author: GENOVESE, Judge.

text:
    Marion Thomas TERRAL, Jr. v. JUSTISS OIL COMPANY, INC. and Employers General Insurance Company.
    No. 2007-1014.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.
    Rehearing Denied April 30, 2008.

      George A. Flournoy, Flournoy & Dog-gett, APLC, Alexandria, Louisiana, for Plaintiff/Appellant, Marion Thomas Terral, Jr.
    Donald R. Wilson, Gaharan & Wilson, Jena, Louisiana, for Defendants/Appellees, Justiss Oil Company, Inc. and Employers General Insurance Company.
    Court composed of BILLY H. EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

bln this workers’ compensation case, the employee is appealing a judgment denying his claim for supplemental earnings benefits, medical benefits, and penalties and attorney fees. For the following reasons, we affirm.

FACTS

Claimant, Marion Thomas Terral, Jr., was employed by Defendant, Justiss Oil Company, Inc. (Justiss Oil) , for several years as a gang pusher or “rig runner.” On September 3, 1999, Mr. Terral sustained a work-related injury to his lower back. Mr. Terral received workers’ compensation indemnity benefits based upon an average weekly wage of $699.54 through December 28, 2002.

Medical benefits were also provided to Mr. Terral for his treatment as a result of his work-related injury. He first saw a general practitioner, Dr. Joseph Mark Tarpley, who referred him to Dr. Troy M. Vaughn, a neurosurgeon. Dr. Vaughn opined that Mr. Terral sustained a soft tissue injury to his back. An MRI revealed that he had degenerative changes at L2-3 and bulging of the disc at Ll-2 and L2-3. Dr. Vaughn was of the opinion that Mr. Terral was not a surgical candidate and felt that Mr. Terral had reached maximum medical improvement (MMI) as of December 29, 1999. Dr. Vaughn also referred Mr. Terral to Dr. Stephen Katz, a pain management specialist.

When Mr. Terral obtained MMI status, Justiss Oil initiated vocational rehabilitation services. In connection with his vocational rehabilitation, Mr. Terral attended Louisiana Technical College — Shelby M. Jackson Campus (Louisiana Technical College) where he completed his studies in December of 2002. He [ 2obtained an Associate of Applied Technology diploma as an “associate computer technician” on January 22, 2003. Justiss Oil discontinued Mr. Terral’s indemnity benefits for temporary total disability (TTD), effective December 28, 2002, following Mr. Terral’s successful completion of the course. Vocational rehabilitation was also discontinued in February of 2003 when Mr. Terral secured full-time employment with the LaSalle Parish Sheriffs Department. Mr. Terral first worked as a jailer, and subsequently, as a deputy. Mr. Terral continued his employment with the LaSalle Parish Sheriffs Department through the date of trial.

In September of 2004, Mr. Terral experienced an exacerbation of his back pain when getting out of bed. Consequently, on September 9, 2004, Mr. Terral returned to see Dr. Katz who ordered an MRI. Justiss Oil denied authorization for the MRI. On October 13, 2004, Mr. Terral saw Dr. Vaughn who also requested authorization for an MRI. This request for an MRI was likewise denied. Thereafter, Mr. Ter-ral continued to treat with Dr. Katz for pain management.

In April of 2006, Mr. Terral saw Dr. Clark Gunderson, an orthopedic surgeon. Like Dr. Katz and Dr. Vaughn, Dr. Gun-derson requested an MRI. This MRI, which was approved by Justiss Oil, revealed disc herniations at L4-5 and L5-S1. Dr. Gunderson requested authorization for surgery.

In light of Dr. Gunderson’s surgical recommendation, Justiss Oil sought a second medical opinion. On November 13, 2006, Mr. Terral was seen by Dr. Donald Smith, a neurosurgeon. However, at that time, Dr. Smith was unable to make any “recommendation with regards to surgery or other aspects of therapy” due to the fact that he was not presented with the radiographic studies of Mr. Terral’s lumbar spine. After being provided with the necessary studies, Dr. Smith was deposed and rendered an opinion that the condition of Mr. Terral’s spine at L4-5 and L5-S1, for which the |,-¡surgery had been recommended, was not causally related to his original 1999 work-related accident.

Based on Dr. Smith’s opinion, Justiss Oil declined to authorize the surgery which Dr. Gunderson had recommended, and it requested an independent medical examination (IME). On February 2, 2007, the workers’ compensation judge (WCJ) denied Justiss Oil’s request for an IME, noting that “[t]he neurosurgeons do not differ in their opinions in regard to the issue of causation.”

Mr. Terral filed a disputed claim for workers’ compensation benefits (1008) on July 25, 2003. The matter proceeded to trial on the issues of Mr. Terral’s entitlement to SEB, surgery, additional vocational rehabilitation, and penalties and attorney fees. The WCJ ruled that Mr. Terral had failed in his burden of proving a causal connection between his 1999 compensable work-related accident and the finding of disc herniations in 2006; therefore, his claim for authorization of the surgery was denied. The WCJ also found that Mr. Terral was voluntarily underemployed and, thus, not eligible for supplemental earning benefits (SEB). Finally, the WCJ denied Mr. Terral’s claim for penalties and attorney fees. A judgment in accordance therewith was signed by the court on June 4, 2007. It is from this judgment that Mr. Terral appeals.

ISSUES

The issues raised on appeal are whether the WCJ erred: (1) in denying Mr. Ter-ral’s claim for SEB; (2) in refusing to order the surgery recommended by Dr. Gunderson; (3) in failing to award penalties and attorney fees; (4) in denying Mr. Terral’s claim for medical travel reimbursement; and (5) in admitting the deposition testimony of Dr. Smith with regard to causation.

JjLAW AND DISCUSSION

Standard of Review

In workers’ compensation cases, the factual findings of the trial court are subject to the manifest error standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305, p. 4 (La.2/28/94), 633 So.2d 129, 132; Freeman v. Poulan/Weed Eater, 93-1530, pp. 4-5 (La.1/14/94), 630 So.2d 733, 737-38. In applying the standard, the appellate court must determine not whether the trier of fact’s conclusion was right or wrong, but that it was reasonable. Freeman, 630 So.2d at 737-38; Stobart v. State, 617 So.2d 880, 882 (La.1993); Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous. Stobart, 617 So.2d at 882. Therefore, “if the [factfinder’s] findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Lebert v. McNeese State Univ., 05-856, p. 4 (La.App. 3 Cir. 2/1/06), 932 So.2d 678, 683 (alteration in original).

Entitlement to SEB

On appeal, Mr. Terral asserts that he “carried his burden of proving disability and resultant inability to earn at least [ninety percent] of his pre-injury wages.” He concludes, therefore, that in order to defeat his SEB claim, Justiss Oil was required to “prove that the employee is physically able to perform a certain job and that the job was offered or available to the employee in his community or reasonable geographic region” in accordance with Daigle v. Sherwin-Williams Co., 545 So.2d 1005 (La.1989), and Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. We disagree.

In order to be entitled to receive SEB, a claimant must prove by a preponderance of the evidence that he is unable to earn wages equal to ninety percent or more of the wages he earned before the accident. La.R.S. 23:1221(3)(a). In the | .¡instant matter, the WCJ found that Mr. Terral was “self-limiting his ability to earn at least ninety percent of his pre-injury wage.” Implicit in this finding is a determination that Mr. Terral failed to prove that he is “unable” to earn ninety percent or more of his pre-accident wages. Mr. Terral, therefore, failed to meet his burden of proof under La.R.S. 23:1221(3)(a). It is only when the initial burden of proof is met by Mr. Terral that the burden would shift to Justiss Oil.

The WCJ noted that Mr. Terral “is able to perform the level of activity required for [the job of deputy sheriff] and has not chose [sic] to seek employment that may yield a higher salary.” The testimony of Mr. Terral establishes that he was content working as a deputy sheriff and relished his job. His employment as a deputy sheriff was tantamount to a voluntary reduction in his income. Mr. Terral’s decision to remain in this position was his preference, and he has not established that he was “unable” to earn ninety percent or more of his pre-accident wages. “[A]ny worker able to earn, but not earning, [ninety percent] or more of the former wage is not entitled to [SEB].” Killen v. Cont’l Ins. Co., 514 So.2d 711, 714 (La.App. 2 Cir.1987) (citing Malone-Johnson, Louisiana Civil Law Treatise, Vol. 13, § 275, p. 96.) For the foregoing reasons, we find no manifest error in the WCJ’s factual finding on this issue.

Surgical Recommendation

Mr. Terral contends that the WCJ erred in refusing to order the surgery that had been recommended by Dr. Gunderson. We disagree. On the issue of the surgical recommendation, it was Mr. Terral who bore the burden of establishing a causal connection between the need for the surgery and the work-related accident of 1999. Cotton v. First Fleet, 07-41 (La. App. 3 Cir. 5/2/07), 957 So.2d 239, writs denied, 07-1486, 07-1544 (La.10/5/07), 964 So.2d 947, 948 (citing Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985)); Bollich v. Family Dollar, Inc., 05-1459 (La.App. 3 Cir. 6/21/06), 934 So.2d 249.

The WCJ summarized the evidence relative to the causal connection between Mr. Terral’s present back condition, for which Dr. Gunderson recommended surgery, and his work-related injury of 1999, as follows:

Claimant was diagnosed, following the 1999 accident, with congenital narrowing of the spinal canal and early degenerative changes at L2-3, along with mild annular bulging of the disc Ll-2. In March, 2000, he had reached maximum medical improvement. In February, 2003, he began working in a full time position as a deputy sheriff. In 2004, intervening occurrences caused him to seek medical treatment. In 2006 an MRI revealed ruptured discs. The facts as illustrated hereinabove do not show a correlation between the disc rupture findings in 2006 and the degenerative changes of 1999. Medical evidence suggests] it was claimant’s degenerative condition that predisposed him to the 2004 injury and not the 1999 accident. The evidence leaves the probabilities evenly balanced and shows only a possibility of a causative connection between the initial injury and the ruptured disc. It is equally possible that the ruptured disc found in 2006 occurred as a result of a 1999 accident as it is that it occurred from intervening events of 2004 as described herein. A finding of a causative connection is contrary to medical evidence and could only be based upon speculation or conjecture.

We find this factual finding of the WCJ to be wholly supported by the record. Dr. Vaughn’s diagnosis of Mr. Terral following his 1999 accident was a soft tissue injury to his back with degenerative changes at L2-3 and a bulging of the disc at Ll-2 and L2-3. He did not feel that surgery was warranted at that time. As of 1999, Dr. Vaughn was of the opinion that Mr. Terral was at MMI. While we recognize that Mr. Terral did undergo pain management treatment, it was not until 2006 that Dr. Gunderson ordered an MRI which revealed ruptured discs at L4-5 and L5-S1. The inability of Mr. Terral to causally connect the ruptured discs diagnosed in 2006 to the 1999 work-related accident was clearly explained by Dr. Smith. Dr. Smith pointed |7out that there were no injuries noted to the L4-5 and L5-S1 areas of Mr. Terral’s spine as a result of his 1999 workers’ compensation accident.

No credence can be given to Mr. Terral assertions that “there had been no intervening accidental, traumatic injuries in the interim.” Mr. Terral himself testified that in October of 2004, he experienced an exacerbation of his back pain while getting out of bed which, in his words, was “new.” Mr. Terral’s back pain was significant enough that he sought emergency room treatment for his back on three occasions in October of 2004. Notably, at that time, he was engaged in full-time employment with the sheriffs department. Additionally, Mr. Terral acknowledged that in 2003 he had been involved in a motor vehicle accident where he was hit “head-on.” Although Mr. Terral’s complaints following that accident were primarily of his neck and head, they were significant enough for him to have sought medical treatment.

We agree with the conclusion of the WCJ that a finding of causation “could only be based upon speculation or conjecture.” “If the evidence is evenly balanced or shows only some possibility that a work-related event produced the disability or leaves the question open to speculation or conjecture, then the plaintiff fails to carry the burden of proof.” Albert v. Trans Met Inc., 38,261, p. 5 (La.App. 2 Cir. 6/23/04), 877 So.2d 183, 188 (citing Emilien v. U.R. Constr., 02-278 (La.App. 4 Cir. 10/30/02), 832 So.2d 345; Shelton v. Wall, 614 So.2d 828 (La.App. 2 Cir.1993); Williams v. Louisiana Coca-Cola Co., 94-810 (La.App. 5 Cir. 3/1/95), 652 So.2d 108); Bollich, 934 So.2d 249. We find, therefore, that Mr. Terral failed to satisfy his burden of proving the requisite causal connection between his 1999 work-related accident and the diagnosed ruptured discs in 2006 and concomitant surgical recommendation of |sDr. Gunderson. Therefore, we find no manifest error in the WCJ refusing to order the surgery as recommended by Dr. Gunderson.

Penalties Pursuant to La.R.S. 23:1201(F), (I), and (J)

Mr. Terral contends that the WCJ erred in denying his claim for penalties and attorney fees. Specifically, he asserts in his brief that he is entitled to penalties pursuant to La.R.S. 23:1201(F) for the failure of Justiss Oil to authorize the MRI requested by Dr. Vaughn and Dr. Katz, and its failure to authorize the surgery recommended by Dr. Gunderson. Mr. Terral also appeals the WCJ’s denial of his claim for penalties pursuant to La.R.S. 23:1201(1) for the termination of his TTD in December of 2002. Finally, he contends that he is entitled to an attorney fee award pursuant to La.R.S. 23:1201(J). We find no merit to these contentions.

Louisiana Revised Statutes 23:1201 provides, in pertinent part, as follows:

F. Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 28:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.
_]⅛ • • •
I. Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:658(C) shall be applicable to claims arising under this Chapter.
J. Notwithstanding the fact that more than one violation in this Section which provides for an award of attorney fees may be applicable, only one reasonable attorney fee may be awarded against the employer or insurer in connection with any hearing on the merits of any disputed claim filed pursuant to this Section, and an award of such single attorney fee shall be res judicata as to any and all conduct for which penalties may be imposed under this Section which precedes the date of the hearing.

Failure to Authorize MRI and Failure to Authorize Surgery

Louisiana Revised Statutes 23:1203 requires an employer to provide all reasonable and necessary medical treatment to an employee who sustains a work related injury. Louisiana Revised Statutes 23:1201(F) provides for the imposition of a penalty when an employer fails to fulfill this obligation. However, the medical treatment must be causally related to the work-related injury, and it must be appropriate. Fritz v. Home Furniture-Lafayette, 95-1705 (La.App. 3 Cir. 7/24/96), 677 So.2d 1132.

Justiss Oil does not dispute that it based its denial of the requested MRI on the recommendation of an independent medical review agency. Notably, the request came approximately five years after the work-related injury. Additionally, since Mr. Terral had been discharged by Dr. Vaughn in 1999, he had not been seen by either an orthopedist or a neurosurgeon. Similarly, with respect to the surgical | inrecommendation, the WCJ concluded that Justiss Oil “had a reasonable basis to deny the recommended surgery due to the intervening occurrences of September, 2004, and the medical changes noted on MRIs taken in 1999 and 2006. That same basis justified defendant’s denial of the request for the second MRI.”

For the reasons discussed above, we find that Justiss Oil reasonably controverted the request for the MRIs and the surgical request of Dr. Gunderson on the basis of lack of causation. Our review of the record, at the very least, presents two permissible views of the evidence thereby negating Mr. Terral’s claim that the WCJ was manifestly erroneous or clearly wrong. Discontinuance of TTD

Mr. Terral asserts that the discontinuance of TTD by Justiss Oil upon his completion of the computer course with Louisiana Technical College warrants the imposition of penalties. We find no merit to this contention.

The medical evidence clearly established that Dr. Vaughn was of the opinion that Mr. Terral had reached MMI by December of 1999. As of his report of March 29, 2000, Dr. Vaughn had “no further treatment recommendations.” He also indicated that he agreed with the functional capacity evaluation that had been performed which indicated that Mr. Terral was able to perform light-duty work. “A worker who is able to perform light duty work is not entitled to [TTD] benefits.” Clark v. Town of Basile, 01-1203, p. 8 (La.App. 3 Cir. 3/27/02), 812 So.2d 879, 884, writ denied, 02-1204 (La.6/21/02), 819 So.2d 332 (citing Holden v. Int’l Paper Co., 31,104 (La.App. 2 Cir. 10/28/98), 720 So.2d 442, writ denied, 98-2956 (La.1/29/99), 736 So.2d 834). Accordingly, the failure of the WCJ to award Mr. Terral a penalty for the discontinuance of his TTD benefits was not manifestly erroneous.

jjjAttorney Fees

Mr. Terral also appeals the WCJ’s failure to award him attorney fees pursuant to La.R.S. 23:1201(J). For the reasons set forth above, we find that Justiss Oil was not arbitrary and capricious in its handling of Mr. Terral’s claims. Having found that the employer reasonably controverted the claims asserted by Mr. Terral, the WCJ was not clearly wrong in denying his claim for attorney fees.

Medical Travel Reimbursement

From our review of the record, there is no indication that medical travel reimbursement was an issue before the trial court. We agree with Justiss Oil that “[t]here is no evidence in the record of any request for payment of mileage expense, nor is there any indication that [Mr. Ter-ral] ever advised [Justiss Oil] that this expense, and the amount thereof, had ever been incurred.” Consistent therewith is the testimony of Mr. Terral himself wherein he stated that he did not submit mileage expenses to Justiss Oil for reimbursement after December of 2002. Mr. Terral explained that when he received correspondence advising of the termination of benefits, “he assumed that everything was over and nothing more would be paid.” We, therefore, find no manifest error in the WCJ’s denial of Mr. Terral’s claim for medical travel reimbursement.

Deposition Testimony of Dr. Smith

Mr. Terral asserts on appeal that the trial court erred in admitting the deposition testimony of Dr. Smith with regard to causation. We find no merit to this contention.

It is undisputed that the deposition of Dr. Smith was duly noticed. On the afternoon of the scheduled deposition, Plaintiffs counsel advised counsel for Justiss Oil that he would not participate in the deposition because he had not been provided l^with a copy of Dr. Smith’s written report. Counsel for Mr. Terral did not move to quash the deposition. Instead, he chose not to participate. Accordingly, no objections were made during the taking of the deposition since counsel chose not to participate.

Counsel for Mr. Terral did not file a motion in limine, to exclude the deposition of Dr. Smith. When counsel for Justiss Oil attempted to introduce Dr. Smith’s deposition at trial, counsel for Mr. Terral objected. Although the assertion is made in brief that “[pjlaintiff timely objected!,]” we disagree. In fact, there was no objection made by counsel for Mr. Terral to the testimony of Dr. Smith on the issue of causation during the deposition.

Mr. Terral contends that “[t]he purpose of the examination was specified-to see whether Dr. Smith agreed with the reasonableness of the surgery proposed by Dr. Gunderson.” He argues that “[t]he request for the second medical opinion by Dr. Donald Smith did not mention causation as an issue nor as a reason for the second medical opinion examination.”

Dr. Smith is a board certified neurosurgeon who examined Mr. Terral. It was certainly within the ambit of Dr. Smith’s expertise to give an expert medical opinion on whether the surgery which had been recommended was related to the injuries which Mr. Terral had sustained. For the foregoing reasons, we find no error in the WCJ admitting the deposition testimony of Dr. Smith on the issue of causation.

| ^DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in all respects. Costs of this appeal are assessed against Marion Thomas Terral, Jr.

AFFIRMED.

      . Employers General Insurance Group, the workers' compensation liability insurer of Justiss Oil Company, Inc., is also named as a defendant herein. Unless otherwise noted, Justiss Oil and Employers General Insurance Group are collectively referred to herein as “Justiss Oil.”

      . The record reflects that although Dr. Smith had prepared a written report, it had not been forwarded to counsel for Justiss Oil. Consequently, neither counsel had a copy of Dr. Smith’s report prior to his deposition; thus, the fact that Mr. Terral’s counsel did not have a copy of Dr. Smith’s written report prior to his deposition was not attributable to the action or inaction of counsel for Justiss Oil.

      . Three grounds were asserted as a basis for the objection. First, counsel asserted that the deposition was inadmissible since he had objected to it being taken without his being furnished Dr. Smith’s written report prior thereto. Second, counsel asserted that the deposition was inadmissible because he had never been furnished with a copy of the deposition. Counsel’s third objection was that which he raises on appeal relative to Dr. Smith's testimony on the issue of causation.


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    IESI LA CORPORATION v. LASALLE PARISH POLICE JURY, et al.
    No. CA 2007-1096.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.
    Writ Denied April 7, 2008.
    Rehearing Denied April 23, 2008.

      Walter Evans Dorroh, Jr., Attorney at Law, Jena, LA, for Defendant/Appellee, LaSalle Parish Police Jury.
    Albin Alexandre Provosty, Provosty, Sadler, deLaunay, Alexandria, LA, for Defendant/Appellant, CWI-White Oaks Landfill, L.L.C.
    Donald Wilson, Gaharan & Wilson, Jena, LA, for Defendant/Appellee, LaSalle-Grant Solid Waste Disposal District.
    Michael John O’Shee, Stephen A. La-Fleur, Edward E. Rundell, Gold, Weems, Bruser, Alexandria, LA, for Plaintiff/Ap-pellee, IESI LA Corporation.
    Gregory Lynn Jones, Attorney at Law, Pineville, LA, for Secondary Defendant/Appellant, Town of Pollock.
    James Patrick Lemoine, District Attorney, Thirty-Fifth Judicial District Court, Colfax, LA, for Defendant/Appellee, Grant Parish Police Jury.
    Bonita K. Preuetb-Armour, Armour Law Firm, Alexandria, LA, for Defendant/Appellee, Grant Parish Police Jury.

      Rick L. Farrar, Farrar & Farrar, Pine-ville, LA, for Defendant/Appellant, CWI-White Oaks Landfill, L.L.C.
    Michael Lee DuBos, Attorney at Law, Monroe, LA, for Defendant/Appellant, CWI-White Oaks Landfill, L.L.C.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

|! This case comes before this court on a trial court’s refusal to dissolve a preliminary injunction. IESI LA Corporation (IESI) filed a petition for a preliminary injunction to prevent CWI-White Oaks Landfill, L.L.C. (CWI) from constructing and operating a solid waste pickup station on land owned by the Town of Pollock in Grant Parish. IESI had been granted the exclusive contract to handle solid waste disposal services in the parishes of LaSalle and Grant by the LaSalle-Grant Solid Waste Disposal District.

FACTS

Pursuant to La.R.S. 33:8001, any parish governing authority may create garbage districts. In 1990, LaSalle and Grant parishes entered into an intergovernmental agreement in which both parishes agreed to jointly operate a solid waste landfill owned by and located in LaSalle Parish. 1990 La. Acts No. 781, § 1, created the LaSalle-Grant Solid Waste District (Solid Waste District). IESI became manager of the landfill pursuant to a September 15, 1994 contract which was executed by IESI’s predecessor in interest, Trans-America Waste Industries, Inc., and the parishes of LaSalle and Grant.

Desiring to transport waste to its landfill in Ouachita Parish, CWI sought to construct a pickup station in Grant Parish in 2004. In August 2004, CWI purchased a seventeen-acre tract in Grant Parish. The situation did not pan out for this piece of property, so CWI began negotiations with the town of Pollock to lease property from it.

In November 2004, IESI filed a petition for injunctive and declaratory relief against the LaSalle Parish Police Jury, the Grant Parish Police Jury, the Solid Waste District, and the individual members of the Grant Parish Police Jury. IESI alleged | ¡.that the Solid Waste District was the sole governing authority within its territorial boundaries with regard to the handling and disposal of solid waste. IESI further alleged that the Solid Waste District’s approval was necessary before solid waste could be handled within it.

After a hearing, the trial court issued a preliminary injunction on January 17, 2005, enjoining the LaSalle Parish Police Jury and the Grant Parish Police Jury from taking any action to authorize the construction or operation of a waste handling facility without first asking and receiving approval from the Solid Waste District.

Subsequently, IESI amended its petition to add CWI as a defendant seeking a preliminary injunction enjoining CWI from constructing a pickup station. A hearing was held on August 15, 2005. The trial court denied IESI’s motion for preliminary injunction. However, the trial court held that it would grant the preliminary injunction ex parte, without notice or hearing, if IESI filed evidence of the initiation of construction or operation of a solid waste handling facility with the Solid Waste District.

Meanwhile on July 5, 2005, Pollock annexed additional property. Pollock then executed a lease with CWI On September 21, 2005, to construct and operate a solid waste pickup station on the annexed property. In response, IESI filed a second amending petition adding Pollock as a defendant on June 21, 2006. An ex parte order for a preliminary injunction was entered against CWI on July 10, 2006, enjoining it from constructing or operating a solid waste facility.

A hearing on the motion for preliminary injunction against Pollock was held on July 14, 2006. At the conclusion of the hearing, the trial court granted a preliminary injunction against Pollock and also modified the previous ex parte preliminary injunction issued against CWI. On July 26, 2006, the trial court executed |san order modifying the July 10, 2006 preliminary injunction to permit CWI to construct, but not to operate, a solid waste handling facility within Pollock.

CWI sought a writ of review to this court with respect to the issuance of the ex parte preliminary injunction. This court denied the writ application finding that an adequate remedy by appeal existed. No appeal was taken.

In February 2007, both CWI and Pollock filed motions to dissolve the preliminary injunctions. A hearing was held on March 12, 2007. The trial court denied the motions to dissolve, and judgment was signed on March 20, 2007. Both CWI and Pollock appealed the denial of their motions to dissolve.

PREMATURE APPEAL

CWI specifically requested an award of damages for wrongful issuance of the preliminary injunction. IESI argues that CWI’s appeal is premature and should be dismissed because the damages part of CWI’s claim was not adjudicated.

Pursuant to La.Code Civ.P. art. 3608, the court may allow damages for the wrongful issuance of a preliminary injunction. In the present case, the trial court found that the issuance of the preliminary injunction was proper. Therefore, the issue of damages was moot. We find that the judgment rendered by the trial court was a final, appealable judgment.

IESI also argues that CWI and Pollock should have appealed the judgments which issued the preliminary injunctions. It argues that the hearing of this appeal is a waste of judicial resources when the same issues are to be presented to this court following a trial on the permanent injunction.

Louisiana Code of Civil Procedure Article 3607 allows an interested person to move to dissolve a preliminary injunction as long as the person gives the adverse party two days’ notice, or on shorter notice as determined by the court. Furthermore, La.Code Civ.P. art. 3612(B) provides that “[a]n appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction.... ” By law, CWI and Pollock are entitled to appeal the judgment denying their motions to dissolve. Therefore, we will now address the merits of their case.

MOTION TO DISSOLVE PRELIMINARY INJUNCTION

Louisiana Code of Civil Procedure Article 3601 provides that an injunction shall issue in cases where irreparable injury, loss, or damage may result to the applicant. A party is entitled to a preliminary injunction if he makes a prima facie showing that he will prevail on the merits. Lake Bistineau Pres. Soc., Inc. v. Seales, 40,583 (La.App. 2 Cir. 2/10/06), 922 So.2d 768, writ denied, 06-620 (La.5/26/06), 930 So.2d 27. “The issuance of a preliminary injunction will not be disturbed on appeal absent a clear abuse of discretion.” Herff Jones, Inc. v. Girouard, 07-393, p. 7 (La. App. 3 Cir. 10/3/07), 966 So.2d 1127, 1133.

Both CWI and Pollock claim that IESI failed to carry its burden to make a prima facie showing sufficient to merit the issuance of the preliminary injunction. They claim that the preliminary injunction is improper because Pollock is not within the Solid Waste District and they are entitled to dissolution of the preliminary injunctions issued against them.

In State v. Meche, 98-327, p. 6 (La.App. 3 Cir. 12/16/98), 724 So.2d 847, 850, this court quoted with approval Attorney General Opinion Number 82-457, p. 1 (July 27, 1982), which explained the extent of a parish’s authority over its municipalities as follows:

It has been the opinion of this office that the Louisiana Legislature through Title 33 of the Louisiana Revised Statutes has given complete control and jurisdiction over the incorporated areas of a municipality to the governing body of each particular municipality. This title also gives the complete control and jurisdiction of all ^unincorporated areas of a parish to the parish police jury. The parish governing authorities and the municipal governing authorities are separate and distinct governing bodies and neither can legally exert its authority outside its jurisdiction.
Thus, it is the opinion of this office that a parish governing body has no general power or authority over incorporated municipalities within the parish.

Louisiana Revised Statutes 33:7702(A) provides the authority for a parish governing authority to create a consolidated special service district. It also specifically provides that “no consolidated garbage district shall include territory within the corporate limits of any municipality.” Louisiana Revised Statutes 33:8041 (emphasis supplied), which created the La-Salle-Grant Solid Waste Disposal District provides as follows:

A. There is hereby created the La-Salle-Grant Solid Waste Disposal District, hereinafter referred to as the “district”. The district shall be composed of all territory within the geographic limits of the parishes of Grant and LaSalle and may include all territory within any municipality within these parishes at the request of the governing authority of such municipality. Notwithstanding any laws to the contrary, other parishes shall be allowed to dispose of their waste within the district with the approval of a majority of the board of commissioners of the district.
B. The purpose of the district is to provide solid waste disposal within its jurisdiction.

There is no doubt that municipalities were specifically excluded from inclusion in these specially-created service districts of parishes. However, a municipality may be included in the Solid Waste District should it request such. Further support for this conclusion is found in La.R.S. 33:7702(C):

As a prerequisite to the creation of any consolidated special service district, the governing authority of the parish shall be furnished with a certified copy of a resolution, adopted by the governing authority of each existing district to be consolidated and by the governing authority of each municipality all or part of whose territory is proposed to be included in the consolidated district, requesting the parish to create a consolidated special service district and describing and defining the | ^boundaries thereof.

IESI cites La.R.S. 33:8043(2) for the proposition that authorization of the commission which governs the Solid Waste District is required before construction of any solid waste handling facilities within LaSalle Parish or Grant Parish. Louisiana Revised Statutes 33:8043(2) provides that the commission has the power “[t]o provide for the establishment, operation, and maintenance of a solid waste disposal system, including areas within the corporate limits of municipalities within the parishes.”

Reading this statute in parae materia with the other previously cited statutes, it is clear that once a municipality decides to participate in the Solid Waste District, then the commission is in charge of the solid waste system within that municipality. We find no conflict here.

At the July 14, 2006 hearing, the trial court recognized that Pollock was not part of the Solid Waste District. The court then went on to hold that the Solid Waste District still had authority over the newly-annexed land because it had the authority before the land was annexed. This was the basis for the trial court’s modification of the July 10, 2006 preliminary injunction. The July 26, 2006 modified preliminary injunction allowed CWI to construct a solid waste handling facility on the annexed premises but it still could not operate it without first obtaining permission from the Solid Waste District.

In Calcasieu Sanitation Service, Inc. v. City of Lake Charles, 118 So.2d 179 (La. App. 1 Cir.1960), the court considered the effect of annexation by the City of Lake Charles of territory which was covered by a contract that had been granted to a garbage collection service. The court cited La.R.S. 33:179, which provides:

Where the corporate limits of municipalities have been extended or enlarged as hereinabove provided, the annexed territory, the | inhabitants thereof, and the owners of property therein shall enjoy as to themselves and their property all the rights, immunities, and privileges granted and enjoyed by the citizens of the municipality to which the territory has been annexed.

Quoting the trial court, the court of appeal held that “ “the contract was entered into [by the garbage collection service] subject to the right of the city and the inhabitants to annex portions of the area included in the garbage district”, and the contract is thus subject in the respect noted to the legal effects resulting from such annexation.” Calcasieu Sanitation Serv., Inc., 118 So.2d at 180.

Once Pollock annexed the subject property, the property ceased to be under the control of the Solid Waste District since Pollock is not a member of it. Therefore, the LaSalle-Grant Parish Solid Waste District has no jurisdiction over the subject property. The trial court erred in not dissolving the preliminary injunctions issued against CWI and Pollock.

For these reasons, the judgment of the trial court is reversed. We hereby dissolve the preliminary injunction against CWI entered on July 10, 2006, and as modified on July 26, 2006. The preliminary injunction entered against the Town of Pollock on July 26, 2006, is also dissolved. This matter is remanded for further proceedings. Costs of this appeal are assessed to IESI LA Corporation.

REVERSED AND REMANDED.


author: THIBODEAUX, Chief Judge.

text:
    Thomas Neil GUIDRY, Jr. v. Theresa Kaiser GUIDRY.
    No. 2007-1272.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Gregory B. Dean, Dean Law Offices, Opelousas, LA, for Defendant/Appellee— Theresa Kaiser Guidry.
    Elizabeth A. Dugal, Richard R. Kennedy, Lafayette, LA, for Plaintiff/Appellant — Thomas Neil Guidry, Jr.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and GLENN B. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

11 This case involves a custody dispute between the plaintiff-appellant, Thomas Neil Guidry, Jr. (Neil Guidry) and the defendant-appellee, Theresa Kaiser Gui-dry. Following a bench trial, the trial court denied Neil Guidry’s request for a change of domiciliary custody of the parties’ minor child, Olivia. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

We must decide whether the trial court erred in denying domiciliary custody of the minor daughter of the parties to the father, Neil Guidry.

II.

FACTS AND PROCEDURAL HISTORY

In October of 2006 the divorced parties entered into a consent judgment awarding domiciliary custody of Matthew, age fifteen (15), to his father, Neil Guidry, and awarding domiciliary custody of Olivia, age fourteen (14), to her mother, Theresa Guidry. The parents resided one block away from each other in Krotz Springs, Louisiana, and visitation was to be every other week for both parties; that is, seven days -with each parent. The consent judgment further provided that neither party would pay child support and that any claim to back child support would be waived. Finally, the consent judgment ordered that the parents and the children all go to counseling, and that the case would be reviewed in three months. Because of Matthew’s troubled relationship with his mother, Matthew’s visitation with her was to follow the recommendations of the counselor and Matthew’s own wishes.

In February of 2007, Neil Guidry filed a Rule for domiciliary custody of Olivia and for child support. The trial court denied any change in domiciliary ^custody. The new 2007 judgment continued the 2006 consent judgment with an additional order for all four of the Guidrys to go to one family counselor at the same time to work out their problems. The judgment ordered that the family counselor follow the requirements of La.R.S. 9:331 and provide a written report to the court.

Neil Guidry appealed the judgment of the trial court denying his Rule for custody of Olivia and for child support. The parties attended counseling as ordered, and the counselor furnished the requested report to the trial court in October of 2007. Theresa Guidry answered Neil’s appeal and attached a copy of the October 2007 report to her answer. Neil Guidry filed a motion with this court to strike the post trial report by the family counselor. For the following reasons, we strike the post-trial report of the family counselor as inadmissible evidence in this appellate court.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court’s findings of fact in absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). This is especially applicable in a child custody dispute wherein appellate courts accord substantial deference to the trial judge’s conclusions. “The trial judge is in a better position to evaluate the best interest of a child from his observance of the parties and the witnesses and his decision will not be disturbed on review absent a clear showing of abuse.” Deason v. Deason, 99-1811, p. 2 (La.App. 3 Cir. 4/5/00), 759 So.2d 219, 220 (citing State in the Interest of Sylvester, 525 So.2d 604, 608 (La.App. 3 Cir.1988) (citing Bagents v. Bagents, 419 So.2d 460 (La.1982))).

| ¡¡Every child custody case must be viewed within its own peculiar set of facts, and a trial court’s award of custody is entitled to great weight and will not be overturned on appeal unless an abuse of discretion is clearly shown. Connelly v. Connelly, 94-527 (La.App. 1 Cir. 10/7/94), 644 So.2d 789. Both the Louisiana Legislature and the Louisiana Supreme Court have made it abundantly clear that the primary consideration and prevailing inquiry is whether the custody arrangement is in the best interest of the child. See Evans v. Lungrin, 97-541, 97-577 (La.2/6/98), 708 So.2d 731.

Admission of the Post-Trial Report

As a threshold matter, the October 2007 report of the post trial family counseling sessions is not properly before this court. An appellate court cannot consider evidence which was not part of the record made in the trial court. White v. West Carroll Hosp., Inc., 613 So.2d 150 (La.1992). Accordingly, the report will be stricken, and those portions of Theresa Guidry’s brief that discuss the report will not be considered by this court as part of the current appeal.

Burden of Proof

Neil Guidry contends that the trial court erred in denying a change in custody that would render him the domiciliary parent of Olivia. Where, as here, the underlying custody decree is a stipulated or consent judgment, rather than a considered decree, the party seeking modification of the decree must prove that (1) there has been a material change of circumstances since the custody decree was ^entered, and (2) the proposed modification is in the best interest of child. Hensgens v. Hensgens, 94-1200 (La.App. 3 Cir. 3/15/95), 653 So.2d 48, writ denied, 95-1488 (La.9/22/95), 660 So.2d 478. The party is not required to prove under Bergeron that continuation of the present custody arrangement is so deleterious to the child as to justify modification or that the harm likely to be caused by a change of environment is substantially outweighed by the advantages to the child. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731.

Material Change in Circumstances

Mr. Guidry has not shown a material change in circumstances. Also contrary to Mr. Guidry’s assertion, the trial court did briefly address this issue by twice stating that Mr. Guidry had shown “almost nothing” in this regard, and the record supports the trial court’s finding. Neil Guidry argues that, after the October 2006 consent judgment, Olivia has said that she wants to live with her father, that she is tired of going house to house, that Olivia and Matthew now attend the same school, and Olivia wants to spend 'more time with her brother. These feelings do not represent a material change in circumstance justifying a change in custody.

Olivia expressed the desire to live with her father in 2004, prior to the consent judgment in 2006. Therefore, the fact that Olivia and Matthew now go to the same school militates in favor of not changing the custody arrangement because the siblings have more time together now that they are in the same school. With regard to the packing and going house to house, visitation with both parents is every other week; that is, seven days with each parent, and this requires packing and going house-to-house. Neither party has suggested that visitation be stopped or that the parties reconcile completely, which are the only two circumstances that will prevent Olivia’s having to pack and go to each party’s house. This is an unfortunate result of divorce, [fibut can be somewhat alleviated by the parents each providing for Olivia’s necessities in order to minimize the packing.

Best Interests of the Child

With regard to the second criteria, La.Civ.Code art. 134 requires the courts to consider all relevant factors in determining the best interest of the child, and it provides a list of factors that the courts may use to assist them in reaching their decisions. In this case, the trial court considered the factor of the influence that Neil and Matthew, neither of whom has made significant strides in getting past the divorce, have over Olivia. Matthew deliberately misbehaved at school and at his mother’s house and managed to get expelled from both. The court indicated in oral | ^reasons that Matthew was controlling everything at age sixteen and that Neil had given him too much information about the divorce. Olivia is an “A” student and was characterized by the counselor, Patricia M. Lafleur, who examined the family members at different sessions, as the most well-adjusted person in the family. The record reveals that the mother and daughter love each other very much, and Olivia enjoys doing things with her mother.

The trial court addressed the factors of La.Civ.Code art. 134 and determined that both parents love their children and have equal capacity to provide for the needs of the children. The record indicates that Neil does construction work in a town about seventy-five miles away from his home, and that Theresa is an X-ray technician at Opelousas General Hospital. While the court often lapsed into criticism of both parents’ inability to handle Matthew instead of focusing its comments on Olivia, it is clear that the court felt that Neil Guidry had a history of being less willing to facilitate and encourage a close and continuing relationship between the children and their mother. This is supported by the record. Dr. Timothy J. Trant, Ph.D., a licensed psychologist at the Counseling Center of South Louisiana, reported in August of 2006 that “Mr. Guidry spent a large portion of the interview denigrating Ms. Kaiser’s ability in her spousal and parental roles.”

Dr. Trant further reported that, during his interview with Matthew, Matthew admitted that his father had probably told him too much about the difficulties between his parents. Other evidence in the record indicated that Neil Guidry recorded and played a tape to his children of Theresa Guidry on the telephone with another male. Dr. Trant indicated that Matthew’s strong negative attitude toward his mother was a result of his own interactions with her and “his exposure to negative and hostile opinions expressed by Mr. Guidry regarding Ms. Kaiser.” Ms. |7Lafleur reported that she felt that Matthew was carrying his father’s rage toward the mother. Dr. Trant spoke much of Mr. Guidry’s resentment toward and denigration of Theresa. He further reported that “a simple psychological principle states that when individuals with similar opinions associate, their existing opinions get stronger.” While Dr. Trant did not interview Olivia, it is clear that the court felt that Neil and Matthew would negatively influence Olivia’s relationship with her mother.

Ms. Lafleur reported that Olivia and her mom were best friends and enjoyed doing things together, and that when either Olivia or Matthew needed something on short notice, Theresa was the one who ran the errands and attended to their needs, even if Matthew’s need was communicated through Olivia. Theresa, plays softball with Olivia and used to be her team’s softball coach through the eighth grade. According to Ms. Lafleur, Olivia’s preference for living with her father is largely based upon the fact that she misses being with her brother, who is at the father’s house. Matthew drives to school, and Olivia gets to ride with him when she is there. She misses that and the friends coming over to see Matthew at the father’s house.

Both parents are. seeing other people. Olivia does not care for her mother’s boyfriend, nor does she like the children of the woman that the dad is dating. Both parents testified at trial that they limited their activities with their significant others when the children were with them. The trial court indicated that he always considers the preference of the child, but he looks at maturity and makes the best call under the circumstances. Ms. Lafleur stated that the child should always be heard regarding her preference, but the decision should “absolutely not” be left to the child to make.

IsNeil Guidry argues that the trial court ignored the rule about family solidarity and cites Howze v. Howze, 99-852 (La.5/26/99), 735 So.2d 619, which held that, when feasible, a court should shape its orders in child custody cases to maintain family solidarity. There, the court found that it was not appropriate to separate two brothers, at approximately ages two (2) and seven (7) years old where there was no expert testimony introduced at the hearing which would tend to show that separating the children was in their best interests. Howze is clearly distinguishable from the present case, given the gender and age differences and the presence of expert testimony in this case.

Neil Guidry also cited two other cases which are distinguishable rather than analogous to the present case. In Winzor v. Winzor, 03-329 (La.App. 3 Cir. 10/1/03), 856 So.2d 107, a panel of this court found that the best interest of children was to remain together where the middle and youngest of three children suffered mental and physical problems, and where the smaller children with special needs would rely on the older child, “more than in a situation where the siblings are closer in age.” Id. at 115. Similarly, in Theriot v. Huval, 413 So.2d 337 (La.App. 3 Cir.1982), custody of three children ages fifteen (15), eleven (11) and six (6) years of age was awarded to the father where the mother intended to move herself and the children fifty-five (55) miles away from the family home in order to be near her boyfriend.

The common thread that does run between the cited cases and the present case is that the courts always seek to determine the best interests of the children involved. In the present case, we believe that the trial court has done just that. Accordingly, based upon the specific facts of this case, we believe that it is in Olivia’s best interest to remain with her mother and to enjoy alternating seven days with each parent.

_kiv.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court in all respects. All costs of appeal are assessed against Thomas Neil Guidry, Jr.

AFFIRMED.

      . When a trial court has made a considered decree of permanent custody, the party seeking a change bears a heavy burden of proving that the continuation of the present custody is "so deleterious to the child as to justify a modification of the custody decree,” or of proving by "clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193, 1200 (La.1986).

      . Art. 134. Factors in determining child’s best interest
      The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
      (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.


author: PAINTER, Judge.

text:
    Geneva VIDRINE, et al. v. Jason T. LAFLEUR, Louisiana Farm Bureau Insurance Company, and Louisiana Farm Bureau Casualty Insurance Company.
    No. 2007-1299.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Frank M. Walker, Jr., Plauche, Smith & Nieset, Lake Charles, LA, for Defendant-Appellant Louisiana Farm Bureau Casualty Insurance Company.
    Jason M. Welborn, Joseph F. Gaar, Jr., J.P. D’Albor, Attorneys at Law, Lafayette, LA, for Plaintiffs-Appellees Geneva and Winston Vidrine.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE.
   PAINTER, Judge.

| ¶ Plaintiffs, Geneva and Winston Vidrine, filed a motion for summary judgment seeking a declaration that a farm liability policy issued to Defendant, Jason LaFleur, provided coverage for an automobile accident based on allegations that Mr. La-Fleur negligently attached his utility trailer to his pick-up truck. The trial court granted the motion for summary judgment. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On June 17, 2005, Mr. LaFleur was driving his pick-up truck on U.S. Highway 167. Attached to his truck was a utility trailer carrying an all terrain vehicle (ATV). Mr. LaFleur was en route from one farm field to another, and, according to Mr. LaFleur, he intended to use.the ATV to check the water levels in certain rice fields. The utility trailer became detached from the truck and struck Mrs. Vidrine’s vehicle, which was also traveling on Highway 167. Mrs. Vidrine allegedly suffered severe injuries in the accident.

Mrs. Vidrine and her husband filed suit against Mr. LaFleur and his automobile insurer, Louisiana Farm Bureau Insurance Company (Farm Bureau). Farm Bureau has apparently accepted coverage for the accident, and this policy is not at issue in this appeal. Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau Casualty), which provided a farm liability policy to Mr. LaFleur, was added as a defendant some time later. Farm Bureau Casualty denied coverage based upon an “automobile use” exclusion in the policy. Farm Bureau Casualty filed a motion for summary judgment on the issue of coverage, which the trial court denied on August 16, 2006, on the basis of a finding that there was a material factual dispute as to the applicability of the exclusion to the subject accident. Both this court and the Louisiana Supreme Court denied Farm Bureau Casualty’s applications for writs.

12Almost a year later, on May 31, 2007, Plaintiffs filed a motion for summary judgment on the issue of Farm Bureau Casualty’s coverage. The trial court granted the motion, finding that coverage did apply to this particular situation. This appeal followed. Finding that there still exists a genuine issue of material fact regarding coverage, we reverse and remand.

DISCUSSION

We review the trial court’s grant of summary judgment in favor of Plaintiffs de novo, using the same criteria as the trial court. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764. We must determine whether any genuine issues of material fact exist and whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B) and (C). In this case, the inquiry on de novo review involves three questions: (1) whether the exclusion is clear and unambiguous; (2) whether the exclusion applies to the facts of this case; and (3) whether there is a clear and unambiguous exception to the exclusion that is applicable to the facts of this case.

Ambiguous terms in an insurance contract are construed liberally in favor of the person claiming coverage. Westerfield v. LaFleur, 493 So.2d 600 (La.1986). An ambiguity in an insurance policy is said to exist when the pertinent provision can be reasonably construed in two different ways. McCarthy v. Berman, 95-1456 (La.02/28/96), 668 So.2d 721....
The interpretation of an insurance policy is usually a legal question that can be properly resolved by a motion for summary judgment. Miller v. Superior Shipyard and Fabrication, Inc., 01-2907, p. 4 (La.App. 1 Cir. 08/20/03), 859 So.2d 159, 162, writ denied, 03-2643 (La.12/12/03), 860 So.2d 1159. However, with respect to summary judgments relating to coverage issues, the Louisiana Supreme Court has said that summary judgment may not be rendered declaring lack of coverage unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion under which coverage could be afforded. Westerfield [v. LaFleur, 493 So.2d 600, 605 (La.186)]. Even though the Westerfield case was decided before the changes to La.Code Civ.P. art. 966 made summary judgments favored under the law, this particular holding has continued to be followed. See Jessop v. City of Alexandria, 2003-1500 (La.App. 3 Cir. 03/31/04), 871 So.2d 1140 citing Miller, v. Superior Shipyard and Fabrication, Inc., 01-2907, p. 4 (La.App. 1 Cir. 08/20/03), 859 So.2d 159, 162.

Proshee v. Shree, Inc., 04-1145, pp. 3-4 (La.App. 3 Cir. 2/2/05), 893 So.2d 939, 942.

Farm Bureau Casualty contends that the following exclusion contained in the policy excludes coverage for this accident:

2. Exclusions
This insurance does not apply to:
e. Aircraft, motor vehicle, recreational motor vehicle, motorized bicycle or tricycle.
“Bodily injury” or “property damage” arising out of:
(1) Ownership or entrustment to others of any aircraft, “motor vehicle,” “recreational motor vehicle,” motorized bicycle or tricycle by an “insured”;
(2) Maintenance, use, operation, or “loading or unloading” of any aircraft, “motor vehicle,” “recreational motor vehicle,” motorized bicycle or tricycle by any “insured” or any other person;

Plaintiffs, on the other hand, assert that the following exception to the exclusion applies:

Paragraphs (1) and (2) of this exclusion do not apply to:

(f) “Bodily injury” or “property damage” arising from a “recreational motor vehicle” while used for “farming” purposes at the time of the “occurrence.”

We find that the exclusion is clear and unambiguous and applies to the facts of this case. Thus, the third issue as to whether the exception to the exclusion applies is the crux of the ease. The trial judge concluded that the “arising from” language found in the exception to the exclusion was ambiguous and, therefore, had to be | interpreted in favor of coverage. Farm Bureau Casualty argues that for the exception to be applicable, two criteria must be met: (1) the bodily injury must “arise from” the recreational motor vehicle, and (2) the injuries must “arise from” the recreational motor vehicle while it is being used for farming purposes at the time of the occurrence. Farm Bureau Casualty argues that Mrs. Vidrine’s injuries do not arise from the ATV but rather from Mr. LaFleur’s alleged negligent connection/attachment of his trailer to his pick-up truck or from a defective hitch. Farm Bureau Casualty also points out that the ATV did not become unhitched from the truck; it was the trailer which became unhitched; and it was the trailer which struck Mrs. Vidrine’s vehicle. Thus, Farm Bureau Casualty contends that the injuries could not “arise from” the use of the ATV.

To resolve the issue of whether a given occurrence falls within the automobile exclusion, the supreme court has developed a two-tier procedure. First, through duty-risk analysis, the court must determine whether the insured’s conduct of which the plaintiff complains is a legal cause of the accident. If so, then the court must determine whether that conduct arose out of the use of the vehicle. Carter v. City Parish Govt. of EBR, 423 So.2d 1080 (La.1982); McKenzie & Johnson, Insurance (15 La.Civil Law Treatise) § 65. In order for the conduct to arise out of use, the automobile must be essential to the theory of liability; the specific duty breached by the insured must flow from use of the automobile. If the duty existed independently of the automobile, then liability does not arise out of use even though the duty could have been discharged by the use of an automobile. Carter v. City Parish Govt., supra; LeJeune v. Allstate, 365 So.2d 471 (La.1978); McKenzie & Johnson, supra.

Jones v. Louisiana Timber Co., Inc., 519 So.2d 333, 335-36 (La.App. 2 Cir.1988).

We find the Jones case to be instructive here in that in order for the exception to be applicable, the injuries must arise from the use of the ATV. We do not agree with the trial judge that the “arising from” language in the exception to the exclusion is ambiguous. We are compelled to agree with Farm Bureau Casualty’s argument that the “arising from” language is limited by the “while used for” language. Plaintiffs, |Bas movers, bear the burden of proof to establish each fact essential to their claim and that their claim is within the insurance policy coverage. Regency Motors of Metairie, L.L.C. v. Hibernia-Rosenthal Ins. Agency, L.L.C., 03-1312 (La. App. 5 Cir. 2/23/04), 868 So.2d 905, writ denied, 04-753 (La.5/7/04), 872 So.2d 1087 citing Gandy v. United Services Auto. Ass’n, 98-215 (La.App. 1 Cir. 10/14/98), 721 So.2d 34, writ denied, 98-2836 (La.1/15/99), 736 So.2d 208). They have not met this burden. Thus, we find that the trial court improperly granted summary judgment in favor of Plaintiffs.

DECREE

For the foregoing reasons, the judgment of the trial court is reversed. We hereby reverse the grant of summary judgment in favor of Plaintiffs and remand the matter to the trial court for further proceedings. Costs of this appeal are assessed to Plaintiffs-Appellees, Geneva and Winston Vid-rine.

REVERSED AND REMANDED.

EZELL, J. and GENOVESE, J., concur in the result.


author: PAINTER, Judge. AMY, J.

text:
    K.A.E.M. v. J.M.C. Born H.
    No. CW07-1279.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.
    Rehearing Denied April 30, 2008.
    Catherine L. Stagg, Attorney at Law, L.L.C., Lake Charles, LA, for Defendant-Relator, J.M.C., Born H.
    Macie R. LeTard, Westlake, LA, for Plaintiff-Respondent, K.A.E.M.
    Court composed of MARC T. AMY, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

| pother, J.M.C., born H., sought supervisory writs from the judgment of the Fourteenth Judicial District Court, which denied her apparent exception of prescription. We stayed all proceedings and granted the writ application for the sole purpose of consideration of this matter on the merits. Finding that the retroactive application of La.Civ.Code art. 198 would unconstitutionally strip the alleged father, K.A.E.M., of a vested right to establish paternity under the circumstances of this case, we deny the writ application, recall the stay order, and affirm the ruling of the trial court such that this matter may now proceed as an ordinary custody proceeding in the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

Respondent, K.A.E.M., and Relator, J.M.C., lived together for about three years from 2002 to 2005. They were not married; however, of this relationship, a child, K.A.E.M., Jr., was born on July 9, 2003, in Duncan, Oklahoma. Two days following the birth of the child, Respondent and Relator signed an affidavit acknowledging paternity. Shortly thereafter, Respondent, Relator, and the child moved to Calcasieu Parish, Louisiana.

This is a convoluted and complicated custody dispute between Respondent, the alleged biological father, and Relator which began with Respondent’s filing of a rule for custody on June 22, 2005. Respondent prayed, ex parte, for temporary sole custody of K.A.E.M., Jr., which was denied; for an order prohibiting Relator from removing the child from the State of Louisiana, which was granted; and ultimately for the joint care, custody and control of the minor child, with him being designated as the domiciliary parent subject to Relator’s supervised visitation, child support from Relator, and the state and federal income tax dependency exemption for the minor |2child. On September 13, 2005, Relator filed exceptions to the rule for custody and a motion to declare null or dissolve the restraining order. In those pleadings, Relator alleged that K.A.E.M., Jr. was conceived and born during her marriage to a man other than Respondent and that she had been awarded sole custody of K.A.E.M., Jr. in her divorce from that man. Relator also alleged that Respondent’s right to establish paternity had prescribed. The hearing on these matters was disrupted by Hurricane Rita and re-fixed for a later date. In the interim, Respondent filed a verified petition for paternity, custody, visitation, and support in the District Court of the Chickasaw Nation in Ada, Oklahoma. Relator filed an exception of lis pendens in the Louisiana court, and on December 8, 2005, all matters in the Louisiana court were stayed pending a ruling from the Oklahoma court. Finally, on August 10, 2006, Relator filed a motion and order to set exceptions for hearing in the Louisiana court. A trial on the exceptions and motions filed by Relator was held on February 22, 2007. Finding that the acknowledgment of paternity signed in Oklahoma was valid and that Respondent had timely brought his action to establish paternity, the trial court ruled that the matter could proceed as an ordinary custody proceeding and denied Relator’s exceptions. Relator now seeks supervisory writs from this court, alleging that the acknowledgment of paternity signed in Oklahoma was invalid and that the trial court erred in refusing to retroactively apply the amendments to La.C.C. art. 198 to bar Respondent’s attempt to establish paternity.

For the reasons that follow, we affirm the trial court’s ruling, deny Relator’s writ application, and recall the stay order such that this matter may proceed as an ordinary custody proceeding in the trial court.

^DISCUSSION

Louisiana Civil Code Article 198 currently reads:

A man may institute an action to establish his paternity of a child at any time except as provided in this Article. The action is strictly personal.
If the child is presumed to be the child of another man, the action shall be instituted within one year from the day of the birth of the child. Nevertheless, if the mother in bad faith deceived the father of the child regarding his paternity, the action shall be instituted within one year from the day the father knew or should have known of his paternity, or within ten years from the day of the birth of the child, whichever first occurs.
In all cases, the action shall be instituted no later than one year from the day of the death of the child.
The time periods in this Article are peremptive.

This article became effective on June 29, 2005 and replaced La.Civ.Code art. 191 which fixed a two-year peremptive period for avowals. In the notes to La.Civ.Code art. 198, and quoting 2005 La. Acts No. 192, § 3, it specifically states: “The provisions of the act shall be applicable to all claims existing or actions pending on its effective date and all claims arising out of actions filed on and after its effective date.”

Relator contends that the trial court erred in denying her exception of prescription because the new law’s one-year time period is applicable pursuant to W.R.M. v. H.C.V., 06-702 (La.3/9/07), 951 So.2d 172, which retroactively applied La.Civ.Code Art. 191, a previous version of the statute at issue. In that case, the supreme court held that because the alleged father did not have a vested right to continue his avowal action, the retroactive application of the two-year peremptive period was constitutional. In so holding, the court apparently reasoned that under the old law, the right to pursue such an action was not absolute, but instead had to be exercised within a reasonable time and also involved the alleged father’s actual relationship with the child. In W.R.M.’s case, he waited until some nine years after the child was born, had no actual | relationship with the child, and the child (who was twelve years old at the time of the supreme court’s opinion) was living with his mother and her husband, whom he believed to be his parents. Thus, W.R.M. did not have a vested right to pursue his avowal action.

In this case, Respondent filed his petition for custody within the two-year period under the old law and five days before the new law became effective. He acknowledged paternity in writing and lived with the child and Relator for three years. Justice Johnson, in her concurring opinion in W.R.M., 951 So.2d at 172-73, stated: “The retroactive application of LSA-C.C. art. 191 was not unconstitutional in this case because W.R.M. did not have a vested right to bring an avowal action, as he did not file his avowal action within a reasonable time, nor did he have an actual relationship with A.M.V.” Such is not the case here. We agree with the trial court that the Oklahoma acknowledgment is valid and that applying the provision of La.Civ.Code art. 198 retroactively would strip Respondent of a vested right to establish paternity. To do so would be unconstitutional.

The resolution of this issue in favor of Respondent renders Relator’s alternative assignments of error and additional requests moot.

DECREE

The trial court’s ruling is affirmed. Relator’s writ application is denied, and the stay order is recalled such that this matter may proceed as an ordinary custody proceeding in the trial court.

WRIT DENIED; STAY RECALLED.

AMY, J., dissents and assigns reasons.

AMY, J.

dissenting.

hi respectfully dissent from the majority opinion and I would grant the relator’s writ application. Notwithstanding the procedural problems present in this case, I think that the trial court erred in recognizing a constitutional claim as to the retroactive application of La.Civ.Code art. 198. Here, we have a clear legislative expression that the provisions of Article 198 are applicable to all claims existing or actions pending on its effective date. See 2005 La.Acts No. 192, § 3. Thus, on its face, the one-year peremptive period is applicable to this case. I do not see that the constitutionality of Article 198 can be addressed since there is no indication in the parties’ submission to this court that the constitutional issue was specially pled. See Mallard Bay Drilling, Inc. v. Kennedy, 04-1089 (La.6/29/05), 914 So.2d 533. Further, I find the information regarding any acknowledgment in Oklahoma to be insufficient for the trial court to have determined that it is dispositive. Accordingly, I would grant the writ.


author: EZELL, Judge. GENOVESE, J.,

text:
    Earl TOUPS v. Wade Jude ABSHIRE, et al.
    No. CA 07-1147.
    Court of Appeal of Louisiana, Third Circuit.
    March 5, 2008.

      Reule P. Bourque, Attorney at Law, Wade Anthony Mouton, Attorney at Law, Kaplan, LA, for Plaintiff/Appellant, Earl Toups.
    John Weir Grant, Attorney at Law, Lafayette, LA, for Defendants/Appellees, Wade Jude Abshire, Melinda Ann Regan Abshire.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   EZELL, Judge.

_JjIn this matter, Earl Toups appeals the decision of the trial court refusing to order the removal of alleged encumbrances on his servitude of passage over the land of Wade and Melinda Abshire. For the following reasons, we affirm the decision of the trial court.

Mr. Toups owns an enclosed estate with no access to a public road. The land has a thirty-foot wide by one-hundred fifty-eight foot long servitude of passage running over the southern thirty feet of the property of the Abshires. The servitude was created in a 1974 partition of a previous, larger estate. Located on the servitude is an approximately seventeen-foot wide crushed limestone road. The area encumbered by the servitude also serves as the only access point for the Abshires to a public road.

In 2003, disputes arose between the Toupses and the Abshires regarding the use of the thirty-foot servitude. At that time, a stipulated judgment was signed by the parties ordering the Abshires to remove speed bumps placed by them on the road, setting the speed limit on the road at ten miles-per-hour, and declaring that Mr. Toups could widen the road at his expense if he deemed necessary, with the restriction that the expansion could be in a south-ernly direction only. This judgment was not appealed.

After the stipulated judgment was entered, the Abshires removed the existing speed bumps, but the Toupses and then-guests disregarded the speed limit set by the judgment. The parties remained confrontational, resulting in this present suit wherein Mr. Toups sought to have alleged encumbrances on the servitude removed, namely a drainage ditch running along the road, a culvert placed by the Abshires where their driveway meets the road, and a fence running along the servitude. After hearing the | gtestimony of the parties and examining the property in question, the trial court ruled that the Abshires had not encumbered the reasonable use of the servitude and that due to the constant speeding along the road, two speed bumps were ordered to be placed at either end of the Abshires’ property to enforce the speed limit set by the stipulated judgment. From this decision, Mr. Toups appeals.

Mr. Toups asserts two assignments of error on appeal. His first assignment of error is vague and unclear as to what alleged error he wants corrected by this court, but he seems to claim that the trial court erred in failing to have alleged impediments to the full use of the thirty-foot servitude removed. His next assignment of error, that the trial court erred in preparing and signing an ex parte judgment regarding the installation of speed bumps, was not briefed and, therefore, need not be addressed. Uniform Rules-Court of Appeal, Rule 2-12.4.

Mr. Toups apparently believes that he is entitled to use the entirety of the thirty-foot servitude as he sees fit, unencumbered by the Abshires in any way, shape or form. We disagree. Louisiana Civil Code Article 705 (emphasis added) describes the conventional servitude of passage, or right of way, and the general parameters of its use:

The servitude of passage is the right for the benefit of the dominant estate whereby persons, animals, or vehicles are permitted to pass through the ser-vient estate. Unless the title provides otherwise, the extent of the right and the mode of its exercise shall be suitable for the kind of traffic necessary for the reasonable use of the dominant estate.

“The owner of the servient estate may do nothing tending to diminish or make more inconvenient the use of the servitude.” La.Civ.Code art. 748. See also La.Civ. Code art. 651. However, the dominant estate must exercise its rights “in a way least inconvenient for the servient estate.” La.Civ.Code art. 743.

| ¡¡The issue of whether any alleged encumbrances made the use of the servitude more inconvenient for the Toups-es was an issue of fact. See Cathcart v. Magruder, 06-986, 06-987, 06-988 (La. App. 1 Cir. 5/4/07), 960 So.2d 1032. Therefore, we will review this decision using a manifest error standard of review. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993).

As trier of fact, the trial court ruled in favor of the Abshires, finding that the installation of the culvert, fence, and driveway did not restrict Mr. Toups’s use of the servitude. To the contrary, the trial court found that the roughly seventeen-foot wide limestone road was wide enough for Mr. Toups to reasonably use for his tractor and trailers, even when hauling the seventeen-foot blade. The trial court found that the biggest problem for Mr. Toups in accessing the right-of-way was nothing done by the Abshires, but rather a ditch owned by Mr. Toups and a pole placed by him to mark the property line. These findings are supported by the record before this court. Accordingly, we can find no manifest error in the trial court’s decision.

The same considerations apply to the trial court’s determination that the installation of speed bumps was required to protect the Abshires’ child from speeders using the right of passage. The record established that the Toupses and then-guests frequently violated the ten mile-per-hour speed limit established in the stipulated judgment, posing a potential threat to the Abshires’ young child, and that because of the isolated location of the lots in question, local law enforcement could not police the area with any kind of regularity. We agree with the trial court that the speed bumps in no way render the passage unsuitable for the kind of traffic necessary for the reasonable use of the Toups’s estate and are, in fact, necessary to enforce the stipulated judgment agreed to by Mr. Toups. Again, there is no manifest error in this ruling.

14For the above reasons, the decision of the trial court is hereby affirmed. Costs of this appeal are assessed against Earl Toups.

AFFIRMED.

GENOVESE, J., concurs in part, dissents in part, and assigns written reasons.

GENOVESE, J.,

concurs in part, dissents in part, and assigns the following reasons:

lil concur in the majority opinion except for the “speed bumps” issue from which I respectfully dissent. There is no legal authority for the trial court to order traffic control devices, i.e., speed bumps, when ruling upon the rights, duties, and obligations of the parties in a servitude of passage case. Traffic control is not the function of the trial court in a servitude of passage case. The result of this case creates an intriguing issue as to liability, vel non, for potential personal injury and/or property damage sustained by a motorist traversing these speed bumps in the use of this servitude?

I would affirm the trial court except for the court-ordered speed bumps which I would reverse and order removed.


author: MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Jonathan L. LANDFAIR.
    No. 07-KA-751.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 11, 2008.
    Rehearing Denied April 29, 2008.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Andrea F. Long, Assistant District Attorneys, Twenty-Fourth Judicial District Parish of Jefferson, State of Louisiana, Gretna, Louisiana, for Plaintiff/Appellee.
    Jane L. Beebe, Attorney at Law, Louisiana Appellate Project, New Orleans, Louisiana, for Defendant/Appellant.
    Jonathan Landfair, Jackson, Louisiana, In Proper Person Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and GREG G. GUIDRY.
   MARION F. EDWARDS, Judge.

lain this criminal matter, the defendant/appellant, Jonathan Landfair (“defendant”), was charged with two counts of attempted second degree murder in violation of LSA-R.S. 14:27:30.1, one against Phong Ngo and one against Phuong Ngo. Additionally, defendant was charged with one count of attempted armed robbery in violation of LSA-R.S. 14:27:64 against Phong Ngo. On April 24, 2005, defendant withdrew his original plea of not guilty and entered an unconditional plea of guilty to all three charges. He was subsequently sentenced to serve twenty years at hard labor on each count, to be served concurrently.

Defendant filed an application for post-conviction relief, or in the alternative, an out-of-time appeal. The trial court dismissed the application for post-conviction relief without prejudice, and it granted the out-of-time appeal on April 4, 2007.

| sOn appeal, defense counsel filed a brief alleging that there are no non-frivolous issues to be raised on appeal and requesting that this Court conduct an errors patent review. Defendant filed a pro se brief in which he asserts his sentence was in violation of constitutional double jeopardy principles.

DOUBLE JEOPARDY

Defendant argues that he was subject to double jeopardy when tendering his guilty plea and, therefore, his case should be remanded for re-sentencing. The basis for defendant’s argument is that the attempted second degree murder charges include, as an underlying offense, the attempted armed robbery charge.

Even though defendant entered an unconditional guilty plea, he has not waived review of jurisdictional defects, including double jeopardy and, thus, may assign such as error on appeal. But because defendant entered an unconditional guilty plea, the jurisdictional defect exception for double jeopardy applies only where on the face of the record the court had no power to enter the conviction or impose the sentence. This holding consequently allows review of only the charging documents and plea colloquy.

Defendant must, therefore, state, on the basis of the bill of information and the Boykin colloquy, a prima facie case of double jeopardy, that his prosecution violates the constitutional protection against a second prosecution for the same offense or multiple punishments for the same criminal act.

In his brief to this court, defendant argues that a charge under LSA-R.S. 14:27:30.1(A)(2)(a), requires proof of an underlying felony, which in his case was the attempted armed robbery. Defendant argues that because he was charged under LLSA-R.S. 14:27:30.1(A)(2)(a) and LSA-R.S. 14:27:64(A), he has been charged twice for the same offense, constituting double jeopardy. Defendant’s argument seems to be that the facts necessary to prove the attempted armed robbery charge are also contained within the attempted second degree murder charges and, therefore, these charges are really the same offense under Blockburger.

Defendant’s argument is faulty in that it fails to correctly state the crimes with which he was charged. The bill of information charges defendant under LSA-R.S. 14:27:30.1 generally and does not specify a particular subsection on which its theory depends. It specifies that defendant committed attempted second degree murder on both Phong Ngo and Phuong Ngo, whereas defendant is charged with attempted armed robbery of Phong Ngo only. Defendant’s written guilty plea does not specify that he entered a plea of guilty to LSA-R.S.14:27:30.1(A)(2)(a) in particular but, rather, to LSA-R.S. 14:27:30.1 in general. Defendant’s oral guilty plea does not specify a statutory provision but merely enters a plea of guilty to two counts of attempted second degree murder and one count of attempted armed robbery. The theory of the State’s case is, thus, not obvious on the basis of the record.

When proof of a felony is an essential element of a first degree murder or an attempted first degree murder, double jeopardy precludes convidtion and punishment of defendant for both murder or attempted murder and the underlying felony. However, there is no such crime as attempted second degree felony murder. Rather, attempted second degree murder requires the specific intent to Mil, and this is inconsistent with the felony murder theory of LSA-R.S. 1514:30.1(A)(2)(a). Thus, the crime of attempted second degree murder cannot be based on an underlying felony.

The State could only have obtained a conviction on a charge of attempted second degree murder by proving specific intent murder. When defendant entered a guilty plea, he admitted factual guilt and relieved the State of the necessity to prove it by a contested trial. A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence.

Accordingly, we find no merit in defendant’s argument.

ERRORS PATENT

Defense counsel has requested that this Court conduct a review for errors patent on the record. We have conducted such a review and find that defendant’s sentences are illegally lenient in that they were not imposed without benefit of parole, probation, or suspension of sentence. However, this provision is self-activating and need not be corrected with a remand by this Court.

As previously stated, defense counsel has filed an Anders brief and moved to withdraw as counsel for defendant. Counsel asserts that she has reviewed the record in defendant’s case and, after evaluating and accepting the constitutionality of defendant’s sentence, discovered no non-frivolous issues for appeal.

In view of the illegally lenient sentence and the self-activating provision which makes defendant ineligible for benefits, we must consider whether a legal point arguable on the merits of the issue of voluntary plea exists that is sufficient to deny defense counsel’s motion to withdraw as counsel. We find that it does not.

LThe transcript discloses that during defendant’s Boykin colloquy, the trial court failed to inform him that his guilty plea would result in a sentence without benefit of parole, probation, or suspension of sentence. Further, the written waiver of rights form executed by defendant fails to state that the sentence is to be served without benefit of parole, probation, or suspension of sentence.

Defendant did not assign any errors relating to his sentence and makes no allegations that his plea was involuntary. Nor does he move to withdraw the guilty plea. Moreover, the sentence imposed by the trial judge was not inconsistent with the plea agreement. Defendant’s exposure was forty-nine years on each count. That was explained to him on the waiver of rights form. The sentence agreed upon was twenty years on each count to be served concurrently, and the sentence must be served without benefits in accordance with law. There is no indication in either the record or in defendant’s brief that any inducement regarding the benefits was discussed. Accordingly, we find the trial judge did not violate the terms of the plea agreement when sentencing defendant. Further, we find that the plea was tendered voluntarily and knowingly. Nothing in this record indicated otherwise.

Because we find no legal point arguable on the merits which would preclude the grant of defense counsel’s motion to withdraw, we hereby grant that motion. For the foregoing reasons, the defendant’s convictions and sentences are affirmed, and the motion to withdraw as counsel of record for defendant filed by Jane L. Beebe is hereby granted.

AFFIRMED; MOTION TO WITHDRAW GRANTED.

      . Defense counsel also filed a motion to withdraw in accordance with Anders v. California, 386 So.2d 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and State v. Jyles, 96-2669 (La.12/12/97), 704 So.2d 241.

      . State ex rel. Robinson v. Blackburn, 367 So.2d 360, 364 (La.1979).

      . State v. Arnold, 01-1399 (La.4/12/02), 816 So.2d 289, 290 (per curiam) (quoting United States v. Broce, 488 U.S. 563, 569, 109 S.Ct. 757, 762, 102 L.Ed.2d 927 (1989)).

      . Id. (citation omitted).

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

      . Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180 76 L.Ed. 306 (1932).

      . State v. Holmes, 94-907 (La.App. 5 Cir. 3/15/95), 653 So.2d 642, 645.

      . State v. Allen, 571 So.2d 758 (La.App. 2 Cir.1990).

      . State v. Guccione, 96-1049 (La.App. 5 Cir. A/29/91), 694 So.2d 1060, 1068, writ denied, 97-2151 (La.3/13/98), 712 So.2d 869.

      . State v. Bourgeois, 406 So.2d 550, 552 (La.1981).

      . United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989).

      . See, LSA-R.S. 15:301.1(A); State v. Williams, 00-1725 (La.11/29/01), 800 So.2d 790.

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

      . See, State v. Stevenson, 02-347 (La.App. 5 Cir. 9/30/02), 829 So.2d 519.