text:
    Debra A. WARDEN v. Amy LeBlanc RICHOUX, Gerald A. Richoux, II, State Farm Insurance Company, Allstate Insurance Company and the State of Louisiana through the Department of Transportation and Development.
    No. 06-CA-702.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 27, 2007.
    Rehearing Denied April 2, 2007.

      David W. Oestreicher, II, Attorney at Law, Franklin G. Shaw, Attorney at Law, New Orleans, Louisiana, for Plaintiff/Appellant.
    Charles C. Foti, Jr., Attorney General, Pauline G. Feist, Assistant Attorney General, Litigation Department of Justice, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges EDWARD A. DUFRESNE, Jr., MARION F. EDWARDS, and FREDERICKA HOMBERG WICKER.
   FREDERICKA HOMBERG WICKER, Judge.

12Plaintiff, Debra Warden, appeals a decision of the trial court in which the court rendered summary judgment in favor of defendant, The State of Louisiana through the Department of Transportation and Development (DOTD), and dismissed plaintiffs claims against DOTD in this action for damages arising from an automobile accident. For reasons that follow, we vacate the summary judgment and remand the matter.

This matter began with the filing of a lawsuit by Debra Warden for damages and injuries sustained in an automobile accident that occurred on June 5, 2001 at the intersection of the Westbank Expressway and Central Avenue in Westwego, Louisiana. Plaintiff named Amy Rochoux, Gerald Richoux II, Allstate Insurance Company, State Farm Insurance Company, and DOTD as defendants.

|3The petition alleges that Ms. Warden was driving westerly on the Westbank Expressway at the same time Ms. Richoux was driving north on Central Avenue just before the collision occurred. Ms. Warden entered the intersection and was struck by the vehicle driven by Ms. Richoux. A traffic signal controlled the intersection, which Ms. Warden alleges was defectively maintained and a contributing cause of the accident.

In due course, DOTD filed a motion for summary judgment that was granted by the trial court, dismissing all claims made by Ms. Warden against DOTD. It is that judgment from which this appeal was taken.

In support of its motion for summary judgment, DOTD offered the deposition of Sergeant Collura, who investigated the accident which is the subject of this lawsuit. He testified that he arrived on the scene of the accident about three minutes after he received the call. When he got to the intersection of the Westbank Expressway and Central, he observed Ms. Warden’s vehicle “flipped over.” Sergeant Collura called for medical personal to aid in getting Ms. Warden safely out of her vehicle. The sergeant also testified that when he arrived, witnesses to the accident reported that the traffic signal was green for both the northbound lane on the Expressway and westbound lane on Central. Additionally, both drivers told the officer that they had a green light. Because he was unable to determine whether either vehicle was at fault in the accident, the sergeant did not issue a citation to either driver.

Sergeant Collura testified that the normal procedure when a malfunctioning light is discovered is to report it by calling 911. The sergeant further testified that he could not recall if he had made such a call during the investigation of this accident. He did state, however, that a fellow deputy told him of a prior accident at |4the same intersection caused by two simultaneous green lights in April of 2000, over one year before the accident at issue herein. The sergeant admitted he had no personal knowledge of that incident.

Sergeant Collura also testified that he had heard “citizens in the city” had made statements about problems with the traffic signal light at this intersection. He further testified that he had seen the light stuck on red one way and green the other on prior occasions. However, except for the incident in question, he had never seen the light showing green in both directions.

Sergeant Collura testified that he made “three to five” reports to DOTD about the malfunctioning traffic signal light. On each occasion, a representative from DOTD came out to investigate. The position of DOTD’s investigator was that it was impossible for the light to be green in both directions at the same time, dismissing reports from citizens. Sergeant Collu-ra testified that after “hearing the same excuse from the State,” he wrote a report in January of 2001 about the continuing malfunction of the light. The report was filed with the City of Westwego, and the State. Sergeant Collura further testified that he personally spoke with the engineering department of the State about the malfunctioning light at that time. DOTD dispatched an engineer who reset the light.

Also contained in the record is the police report that supports Sergeant Collura’s testimony regarding the fact that both drivers and a witness to the accident reported the light was green in both directions. Further, the record contains the deposition of two witnesses to the accident. Leroy Schouest, gave a statement at the scene and a subsequent deposition in which he stated that the light was green in both directions. Corey Ardoin, also a witness to the accident, testified that both signal lights controlling the intersection were green at the same time |fiwhen the accident occurred. Mr. Ardoin, who lives nearby and is familiar with the intersection, also testified that that malfunction had happened on prior occasions.

Antonio Chacon, the owner of Oscar’s Auto Service located on the corner of the Westbank Expressway and Central Avenue, gave a deposition in which he testified that he personally observed malfunctions of the traffic signal at that corner. Mr. Chacon stated that he witnessed “some” accidents caused by the light showing a green signal in both directions on at least three occasions. He further testified that he had also seen repair trucks attempting to repair the malfunctioning traffic signal before June 5, 2001, the date of the accident at issue herein. Completing the exhibits from the State to support its motion is an affidavit from Steven Strength, an engineer for DOTD, which stated that no report of a malfunctioning signal light on the corner of the Westbank Expressway and Central Avenue was received on June 5, 2001; a report of a “twisted signal” received on March 28, 2001; and the supplemental and amending petition filed by plaintiff in this matter.

In support of its opposition to the defense motion for summary judgment, plaintiff attached the depositions of Steven Strength and Sergeant Collura, the record of complaints regarding the traffic signal, photos, and assorted documents including a deposition from an expert witness.

In Steven Strength’s deposition, he testified that he has held the position of district traffic operations engineer for DOTD since 1991. His job description includes responsibility for the crews that maintain the traffic signals. His opinion is that it is not possible for both lights to be.green at the same time. Mr. Strength explained that the signal light has a conflict monitor as a backup device which causes the lights to flash in the event of a malfunction while it performs a diagnostic test.

| fiIn connection with Mr. Strength’s .testimony, the plaintiff introduced documents relating to the maintenance and repair of the traffic signal at the intersection of Westbank Expressway and Central Avenue. Those documents date from May of 2000 to December of 2001 and show that on several occasions the light malfunctioned, causing either the signal lights to flash rather than sequence as programmed to go out completely. On several occasions the lights were “stuck” on one color and not changing, although it is not clear from the report on which color the light was stuck. A report on June 10, 2001 shows that a colony of ants had destroyed the insulation on the signal cable causing a total malfunction of the light. It was necessary to splice wired back together to restore the light to its programmed sequence.

Plaintiff has submitted an affidavit from an expert in civil and environmental engineering, specifically in the area of traffic signalization. Dr. Peter Parsonson reviewed the depositions of Sergeant Collu-ra, Antonio Chacon, Steven Strength, Debra Warden and Amy Richoux along with all exhibits. He further reviewed DOTD’s traffic signal inventory sheets, the signal and lighting work order sheets, and other documents presented as evidence in this case. Ultimately, Dr. Parsonson opined that “to a reasonable degree of. engineering probability and certainty, .this kind of malfunction has been known to occur from time to time and that the conflicting greens testified to by the two parties to this crash could well have occurred despite the presence of a conflict monitor in the cabinet.”

LAW

Our review of summary judgments on appeal is de novo using the same criteria applied by the district court in order to determine whether the grant of summary judgment was appropriate. Gautreaux v. Dufrene, 04-970 (LaApp. 5 Cir. 1/11/05), 894 So.2d 385, 387. Decisions as to the propriety of granting the motion 17must be made with reference to the substantive law applicable to the case. Mohsan v. RouleGraham, 05-122 (LaApp. 5 Cir. 6/28/05), 907 So.2d 804; writ den., 2005-1976 (La.2/3/06), 922 So.2d 1184.

La. R.S. 9:2800 provides that, in actions against a public entity, the plaintiff must establish that the thing which caused the damage was in the , custody of the defendant, that the thing was defective because it had a condition which created an unreasonable risk of harm, that defendant had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and that the defect was a cause in fact of plaintiffs injuries. Fuselier v. Matranga, 01-721 (LaApp. 5 Cir. 11/27/01), 803 So.2d 151, 154-155; writ den. 201-3393 (La.3/15/02), 811 So.2d 908. DOTD is a public entity as defined by the above cited statute.

In the matter before us, DOTD has acknowledged that it had custody and control of the traffic signal light at the intersection. Further, DOTD does not challenge the plaintiffs assertion that the light was malfunctioning at the time of the accident. The issue before this Court is whether the trial court erred in finding that there is no factual support to find that DOTD had constructive or actual notice of the defective traffic signal, a necessary element of the claim.

La. R.S. 9:2800 D provides that “constructive notice shall mean the existence of facts which infer actual knowledge.” Constructive notice can be found if the conditions which caused the injury existed for such a period of time that those responsible, by the exercise of ordinary care and diligence, must have known of their existence in general and could have guarded the public from injury. Blount v. East Jefferson General Hosp., 04-407 (La. App. 5 Cir. 10/12/04), 887 So.2d 535, 538.

LThe summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art.C(l). La. C.C.P. art. 966C(2) explains the burden of proof. Generally, the mov-ant bears the burden of proof on a motion for summary judgment. However, when, as in the matter before us, the movant will not bear the burden of proof at trial, he is not required to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

We are also mindful that, although summary judgment is now favored in the law, it is not a substitute for a trial on the merits. Wilde v. Harrell, 05-644 (La.App. 5 Cir. 5/9/06), 930 So.2d 1095; writ den., 2006-1405 (La.9/22/06), 937 So.2d 392.

In the judgment from which this appeal was taken the trial court found that, “the plaintiff has failed to prove that defendant, The State of Louisiana, Dept, of Transportation and Development, had actual or constructive knowledge of a problem (namely, conflicting green lights) with the traffic signal at the Westbank Expressway and Central Avenue on June 5, 2001.”

It is only on a clear showing that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law, that summary judgments are appropriately granted. La.C.C.P. art 966. Summary judgment is not |fla substitute for trial. Smith v. Cajun Insulation Co. 434 So.2d 123 (La. 5 Cir. 1893); writ den. 435 So.2d 444 (La.1983). This Court has recently explained that;

A summary judgment is not appropriate where the trier of fact must weigh conflicting evidence in order to reach a conclusion upon which reasonable men could differ. Summary judgment is not an appropriate vehicle for the disposition of a case, the ultimate decision in which will be based upon opinion evidence or the judicial determination of subjective facts.

(citations omitted)

Hayes v. Western United Ins. Co., 96-556 (La.App. 5 Cir. 11/14/96), 685 So.2d 228, 229-230

We believe that, given the depositions, expert testimony and other evidence submitted in support of and in opposition to this motion for summary judgment, including the testimony of Corey Ardoin and Antonio Chacon that this light had malfunctioned in this manner, with green lights displayed in both directions on occasions prior to this June 5, 2001 accident and the testimony of Antonio Chacon that this type malfunction had caused other accidents prior to this one and that he had seen repair trucks out repairing this light prior to this accident, the trial court inappropriately weighed the evidence and made a finding of fact, thereby substituting this motion for a trial on the merits. Considering the evidence contained in this record, we find reasonable minds could differ on the issue of whether DOTD had constructive or actual notice of the traffic light malfunction. Accordingly, this is a matter that should be presented to a trier of fact at a trial on the merits. Because we find the trial court erred in granting this summary judgment and dismissing plaintiffs action against defendant DOTD, we vacate the judgment from which this appeal was taken and remand the matter to the trial court for further proceedings consistent with this opinion.

JUDGMENT VACATED; MATTER REMANDED.

      . The City of Westwego and its insurer were made defendants in a supplemental and amending petition. However, both parties were subsequently dismissed with prejudice.

      . Ms. Warden settled with all other co-defendants, leaving DOTD as the only remaining defendant.


source: Caselaw Access Project

author: THOMAS F. DALEY, Judge.

license: Public Domain

text:
    Gail TERREBONNE v. Joanne L. CHERAMIE and Dustin M. Cheramie.
    No. 06-CA-843.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 27, 2007.
    Rehearing Denied March 21, 2007.
    Timothy G. Schafer, Shannon R. Bourgeois, Schafer & Schafer, New Orleans, Louisiana, for Plaintiff/Appellant.

      Leonard M. D’Angelo, Frederick A. Miller & Associates, Metairie, Louisiana, for Defendant/Appellee, State Farm Fire & Casualty Company.
    Christoper H. Riviere, Eric L. Trosclair, Thibodaux, Louisiana, for Defendants/Appellants, Joanne L. Cheramie and Dustin Cheramie.
    Panel composed of Judges THOMAS F. DALEY, MARION F. EDWARDS, and CLARENCE E. McMANUS.
   THOMAS F. DALEY, Judge.

^Plaintiff, Gail Terrebonne, appeals the trial court’s grant of summary judgment in favor of defendant, State Farm Fire and Casualty Company, on the grounds that State Farm’s homeowners’ policy issued to Joanne Cheramie, another defendant, provides no coverage for the acts of Mrs. Cheramie and her son, Dustin, which resulted in personal injury to plaintiff, Ter-rebonne. Terrebonne and Cheramie engaged in a physical fight that resulted in personal injury to Terrebonne. State Farm successfully argued that coverage was excluded under one and/or two exceptions for coverage, the first for intentional acts and the second for personal injury that is the result of the willful and malicious acts of the insured.

On appeal, Terrebonne argues that issues of material fact exist that preclude summary judgment. Specifically, she argues that since Mrs. Cheramie testified, both in deposition and at her criminal trial for second degree battery, that she did not intend to injure Terrebonne to the degree she was injured, the exclusion does not apply since the injuries were unexpected, unintended, unforeseen, and | unanticipated. It is also argued that Dustin’s actions do not fit the exclusions for coverage in the policy.

The incident occurred on April 12, 2000. Evidence in the record reveals that Mrs. Cheramie and her son, Dustin, also a defendant, traveled from their home in Galli-ano in Lafourche Parish and arrived uninvited at Terrebonne’s home in Grand Isle, apparently looking for Anthony Cheramie, Joanne’s husband and Dustin’s father. The record shows that Joanne thought that Terrebonne was having an affair with her husband. According to various testimonies in the exhibits, Dustin went up Terrebonne’s steps, stating that he was looking for his daddy and was going to kill him. Joanne, who stayed with the car, also allegedly yelled to Terrebonne, who had opened her front door, that she was a whore and she would kill her. (Earlier in the evening, according to Terrebonne, the Cheramies also called Terrebonne’s home and made similar threats.) Terrebonne closed her door and called the police. The Cheramies left before the police arrived, who then took a description of the Chera-mies’ vehicle. Terrebonne testified that the encounter left her shook up and scared.

Terrebonne testified in deposition that she feared Dustin would find his father and indeed try to kill him, so she left her house in her parents’ truck, and in possession of a handgun, in an attempt to find Anthony and warn him of his wife’s and son’s presence on the island. She drove to Rosethorn Lane, where she thought Anthony might be spending the night at a camp. On Rosethorn Lane the parties encountered each other again. Although testimony varies as to the exact details, it is agreed that Dustin entered Terre-bonne’s pickup truck, put it into neutral, and took the keys out of the ignition so that Terrebonne could not drive it, and took Terrebonne’s handgun.

[sThe two women left their vehicles and started fighting, though according to their testimonies in deposition and at Chera-mie’s criminal trial, no one threw a “first punch.” Initially Terrebonne was on top of Cheramie, with Cheramie biting Terre-bonne’s finger. According to her own testimony at the criminal trial, eventually Cheramie was able to get on top of Terre-bonne and picked up the back of Terre-bonne’s head and hit Terrebonne’s face into the ground at least twice before Dustin pulled her off. At some point Terre-bonne was knocked out and lost consciousness. She claimed in her testimony and statement that it could not have been Joanne, as she knew where Joanne was at that point, and she was blindsided from a different direction. Terrebonne didn’t know if the blow was delivered by Dustin, though she did note that he watched the whole fight from no more than four feet way. The Cheramies and Guilbeau left the scene, and according to their testimony, intended to drive back to Lafourche Parish to give the gun to police there. Joanne testified that as they were leaving, Terre-bonne was conscious, as they saw her standing up.

Neighbors on Rosethorn Lane saw the beating and called police, who responded and found Terrebonne lying injured in the street. They transported her to the hospital, where her various injuries were treated. These injuries included facial cuts and scrapes, a broken nose, loosed and broken teeth, and other broken facial bones. The Cheramies were stopped at the Leeville bridge and held by Harbor Police for the Grand Isle police. Joanne and Dustin were charged with second degree battery of Gail Terrebonne, and were later tried and convicted of those offenses in the 24th JDC.

Terrebonne filed a civil suit against the Cheramies on May 20, 2000. State Farm was added as a defendant by way of the Second Supplemental and Amending | ^Petition filed April 3, 2002. State Farm filed its Motion for Summary Judgment on June 26, 2006. A hearing was held on July 20, 2006. Judgment was rendered in favor of State Farm on August 4, 2006, finding no coverage because of the application of the intentional act policy exclusions. State Farm was dismissed from the case. Both Terrebonne and the Cheramies have appealed this judgment.

Summary judgment will be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The party bringing the motion bears the burden of proof; however, where the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim. LSA-C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to show that he will be able to meet his evidentiary burden of proof at trial, no issue of material fact exists and the moving party is entitled to summary judgment. Id. Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Pizani v. Progressive Ins. Co., 98-225 (La.App. 5 Cir. 9/16/98), 719 So.2d 1086. The decision as to the propriety of a grant of a Motion for Summary Judgment must be made with reference to the substantive law applicable to the case. Sun Belt Constructors, a Div. of MCC Constructors, Inc. v. T & R Dragline Service, Inc., 527 So.2d 350 (La.App. 5 Cir.1988).

The insurer bears the burden of proving the applicability of policy exclusions. Tunstall v. Stierwald, 01-1765, p. 6-7 (La.2/26/02), 809 So.2d 916, 921.

|7State Farm argued in its Motion for Summary Judgment that no issues of material fact remained. It argued that two “intentional act” exclusions within the Cheramies’ policy applied to preclude coverage for Dustin and Joanne’s intentional acts. The State Farm’s pertinent policy language reads as follows:

“Coverage L and Coverage M do not apply to:
a. bodily injury or property damage:
(1) which is either expected or intended by an insured; or
(2) to any person or property which is the result of willful and malicious acts of an insured.”

Thus, there are two exclusions, the application of either one which would exclude coverage.

Application of the second exclusion clearly serves to exclude coverage despite the Cheramies argument that the incident was “spontaneous,” i.e. unplanned and therefore, not a willful and intentional act. The evidence shows that Cheramie and her son traveled from their home to Terre-bonne’s home, and once there, threatened both Anthony and Terrebonne with physical harm. The fact that the encounter took place later that day and in a different location does not change the fact that the Cheramies are the ones who initiated the contact and threatened the victim with physical harm.

In Keathley v. State Farm Fire and Cas. Ins. Co., 594 So.2d 963 (La.App. 3 Cir.1992), the court said:

The second part of the clause in the bodily injury exclusion disallows coverage for bodily injury ... to any person ... which is the result of willful and malicious acts of an insured.
... The term willful has been defined, and this term has been held to apply to conduct which is still merely negligent, rather than actually intended to do harm, but which is so far from a proper state of mind that it is treated in many respects as if harm was intended.
“The usual meaning assigned to this term is that the actor has intentionally done an act of unreasonable character in reckless |Rdisregard of the risk known to him, or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It is usually accompanied by a conscious indifference to consequences, amounting almost to a willingness that harm should follow.” See Prosser, Law of Torts, Section 34, at pages 187-189 (3d Ed.1964). Cates v. Beauregard Electric Cooperative, Inc., 316 So.2d 907 (La.App. 3d Cir.1975); Prosser v. Crawford, 383 So.2d 1363 (La.App. 3d Cir.1980).
The term malicious, also used in the second part of the exclusionary clause, has not been defined or used in any cases like the term “willful”. In order to determine if defendant’s conduct falls under this second prong, we must use the common meaning of the word “malicious”. The general meaning of this term as found in Black’s Law Dictionary 5th ed. is as follows:
“Characterized by, or involving, malice; having, or done with, wicked or
mischievous intentions or motives; wrongful and done intentionally without just cause or excuse. See also Malice; Willful.”

The Keathley court held that under the second part of the exclusionary clause, it was immaterial whether the defendant intended the actual resulting injuries.

This Court has no difficulty in determining that Joanne’s act of smashing Terre-bonne’s face into the ground, and engaging in the physical fight in general, fits the policy definition of willful and malicious acts, and in finding that Terrebonne’s injuries were caused, in whole or in part, by those actions. So, too, would Dustin’s act of striking Terrebonne and knocking her out clearly fall under this exclusionary clause. See also Menson v. Taylor, 99-0300 (La.App. 1 Cir. 4/17/00), 764 So.2d 1079 (A case may be appropriate for summary judgment even when there are differing versions of the events, if the differences are not material.)

The trial court’s grant of summary judgment in favor of defendant, State Farm, is affirmed.

AFFIRMED.

      . The Cheramies were accompanied by another individual, Maloy Guilbeau.

      . A statement given by witness, Ryan Gau-treaux, explains that he saw a man and a woman beating another woman who was on the ground.

      . Guilbeau was also added as a defendant in the First Supplemental and Amending Petition, but is not concerned with the present appeal.


author: PICKETT, Judge.

text:
    HWW ENTERPRISES, INC. d/b/a Worldwide Professional Services v. ENVIRONMENTAL TREATMENT TEAM, L.L.C.
    No. 06-891.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 28, 2007.

      Clayton Davis, Thomas P. LeBlanc, Lundy & Davis, L.L.P., Lake Charles, LA, for Plaintiff/Appellee: HWW Enterprises, Inc., d/b/a Worldwide Professional Services.
    Brandon K. Black, Scott D. Chenevert, Jones, Walker, Waechter, Poitevent, Car-rére & Denegre, L.L.P., Rouge, LA, Jonathan Hadley Fontenot, Attorney at Law, Lafayette, LA, for Defendant/Appellant: CCS Energy Services, L.L.C., formerly Environmental Treatment Team, L.L.C.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

hThe defendant, Environmental Treatment Team, L.L.C. (ETT), appeals a judgment of the trial court making the plaintiffs, HWW Enterprises, Inc. d/b/a Worldwide Professional Services’ (HWW), rule to evict absolute and ordering ETT to vacate the premises at 672 Wakefield Road, Cameron, Louisiana. We affirm the judgment of the trial court.

LAW AND DISCUSSION

The resolution of this case hinges on factual determinations of the trial judge. This court recounted the standard of review to be applied in such cases in Pecot v. Calcasieur-Cameron Hosp. Serv. Dist., 03-1102, p. 1 (La.App. 3 Cir. 2/18/04), 867 So.2d 56, 58, writ denied, 04-719 (La.5/7/04), 872 So.2d 1085:

Inasmuch as this appeal turns on factual determinations by the trial judge, we must review the record using the manifest error-clearly wrong standard of appellate review. That standard was recently reviewed by our supreme court in Cenac v. Public Access Water Rights Assn., 02-2660, pp. 9-10 (La.6/27/03), 851 So.2d 1006,1023:
In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard which precludes the setting aside of a trial court’s finding of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Rosell v. ESCO, 549 So.2d 840 (La. 1989). A reviewing court may not merely decide if it would have found the facts of the case differently, the reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.

In the case sub judice, the trial court dictated extensive reasons for its judgment into the record, setting out the law and the facts in great detail. Our review of the record finds both to be accurate. Accordingly, we adopt the trial court’s reasons for judgment as our own:

| ¡/This ⅛ ⅛ the matter of HWW Enterprises, Incorporated d/b/a Worldwide Professional Services versus Environmental Treatment Team, LLC, No. 10-17219 in Cameron Parish.
This case involves the alleged breach of a sublease agreement between plaintiff, HWW Enterprises, Incorporated and the defendant, Environmental Treatment Team, LLC, ETT.
The sublease commenced on November the 1st, 2003 on a parcel of property located at 672 Wakefield Road, Cameron Parish, Louisiana which was to be used for the operation of a non-hazardous oilfield waste transfer station.
The sublease included provisions] for a rental term of four years and seven months with a rental option of an additional five years. ETT was to pay $84,000 per year in semi-annual payments of $42,000 due on the 1st day of May and the 1st day of November of each year.
Parties also included in the sublease an agreement whereby ETT would rent exclusively from HWW all cranes and equipment they may need for their project. The default provision of the contract or sublease provide[s] that if ETT fails to pay any rentals due or fails to perform any other agreement within the sublease and the default continues for a period of five days after written notice to ETT, then HWW would have the right to cancel the sublease effective 30 days after written notice by certified mail to ETT.
The facts of this case shows that ETT failed to pay the rent due on May the 1st, 2005, and HWW did, however, through Worldwide Professional Services, receive a check from ETT on May 18th, 2005 in the amount of $32,371.86.
The facts show that sometime in January of 2005 ETT began leasing a forklift from a third party lessor, and in March of 2005 began leasing a crane from a third party all contrary to its sublease with HWW.
After this alleged breach by ETT, HWW on June the 1st, 2005, by certified mail, gave ETT written notice of its breach of the sublease agreement for failure to pay rent as well as the lease of equipment from a third party. ETT did nothing to correct the problem within five days of its receipt of HWW’s notice. HWW then gave notice of its cancellation of the sublease agreement effective 30 days from June 21st, 2005.
HWW Enterprises filed the present rule to evict on August the 10th of 2005. HWW argues that it has fully complied with the provisions [of the sub-lease] and prays that the Court grant its rule to evict and order ETT to vacate the premises.
LETT, on the other hand, argues that it has not breached the sublease and have argued certain defenses affirmatively in their answer to the rule of eviction. They request that it be denied.
ETT argues that they should be entitled to a setoff because HWW did not have the necessary equipment they needed which resulted in ETT sustaining damages in the amount of $9,628.14.
Since HWW did not have the equipment needed by ETT, ETT had to pursue equipment through a third party and they should therefore be owed to setoff this amount from the May 1st, 2005 rental rather than under the separate equipment rental agreement.
The testimony in this case shows that the parties had a dispute concerning the rental agreement between them; that is the rental agreement for the equipment which was separate and apart from the sublease agreement.
This dispute, of course, arose earlier than the alleged violation of the sublease and they had a dispute over the sublease agreement and the failure to pay the rental due May the 1st of 2005. There is no dispute that the annual rental was $84,000 [payable] in semiannual payments of $42,000 on May the 1st, 2005 and November the 1st, 2005, that the May 1st payment was not paid until May the 18th of 2005 and that payment was in the amount of $32,371.86 which is $9,628.14 less than the sublease contract called for.
Mr. Rob Mosely, Director of Engineering for ETT, stated that the $9,628.14 was deducted from the rental payment because he felt that they were owed that amount by HWW Enterprises because of the additional cost for the rental of 150-ton crane and 8,000-pound forklift that plaintiff failed to furnish to them.
Mr. Mosely stated that he attempted to talk to Mr. Wilson regarding the payment but could not get him to return his call. Mr. Mosely also stated that he did talk to Mr. Wilson, vice president of HWW on or about May the 1st, 2005 by telephone and offered to either pay the total amount of the rent of $42,000 to the original lessor or the lesser amount to Worldwide Services.
Mr. Wilson, on the other hand, stated that the offer was made to him but he did not agree but rather stated he would have to discuss this with his attorney.
Afer Mr. Mosely did not hear from Mr. Wilson, he decided to send the lesser amount of rent to Worldwide by check dated May the 16th, 2005 without any explanation of the payment or notice or information of how he arrived at the lesser amount.
|4When the check was received, it appears Mr. Wilson referred this check to his attorney, and the attorney returned the check to Worldwide and the check was later deposited.
In deciding this case, the Court has to take into consideration the plain language of the contract [and the] sublease entered into by both parties. This is the law between the parties.... [See Blalock v. Lord, 05-939 (La.App. 3 Cir. 2/1/06), 927 So.2d 1142, writ denied, 06-1624 (La.9/26/06), 937 So.2d 847. The Court also] considered the default provision of Article 9. It reads (as read) that in the event that a material default is committed by [sublessee] at any time in prompt payment of any rental hereunder and such default shall continue for a period of five days after notice of such default is by given by sub-lessor to sub-lessee, or a default is committed by sub-lessee at any time in the prompt payment of any other sum payable by sub-lessee to sub-lessor hereunder and such default shall continue for a period of five days after notice of such default is given by sub-lessor to sub-lessee, or default be made by sub-lessee in due observance and performance of any other covenant, condition or stipulation herein agreed by the sub-lessee and such default continue for a period of five days after written notice thereof is given by sub-lessor to sub-lessee the sub-lessor shall on notice to the sub-lessee, have the right to cancel this lease effective 30 days after written notice provided to the sub-lessee by certified mail.
Th[at] is [the] portion of.... Article 9 that the Court considered. It appears that in this instance HWW followed the provisions of the sublease and declared the sublease terminated.
I also noted that in the article or in the sublease agreement Article 16d [states] that this sublease agreement would not be changed orally or terminated. This sublease agreement apparently, in this instance, the provision reads that the sublease agreement and the exhibits appended hereto and incorporated herein by reference contain the entire agreement between the parties hereto with respect to the subject matter hereof [and] supercedes any prior agreements or understanding between the parties with respect to the subject matter hereof and no change, modification or discharge in whole or in part shall be effective unless such change modification or discharge is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought. This sublease agreement cannot be changed or terminated orally.
ETT tried, in this instance, to orally change the agreement without any acknowledgment of the clear provisions of the sublease. This Court cannot accept the argument, in this particular instance, for a setoff which arises from a separate agreement between the parties concerning the rental of the equipment. The sublease only provides that the sub-lessee would rent all of its needed equipment from the sub-lessor.
|sThe sub-lessee agreed that there was an accord and satisfaction argued — excuse me — that there was an accord and satisfaction in this case and that their eviction should not be granted. Three conditions must present to consider accord and satisfaction: 1) a non-liquidated or disputed claim which in this instance there was, 2) a tender by the debtor, however, there’s some question as to whether the check was a tender by debtor, and 3) an acceptance of the tender by the creditor. [See Anesthesia East, Inc. v. Bares, 594 So.2d 1085 (La. App. 4 Cir.1992).] In this particular instance, the testimony clearly shows the Court that there was no acceptance of the tender by the creditor. In addition, there was a letter from the attorney to the respondent that the amount of funds furnished were not sufficient and they considered them in default of their contract.
Considering the testimony of Mr. Mosely and Mr. Wilson, the Court is of the belief that there was no acceptance of the lesser amount by HWW; therefore, accord and satisfaction does not apply.
ETT also pled and argued that the Court should apply the doctrine of judicial control. ETT argues that it acted in good faith in this particular instance. The doctrine of judicial control is an equitable doctrine by which the Courts will deny cancellation of a lease when the lessee’s breach is of minor importance[,] is caused by no fault of his own[,] or is based on a good faith mistake of fact. [See Corriere v. Bank of Louisiana, 95-3058 (La.12/13/96), 702 So.2d 648.]
In this particular instance, the Court does not find that there was any mistake of fact in this particular instance, and the defendant pursued the route of not accepting the fact that the amount of the rent had not been paid fully and that the contract was not followed to the letter. Considering the facts of this case, the Court refuses to apply judicial control.
After considering the testimony presented in this case, the documents introduced, the evidence, [and] the argument of counsel, the Court is satisfied that the judgment of eviction should be entered in favor of HWW Enterprises and against Environment Treatment Team, LLC. The costs will be paid by Environment Treatment Team, LLC.

Accordingly, for the reasons stated above, the judgment of the trial court is affirmed. All costs of this appeal are assessed against the appellant, Environment Treatment Team, LLC.

AFFIRMED.


author: THIBODEAUX, Chief Judge. GENOVESE, J.,

text:
    SUCCESSION OF Cyril HINDS.
    No. 06-846.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 28, 2007.
    William L. Downing, Baton Rouge, Louisiana, Gerald I. Hebert, Lafayette, Louisiana, for Executors/Appellants — Susan B. Broaddus and Bill Pattillo.
    Lester J. Zaunbrecher, Frank S. Sla-vich, III, Lafayette, Louisiana, for Appel-lees — Helen L. Hinds and Johnny L. Hinds.
    William Hinds, In Proper Person, Many, Louisiana, Legal guardian of Brandon David Reed and Mason Ryan Reed.
    William H. Collier, Ringuet, Daniels, and Collier, Lafayette, Louisiana, for Cindy Hinds Price as parent and legal guardian of Mary Joann Price, Amber Price, Thomas Charles Price, and Cheyanne Price.
    Cy K. Hinds, In Proper Person, Clinton, Mississippi, Parent and legal guardian of Devon Michelle Hinds.
    Kyle Joseph Collette, In Proper Person, Diane Bijeaux, In Proper Person, Breaux Bridge, Louisiana, Legal guardian of Hannah Katherine Odom.
    Windy Hinds Hanks, In Proper Person, Duson, Louisiana, Parent and legal guardian of Ashlyn Grace Hanks and Austin Grant Hanks.
    Christina Hinds, In Proper Person, Lafayette, Louisiana, Parent and legal guardian of Ian Joseph Boutte.
    Danyelle Hinds Dupre, In Proper Person, Scott, Louisiana, Parent and legal guardian of Madison Paige Hinds and Gabrielle Alise Dupre.
    Shane Hinds, In Proper Person, Lafayette, Louisiana, Parent and legal guardian of Sarah Morgan Hinds, Isabele Leigh Hinds, John Wyatt Hinds, and Bode James Hinds.

      Shannon Menard, In Proper Person, Scott, Louisiana, Parent and legal guardian of Hannah Claire Menard and Hudson Cole Menard.
    Shawnette Broussard, In Proper Person, Lafayette, Louisiana, Parent and legal guardian of Brittany Lauren Broussard, Payton Grant Broussard, and Cooper John Broussard.
    Robert St. John, In Proper Person, Lewisville, Texas, On behalf of the unknown children of Robert St. John.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, MICHAEL G. SULLIVAN, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   THIBODEAUX, Chief Judge.

_JjDefendants-appellants, Susan Broad-dus (Broaddus) and Bill Pattillo (Pattillo), in their capacities as co-executrix and co-executor of the Succession of Cyril Hinds, appeal the trial court’s judgment, which annulled the codicil to the will of Cyril Hinds. The judgment invalidated the codicil because it lacked a separate witness attestation clause. They assert that the trial court’s judgment is erroneous because the will and codicil were drafted and executed simultaneously. Thus, they constituted a single testament such that the one witness attestation clause contained therein satisfied the necessary form for a valid notarial will. Alternatively, the appellants seek a reversal of the trial court’s denial of their motion for new trial on this issue.

The judgment invalidating the codicil is reversed. In this ease, the codicil and will were drafted and executed as one document, and the lack of the insertion of a second witness attestation clause following the codicil, when all other formalities ensuring against fraud had been satisfied, did not render the codicil portion of the instrument invalid. The issue of the propriety of the denial of the motion for new trial is moot, since judgment is rendered, ordering the probate of the codicil to the will of Cyril Hinds.

1.

ISSUE

Is a codicil to a notarial will invalid because it does not contain a witness attestation clause, although it was prepared simultaneously with a valid will, specifically referenced therein, and executed in the same ceremony, by the same witnesses and notary, as the will?

_b.II.

FACTUAL BACKGROUND

On March 5, 2003, the testator, Cyril Hinds (Mr. Hinds), instructed his attorney, Gerald Hebert (Attorney Hebert), to prepare a will and a codicil for him. Acknowledging that this was not a usual practice— the simultaneous preparation of a will and a codicil — Attorney Hebert, nevertheless, followed the instructions of his client and prepared the documents to reflect the content relayed to him. The will and codicil each consisted of a single page. The will reads as follows:

I, Cyril Hinds, do hereby make this my last will and testament, revoking all prior wills.
1.
Subject to the attached Codicil, I leave to my wife, Helen Lois Anderson Hinds, the usufruct of all the community and separate property, both real and personal, that I may own at my death.
2.
Subject to the above Codicil and usu-fruct, I leave to my great-grandchildren all of the community and separate property, both real and personal, that I may own at my death.
3.
I name and appoint Bill Pattillo and/or Susan B. Broaddus as independent executors of my estate with full seizin and without bond. I further authorize an independent administration of my estate.
4.
I name and appoint Gerald I. Hebert as Attorney for my executors and estate.
IN WITNESS HEREOF, I have signed on each page and declared this to be my last will and testament in the presence of lathe Notary Public and the witnesses hereinafter named and undersigned, at the date and place first written above.
/s/ Cyril Hinds Testator

Signed on each page and declared by Cyril Hinds, Testator above named, in our presence to be his last will and testament, and in the presence of the Testator and each other we have hereunto subscribed our names on this 2nd day of April, 2003.

WITNESSES:
/s/ Ronald Quebedeaux /s/ Linda Quebedeaux
/s/ Cyril Hinds
Testator
/s/ Marieta H. Fawcett
Notary Public
The codicil to the aforementioned will states:
CODICIL TO THE LAST WILL AND TESTAMENT OF CYRIL HINDS
I leave and bequeath to:
Susan B. Broaddus
The sum of Fifty Thousand Dollars cash ($50,000.00)
Bill Pattillo
The sum of Fifty Thousand Dollars cash ($50,000.00)
/s/ Cyril Hinds
Testator
Signed on each page and declared by me to be the Codicil to my Last Will and Testament dated April 2, 2003.
WITNESSES:
/s/ Ronald Quebedeaux
/s/ Linda Quebedeaux
/s/ Cyril Hinds Testator
/s/ Marieta H. Fawcett Notary Public
| ¿Page 1 of 1 pages
April 2, 2003

Mr. Hinds’s will was executed at his home on April 2, 2003. Present, at his request, were his Mend and business associate, Bill Pattillo (Pattillo), and Ronald and Linda Quebedeaux. The Quebedeauxs had been asked by Mr. Hinds to serve as witnesses. Present also was a notary public, Marieta “Missy” Fawcett (Notary Faw-cett), who had been instructed by Attorney Hebert to take the will and its codicil to the home of Mr. Hinds to oversee the execution of the documents. The documents were executed in Mr. Hinds’s bedroom.

Notary Fawcett gave both documents to Mr. Hinds for his review. Mr. Hinds, who was seated in a chair, looked over the documents and asked that his wife, Helen Hinds (Mrs. Hinds), be called into the bedroom so that she could read the documents or have the documents read to her. Mrs. Hinds read the documents and, according to deposition testimony provided by Pattillo and Notary Fawcett, became upset about the bequests to the great-grandchildren, to the exclusion of their children and grandchildren. Nevertheless, no changes were made and Mrs. Hinds gave the documents back to Notary Faw-cett, who proceeded to give the documents to Mr. Hinds so that he could affix his signatures. Mrs. Hinds and Pattillo left the bedroom while Mr. Hinds began signing the documents. The Quebedeauxs remained present and witnessed the signing of both documents by Mr. Hinds. The Quebedeauxs then signed both documents as instructed by Notary Fawcett. Notary Fawcett was the last to sign all of the documents.

Mr. Hinds died on December 12, 2003. On December 29, 2003, the trial court probated the will and codicil and approved thé testamentary appointments of Pattillo and Broaddus, as co-executors. Eight months later, on September 9, 2004, Mr; Hinds’s widow, along with their son, Johnny L. Hinds, and their grandson, Shane | sHinds filed a petition to annul the will and codicil. The petition alleged that the will and codicil contained multiple irregularities as to form and that the necessary formalities for their execution had not been properly carried out.

The trial court found the will to be valid. The court ruled, however, that the codicil was not in proper form and was, therefore, null and void. The trial court orally explained:

With regard to the codicil, the codicil is a separately titled instrument, unlike — unlike the — the wills in the cases cited by Mr. Downing, which indicated that the testator in those cases added a legacy as an afterthought, but at the same time that that [sic] would not be considered a codicil, but rather just an additional legacy that came after the— maybe after the signature or after the date. This case is a little different because this codicil was always designed to be a codicil. It wasn’t an afterthought. It was designed, prepared, titled and paginated as a separate instrument. And the fact that it was — that it happened to have been executed at the same time as the will makes it no less a codicil. It’s what it was designed to be and that’s what it was. And as a matter of law, it is invalid for lack of an attestation clause. It does not have an adequate attestation clause. The will does. The will’s attestation clause — I know that was an issue raised by you, Mr. Slavich — it’s substantially similar to the — to the statutory attestation clause. But certainly the clause in the codicil is not sufficient and the codicil is not sufficient and the codicil is — is declared invalid.

Broaddus and Pattillo, as co-executors, filed a motion for a partial new trial to address the annulment of the codicil. They argued, that the ruling was contrary to the law and evidence because the court should have considered the will and codicil as one testamentary instrument. Also, they argued that in the interest of justice, a new trial was necessary so that they could be afforded the opportunity to introduce written evidence of Mr. Hinds’s wishes regarding the bequests to Broad-dus and Pattillo, as set forth in the codicil. The trial court denied the motion.

III.

I rlaw and discussion

Is the Codicil Invalid for Lack of a Separate Attestation Clause?

This appeal concerns a notarial testament and a separately-paginated “codicil” that was referenced in the testament and drafted and executed at the same time as that testament. The term “codicil,” is synonymous with “bequest” or “disposition.” Oglesby v. Turner, 124 La. 1084, 50 So. 859 (1909). Historically, a codicil has been considered as an addition to a will and is a part of it. Succession of Ledet, 170 La. 449, 128 So. 273 (1930). The current Civil Code does not speak expressly of the term “codicil,” but does state that any donations mortis causa must be made in one of the forms of testaments authorized by law. La.Civ.Code art. 1570.

Louisiana law recognizes two forms of testaments: olographic and notarial. La. Civ.Code art. 1574. Mr. Hinds executed a notarial testament, which must comply with the following requirements:

Art. 1577. Requirements of form
The notarial testament shall be prepared in writing and dated and shall be executed in the following manner. If the testator knows how to sign his name and to read and is physically able to do both, then:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his testament and shall sign his name at the end of the testament and on each other separate page.
(2) In the presence of the testator and each other, then notary and the witnesses shall sign the following declaration, or one substantially similar: ‘In our presence the testator has declared or signified that this instrument is his testament and has signed it at the end and on each other separate page, and in the presence of the testator and each other we have hereunto subscribed our names this_day of__,__

17In summary, this article requires that a literate testator, such as Mr. Hinds, in the presence of two witnesses and a notary public, signify in some manner that the instrument is his will, that he signed the will on each page, and that he signed it at its end. La.Civ.Code art. 1577(1). Section (2) of Article 1577 refers to the witness attestation clause, and requires the notary and witnesses to sign a declaration in the presence of the testator and each other, attesting to the fact that they witnessed the testator’s declaration and his signing of the will on each page and at its end.

In this case, there is no question that, standing alone, the codicil does not satisfy these requirements because it does not contain the witness attestation clause. It is, however, signed twice by Mr. Hinds— once at the end of the bequests on that page and again at the end of that page under his written declaration that the document is his codicil — and is followed by the signatures of the notary and witnesses.

Based on the facts of this case, we find that the codicil is a valid portion of Mr. Hinds’s will. This is because we are, foremost, guided by the principle which holds that the intent of the testator is the single most important consideration in the interpretation of a legacy. La.Civ.Code art. 1611; see also, Succession of Thibodeaux, 527 So.2d 559 (La.App. 3 Cir.), writ denied, 532 So.2d 151 (La.1988). Moreover, the law requires us to interpret this instrument “in a sense in which it can have effect, rather than in one in which it can have none.” La.Civ.Code art. 1612. These principles have been translated into an analysis that requires us to seek the establishment of exceptionally compelling proof of the non-observance of formalities in these documents’s execution, before we can find that the presumption of the validity of a testament has been overcome. Thibodeaux, 527 So.2d 559. The supreme court, in Succession of Guezuraga, 512 So.2d 366, 368 (La.1987) (citation omitted), addressed the appropriateness of these principles of liberality:

ls[W]e are not required to give the statutory will a strict interpretation. The Legislature adopted the statutory will from the common law- in order to avoid the rigid formal requirements of the Louisiana Civil Code. ‘The minimal formal requirements of the statutory will are only designed to provide a simplified means for a testator to express his testamentary intent and to assure, through his signification and his signing in the presence of a notary and two witnesses, that the instrument was intended to be his last will.’ Succession of Porche v. Mouch, 288 So.2d 27, 30 (La.1973). In accordance with this legislative intent, courts liberally construe and apply the statute, maintaining the validity of the will if at all possible, as long as it is in substantial compliance with the statute. Note, Louisiana’s Statutory Will: The Role of Formal Requirements, 32 La.L.Rev. 452, 453 (1972). In deciding what constitutes substantial compliance, the courts look to the purpose of the formal requirements-to guard against fraud.
Where the departure from form has nothing whatsoever to do with fraud, ordinary common sense dictates that such departure should not produce nullity. It was the intent of the legislature to reduce form to the minimum necessary to prevent fraud. It is submitted that in keeping with this intent, slight departures from form should be viewed in the light of their probable cause.

Consequently, the fact that the document is titled “codicil” and is separately paginated as such, is not solely determinative of whether' it constitutes a separate bequest that would absolutely necessitate that it satisfy one of the requisite forms of a testament in order for it to be valid. See Oglesby, 124 La. 1084, 50 So. 859. Rather, when looking at the totality of the evidence and facts of this case, we found that Mr. Hinds asked to have his bequests set forth in the manner of a will and a separate codicil, despite the fact that there was no apparent necessity for the codicil-because he was drafting a new will to the exclusion of any others, and all of the bequests were being simultaneously made by him. He asked Attorney Hebert to draft these documents, apparently anticipated that they would be executed in a single ceremony, and Attorney Hebert prepared the documents as directed.

| aGiven this evidentiary framework, although these instruments were titled and paginated separately, we find that the will, in all aspects, satisfies the requirements of form for a valid notarial will. See La.Civ.Code art. 1577. It is signed on each page and at its end by the testator and contains two attestations by the testator (one located on the page designated as the last will and testament and one located on the codicil), both of which are witnessed and notarized. It also contains a witness attestation clause, wherein the witnesses and notary, personally, averred to the observance of the formalities for the execution of the will by the testator. We are not concerned that this clause is on the first page of the testament and not on the codicil page. This is because there is no statutory requirement regarding the placement of the witness attestation clause in a testament. Furthermore, we find that the subsequent signatures of the notary and witnesses after Mr. Hinds’s separate attestation on the codicil page, along with the deposition testimony of the witnesses and notary, attesting to their personal observations of Mr. Hinds’s execution of both pages of the will, satisfy any question regarding whether the codicil was duly intended to be a valid portion of the will by Mr. Hinds. See Guezuraga, 512 So.2d 366; see also, Succession of Roniger, 97-1088 (La.App. 4 Cir. 1/14/98), 706 So.2d 1025 (stating that “reason dictates” and “justice demands” that extrinsic evidence be considered, in order to protect the right of persons to make a will that is not defeated by teehni-calitiesXquoting Succession of Boyd, 306 So.2d 687, 689 (La.1975)). We, therefore, find that the codicil to the will of Cyril Hands is valid and should be probated.

JjsIV.

CONCLUSION

The judgment annulling the probate of the codicil to the will of Cyril Hinds is reversed. Costs of this appeal are assessed to plaintiffs-appellees, Helen L. Hinds and Johnny L. Hinds.

REVERSED AND RENDERED.

GENOVESE, J.,

dissents and assigns the following written reasons.

|¶1 respectfully disagree with the majority opinion in this case and dissent for the following reasons:

Simply and plainly, the codicil to Mr. Hinds’s will is invalid. The codicil has no attestation clause as required by La.Civ. Code art. 1577(2). The majority opinion is contrary to this court’s holding in Succession of Slay, 99-1753 (La.App. 3 Cir. 5/17/00), 764 So.2d 102, writ denied, GO-2481 (La.11/13/00), 774 So.2d 144, wherein we held a codicil to be invalid due to a defective attestation clause. The fourth circuit recently declared a notarial testament invalid due to a defective attestation clause and also held that such a defect could not be cured by the attestation of the testator. Succession of Simno, 06-1169 (La.App. 4 Cir. 12/29/06), 948 So.2d 315.

The majority opinion eviscerates La.Civ. Code art. 1577(2) and is contrary to our positive law. It attempts to circumvent the requirement of an attestation clause by implementing a novel “one document” theory, i.e., the codicil and the will in this case are one document, and the attestation clause for the will is sufficient for the codicil as well. A review of both the will and the codicil readily indicates two separate documents. They are titled differently. They are paginated differently. In fact, the codicil expressly states, “Page 1 of 1 pages.” Unquestionably, the will and the codicil are two different documents, both of which must independently satisfy [¡¿heir respective legal requirements. The will does; the codicil does not. The codicil has no attestation clause. The precise language of La.Civ.Code art. 1577(2) states that “the notary and witnesses shall sign the following declaration ...,” which has become known as the attestation clause. The word “shall” is mandatory and not permissive. The majority attempts to sidestep the legal formalities of a codicil as set forth in La.Civ.Code art. 1577(2) by substituting the “intent of the testator,” the “presumption of the validity of a testament,” and the “totality of the evidence.” The law requires a codicil to have an attestation clause. Matters such as intent, presumption, and totality of the evidence do not negate the requirement that the legal formalities set forth in our civil code be followed.

A codicil and a will (testament) are treated the same, and both must satisfy the requirements of law. Oglesby v. Turner, 124 La. 1084, 50 So. 859 (1909); Succession of Ledet, 170 La. 449, 128 So. 273 (1930). Louisiana Civil Code Article 1573 states: “The formalities prescribed for the execution of a testament must be observed or the testament is absolutely null.” In the instant case, the legal requirements for a valid codicil were not met.

Finally, the majority opinion does not set forth the standard of review it implemented in reversing the trial court’s judgment in this case. Though the facts in this case are not really in dispute, we are not to exercise a de novo review. There is nothing in the record to indicate that the trial court erred as a matter of law by strictly interpreting La.Civ.Code art. 1577(2). This court cannot simply substitute its opinion for that of the trial court.

For the reasons set forth above, I would affirm the trial court’s judgment nullifying the codicil of Mr. Hinds.

      . Shane Hinds later withdrew as a petitioner due to the apparent conflict presented by his status as father of one of the great-grandchildren, who, as a legatee, was necessarily named as a defendant in the action.

      . Civil Code Article 1469 provides the following definition of a donation mortis causa: “A donation mortis causa (in prospect of death) is an act to take effect, when the donor shall no longer exist, by which he disposes of the whole or a part of his property, and which is revocable.”

      . The notarial will is the current day version of the statutory will, previously set forth in La.R.S. § 9:2442.


author: THIBODEAUX, Chief Judge.

text:
    Lester EDWARDS v. PROCTER & GAMBLE MANUFACTURING.
    No. 06-1229.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.

      Chris Smith, III, The Smith Law Firm, Leesville, LA, for Plaintiff/Appellant, Lester Edwards.
    Mark Louis Riley, Onebane Law Firm, Lafayette, LA, for Defendant/Appellee, Procter & Gamble Manufacturing.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and MICHAEL G. SULLIVAN, Judges.
   THIBODEAUX, Chief Judge.

| plaintiff-appellant, Lester Edwards (Edwards), appeals the involuntary dismissal of his claim for total permanent disability benefits upon the motion of defendant-appellee, Procter & Gamble Manufacturing Company (Procter & Gamble). This occurred at the end of the presentation of Edwards’s evidence during the trial of his claim. Edwards seeks a reversal of the ruling, asserting that he established by clear and convincing evidence that he was totally and permanently disabled and that the workers’ compensation judge failed to determine the facts prior to rendering judgment against him, as required by La. Code. Civ.P. art. 1672(B). We find no error in the judgment of the Office of Workers’ Compensation and affirm the ruling, dismissing Edwards’s claim.

I.

ISSUE

Did the claimant, seeking permanent total disability benefits, meet the burden of proof necessary to defeat a La.Code Civ.P. art. 1672(B) motion for involuntary dismissal?

II.

FACTUAL BACKGROUND

Lester Edwards, at the age of 57, suffered an on-the-job, lumbosacral injury while moving a heavy object with a coworker on October 31, 1994. Specifically, he was found to have a central disc bulge at L4-5, which was causing stenosis. Due to the injury, he began receiving supplemental earnings benefits (SEB) in the amount of $323.00 per week from his statutory employer, Procter & Gamble.

The back injury was treated for approximately one year by a neurosurgeon, Dr. Babson Fresh (Dr. Fresh), until Edwards was deemed to have ^reached maximum medical improvement. At the time of his November 1995 discharge from regular treatment, Dr. Fresh reported that Edwards’s functional capacity evaluation established that he was capable of performing light-duty work. This restriction, he noted, was well below the current demands of Mr. Edwards’s last job as a pipe fitter, and it was recommended that Edwards undergo vocational training.

In March 1997, while still unemployed and receiving SEB payments, Edwards suffered a stroke that left him with weakness on the left side of his body, as well as memory and cognitive problems. Edwards continued to receive SEB payments until October 31, 2004. Because he had reached the maximum period of time allowed by law — 520 weeks (ten years) — for receipt of the payments, the benefits were terminated. Once the SEB payments were terminated, Edwards sought reinstatement of indemnity benefits; however, this time, he sought permanent total disability benefits, pursuant to La.R.S. 23:1221(2) of the workers’ compensation statute.

A trial on the issue of his entitlement to these benefits was held. Edwards’s casein-chief consisted of his testimony, his wife’s (Mrs. Edwards) testimony, the medical records of Dr. Fresh, and the records of his treatment after the stroke at the Brian Clinic by family doctors, Francis Brian and Greg Brian, from March 1997 to December 2005. After this evidence was presented, Procter & Gamble then moved for the dismissal of Edwards’s claim, arguing that Edwards failed to establish by clear and convincing evidence his inability to perform any work, as required by La. R.S. 23:1221(2)(c). Procter & Gamble also stated that Edwards failed to establish that the stroke, and its effects, were employment-related injuries or conditions for which Procter & Gamble should be held responsible under the workers’ compensation law. The workers’ compensation judge granted the motion, agreeing that Edwards had failed to meet his burden of proof.

| ¡¡Edwards appealed, claiming that the workers’ compensation judge erroneously and prematurely ended the trial. He contends that he established by clear and convincing evidence that he is physically unable to work. He also contends that the workers’ compensation judge failed to determine the facts as required by La.Code Civ.P. art 1672(B), prior to concluding that he had not established a right to the benefits sought. Edwards claims that the evidence presented was sufficient to shift the burden to the defendant and, therefore, the dismissal of his action was improper. We disagree and find no error in the workers’ compensation judge’s judgment which granted the motion to dismiss.

III.

LAW AND ARGUMENT

The evidence .clearly supports the workers’ compensation judge’s determination that Edwards did not meet the burden of proof for establishing his entitlement to total permanent' disability benefits. The workers’ compensation statute provides for permanent total disability compensation for an injured worker if the following standard is met:

(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.

La.R.S. 23:1221(2)(c) (emphasis added).

|4In this case, Edwards established that he suffered a lumbar spine injury in early 1994 and that he was treated, without surgical intervention, by Dr. Fresh for that injury until discharged from his care in late 1995. He further established through Dr. Fresh’s medical records that at the time of his release, he was deemed to have reached a stage of maximum medical improvement and was capable of performing light-duty work. Nevertheless, he testified that prior to his impending stroke, he had not returned to the workforce.

The medical records introduced during the trial by Edwards showed that the stroke occurred in March 1997, leaving him with residual physical and mental injuries. He, along with his wife, offered testimony regarding his mobility limitations, pain, and daily lifestyle limitations suffered after the back injury as well as after the subsequent stroke. Edwards did not present any evidence that would indicate a connection between his prior work-related accident and the stroke.

None of this constitutes clear and convincing evidence of the occurrence of a work-related injury that precludes Edwards from engaging in any type of employment. La.R.S. 23:1221(2); see also, Miller v. Roger Miller Sand, Inc., 94-1151 (La.il/30/94), 646 So.2d 330. This evidence, instead, shows that upon release from treatment for the work-related back injury, he was capable of working, albeit, at a reduced physical capacity. Consequently, he was entitled to SEB payments and has exhausted his entitlement to those benefits. See La.R.S. 23:1221(3). Although the evidence also clearly showed that Edwards later suffered a stroke that resulted in increased disability, he failed to establish a causal link between the stroke and the work-related accident. Based on this lack of proof, Procter & Gamble could not be | ¿required to pay for the increased disability caused by the non-work-related stroke. Miller, 646 So.2d 330.

Moreover, we find no error in the workers’ compensation judge’s consideration of Procter & Gamble’s motion for involuntary dismissal. Article 1672(B) of the Code of Civil Procedure provides that during the bench trial of a matter, the opposing party may move for a dismissal of an action on the ground that, upon the facts and the law, the plaintiff has failed to show any right to the relief sought. The court may, at that point, “determine the facts and render judgment against the plaintiff’ or decline to render judgment until the close of all evidence. La.Code Civ.P. art. 1672(B). In this instance, the workers’ compensation judge orally determined that based upon the evidence presented, as was earlier noted, there had only been a showing by Edwards that as of 1994, he was capable of light-duty work, that he was at MMI status for his low back problem, and that vocational training was recommended. Despite the testimony offered by Edwards ’and his wife as to the physical limitations suffered because of continued low back pain over the years, the workers’ compensation judge correctly noted the insufficiency of these facts to support a claim for total permanent disability benefits. See La.R.S. 23:1221(2). The record supports this proper determination of Procter & Gamble’s motion for involuntary dismissal. Accordingly, we find Mr. Edwards’s argument unpersuasive.

IV.

CONCLUSION

The judgment of the Office of Workers’ Compensation, dismissing the claim for total permanent disability benefits of Lester Edwards, is affirmed. Costs of this appeal are assessed to plaintiff-appellant, Lester Edwards.

AFFIRMED.

      . Supplemental earnings benefits are paid for injury resulting in an employee’s inability to earn wages equal to ninety percent or more of wages at the time of injury, and are legislatively limited to a maximum of 520 weeks. Prior to his back injury, Edwards was employed as a pipe fitter/welder, earning $15.25 per hour.


author: DECUIR, Judge.

text:
    Gilbert MAYO, et al. v. James P. DOHERTY, Jr., et al.
    No. 06-1187.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 2007.
    Alex L. Andrus III, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelou-sas, LA, for Defendant/Appellee, James Paul Doherty, Jr.
    Bruce A. Gaudin, Attorney at Law, Opelousas, LA, for Defendant/Appellee, Successions of Edward Milburn and Virginia Hunt Milburn.
    Aaron Harris, Harris and Harris, Opel-ousas, LA, for Defendants/Appellees, Sandra S. Milburn, Charles W. Milburn.
    J. Arthur Smith III, Attorney at Law, Baton Rouge, LA, for Plaintiffs/Appellants, Bertha Mayo Murphy, Emmaline Mayo Winford, Dennis Mayo, Belinda Potts, Donald Mayo, Laura Mayo, Carrie Mayo White Jones, Leitha Mayo Washington, Gilbert Mayo.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, and OSWALD A. DECUIR and MICHAEL G. SULLIVAN, Judges.
   DECUIR, Judge.

LThe plaintiffs appeal the dismissal of their petition to annul the sale of immovable property after the defendants’ peremptory exception of no cause of action was maintained. For the following reasons, we affirm.

The plaintiffs, Gilbert Mayo and eight others, are heirs of Edward and Virginia Milburn. The defendants are the administrator of the Milburns’ succession and two co-heirs who purchased the property at issue herein. The plaintiffs’ petition alleges that the Milburns have been deceased more than fifty years and their children are also now deceased; the petition further alleges that all of the descendants of the Milburns and their children are heirs to their succession. The defendants estimate the number of heirs at over one hundred.

During the ongoing administration of the Succession of Edward Milburn and Virginia Hunt Milburn, the Administrator, James P. Doherty, Jr., petitioned the court for approval to sell a certain piece of immovable property to two co-heirs, Charles and Sandra Milburn. The plaintiffs refer to an act of sale dated August 25, 2000, evidencing the sale of the property for $32,000.00. The plaintiffs contend that because they did not receive actual notice of the impending sale, their due process rights were violated and the sale must be annulled. The plaintiffs’ petition was filed nearly three years after the sale took place.

In response to the petition, the defendants filed three peremptory exceptions. The defendants first except to the non-joinder of indispensable parties. They argue that when an attempt is made to set aside the sale of land by a succession representative, all of the heirs of the decedent are indispensable parties because they all have an interest in the outcome of the case. The defendants next assert that the plaintiffs’ petition fails to state a cause of action, as the pertinent articles of the Code of Civil Procedure, Articles 3281 and 3282, do not require actual notice for the | ^private sale of succession property. Finally, the defendants reference the plaintiffs’ failure to notify the attorney general of their petition, in which the unconstitutionality of Article 3282 is alleged, in accordance with La.Code Civ.P. art. 1880.

The trial court maintained the exception of no cause of action and granted the plaintiffs fifteen days to amend their petition to state a cause of action. The remaining exceptions were dismissed as moot. When the plaintiffs failed to amend their petition as instructed, the suit was dismissed with prejudice and this appeal followed.

The plaintiffs argue due process requires that they, as heirs, receive actual notice of the sale of succession property.

In support of this contention, the plaintiffs rely on Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 103 S.Ct. 2706, 2712, 77 L.Ed.2d 180 (1983), which held: “Notice by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect the liberty or property interest of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.” The plaintiffs also cite the recent case of Lewis v. Succession of Johnson, 05-1192, p. 15 (La.4/4/06), 925 So.2d 1172, 1181, which explained that “each co-owner is entitled to individual written notice of delinquent taxes because alienation by tax sale of immovable property, owned in indivisión, without notice to each co-owner deprives the owners of due process.”

The cases cited by the plaintiffs involve tax sales and the resulting loss of property. This is not such a case. What distinguishes this dispute from the cases cited by the plaintiffs is the simple fact that the private sale of succession property to Charles and Sandra Milburn did not adversely affect or in any way alienate the property interests of the plaintiffs. Their interest in the subject property was simply | sconverted to cash, i.e., a portion of the $32,000.00 sale price. The defendants observe that the administrator acted under court supervision at the time he sold the property in question and that he was subject to a court order setting the minimum price for the sale. Accordingly, the plaintiffs’ interest, indeed the interest of all the heirs, was protected, as the administrator worked to manage the property of the succession in accordance with all legal requirements.

The plaintiffs do not allege that the administrator failed to comply with the requirements for a private sale. They do not allege that a petition was not properly-filed which set forth the proposed price, conditions, and reasons for the sale, in accordance with La.Code Civ.P. art. 3281. Nor do the plaintiffs assert that publication of notice of the petition for private sale was not carried out in accordance with La. Code Civ.P. art. 3282. What the plaintiffs do allege is that they have been deprived of their property without due process. To the contrary, the facts asserted in the petition defy this characterization and state no cause of action on which relief can be granted. The plaintiffs have not alleged that they have been deprived of their property. Consequently, the dismissal of the petition must be affirmed.

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the plaintiffs.

AFFIRMED.