author: STONE, J.

text:
    S.S., the father, Appellant, v. D.L., the mother, Appellee.
    No. 4D05-1548.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.
    Rehearing Denied Jan. 3, 2007.

      Felicia Shaman of Law Office of Felicia Shaman, P.A., Fort Lauderdale, for appellant.
    Richard L. Rosenbaum of Law Offices of Richard Rosenbaum, Fort Lauderdale, for appellee.
   ON MOTION FOR REHEARING

STONE, J.

We deny D.L.’s motion for rehearing and rehearing en banc, but withdraw our opinion of August 23, 2006, and substitute the following opinion in its place.

We reverse a partial final judgment terminating parental rights of S.S., the father, on the petition of D.L., the former wife and mother. The Department of Children and Families is not a party to these proceedings.

In 1997, S.S. was convicted of sexual battery of the thirteen-year-old friend of his eldest daughter. S.S. was sentenced to eight years in prison, followed by ten years of probation. There have never been any allegations of abuse of this daughter, or any of his children.

D.L. ultimately remarried. When S.S.’s release became imminent, nearly five years after the marriage was dissolved, his former wife amended the petition for dissolution to include termination of S.S.’s parental rights to his two younger daughters. S.S. was still incarcerated at the time of the termination hearing and appeared by telephone.

The only witnesses against him were D.L., her new husband, and a guardian ad litem. The guardian ad litem report was distinctly in favor of termination of parental rights. She had spent time in the mother’s new home, interviewing S.S.’s daughters, D.L., and her new husband. The guardian ad litem spent an hour interviewing S.S. on the telephone. The gist of her report was that the girls were flourishing, had few memories of their biological father and those were not all that pleasant, and their lives should not be disrupted. She had nothing nice to say about S.S., finding him manipulative, his crime disgusting, and his mottled criminal past disturbing. S.S. had a cocaine charge in Texas in 1985, which was dismissed, and had been convicted of theft in 1994. However, there is no consideration in the report of exploring whether termination was necessarily the least restrictive means of protecting the children. S.S. underwent no psychological or substance abuse testing and has not been offered services or therapy-

At the final hearing, S.S. testified that he “would abide by all Court’s orders and offer to do whatever the Court recommends for that — so they could make their own determinations as to my mental capacity and character and things like that.” He stated that he had been evaluated by the Department of Corrections (DOC) when first incarcerated, but that no treatment had been ordered for him, adding, “I’d do anything that’s possible so that I could get the right to be a part of my children’s lives.”

S.S.’s attorney addressed the issue of whether termination of parental rights was the least restrictive means of ensuring the best interests of the children with the guardian ad litem, asking why no supervised visits were considered. The guardian ad litem replied that the girls did not want to change the way things were. When questioned about any basis to connect his past crime with the risk of future abuse of his children, she could not provide anything beyond speculation. The guardian ad litem stated that she thought it was “healthier to detach from a circumstance as this,” and the children were at risk of emotional abuse S.S. “could put these children through” because of animosity between the two parents. The guardian ad litem was not able to provide any support for her statements other than it would simply be easier and safer to terminate S.S.’s rights and let the two girls go looking for him after they turned eighteen, if they so desired.

The trial court’s order dismissed abandonment, egregious conduct, and aggravated child abuse as factors. However, the trial court assigned the closeness in age of the oldest girl to the age of S.S.’s victim as a factor with weight. The trial court found that S.S.’s testimony was self-serving and, based only on that testimony, considered the probability high that S.S. would abuse drugs or alcohol in the future. Further, notwithstanding that S.S. had acknowledged guilt, the trial court considered that S.S. took no responsibility for his crimes.

The court relied upon section 39.806(l)(c), Florida Statutes, for its decision, recognizing that it applied when parents engage in conduct toward the child or other children that demonstrates that continued parental involvement threatens the life, safety, or well-being, or physical, mental, or emotional health of the child, irrespective of the provision of services or whether or not there had been services.

The trial judge also listed as a factor section 39.806(l)(d)l., Florida Statutes, dealing with incarceration of a parent for a substantial portion of a child’s minority. The court interpreted this to include retrospective incarceration, as well as prospective incarceration, and noted that S.S. had been gone for the past seven formative years of his daughters’ lives.

This case differs from the bulk of deci-sional law on termination of parental rights in that these proceedings were initiated by a parent, not the state. Section 39.806(1), Florida Statutes, allows a petition by any person with knowledge of the facts alleged. In fact, termination cases filed by divorced parents are rare, inviting caution to avoid second challenges to custody determinations. See T.V.R. v. C.R., 918 So.2d 395, 397 n. 1 (Fla. 2d DCA 2006).

To prevail, D.L.’s burden was to present clear and convincing evidence of a statutory ground for terminating and clear and convincing evidence that terminating parental rights is in the best interests of the child. M.S. v. Dep’t of Children & Families, 920 So.2d 847, 849 (Fla. 4th DCA 2006). Further, however, because of the constitutional implications involved, the movant must also establish that termination is the least restrictive means of protecting the children from serious harm. B.C. v. Dep’t of Children & Families, 887 So.2d 1046, 1050 (Fla.2004). A trial court’s finding of clear and convincing evidence is reversible only if clearly erroneous or lacking in evidentiary support. In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995).

Section 39.811(6), Florida Statutes, establishes circumstances under which the parental rights of one parent may be terminated without severing the rights of the other. The qualifying circumstances found in section 39.811(6) include: (a) if the child has only one surviving parent (not the case here); (b) the identity of the other parent is established as unknown by sworn testimony (inapplicable); (c) the parent whose rights are to be terminated became a parent through a single parent adoption (inapplicable); (d) the protection of the child demands termination of the single parent (possible); or (e) the criteria in section 39.806(l)(d) and (f)-(i) are met.

Section 39.806(l)(d) deals with incarceration; (f) deals with egregious conduct (dismissed by the trial court); (g) deals with aggravated child abuse, sexual battery or sexual abuse on the particular child or children (dismissed by trial court); (h) deals with murder or voluntary manslaughter of another child or felony assault that results in serious bodily injury to the child or another child (inapplicable); and (i) comes into play when parental rights of the parent to a sibling have been involuntarily terminated (inapplicable). The only possible applicable subsections are 39.811(6)(d) or 39.806(l)(d).

The application of subsection (6)(d), for protection of the children, is supported only by the guardian ad litem’s testimony that S.S.’s past conduct warranted protection of the two girls. However, the guardian ad litem presented nothing but speculation. S.S. never directly harmed his daughters. Moreover, the guardian ad li-tem spent only one hour on the telephone with S.S. and had not conferred with anyone else in his family, any of his friends, or any personnel at the prison where he had been incarcerated for a number of years. This testimony, taken alone, does not rise to the level of clear and convincing evidence necessitating termination to protect the girls. It is simply evidence of the guardian ad litem’s understandable concern.

Section 39.806(l)(d)l., dealing with incarceration, does not support terminating parental rights in this case. In B.C., our high court held that it is the amount of remaining incarceration from the date that the termination petition is filed that must constitute a substantial portion of the child’s minority in order to utilize this section. B.C., 887 So.2d at 1055.

In the case at bar, one girl was twelve and one ten at the time of filing for termination, and S.S. was to be discharged from prison a mere month after entry of the order on appeal. The time of remaining incarceration is insignificant relative to either girls’ remaining minority. See W.W. v. Dep’t of Children & Families, 811 So.2d 791 (Fla. 4th DCA 2002) (holding that even twenty-five percent was not a substantial portion); In re A.W., 816 So.2d 1261 (Fla. 2d DCA 2002) (holding that thirty-three percent was not substantial). Therefore, it is clear that single parent termination was not warranted by this subsection.

Further, even were we to conclude that the findings under subsection 39.811(6)(d) are supported by clear and convincing evidence, D.L. has not shown that termination is the least restrictive means of protecting the girls from serious harm. See Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991).

Even where a parent’s past conduct with respect to an older child may demonstrate a risk of harm to a current child, “the constitution still requires that [the movant] demonstrate that termination as to the current child is the least restrictive means of protecting the child based on a totality of circumstances.” W.R. v. Dep’t of Children and Family Servs., 896 So.2d 911, 915 (Fla. 4th DCA 2005) (citation omitted). In the context of termination of parental rights, the test “requires that those measures short of termination should be utilized if such measures ,can permit the safe re-establishment of the parent-child bond.” L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1196 (Fla. 1st DCA 2002).

Here, the order terminating S.S.’s parental rights is silent as to the issue of least restrictive means. There has been no attempt to maintain familial ties between the father and daughters, and at all times, S.S. has been subject to a “no contact” order.

We recognize that the guardian ad litem testified that S.S. was beyond rehabilitation. However, that opinion, which may yet turn out to be correct, was not expert, nor was it founded on any objective assessment of his problems or possible treatment. It is based solely on the one hour telephone call and the opinions of D.L. The record contains S.S.’s testimony that he was amenable to treatment and would do whatever the court deemed necessary to preserve and improve his relationships with his daughters. The record contains no evidence that S.S. would not respond to treatment.

Furthermore, subsection 39.806(l)(c) provides:

(c) When the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provisions of services. Provision of services may be evidenced by proof that services were provided through a previous plan, or offered as a case plan from a child welfare agency.

This subsection has been held to mean that provision of services will be futile, or that the continued parent-child relationship will threaten the child/ren in some way, despite the provision of services. T.M. v. Dep’t of Children & Families, 905 So.2d 993, 997 (Fla. 4th DCA 2005); W.R., 896 So.2d at 913; M.E. v. Dep’t of Children & Families, 919 So.2d 637, 642 (Fla. 3d DCA 2006); I.R. v. Dep’t of Children & Family Servs., 904 So.2d 583, 587 (Fla. 3d DCA 2005); Y.F. v. Dep’t of Children & Family Servs., 893 So.2d 641, 642 (Fla. 2d DCA 2005); In re G.C.A., 863 So.2d 476, 479 (Fla. 2d DCA 2004); N.L. v. Dept. of Children & Family Servs., 843 So.2d 996, 1002 (Fla. 1st DCA 2003). Here, services were not provided, and S.S. was not given the opportunity to pursue them proactively.

We recognize that there is cause for the concerns expressed by D.L. and for any hostility towards S.S. We also recognize that continued parental interaction would be highly disturbing to D.L., her new husband, and the girls, but those factors alone do not impute harm to the children. It is well established that the fact of past crime is not enough; there must be a further nexus between the past conduct and future behavior. “The issue in prospective neglect or abuse cases is whether future behavior, which will adversely affect the child, can be clearly and certainly predicted.” L.B., 835 So.2d at 1195. We also note that in R.F. v. Department of Children & Families, 770 So.2d 1189, 1194 (Fla.2000), a dependency case, requiring an even less stringent showing, the supreme court recognized that a “simple showing by DCF that a parent committed a sex act on one child does not by itself constitute proof that the parent poses a substantial risk of imminent abuse or neglect to the child’s sibling.... While the commission of such an act may be highly relevant, it is not automatically dispositive of the issue of dependency.” 770 So.2d at 1194.

Because “[p]arents have a fundamental liberty interest, protected by both the Florida and federal constitutions, in determining the care and upbringing of their children,” Florida Dep’t of Children & Families v. F.L., 880 So.2d 602, 607 (Fla.2004), non-expert speculation is not a sufficient basis for terminating parent rights. See also R.W.W. v. Dep’t of Children & Families, 788 So.2d 1020, 1023 (Fla. 2d DCA 2001).

We reverse the termination of S.S.’s parental rights and remand with directions to consider less restrictive alternatives before any final decision is reached with respect to termination.

We recognize, as noted by the trial court, that adjudication as a sexual predator, alone, is sufficient support for termination. Section 39.806(l)(d)(2) allows termination of parental rights where the parent is incarcerated and has been determined by a court to be a sexual predator as defined in section 775.21, Florida Statutes. See W.W., 811 So.2d at 792. However, there was no evidence before the trial court that S.S. has been determined to be a sexual predator, and the trial court chose not to base its decision on that section because there was no such designation at the time of the criminal proceedings. Apparently, although it is not clear, once D.L. realized that S.S. had not been so designated, D.L.’s attorney, not the state, got an ex parte order designating him, but S.S. was not noticed, and notice is required. Therrien v. State, 914 So.2d 942, 949 (Fla.2005). Acknowledging this, the trial court explicitly placed little weight on this factor, but added that in the future, if there were such a finding or, if challenged, it was upheld, such would then be sufficient support for its decision. Absent such evidence, we cannot now rely upon this provision to uphold the judgment.

POLEN and FARMER, JJ., concur.

      . S.S.’s eldest daughter, no longer a minor and not D.L.’s daughter, was not included in the petition.

      . Although Therrien had not yet been decided at the time of S.S.'s TPR hearings, the opinion only re-states the statute's unambiguous and clear requirements.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana v. Derrell MENDENHALL.
    No. 2006-K-1407.
    Supreme Court of Louisiana.
    Dec. 8, 2006.
   PER CURIAM.

11 Granted. The decision of the Second Circuit is reversed, and this case is remanded to the court of appeal for consideration of the remaining assignments of error pretermitted on original appeal.

A majority on the court of appeal panel found that the trial judge’s statement informing defendant that the state would have to prove its case beyond a reasonable doubt and that his attorney would have the opportunity to cross-examine the state’s witnesses at a trial did not suffice as an advisement to defendant of his right to confront his accusers. State v. Menden-hall, 40,986 (La.App.2nd Cir. 5/19/06), 930 So.2d 1196 (Brown, C.J., dissenting). However, this Court has stressed that neither Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), nor the Court’s implementation of Boykin in State ex rel. Jackson v. Henderson, 260 La. 90, 255 So.2d 85 (1971), sets out a “magic word formula” which may “serve as a technical trap for conscientious trial judges who conduct a thorough inquiry into the validity of the plea....” State v. Bowick, 403 So.2d 673, 675 (La.1981). With respect to the Confrontation Clause of the Sixth Amendment, “[t]he main and essential purpose of confrontation is to secure for the | {.opponent the opportunity of cross-examination.” Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974)(internal quotation marks and citation omitted; emphasis deleted); see also State v. Anderson, 34,491, p. 3 (La.App.2d Cir.4/4/01), 784 So.2d 749, 751 (“In common usage, the phrases confront and cross-examine always connote adversarial activities.”), writ denied, 01-1431 (La.4/12/02), 812 So.2d 666. In this instance, the language used by the trial judge appears sufficiently tailored to inform a 29-year-old defendant, who was educated through the twelfth grade and employed as a plant assistant manager, that he was waiving his right to confrontation, and that, because he was pleading guilty, there would be no further trial. See State v. Martin, 382 So.2d 933, 935 (La.1980)(purpose underlying the Boykin and Jackson rules “is to ensure the defendant’s receipt of adequate information, so that his decision to plead guilty is truly intelligent and voluntary.... [Tjhis information may successfully be conveyed in words tailored to a particular individual’s vocabulary and comprehension), overruled in part on other grounds, State v. Williams, 392 So.2d 448 (La.1980). Accordingly, we agree with the dissenting views of Chief Judge Brown that the circumstances in the record reflect a knowing and voluntary waiver of defendant’s rights and compliance with the constitutional requirements for the taking of voluntary guilty pleas in Louisiana.


text:
    In re Ann B. STEINHARDT.
    No. 2006-B-2657.
    Supreme Court of Louisiana.
    Dec. 15, 2006.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

11 This matter stems from a rule to revoke probation filed by the Office of Disciplinary Counsel (“ODC”) against respondent, Ann B. Steinhardt, an attorney licensed to practice law in Louisiana.

UNDERLYING FACTS

On September 9, 2004, we suspended respondent from the practice of law for three years, with two years deferred, for her conviction of possession of marijuana, failure to report the conviction to the ODC, and failure to cooperate with the ODC in its investigation. In re: Stein-hardt, 04-0011 (La.9/9/04), 883 So.2d 404. We also placed respondent on probation for a period of two years, during which time we ordered respondent to comply with the terms of her recovery agreement with the Lawyers Assistance Program (LAP) and with such other conditions as may be imposed upon her by the LAP. We concluded that any violation of this condition by respondent, or the commission of any misconduct during the period of probation, “may be grounds for making the deferred portion of the suspension execu-tory or imposing other discipline, as appropriate.”

Respondent’s suspension commenced on October 29, 2004, upon the denial of her application for rehearing. Respondent was reinstated to the practice of law in Louisiana effective November 17, 2005.

|2On January 25, 2006, the adjudicative committee of the disciplinary board appointed New Orleans attorney Philip O. Bergeron to serve as respondent’s probation monitor. In April 2006, respondent and Mr. Bergeron executed respondent’s probation plan. Among other provisions, the probation plan called for respondent’s continued compliance with the terms and conditions of her LAP agreement, which expires in October 2007.

In May 2006, the ODC received correspondence from Robert Murphy and Mark Mahfouz of the New Orleans law firm of Murphy, Rogers, Sloss & Gambel. Mr. Murphy and Mr. Mahfouz represented the Treasure Chest Casino in a lawsuit filed by respondent in May 2004 (prior to her suspension) on behalf of her client, Donald Gonzales. Mr. Murphy and Mr. Mahfouz informed the ODC that their firm contacted respondent on at least three occasions during late 2004 and early 2005 regarding Mr. Gonzales’ suit. Mr. Murphy and Mr. Mahfouz stated that they were unaware of respondent’s suspension from the practice of law when they contacted her on those occasions.

After this complaint was filed, respondent gave a sworn statement to the ODC in which she admitted that she had failed to notify Mr. Murphy and Mr. Mahfouz of her suspension from the practice of law, as required by Supreme Court Rule XIX, § 26. However, respondent stated that she mistakenly believed she was not required to do so because she considered the Gonzales matter abandoned. Respondent explained that she was retained by Mr. Gonzales to file suit against the Treasure Chest Casino for injuries he allegedly sustained when he was physically accosted by casino employees and a Kenner policeman. Respondent filed the suit on May 6, 2004. Two weeks later, respondent contacted Mr. Gonzales to discuss the discovery requests she had received from Mr. Murphy. Respondent explained to her client that he was to take the discovery home, answer the questions, and return the responses to |aher with certain documentation. Several days later, respondent found the discovery requests stuffed under her door, unanswered and without the necessary documentation. Respondent attempted to telephone Mr. Gonzales but could not reach him for several days. When she finally spoke to Mr. Gonzales, respondent told him that the discovery responses were not satisfactory and that he needed to return to her office; however, he failed to do so. Respondent represented that this was the last time she heard from Mr. Gonzales. Thereafter, respondent learned that her client was a drifter, that his contact telephone number belonged to a bar, that no one had seen or heard from him in weeks, and that he was rumored dead. Based upon this information, in August 2004, respondent wrote to Mr. Gonzales in care of his sister and informed him that she could no longer continue to represent him in the Treasure Chest Casino case. Respondent also had several conversations with Mr. Murphy’s paralegal in 2004 in which she reported the disappearance of her client; both sides agreed to “doing nothing and letting the matter die on its own.” Subsequently, at the request of defense counsel, respondent signed a formal motion to dismiss the Gonzales case without prejudice. The motion was filed into the court record and granted in August 2006.

DISCIPLINARY PROCEEDINGS

Rule to Revoke Probation

On September 28, 2006, the ODC filed a rule to revoke respondent’s probation, on the ground that she had failed to comply with the notice requirements of Supreme Court Rule XIX, § 26. The ODC prayed for the revocation of respondent’s probation and the imposition of the previously deferred portion (two years) of respondent’s original three-year suspension.

14Board Panel Hearing

A hearing was conducted before an adjudicative panel of the disciplinary board on October 26, 2006. The ODC called Mr. Mahfouz, Ms. Susan Passauer, and respondent to testify before the board panel. Mr. Mahfouz confirmed that his law firm never received any written notice from respondent that she had been suspended from the practice of law. Mr. Mahfouz also testified that respondent did not file a formal motion to withdraw as Mr. Gonzales’ counsel of record.

Ms. Passauer, a paralegal at Murphy, Rogers, Sloss & Gambel, testified that she contacted respondent in October 2004 (pri- or to the effective date of respondent’s suspension), and again in April and June 2005 (during the period of respondent’s suspension) to inquire about the Gonzales case. Ms. Passauer testified that respondent informed her during these conversations that her client had disappeared, but never indicated she had been suspended from the practice of law.

In her testimony, respondent explained that she had no pending cases at the time of her suspension, other than Mr. Gonzales’ case, which she did not consider as “pending” because she had “fired” Mr. Gonzales as a client after not being able to locate him. Nevertheless, respondent conceded that Mr. Gonzales’ lawsuit was pending in the 24th Judicial District Court at the time of her suspension, and that she failed to notify opposing counsel of her suspension, as required by Supreme Court Rule XIX, § 26. Respondent also admitted that by failing to comply with Rule XIX, § 26, she did not fully comply with the requirements of her suspension order. In her defense, respondent testified that she was under a great deal of stress as a result of her suspension, and furthermore, that she erroneously believed that she did not have to comply with Rule XIX, § 26 because she received a February 14, 2005 letter from the |sODC which stated that the notice requirement applied only to attorneys suspended for more than one year.

Disciplinary Board Recommendation

After considering the evidence presented at the hearing, the disciplinary board found that respondent did not provide notice of her suspension to Mr. Murphy and Mr. Mahfouz. During the period of her suspension, respondent spoke to Ms. Pas-sauer about the Gonzales case on two occasions, which led the paralegal and the attorneys for the Treasure Chest Casino to believe that respondent continued to represent Mr. Gonzales. In neither conversation did respondent tell Ms. Passauer that she was suspended or that she was no longer representing Mr. Gonzales. The board observed that informing opposing counsel that one’s client cannot be found is insufficient to establish that respondent no longer represents the client or that she is suspended from practicing law.

The board rejected respondent’s contention that she had no obligation to notify opposing counsel of her suspension because she had fired Mr. Gonzales as a client in August 2004. Respondent’s subsequent conversations with Ms. Passauer, as well as her filing of a motion to dismiss Mr. Gonzales’ lawsuit without prejudice in August 2006, belie her belief that her representation of Mr. Gonzales was not ongoing during her suspension.

Finally, the board found respondent’s argument that she was confused by the ODC’s February 14, 2005 letter to be without merit in light of respondent’s admission that she had read Supreme Court Rule XIX, § 26 and was familiar with it.

Based on these findings, the board concluded:

IfiODC has proven by clear and convincing evidence that Respondent failed to meet the condition precedent of Rule XIX, Section 26(C) necessary for reinstatement to the practice of law. Respondent did not notify the defendant Treasure Chest Casino and its attorneys of her suspension in accordance with Rule XIX, Section 26. Respondent did not notify or attempt to notify her client, Mr. Gonzales, of her suspension in light of her continued representation of him during her suspension.

Accordingly, the board recommended that respondent’s probation be revoked and that the two-year deferred suspension be imposed.

DISCUSSION

Based on our independent review of the record, we find that respondent failed to comply with the requirements of Supreme Court Rule XIX, § 26. It is undisputed that after respondent was suspended from the practice of law, she failed to notify opposing counsel in a pending matter of the court’s order.

Nonetheless, we find respondent’s actions were not the product of an evil or dishonest motive nor did they cause any actual harm. Under the totality of the circumstances, we do not find formal discipline is warranted by this court. See, e.g., In re: Hartley, 03-2828 (La.4/2/04), 869 So.2d 799. Accordingly, we decline to revoke respondent’s probation.

DECREE

For the reasons assigned, the rule to revoke probation filed by the Office of Disciplinary Counsel against Ann B. Stein-hardt is denied.

      . This letter is obviously in error, as Rule XIX, § 26 provides that its requirements are applicable to attorneys who are suspended for more than six months.


text:
    In re Joseph G. PASTOREK, II.
    No. 2005-OB-2336.
    Supreme Court of Louisiana.
    Dec. 15, 2006.
   ON APPLICATION FOR ADMISSION TO THE BAR

PER CURIAM.

Petitioner, Joseph G. Pastorek, II, successfully passed the essay portion of the Louisiana Bar Examination. However, the Committee on Bar Admissions (“Committee”) declined to certify him for admission to the Bar based upon character and fitness concerns. On petitioner’s application to this court, we appointed the Office of Disciplinary Counsel to conduct an investigation and appointed a commissioner to take character and fitness evidence. Following the proceedings, the commissioner filed his report with this court, recommending that petitioner be admitted to the practice of law. Neither petitioner nor the Committee objected to that recommendation.

Considering the commissioner’s recommendation and the entire record of this proceeding, we conclude petitioner has satisfied his burden of proving that he has “good moral character” to be admitted to the Bar of this state. See Supreme Court Rule XVII, § 5(E). Accordingly, it is ordered that the application for admission be and hereby is granted.

TRAYLOR and KNOLL, JJ., would deny admission.


author: KNOLL, Justice. WEIMER, J., VICTORY, J.,

text:
    H.H. HANKS, et al. v. ENTERGY CORPORATION, et al.
    No. 2006-C-477.
    Supreme Court of Louisiana.
    Dec. 18, 2006.

      Kleinpeter & Kleinpeter, Robert L. Kleinpeter; Crawford & Joyce, Brian E. Crawford, Jefferson B. Joyce, Monroe, for Applicant.
    The Boles Law Firm, Walter C. Dunn, Jr., Monroe, for Respondent.
   KNOLL, Justice.

| ¶ This case concerns a lightning strike during an electrical storm that ultimately caused the destruction of an electrical transformer at the pole and the fire of an adjacent residence. The case was tried by judge alone and the determination of liability rested almost completely on expert testimony. The primary issue is whether the district court’s finding of breach and causation as to the defendant, Entergy Louisiana, Inc. (“Entergy”), was manifestly erroneous.

The plaintiffs filed the instant suit against Entergy, alleging Entergy’s negligence in installing and maintaining its electrical equipment servicing their lake house, specifically the lightning arrester attached to the transformer in this case, caused the damage to the house. In its answer, Entergy pled the affirmative defense of force majeure, maintaining the lightning strike was an overwhelming act of God relieving Entergy of any liability. The district court found Entergy breached its duty of reasonable care and this breach was a cause in fact of harm to the plaintiffs. The court of appeal reversed, finding the circumstantial evidence established by a preponderance of the evidence the damage was caused by the act of God force of an unusual and massive lightning strike, and rendered judgment in favor of Enter-gy. We granted this writ to review the correctness of the court of appeal’s decision. Hanks v. Entergy Corp., 06-477 (La.6/16/06), 931 So.2d 359. For the following reasons we reverse, finding the court of appeal erred in reversing the district court’s determination of liability.

FACTS AND PROCEDURAL HISTORY

On the morning of April 3, 2000, lightning from a thunderstorm occurring near Lake D’Arbonne in Union Parish, Louisiana, destroyed the electrical transformer serving a lake house resulting in a fire that consumed the house. According to lightning verification data submitted into evidence, during the storm, at approximately 6:17:46 a.m., an intense lightning strike measuring 87.9 kiloamps (“KA”) occurred. No one disputed the magnitude of this recorded strike. A strike of this magnitude is in the upper 2% range of lightning strikes. This as well is not disputed. The evidence from the lightning data network indicated the lightning struck within 3/10 of a mile of the lake house, owned by plaintiffs, James B. Hanks, Lewis Hanks, William Hanks, and Tracy Hanks (the “Hanks”) and insured by Encompass Insurance Company (formerly CNA Insurance Company). The exact location of the strike, however, is disputed and is one of the main issues of disagreement among the experts. While other lightning strikes of lesser intensity also occurred, the experts all agree this massive strike was the probable cause of the damage to the lake house.

Electrical service to the lake house was provided by Entergy, which owned and maintained the transformer and lightning arrester located on a pole 90 feet from the lake house and attached to the Entergy distribution lines leading to the house. A transformer reduces the higher voltage (8 to 20 kilovolts) from the distribution line l3to allow standard (120/240) volt service for the dwelling. The higher voltage enters the transformer through the high-voltage or HI lead, and the reduced voltage leaves the transformer through the low voltage lead on the tank of the transformer and travels down the service drop into the service location. The surge arres-ter, which is at the center of this dispute, is a large vertical cylindrical porcelain passive device, which is bolted by brackets to the side of the transformer on the high side of the bushing and protects the transformer from high voltage surges by diverting the excess voltage to the ground away from the transformer. When voltage greater than threshold voltage is impressed across the arrester, the apparatus acts like a switch and directs the high voltage current to a ground mechanism extending down the pole to a rod driven in the ground. When the surge ends, the device switches back to the line, isolating it from the ground.

All experts agreed the 27 kilovolt (“KV”) distribution class, silicon carbide lightning arrester (surge suppressor) installed at the location was appropriate for the dwelling and to protect the 20KV single-phase distribution class transformer. Entergy installed lightning arresters with all their transformers because lightning hits nearly all transformers on an average of twice a year in Louisiana. The arres-ters are also required to work for protection against unexcepted surges of power along the distribution system. The transformer at issue had been placed on the utility pole to service the dwelling in 1996, and Entergy had received neither requests for repairs nor complaints about the device during that time.

Entergy employees who visited the location for the first time on April 8, 2000, found significant damage to the transformer. The bottom of the steel tank had been [4blown out, and the lid was blown off. Experts on both sides agreed such destruction of the tank by lightning was as great as they had ever witnessed. A photograph taken during the initial site visit showed the arrester, however, sustained no apparent damage. This photograph is the only remaining evidence of the arres-ter preserved for trial. Critically, while the damaged transformer was retained, Entergy failed to physically examine or retain the arrester.

Encompass paid the Hanks policy proceeds in accordance with the terms and provisions of its policy and was subrogated to the Hanks’ claims. The cost to reconstruct the dwelling, however, significantly exceeded the policy proceeds. Consequently, on March 26, 2001, the Hanks and Encompass, as subrogee, filed this action for damages against Entergy and Howard Industries, Inc., the manufacturer of the transformer. Howard Industries, Inc. was later dismissed because the parties agreed no defect in the transformer or internal failure of the transformer caused the damage in this case. Encompass sought to recover the amounts it paid to the Hanks pursuant to its policy. The Hanks sought to recover the uninsured portion of their loss.

Plaintiffs alleged in their petition the fire was caused by a lightning strike on a power line owned, operated, and maintained by Entergy and high voltage from the|Bstrike entered the structure igniting a fire. Plaintiffs further alleged Entergy committed certain negligent acts or omissions, which caused or contributed to the fire, including: (1) failure to properly maintain and inspect the power lines and electrical equipment servicing the lake house; and (2) failure to properly place, maintain, and employ surge protectors or arresters at the power pole adjacent to the dwelling. On June 21, 2001, Entergy filed its answer generally denying liability and raising the affirmative defense of force majeure. Trial by judge was commenced on March 4, 2004, continued on March 5, 2004, and concluded on October 5, 2004. After trial, counsel submitted their memo-randa, and the matter was taken under advisement.

On the morning of trial, the parties stipulated to the following facts (1) the fire occurred on or about April 2, 2000; (2) the electrical pole and the equipment attached thereto providing electrical service to the lake house was owned, operated, and maintained by Entergy; (3) the Encompass insurance policy was in effect insuring against fire losses on the date of the fire; (4) pursuant to the policy, sums were paid to the Hanks by Encompass, and Encompass was legally subrogated to the Hanks’ claims to that extent. The parties subsequently reached an agreement as to quantum.

Because the arrester undisputably did not protect the transformer from the lightning, the primary question in this litigation is why the arrester failed to protect | fithe transformer. The plaintiffs contend that, if the arrester had been properly functioning or correctly connected, the arrester would have performed the task for which it was created, that being to protect the transformer by redirecting extra voltage caused by the lightning strike away from the transformer and into the ground through a ground conductor. According to the plaintiffs, this process did not occur, and as a result, arcing occurred at the circuit panel box of the house, causing the fire. Because Entergy disposed of the arrester before the parties could examine it, the question of liability at trial turned on expert testimony presented by both the plaintiffs and the defendant. To understand the respective positions of the parties, it is necessary that we set forth the expert testimonies of each side in the factual recitation of this case, which tends to be lengthy, but important. We will first present plaintiffs’ expert testimony, which the district court accepted in ruling in favor of the plaintiffs.

In them case in chief, plaintiffs tendered Lacie Gene Smith as an expert in electrical engineering concerning the cause and/or origin of the fire, particularly as it relates to the significance, if any, of lightning strikes as a causative effect, and also as to the damage to the electrical apparatus of Entergy and damage to the Hanks dwelling. Essentially, Smith opined a lightning strike caused the failure of the transformer, resulting in the house fire. The failure of the lightning arrester to perform properly led directly to the failure of the transformer, which in turn led to the fire. Smith confirmed the lightning strike was a positive cloud-to-ground strike, which did not involve electrons, but rather positive ions descending from the cloud to the ground in an almost direct path. Smith explained the strike was positive because the report did not contain a negative sign preceding the KA reading and cloud-to-ground because it was reported, as the reporting agency only reported cloud-to-ground strikes. Ground-to-cloud strikes are very rare and do not cause the type of 17damage in this case. Moreover, Smith explained, in a negative strike, negative charges come down the ionization path from the cloud with multiple return strokes, whereas positive strikes have only one to two strokes.

He further explained the path of the positive strike in this case led from the highest line of the distribution service system down through a line to the arrester, and then through the line called the HI (high voltage) lead into the top of the transformer tank. The current encountering resistence, built up voltage beyond the transformer’s capacity. Once it exceeded the capacity, the energy went through first the ground clips to the static shield, punched through the winding in the primary into the secondary of the transformer, which connected to the low voltage lead on the tank of the transformer and traveled down the service drop into the home. Upon meeting the resistence of the windings, the over voltage caused arcing through the transformer and the explosion.

A tubular bushing device situated directly on the top of the tank contained the HI lead as it entered the tank. This device was blown off the top of the tank by the explosion and could be seen hanging from the wires connecting the device to the arrester as depicted in the only photograph of the arrester taken after the fire and prior to removal of the transformer from the pole. Significantly, the photograph showed no visible damage to the arrester.

Smith testified that, despite the intensity of the lightning strike, no damage to the arrester or the ground pole along the line of the ground wire occurred. Smith opined that, with such an intense surge, one would expect to have an internal pressure build up in the arrester that would blow off the top and bottom of the arrester as well as the ground connection. Also, with the magnitude of the current, one would expect [«to see overheating along the ground wire, which served as the drain wire from the arrester to the ground. Smith identified photographs attached to his report admitted into evidence, which revealed a lack of overheating on the grounding conductor on the side of the transformer pole and explained that, had the arrester been properly connected and functional, the large strike would have produced heating on the ground wire and evidence thereof. He also explained a photograph of the connecting clamp on the side of the transformer tank where a ground line connection for the arrester was located and testified he saw evidence of arcing at the connection, indicating to him the connection to ground was loose. As a result, Smith concluded the arrester either did not function or was not properly connected. He further opined the arrester did not properly function because of a defect in its switch device or because its grounding conductor line was not connected. He further opined prior functioning of the switch device, which depleted the internal operation of the arrester, was the most probable cause of the arrester’s failure.

Although admittedly it was virtually impossible to determine the point of origin of the fire, Smith testified the only evidence of electrical activity in the remains of the home was found on the circuit breaker, which contained evidence of arcing in the circuit breaker panel, connected to the meter box. He could say with a reasonable degree of electrical engineering certainty the current entered the circuit breaker panel through the meter base, causing the arcing. The panel, which Smith alleged contained evidence of arcing in the form of a hole through the panel, would have been located on the inside wall of the house directly opposite where the meter box was located on the outside wall, which was the electrical service entrance to the house. Smith also identified a photograph of the meter base at the house, which depicted melting of aluminum service drop conductors that indicated an overload.

19Present at the destructive testing and analysis of the damaged transformer conducted at Howard Industries for the purpose of determining the damage to the transformer, Smith identified photographs of the process, which revealed damage to the various levels of the windings within the transformer and the HI lead, opining the surge of electricity, which destroyed the transformer, entered through the HI lead. He opined the strike most likely hit the distribution line because of the magnitude of damage to the transformer and because cloud-to-ground strikes will hit the highest object first, in this case the distribution line. He further opined that, with the positive cloud-to-ground strike, the electrical current took a downward path beginning from the HI lead into the arres-ter and the transformer.

Additionally, based on Entergy’s design manual and the laws of science, Smith opined the full 87.9KA magnitude of the electrical current from the positive strike could not have been impressed upon the transformer, but more likely, 10, 20, or even 60% of the current reached the transformer, which the 65KA capacity arrester could have handled had it been functioning, resulting in no damage to the transformer. As authority, Smith testified to the design of Entergy’s electrical distribution lines, which act as infinite busing of energy on the line. If an electrical strike hits a distribution line, the line is designed so the current will spread or dissipate in two directions to allow the excess energy to bleed or drain off the line at other arresters along the line. Although the strike would have hit towards the end of the line in this case, the distribution line in its busing capacity should have directed the current in two directions therefore most probably only 60% of the 87.9KA current could have reached the transformer. Moreover, Smith opined the arrester had a minimum 65KA capacity based on an Institute of Electrical and Electronic Engineers’ report and further there was no distinction between the standard capacity of a distribution class |inand station class arrester to which the report referred. In his opinion, no other logical explanation existed to describe the cause of destruction of the house by fire other than defective equipment or improperly maintained equipment.

Turning now to Entergy, it presented two expert witnesses also in the field of electrical engineering. Entergy tendered John K. Owens, Ph.D, as an expert in the field of electrical engineering as it relates to the damage to the Entergy service equipment and the manner, if any, in which the damage was related to the fire, with specialized expertise in the field of lightning protection and fire origin and cause investigation. Owens also testified the lightning was a positive cloud-to-ground strike, but with a negative electron flow from the ground to the cloud. Negative charged electrons flowed from the earth beneath the house through the electrical service drop, which comprises three wires leading to the transformer. He opined the electron flow was from the ground up from various locations in the house, including the water, gas, and electric lines. As the negative electrons flowed, voltage generated from these ground neutral poles at the house produced arcing at various locations in the house. Additionally, negative charged electrons flowed from the earth around the pole where the transformer was mounted. The physical damage to the transformer, according to Owens’ observation, proceeded up from the bottom of the tank to the high voltage lead, instead of in a downward path from the distribution line through the high voltage lead as testified to by Smith.

Owens testified the lightning struck at the top of the pole and the arrester received the full current of the strike. He also did not agree a loose ground clamp on the transformer tank caused the fire because a lightning strike of this magnitude would have arced across any gap in the connection seeking ground at the pole. Any evidence of arcing around the grounding clamp was irrelevant, and the lack of burned | nwiring on the pole was explained by the short duration of the strike event and the use of copper wiring, which would not have had enough time to burn. Thus, he concluded there was no evidence the transformer or arrester was not functional and testified the lightning strike overwhelmed both devices.

On cross-examination, Owens admitted the strike could have been within 1/4 of a mile of the pole and that, if the strike was far enough away, there would have been some dissipation. Due to the damage to the transformer, however, Owens concluded the strike was close to the transformer, “an almost direct strike to the top of that transformer.”

Entergy also tendered Frederick M. Brooks as an expert in the field of electrical engineering, electric utility operating practices, and fire cause and origin investigation. Brooks concluded the probable cause of the fire was a large scale lightning strike hitting at or near the transformer pole, which created an over-voltage condition in the electrical wiring at the house. He also opined there was no evidence suggesting the lightning arrester did not work as he did not see any evidence of deficiency in Entergy’s equipment. Brooks characterized the strike as a positive lightning strike with electron flow from ground to cloud.

Brooks testified the different classes of arresters, such as the distribution, intermediate, and station classes, have varying capacities to conduct levels of surge energy caused by lightning or otherwise. The distribution-class arrester employed in this case was the standard of the industry to protect the distribution equipment at the pole. When a surge event occurs and the switch in the arrester is triggered for the grounding of the current, the capacity of the arrester to drain off the excess current can be reached and exceeded. If this happens, the current spills over into the transformer and causes damage. The capacity range for handling a lightning event [ iais dependent not only upon the magnitude of the strike current, but also its duration. With such an event, the arrester has not failed in a strict sense, but it is not able to conduct the energy to ground fast enough.

He also explained why no explosive damages occurred at the arrester and it was not unusual to have an undamaged ar-rester despite damage to a transformer. Damage to the arrester would result because of heat, and the heat is generated by the magnitude of the current over time. He described the function of the isolator or end cap device at the bottom of the ar-rester, which operates like a fuse and disengages by a heat build-up on the line leading to ground. After a surge event, follow-through current from the distribution system can continue. If the grounding function of the arrester persists for a period of time, heat then builds and the end cap or isolator blows. If the arrester encounters a higher-than-normal magnitude of current but of short duration with no follow-through current, then the isolator would not disengage to ground. In the photograph of the arrester, the device was not shown to have been triggered, and Brooks cited the blown HI lead connection at the top of the transformer tank as the break in the circuit, which prevented follow-through current from flowing through the arrester for any lengthy period of time.

He concluded the magnitude of the strike simply overwhelmed and damaged the equipment because the 87.9KA strike was outside the 65KA range of the arres-ter. With that type of surge, the arrester was not able to conduct enough energy fast enough to limit the voltage rise. Because of the extent of damage to the transformer, he believed lightning hit close to the pole. He added that, under plaintiffs’ theory, the arrester did not work and the lightning hit down the line, with dispersion, the transformer would have received only 10 or 20% of the current, which, in his opinion, would not have been enough to blow the transformer. He referred to the Entergy [13standards in concluding that, if lightning hits directly on a facility, the facility might be subject to the entirety of the lightning energy, rather than the normal distribution, which occurs if the strike is not direct. Finally, in answer to questions by the district court over the cloud-to-ground versus ground-to-eloud path of the strike controversy, Brooks explained the ground-to-cloud flow made a difference as to a fire-cause scenario, but not as to the arrester function, because the arrester does not care from which direction the electrons are flowing. When the voltage exceeds 27KV, the arrester is going to close the switch and conduct the excess to ground, regardless of which direction the electrons are flowing.

After considering this matter and the evidence presented, the district court entered judgment in favor of Encompass, awarding the insurer $179,643.51, together with interest thereon at the legal rate from the date of judicial demand until paid. The court further awarded the Hanks $145,353.35 together with legal interest thereon at the legal rate from date of judicial demand until paid. Assigning written reasons, the court addressed whether the plaintiffs proved by a preponderance of the evidence defendant, Enter-gy, was liable under a duty/risk analysis.

Agreeing the primary issue in the case was why the arrester did not protect the transformer, the district court stated three possibilities that could explain why the ar-rester failed: (1) the arrester was defective and malfunctioned, or (2) the arrester was not properly connected, or (3) the lightning was of such a force and magnitude the capacity of the arrester was overwhelmed, rendering the arrester incapable of performing its intended function. The court explained that, if the arrester malfunctioned or was improperly connected, Entergy breached its duty of care and that breach was a cause in fact of the fire at the house. The court commented upon the unfortunate fact the arrester was disposed of and not available for inspection or |uanalysis and reasoned that, if the arres-ter had been preserved, the major factual issue of this case probably would have been resolved, one way or the other.

After carefully reviewing the evidence, the court found the testimony of plaintiffs’ expert, Smith, more credible than the testimony of defendant’s experts, Owens and Brooks, and that common sense supported Smith’s opinion an undamaged arrester next to a totally destroyed transformer indicated the arrester was defective in operation or attachment. Additionally, he reasoned, if the arrester had worked and channeled some of the energy into the ground conductor, it was “inconceivable to the Court that there would be no scorching or burning of the pole or the ground conductor, particularly in light of Entergy’s argument that this was a lightning strike of overwhelming magnitude.” Consequently, the court concluded plaintiffs demonstrated the arrester either malfunctioned or was improperly attached, which was a cause in fact of the fire, and established Entergy breached its duty of reasonable care and this breach was a cause in fact of harm to the plaintiffs.

As to Entergy’s affirmative defense of force majeure, the court concluded En-tergy failed to establish the lightning strike would have overwhelmed an arres-ter that was functional and properly attached. Although the court articulated the clear and convincing evidentiary standard was required by Brannon v. Shelter Mut. Ins. Co., 507 So.2d 194, 197 (La.1987), the district court’s reasoning indicates the court applied a preponderance of the evidence burden of proof in its examination of hsEntergy’s affirmative defense. First, the court did not accept “the testimony of Brooks and Owens that this was a direct strike to the electrical apparatus servicing the lake house,” because “[t]he exact location of the strike [was] pure conjecture” and “the lack of damage to anything other than the transformer [made] it inconsistent with a direct hit.” Further, “[a]ll one can know is that the strike was within 3/10 of a mile.” Second, the court found it “improbable that all of the energy from the strike was impressed upon the arres-ter.” In support, the court stated: “[i]f only 25% of the energy had been dissipated, the current would have been reduced to within the capacity for the arrester.” Finally, the court explained he found “the testimony of plaintiffs’ expert [was] as reasonable and plausible as that of Entergy’s experts.” This reasoning is indicative of applying a preponderance of the evidence burden of proof to the defendant’s affirmative defense. Accordingly, he concluded Entergy failed to establish its affirmative defense of force majeure.

On appeal, Entergy argued plaintiffs failed to establish the cause of the fire loss was separate from the unusual act of God event, which in this case was a lightning strike of extreme magnitude. Noting the doctrine of force majeure is sometimes sufficient to excuse a defendant’s neglect of a duty and relieve him of liability to a plaintiff where there is a superior or irresistible force, the court of appeal explained the force must be a providential occurrence or extraordinary manifestation of the forces of nature, which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence and care. Caldwell v. Let The Good Times Roll Festival, 30,800 (La.App. 2 Cir. 8/25/98), 717 So.2d 1263, unit denied, 98-2489 (La.11/25/98), 729 So.2d 566. The court of appeal held “this was a positive strike which, unlike a negative lightning strike, was probably a single stroke |! (¡connecting to ground with high current, approaching in magnitude the greatest lightning strikes which are experienced in thunderstorms.”

From an initial overview of the dispute in this case, the court noted three undisputed points, which could not be overlooked. First, an overwhelming act of God strike did occur in this case and, at least, a portion of the current from the strike caused the loss of the house. Second, while the exact location of the strike determined the magnitude of the electrical force visited upon the arrester, there was no direct evidence demonstrating where the strike occurred — no charring of the utility pole or injury to the distribution line. Third, because of the magnitude of the strike, the evidence indicated a direct strike near the utility pole would not protect the transformer or prevent the additional surge of current through the house, regardless of whether the arrester was in proper working condition. Thus, the court of appeal concluded the plaintiffs had a “formidable task of proving causation distinct from this force of nature.”

Conducting a duty/risk analysis, the court of appeal noted two levels of duty of care are owed by power companies: When the risk involves electrocution, the duty is of utmost care; in cases which involve accidents other than electrocution, that occur on the property of the customer and are allegedly caused by some action or inaction on the part of the electric utility company, the utility company’s duty is to use reasonable care in the installation, operation, and maintenance of their electric lines. Pillow v. Entergy Corp., 36,384 (La. App. 2 Cir. 9/18/02), 828 So.2d 83, writ denied, 02-2575 (La.12/13/02), 831 So.2d 987. In addition, the court recognized the determination of whether the defendant’s conduct was a substantial factor in bringing about the harm and, thus, a cause-in-fact of the injuries is a factual question to be determined by the factfinder. Seeking the cause-in-fact of the fire, the court of appeal |17turned to the expert testimony and observed what it called a “lack of a detailed explanation by either side explaining and comparing the capacity of the equipment and the differing amounts of the voltage that may have been generated by the 87.9-KA strike, depending on the different scenarios suggested for the strike’s location.” Noting the plaintiffs and the defense disputed the capacity of the arrester and the exact location of the strike, the court of appeal interpreted the evidence to support a conclusion the strike in question was of such magnitude it could not be prevented from causing damage by the exercise of reasonable care when the location of the strike caused most of its force to be visited upon the electrical equipment in question. The court of appeal added the plaintiffs’ case, relying on circumstantial evidence for the strike’s location, did not exclude the more probable hypothesis the location of the strike was within the area near the pole where the act of God force overwhelmed the ability of the equipment to ground the massive charge at the utility pole and prevent the fire.

In reaching its conclusion, the court of appeal found fault with Smith’s testimony regarding his reliance on Entergy’s design manual and his failure to explain (1) where the additional grounding relief might have occurred and (2) why it was not equally possible 100% of the strike, rather than merely 20%, would flow through the arres-ter. The court also reasoned Smith’s location of the strike presented a scenario that remained very close to those locations where a catastrophic event was inevitable and that, in placing the strike in a location away from the pole where the force maj-eure might have been handled by the ar-rester, the Smith scenario also had to overcome the inference the arrester, which had previously operated for four years, could be expected to function. Further, the court found the evidence did not support the conclusion a catastrophic lightning event near the pole would have caused 11sphysical damage to the arrester, which should have been visible after the strike. While the transformer is composed of massive windings, which carry the current and present resistence, the arrester did not include such windings, and thus, the current did not meet with the same resistence in the two devices. The court of appeal found “a comparison of the massive explosion of the transformer with the lack of explosion in the arrester was not shown by the evidence to be appropriate.” Most significant, the configuration of the electrical path demonstrated the same powerful current that destroyed the transformer flowed through the arrester without apparent damage. With these facts and Brooks’ more detailed explanation of why the ar-rester could survive a catastrophic strike without visible physical damage, the court found the plaintiffs offered inconclusive proof to isolate a cause of the loss that was more probable than the act of God event, which unquestionably occurred near the equipment.

Finally, regarding the defense view of the event, the court noted Entergy’s experts held to the opinion there was some grounding of the lightning current at the utility pole. Yet, even with the lack of a ground function by the arrester as opined by Smith, Smith offered no explanation why the surge experienced by the transformer, even at only 20% of the lightning’s strike, was not grounded entirely at the pole because of the grounding of the transformer itself. Thus, with the evidence showing the current, which arced through the windings in the transformer, could have been conducted through the ground connection on the transformer’s steel tank, the court found the undisputed ground source was apparently overwhelmed by the magnitude of the strike, solidifying its conclusion the damage was caused by an act of God.

Accordingly, the court of appeal concluded the district court’s conclusion was erroneous and reversed the district court’s judgment. Hanks v. Entergy Corp., 40,486, p. 24 (La.App. 2 Cir. 2/1/06), 921 So.2d 1130, 1143. From this opinion, the plaintiffs sought writs from this court.

LAW AND ANALYSIS

In their application, the plaintiffs argue the court of appeal improperly concluded its own evaluations and inferences were more reasonable than the district court’s evaluations, when the district court’s findings clearly were not manifestly erroneous or clearly wrong. We agree.

Manifest error

In an action to recover damages for injuries allegedly caused by another’s negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Benjamin ex rel. Benjamin v. Housing Authority of New Orleans, 04-1058, p. 5 (La.12/1/04), 893 So.2d 1, 4; Cangelosi v. Our Lady of the Lake Regional Medical Center, 564 So.2d 654, 664 (La. 1989). Proof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, shows the fact sought to be proved is more probable than not. Benjamin, 04-1058 at p. 5, 893 So.2d at 4-5; Cangelosi, 564 So.2d at 664. Thus, the plaintiff in this type of action must produce evidence from which the factfinder can reasonably conclude his injuries, more probably than not, were caused by the negligence of the particular defendant. Cangelosi, 564 So.2d at 664. The plaintiff, however, does not have to conclusively exclude all other possible explanations for his injuries, because the standard is not proof beyond a reasonable doubt. Cangelosi, 564 So.2d at 664; Boudreaux v. American Insurance Co., 262 La. 721, 736-38, 264 So.2d 621, 626-27 (1972). Placing the burden of proof on the | ^plaintiff requires him ultimately to persuade the factfinder concerning the defendant’s negligence, and if the factfinder is undecided after all the evidence has been presented, the plaintiff loses because of the failure of his evidence. Cangelosi 564 So.2d at 664; Boudreaux, 262 La. at 736-38, 264 So.2d at 626-27.

As previously noted, the proof may be by direct or circumstantial evidence. Benjamin, 04-1058 at p. 5, 893 So.2d at 4; Cangelosi, 564 So.2d at 664. A fact established by direct evidence is one which has been testified to by witnesses as having come under the cognizance of their senses. Cangelosi, 564 So.2d at 664. Circumstantial evidence, on the other hand, is evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred. Cangelosi, 564 So.2d at 664-65. Use of circumstantial evidence and the deductions and inferences arising therefrom is a common process for establishing liability in negligence cases. Id., at 665. However, the inferences drawn from the circumstantial evidence must cover all the necessary elements of negligence, and the plaintiff must still sustain the burden of proving his injuries were more likely than not the result of the defendant’s negligence. Id., at 665. If, as in this case, circumstantial evidence is relied upon, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty. Benjamin, 04-1058 at p. 5, 893 So.2d at 5. This does not mean, however, that it must negate all other possible causes. Id.

In this case, plaintiffs have alleged Entergy was negligent in maintaining and connecting the lightning arrester and its negligence caused the damage to the Hanks residence. Under Louisiana jurisprudence, most negligence cases are resolved by employing a duty/risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); |i>,1(2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injures (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) whether the plaintiff was damaged (the damages element). Lemann v. Essen Lane Daiquiries, Inc., 05-1095, p. 7 (La.3/10/06), 923 So.2d 627, 633; Bonin v. Ferrellgas, Inc., 03-3024, p. 5 (La.7/2/04), 877 So.2d 89, 94. A negative answer to any of the inquiries of the duty/risk analysis results in a determination of no liability. Lemann, 05-1095 at p. 7-8, 923 So.2d at 633.

The threshold issue in any negligence action is whether the defendant owed the plaintiff a duty, and whether a duty is owed is a question of law. Lemann, 05-1095 at p. 8, 923 So.2d at 633; Benjamin, 04-1058 at p. 6, 893 So.2d at 5. It is well established Louisiana courts require a high duty of care by those dealing in the manufacture and distribution of electricity. Northern Assurance Company v. Louisiana Power & Light Company, 580 So.2d 351, 358 (La.1991). Electric transmission companies, which maintain and employ high power lines, are required to exercise the utmost care to reduce hazards to life as far as practicable, provided the utility is not required to guard against situations, which cannot reasonably be expected or contemplated. Hebert v. Gulf States Utilities Company, 426 So.2d 111, 114 (La.1983); Simon v. Southwest La. Elec. Membership Corp., 390 So.2d 1265, 1267 (La.1980). However, when the utility company is not the owner of the electrical facility, which causes damage, but merely passes its electricity through this facility, a lesser standard applies. Northern Assurance Company, 580 So.2d at 358; Sibley v. Gifford Hill and Co., Inc., 475 So.2d 315, 319 (La.1985). In such cases where injury or damage occur on the property of a customer and are allegedly caused by some action or inaction on the part of the electric utility company, the duty is to use reasonable care in the installation, operation, and maintenance of their electric lines. See Northern Assurance Company, 580 So.2d at 358-59; Hughes v. Louisiana Power & Light Co., 94 So.2d 532, 534-85 (La.App. 1st Cir.1957). In this case, the district court and the appellate court found Entergy owed a duty of reasonable care in the installation, operation, and maintenance of their electric lines.

Whether the defendant breached that duty and whether that breach was a cause in fact of plaintiffs injuries are factual questions to be determined by the factfinder. Benjamin, 04-1058 at p. 7, 893 So.2d at 6; Toston v. Pardon, 03-1747, p. 11 (La.4/23/04), 874 So.2d 791, 799. A reviewing court may not set aside a district court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where there is conflict in the testimony, inferences of fact should not be disturbed upon review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Stobart v. State, Though DOTD, 617 So.2d 880, 882 (La. 1993). In order to reverse a district court’s determination of a fact, a reviewing court must review the record in its entirety and (1) find a reasonable factual basis does not exist for the finding, and (2) further determine the record establishes the factfinder is clearly wrong or manifestly erroneous. Bonin, 03-3024 at p. 6-7, 877 So.2d at 94-95; Stobart, 617 So.2d at 882. “To perform its constitutional duty properly, an appellate court must determine whether the trial court’s conclusions were clearly wrong based on the evidence or clearly without evidentiary support.” Perkins v. Entergy Corp., 00-1372, p. 11 (La.3/23/01), 782 So.2d 606, 613; Benjamin, 04-1058 at p. 7, 893 So.2d at 6; Bonin, 03-g024j,3 at p. 7, 877 So.2d at 95. Nevertheless, the issue to be resolved by the reviewing court is not whether the factfinder was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart, 617 So.2d at 882.

If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Carter v. Haygood, 04-0646, p. 9 (La.1/19/05), 892 So.2d 1261, 1267; Stobart, 617 So.2d at 882. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Bonin, 03-3024 at p. 7, 877 So.2d at 95; Rosell, 549 So.2d at 844. When findings are based on determinations regarding the credibility of witnesses, the manifest error — clearly wrong standard demands great deference to the trier of fact’s findings, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Bonin, 03-3024 at p. 7, 877 So.2d at 95; Rosell, 549 So.2d at 844.

However, where documents and objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the reviewing court may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d 844-45. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id.

Moreover, the rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are | ^patently unsound. Lasyone v. Kansas City Southern R.R., 00-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693; Lirette v. State Farm Ins. Co., 563 So.2d 850, 853 (La.1990). Credibility determinations, including the evaluation of and resolution of conflicts in expert testimony, are factual issues to be resolved by the trier of fact, which should not be disturbed on appeal in the absence of manifest error. Lasyone, 00-2628 at p. 13, 786 So.2d at 693.

Application of the foregoing principles to the conflicting expert testimony and other evidence lays bare the court of appeal’s error in its employment of the manifest error-clearly wrong standard. After considering the record viewed in its entirety in the present case, we conclude the court of appeal failed to properly apply the appellate review standard.

We do not find the district court committed manifest error in its finding that the plaintiffs established Entergy breached its duty of care and this breach was a cause in fact of harm to the plaintiffs. As noted by the district court, the evidence in this case boils down to the conflicting testimony of the experts and their interpretation of the photographic evidence. The district court made a credibility call, finding the plaintiffs’ expert testimony more credible than the testimony of Entergy’s experts. Because we find no documents or objective evidence in the record that so contradicts the testimony of plaintiffs’ expert or that his testimony is so internally inconsistent or implausible on its face a reasonable factfinder would not credit his testimony, we cannot find manifest error or clear wrongness. Because these factors are not present in this case and the district court’s finding of breach and causation is based on his decision to credit the testimony of Smith, it is virtually impossible for us to find the court’s factual conclusions manifestly erroneous or clearly wrong. Under these circumstances, these evaluations and inferences are entirely the function of the trial 1 ascourt in its fact-finding mission and the appellate court cannot impinge upon this function, even though the appellate court is convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. It was in this manner that the court of appeal fell into error.

Smith opined the arrester was either non-functional or improperly connected, basing his opinion on several factors. First, the photograph of the arrester after the lightning strike showed the arrester was intact and had no visible evidence of damage, whereas the transformer was destroyed. He opined if the arrester had been operational, it would have been damaged considering the severe damage of the transformer. Second, his examination of the power pole revealed no evidence of burning or scorching along the path of the grounding conductor, and he believed if the arrester had worked and “bled off’ excess voltage via the ground conductor, some evidence thereof would have been observable. Smith concluded the arrester was defective or improperly attached and Entergy had failed to properly maintain and inspect its distribution apparatus.

The district court agreed, reasoning common sense supported Smith’s opinion that an undamaged arrester next to a totally destroyed transformer indicates the arrester was defective in operation or attachment. The court further found it inconceivable that there would be no scorching or burning of the pole or the ground conductor if the arrester had worked and channeled some energy into the ground conductor, given Entergy’s argument this was a lightning strike of overwhelming magnitude that directly struck the transformer or very near it.

Additionally, the district court correctly explained the testimony of Brooks and Owens was that the magnitude and proximity of the strike was such that it would have overwhelmed any properly installed and functioning arrester because the lightning 12Bstrike was very powerful in that it was in the top two percent of all strikes in magnitude, which directly hit to the service apparatus, and all of the current from the strike was impressed upon the arrester. The experts agree it is likely the arrester was a distribution class arrester, which could effectively handle 65KA, and the lightning strike generated 87.9KA. Thus, if all the energy from the strike was directed to the arrester, the capacity of the arrester was exceeded.

On the other hand, Smith contradicted the testimony of Brooks and Owens, opining a significant portion of the energy from the strike would have been dissipated throughout the system, giving the infinite busing design of the distribution lines. Thus, in his opinion, all of the energy from the strike would not have been impressed upon the arrester, and he further did not believe it possible to state the exact location of the strike other than the fact it was in close proximity to the lake house.

After carefully considering and weighing the evidence, the district court rejected Owens’s and Brooks’s explanation that there was a direct strike to the electrical equipment as inconsistent with the lack of damage to anything other than the transformer. Agreeing with Smith, the court found it improbable the full magnitude of the electric current was impressed upon the arrester, and the dissipated current, even if reduced merely 25%, would have been within the capacity of the arrester. Thus, it was more probable than not the strike did not overwhelm the arrester and the damage would not have been sustained had the arrester been properly functioning or attached, as the dissipated current would have been within the capacity of the arrester to ground and protect the transformer. Although Entergy’s experts highly contested Smith’s conclusions attributing the failure of the arrester to the magnitude of a direct strike to the electrical equipment, they did not present objective evidence sufficient to contradict Smith’s testimony or to establish any other ^treasonable hypothesis, given the magnitude of the strike, but the lack of visible damage to the arrester, the pole, and the ground conductors.

Our review of the record demonstrates there was a reasonable basis for the district court’s conclusion that it was more probable than not Entergy’s negligence caused the damage in this case. The record does support the conclusion Entergy’s failure to maintain or install its arrester more probably than not caused the damage to the transformer, which, in turn, resulted in the over voltage in the electrical service to the house, which led to the fire, because, according to Smith, had the arrester been operational, the dissipated current would have been within the capacity of the arrester to ground and prevent over voltage to the transformer. Accordingly, we find the district court did not err as the evidence viewed in its entirety does exclude any other reasonable hypothesis with a fair amount of certainty, particularly in light of the district court’s credibility determination of the expert testimony.

In conclusion, we find the court of appeal erred in reversing the district court’s determination of breach and causation as manifestly erroneous. Our review of the record in its entirety reveals the district court did not manifestly err in concluding Entergy breached its duty to the plaintiffs and its breached caused the fire, given the court’s reasonable reliance upon the testimony of plaintiffs’ expert.

DECREE

For the foregoing reasons, the judgment of the court of appeal is reversed and the judgment of the district court is reinstated in its entirety.

REVERSED.

WEIMER, J.,

concurs.

_JjI respectfully concur in the result reached by the majority.

I write to express concern over the majority’s statement that the district court “applied” the preponderance of the evidence burden of proof to Entergy’s affirmative defense of force majeure. See p. 576. The district court specifically stated, “After carefully considering and weighing the evidence in this case, the Court finds that Entergy did not establish by clear and convincing evidence that the lightning strike would have overwhelmed an arres-ter that was functional and properly attached.”

Nevertheless, as noted by the majority, the court did not accept the defense experts’ testimony that there was a direct strike to Entergy’s electrical apparatus and found, when evaluating the affirmative defense of force majeure offered by the defendant, “the testimony of plaintiffs’ expert [was] as reasonable and plausible as that of Entergy’s experts.” When a party that bears the burden of proof presents proof | ¿which is merely equal to its opponent’s proof, the party with the burden fails to prove its contention by a preponderance of the evidence.

Clear and convincing evidence is an intermediate standard of persuasion, which requires more than a preponderance of the evidence, but less than proof beyond a reasonable doubt; the existence of the disputed fact must be much more probable than its nonexistence. Louisiana State Bar Association v. Edwins, 329 So.2d 437 (La.1976). In contrast, “[p]roof is sufficient to constitute a preponderance when the entirety of the evidence, both direct and circumstantial, establishes that the fact or causation sought to be proved is more probable than not.” Talbot v. Talbot, 03 0814, p.12 (La.12/12/03), 864 So.2d 590, 600, quoting Cay v. State, Department of Transportation and Development, 93-0887, p. 4 (La.1/14/94), 631 So.2d 393, 395. Thus, as in the instant case, a party that fails to meet a preponderance of the evidence standard a fortiori fails to meet the more stringent standard of clear and convincing evidence.

VICTORY, J.,

dissenting.

_JjI dissent from the majority opinion, which applies the wrong standard of review in deciding this case. Because the trial court committed legal error by applying the clear and convincing burden of proof to Entergy’s affirmative defense of force majeure, rather than the preponderance of the evidence burden of proof, the manifest error standard of review does not apply and we must determine the facts de novo from the record. Wallmuth v. Rapides Parish School Bd., 01-1779 (La.4/3/02), 813 So.2d 341, 345, n. 2.

The court of appeal, upon applying the correct burden of proof, Hanks v. Entergy Corp., 40,486 (La.App. 2 Cir. 2/1/06), 921 So.2d 1130, 1135, found in a well-reasoned opinion that “[t]he plaintiffs’ case, relying on circumstantial evidence for the strike’s location, did not exclude the more probable hypothesis that the location of the strike was within the area near the pole where the Act of God force overwhelmed the ability of the equipment to ground the massive charge at the utility pole and prevent the fire.” Id. at 1143.

For the reasons expressed by the court of appeal, I respectfully dissent.

      . These included reports issued by StrikeNet and StrikeFax, which the experts explained are generated by the same company under different names designating the method of delivery. The company, Vaisala, sets out a network of antennas and grids around the country to register and pinpoint lightning strikes. It reports only cloud-to-ground strikes and indicates positive and negative strikes by the use of symbols preceding the KA reading. A subtraction symbol indicates a negative strike. Positive strikes are reported without symbols. The strike in this case was reported as a "87.9KA” strike.

      . The tubular bushing device situated on the top of the tank contains the HI lead and is also connected to the arrester. The arrester is also connected by wire to the distribution line.

      . This class of arrester will direct or bleed any current in excess of 20 to 27KV to ground.

      . This photograph was admitted into evidence and marked as Entergy Trial Exhibit # 2.

      .This action became the subject of a spoliation of evidence claim by plaintiffs raised in the lower courts. Both the district court and the court of appeal rejected plaintiffs’ claim to the presumption of spoliation because Enter-gy explained the arrester was probably removed and discarded in accordance with the standard operating procedures shortly after the apparatus was removed from the scene, and the plaintiffs did not take steps to preserve the transformer. The courts further found no evidence Entergy intentionally destroyed the arrester to deprive plaintiffs of its use. At the time the arrester was discarded, no litigation was pending.
      Although the plaintiffs briefed this issue for oral argument, this issue was not raised in the plaintiffs' writ application to this Court and is not properly before us, except as to Entergy's ability to meet its burden of proof in its affirmative defense of force majeure. Boudreaux v. State, Through Dept. of Transp. and Development, 01-1329, p. 5 (La.2/26/02), 815 So.2d 7, 11 (finding additional questions briefed for oral argument, but not contained in the original writ application, are not properly before the Court). Therefore, we pretermit this interesting issue for another day.

      .Plaintiffs also affirmatively alleged the application of the doctrine of res ipsa loquitur to the facts and allegations of this claim. Because it seemed likely to the district court house fires could be caused by lightning in the absence of negligence, the court concluded res ipsa had no application to this case. This issue was not raised in this Court.

      . On August 13, 2003, the plaintiffs filed a partied motion for summary judgment, raising the issue of spoliation of evidence as to the disposal of the arrester. The district court denied the motion on September 3, 2003.

      . Although the parties stipulated to the date of the fire as occurring on or about April 2, 2000, all the experts agree the lightning strike, which resulted in the fire, occurred on the morning of April 3, 2000 at 6:17:46 a.m. Therefore, when we refer to the date of the fire, we will refer to April 3, 2000, the agreed upon date of the strike.

      . "Punched through” means the energy bore a hole into the winding of the transformer.

      . The term "force majeure” means a superior or irresistible force. Saden v. Kirby, 94-0854, p. 8 (La.9/5/95), 660 So.2d 423, 428. The concept of force majeure is similar to the common law concept of "act of God,” which has been defined as a providential occurrence or extraordinary manifestation of the forces of nature, which could not have been foreseen and the effect thereof avoided by the exercise of reasonable prudence, diligence, and care, or by the use of those means, which the situation renders reasonable to employ. Saden, 94-0854 at p. 8, 660 So.2d at 428; Southern Air Transport v. Gulf Airways, 215 La. 366, 376, 40 So.2d 787, 791 (1949). An act of God in the legal sense acts as a defense sufficient to excuse the defendant’s neglect of a duty and relieve him of liability for injury. Southern Air Transport, 215 La. at 376, 40 So.2d at 791. However, when a force maj-eure or act of God combines or concurs with the conduct of a defendant to produce an injury, the defendant may be held liable for any damages that would not have occurred, but for its own conduct or omission. Saden, 94-0854 at p. 8, 660 So.2d at 428.

      . Plaintiffs also argue the court of appeal failed to correctly apply the evidentiary burden of proof, which rested with the defendant, Entergy, to prove its defense of force majeure. Because the district court and the court of appeal applied the same evidentiary burden of proof, i.e., a preponderance of the evidence, to the affirmative defense, we pretermit this issue.

      . Because quantum was stipulated to by the parties, the damage element will not be discussed in this opinion.

      . I note that LSA-C.C.P. art. 1005, which provides for affirmative defenses, is silent regarding the necessary burden of proof. However, the courts that have required proof by a preponderance of the evidence for establishing an affirmative defense constitute an overwhelming majority. See, for example, Harmon v. Lumbermens Mutual Casualty Company, 247 La. 263, 277, 170 So.2d 646, 651 (1965) (One who sets up a special defense must sustain it by a preponderance of the evidence.); A Better Place, Inc. v. Giani Investment Company, 445 So.2d 728, 732 (La. 1984). “Our jurisprudence has consistently held that a person pleading an affirmative defense bears the burden of proving such a defense, and of course it must be established by a preponderance of the evidence.” Crescent Cigarette Vending Corporation v. Toca, 271 So.2d 53, 55 (La.App. 4 Cir. 1972). Accord, Martco Partnership v. Frazier, 01-72, pp. 4-5 (La.App. 3 Cir. 6/6/01), 787 So.2d 1196, 1199; Abadie v. Markey, 97-0684, p. 11 (La. App. 5 Cir. 3/11/98), 710 So.2d 327, 332; Confederate Welding and Safety Supply, Inc. v. Bank of the Mid-South, 458 So.2d 1370, 1377 (La.App. 2 Cir. 1984), writ denied, 462 So.2d 1264 (1985); Womack Brothers, Inc. v. Equipment Rental Services, Inc., 399 So.2d 661, 663 (La.App. 1 Cir.1981).
      More specifically, in Walker v. Department of Transportation and Development, Office of Highways, 460 So.2d 1132, 1137 (La.App. 2 Cir.1984), writ denied, 464 So.2d 1377 (1985), the court stated, although in dicta, "The Act of God defense to strict liability is an affirmative defense which the [defendant] is required to establish by a preponderance of the evidence.” However, in Brannon v. Shelter Mut. Ins. Co., 507 So.2d 194, 197 (La. 1987), this court concluded a higher burden of proof was warranted when a party asserted the affirmative defense of sudden unconsciousness to a negligence claim. More recently, in Talbot v. Talbot, 03-0814 (La.12/12/03), 864 So.2d 590, this court rejected a requirement of clear and convincing evidence in a community property contest and held that the community presumption contained in LSA-C.C. art. 2340 is rebuttable by either spouse upon a showing by a preponderance of the evidence the separate nature of property brought into the community. We explained:
      In civil cases, a party who has the burden of proof must prove the fact in issue by a preponderance of the evidence, and not by some artificially created greater standard. Only in exceptional controversies is the clear and convincing standard applied in civil cases “where there is thought to be special danger of deception, or where the court considers that the particular type of claim should be disfavored on policy.” [Citations omitted.]

        Id., 03-0814 at 9, 864 So.2d at 598.