words are considered defamatory per se. When words are defamatory per se, the elements of falsity and malice are presumed, although this presumption may be rebutted by the defendant, Steed v. St. Paul’s United Methodist Church, 31,521 (La.App. 2nd Cir.2/24/99), 728 So.2d 931, 940, writ denied, 99-0877 (La.5/7/99), 740 So.2d 1290.

      . An action for defamation arising out of allegations made in judicial proceedings and against a party to those proceedings cannot be brought until those proceedings are terminated. Ballex v. Naccari, 95-0057 (La.App. 4th Cir.6/7/95), 657 So.2d 511, 512. One reason for that rule is that the cause of action does not arise until the party malting the allegations has had the opportunity of proving the truth of the allegations in the proceedings in which they are made. Loew’s, Inc. v. Don George, Inc., 237 La. 132, 110 So.2d 553, 561 (1959).