text:
    528 BARONNE OWNERS ASSOCIATION, INC. and Jerry M. Graver v. John F. KELLY, III, Kelly Investment Group, L.L.C. and Joseph John Logreco, Jr.
    No. 2005-CA-0318.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 27, 2006.
    Jacob Kansas, Alan F. Kansas, Kansas & Kansas, LLC, Gretna, LA, for Plaintiffs/Appellees, 528 Baronne Owners Association, Inc. and Jerry M. Graver.
    W. Patrick Klotz, Klotz & Early, New Orleans, LA, for Defendants/Appellants, John F. Kelly, III, and Kelly Investment Group, L.L.C.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY, III, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

_JjThis case involves the appeal of an order pursuant to which John F. Kelly, III was required to pay attorney’s fees in connection with a suit brought to enjoin violations of the condominium declaration (the “Condo Declaration”) of 525 Baronne Street Condominiums (the “Condo”). Jerry M. Graver, the owner of a condominium unit in the Condo, and 528 Baronne Owners Association, Inc. (the “Owners Association”) brought suit against Kelly Investment Group, L.L.C. (the “Kelly Group”), Mr. Kelly, who was the manager and sole member of the Kelly Group, and Joseph John LoGreco, Jr. Mr. Graver and the Owners Association obtained an injunction against Mr. Kelly and the Kelly Group, and Mr. Kelly is now appealing the order requiring him to pay the plaintiffs’ attorney’s fees in connection with the injunction.

FACTS AND PROCEDURAL HISTORY

This case arose out of a dispute regarding Mr. Kelly’s use of a Condo unit | gowned by the Kelly Group. Mr. Graver, who owned a Condo unit across the hall from the Condo unit owned by the Kelly Group, and the Owners Association filed suit seeking to enjoin Mr. Kelly and the Kelly Group from violating provisions of the Condo Declaration.

Mr. Graver and the Owners Association alleged in their petition that Mr. Kelly and the Kelly Group had violated the provisions of the Condo Declaration by routinely renting the Kelly Group’s Condo unit on a daily or weekend basis. The Condo declaration prohibited the lease of any Condo unit for periods of less than ninety days.

The petition contained allegations that the renters of the Kelly Group Condo unit created a nuisance in violation of another provision of the Condo Declaration. The petition asserted that “[t]he various individuals who rent Unit 203 are coming to New Orleans for a weekend of partying, and are often loud, boisterous, and at all hours of the day and night, particularly in the late evening and early morning hours and the [sic] regularly disturb Mr. Graver and his use of his condominium.”

Mr. Graver and the Owners Association sought to enjoin the rentals of the Kelly Group’s Condo unit for less than ninety days and to enjoin any advertisement or solicitation of rentals of the Condo unit for less than ninety days. They also sought the payment of the reasonable attorney’s fees and costs, because the Condo Declaration provided that if the Owners Association prevailed in any proceeding arising out of an alleged default under the Condo Declaration, the Association was entitled to “recover the costs of the proceeding and such reasonable attorney’s fees as may be determined by the Court.”

After the petition was filed, a temporary restraining order was issued against Mr. Kelly and the Kelly Group enjoining them from renting the Condo unit owned Lby the Kelly Group for any time period of less than ninety days. After the temporary restraining order was obtained and a hearing on an application for a preliminary injunction was held, Mr. Graver and the Owners Association obtained a permanent injunction, to which Mr. Kelly and the Kelly Group consented. According to the terms of the permanent injunction, Mr. Kelly and the Kelly Group were enjoined from violating the Condo Declaration by renting the Condo unit without complying with the requirements of the Condo Declaration and the rules and regulations of the Owners Association. Mr. Kelly and the Kelly Group were also required to cease advertising the Condo unit on the Internet, and they were further enjoined from advertising the Condo unit for rent for any period of less than three months.

After the permanent injunction was rendered, Mr. Graver and the Owners Association filed a rule to tax Mr. Kelly and the Kelly Group with the costs and attorney’s fees incurred in connection with obtaining the injunction. The trial court determined that attorney’s fees of $4,760.25 were reasonable in this case, and the court awarded that amount. In the order requiring the payment of the attorney’s fees, the trial court noted that the closing notary on the sale of the Condo unit owned by the Kelly Group had tendered to the plaintiffs’ attorney funds from the proceeds of the sale in the amount of $1,380.00. The trial court then credited the amount tendered to the attorney against the award of the attorney’s fees. [¿Therefore, Mr. Kelly and the Kelly Group were ordered to pay $3,380.25 to satisfy the payment of the attorney’s fees awarded by the trial court.

Three months after the order awarding attorney’s fees to the plaintiffs was signed, the plaintiffs filed a motion for contempt against Mr. Kelly in the trial court. The motion for contempt asserted that Mr. Kelly had not satisfied the order requiring Mr. Kelly to pay the plaintiffs’ attorney’s fees. After a hearing, the contempt motion was granted. In the order granting the motion, the trial court noted that as a result of the defendants’ failure to pay the attorney’s fees that were awarded and as a result of the difficulty in obtaining service on Mr. Kelly, individually and as the manager of the Kelly Group, the plaintiffs had incurred an additional $431.00 in court costs. The trial court then ordered Mr. Kelly and the Kelly Group to pay the plaintiffs’ attorney the sum of $3,811.25 and held that “[sjhould Defendants fail to fulfil [sic] this solidary obligation before October 31, 2004, Defendant, John F. Kelly, III shall be imprisoned for ten (10) days and ordered to post a bond in the amount of $3,811.25 in order to obtain release from this sentence.”

When the attorney’s fees were not paid within the time limit provided, the trial court issued an order for the attachment and subsequent incarceration of Mr. Kelly. After Mr. Kelly paid the attorney’s fees he had been ordered to pay, the trial court recalled the attachment that had been issued. The order recalling the ^attachment stated that the “Judgment of the Court dated November 10, 2003,” had been “satisfied.”

Mr. Kelly then filed a motion for a de-volutive appeal of the order granting the motion for contempt. That appeal is now before us.

DISCUSSION

Mr. Kelly and the Kelly Group raised a single assignment of error in their original brief. They contend that Mr. Kelly should not have been held personally liable for the debt of the Kelly Group. Their argument fails, however, because the judgment holding Mr. Kelly liable was rendered on November 10, 2003, and the instant appeal was not filed until over a year later. The November 10 judgment was never appealed, and it became a final judgment that could no longer be appealed when the delays for taking an appeal had elapsed. La. C.C.P. arts.2087 and 2123. Mr. Kelly is liable for the payment of the attorney’s fees as set forth in the order awarding attorney’s fees that was signed on November 10, 2003. If Mr. Kelly thought that the judgment should not have been rendered against him personally, his remedy was to appeal the judgment in a timely matter. He did not do so, however. Therefore, this assignment of error is without merit.

| (¡We also note that there was no error in holding Mr. Kelly in contempt of court. Because he did not appeal the November 10 judgment and then refused to comply with it, he was properly held in contempt of court in the October 14, 2004 order. Therefore, we affirm the judgment of the trial court finding that Mr. Kelly was in contempt of court.

In their reply brief, Mr. Kelly and the Kelly Group raised additional arguments. Under Rule 2-12.6 of the Uniform Rules'— Courts of Appeal, “[t]he appellant may file a reply brief, if he has timely filed an original brief, but it shall be strictly confined to rebuttal of points urged in the appellee’s brief.” The arguments in the reply brief do not conform to Rule 2-12.6. Therefore, they will not be considered.

CONCLUSION

The assignment of error raised in the defendants’ brief is without merit. The November 10, 2003 judgment has been satisfied, and we affirm the finding that Mr. Kelly was in contempt.

FINDING OF CONTEMPT AFFIRMED; APPEAL OTHERWISE DISMISSED.

      . A condominium declaration is defined in La. R.S. 9:1121.103(10) as the instrument by which immovable property is made subject to the Louisiana Condominium Act, La. R.S. 9:1121.101 et seq. In the instant case, the operative document was the Declaration Creating and Establishing A Condominium Regime for 528 Baronne Street Condominiums, as amended by the First Amendment to Declaration Creating and Establishing a Condominium Regime for 528 Baronne Street Condominiums by 528 Historic Development, L.L.C.

      . The petition in this case alleged that Mr. LoGreco sold his Condo unit to the Kelly Group. The record does not specify the basis upon which he was sued.

      . The plaintiffs had apparently filed a lien against the Condo unit owned by the Kelly Group as security for the payment of the judgment awarding attorney's fees. The plaintiffs’ brief in this case indicated that the closing notary was to have escrowed sufficient funds from the proceeds of the sale of the Condo unit until such time as the trial court determined the amount of the attorney’s fees that were owed. The closing notary failed to escrow the sale proceeds and instead paid $1,380.00 to the plaintiffs’ attorney in connection with the closing of the sale of the Condo unit and remitted the net sale proceeds to Mr. Kelly.

      . The terms "plaintiffs” and “defendants” were transposed in the order that awarded the attorney’s fees. It is clear from the context in which the terms were used that the transposition was a typographical error, and the meaning of the order is clear.

      . Mr. Kelly did not pay tire additional court costs awarded in the contempt order, because the plaintiffs agreed to accept only the amount of the attorney's fees awarded in the November 10, 2003 judgment and waived the payment of the additional costs.

      . La. C.C.P. art. 2087(A) provides that except as otherwise provided by law, a devolutive appeal may be taken within sixty days of the expiration of (1) the delay for applying for a new trial or judgment notwithstanding the verdict, if a timely application for a new trial has not been made, or (2) the date notice of the trial court's refusal to grant a timely application for a new trial or judgment notwithstanding the verdict is mailed. A devolutive appeal does not suspend the effect or execution of the order or judgment being appealed.

      . La. C.C.P. art. 2123(A) provides that that except as otherwise provided by law, a sus-pensive appeal may be taken within thirty days of the expiration of (1) tire delay for applying for a new trial or judgment notwithstanding the verdict, if a timely application for a new trial has not been made, or (2) the date notice of the tried court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict is mailed. A suspensive appeal suspends the effect or execution of the order or judgment being appealed, and security for the appeal must be furnished within the thirty-day appeal period.

      .Although Mr. Kelly and the Kelly Group appealed the October 14, 2004 order granting the motion for contempt, they did not raise the issue of whether it is permissible for a court to impose a penalty for contempt in the form of the judgment debtor’s imprisonment if the debtor refuses to pay a civil judgment. Therefore, we have not considered this issue.


source: Caselaw Access Project

author: SAUNDERS, Juáge.

license: Public Domain

text:
    Kevin Michael MAY, et al. v. Thomas H. MILLER, et al.
    No. CA 2006-418.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 11, 2006.
    Rehearing Denied Nov. 29, 2006.

      Joseph R. Ballard, Baton Rouge, LA, for DefendanVAppellee, Entergy Services, Inc.
    Gary A. Bezet, Kean, Miller, Hawthorne, D’Armond, McCown, & Jarman, Baton Rouge, LA, for Defendant/Appellee, Colonial Pipeline Company.
    Donald Coleman Brown, Woodley, Williams, Boudreau, Norman, Brown, & Deville, L.L.C., Lake Charles, LA, for Defendants/Appellees, Owen John & Dolores K. Morrissey.
    Robert William Collings, Collings & Collings, Lake Charles, LA, for Defendant/Appellee, Geneva Danine Courville.
    David Frank Dwight, Dwight Law Firm, Lake Charles, LA, for Defendant/Appellee, Kenneth B. & Elizabeth K. Martin.
    A.J. Gray III, The Gray Law Firm, Lake Charles, LA, for Defendant/Appellee, Stream Family Ltd. Partnership.
    Carl H. Hanchey, Lundy & Davis, LLP, Lake Charles, LA, for Defendants/Appel-lees, Wells Talbot Watson, Kerry Ribbeck, Edward A. Ribbeck, Nathan H. Bray, Jr., Carol J. Bray, Christopher Baggett, Bag-gett Investors, LLC.
    Catherine Louise Stagg, Southwest Louisiana Legal Services Society, Lake Charles, LA, for Defendant/Appellee, Succession of Gibson Leboeuf.

      James L. Trinchará, Hoy Robert Hughes, Trinchará & Trinchará, New Orleans, LA, for Defenáants/Appellees, Briágeline Gas Distribution, LLC, Concha Chemical Pipeline, LLC, Texaco Petroleum Pipeline, LLC.-
    Kenneth Michael Wright, Lake Charles, LA, for Plaintiffs/Appellants, Kevin Michael May, Patricia Kay May.
    John Ernest Brown, Lake Charles, LA, for Defenáant/Appellee, Intervivos Trust of Cassie A. Smith.
    Daviá Bruce Jones, Sulphur, LA, for Defenáant/Appellee, Ivan Leboeuf Estate.
    William Mitchell Reáá, Liles & Reáá, Lake Charles, LA, for Defenáant/Appellee, Thomas H. Miller.
    Thomas John Gayle, Lake Charles, LA, for Defenáant/Appellee, Anthony Leon-arás.
    James Lawrence Bullen, Strain, Dennis, Mayhall, & Bate, Lafayette, LA, for De-fenáants/Appellees, Enterprise Lou-Tex NGL Pipeline L.P., Enterprise Lou Tex Propylene Pipeline, L.P.
    Penelope Quinn Richará, Cameron, LA, for Defenáant/Appellee, John Eáwará Por-fié.
    Ike Amos Hobaugh, Wright, & Moreno, Lake Charles, LA, for Plaintiffs/Appellants, Patricia Kay May, Kevin Michael May.
    Mack A. Hollis Lake Charles, LA, for Defenáants/Appellees, Ivan Leboeuf Estate, Robert Lynn Sonnier, II, Stream Family Ltá. Partnership, Enterprise Lou-Tex NGL Pipeline L.P., Geneva Danine Courville, Carol J. Bray, Eáwará A. Rib-beck, Thomas H. Miller, Intervivos Trust of Cassie A. Smith, Briágeline Gas Distribution, LLC, Christopher Baggett, Bag-gett Investors, LLC, Kerry Ribbeck, Anthony Leonarás, Nathan H. Bray, Jr., Owen John & Dolores K. Morrissey, Succession of Gibson Leboeuf, Dwight Ray-moná Lemoine, Concha Chemical Pipeline, LLC, John M. Pelafigue, Colonial Pipeline Company, Kenneth Bryant Martin, Kenneth B. & Elizabeth Martin, Enterprise Lou Tex Propylene Pipeline, LP, John Eá-wará Portie, Wells Talbot Watson, Texaco Petroleum Pipeline, LLC, Stephen James Flooá, Entergy Services, Inc., Scott Bran-áon Brame.
    Robert Lynn Sonnier, II, Lake Charles, LA, in Proper Person.
    Dwight Raymoná Lemoine, Lake Charles, LA, in Proper Person.
    John M. Pelafigue, Lake Charles, LA, in Proper Person.
    Kenneth Bryant Martin, Lake Charles, LA, in Proper Person.
    Stephen James Flooá, Lake Charles, LA, in Proper Person.
    Scott Branáon Brame, Lake Charles, LA, in Proper Person.
    Court eomposeá of JOHN D. SAUNDERS, ELIZABETH A. PICKETT, aná JAMES T. GENOVESE, Juáges.
   SAUNDERS, Juáge.

|! This litigation arises from a property owner petitioning the court for a right of passage to its eneloseá estate. Motions for summary juágments were granteá removing several áefenáant lanáowners from the suit baseá on a fináing that their laná woulá not be subject to the eventual choice of route the court woulá make.

After a two áay trial aná post trial mem-oranáa were fileá on the issues, the trial court ruleá in favor of the plaintiffs by granting a twenty foot right of passage along a route it founá least injurious to the servient estate. The trial court also awaráeá taking áamages of twenty-five thousaná áollars aná severance áamages of twenty-five thousand dollars to the ser-vient estate landowner.

Plaintiffs appealed the judgment of the trial court. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On January 25, 2000, Kevin M. May and Patricia K. May purchased a 65.57 acre tract of land (“May property”) from Amoco Production Company (“Amoco”) for four hundred thousand dollars. The property is an enclosed estate as it has no access to a public road. The tract is located within the city limits in south Lake Charles, Louisiana and is contiguous with the Stream Family Limited Partnership (“Stream”) residential and golf course development, “Graywood.”

The southern portion of the May property consists of approximately twenty-seven acres of high land. The northern portion of the May property consists of approximately thirty-eight acres below sea-level that is generally called Kara Bay. Various pipelines span east and west between the May property and Stream’s Graywood property. The Mays plan to build a house and a barn on their land and, in the future, to build homes for their children.

| p.Prior to the Mays’ purchase from Amoco, the May property was part of a larger, eighty-two acre tract. In 1995, Amoco sold a 16.5 acre tract situated north of Kara Bay that had access to Lisle Peter Road, a public road. This sale created an enclosed estate as the remaining tract had no access to a public road.

About one year after their purchase, on or about February 13, 2001, the Mays filed a Petition for a Right of Passage based upon Louisiana Civil Code Article 689 et seq., naming as defendants, landowners of intervening lands lying east of the May property towards Big Lake Road. The Mays originally sought a twenty foot right of passage from the south east corner of their property traversing from west to east, crossing several defendant landowners’ properties, to the end of an existing Stream private road that connects to Big Lake Road. The Stream private road is used by defendant, Thomas Miller, in accordance with a terminable personal servitude.

On several different occasions the trial court considered various exceptions, motions, allegations, testimony and exhibits in court including a Peremptory Exception filed by Stream of No Right of Action and No Cause of Action.

Through the disposal of these various exceptions, etc., property owners to the north of the May property were dismissed even though the closest route to a public road was in the northern direction to Lisle Peters Road. Through summary judgment, the trial court dismissed these defendants because this route was not acceptable as a body of water, Kara Bay, was between the May property and Lisle Peters Road. The trial court then looked to the east or south to find the location of the right of passage to grant to the Mays.

The trial occurred on January 20th through 21st, 2005. Sixteen witnesses testified. After 'the trial, the trial court gave the parties time to submit post-trial | ^memoranda on findings of fact and law. After the parties extensively briefed the issues, the trial court took the matter under advisement.

Written reasons for judgment were given on December 27, 2005. The trial court decided that since the Graywood Traffic Circle or cul-de-sac was the closest public road to the May property that didn’t require traversing Kara Bay, Stream must bear the entirety of the servitude. After it was determined that the Stream property was to be the servient estate, the trial court considered several routes and performed a balancing test to help determine the route least injurious to the servient estate.

The Mays proposed four routes to the south. Stream proposed that, if a right of passage was to be granted, then the least injurious route would be an east/west route along the northern border of its estate so as not to hinder its future plans for the development of the property.

The trial court granted the Mays a twenty foot right of passage that took an easVwest route along the northern border of the Stream property to Big Lake Road. The trial court opined that the route was the least injurious to the servient estate. The trial court also found that the Mays owed Stream a total of fifty thousand dollars. The Trial court also found that the Mays owed Stream a total of fifty thousand dollars, twenty-five thousand dollars for the right of passage property taken and twenty-five thousand dollars for severance damages.

The Mays appealed this judgment alleging that the trial court erred in three ways: (1) by selecting a route for the their right of passage that necessitated the building of a bridge, (2) by finding that Stream was entitled to twenty-five thousand dollars for right of passage property taken and twenty-five thousand dollars for disseverance damages from the Mays, and (3) by granting the Mays a twenty foot wide right of passage rather than a thirty foot wide right of passage.

Stream raised the issue on appeal that their Peremptory Exception of No Right of Action and No Cause of Action should have been granted pursuant to Louisiana Civil Code Article 693 because Amoco had created the enclosed estate though its own accord and the Mays were its successors, and as such, their neighbor, Stream, were not bound to furnish a right of passage to them. The Appellee advised the court at oral arguments they had abandoned that argument. Accordingly, this court will not address this issue.

We affirm in part and reverse in part.

ASSIGNMENTS OF ERROR:

1. Was the trial court manifestly erroneous or clearly wrong in granting the Mays a right of passage by selecting a route that necessitated the building of bridge?
2. Was the trial court manifestly erroneous or clearly wrong in finding that Stream was entitled to fifty thousand dollars from the Mays for the right of passage property taken and severance damages?
3. Was the trial court manifestly erroneous or clearly wrong in granting the Mays a twenty foot wide right of passage rather than a thirty foot wide right of passage?

ASSIGNMENT OF ERROR # 1:

Plaintiff/Appellant contends that the trial court erred in granting the Mays a right of passage by selecting a route that necessitated the building of bridge. We disagree.

The standard of review for a finding of fact such as this is that of manifest error. A trial judge’s findings of fact will not be disturbed unless he/she is manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Thransp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury |sor trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

The applicable codal articles are as follows:

Louisiana Civil Code Article 689

The owner of an estate that has no access to a public road may claim a right of passage over neighboring property to the nearest public road. He is bound to indemnify his neighbor for the damage he may occasion.

Louisiana Civil Code Article 690

The right of passage for the benefit of an enclosed estate shall be suitable for the kind of traffic that is reasonably necessary for the use of that estate.

Louisiana Civil Code Article 692

The owner of the enclosed estate may not demand the right of passage anywhere he chooses. The passage generally shall be taken along the shortest route from the enclosed estate to the public road at the location least injurious to the intervening lands.

Louisiana Civil Code Article 693

If an estate becomes enclosed as a result of a voluntary act or omission of its owner, the neighbors are not bound to furnish a passage to him or his successors.

Louisiana Civil Code Article 694,

When in the case of partition, or a voluntary alienation of an estate or of a part thereof, property alienated of partitioned becomes enclosed, passage shall be furnished gratuitously by the owner of the land on which the passage was previously exercised, even if it is not the shortest route to the public road, and even if the act of alienation or partition does not mention a servitude of passage.

Louisiana Civil Code Article 695

The owner of the enclosed estate has no right to the relocation of this servitude after it is fixed. The owner of the servient estate has the right to demand [ ^relocation of the servitude to a more convenient place at his own expense, provided that it affords the same facility to the owner of the enclosed estate.

“The term “generally” in La.Civ.Code art. 692 is an acknowledgment that there are exceptions to the general rule, and it recognizes that the nature and location of the right of passage are governed by the circumstances of each case.” Pearson v. Theriot, 534 So.2d 35, 36 (La.App. 3 Cir. 1988), citing Anderton v. Akin, 493 So.2d 795 (La.App. 2 Cir.), writ denied, 497 So.2d 1014 (La.1986).

The trial court in the instant matter looked to Davis v. Culpepper, 34,736, pp. 7-9 (La.App. 2 Cir. 7/11/01), 794 So.2d 68, 73-74, writ denied, 01-2573 (La.12/14/01), 804 So.2d 646 in discussing the application of these articles:

[A]s noted by the supreme court in Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970), the owner of an enclosed estate does not have discretion to choose which estate should be burdened with a legal right of passage. A two-step analysis is required by article 692, former article 700. First to be determined is which estate owes the servitude of passage. Vermilion Parish School Board v. Broussard, 263 La. 1104, 270 So.2d 523 (1972); Rockholt, supra; Roberson v. Reese, 376 So.2d 1287 (La.App. 2d Cir.1979), citing A.N. Yiannopoulas, Enclosed Estates: Louisiana and Comparative Law, 23 Loy. L.Rev. 343, 367 (1977). Only then should the courts engage in a balancing test to determine where on the servient estate the passage should be located. Mitcham v. Birdsong, 573 So.2d 1294 (La.App. 2d Cir.1991); Roberson, supra; C. Sherburne Sentell, III, Comment, Fixing the Right of Passage from an Enclosed Estate: Deciding Where to Break Out Using Louisiana Civil Code Article 692, 54 La. L.Rev. 1659, 1670 (1994).
The general rule of La. C.C. art. 692 is that the estate providing the shortest route to the nearest public road must provide the right of passage. Roberson, supra; Mitcham, supra; Morgan v. Culpepper, 324 So.2d 598 (La.App. 2d Cir.1975), writs denied, 326 So.2d 377, 378 (La.1976). As recognized by the legislature in its use of the word “generally” in the article 692, there are situations that allow the servitude of passage to be imposed on an estate that does not provide the shortest route. Rockholt, supra; Morgan, supra; Rieger v. Norwood, 401 So.2d 1272 (La.App. 1st Cir. 1981). In the absence of exceptional circumstances, it is only the estate that provides the shortest access to the nearest public road that will be burdened with the servitude. Vermilion Parish School Board, supra; Morgan, supra.
|7The first exception recognized by the jurisprudence is when the estate which provides the shortest route is covered by water or is otherwise not accessible year-round. See Morgan, supra; Mitcham, supra; Morris v. Nesbitt, 9 So.2d 75 (La.App. 2d Cir.1942); Tessier v. Medical Center of Baton Rouge, Inc., 93-0075 (La.App. 1st Cir.03/11/94), 636 So.2d 928; Bouser v. Morgan, 520 So.2d 937 (La.App. 3d Cir.1987). The second derogation from the general rule is when the costs associated with crossing the estate which is the shortest distance from the public road are so exceptional that from a practical standpoint it is economically unfeasible to build. See Mercer v. Daws, 186 So. 877 (La.App. 2d Cir.1939) Pearson v. Theriot, 534 So.2d 35 (La.App. 3d Cir.1988).
As set forth above, courts should first determine which estate owes the servitude. Roberson, supra; Sentell, supra at 1682. The shortest straight line distance to the nearest public road determines which estate owes the servitude. Id. The party arguing that the servitude should instead be imposed on another estate bears the burden of establishing that one or the two exceptions is applicable. See, e.g., Anderton v. Akin, 493 So.2d 795 (La.App. 2d Cir.1986), writ denied, 497 So.2d 1014 (La.1986).

The shortest distance from the May property to a public road was a route due north from the May property to Lisle Peters Road. The court surmised that this route would involve a water crossing and the construction of a bridge of considerable length. Because the route was covered by water and the costs associated with it would be so exceptional that from a practical standpoint, the crossing would be economically unfeasible to build, the trial court found this route unacceptable.

The trial court then determined that the southern route from the May property traversing the Stream property to Big Lake Road was the shortest feasible route. This led the trial court to determine that the Stream property would bear the entirety of the servitude.

Once the trial court determined that the Stream property owed the entire burden to the dominant May property, the trial court found that a route due south would be the most injurious to the Stream property. This finding was based on the testimony |8of Gene Dark, general contractor for Stream. Mr. Dark testified that a directly southern route would be the most injurious to the Stream property by crossing future fairways and residential lots. The trial court was satisfied that Stream intended to develop the northern portion of its property into restricted subdivisions and a golf course much like it had done with the southern portion of their property.

In light of this and other factors, the trial court granted a right of passage to the Mays that Mr. Dark testified and the court felt was the least injurious to the Stream property. The route granted by the trial court traversed the northern portion of the Stream Property and connected the May Property to Big Lake Road. The Mays argue that the trial court erred in choosing this route as it required the building of an expensive bridge. We do not agree.

The Appellants point out that the Davis case cited by the trial court found that the building of a bridge is an exception to La.Civ.Code art. 692’s call to grant the most direct route to a public road when granting a right of passage to an enclosed estate. While the building of a bridge has been held to be an exception recognized under Article 692’s call for usage of the shortest route, it has not been held that if a bridge is necessary to use a certain route, then the route must be rejected. The trial court actually recognized this exception as it rejected the directly shortest route over Kara Bay because it would necessitate the building of long, expensive bridge.

Here, the route chosen by the trial court necessitates the building of a bridge, but the actual costs associated with building this bridge is the subject of contention. Appellants rely on the testimony of Charles Ladner, an expert in the field of civil engineering. Mr. Ladner testified that the costs associated with building a bridge along the route the court chose would be one hundred, sixty thousand dollars, plus or |9minus twenty-five percent. The trial court also heard the testimony of Mr. Tad Martin, an adjacent landowner. Mr. Martin had a bridge installed spanning the same drainage canal as the new May bridge would span, and it cost him eighty-three thousand dollars just a few years before. Therefore, the trial court was presented with evidence that supported finding a range of eighty-three thousand to two hundred thousand dollars for the cost of the Mays to build this bridge.

Appellants assert that this cost is not economically feasible. They rely on the case of Pearson, 534 So.2d 35. In Pearson, the court found that the cost associated with building a bridge, twenty-five thousand dollars, was prohibitive. Our reading of the case is that the Pearson court used this cost simply as one factor to reject the shortest route from an enclosed estate to a public road. Further, the Pearson case is distinguishable from the present case in the following ways: (1) the parties in Pearson did not have necessary permits to cross the canal, and there was no guarantee that the parties in Pearson could get permission to cross the canal from the appropriate authority; (2) the canal in Pearson was used by boat traffic and would have to be maintained so as not to prevent any boat traffic; (3) the route that would include a bridge in Pearson was not the least injurious route to the intervening landowner; and (4) the land values involved in Pearson were not comparable to those in the present case.

While the costs associated with building the bridge in this case are considerably higher than that in Pearson, it is also true that the value of the Mays property, purchased with the knowledge of its enclosed status, was also considerable. The Mays paid four hundred thousand dollars, or about fifteen thousand dollars per acre for approximately twenty-seven acres of dry land for the building of their family hnhome. Moreover, it is also true that the Stream property is also very valuable property.

The cost associated with building a bridge is one factor for the trial court to consider. If the trial court would have chosen the route of the right of passage as per the Appellants’ request, it would necessitate an adjustment of damages owed to Stream. First, the property taking damages of twenty-five thousand dollars would have to be raised to reflect the taking of nearly an acre more of land. At the value that the trial court assigned to the land taken, it would be approximately an extra twelve thousand dollars in takings damages. However, the land to be taken along the appellants suggested route would more likely have a higher value than that given to the land chosen by the court. The land to be taken on the route the trial court chose is along the northern property line of the Stream property. The land to be taken on the route the Appellants suggest would cross six proposed residential lots and two fairways. Arguably, the value of the land to be taken along the route suggested by the appellants would be closer to the forty-eight thousand dollars per acre as suggested by Mr. Daniel Plauche, Stream’s expert on property valuation, than that of the ten thousand dollars per acre as suggested by Mr. Leonard E. Pau-ley, Jr., the Mays’ expert on property valuation.

Second, the trial court would arguably have had to have made a substantial award of severance damages to Stream. The report of Mr. Plauche states that the Appellants’ requested route would cross six proposed residential lots and fairways. With a subdivision development ratio of three lots per acre, and “raw” land value at |,, forty-eight thousand dollars per acre, severance damages “affect” the equivalent of two acres or ninety-six thousand dollars in land. Further, the “affect” on rerouting the golf course design so the affected fairways incorporate a twenty foot wide road easement would also be considerable. Mr. Plauche estimated in his report that a value of one hundred thousand dollars as minimum compensation to redesign a golf course route with the least detrimental effect on fairways due to a twenty foot wide easement that is 2,640 feet or more in length running through the golf course. Appellants’ expert, Mr. Leonard E. Pau-ley, Jr., asserts that there is no devaluing of Stream’s property, regardless of the route chosen for the right of passage.

To compare the economic feasibility of the route chosen by the trial court to that proposed by the appellants, we need to find an approximate cost for each route. The cost of the route granted by the trial court includes bridge building costs and takings damages. The cost of building a bridge has a range of eighty-three thousand to two hundred thousand dollars. This cost, when added to the taking damages of twenty-five thousand dollars, totals anywhere from one hundred and eight thousand dollars to two hundred, twenty-five thousand dollars.

The cost associated with the route proposed by the appellants include higher takings damages and severance damages. The takings damages along the appellants’ proposed route have a range of thirty-seven thousand dollars to seventy thousand dollars. The severance damages awarded can range anywhere from zero dollars up to one hundred and ninety-six thousand dollars. Therefore, the range of cost of the proposed route of the appellants is thirty-seven thousand dollars to two hundred sixty-six thousand dollars.

halt is clear from a reading of the record that there is evidence to support the argument that the cost associated with the route chosen in this case, inclusive of the costs of building a bridge, are comparable to the costs associated with using the route requested by the appellants, inclusive of the potential taking and severance damages. Accordingly, we must conclude that the trial court did not commit manifest error in determining that the cost of building this bridge is economically feasible. Further, given that the cost of the two routes is comparable to the Mays, and the trial court decided to follow the direction of La.Civ.Code art. 692 to locate the route along “the location least injurious to the intervening lands,” we find that it was not unreasonable for the trial court to choose the route it chose.

The trial court is given much discretion under the manifest error standard of review. There is evidence in the record to support the trial court’s decision relating to the route for the right of passage. We find no basis in Appellants’ assertion that the trial court’s choice of route is manifestly erroneous or clearly wrong. Accordingly, we affirm the trial court’s choice of the route for the right of passage granted to Appellants.

ASSIGNMENT OF ERROR # 2:

Louisiana. Civil Code Article 689 states that if an enclosed estate claims a right of passage, “[The owner] is bound to indemnify his neighbor for the damage he may occasion.”

A trial judge has wide discretion in determining the amount of damages occasioned by the party on whose estate the right of passage is fixed. Hutchison v. Jackson, 399 So.2d 1238 (La.App. 3 Cir. 1981); Collins v. Reed, 316 So.2d 134 (La. App. 3 Cir.), writ denied, 319 So.2d 444 (La.1975).

haBoth Appellants and Appellee used experts to testify as to the value of the Stream property on a per-acre basis. The expert for Stream, Mr. Daniel Plauche, testified that the Stream land was worth forty-eight thousand dollars per acre, whereas the expert for the Mays, Mr. Leonard Pauley, opined that the Stream land was worth only ten thousand dollars per acre. According to a description ordered by the trial court, the total acreage of Stream property taken for a twenty foot May right of passage is about two acres.

The trial court awarded damages to Stream for the property taken in the amount of twenty-five thousand dollars. Appellants argue that the trial court erred by awarding excessive damages for use of the right of passage. We do not agree.

This award of twenty-five thousand dollars or twelve thousand, five hundred dollars per acre is only slightly more than the ten thousand per acre value given by Mr. Pauley and is substantially less than the forty-eight per acre value given by Mr. Plauche.

Under the circumstances, the record supports the trial court’s finding that the Mays owed Stream twenty-five thousand dollars for the taking of the property for the right of passage and the trial court’s assessment should be upheld. Therefore, we affirm the trial court’s finding that the Mays owe twenty-five thousand dollars for the taking of the property for the right of passage.

“Severance damages are ordinarily calculated as the difference between the market value of the remaining property immediately before and immediately after the taking. The burden of proving alleged severance damages to the remainder of property involved rests upon the owner who must establish such damages with legal |14certainty by a preponderance of evidence.” State, through the Dep’t of Highways v. Denham Springs Dev. Co. Inc., 307 So.2d 304, (La.1975) [Citations omitted].

Mr. Daniel Plauche, Stream’s expert appraiser, testified that if the route chosen by the court were to be just south of the Colonial Pipeline traversing the northern portion of the Stream property, which is the route the court eventually did choose, his conclusion would be that there would be no severance damages in that taking. Consistent with this testimony, Mr. Plauche offered no evidence to justify an award of severance damages.

Given the above noted lack of evidence of severance damages, we find that the trial court’s assessment of twenty-five thousand dollars for severance damages was clearly wrong. The record is devoid of any evidence that the Stream property was any less valuable after the granting of the right of passage than before. Stream failed to meet its burden of proof and establish that it was due any severance damages. As such, we reverse the trial court’s ruling related to the assessment of severance damages.

ASSIGNMENT OF ERROR # 3:

Louisiana Civil Code Article 690 states, “The right of passage for the benefit of an enclosed estate shall be suitable for traffic that is reasonably necessary for the use of that estate.” “The scope of the right of passage granted over neighboring lands is determined by the actual needs of the enclosed estate.” Davis, 794 So.2d at 71-72.

As before, the standard of review for a finding of fact such as this is that of manifest error. Appellants assert that the trial court erred by giving a twenty foot right of passage instead of a thirty foot right of passage which is what is required for the use of the land. We do not agree.

| ibAppellants rely heavily on the testimony of Charles Ladner. Mr. Ladner testified that he concluded a thirty foot wide right of passage was necessary for the Appellants to use their property. Mr. Ladner reached his conclusion based on sixteen foot traveling surface. Mr. Ladner stated that sixteen feet was the minimum traveling surface width needed for two cars to pass simultaneously.

However, on cross examination, Mr. Ladner admitted that two vehicles could pass one another, albeit with difficulty, on the Stream road. The Stream road has a traveling surface that is only ten feet in width. Moreover, on appeal, the Appellants are requesting a route that uses the Stream road.

The court finds La. R.S. 48:495 to be helpful in deciding this issue. Louisiana Revised Statute 48:495 requires that parish and local roads must be twenty-five feet in width. Parish and local roads carry far more traffic than a single driveway and suggests that a twenty foot width would not be unreasonable. Moreover, in the Pearson case cited in Assignment of Error # 1, we held that a width of twenty feet was sufficient for a family dwelling.

Therefore, we find that there is evidence in the record that a twenty foot right of passage is sufficient for the reasonably intended use of the estate. As such, in that regard, this court finds that the trial court’s decision to set the width of the right of passage at twenty feet was not manifestly erroneous or clearly wrong. Accordingly, we affirm the ruling of the trial court.

CONCLUSION

The judgment of the trial court is affirmed in part, and reversed in part. Costs of this appeal are assessed equally against the parties.

AFFIRMED IN PART, REVERSED IN PART.

      . The trial court granted Stream twenty-five thousand dollars ($25,000.00) in severance damages, however this court reverses the trial court finding and sets the severance damages to zero. See discussion in Assignment of Error # 2.


author: WALTER J. ROTHSCHILD, Judge.

text:
    STATE of Louisiana, DEPARTMENT OF SOCIAL SERVICES and Shelly Burkett v. Craig BURKETT.
    No. 06-CA-300.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 31, 2006.
    Rehearing Denied Nov. 21, 2006.

      Paul D. Connick, Jr., District Attorney, John D. Fitzmorris, Jr., Joseph R. McMahon, Jr., Assistant District Attorneys, Harvey, Louisiana, for PlaintiflyAppellee.
    Craig M. Burkett, I.P.P., Metairie, Louisiana, for Defendant/Appellant.
    Panel composed of Judges. EDWARD A. DUFRESNE, JR., THOMAS F. DALEY, and WALTER J. ROTHSCHILD.
   WALTER J. ROTHSCHILD, Judge.

| ¡¡The defendant, Craig Burkett, appeals the juvenile court’s December 29, 2005 judgment, granting a Motion to Modify Child Support filed by the State of Louisiana, Department of Social Services (“the State”). For the reasons which follow, we affirm.

Mr. Burkett and the recipient, Shelly Burkett, were divorced in 2001 in a proceeding in the 24th Judicial District Court. They are the parents of two minor sons. In July 2001, the child support matter initiated in the 24th Judicial District Court was transferred to the Juvenile Court for the Parish of Jefferson, in accordance with LSA-R.S. 46:236.2. On August 8, 2001, the State filed a Motion to Modify Support, asking the court to increase Mr. Burkett’s child support obligation. On September 26, 2001, the juvenile court granted the State’s motion and set Mr. Burkett’s child support obligation at $569.46 per month plus court costs.

|3On December 18, 2001, the defendant filed a Rule to Reduce Child Support, which was subsequently denied. On January 30, 2002, the State filed a Rule to Increase Child Support, asserting that there was a change in circumstances because Mr. Burkett had an increase in income and the children were not covered by medical insurance. After a hearing on May 6, 2002, the State’s Rule to Increase Child Support was granted, and Mr. Burk-ett was ordered to pay $706 per month plus court costs. The juvenile court further ordered that Mr. Burkett was not entitled to claim the children for the 2001 tax deduction because he was in arrears in 2001. Mr. Burkett filed an appeal with this Court, contesting the increase in child support and the denial of his request to claim the 2001 tax deduction for the children.

Oh April 29, 2003, a panel of this Court issued an opinion affirming the juvenile court’s decision to deny Mr. Burkett’s request to claim the 2001 tax deduction, but reversing the increase in child support. This Court found that an increase in child support was not permissible at that time, because there had not been a material change in circumstances under LSA-R.S. O^lRCXl). Therefore, the judgment increasing Mr. Burkett’s child support obligation to $706.00 per month was reversed. Accordingly, the previous child support award of $569.46 per month was reinstated and, because the defendant had been paying $706.00, he was entitled to reimbursement for the overpayment. At a hearing on June 9, 2003, the court ordered the defendant to pay only $300.00 per month plus court costs until the credit for overpayment was exhausted.

|4On December 8, 2004, the State filed a Motion to Modify Child Support. On April 11, 2005, the defendant filed an opposition to the State’s motion, arguing that it was improper because three years had not passed since support was last set and the State “cannot apply for a Judicial review until after the passage of three years.” The parties appeared before the hearing officer on July 28, 2005, but the matter was continued to allow the recipient to appear with further proof of day care expenses.

On August 4, 2005, the parties appeared again before the hearing officer. The hearing officer recommended that Mr. Burkett’s child support obligation be increased to $888.33 per month plus court costs, retroactive from December 8, 2004 to May 27, 2005, and that his child support obligation be increased to $713.68 per month plus court costs, retroactive from May 28, 2005 to the present. He further found that the defendant’s Motion for Contempt filed against the recipient was moot. The defendant disagreed with the recommendations of the hearing officer and requested a hearing before the juvenile court judge. On that same day, August 4, 2005, the judge heard the matter and allowed the parties additional time to submit memoranda.

On December 29, 2005, the juvenile court rendered a “Judgment with Incorporated Reasons,” finding that: 1) more than three years had elapsed between the time of the previous award and the filing of the State’s Motion to Modify Support on December 8, 2004; 2) the defendant’s Motion for Contempt was untimely; and 3) the costs of after school care were fair and reasonable and must be included in the child support obligation. The juvenile court granted the State’s Motion to Modify and adopted the recommendations of the hearing officer as an |sorder of the Court. Accordingly, child support was set at $888.33 per month plus court costs, retroactive from December 8, 2004 to May 27, 2005, and it was set at $713.68 per month plus court costs, retroactive from May 28, 2005 to the present. It is from this judgment that the defendant, Mr. Burkett, appeals.

DISCUSSION

In his first argument on appeal, Mr. Burkett asserts that the juvenile court erred in granting the State’s Motion to Modify Support by finding that more than three years had passed since the last time support was set. Mr. Burkett contends that the last judgment from which the three year period should be calculated was the June 9, 2003 judgment, so three years had not elapsed between the time of that judgment and the filing of the State’s Motion to Modify Child Support on December 8, 2004. The State responds that the three-year period should be calculated from the September 26, 2001 judgment setting Mr. Burkett’s child support obligation at $569.46, because that judgment was a considered decree based on the income of the parents, and any change in the amount of the September 26, 2001 judgment was interim in nature and did not alter the basic child support obligation.

LSA-R.S. 9:311 provides in pertinent part:

(C) For purposes of this Section, in eases where the Department of Social Services is providing support enforcement services:
2) Upon request of either party or on its own initiative and if the best interest of the child so requires, the department shall provide for judicial review and, if appropriate, the court may adjust the amount of the existing child support award every three years if the existing award differs from the amount which would otherwise be awarded under the application of the child support guidelines. The review provided hereby does not require a showing of a material change in circumstance nor preclude a party from seeking a reduction or increase under the other provisions of this Section. (Emphasis added.)

IfiThe First Circuit addressed a similar issue in Deshotels v. Deshotels, 93-2026 (La.App. 1 Cir. 6/24/94), 638 So.2d 1199, 1201, and found that “previous award,” as used in LSA-R.S. 9:311 for a change in circumstances inquiry, is the time that the last award was set, rather than the last time a Motion to Modify Support was considered, even if it was denied. See also, Starks v. Starks, 28,237 (La.App. 2 Cir. 4/3/96), 671 So.2d 1224.

In the present case, Mr. Burkett’s child support obligation was set at $569.46 on September 26, 2001, based on the parents’ income and the statutory guidelines. This award was in effect over three years later on December 8, 2004 when the State filed its Motion to Modify Support. Although the child support award had been increased on May 6, 2002, this modification was vacated by this Court’s April 29, 2003 opinion. In that opinion, this Court did not use the parties’ income and statutory guidelines to alter the child support obligation. Rather, it simply vacated the increase in the award, and the child support award set forth on September 26, 2001 was reinstated. Mr. Burkett received the benefit of the reinstatement of the September 26, 2001 judgment when he received a credit for the amounts he paid in excess of the amount ordered in that judgment. Accordingly, we are unpersuaded by his argument that the September 26, 2001 award was not the last award of support.

Considering the evidence in the record before us, we find that the juvenile court was correct in finding that more than three years had elapsed from the time of the previous award, September 26, 2001, to the date the State’s Motion to Modify 17Support was filed, December 8, 2004. Accordingly, the defendant’s argument on this issue is without merit.

In the second issue on appeal, Mr. Burkett contends that the trial court erred in including child care expenses when determining his child support obligation. First, Mr. Burkett asserts that the juvenile court did not have jurisdiction over this issue because decisions regarding child care are subject to the jurisdiction of the 24th Judicial District Court. We find no merit in this argument. This matter was properly transferred to the juvenile court for child support enforcement in accordance with LSA-R.S. 46:236.2. In accordance with its authority to modify and enforce child support, the juvenile court has jurisdiction to award child care expenses. Accordingly, we find that the juvenile court properly considered the issue of child care expenses and did not exceed its jurisdiction.

Mr. Burkett sets forth numerous other arguments, asserting that child care expenses should not have been included in the child support calculations. We have reviewed and considered defendant’s arguments and we find each one of them to be without merit.

LSA-R.S. 9:315.3 provides in part that “Net child care costs shall be added to the basic child support obligation.” LSA-R.S. 9:315(0(6) defines “net child care costs” as “the reasonable costs of child care incurred by a party due to employment or job search, minus the value of the federal income tax credit for child care.” A trial court’s order of child support is entitled to great weight. Carmouche v. Carmouche, 03-1106 (La.App. 5 Cir. 2/23/04), 869 So.2d 224, 226. Generally, an appellate court will not disturb a child support order unless there is an abuse of discretion or manifest error. State, Department of Social Services ex rel. D.F. v. L.T., 05-1965 (La.7/6/06), 934 So.2d 687.

Is At the hearing on this matter, the State sought modification of child support for different periods of time: 1) from December 8, 2004, the date the State filed its Motion to Modify, until May 27, 2005 when the parties’ youngest child graduated from the nursery/day care program; and 2) from May 28, 2005 until the present.

At the hearing on this matter, Ms. Burkett testified that she is a teacher in Pearl River. She stated that, in order to get to work on time, she has to leave her home in Mandeville at 6:30 a.m., and she has a lady come to her home to watch the children before school because nearby daycare centers do not open until 7:00 a.m. Mr. Burkett complains about the before school care expenses on appeal. However, in its reasons for judgment, the juvenile court indicated that it would only consider after school care expenses because Mr. Burkett withdrew his objection to before school care expenses at the hearing.

At the hearing on August 4, 2005, Mr. Burkett stated:

I don’t have issues that the fact that she leaves [sic] before school care, but I do have issues is with is [sic] if she goes to work for seven o’clock in the morning, your [sic] right, my kids don’t go until nine.

Thereafter, the following exchange occurred:

THE COURT: ... so we’re not quibbling about anything other than the fact that you want them to go to the YMCA rather than have the lady at the house.

CRAIG BURKETT:

No I think that they should, no because she’s using the lady at the house plus after school care, Your Honor. And I don’t think she needs after school care, she’s adding them both ...

THE COURT:

... okay, so the lady at the house is okay with, it’s the after school care that, I’m trying to narrow the issue, sir.

CRAIG BURKETT:

Yes, Your Honor ...

|gTHE COURT:

... it’s the after school care you’re worried about ...

CRAIG BURKETT:

... it’s the after school care that’s, that’s the issue here....

Considering Mr. Burkett’s testimony at the hearing, we agree with the juvenile court that Mr. Burkett waived his objection to the before school care expenses. Accordingly, the only child care expenses we will address are the after school care expenses.

With regard to the after school care expenses, Ms. Burkett testified that she finishes school at 2:30 p.m., but she often has to stay after school for meetings. She stated that there is a gap between the time the school bus brings the children home and the time that she gets home. Therefore, the children stay at their school for after school care until she picks them up. Mr. Burkett argued that the after school meetings and organizational activities attended by Ms. Burkett are not required for her employment, and he should not have to pay child care expenses due to her “volunteer work.” Ms. Burkett responded that she is mandated to attend IEP (individual educational plans) meetings, faculty meetings, and other meetings, and there is an average of three meetings per week.

Ms. Burkett testified that she looked into putting the children in after school care on only certain days, but the after school care program in kindergarten, which the youngest child attends, requires everyday participation in order for consistency in the children’s schedules. Mr. Burkett proposed that the children go to the YMCA after school because it is less expensive than the after school care program at the children’s school. However, Ms. Burkett stated that she does not think it is psychologically good for the children to have a nanny in the morning, then go to hnschool, then go to the YMCA, and to have even additional child care providers on the south shore when they are with their father.

After the parties submitted post-hearing memoranda, the juvenile court rendered a judgment with reasons on December 29, 2005. In its reasons, the juvenile court found that Ms. Burkett’s need for after school care for the children was not due to “volunteer work,” because the meetings she attends after school are part of the course and scope of her job duties as a teacher. The court also found “the expenses for aftercare fair and reasonable, and law mandates their inclusion in the child support obligation.” We see no error in these findings.

Defendant further argues that the juvenile court erred when calculating support by not allowing a credit for the time the children spend with him and for the expense of transporting them to and from St. Tammany. He also argues that the juvenile court should have deviated from the child support guidelines, because the amount of support ordered is inequitable to the parties.

The party seeking a reduction in child support based on the amount of time spent with the children bears the burden of proving: 1) that he exercises shared custody or extraordinary visitation with the children, 2) that the extra time spent with the non-domiciliary parent results in a greater financial burden on that parent and a lesser financial burden on the domiciliary parent, and 3) that application of the guidelines would not be in the best interest of the children or would be inequitable to the parties. LSA-R.S. 9:315.8(E)(3); Guillot v. Munn, 99-2132 (La.3/24/00), 756 So.2d 290, 300.

Our review of the record reveals that Mr. Burkett did not meet his burden of establishing that he is entitled to the credits he seeks. We further see no abuse of the juvenile court’s discretion in declining to deviate from the child support guidelines.

hi After considering all of the defendant’s arguments on this issue, along with the record before us and the applicable law, we find that the evidence submitted in this case is sufficient to support the trial judge’s findings. Accordingly, we find no abuse of the trial court’s discretion or manifest error in the modification of child support or the amount of child care expenses awarded. Thus, this judgment of the juvenile court is affirmed.

In the final issue on appeal, Mr. Burkett argues that the juvenile court erred in not finding Ms. Burkett in contempt of court for asserting at hearings in 2002 that she was an unemployed student when she was actually employed. As stated previously, the Motion for Contempt referred to by the defendant is not contained in the appellate record. We further note that there was discussion at the August 4, 2005 hearing indicating that this motion was not contained in the juvenile court record. Because the record contains no evidence to establish that this motion was properly filed with the Clerk of Court and set for hearing and because this motion is not before us to review, we decline to address this issue on appeal.

DECREE

For the reasons set forth above, we affirm the December 29, 2005 judgment of the juvenile court.

AFFIRMED.

      . In order for there to be a material change of circumstances under LSA-R.S. 9:311(C)(1), after a strict application of the child support guidelines, there must be at least a 25% change in the existing child support award. In this case, in order to constitute a material change, the increase would have to have resulted in an award of $711.82. However, the increase only amounted to $706.00.

      . This motion is not contained in the appellate record. However, the record provides sufficient information to establish that this motion was filed on this date.

      . The defendant's Motion for Contempt is not contained in the appellate record.

      . The defendant also argues that child support was last set at $300 per month on June 9, 2003, because the minute entry-judgment from this date originally indicated, "support set at $300 + 5% CC per month, effective 06/01/2002.” He asserts that the June 9, 2003 minute entry should not have been amended on April 4, 2005 to state:
      Ongoing Support Set at $569.42. Defendant has overpaid and is given credit for $1105.06. In order for the recipient to receive payment, defendant will pay $300.00 + CC per month for a total of $315.00 until arrears are zeroed out and then the support will return to $569.42 per month.”
      However, we see no error in this amendment because it accurately reflects what occurred at the June 9, 2003 hearing and was consistent with this Court’s opinion.


author: AMY, Judge.

text:
    Irving CEASAR, et al. v. Sheriff Sid HEBERT, et al.
    No. 06-374.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Mark M. Gonzalez, Scheuermann and Jones, New Orleans, LA, for Plaintiff/Appellant, Jerry Corsey.
    Morris M. Haik, Jr., New Iberia, LA, for DefendanVAppellee, Iberia Parish Government.
    Joseph L. Ferguson, New Iberia, LA, for Defendants/Appellees, Sheriff Sid Hebert, Glynn Reaux.

      Noland J. Hammond, Alexandria, LA, for Plaintiffs/Appellees, Irving Ceasar, Ronald Foster.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   AMY, Judge.

hThe plaintiff appeals the decision of the trial court granting the defendants’ motions for summary judgment. The plaintiff alleges that he is entitled to recover payment under the uninsured motorist provision of the defendants’ insurance policy for damages he sustained in a motor vehicle accident. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that on February 26, 2002, the plaintiff, Jerry Corsey, an inmate at the Iberia Parish Jail, voluntarily participated in a litter abatement program. He and three other inmates were passengers in a vehicle driven by Deputy Glynn Reaux, Iberia Parish Sheriffs Department, when it collided with another vehicle. The inmates filed a suit for damages, naming as defendants Deputy Reaux, Sheriff Sid Hebert, the Iberia Parish Government and its insurer, Commonwealth Insurance Company. Deputy Reaux and Sheriff Hebert filed motions for summary judgment, alleging that they were immune from tort liability under La.R.S. 15:70s. The Parish filed a motion for summary judgment, arguing that the plaintiffs were not under its authority and control, and therefore, it owed no duty of care to them. In its motion for summary judgment, Commonwealth contended that they were only liable if the [ 2insured was legally obligated to pay. Following a hearing, the trial court granted the motions and also dismissed Deputy Reaux and Sheriff Hebert from the case.

Corsey now appeals the granting of summary judgments in favor of the Parish and Commonwealth. He has designated the following as error:

The trial court erred by dismissing the plaintiffs causes of action against Commonwealth Insurance Company, since Plaint[iff] was an insured, injured in the vehicle insured by Commonwealth, and no other insurance was available to him and no evidence was presented at the summary judgment hearing to counter these claims.

Discussion

Standard of Review & Summary Judgment

An appellate court reviews motions for summary judgments de novo and employs the same criteria as the trial court in deciding whether summary judgment is appropriate. Lafleur v. Aftco Enterprises, Inc., 05-127 (La.App. 3 Cir. 4/5/06), 927 So.2d 1200. “A motion for summary judgment will be granted ‘if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.’ La.Code Civ.P. art. 966(B).” Id. at 1202.

The mover bears the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the nonmov-ing party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.
[ ¡/‘Interpretation of an insurance contract is usually a legal question that can be properly resolved in the framework of a motion for summary judgment.” Robinson v. Heard, 01-1697, p. (La.2/26/02), 809 So.2d 943, 945.

Id. Furthermore, in Mouton v. Thomas, 05-926, p. 3 (La.App. 3 Cir. 3/1/06), 924 So.2d 394, 396 (citations omitted), this court held that a “[sjummary judgment declaring no coverage under an insurance policy may only be rendered when there is no reasonable interpretation of the policy which would provide coverage under the undisputed facts of the case.”

Uninsured Motorist Coverage

Corsey argues that as a passenger of the vehicle involved in the accident, he was a “user” of the vehicle and, thus, an “insured” under Commonwealth’s insurance policy. He contends that because of “a lack of a remedy available to [him,] (the negligent defendant and his principal, the sheriff, are both immune) it is all the more important to approach this case with an eye toward determining, where there might be insurance coverage[.]” Corsey argues that, as an insured, he should be able to recover damages under the policy’s uninsured/underinsured motorist (UM) provision. Therefore, he contends that his claims against Commonwealth remain “and the case should be remanded to allow them to be tried.”

Although Corsey contends that he is an “insured” under Commonwealth’s policy, as his argument here focuses on the uninsured motorist coverage, we turn directly to consideration of that argument. After review, we find no merit in his assertion that the policy afforded him with coverage under the UM provision. We first note that the policy’s UM provision indicates that coverage shall be afforded “in accordance with the laws of the State I[sie] which the accident occurs.” Accordingly, |4we turn to La.R.S. 22:680, entitled “Uninsured Motorist Coverage,” which provides that:

(l)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle designed for use on public highways and required to be registered in this state or as provided in this Section 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, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom....

In Breaux v. Government Employees Insurance Co., 369 So.2d 1335 (La.1979), the supreme court considered whether an insurance policy provided UM coverage to the passenger in a vehicle when the sole cause of the accident was the negligence of the host driver of that vehicle. In denying UM coverage in light of the UM coverage provision, the supreme court explained:

In our view, the intent and effect of this provision [La.R.S. 22:1406(D)(l)(a) ] is plain. A person insured under the uninsured motorist provision of a particular policy delivered or issued for delivery in this state with respect to a motor vehicle registered or principally garaged in this state must establish that he is legally entitled to recover damages [f]rom the owners or operators of uninsured or underinsured motor vehicles in order to obtain coverage thereunder. As to coverage under the uninsured motorist provisions of a particular policy, the statute thus contemplates two distinct motor vehicles: the motor vehicle with respect to which uninsured motorist coverage is issued and the “uninsured or underinsured” motor vehicle.

(Emphasis added).'

Thus, even if insured, a determination we need not reach, Corsey is required to prove that a vehicle, other than the one for which UM coverage was issued, was uninsured or underinsured. See Breaux, 369 So.2d 1335. See also Nall v. State Farm Mut. Auto. Ins. Co., 406 So.2d 216 (La.1981); Insurance Co. of N. Am. v. Patton, 95-732 (La.App. 4 Cir. 12/4/95), 665 So.2d 1312; Lang v. Econ. Fire & Cas. Co., 00-1634 (La.App. 3 Cir. 4/4/01), 783 So.2d 587. Here, Corsey was a passenger in the vehicle for which UM coverage was issued. In light of Breaux and its progeny, which emphasize that the UM statutory scheme requires two distinct motor vehicles for UM recovery, Corsey’s claim under the UM provision fails. It is clear from the jurisprudence that the vehicle on which the UM coverage is issued and the uninsured or underinsured vehicle, must be separate vehicles. He cannot claim that the covered vehicle was uninsured or underinsured. This is true regardless of the fact that the trial court determined that the liability portion of the policy does not provide coverage in this instance due to the immunity afforded by La.R.S. 15:708(A)(l)(b).

This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court granting summary judgment in favor of the defendants, Iberia Parish Government and Commonwealth Insurance Company, is affirmed. All costs of this appeal are assessed against the plaintiff, Jerry Corsey.

AFFIRMED.

      . Louisiana Revised Statutes 15:708(A)(l)(b) provides:
      A prisoner, who participates in a litter abatement or collection program pursuant to this Paragraph, shall have no cause of action for damages against the sheriff conducting the program or supervising his participation therein, nor against any employee or agent of such sheriff, for any injury or loss suffered by him during or arising out of his participation in the program, if such injury or loss is a direct result of the lack of supervision or act or omission of the sheriff or his employee or agent, unless the injury or loss was caused by the intentional or grossly negligent act or omission of the sheriff or his employee or agent. The sheriff shall not be liable for any injury caused by the prisoner, unless the gross negligence or intentional act of the sheriff or his employee or agent was a substantial factor in causing the injury. No provision hereof shall negate the requirement to provide a prisoner with necessary medical treatment as statutorily required.

      . In a previous appeal, Corsey challenged the judgments in favor of the Sheriff and his Deputy. Since these issues have been adjudicated in Ceasar v. Hebert, 05-1195 (La.App. 3 Cir. 4/5/06), 926 So.2d 139, we do not address them here.

      . At the time of the accident, the uninsured motorist provision was designated as La.R.S. 22:1406(D)(1)(a).

      . We note that La.R.S. 22:680(l)(f) also contemplates two distinct motor vehicles for purposes of UM coverage:
      Uninsured motorist coverage shall include coverage for bodily injury arising out of a motor vehicle accident caused by an automobile which has no physical contact with the injured party or with a vehicle which the injured party is occupying at the time of the accident, provided that the injured party bears the burden of proving, by an independent and disinterested witness, that the injury was the result of the actions of the driver of another vehicle whose identity is unknown or who is uninsured or underin-sured. (Emphasis added).


text:
    Jerry CORSEY v. IBERIA PARISH GOVERNMENT.
    No. 06-375.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Mark M. Gonzalez, Scheuermann and Jones, New Orleans, LA, for Plaintiff/Appellant, Jerry Corsey.
    Morris M. Haik, Jr., New Iberia, LA, for Defendant/Appellee, Iberia Parish Government.
    Joseph L. Ferguson, New Iberia, LA, for Defendants/Appellees, Sheriff Sid Hebert, Iberia Parish, Glynn Reaux.
    Noland James Hammond, Alexandria, LA, for Plaintiffs/Appellees, Irving Ceasar, Ronald Foster.
    Court composed of SYLVIA R. COOKS, JOHN D: SAUNDERS, and MARC T. AMY, Judges.
   AMY, Judge.

For disposition of this consolidated matter, see Irving Ceasar, et al. v. Sheriff Sid Hebert, et al., 06-374 (La.App. 3 Cir.11/2/06), 941 So.2d 678.

AFFIRMED.


author: PICKETT, Judge.

text:
    George & Tina VAUGHAN, Individually and on Behalf of Their Minor Son, Austin Vaughan v. SANDERS VISION CENTER AND CHILDREN’S EYE CLINIC, Dr. Craig M. Sanders.
    No. 06-651.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.

      Michael J. Remondet Jr., Scott F. Higgins, Jeansonne & Remondet, Lafayette, LA, for Plaintiffs/Appellants, George & Tina Vaughan, Austin Vaughan.
    Joseph B. Morton III, Lawrence J. Du-plass, Nicole M. Bowen, Duplass, Zwain, Bourgeois, Morton, Pfister & Weinstock, PLC, Metairie, LA, for Defendants/Appel-lees, Chicago Ins. Co., Dr. Craig M. Sanders, Children’s Eye Clinic, Sanders Vision Center.
    Court composed of MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
   PICKETT, Judge.

LThe plaintiffs, George and Tina Vaughan, individually, and on behalf of their minor son, Austin Vaughan, appeal a judgment of the trial court granting judgment in favor of the defendants, Dr. Craig M. Sanders, Sanders Vision Clinic, Children’s Eye Care Center, and Chicago Insurance Company, dismissing their suit with prejudice and at their expense. We affirm the judgment of the trial court.

FACTS

The minor plaintiff in this case, Austin Vaughan, failed a vision screening at his school in St. Martin Parish. A letter was sent home with the child informing the parents of this. Austin’s mother, Tina Vaughan, took her son to Kids Med, a screening clinic for children on Medicaid. Kids Med referred Austin to the defendant, Dr. Craig M. Sanders, O.D. Dr. Sanders first saw Austin on February 3, 2000, when Austin was five years old. Dr. Sanders’ records from that initial visit show that he determined Austin had 20/30 vision in his right eye and 20/400 vision in the left eye, for which he prescribed glasses. Dr. Sanders also diagnosed Austin with hyperopia, astigmatism, and amblyo-pia. He referred Austin to Dr. Rhonda Moser for vision therapy for the amblyopia as he did not offer that treatment. He did not see the child again until October 18, 2001, when he returned for new glasses. This was Austin’s last visit. After consulting with a pediatric ophthalmologist, Dr. Richard J. Piccione, and learning that Austin would never have “normal” vision, the Vaughans filed suit against Dr. Sanders on October 9, 2003, alleging that because of Dr. Sanders’ “mistreatment and misdiagnosis of Austin, [the child] now has diminished and/or incurable farsightedness, astigmatism, and amblyopia in his eyes.”

1 ¿The case was tried to a judge who ruled in favor of the defendant and this appeal followed.

LAW AND DISCUSSION

On appeal the plaintiffs argue that the trial court erred in believing the defendant’s testimony and in finding that the defendant had not breached his standard of care in treating Austin. The trial court’s conclusions on these arguments required it to weigh testimony and evidence, i.e., to make factual determinations. The “gold standard” of appellate review in cases involving factual determinations was set out by the Louisiana Supreme Court in Rosell v. ESCO, 549 So.2d 840, 844(La.1989) (citations and footnote omitted):

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and 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. The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. In applying the manifestly erroneous— clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.
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.

Louisiana Revised Statutes 37:1041, et seq., governs the practice of optometry in this state. Louisiana Revised Statutes 37:1041(0(5) states:

|3“Optometry” means that practice in which a person employs primary eyecare procedures or applies any means other than ophthalmic surgery, for the measurement of the powers and testing the range of vision of the human eye, and determines its accommodative and refractive state, general scope of function, and the adaptation of frames and lenses, including contact lenses in all their phases, to overcome errors of refraction and restore as near as possible, normal human vision. Optometry also includes the examination, diagnosis, and treatment, other than by ophthalmic surgery of abnormal conditions and pathology of the human eye and its adnexa, including the use and prescription of diagnostic and therapeutic pharmaceutical agents.

The terms “diagnostic and therapeutic pharmaceutical agents” are defined as follows:

“Diagnostic and therapeutic pharmaceutical agent” means any chemical in solution, suspension, emulsion, or ointment base, that when applied topically has the property of assisting in the diagnosis, prevention, treatment, or mitigation of abnormal conditions and pathology of the human eye and its adnexa, or those which may be used for such purposes, and oral antibiotics, and oral antihistamines, and certain approved narcotics, when used in treatment of disorders or diseases of the eye and its adnexa.

La.R.S. 37:1041(C)(2)(a).

An optometrist (O.D.) is not a medical doctor (M.D.) and an O.D.’s scope of treatment is limited when compared to that of an ophthalmologist, an M.D. who treats diseases and/or abnormalities of the eye. However, in any medical malpractice action the scope of the burden of proof is the same and is set forth in La.R.S. 9:2794:

A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq., a dentist licensed under R.S. 37:751 et seq., an optometrist licensed under R.S. 37:1041 et seq., or a chiropractic physician licensed under R.S. 37:2801 et seq., the plaintiff shall have the burden of proving:
(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, optometrists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by |4physicians, dentists, optometrists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3)That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.
C. In medical malpractice actions the jury shall be instructed that the plaintiff has the burden of proving, by a preponderance of the evidence, the negligence of the physician, dentist, optometrist, or chiropractic physician. The jury shall be further instructed that injury alone does not raise a presumption of the physician’s, dentist’s, optometrist’s, or chiropractic physician’s negligence.

The “degree of knowledge or skill possessed or the degree of care ordinarily exercised” is commonly referred to as the “standard of care.” In Young v. Mobley, 05-547, p. 5 (La.App. 3 Cir. 3/1/06), 923 So.2d 917, 920-21, this court explained as follows:

Louisiana Revised Statute 9:2794 provides the applicable burden of proof for a plaintiff in a medical malpractice case. That article provides that a plaintiff must establish the following elements by a preponderance of the evidence: (1) the standard of care applicable to the defendant; (2) that the defendant breached that standard of care; and (3) that there was' a causal connection between the breach and the resulting injury. Generally, expert testimony is required to establish the applicable standard of care and whether or not that standard of care was breached. Butler [v. DePuy, 04-101 (La.App. 3 Cir. 6/9/04)], 876. So.2d 259 (citing Davis v. Atchison, 37,832 (La.App. 2 Cir. 10/29/03), 859 So.2d 931). There is an exception to this general rule for cases where the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Thomas v. Southwest La. Hosp. Ass’n., 02-0645 (La.App. 3 Cir. 12/11/02), 833 So.2d 548, writ denied, 03-0476 (La.4/25/03), 842 So.2d 401 (citing Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228). We do not find that this is such a case[....]. Accordingly, we find that Plaintiffs would be required to produce expert testimony to establish the applicable standard of care and a breach thereof. We note that it has jabeen recognized that a plaintiff can establish these things through the testimony of the defendant’s expert witness.

The plaintiffs attempted to establish the standard of care Dr. Sanders owed to Austin and his parents through the deposition of Dr. Stephen O. Sessums (a defense witness) and the testimony of Dr. James Piccione, both pediatric ophthalmologists. Dr. Sessums stated that he had no opinion as to the standard of care for optometrists. Further, he opined that since Dr. Sanders did not treat amblyopia, it was appropriate for him to refer Austin to another optometrist who did. Dr. Pic-cione stated that he had never practiced optometry, but in the medical profession it was a common practice to refer patients to one’s colleagues. He stated that if he didn’t treat a particular condition, he would refer a patient to another physician who did. He admitted that Austin was not wearing his glasses when he arrived for his initial examination and that Mrs. Vaughan told him the glasses were “broken.”

In sum, the record shows that Dr. Sanders made the appropriate diagnosis, that he prescribed glasses and that he referred Austin to a colleague for the treatment of amblyopia. Austin’s parents did not follow up on the referral and did not ensure that Austin wore his glasses as prescribed. Even after consulting Dr. Piccione, Austin’s parents failed to ensure he complied with Dr. Piccione’s course of treatment— copious “patching” and the constant wearing of his glasses.

The trial judge found “that the plaintiffs failed to establish the standard of care for optometrists [and] [e]ven assuming that plaintiffs established the standard of care, ... plaintiffs did not meet their burden of proofing [sic] that Dr. Craig M. Sanders was negligent or breached the standard of care for an optometrist.” We find no clear error in the trial court’s conclusions.

| ^Accordingly, for the reasons stated above, we affirm the judgment of the trial court. All costs of this appeal are assessed against the plaintiffs, George and Tina Vaughan.

AFFIRMED.