author: CARTER, C.J.

text:
    Dennis MILLER v. FIDELITY ASSOCIATES, INC.
    No. 2004 CA 2218.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Michelle Sorrells, Baton Rouge, for Plaintiff-Appellant, Dennis Miller.
    John J. Rabalais, Janice B. Unland, Robert T. Lorio, David S. Pittman, Cov-ington, for Defendant-Appellee, Fidelity Associates, Inc.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   CARTER, C.J.

lain this District 5 workers’ compensation case, the claimant, Dennis Miller, alleged that he had injured his lower back after he descended a flight of stairs at the end of a sales call on November 13, 2002. The claimant sued his employer, Fidelity Associates, Inc., for benefits. The workers’ compensation judge (WCJ) made a credibility determination regarding the claimant’s version of the accident based upon his inconsistent testimony at trial, in his recorded statement, in his deposition, and in the medical histories he provided to his physicians as to how the accident occurred and the time frame for the onset of his back pain. The WCJ found that the claimant was not credible and that the claimant did not meet his burden of proving that an accident occurred at work. The claim was dismissed and the claimant appealed.

A workers’ compensation claimant seeking benefits must prove by a preponderance of the evidence that an employment accident occurred and that it had a causal relationship to the disability. Guidry v. Brewer, 02-2693 (La.App. 1 Cir. 9/26/03), 857 So.2d 623, 625, writ denied, 03-2958 (La.1/9/04), 862 So.2d 993. Whether a claimant has carried his burden of proving a work-related accident and whether testimony is credible are questions of fact to be determined by the fact-finder. Lizana v. Gulf Coast Pain Institute, 03-1672 (La.App. 1 Cir. 5/14/04), 879 So.2d 763, 765.

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of review. Under the manifest error rule, the reviewing court does not decide whether the factual findings are right or wrong, but whether they are reasonable. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable ^inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

After a thorough review of the record, we find that the WCJ had a reasonable basis upon which to determine that the claimant failed to satisfy his burden of proving that he suffered a work-related back injury. The evidence was conflicting and the claimant’s various versions of the accident were inconsistent as to whether his back pain actually began at the base of the stairs, after entering his car, or after playing with his grandchild. We cannot say the WCJ’s resolution of this conflict was unreasonable. Where there are conflicting views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. The WCJ’s factual determinations in this case were not clearly wrong and we see no legal error in the judgment of dismissal. Thus, in accordance with Uniform Rules — Courts of Appeal Rule 2-16.2 A(4), (6), and (8), the WCJ’s decision is affirmed. Costs of this appeal are assessed to the claimant, Dennis Miller.

AFFIRMED.

DOWNING, J., concurs.


source: Caselaw Access Project

author: | .WHIPPLE, J. | BARTER, C.J., hHUGHES, J.,

license: Public Domain

text:
    INTERSTATE BRANDS CORPORATION v. Wilson GALLOW, Jr., Donald J. Mayeaux, Jr., Remi Gautreau, State Farm Insurance, and Lumbermens Mutual Casualty Company.
    No. 2004 CA 0916.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Gregory S. Unger, Metairie, Counsel for Plaintiff/Appellant Interstate Brands Corporation.
    Steve Joffrion, Prairieville, Counsel for Defendant/Appellee Wilson Gallow, Jr.
    Cherie T. Burlett, New Orleans, Counsel for Defendant/Appellee Lumbermens Mutual Casualty Co.
    Elizabeth B. Powell, Baton Rouge, Counsel for Defendant/Appellee Remi Gautreau, Donald J. Mayeaux, & State Farm Mutual Automobile Insurance Company.
    Before: CARTER, C.J., WHIPPLE, DOWNING, McCLENDON and HUGHES, JJ.
   | .WHIPPLE, J.

This appeal presents the issue of whether an employer is entitled to reimbursement from its own uninsured/underinsured motorist carrier for workers’ compensation benefits paid to an employee injured in an automobile accident. For the reasons that follow, we vacate and remand.

FACTS AND PROCEDURAL HISTORY

Wilson Gallow, Jr., was injured on February 18, 2002 in a motor vehicle accident arising out of the course and scope of his employment with Interstate Brands Corporation (IBC) when the company bread truck he was driving was rear-ended by a Ford Explorer. On February 24, 2003, IBC filed the instant lawsuit, seeking to recover the workers’ compensation benefits it had paid to Mr. Gallow and naming as defendants: Mr. Gallow; Donald J. Mayeaux, Jr., the driver of the Ford Explorer; Remi Gautreau, the owner of the Ford Explorer; State Farm Mutual Automobile Insurance Company (State Farm) (erroneously named as “State Farm Insurance Company”), the insurer of the Ford Explorer; and Lumbermens Mutual Casualty Company (Lumbermens), IBC’s uninsured/underinsured motorist (UM/UIM) carrier.

Thereafter, Lumbermens filed a “Motion for Concursus Proceeding” in the proceedings below. Lumbermens averred that both Mr. Gallow and IBC (by virtue of the instant suit) were claiming entitlement to $44,595.68 in settlement funds, for which it admitted liability pursuant to a June 12, 2003 settlement. Given the competing claims to this sum, Lumbermens sought an order allowing it to deposit the sum into the registry of the court, and have the competing parties assert their claims to the funds in a contradictory hearing. After Lumbermens deposited the funds into the registry of the court, it then sought and was granted dismissal of IBC’s claims against it.

|SA hearing on the concursus proceeding was conducted on September 29, 2003, at which time the court heard argument and gave the parties the opportunity to file post-hearing memoranda. The September 29, 2003 minute entry does not indicate that any testimony was taken or any stipulations entered into at the hearing. However, a blank standard endorsement form entitled “LOUISIANA UNINSURED MOTORISTS COVERAGE — BODILY INJURY” was filed into evidence at the hearing.

On November 5, 2003 the trial court rendered judgment against IBC awarding Mr. Gallow “the full sum” of the funds deposited into the registry of the court, $44,595.68, and ordering the Clerk of Court to “dispense the proceeds accordingly.” IBC suspensively appeals this judgment, asserting that the trial court erred in determining that the business automobile policy issued by Lumbermens to IBC contains exclusionary language that precludes IBC from recovering what it has paid in workers’ compensation benefits.

DISCUSSION

In a concursus proceeding, each party is considered both a plaintiff and defendant. LSA-C.C.P. art. 4656. Each party must prove the amount of his damages. American Southern Home Insurance Co. v. Guidry, 93-720 (La.App. 3rd Cir.2/2/94), 631 So.2d 733, 734. The inter-pleaded parties must establish their respective claims to the fund. Landry & Passman Realty, Inc. v. Beadle, Swartwood, Wall & Associates, Inc., 303 So.2d 761, 763 (La.App. 1st Cir.1974), writ refused, 307 So.2d 631 (La.1975).

An injured employee’s right to claim damages from a third person is not affected by the payment of workers’ compensation. LSA-R.S. 23:1101(A). Furthermore, an employer has the right to recover workers’ compensation payments made to an employee injured in a work-related accident caused by a third person. See LSA-R.S. 23:1101(B).

One who has paid compensation benefits to an injured employee is specifically given a right pursuant to LSA-R.S. 23:1101(B) to bring suit against the third person who has caused the injury, to recover any amount that he has paid or becomes obligated to pay as workers’ compensation to such employee. Therefore, an employer can recover the amount it has paid in workers’ compensation benefits to its injured employee from the third person who is actually responsible for the damages incurred. Because the employer’s UM/UIM insurer is obligated to repair damage caused by an |Buninsured or un-derinsured motorist, an employer’s UM/ UIM insurer is a “third person” legally liable to pay an employee damages resulting from a work-related automobile accident. Thus, an employer’s UM/UIM insurer is a “third person” from whom an employer or its workers’ compensation insurer may be able to recover reimbursement of benefits paid to the injured employee. Degruise v. Houma Courier Newspaper Corp., 2000-0229, pp. 4-5 (La.App. 1st Cir.3/28/02), 815 So.2d 1074, 1078, writs denied, 2002-1179, 2002-1202 (La.6/21/02), 819 So.2d 342, 345.

Nonetheless, that right to reimbursement is not absolute. The Louisiana Supreme Court has held that there is no statutory prohibition against an employer contracting with its UM/UIM insurer to exclude workers’ compensation reimbursement.- Thus, a UM/UIM policy may validly exclude compensation reimbursement to a workers’ compensation insurer. Travelers Insurance Company v. Joseph, 95-0200 (La.6/30/95), 656 So.2d 1000, 1004; Tommie’s Novelty v. Velasco, 37,924, p. 6 (La.App. 2nd Cir.2/26/04), 868 So.2d 962, 965.

In the instant case, Mr. Gallow contended that IBC was precluded from seeking reimbursement under the Lumbermens policy because of certain exclusionary language. The trial court agreed and found that a valid exclusion existed in IBC’s UM/ UIM policy issued by Lumbermens, which prevented IBC from receiving reimbursement. As stated above, a standard form UM/UIM endorsement was introduced into evidence containing a provision under the heading “Exclusions,” which states, “This insurance does not apply to ... [t]he direct or indirect benefit of any insurer or self-insurer under any workers’ compensation, disability benefits or similar law.” The jurisprudence of this state has interpreted such a provision as excluding a reimbursement claim for workers’ compensation payments against an | (¡employer’s UM/UIM insurer, as well as precluding a claim for a credit against a claimant’s receipt of future workers’ compensation benefits on account of funds received in settlement from the UM/UIM insurer. See Bergeron v. Williams, 99-0887, pp. 5-7 (La.App. 1st Cir. 5/12/00), 764 So.2d 1084, 1088-89, writ denied, 2000-1697 (La.9/15/00), 768 So.2d 1281. See also Tommie’s Novelty, 37,924 at pp. 8-9, 868 So.2d at 966-67; Landry v. Martin Mills, Inc., 98-1395, pp. 8-9 (La.App. 3rd Cir. 3/3/99), 737 So.2d 58, 62-63, writ denied, 99-0957 (La.6/4/99), 744 So.2d 625; Cleaning Specialists, Inc. v. Johnson, 96-2677, pp. 3-6 (La.App. 4th Cir. 5/21/97), 695 So.2d 562, 564-65, writ denied, 97-1687 (La.10/3/97), 701 So.2d 210.

However, the record is devoid of any testimony or evidence to establish that this blank standard endorsement form constituted a part of the policy at issue or was one pertinent between the parties herein. Accordingly, Mr. Gallow could not have carried his burden of proving IBC’s inability to receive reimbursement under the policy and, consequently, his entitlement to the sum on deposit in the registry of the court based upon this blank endorsement alone, without some evidence establishing that it constituted part of the policy at issue.

On appeal, IBC expressly avers that the UM/UIM .endorsement was not a part of the Lumbermens policy at issue herein. Specifically, IBC argues that, although it had attempted to reject UM/UIM coverage in the Lumbermens policy, the waiver of UM/UIM coverage was ineffective. Thus, it further contends, there was no endorsement to the underlying Lumber-mens liability policy, but, rather, UM/UIM coverage was statutorily imposed. IBC’s contention is that the underlying policy accordingly does not contain the exclusionary language found in the endorsement that would ^otherwise preclude it from seeking reimbursement for the sums it had paid in workers’ compensation benefits.

In the absence of a valid rejection/selection of lower limits, UM coverage will be read into the policy. Taylor v. Rowell, 98-2865, p. 6 (La.5/18/99), 736 So.2d 812, 816. Under the provisions of former LSA-R.S. 22:1406(D) (amended and redesignated by 2003 La. Acts, No. 456 as LSA-R.S. 22:680), UM coverage is automatic; the parties’ intention is irrelevant. Degruise v. Houma Courier Newspaper Corp., 94-2386, p. 10 (La.App. 1st Cir. 6/23/95), 657 So.2d 580, 586, amended in part, reversed in part, on other grounds, 95-1863, pp. 7-8 (La.11/25/96), 683 So.2d 689. See also Dyess v. American Nat. Property and Cas. Co., 2003-1971, pp. 7-8 (La.App. 1st Cir. 6/25/04), 886 So.2d 448, 453, writ denied, 2004-1858 (La.10/29/04), 885 So.2d 592. However, LSA-R.S. 22:1406(D) further provided, in pertinent part:

(l)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered ... unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, ...; however, the coverage required by this Section is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item (l)(a)(ii) of this Section. (Emphasis added).

Policies issued in Louisiana are considered to contain all provisions required by statute. Accordingly, R.S. 22:1406(D) is incorporated into every policy of insurance to which it is applicable, as if it were written in the policy itself. Block v. Reliance Ins. Co., 433 So.2d 1040, 1044 (La.1983). Accordingly, unless validly waived, UM/UIM provisions filed with and approved by the Commissioner of Insurance are incorporated into the policy.

|sThus, if in fact Lumbermens had filed this UM/UIM endorsement with the Commissioner of Insurance and the Commissioner had approved the endorsement, its provisions, including the exclusionary language, would be statutorily read into the policy at issue, and IBC’s argument that these provisions did not constitute part of its policy would fall. However, despite Mr. Callow’s contention on appeal that Lumbermens had filed the endorsement admitted into evidence as Exhibit Gallow-2 with the Commissioner of Insurance and that the Commissioner of Insurance had approved the endorsement form, there is simply no evidence of record to support these contentions. Considering the foregoing and the lack of testimony or competent evidence of record, we must conclude that the trial court erred in finding that Mr. Gallow had carried his burden of proving his entitlement to funds at issue.

Moreover, on the record before us, we cannot conclude that either party carried the burden of establishing his or its entitlement to the funds in this concursus proceeding. Accordingly, we vacate, the judgment awarding the sums held in the registry of court to Mr. Gallow and remand this matter for further proceedings, including a hearing where both parties shall be Iggiven the opportunity to establish their claims to the funds. See LSA-C.C.P. arts. 4654, 4656 & 4662.

CONCLUSION

For the above and foregoing reasons, the judgment of the trial court awarding Wilson Gallow, Jr. the funds deposited in the registry of the court, $44,595.68, is hereby vacated. The matter is remanded to the trial court for further proceedings consistent with the views expressed herein. Each party is to bear his or its own costs of this appeal.

VACATED AND REMANDED FOR FURTHER PROCEEDINGS.

CARTER, C.J., concurs with reasons.

HUGHES, J., dissents with reasons.

| BARTER, C.J.,

Concurring.

I respectfully concur. I agree with the result reached; however, I write separately to emphasize that if on remand Mr. Gallow can establish that the blank standard endorsement form constituted a part of the policy at issue, and the endorsement was filed with and approved by the Commissioner of Insurance, then it is my opinion that Mr. Gallow would be clearly entitled to the sum on deposit.

hHUGHES, J.,

dissenting.

I respectfully dissent.

Any issues to be resolved on remand were uncontested below, i.e., the attempted rejection of UM was faulty, and the language of the statutorily imposed UM coverage exclusion.

I think the only issue in this case is whether we recognize the distinction between statutorily imposed UM coverage as opposed to contractual coverage as in Bergeron, et al.

The statute, LSA-R.S. 22:680(l)(a)(i), addresses two situations: valid UM coverage and validly rejected UM coverage. It does not address an invalid rejection such as we have here.

The employer attempted to waive UM. The waiver was invalid. Therefore, UM coverage was statutorily imposed. The plaintiff/employee was able to settle his tort claim against the UM carrier. In the meantime the employer was paying workers’ comp benefits to the plaintiff/employee. Now that the plaintiff/employee has received his tort settlement, is the employer entitled to reimbursement for the comp benefits previously paid, or does the employee keep them and receive a double recovery?

Employers should be encouraged to pay worker’s comp benefits to their injured employees and thus I would not allow the windfall to the employee.

      . In a related matter, Mr. Gallow filed a disputed claim form with the Office of Workers' Compensation (OWC) seeking reinstatement of workers' compensation benefits he claims were wrongfully terminated in February 2003 by IBC. IBC had asserted the right to offset benefits under LSA-R.S. 23:1101, 1102, and 1103 due Mr. Gallow with the amount of settlement proceeds received by Mr. Gallow from insurers liable for the damages caused by the tortfeasor. The OWC proceeding was stayed pending a ruling in the civil suit on the Lumbermens policy exclusion issue. After the ruling by the 19th JDC appealed herein, on motion of Mr. Gallow the OWC lifted the stay and rendered a partial summary judgment in favor of Mr. Gallow decreeing that IBC was not entitled to a credit pursuant to LSA-R.S. 23:1101 or 23:1103 or "any other statutes, against past and future compensation benefits for any sums received by plaintiff, Wilson Gallow, Jr.” from Lumbermens. IBC filed a writ application with this court, under number 2004 CW 0838, seeking review of these OWC- rulings. This writ application was referred to this appellate panel for disposition. We issue our ruling on the writ application by separate order of this court, declining to exercise our supervisory jurisdiction.

      . Paragraph (A) of LSA-R.S. 23:1101 provides:
      When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as "third person") other than those persons against whom the said employee’s rights and remedies are limited in R.S. 23:1032, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.

      . At the time of the accident in question, Paragraph (B) of LSA-R.S. 23:1101 provided:
      Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit against such third person to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents. The recovery allowed herein shall be identical in percentage to the recovery of the employee or his dependents against the third person and, where the recovery of the employee is decreased as a result of comparative negligence, the recovery of the person who has paid compensation or has become obligated to pay compensation shall be reduced by the same percentage.

      . With regard to the proof offered by IBC to establish its entitlement to the funds at issue, IBC attached to its post-hearing memorandum three pages of a policy that it contended was the actual business automobile policy issued by Lumbermens to IBC. IBC contended that this policy excerpt demonstrated that the policy did not contain exclusionary language precluding IBC from receiving reimbursement for workers' compensation benefits it had paid.
      The policy excerpt did contain exclusions stating the policy did not provide coverage for "[a]ny obligation for which the 'insured' or the 'insured's' insurer may be held liable under any workers!’] compensation, disability benefits of unemployment compensation law or any similar law.” IBC argued that this provision did not apply to exclude coverage under the facts of this case. Regardless of the merits (or lack thereof) of this argument, we note that the record is devoid of any evidence establishing that this policy excerpt is truly an excerpt of the policy issued by Lumbermens to IBC or that it contains all the exclusions in that policy that would be relevant herein. Accordingly, IBC likewise did not carry its burden below of proving entitlement to the funds at issue by merely relying upon this unauthenticated and unidentified policy excerpt attached to its post-hearing memorandum.


author: J^McCLENDON, J.

text:
    Barbara HANDY v. TEMBEC.
    No. 2004 CA 1877.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.
    Writ Denied March 31, 2006.

      Steven J. Rando, Scott A. Decker, New Orleans, Counsel for Plaintiff/Appellee Barbara Handy.
    Jeffrey C. Napolitano, Metairie, Counsel for Defendant/Appellant TEMBEC.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   J^McCLENDON, J.

This workers’ compensation action is before us on appeal from a judgment in favor of the claimant, Barbara Handy, and against her employer, TEMBEC. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On May 12, 2000, Ms. Handy was involved in a serious work-related accident, while in the course and scope of her employment as a stack helper with TEM-BEC, a paper plant located in St. Fran-cisville, Louisiana. At the time of the accident, Ms. Handy had been employed at TEMBEC, or its predecessors, for approximately twenty-one years. The May 12, 2000 injuries occurred when Ms. Handy was crushed between a buggy carrying a roll of paper and a roll of paper on the plant floor. Ms. Handy was transported to Our Lady of the Lake Hospital where she remained for five days. Ms. Handy’s injuries included a right clavicle fracture, multiple rib fractures, and fractured pelvis.

Compensation benefits, including medical and indemnity benefits, were paid through July 1, 2001. Ms. Handy filed a disputed claim for compensation on May 15, 2002. Following a trial of the matter, the workers’ compensation judge (WCJ) concluded that the modified job offered to Ms. Handy was not a legitimate job offer. While recognizing the efforts of TEMBEC in vocational rehabilitation efforts for Ms. Handy, the WCJ ultimately concluded that TEMBEC failed to satisfy its burden of proof. Accordingly, The WCJ concluded that Ms. Handy was entitled to supplemental earnings benefits (SEBs) at the temporary total disability rate, from July 1, 2001 and continuing until such time that vocational rehabilitation efforts return her to employment that would allow for a reduction. The WCJ additionally awarded Ms. Handy $7,000.00 in attorney’s fees. Judgment was signed on October 2, 2003.

From this judgment, TEMBEC has taken a suspensive appeal, assigning the following as error:

1. The WCJ erred in finding that TEMBEC failed to meet its burden of proving available work within the restrictions of Ms. Handy’s ^treating physician despite the fact that TEMBEC tendered a modified position to Ms. Handy approved by the treating physician;
2. The WCJ erred in making unreasonable inferences of fact, and substituting her own opinion in place of the treating physician, in finding that the modified job offer tendered to Ms. Handy and approved by her treating physician were outside the restrictions imposed by the treating physician;
3. The WCJ erred in finding that it was inappropriate for TEMBEC to tender a temporary two-week job assignment to Ms. Handy to perform while the permanent modifications required by the treating physician were to be installed at the plant; and
4. The WCJ erred in making an arbitrary and capricious finding on the part of TEMBEC and awarding attorney’s fees in light of the fact that TEMBEC relied on the opinions of the treating physician, treating occupational therapist, occupational health care nurse and vocational rehabilitation counselor when offering modified employment to Ms. Handy and terminated benefits after Ms. Handy refused to attempt to work and resigned.

STANDARD OF REVIEW

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. As an appellate court, we cannot set aside the factual findings of the WCJ unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Through Dep’t. of Transp. and Dev., 617 So.2d 880, 882 (La.1993). 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. Furthermore, when factual findings are based on the credibility of witnesses, the factfinder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Scott v. Lakeview Regional Medical Center, 01-0538, pp. 3-4 (La.App. 1 Cir. 3/28/02), 818 So.2d 217, 220, writ denied, 02-1712 (La.10/04/02), 826 So.2d 1127. Accordingly, if there are two permissible views of the evidence, a factfin-der’s choice between them can never be manifestly erroneous or clearly wrong. Chaisson v. Cajun Bag & Supply Co., 97-1225, p. 9 (La.3/4/98), 708 So.2d 375, 381.

DISCUSSION

ASSIGNMENTS OF ERROR NUMBERS 1-3 JOB AVAILABILITY

In these assignments of error, TEMBEC essentially asserts that it met its burden of proving available work for Ms. Handy within the restrictions of her treating physician. Therefore, the award of benefits should bé reversed.

An employee is entitled to receive SEBs if he sustains a work-related injury that results in his inability to earn ninety-percent or more of his average pre-injury wages. LSA-R.S. 23:1221(3)(a). Initially, the employee bears the burden of proving by a preponderance of the evidence that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case. This analysis is necessarily a facts and circumstances one in which the court is to be mindful of the jurisprudential tenet that workers’ compensation is to be liberally construed in favor of coverage. Banks, 96-2840 at pp. 8-9, 696 So.2d at 556; Hebert v. Terrebonne Parish School Bd., 03-1444, pp. 9-10 (La.App. 1 Cir. 5/14/04), 879 So.2d 222, 228-29.

Once the employee’s burden is met, the burden shifts to the employer who, in order to defeat the employee’s claim for SEBs, or to establish the employee’s earning capacity, must prove by a preponderance of the evidence that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer’s community or reasonable geographic region. The employer may discharge its burden of proving job availability by establishing, at a minimum, the following:

(1) the existence of a suitable job within the claimant’s physical capabilities and within claimant’s or the employer’s community or reasonable geographic region;
|fi(2) the amount of wages that an employee with claimant’s experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job’s existence.

Banks, 96-2840 at pp. 9-10, 696 So.2d at 557; Hebert, 03-1444 at p. 10, 879 So.2d at 229.

Here, the parties stipulated that on May-12, 2000, Ms. Handy was employed by TEMBEC and that while in the course and scope of her employment sustained an injury. The parties further stipulated that at that time her average weekly wage was $854.59, giving her the maximum indemnity rate of $384.00 per week; that indemnity benefits for temporary total disability were paid to Ms. Handy by TEMBEC from May 12, 2000, through July 1, 2001; and that medical benefits were also paid through July 1, 2001.

Dr. Michael R. Robichaux, Ms. Handy’s treating orthopedist, testified by deposition that he last saw Ms. Handy on April 9, 2001, at which time he was of the opinion that Ms. Handy was not going to be able to return to her previous level of work. He indicated that Ms. Handy was performing at a light level of activity after a work hardening program. Dr. Robichaux permanently restricted Mrs. Handy to occasional lifting of up to ten to twenty pounds and no heavy lifting on a regular basis. Dr. Robichaux further indicated that Ms. Handy was to avoid repetitive overhead activities because of her clavicle nonunion. As a result of her loss of strength in the upper extremity, Dr. Robichaux assigned a 20% impairment of the upper extremity, which correlated to a 12% impairment of the whole person. Additionally, as a result of Ms. Handy’s pain in her shoulder from her nonunion and pain in her sacroiliac region, Dr. Robichaux assigned an additional 5% impairment to the whole person. Dr. Robichaux also believed that Ms. Handy had reached maximum medical improvement and released her from his care. At trial, Dr. Robichaux testified that there was no significant healing or improvement after the April 9, 2001 date.

| fiA functional capacities evaluation (FCE) in January 2001 indicated that Ms. Handy was capable of a low light level work category. Following the FCE, Michelle Wall, TEMBEC’s vocational rehabilitation counselor, arranged a two-month work conditioning program for Ms. Handy. As part of the return to work effort, Ms. Wall developed a written job analysis for Ms. Handy’s job as a stack helper. Ms. Wall went to the job site and met with Ms. Handy’s supervisor, Craig Ourso, to discuss what physical activities were part of her job. Additionally, Ms. Wall examined a co-worker of Ms. Handy at work. A job analysis was prepared and given to Layne Guidroz, the occupational therapist, to devise a work conditioning program. Ms. Handy undertook work conditioning from February 2001 to early April 2001, attending thirty-five sessions, at which time a second FCE was performed. The FCE was performed on April 6, 2001 by Mr. Guidroz and indicated that Ms. Handy was able to perform at the medium level of full employment.

Ms. Handy expressed concern that the written job analysis for her previous position was not completely accurate in that the job was actually harder than set out on paper. Therefore, Mr. Guidroz went to the job site to observe the job duties. Mr. Guidroz felt that she could perform her job duties with the exception of lifting a forty-five pound winch above shoulder level, which needed to be modified. However, Ms. Handy still expressed concerns about the job description.

Thereafter, Ms. Wall scheduled a rehabilitation consultation for May 16, 2001. Present were Dr. Robichaux, Ms. Wall and Mr. Guidroz. Ms. Handy was not present although she was informed of the meeting. At the meeting, after reviewing a video of another employee performing the activities required of Ms. Handy’s job position, Dr. Robichaux stated that Ms. Handy could return to her former position, with the exception of lifting the winch. He further stated that he believed that Ms. Handy was able to work at a medium level job function in light of the most recent FCE. Dr. Robichaux testified in his deposition that based on 17the videotape and the most recent FCE, using the job analysis as provided by Ms. Wall, Ms. Handy’s previous job at TEMBEC was in the light physical demand level with occasional lifting up to ten to twenty pounds and rare force into the medium level. Dr. Robichaux further stated that he thought Ms. Handy could return to that light level position with the restriction regarding the winch.

As a result of the rehabilitation consultation, TEMBEC’s engineers designed a mounting mechanism to minimize the effort to lift the winch, and made plans to return Ms. Handy to work as of July 2, 2001. A letter was sent to Ms. Handy that her employer was taking her back to work with modifications to her old job. The letter further stated that Ms. Handy was to report to work on July 2, 2001, and her weekly benefits would be terminated at that time. Ms. Handy testified that when she got the letter, she called her supervisor, Craig Ourso. Ms. Handy stated that Mr. Ourso told her that the modification had not yet been made. When she asked what she was to do when she returned, Mr. Ourso advised her to “come back, we’ll find something.” Mr. Ourso did not specify a job for her and did not state whether she would be returning to her old job or going to a new job with TEMBEC. On the day she was to return to work, Ms. Handy called TEMBEC and resigned from her employment stating she did not think she could continue to work in her previous department.

Gary Duvall, a safety and health supervisor at TEMBEC, testified that there are no light duty jobs available at the plant.

Ms. Handy testified that the pictures and video of Ms. Handy’s job were not a true, but rather an incomplete picture of her job. She stated that she often had to climb ladder-like stairs, reel and unreel large hoses, breakdown bolts, pull out forty-pound pins, and drag scrap paper. She also stated she had to use her body weight to push the rolls into the cradles. Further, she testified that she worked 12-hour shifts. The videotape was not complete. When asked by the court, Ms. Wall admitted that she was unaware of some of these activities, including the reeling and unreeling of the large hoses and the hauling of scrap paper.

|sThe WCJ concluded that Ms. Handy was not given a legitimate job offer, determining that Dr. Robichaux signed off on a specific job for Ms. Handy and said job was not available for her at the time she was told to go back to work. Ms. Wall thought that the modification had been made. It was not. Additionally, the WCJ found that there were duties of Ms. Handy’s job that Ms. Wall knew nothing about. The WCJ determined that Ms. Handy’s prior job was physically demanding and in no way could it be classified as a light duty job, even if the use of the winch was removed from the job description.

It is undisputed that following the May 12, 2000 accident, Ms. Handy met her initial burden that her injuries resulted in her inability to earn 90% or more of her average pre-injury wages. The burden then shifted to TEMBEC to prove job availability. Based on the evidence presented, we conclude that the WCJ was not manifestly erroneous or clearly wrong in finding that TEMBEC failed to present sufficient competent evidence to carry its burden. The only position offered to Ms. Handy was her prior job as a stack helper, which by everyone’s account was not modified at the time her benefits were terminated. Accordingly, there was no actual position available for that particular job at the time that Ms. Handy received notice of the job’s existence.

Furthermore, even if the offered position had been available, the testimony is clear that no light duty jobs were available at TEMBEC’s plant. Dr. Robiehaux originally testified that Ms. Handy was only capable of a light physical demand level job. He later modified his opinion at the rehabilitative conference to state that Ms. Handy was able to return to work at a medium level job function. However, the WCJ found that the information provided by Ms. Wall to Dr. Robiehaux, upon which his modified opinion was based, was not totally accurate. We cannot say the WCJ was clearly wrong and find no manifest error.

ASSIGNMENT OF ERROR NUMBER 4 ATTORNEY’S FEES

The WCJ determined that TEM-BEC was arbitrary and capricious in terminating benefits to Ms. Handy and awarded her attorney’s fees in the | samount of $7,000. The WCJ’s determination of whether an employer or insurer should be cast with attorney’s fees in a workers’ compensation action is essentially a question of fact subject to the manifest error or clearly wrong standard of review. Frith v. Riverwood, Inc., 04-1086, p. 12 (La.1/19/05), 892 So.2d 7, 15.

In this case, the WCJ determined that TEMBEC terminated benefits the day before Ms. Handy was told to report back to work and that the benefits were stopped because TEMBEC thought the modification to the winch had been made. Because the modification had not been made, the WCJ believed that TEMBEC was arbitrary and capricious in failing to reinstate benefits. We cannot say that the WCJ was clearly wrong in this determination and in awarding attorney’s fees in the amount of $7,000 to Ms. Handy.

CONCLUSION

After a thorough and complete review of the evidence presented in the record, we cannot say that the WCJ’s findings were manifestly erroneous or clearly wrong. Accordingly, we decline to disturb her ruling. The judgment of the workers’ compensation judge is affirmed. Costs of this appeal are assessed to the defendant, TEMBEC.

AFFIRMED.

      . Ms. Handy's clavicle fracture never healed completely, resulting in a permanent clavicle nonunion.

      . Ms. Handy was not represented by counsel at the time.

      . At all pertinent times to this case, LSA-R.S. 23:1201.2 provided for attorney fees as follows:
      Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of all reasonable attorney fees for the prosecution and collection of such claims. The provisions of R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions of R.S. 22:658(C) shall be applicable to claims arising under this Chapter.
      Although the statute was subsequently repealed by Acts 2003, No. 1204, § 2, LSA-R.S. 23:1201.2 is now incorporated in LSA-R.S. 23:1201.


author: GUIDRY, J.

text:
    Thomas Wayne YOUNG and Randy Joseph Sanchez v. CITY OF PLAQUEMINE, Comeaux Brothers Contractors, Inc., and Gary J. Hebert, Jr.
    No. 2004 CA 2305.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Jack Patrick Harris, Baton Rouge, Patrick W. Pendley, Plaquemine, Counsel for Plaintiffs/Appellees Thomas Wayne Young and Randy Joseph Sanchez.
    Bradley C. Myers, John F. Jakuback, Lana D. Crump, Baton Rouge, Counsel for DefendanVAppellant City of Plaquemine.
    Michael A. Patterson, Baton Rouge, Counsel for DefendanVAppellant Gary J. Hebert, Jr.
    Donald R. Smith., Baton Rouge, Counsel for Defendant Comeaux Brothers Contractors, Inc.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   GUIDRY, J.

| ?The matter before us is a partial summary judgment designated as a final, ap-pealable judgment by the trial court pursuant to La. C.C.P. art. 1915(B). Based on our review of the trial court’s designation of the judgment as final for purposes of appeal, we find that the trial court abused its discretion in designating the partial summary judgment a final judgment, and accordingly, dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

While working for a painting subcontractor on a project in 1995, Thomas Wayne Young and Randy Joseph Sanchez learned that the interior surfaces of the building in which they were working contained lead-based paint. Claiming injuries as a result of being exposed to the lead-based paint, Young and Sanchez (plaintiffs) filed suit against the City of Plaquemine, as the owner of the building, Comeaux Brothers Contractors, Inc., as the general contractor responsible for renovating the building, and Gary J. Hebert, Jr., as the architect in charge of the project (defendants). The defendants separately answered the plaintiffs’ suit generally denying liability for their alleged injuries. Each defendant later filed motions for summary judgment, basically asserting that they were not liable for the alleged injuries sustained by the plaintiffs. The trial court granted the motions for summary judgment and the plaintiffs appealed the judgments granting the motions.

On appeal, this court affirmed in part a portion of the summary judgment granted in favor of Comeaux Brothers Contractors, Inc., but reversed the remaining portion of the summary judgment granted in favor of Hebert. Young v. City of Plaquemine, 01-0063 (La.App. 1st Cir.5/10/02), 818 So.2d 892. This court also reversed the separate summary judgment granted in favor of the City of Plaquemine, and the entire case was remanded to the trial court for further proceedings. Young v. City of Plaquemine, 02-0280 (La.App. 1st Cir.5/10/02), 818 So.2d 898, writ denied, 02-1601 (La.9/30/02), 825 So.2d 1196.

| oOn remand, the City of Plaquemine and Hebert filed peremptory exceptions raising the objection of res judicata (issue preclusion) pursuant to La. R.S. 13:4231, based on the denial of the plaintiffs’ separate workers’ compensation claims by the Office of Workers’ Compensation. In the same pleadings, the City of Plaquemine and Hebert alternatively moved for summary judgment, asserting that the plaintiffs would be unable to present medical proof to substantiate their claims that they sustained injuries as a result of being exposed to lead-based paint while working on the renovation project in 1995. In response, the plaintiffs filed a cross motion for summary judgment, asserting that based on legal presumptions and evidence they submitted in support of their motion, the plaintiffs unquestionably proved that they were disabled as a result of their exposure to the lead-based paint during the renovation project. Following a hearing on the exceptions and the cross motions for summary judgment, the trial court rendered judgment overruling the exceptions and denying the motions for summary judgment filed by the City of Plaquemine and Hebert. In the same judgment, the trial court granted summary judgment in favor of the plaintiffs on the issue of medical causation only. The trial court designated the judgment as final pursuant to La. C.C.P. art. 1915(B) on the basis that the judgment “determines a key issue in the plaintiffs’ case, and there is no just reason to delay any appeal of this issue.”

The City of Plaquemine and Hebert appeal; seeking reversal of (1) the partial summary judgment granted in favor of the plaintiffs, (2) the denial of their motions for summary judgment and (3) the overruling of their exceptions raising the objection of res judicata.

APPELLATE JURISDICTION

The trial court designated the partial summary judgment appealed herein as a final judgment pursuant to La. C.C.P. art. 1915(B), expressly finding that there was no just reason to delay appellate review because the judgment determined key | ¿issues in the case. Preliminary to our review of this matter, it is essential that we first ascertain whether this court has jurisdiction to review the judgment appealed, since the trial court’s designation is not determinative of this court’s jurisdiction. Van ex rel. White v. Davis, 00-0206, p. 2 (La.App. 1st Cir.2/16/01), 808 So.2d 478, 480. Because the trial court gave reasons for its determination that no just reason for delay existed, we are only required to consider whether the trial court abused its discretion in designating the judgment as final. R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 13 (La.3/2/05), 894 So.2d 1113, 1122.

The City of Plaquemine and Hebert assert that the trial court’s designation of the partial summary judgment as a final judgment is proper because they seek reversal of the trial court’s rulings denying their motion for summary judgment and overruling their exceptions urging the objection of res judicata. They also seek reversal of the ruling granting summary judgment in favor of the plaintiffs. Although La. C.C.P. art. 1915(B) allows a trial court to designate a partial summary judgment as a final judgment, it does not provide that a judgment denying a motion for summary judgment can be so designated. Moreover, La. C.C.P. art. 968 expressly provides that a judgment denying a motion for summary judgment is not appealable. Likewise, La. C.C.P. art.1915 does not authorize a | ¿trial court to designate a judgment denying an exception as final. See In re Freed, 05-28, p. 3 (La.App. 5th Cir.4/26/05), 902 So.2d 472, 473.

Article 2083 of the Code of Civil Procedure provides that an appeal may be taken from a final judgment or from an interlocutory judgment, which may cause irreparable injury. The rulings denying the motions for summary judgment and the overruling the exceptions filed by the City of Plaquemine and Hebert are interlocutory rulings, which, absent a designation of finality, must cause irreparable injury in order to be subject to immediate appeal. Irreparable injury exists in the context of La. C.C.P. art.2083 only where the error sought to be corrected on an appeal from the interlocutory judgment cannot, as a practical matter, be corrected on an appeal following a determination of the merits. Collins v. Prudential Insurance Company of America, 99-1423, p. 6 (La.1/19/00), 752 So.2d 825, 829. Generally, requiring a party to go to trial does not constitute irreparable injury turning an otherwise interlocutory order into an ap-pealable one. Collins, 99-1423 at 7, 752 So.2d at 830. Nor is proof that the interlocutory judgment will delay final disposition of the litigation or cause the parties to incur added expense sufficient to show irreparable injury for purposes of appealability. Anderson v. Anderson, 513 So.2d 399, 403 (La.App. 4th Cir.1987). Thus, other than the assertion that the litigation would be terminated if we were to find that the trial court erred in denying their motions for summary judgment and/or in overruling their exceptions raising res ju-dicata, the City of Plaquemine and Hebert do not allege that they will suffer irreparable injury if the interlocutory rulings are not subject to immediate appellate review.

However, when an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory rulings prejudicial to him, in addition to review of the final judgment appealed. In re T.A.S., 04-1612, p. 4 (La.App. 1st Cir.10/29/04), 897 So.2d 136, 139. Hence, our | ^determination of whether the designation of the judgment appealed is proper hinges not on our review of the interlocutory rulings; rather, our review of the interlocutory rulings will hinge on our assessment of whether the trial court properly designated the partial summary judgment granted in favor the plaintiffs as a final judgment. For the reasons that follow, we conclude that the trial court abused its discretion in designating the partial summary judgment as a final judgment under La. C.C.P. art. 1915(B).

A final judgment determines the merits of a controversy, in whole or in part. La. C.C.P. art. 1841. As pointed out by the plaintiffs in the proceedings below and in their arguments on appeal, the partial summary judgment rendered by the trial court addressed only the issue of medical causation, whereas in seeking summary judgment, the plaintiffs sought a ruling on the ultimate issue of liability. Causation is only one element of the duty-risk analysis by which liability is determined for a claim of negligence. See Cusimano v. Wal-Mart Stores, Inc., 04-0248, pp. 3-4 (La.App. 1st Cir.2/11/05), 906 So.2d 484, 486-487. The fact that the trial court concluded the plaintiffs sufficiently proved there was no genuine issue regarding whether their injuries were caused by lead poisoning does not automatically translate to the City of Plaquemine and Hebert being found liable for the injuries claimed by the plaintiffs. Rather, it must further be shown that all of the elements of the duty-risk analysis have been met in order establish the liability of the City of Plaquemine and Hebert. See Cusimano, 04-0248 at 4, 906 So.2d at 487.

As previously noted by this court, “[allowing an immediate appeal from a judgment finding a plaintiff has met some, but not all, of the elements of a negligence liability claim only serves to encourage piecemeal adjudication and appeals, causing delay and judicial inefficiency.” Doyle v. Mitsubishi Motor Sales of America, Inc., 99-0459, p. 11 (La.App. 1st Cir.3/31/00), 764 So.2d 1041, 1047, writ denied, 00-1265 (La.6/16/00), 765 So.2d 338. Hence, we find "that the trial |7court improperly designated the partial summary judgment rendered herein as a final judgment pursuant to La. C.C.P. art. 1915(B), and, accordingly, dismiss the appeal for lack of .appellate jurisdiction. All costs in this matter are to be equally borne by the City of Plaquemine and Hebert.

APPEAL DISMISSED.

      . Louisiana Code of Civil Procedure article 1915(B) provides:
      (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the. claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
      (2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.


author: JgPETTIGREW, J.

text:
    Kenneth JACKSON, et al. v. BASF CORPORATION, et al.
    No. 2004 CW 2777R.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.
    Writ Denied March 24, 2006.

      Walter C. Dumas, Patti Durio Hatch, Baton Rouge, Richard E. Chaffin, Denham Springs, for Plaintiffs-Respondents Kenneth Jackson, et al.
    Bradley C. Myers, Glenn M. Farnet, William R. D’Armond, Gina D. Banks, Ma-thile W. Abramson, Baton Rouge, for Defendants-Relators BASF Corporation and Phil C. Greeson.
    Before: PETTIGREW, McDONALD, and HUGHES, JJ.
   JgPETTIGREW, J.

This matter comes before this court on remand from a supervisory and/or remedial writ from the Louisiana Supreme Court. At issue is the trial court’s ruling of December 14, 2004, which set aside its earlier Order of October 6, 2004, that dismissed the plaintiffs’ suit against defendants BASF Corporation and Phil C. Greeson. As a result of the trial court’s December 14, 2004 ruling, the plaintiffs’ action against said defendants was reinstated. Defendants thereafter applied for writs from this court, and ultimately, the Louisiana Supreme Court.

For the reasons set forth below, we reverse the trial court’s ruling of December 14, 2004, and reinstate its earlier Order of October 6, 2004.

FACTS AND PROCEDURAL HISTORY

The relevant dates and procedural history of this case are as follows:

December SO, 1999 — Kenneth Jackson, et al (plaintiffs herein) file a class action petition against BASF Corporation, Borden Chemical, Inc., Borden Chemicals and Plastics Limited Partnership, Borden Chemicals and Plastics Operating Limited Partnership, Phil C. Greeson (general manager of BASF Corp.), and Wayne P. Leonard (site manager for Borden, at Geismar, La.)
December 30, 1999 — Plaintiffs file a First Request for Production of Documents and Things against the defendants.
December SO, 1999 — Plaintiffs file an initial set of interrogatories directed towards the defendants.
January 5, 2000 — Plaintiffs file their First Supplemental and Amending Petition.
March 8, 2000 — Plaintiffs file a motion and accompanying memorandum to certify a class action and to set a status conference.
March 9, 2000 — The trial court sets a May 1, 2000 date to set forth a protocol for establishing discovery deadlines.
March 10, 2000 — Defendant, Phil C. Greeson, files various exceptions.
March 10, 2000 — Defendants, Borden Chemical, along with other Borden affiliate companies, and Wayne P. Leonard, file several peremptory exceptions.
March 10, 2000 — Defendants, Borden Chemical, along with other Borden affiliate companies, and Wayne P. Leonard, file a memorandum in support of their peremptory exceptions.
March 10, 2000 — Defendant, BASF Corporation, files an answer to the plaintiffs’ petition and requests a trial by jury.
March 27, 2000 — Defendant, BASF Corporation, files several peremptory exceptions.
March 27, 2000 — Defendant, BASF Corporation, files Memorandum in support of its peremptory exceptions.
March 28, 2000 — The trial court signs an order setting the exceptions for hearing on May 1, 2000.
April 2k, 2000 — Plaintiffs file a Motion for Continuance of the May 1, 2000 hearing.
May k, 2000 — Defendants, Borden Chemical, along with other Borden affiliate companies, and Wayne P. Leonard, file an additional brief memorandum in support of their previously-filed peremptory exception objecting to the improper use of class action procedure.
\zMay k, 2000 — Defendants, Borden Chemical, along with other Borden affiliate companies, and Wayne P. Leonard, file a Motion and Order to Schedule Hearing on their exception as to the improper use of class action procedure.
May 11, 2000 — The trial court signs an order setting defendants’ exceptions for hearing on July 5, 2000.
June 26, 2000 — Plaintiffs file a memorandum in opposition to defendants’ exceptions.
September 20, 2000 — The trial court signs an order denying the exceptions and alternative motions filed by the defendants.
December 28, 2000 — The First Circuit Court of Appeal denies the writs taken by defendants in response to the trial court’s September 20, 2000 order.
January 17, 2001 — Defendants, Borden Chemical, along with other Borden affiliate companies, and Wayne P. Leonard, file, with plaintiffs’ consent, a motion to continue without date the hearing on class action certification scheduled to commence on August 6, 2001.
January 19, 2001 — The trial court signs an order continuing the August 6, 2001, hearing without date.
March 9, 2001 — The Louisiana Supreme Court similarly denies the writs taken by defendants in response to the trial court’s September 20, 2000 order.
On/or about April S, 2001 — Defendants, Borden Chemical, along with other Borden affiliate companies, file a Voluntary Petition for Relief under Chapter XI in U.S. Bankruptcy Court for the District of Delaware. Pursuant to said filing, an automatic stay issued on any actions against any debtor in bankruptcy pursuant to XI USC § 362. Subsequent thereto both plaintiffs and BASF Corporation participated in some of the proceedings in bankruptcy court in Delaware.
October k, 200k. — Defendants, BASF Corporation and Phil C. Greeson, file an ex parte motion to dismiss plaintiffs’ suit against them on grounds of abandonment pursuant to La.Code Civ. P. art. 561, et seq., as amended.
October 6, 200k — The trial court signs an order dismissing all claims and causes of actions set forth by plaintiffs against defendants, BASF Corporation and Phil C. Greeson.
November k, 200k — Plaintiffs file a motion to set aside the trial court’s Judgment of Dismissal rendered October 6, 2004.
November SO, 200k — Defendants, BASF Corporation and Phil Greeson file a memorandum opposing plaintiffs’ motion to set aside the dismissal.
December Ik, 200k — The trial court issues a ruling vacating its October 6, 2004 order that dismissed plaintiffs’ suit on the grounds of abandonment, and reinstates plaintiffs’ cause of action against defendants, BASF Corporation and Phil C. Greeson.
April k, 2005 — The First Circuit Court of Appeal denies the writ taken by defendants, BASF Corporation and Phil C. Greeson, with respect to the trial court’s ruling of December 14, 2004. Judge McDonald dissents from the majority.
June 17, 2005 — The Louisiana Supreme Court grants the supervisory and/or remedial writ taken by defendants, BASF Corporation and Phil C. Gree-son, and remands the matter to the First Circuit Court of Appeal, for briefing, argument, and opinion.

APPLICATION OF LEGAL PRINCIPLES

When a decision by a trial court involves a legal question, this court owes no deference to the legal conclusions of the trial court. Rather, appellate review regarding questions of law is simply review of whether the trial court was legally correct or legally incorrect. Phipps v. Amtrak, 94-1876, pp. 5-6 (La.App. 1 Cir. 11/20/95), 666 So.2d 341, 344, writ denied, 95-3012 (La.02/28/96), 668 So.2d 368.

1 Louisiana Code of Civil Procedure article 561 provides, in pertinent part, as follows:

A(l) An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:...
(2) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been taken for a period of three years in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment....
(3) A motion to set aside a dismissal may be made only within thirty days of the date of the sheriffs service of the order of dismissal.

La.Code Civ. P. art. 561.

This case involves no questions of fact, and all parties agree that plaintiffs took no action in this proceeding from March 9, 2001, when the Louisiana Supreme Court denied BASF and Phil C. Greeson’s Application for Writs of the trial court’s Order of September 20, 2000, until October 4, 2004, when BASF and Phil C. Greeson filed an ex parte motion to dismiss the suit on the grounds of abandonment. This is a period longer than three years pursuant to La.Code Civ. P. art. 561.

Plaintiffs contend that they were excused from taking action in this proceeding due to the automatic stay issued pursuant to XI USC § 362 in the bankruptcy proceeding of the co-defendants or joint tort-feasors that was' filed in Delaware on April 3, 2001. BASF and Phil C. Greeson were not the debtors in bankruptcy. BASF and Greeson contend that the automatic stay issued in the separate bankruptcy proceeding did not relieve plaintiffs of their obligation to take some action in this proceeding to avoid abandonment pursuant to La. Code Civ. P. art. 561. BASF and Greeson are correct.

To prevent abandonment, La.Code Civ. P. art. 561 imposes three requirements on plaintiffs. Succession of Wright, 37,670 p. 3, (La.App. 2 Cir. 09/24/03) 855 So.2d 926, 928-29, writ denied, 03-2969 (La.01/16/04), 864 So.2d 632, citing Clark v. State Farm Mutual Automobile Insurance Company, 00-3010 pp. 5-6, (La.05/15/01), 785 So.2d 779, 784. First, plaintiffs must take some “step” towards prosecution of their lawsuit. Id. A “step” is a formal action before the court that is intended to hasten the suit towards judgment, or the taking of a deposition with or without formal notice, or |Brequesting discovery materials. See Wright, citing La.Code Civ. P. art. 1446(D) and La.Code Civ. P. art. 1474(C)(4). Second, the “step” must be taken in court where the suit is pending, and except for formal discovery, must appear in the suit record. Third, the “step” must be taken within the legislatively prescribed time period. Id.

As previously mentioned, the plaintiffs herein concede, and the record reflects, that plaintiffs did not take any step towards the prosecution of their lawsuit for over three years prior to the ex parte motion to dismiss filed by the defendants, BASF and Greeson.

The only two categories of causes outside the record satisfy the jurisprudential exceptions to the abandonment rule: (1) a plaintiff-oriented exception, based upon contra non valentem, that applies when failure to prosecute is caused by circumstances beyond the plaintiffs control; and (2) a defense-oriented exception based upon acknowledgement that applies when the defendant waives his right to assert abandonment by taking actions inconsistent with intent to treat the case as abandoned. Clark, 00-3010 at p. 7, 785 So.2d at 784-85.

Plaintiffs contend that they fall within the ambit of these exceptions due to the automatic stay issued in the bankruptcy case of other co-defendants in Delaware, pursuant to XI USC § 362. Pursuant to La.Code Civ. P. art. 561, it is the plaintiffs burden to prove the applicability of one of these exceptions.

Federal law provides that the automatic stay authorized by XI USC § 362 applies only to the bankrupt party and does not apply to non-bankrupt co-defendants. Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 544 (5th Cir.1983). It is well settled in this circuit that the bankruptcy of a co-defendant does not relieve a plaintiff from taking steps in the prosecution of his case against the remaining defendants within the time period prescribed by La. Code Civ. P. art. 561. See Sassau v. Louisiana Workover Service, Inc., 607 So.2d 809, 812 (La.App. 1 Cir.1992), writ denied, 609 So.2d 259. Plaintiffs did not introduce any evidence to suggest that the automatic stay issued by the Delaware bankruptcy court extended protection to the non-bankrupt co-defendants in the instant case, BASF and Phil C. Greeson. Plaintiffs further failed to introduce any evidence that defendants, BASF and/or Phil Greeson, waived their rights to assert abandonment or | fitook actions inconsistent with an intent to treat the case as abandoned. Therefore, we conclude that plaintiffs failed to carry their burden and prove an exception to the abandonment rule pursuant to La. Code Civ. P. art. 561, and set forth in Clark, 00-3010 at p. 7, 785 So.2d at 784-85. We further conclude that the trial court committed legal error by issuing its Order of December 14, 2004, that set aside its Order of October 6, 2004, and reinstated plaintiffs’ cause of action against the defendants, BASF and Phil C. Greeson.

CONCLUSION AND DECREE

For the foregoing reasons, we grant re-lators’ writ application. We reverse the trial court’s Order of December 14, 2004, and reinstate the trial court’s Order of October 6, 2004, dismissing without prejudice the plaintiffs’ causes of action against BASF Corporation and Phil C. Greeson. All costs of these proceedings shall be assessed against the plaintiffs, Kenneth Jackson, et al.

WRIT GRANTED.


author: JgDOWNING, J.

text:
    STATE of Louisiana v. Derrell L. BATES.
    No. 2005 KA 0315.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Doug Moreau, District Attorney, Stephen N. Pugh, Assistant District Attorney, Baton Rouge, Counsel for Appellee State of Louisiana.
    Prentice L. White, Baton Rouge, Counsel for Appellant Derrell L. Bates.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   JgDOWNING, J.

Defendant, Derrell L. Bates, was charged by bill of information with two counts of simple kidnapping, violations of La. R.S. 14:45. The victim of count I was identified as “B. Haynes.” The victim of count II was identified as “R. [H.]” Defendant pled not guilty on both counts. At trial, the State and the defense stipulated that only count II would be submitted to the jury for a verdict, and the State made a notation on the bill of information that count I was dismissed. Following a jury trial on count II, Defendant was found guilty as charged. (Minutes showing verdict returned on “Count I” conflict with the verdict sheet contained in exhibit envelope and record stipulations, but the return of the verdict was not transcribed.) On count II, Defendant was sentenced to three years at hard labor. He now appeals, designating one counseled assignment of error and five arguments in a pro se brief. We reverse the conviction and sentence on count II and order Defendant discharged.

FACTS

Defendant and Barbara Haynes were involved in a relationship. On August 26, 2002, a child (the victim) was born of that relationship.

Robert London, Ms. Haynes’s stepfather, gave the following account of the incident forming the basis for the charges.

On Monday, November 11, 2002, London was asleep and was awoken by the defendant, Ms. Haynes, and the victim falling onto his bed. London told Defendant to release Ms. Haynes and the victim, but Defendant backed out to his truck with Ms. Haynes and the victim and drove away. Ms. Haynes pleaded with Defendant to release her, but Defendant did not let go of either her or the victim. London reported the incident to the police.

| ¡¡Ms. Haynes also testified at trial. She identified Defendant as the victim’s father. The child was her youngest child. She indicated she met Defendant in 2000 and they began living together at his house approximately a year later. Approximately one week before the incident, at Defendant’s request, she and her five children moved out of Defendant’s house. She gave the following account of the incident.

On November 11, 2002, Ms. Haynes and her children, including the victim, were living in her mother’s and stepfather’s home. While Ms. Haynes was holding the victim, she heard the screen door open and saw Defendant. Still holding the victim, Ms. Haynes ran to wake up her stepfather (London). London ordered Defendant to get out of the house. Defendant grabbed Ms. Haynes and tried to pull the victim away from her. He dragged Ms. Haynes, still holding the victim; out of the house by the neck as she screamed for help. He put Ms. Haynes and the victim into his truck and drove them to his home. Defendant told her that she would never see the victim or Ms. Haynes’s other children “no more.” He threatened to kill Ms. Haynes if any of her family members stepped onto his porch. Defendant’s home had one door with a double-keyed dead bolt. Defendant locked himself and both Ms. Haynes and the victim inside the home. He kicked Ms. Haynes in the back, and she fell to the floor. He told her to shut up and cursed her. He told her to take her clothes off, but she refused. He began pulling her clothes off, but was interrupted by the police at the door. When Defendant opened the door for the police, Ms. Haynes escaped from Defendant’s home. She indicated she had not wanted to go to Defendant’s home and had not wanted the victim to go there.

On cross-examination, Ms. Haynes admitted that by order of the family court, Defendant was entitled to unsupervised visitation with the | ¿victim. She conceded she had attempted to have Defendant’s visitation rights with the victim suspended, indicating she did not want Defendant to have unsupervised visitation with the victim.

On redirect examination, Ms. Haynes indicated the actions to restrict Defendant’s unsupervised visitation rights concerning the victim followed her discovery that Defendant was a convicted sex offender.

Christy Tate, Ms. Haynes’s daughter, also testified at trial. Christy stated she was in the fourth grade. She testified that the Defendant took her mother and “the baby” away in a purple and blue truck. He had one arm on her mother’s neck and held the baby with his other arm. Her mother screamed as she was dragged away.

Defendant also testified at trial. He denied kidnapping either Ms. Haynes or the victim. He testified that Ms. Haynes, carrying his child (the victim) in her arms, knocked on his door on the day of the incident. He claimed he let Ms. Haynes and the victim into his house because Ms. Haynes told him she had come to get the remainder of her belongings. He testified that he fed his dog while Ms. Haynes collected her belongings. He claimed, thereafter, the police arrived, and he greeted them. He testified he was totally surprised by Ms. Haynes’s subsequent kidnapping allegation. He claimed his truck was inoperable on the day of the incident.

Defendant also explained he had been granted unsupervised visitation with the victim by the family court. He testified his visitation days were Tuesday, Thursday, Saturday, and Sunday, except the last weekend of the month.

SUFFICIENCY OF THE EVIDENCE

In counseled assignment of error number 1, Defendant contends the verdict was against the weight of the evidence because the record clearly Ushowed that Defendant and Barbara Haynes were engaged in a tumultuous relationship in which Defendant evicted Haynes from his house. He further contends that Haynes was pursuing the kidnapping charge against Defendant to embarrass and humiliate him for evicting her and her children from his home.

In his pro se brief, Defendant contends: (1)the bill of information was so defective as to violate his substantial rights under the federal and state constitutions to be informed of the nature and cause of the charges against him under La. Const, art. 1, § 13, and as to deprive the trial court of jurisdiction, citing State v. James, 517 So.2d 291 (La.App. 1 Cir.1987); (2) he was denied his right to preliminary examination; (3) there was an invalid amendment of the information; (4) in the absence of a suit for divorce or separation, or order awarding custody to the mother, he could not be charged with the simple kidnapping of his son, citing State v. Elliott, 171 La.306, 131 So. 28 (1930); and (5) Ms. Haynes, her stepfather, and her daughter committed perjury by making false statements concerning him and the incident. For the following reasons, we find the evidence insufficient to support the conviction.

In reviewing claims challenging the sufficiency of the evidence, this Court must consider “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). See also La.Code Crim. P. art. 821 B; State v. Mussall, 523 So.2d 1305, 1308-09 (La.1988).

|fiIn its briefs to this Court, the State argues the evidence was sufficient under La. R.S. 14:45 A(l) because the provision does not provide for any exeeption in the case of the kidnapper’s biological child.

Louisiana Revised Statutes 14:45, in pertinent part, provides:

A. Simple kidnapping is:

(l)The intentional and forcible seizing and carrying of any person from one place to another without his consent.

An essential element of the above provision is that the forcible seizing and carrying of the victim be without his consent. And every element of a crime must be proven beyond reasonable doubt before a conviction can be upheld. See State v. Bedford, 01-2298, p. 3 (La.1/28/03), 838 So.2d 758, 760. Because the victim was an infant, however, he could neither grant nor deny consent to his being seized and carried. That consent had to come from or be denied by a legal custodian. See Chatwin v. United States, 326 U.S. 455, 460, 66 S.Ct. 233, 235, 90 L.Ed. 198 (1946). See also 1 Am.Jur.2d Abduction and Kidnapping § 26 (1994) and 51 C.J.S. Kidnapping § 19 (2003). The State here has failed to prove that Defendant was not the joint or sole legal custodian of the victim who possessed the right to consent for the victim.

It is undisputed in this case that the victim was an infant, that Ms. Haynes and Defendant were not married, and that Defendant was the biological father of the victim. It is further undisputed that Defendant had a relationship with his child (the victim) that was recognized and protected by court order, that the victim had lived with defendant for nearly a year, and 17that the court order allows defendant frequent, unsupervised contact with his child each week.

“The United States Supreme Court has declared it ‘plain beyond the need for multiple citation’ that a biological parent’s right to ‘the companionship, care, custody, and management’ of his children is a liberty interest far more important than any property right.” (Citation omitted.) In re Adoption of B.G.S., 556 So.2d 545, 549 (La.1990). Parents have a fundamental right “to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000). This right “is perhaps the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court.” Troxel, 530 U.S. at 65, 120 S.Ct. at 2060. Further, where an unwed father grasps the opportunity to develop a relationship with his offspring, “and accepts some measure of responsibility for the child’s future, he may enjoy the blessings of the parent-child relationship^]” B.G.S., 556 So.2d at 550. Here, it is undisputed that defendant has accepted his role as father, has demonstrated his commitment to the child, and has a parent-child relationship recognized by judgment, although there is no copy of the judgment in the record for us to review to determine the extent of that recognition. Accordingly, Defendant possesses some degree of parental right to the companionship, care, custody, and management of his child.

For these reasons, we find no merit in the State’s argument that Defendant’s role as a parent is irrelevant to whether he kidnapped his own child. Particularly, the State asserts that La. R.S. 14:45 A(l) does not provide an exception for kidnapping a biological child. This argument, however, fails to recognize that the parent with parental rights charged with | sthe crime may and often will have the authority to provide the consent that would defeat a kidnapping charge under La. R.S. 14:45 A(l).

It is the State’s burden to prove the element of lack of consent to prove kidnapping under La. R.S. 14:45 A(l). See Bedford, supra. Here, the State has failed to prove that defendant, the victim’s father who enjoys established parental rights, lacked the authority to consent to his taking the child. It presented no evidence tending to show that Defendant’s parental rights were limited in any way.

Therefore, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could not have found all the essential elements of La. R.S. 14:45 A(l) beyond a reasonable doubt. Accordingly, Defendant’s argument that the evidence was insufficient has merit. We therefore pretermit discussion of the remaining assignments of error.

DECREE

For the reasons assigned, we reverse the conviction and sentence on Count II and order defendant discharged.

CONVICTION AND SENTENCE ON COUNT II REVERSED; DEFENDANT DISCHARGED.

      . Barbara Haynes testified at trial and indicated her infant son’s initials were R.D.L.H. See La. R.S. 46:1844 W.

      . Legal custody is generally defined as the right or authority of a parent or parents to make decisions concerning a child’s upbringing. Evans v. Lungrin, 97-0541, 97-0577, p. 11 (La.2/6/98), 708 So.2d 731, 737. "Pursuant to this definition, both parents remain legal custodians of the child regardless of which parent had physical custody of the child at a given time[.]” Id.


author: JgMcCLENDON, J.

text:
    INTERDICTION OF Alma Breaux Domingue RODRIGUE.
    No. 2005 CA 0061.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 4, 2005.

      Christopher H. Riviere, Nicholas J. Ze-ringue, Thibodaux, Counsel for Plain-tiffAppellee Wendy Ganel, Undercuratrix.
    Camille Saltz, Houma, Counsel for Plaintif£Appellee Alma Rodrigue, Interdict.
    Michael J. Poirrier, Pierre Part, Counsel for Plaintiff/Appellant Rumsey J. Ro-drigue, Curator.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   JgMcCLENDON, J.

In this appeal, the husband of an interdict challenges the judgment of the trial court denying his motion to relocate his wife out of state. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On February 7, 2003, Wendy Ganel filed a petition to have her mother, Alma Breaux Domingue Rodrigue, interdicted because her mother suffers from Alzheimer’s disease and other forms of dementia. Initially Mrs. Ganel was appointed curator but became undercuratrix when Mrs. Ro-drigue’s husband, Rumsey, was appointed curator. Thereafter, Mr. Rodrigue, in his capacity as curator, filed a motion requesting that he be allowed to relocate Mrs. Rodrigue to an assisted-living facility in Corpus Christi, Texas. Following a hearing on November 20, 2003 and February 11, 2004, the trial court denied the motion. Judgment was signed on February 18, 2004. Mr. Rodrigue then filed a writ application to this Court. The Court determined that the trial court ruling on the motion to relocate was an appealable judgment and remanded the matter to the trial court with instructions to treat the notice of intent to seek supervisory writs as a motion for appeal.

Mr. Rodrigue has appealed and asserts that the trial court applied erroneous principles of law in denying court approval to Mr. Rodrigue to relocate Mrs. Rodrigue to Texas and that the trial court was manifestly erroneous in denying the motion to relocate.

DISCUSSION

Louisiana Code of Civil Procedure Auricle 4566 F provides that “[a] curator shall not establish or move the place of dwelling of the interdict outside this state without prior court authorization.” Additionally, Article 392 of the Louisiana Civil Code provides, in pertinent part, that “[i]n discharging his duties, a curator shall | Sexercise reasonable care, diligence, and prudence and shall act in the best interest of the interdict.” Clearly, a curator at all times must act exclusively in the best interest of the interdict. Hebert v. Wise, 92-2287, p. 9 (La.App. 1 Cir. 12/15/95), 666 So.2d 409, 414.

Mr. Rodrigue initially contends that the trial court applied an incorrect legal standard when it determined that Mrs. Ro-drigue could not relocate. He asserts that the trial court applied a “community property interest — inheritance rights” standard to its decision on the motion to relocate. A review of the record, however, indicates that the trial court made its decision based on the best interests of Mrs. Rodrigue. The court referred to the “best interest of the interdict” on at least four different occasions in its oral reasons for judgment stating for example: “I have to think what’s best for the interdict,” “I have to put her first,” and “[T]he best interest is that she not be moved at this point [in] time.”

Thus, we do not find the standard used by the trial court to be legally erroneous. However, after reviewing the record, we find that the trial court’s factual determination that it was not in the best interest of Mrs. Rodrigue to allow her to remain with her husband and relocate to the assisted-living facility in Corpus Christi was clearly wrong and manifestly erroneous.

It is well settled that a court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Bonin v. Ferrellgas, Inc., 03-3024, p. 6 (La.7/2/04), 877 So.2d 89, 94. Under the manifest error standard, in order to re-verse a trial ■ court’s determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Bonin, 03-3024 at pp. 6-7, 877 So.2d at 94-95; Stobart v. State, Through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

However, the manifest error standard of review does not “mandate that the trial court’s factual determinations cannot ever, or hardly , ever, be upset.” Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099, p. 8 (La.7/5/94), 639 So.2d 216, 221. Recognizing that great deference should be accorded to the fact finder, the court of appeal has a constitutional duty to review facts. 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. Bonin, 03-3024 at p. 7, 877 So.2d at 95.

Alma and .Rumsey Rodrigue had been married for more than twenty-seven years at the time of the hearing in this matter. Mrs. Rodrigue has four daughters from a previous marriage, including Wendy Ganel. Mr. Rodrigue also has a daughter, Carol Didier, from an earlier marriage. Mr. Ro-drigue’s daughter lives near Corpus Chri'sti, Texas, while Mrs. ' Rodrigue’s daughters all live in Louisiana.

In July 2001, Mrs. Rodrigue was diagnosed with Alzheimer’s disease. In January 2003, the Rodrigues moved from their home in Labadieville to the Suites Sugar Mill Point, an assisted-living 'facility, in Houma; The testimony is undisputed that the facility is the best of its kind in -the area.

At the hearing in this matter, Mr. Ro-drigue testified that he wanted to move with his wife to Corpus Christi to Home-wood Residence, a facility specializing in the care of Alzheimer patients. He stated that Homewood Residence has amenities not offered at Sugar Mill Point, such as transportation for doctor appointments and for shopping. Additionally, his daughter lives about ten minutes from the facility, and he stated that he has no family in Louisiana to help him. Mrs. Didier also testified, that it was her opinion that Homewood Residence is a slightly better facility than Sugar Mill Point because Homewood Residence offers a special memory unit to which Mrs. Rodrigue can be transferred when her disease reaches a certain point. Additionally, Mrs. Didier testified that Homewood Residence offers transportation and secretarial services [ Bthat Sugar Mill Point does not. Home-wood Residence also costs $800 less per month than Sugar Mill Point.

It is undisputed that Mr. Rodrigue ably took care of the couple’s finances throughout their marriage and was able to acquire more than $800,000 in annuities, of which Mrs.. Rodrigue was an annuitant on approximately $450,000. Mr. Rodrigue testified that he purchased the annuities for his and. his wife’s future care; He wanted to be sure that if one spouse died, there would be sufficient assets for the proper care of the surviving spouse. Mr. Ro-drigue believed that Mrs. Rodrigue’s daughters turned against him when they discovered he and Mrs. Rodrigue had “a little money.”

Mr. Rodrigue also testified with regard to Mrs. Rodrigue’s relationship with her daughters that they did not visit their mother daily. However, he admitted that the daughters had visited more often before Mr. and Mrs. Rodrigue moved to Sugar Mill Point in Houma. According to Mr. Rodrigue, Mrs. Rodrigue’s daughters did not have a real close relationship with their mother. Mr. Rodrigue testified that he and his wife moved out of their Laba-dieville home because of a need for increased assistance for Mrs. Rodrigue. Prior to moving into the assisted-living facility at Sugar Mill Point, Mr. Rodrigue had a sitter coming into their home twice a day during the week, but not on weekends. When he asked Mrs. Rodrigue’s daughters to take turns and help him with the care of their mother one weekend a month, each daughter declined indicating that she was too busy.

Dr. Edward Haight, an expert in neurology, testified by deposition that he first saw Mrs. Rodrigue on May 20, 2003. Dr. Haight found Mrs. Rodrigue to be suffering from severe dementia with Par-kinsonism. He described it as a neúrode-generative disease resulting in progressive dementia that causes Parkinson-type symptoms. Additionally, there are problems with agitation and confusion. With regard to a possible move, Dr. Haight stated that it would “probably result in temporary increase in agitation, but I think it would easily equilibrate after several days.” He stated that Mrs. Ro-drigue’s dementia was |fiprofound and se-. vere. Therefore, he believed that a move would not be that hard for her to readjust to a new surrounding, as long as her needs are being cared for.

Dr. Haight agreed that the move might have an adverse affect on Mrs. Rodrigue if her daughters were an integral part of her support system and if they were a strong part of her day-to-day activities. If not, Dr. Haight did not think the move would be detrimental to the health of Mrs. Ro-drigue. Dr. Haight also agreed that if Mr. Rodrigue was happy and comfortable in his environment, Mrs. Rodrigue would benefit. He stated that “Mr. Rodrigue is probably the most familiar thing that she has.”

Mrs. Rodrigue’s daughters, however, oppose the move to Texas. Mrs. Ganel testified that, with her mother’s failing health and her stepfather’s advanced age, she and her sisters became concerned about the community assets and Mrs. Didier’s alleged influence over her father. The daughters were concerned that Mr. Ro-drigue would give large amounts of cash to his daughter, thereby negatively affecting the community’s financial ability to provide the necessary care for Mrs. Rodrigue. Additionally, Mrs. Rodrigue and Mrs. Didier had never gotten along and Mrs. Ganel testified that her mother despised Mrs. Didier.

It seems that the protection of Mrs. Rodrigue’s ássets, if the Rodrigues were allowed move to Texas, was also the trial court’s greatest concern. In fact, the trial court referred to protecting Mrs. Ro-drigue’s assets at least a dozen times in its oral reasons. It is undisputed, however, and the trial court found that Mr. Ro-drigue had always taken care of the finances for them and had done an excellent job accumulating over $800,000 in annuities for their future care. The evidence does not suggest in any way that Mr. Rodrigue would cease caring for Mrs. Ro-drigue or protecting her assets if they moved to Texas.

The trial court recognized that the Rod-rigues have lived in Louisiana all their lives and that Mrs. Rodrigue’s four daughters are here. The evidence is also clear, however, that Mrs. Rodrigue’s daughters were not a part of her day-|to-day7 life. They visited when their schedules allowed, but it is evident that the most familiar thing in Mrs. Rodrigue’s life is her husband.

Having considered all of the factors relied on by the trial court in its decision to keep Mrs. Rodrigue in Louisiana, we do not believe those considerations overcome the strong evidence in favor of keeping Mrs. Rodrigue with her husband. While we acknowledge the interests of Mrs. Ro-drigue’s four daughters to keep their mother in Louisiana, we find that the evidence of the interdict’s best interest is overwhelmingly in favor of allowing the move to Texas.

Thus, based upon our thorough review of the entire trial record, we do not believe a reasonable factual basis exists for the trial court’s finding that it was in the best interest of Mrs. Rodrigue not to relocate. We determine that the trial court was clearly wrong in its factual determination and find that the interests of Mrs. Ro-drigue would best be served by permitting the move to Homewood Residence in Corpus Christi, Texas.

CONCLUSION

For the above reasons, the judgment of the trial court denying Mr. Rodrigue’s Motion for Authority to Relocate Interdict out of State is reversed and Rumsey Rodrigue, as curator, is hereby authorized and permitted to relocate the interdict, Alma Breaux Domingue Rodrigue, to Homewood Residence in Corpus Christi, Texas. Costs of this appeal shall be borne by Wendy Ganel.

REVERSED AND RENDERED.

      . Mr. Rodrigue had also filed a motion seeking permission to change the beneficiary designations on various annuities purchased by the community. That motion was also denied by the trial court and Mr. Rodrigue sought writs. This Court denied the writ application finding no error on the showing made. The writ denial in part, with order regarding both motions, bears number 2004 CW 1068.

      . . Mrs. Ganel resides in Gonzales; Dale Calle-gan resides in Labadieville; Sandra Milazzo resides in Napoleonville; and Arlene Richard resides in Prairieville.

      . The facility has been identified as Home-wood Residence and Homewood Suites in the record. For consistency, we will refer to it as Homewood Residence.