author: COOKS, Judge.

text:
    Cheryl BENNETT v. SOILEAU ANIMAL HOSPITAL.
    No. 06-597.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Rehearing Denied Dec. 20, 2006.
    Marshall J. Simien, Jr., Simien Law Firm, Lake Charles, LA, for Plaintiff/Ap-pellee, Cheryl Bennett.
    Frank R. Whiteley, John V. Quaglino, Juge, Napolitano, Guilbeau, Ruli, Frieman & Whiteley, Metairie, LA, for Defendant/Appellant, Sears, Roebuck & Company-
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   COOKS, Judge.

| defendant, Soileau Animal Hospital, appeals the denial of its Exception of Prescription by the Office of Workers’ Compensation. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Cheryl Bennett worked for Soileau Animal Hospital from August 1992 through November 1993. Her duties included cleaning pens, feeding animals, and grooming/bathing animals. To bathe the animals, Ms. Bennett was required to dip them in various pesticides. Ms. Bennett testified, through the course of the day, her clothing would become soaked from various pesticides.

Ms. Bennett claims she began developing health problems during her employment at Soileau Animal Hospital. She testified she eventually became physically weak and began suffering memory loss. Although she began to gradually experience these health problems, at the time she did not suspect they were caused by her employment.

Ms. Bennett first sought treatment for her alleged symptoms on October 2, 1995, with Dr. Andrew Campbell, a toxicologist located in Houston. During this time, Ms. Bennett was a plaintiff in breast implant litigation and learned of Dr. Campbell at a seminar in conjunction with that litigation. Dr. Campbell diagnosed her as suffering from a series of autoimmune system disorders, chronic fatigue syndrome, and multiple chemical sensitivity. Dr. Campbell believed Ms. Bennett’s problems were related to her breast implants, although Defendant argues Dr. Campbell did advise Ms. Bennett her problems could be related to her working with pesticides. Ms. Bennett eventually had her breast implants removed in 1998.

Despite the implant removal surgery, Ms. Bennett continued to experience 12health problems. She testified that while reading the Houston Chronicle’s December 6, 2001 edition she came upon an article discussing how the U.S. Environmental Protection Agency was going to phase out Dursban, the most widely used pesticide in the country, and one used extensively in her work at Dr. Soileau’s clinic. The article discussed how certain pesticides, including Dursban, caused human health risks.

After reading the article, Ms. Bennett informed Dr. George Matewere of her concerns. Dr. Matewere ordered an MRI of Ms. Bennett’s brain, which was taken on March 27, 2001. The MRI revealed a deterioration of the myelin sheath of nerve tissue. Ms. Bennett then saw Dr. Thomas Calendar, a toxicologist, who believed her current medical problems could have been caused by or related in part to her exposure to pesticides at Soileau Animal Hospital.

Ms. Bennett then filed suit against Defendant in state district court on June 5, 2001, alleging that Dr. Soileau intentionally exposed her to chemicals whose dangerous propensities he either knew or should have known; thus, he failed to provide her a safe working environment.

Shortly thereafter, on August 28th, 2001, she filed the present claim in the Office of Workers’ Compensation seeking medical treatment and wage benefits. She asserted she contracted an occupational disease while engaged in the course and scope of her employment with Soileau Animal Clinic. On April 30, 2004, the employer filed an Exception of Prescription alleging claimant’s suit had prescribed pursuant to the time limitation for occupational disease claims set forth in La.R.S. 23:1031.1(E). The trial court, after reviewing the evidence, determined that Ms. Bennett did not have knowledge that her injuries were occupationally related until December 6, 2000, and her suit filed on August 23, 2001 was not prescribed.

|sThe employer lodged this appeal, contending the trial court erred as a matter of law in denying the Exception of Prescription because Ms. Bennett’s claim for occupational illness was not filed within six months of the time she knew or had reasonable grounds to believe her disease was occupationally related.

ANALYSIS

Initially, the Defendant argues the trial court incorrectly applied a one-year prescriptive period rather than a six-month prescriptive period. La.R.S. 23:1031(E), as it existed at the time Ms. Bennett was allegedly injured, provided:

E. All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:
(a) The disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.

Subsection (E) of La. R.S. 23:1031.1 was amended by Acts 2001, No. 1189, § 1, and now provides a one-year prescriptive period for notice of occupational disease claims. This amendment became effective June 29, 2001.

Louisiana Civil Code article 3462 provides that prescription is interrupted when an action is commenced in a court of competent jurisdiction and proper venue. In regard to a workers’ compensation claim, La.R.S. 23:1031.1(E) provides:

E. All claims for disability arising from an occupational disease are barred unless the employee files a claim with his employer within six months of the date that:
(a) The disease manifested itself.
(b) The employee is disabled from working as a result of the disease.
L(c) The employee knows or has reasonable grounds to believe that the disease is occupationally related.
Notice filed with the compensation insurer of such employer shall constitute a claim as required herein.

In LaCour v. Hilti Corp., 98-2691 (La.5/18/99), 733 So.2d 1193, the Louisiana Supreme Court concluded that La.R.S. 23:1031.1(E) requires only that notice be given of an occupational disease to the employer within the six-month period rather than the actual filing of a claim with the Office of Workers’ Compensation. The LaCour court stated as follows:

[La.R.S. 23:1031.1(E)] requires that the employee file a claim with his employer within six months of the date that the disability commences or the claim is barred. The statute does not say that a formal disputed claim must be filed with the Office of Workers’ Compensation within the six month period. In Duplechain v. Gulf States Utility Co., 468 So.2d 1386, 1389 (La.App. 3d Cir.1985), the third circuit concluded that the language of the statute suggests that its time limitation applies only to the “notification” of an employer of an occupational disease rather than the actual filing of a petition to recover compensation benefits. It reasoned:
From a liberal reading of this phrase, as we are mandated to do in interpreting the workmen’s compensation laws, it appears that the statute does not contemplate a lawsuit against an employer but merely the notification of such employer. This interpretation is supported by another stipulation of the statute which states that the notification of the employer’s compensation carrier will constitute compliance with the notification requirements of 23:1031.1.
We agree that La. R.S. 23:1031.1(E) requires only that notice be given to the employer or to the compensation insurer within six months of a determination that the claimant is disabled as a result of an occupational disease. What constitutes notice will depend upon the facts and circumstances of the particular case. In Edwards v. Sawyer Industrial Plastics, 26,320 (La.App.2d Cir.12/07/94); 647 So.2d 449, the employee wrote a letter to his employer stating that while in the workplace, he sustained total disability from working. In Winzor v. Augenstein Construction Co., Inc., 378 So.2d 470 (La.App. 3d Cir.1979), writ denied, 379 So.2d 1103 (La.1980), the employee was visited by his job superintendent while he was hospitalized for tests. At that time, the employee told his superintendent that he- had a lung disease and would not be able to return to work as a welder due to [ ssmoke and dust on the job. In Riley v. Avondale Shipyards, 305 So.2d 742 (La.App. 4th Cir.1975), plaintiffs notification of the employer’s insurance department of his retirement because of disability was sufficient to satisfy La. R.S. 23:1031.1(E). In the instant case, we find that the notice requirement was satisfied. Hilti was aware that Mr. LaCour was suffering from carpal tunnel syndrome and ' pain in both elbows for years and that such conditions were related to his work duties. In November of 1995, Hilti wrote a letter to Mr. LaCour indicating that his short-term disability benefits were about to expire and he would be terminated if he did not return to work on January 11, 1996. In letters dated December 28,1996 and January 31,1996 from Dr. Gosey to Sun Life, Hilti’s disability insurer, Dr. Gosey stated that Mr. LaCour’s previous employment, specifically the demonstration of vibrating machines, caused Mr. LaCour’s problems to his elbows to begin with and he should not return to his employment because it would cause further destruction and deterioration to his elbows. These letters state that Mr. LaCour is disabled as a result of his employment. We find that these events served as timely notification to Hilti that Mr. LaC-our was disabled as a result of an occupational disease so as to satisfy La. R.S. 23:1031.1(E).

Id. at 1196-97.

In the present case, Ms. Bennett filed a tort suit in district court on June 5, 2001, (within six months of the December 6,2000 article) alleging that Dr. Soileau intentionally exposed her to chemicals whose dangerous propensities he either knew or should have known, and that he failed to provide her with a safe working environment. Defendant answered the suit. This was more than sufficient to meet the notice requirement of La.R.S. 23:1031.1(E), and would interrupt prescription.

Defendant also contends the workers’ compensation judge’s conclusion regarding the date Ms. Bennett had knowledge of the alleged occupational disease for purposes of La.R.S. 23:1031.1(E) was fatally flawed. The workers’ compensation judge gave the following reasons for concluding the prescriptive period began to run on December 6, 2000:

The law, specifically Louisiana R.S. 23:1031.1(E), clearly states that a claim is prescribed unless it is filed within one year that, one, the disease manifests itself; two, the employee becomes disabled as a result of the disease; and, three, and the employee knows or has reasonable grounds to believe that the disease is occupationally related. The | (-jurisprudence says that all three of these factors must exist for prescription to run.
There’s no controversy regarding the first two issues. The disputed issue is whether she filed her claim within one year of the date that she knew or had reasonable grounds to believe that her disease was occupationally related. Testimony was that Ms. Bennett worked for Dr. Soileau and his animal clinic on two occasions, the first as a surgical assistant; the second time she worked from August 1992 to November of '93 as an animal groomer where her duties included bathing the animals and dipping them in various pesticides. Ms. Bennett testified that on a daily basis her clothing was soaked with the pesticide chemicals used and eventually her hand started breaking out. Eventually she grew physically weak and began suffering memory loss and felt skin crawling sensations. Her attorney argues that unbeknownst to her, she was suffering from extensive dermal and inhalation exposure to the chemical nerve agents which are used in the pesticide which had only recently been banned. Although she began to gradually experience these health problems, she said she never suspected at the time that they were caused by her employment.
To explain her conclusion in this regard, her attorney introduced evidence regarding the claimant’s extensive and lengthy medical history. She began seeing Dr. Andrew Campbell, a Houston toxicologist, and he diagnosed Ms. Bennett as suffering from a series of autoimmune system disorders, chronic fatigue syndrome, and multiple chemical sensitivity. He concluded that her physical impairments rendered her permanently disabled. However, apparently Dr. Campbell felt that Ms. Bennett’s symptoms were related to her having breast implants since 1994. He opined that she suffered from silicone induced immune dysfunction syndrome. Dr. Campbell ordered blood tests for Ms. Bennett which showed elevated levels, particularly her liver enzymes. Follow up tests were taken a year later and showed normal blood levels, although her breast implants had not yet been removed. When asked to explain this phenomenon, Dr. Campbell said that, quote, “Maybe it wasn’t the silicone. Maybe it was the pesticides”, end of quote.
My understanding of Dr. Campbell’s comments is that he was suggesting that perhaps her one time elevated blood levels were related to her working around pesticides. I frankly cannot see how such an observation standing alone can give rise to a presumption that Ms. Bennett should have reasonably known her illness was related to her occupation. This is especially true since her blood levels returned to normal. The record is clear that she was seeing Dr. Campbell for a suspected autoimmune disorder caused by breast implant disease. Diagnosis would have made it quite reasonable that she was especially susceptible to environmental exposures; and once those sources of exposure were removed, the effects would disappear. However, although Ms. Bennett’s blood work went back to normal, her symptoms remained and her illnesses, however, did not subside.
|7I cannot see where in the record Dr. Campbell expressed any specific concern about her having been around pesticides, and he did not discuss any hazards associated with those pesticides and clearly he did not deviate from his focus on breast implant disease and autoimmune disorders caused by silicone. Doctors she saw subsequent to Dr. Campbell apparently kept saying that there was nothing wrong with her. Counsel argues that despite her health issues, Ms. Bennett had no independent reason to believe her illness was caused by pesticide exposure. In fact, her treating psychologist, after comprehensive blood testing, gave her reason to believe that her breast implants were the sole cause of her problems.
Ms. Bennett says some time thereafter, while reading the “Houston Chronicle”, she saw an article on December the 6th dealing with how certain pesticides caused human health risks and discussing how the U.S. Environmental Protection Agency would begin to phase out Dursban, the most widely used pesticide in the country, and one used extensively in her work at Dr. Soileau’s clinic.
Ms. Bennett informed her family physician, Dr. George Matewere, of her suspicions. He ordered an M.R.I. of Ms. Bennett’s brain, which was taken on March the 27th of 2001 and showed multiple areas of abnormal signal appearing as a removal of the myelin sheath of nerve tissue.
On April the 24th, 2001, Ms. Bennett was seen by Dr. Thomas Calendar, a Lafayette toxicologist, who said that, quote, his medical opinion was that some of her current medical problems could have caused by or contributed to by her workplace chemical exposures at the veterinary clinic.
Ms. Bennett then filed suit against the defendant in state district court on June the 5th, 2001, alleging, among other things, that Dr. Soileau intentionally exposed her to chemicals whose dangerous propensities he either knew or should have known, failing to provide a safe working environment. Shortly thereafter, on August 28th, 2001, the present action was filed here with the Office of Workers’ Compensation. Both actions were filed within one year of the time Ms. Bennett learned of the phase out of the pesticides used by her in Dr. Soi-leau’s animal clinic.
The evidence shows clearly that Ms. Bennett filed this claim within one year of December 6, 2000, the time she discovered pesticides she worked with at Dr. Soileau’s animal clinic were being banned for causing extensive neurological problems. Only then, I think, did she have reasonable grounds to believe her injuries were occupationally related.
For these reasons, the defendant’s exception of prescription is denied.

|sWe find the trial court did not err in finding the earliest date Ms. Bennett had reasonable grounds to trigger the running of prescription under La.R.S. 23:1031.1(E) was on December 6, 2000. Defendant argues that based upon her conversation in 1997 with Dr. Campbell that pesticides could be related to her health problems, Ms. Bennett gained knowledge on that date sufficient for prescription to begin running. The WCJ specifically discussed this argument, and concluded the medical record did not show Dr. Campbell expressed specific concerns about her having been around pesticides, and he did not depart from his primary focus that her problems were caused by breast implant disease. The WCJ’s finding that prescription began to run on December 6, 2000 was well within his discretion and not erroneous.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. Costs of this appeal are assessed to Defendant-Appellant, Soileau Animal Hospital.

AFFIRMED.

Amy, J., dissents and would grant the exception of prescription.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    Charles C. BODIE v. Tammy R. HARVEY.
    No. 06-845.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Rehearing Denied Dec. 20, 2006.
    V. Ross Cicardo, Cicardo Law Firm, Lafayette, LA, for Plaintiff/Appellant, Charles C. Bodie.

      John K. (Mike) Anderson, Leesville, LA, for Defendant/Appellee, Tammy R. Harvey.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

LThe plaintiff, Charles C. Bodie, appeals the trial court’s judgment awarding joint custody, but naming the defendant, Tammy R. Harvey, the primary domiciliary parent. For the following reasons, we reverse and render.

PROCEDURAL AND FACTUAL BACKGROUND

Bodie and Harvey were never married, but had one son, Wesley, who was born in 1999. Bodie filed a petition for custody in April 2002, urging that Harvey’s lifestyle was unstable and that it was in the best interests of Wesley that he be awarded sole custody. In an August 2002 judgment, the trial court ordered that Bodie and Harvey would have joint custody of Wesley. That judgment set forth the visitation (alternating weekly) and holiday schedules and set forth that “neither party shall have members of the opposite sex overnight nor as paramours.”

In February 2004, Bodie filed a rule for contempt, attorney fees, custody and joint custody implementation plan urging that he be named the primary domiciliary parent because Harvey was residing in the home of her boyfriend. In an answer and reconventional demand, Harvey claimed that Bodie was fully aware that after she and Bodie stopped living together in November 2003, she began living with her boyfriend, Tommy Bolton, in January 2004. In her answer and reconventional demand, Harvey urged that a change of circumstances warranted that she be designated the domiciliary custodial parent.

Following a hearing on the rule to modify a consent decree in August 2005, the trial court found that there had been a change in circumstances since the ^August 2002 judgment, primarily relating to Wesley’s social and educational delays which the trial court attributed to “inconsistent and divergent parenting approaches” used by Bodie and Harvey. The trial court then considered the factors enumerated in La.Civ.Code art. 134 and found that it would be in Wesley’s best interest if joint custody was awarded with Harvey being named the primary domiciliary parent with visitation by Bodie on alternate weekends and holidays which coincide with the schedule of Wesley’s half-brother, Race. A judgment was rendered in December 2005, which also found Harvey in contempt of court for residing in open concubinage with a paramour while she had custody of Wesley, but that her subsequent marriage purged herself of any continuing contempt. She was ordered to pay Bodie $1,000 in attorney’s fees. Bodie now appeals.

ISSUES

Bodie assigns as error the trial court’s failure to designate him primary domiciliary custodial parent and the trial court’s changing the existing equally shared custody order to alternating weekends and holidays conditional on a visitation schedule of a half-brother, which is not part of the record.

DISCUSSION

The law is well settled that the trial court’s finding with regard to custody matters is entitled to great weight on appeal as it is in a superior position to assess what the child’s best interests- are based on its consideration of the testimony of the parties and witnesses. AEB v. JBE, 99-2668 (La.11/30/99), 752 So.2d 756; Miller v. Miller, 01-356 (La.App. 3 Cir. 10/31/01), 799 So.2d 753. Therefore, upon review, the findings of the trial court in custody matters are afforded great weight and lathe trial court’s determination will not be disturbed absent a showing of abuse of discretion. Thibodeaux v. Thibodeaux, 00-82 (La.App. 3 Cir. 6/1/00), 768 So.2d 85, unit denied, 00-2001 (La.7/26/00), 766 So.2d 1262.

In all child custody cases, the primary consideration is the best interests of the children. La.Civ.Code art. 131. Numerous factors are at the trial court’s disposal in making this determination and are set forth in La.Civ.Code art. 134. They include:

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

However, the trial court is not limited to considering the factors enunciated and should consider the totality of the facts and circumstances in each particular situation. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, unit denied, 96-1650 (La.10/25/96), 681 So.2d 365.

Because the parties stipulated to an agreement without the court considering parental fitness, the movant had to prove, in order to modify the existing custody arrangement, that 1) a material change in circumstances had occurred, and 2) that the new custody arrangement would be in the best interest of the child. See Lincecum v. Lincecum, 02-1522 (La.App. 3 Cir. 3/6/02), 812 So.2d 795.

EVIDENCE

Bodie’s central argument rests on the question of the moral fitness of Harvey because she had lived with Bolton in open concubinage. It is an interesting argument to make considering that Bodie did the very same thing with her for multiple years. Bodie further complained that Harvey refused reasonable requests for visitation at times when Wesley was not in his custody, and that Harvey refused to allow telephone communication between him and his son.

Harvey testified that she and Bolton cohabitated before marriage while she and Bodie were doing the week at a time custody arrangement in direct contravention of the court’s orders. She further testified that she is thirty-four years old and has been married five times including the marriage to Bolton. She testified that she has two other sons from previous relationships.

Harvey then discussed some of the problems Wesley is having in school. She stated that she and Bodie jointly agreed that Wesley should repeat kindergarten. Harvey stated that she signed Wesley up to play baseball because he expressed a |fidesire to play, but that she did not ask Bodie if he approved. She testified that she does not work and that she and Bolton live in a three-bedroom house. Harvey admitted that she and Bodie have had problems communicating regarding raising Wesley. She stated that they do not agree in the area of education and discipline. Harvey testified that she did not feel that Wesley was progressing in school because he has no stability or consistency with the back and forth schedule. She stated that both she and Bodie are close enough to Wesley’s elementary school to get him back and forth. Harvey testified that Bodie does not discipline Wesley at all— she stated that he gets his way and receives anything that he asks for. She further stated that she does not approve of Bodie allowing Wesley to ride big tractors and four-wheelers by himself and allowing him to ride in Bodie’s work vehicle, a Tom’s delivery truck, unrestrained. However, she admitted to allowing Wesley to ride in a vehicle unrestrained because he would scream and cry. She further testified that she did not approve of Wesley sleeping in the same bed with Bodie or the fact that Bodie takes Wesley to doctors other than his regular pediatrician. She further stated that she and Bodie essentially disagree on every manner of parenting Wesley and that they have since he was born.

Rebecca Dyer, an expert licensed clinical social worker, testified that she was ordered by the court to meet with Bodie, Harvey, and Wesley. She stated that she met with all three of them on March 15, 2005, with Bodie and Wesley on March 29, Harvey and Wesley on April 5, and Bodie and Wesley on April 12, before submitting her May 20, 2005 report to the court. She testified that Wesley has speech and language problems. She stated that Harvey is the more structured parent while Bodie the more relaxed one. She testified that Harvey would correct her son’s language errors and insist that he use proper manners. She said that Wesley showed affection | (¡toward both parents.

Dyer stated that the benefits of living in the Bolton home were a more family-oriented atmosphere. She testified that Wesley had a very close relationship with his half-brother and that he talked about him often. On the other hand, in his father’s home, Wesley has a very close relationship with his paternal grandmother and is able to receive more one on one attention. He also has friends that reside near his father’s home.

Dyer further testified that she found no deleterious effects due to the week-to-week arrangement that had been in place. She stated that she felt a change would be detrimental to Wesley because he is close to both parents and it would be difficult for him to make the changes. She said that it would be in his best interest to maintain the week-to-week arrangement. Dyer futher testified that Bodie was lacking in some parenting skills, but that she had worked with him in that regard and that he had progressed. She further testified that she spoke to Wesley’s teacher who stated that there was no difference in behavior or academic performance from week to week. She again stated that she felt the risk of a detrimental effect to Wesley was greater if the present situation was changed as opposed to maintaining the current week-to-week arrangement.

On cross-examination, Dyer testified that Harvey had been aware of Wesley’s academic problems and tried to enroll him in Head-Start and other programs as early as three years old, but that Bodie refused. She said that Harvey told her that Bodie wanted him to be home schooled. She further testified that Bodie admitted to not properly restraining Wesley and allowing him to ride the four-wheeler by himself. However, she said that he understood that he must be restrained and supervised. She further identified his weaknesses as problems setting limits with Wesley and overjmdulging7 him.

Bodie testified that he and Harvey have had a long history of poor communication regarding Wesley. He stated that she never informed him of anything relating to Wesley’s medical care or education. However, he said that things have improved since early 2004, when he filed the rule. Bodie further testified that he has since become very involved in Wesley’s education and his IEP meetings at the school. Bodie further testified that he enrolled Wesley in a program at Sylvan Learning Centers to assist him with his academic delays. He stated that Wesley goes to Sylvan on Tuesdays and Thursdays when he has Wesley for the week.

Introduced into evidence were several letters sent certified mail that Bodie has written to Harvey regarding assisting Wesley with his education and a request that he be allowed to attend a birthday party, but Bodie stated that Harvey refused to let him go and offered no reason why. Also offered into evidence was a complaint filed by Bodie with the Vernon Parish Sheriff Department because Harvey was supposed to meet him at the Sheriff’s office to exchange custody of Wesley on Christmas day as ordered by the court, but she did not show up.

Bodie further testified that the weeks he has Wesley he brings him to and from school. He stated that he lives five or six miles from Harvey’s house and about ten minutes from the school. On cross-examination, Bodie admitted that he engaged in just what he is now complaining of — that is living with Harvey while they were not married when court orders by the father of Harvey’s other child prohibited it.

On cross-examination, Bodie admitted allowing Wesley to ride in the front seat unbelted and that he was in a car accident. He also admitted allowing Wesley to ride the four-wheeler buy himself. However, he stated he no longer allows Wesley to ride in his Tom’s delivery truck and that he has never ridden the tractor by phimself. Bodie further testified that he has learned from his counseling sessions with Dyer that he must communicate with Harvey and put aside any past negative feelings, and has improved his parenting skills by not indulging him and disciplining him when he misbehaves. He also admitted that Wesley has a very close relationship with his half-brother, Race. There was extensive discussion in Bodie’s testimony as to which particular details of various aspects of Wesley’s life, i.e. doctor’s appointments, school-related activities, he was kept informed of as well as letters sent by both Harvey and Bodie and whether or not Harvey discussed things with Bodie before enrolling Wesley in various activities.

Vera Wellman testified that she taught Wesley last year and has taught both of Harvey’s other children and knew Harvey, but that she did not know Bodie until Wesley starting attending Hicks school. She testified that during the school year of 2004, when the week-to-week schedule was being followed, Wesley performed consistently regardless of where he spent the week. However, she stated that Harvey participated consistently in his education while Bodie did not. However, she also testified that Bodie was very “energetic” and “interested” in Wesley’s schooling. She further stated that she felt both parents only wanted the best for Wesley.

Barbara Kyle, a speech pathologist, testified that Wesley was her student. She stated that she would send homework home and that when Wesley was with his dad, he did not return the homework, but that he did when he was with his mom. However, she testified that she took no actions to determine why the homework was not being done such as writing a letter or calling Bodie. She further stated that these assignments were informal handwritten assignments to assist in therapy. She did not know if Bodie did the assignments, but just failed to return the paper. She further testified that she sometimes noticed some regression in his speech skills during the 19weeks that Wesley spent with his father.

Tommy Bolton testified that Bodie knew Harvey was living with him prior to them getting married. He testified that Harvey is “tight” with her son and that on a daily basis she corrects his speech problems and assists him with his homework. He stated that when Wesley returned from being with his father, his speech problems would worsen and that he was “uncontrollable.” He further testified that his wife does not work and is available twenty-four hours a day to care for Wesley. He admitted, however, that Wesley loves and has a close relationship with both his mother and father.

In its written reasons for judgment, the trial court found that there had been a change in circumstances since the August 30, 2002 judgment “resulting from Wesley’s significant delays in communication and social skills which, according to Dr. Lonowski, is attributed in part to inconsistent and divergent parenting approaches utilized by his mother and father.” Dr. Lonowski, a clinical psychologist, submitted a report to the court which was received into evidence. In its written reasons for judgment, the trial court quoted a large portion of the report, which concluded:

In conclusion, the examiner has some significant concerns about dependency issues in Mr. Bodie’s relationship with his son which call into question his ability to be a fulltime nurturing and supportive parent who meets the needs of a young child. There were indications from Mr. Bodie’s statements that he may be eschewing adult social relationships where he has difficulties with trust and commitment, and is devoting himself excessively to his son in a way that does not encourage Wesley’s self-sufficiency, independence and emotional growth.

In considering the factors enumerated in Article 134, the trial court stated that it found the love and emotional ties to be equal, that the length of time in an adequate environment was not a factor, and additionally:

|inThe permanence of the family unit has not been a factor in the past, but it does appear to be a factor in considering the best interest of the child in that Wesley and his next oldest half-sibling, Race, have developed a close and bonding relationship.
Moral fitness of the parties is a consideration for the court given Tammy Bolton’s propensity to openly live with men to whom she is not married.
Both parties seem to be mentally and physically able to care. for Wesley. However, Dr. Lonowski has significant concerns about dependency issues in Mr. Bodie’s relationship with Wesley.
Home, school, community history and preference of the child are not relevant factors as both parents are doing what they perceive they can do to best help Wesley with his developmental problems.
The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party is- a factor to consider in that the testimony revealed that these parties have difficulty in communicating with each other. On one hand, Mr. Bodie has problems communicating with Tammy, the school teachers and Wesley’s coaches. On the other hand, when questioned about communication problems, the Court was impressed with Mr. Bolton’s frankness when he attributed this in part to Tammy’s stubbornness.
The distance between the parties and the care previously exercised by each party are not relevant factors.
Considering all of the evidence and the law, the Court finds that it is in the best interest of Wesley that joint custody be awarded to the parties, with his mother, Tammy Bolton. Being designated as the primary domiciliary parent and visitation with his father, Charles Bodie, on alternate weekends and holiday which coincide with the schedule Wesley’s brother, Race, enjoys with his father.

DISCUSSION

Having reviewed all of the evidence, we are unable to find any evidence in the record that a material change in circumstances occurred between the rendering of the August 30, 2002 judgment and this one. Accordingly, we find the trial court abused its discretion in changing the joint custody arrangement to make Harvey the primary domiciliary parent.

| ¶-i The trial court initially discusses that a material change of circumstances has led to the Wesley’s educational delays. However, none of the factors in the discussion are directly related to his delays. Further, the evidence was overwhelming that the week-to-week arrangement did not affect his schooling. Both Dyer and Wesley’s own teacher, Wellman, testified that there was no change in Wesley’s academic performance during the week-to-week custody arrangement. We are unable to see how “inconsistent and divergent parenting approaches” led to Wesley’s educational delays. Harvey herself testified that Wesley’s problems exhibited themselves long before they separated. We find this indicative that Wesley’s educational and speech problems were not the result of “parenting styles.” Although it may be true that Bodie was somewhat in denial as to the extent of his son’s educational delays, the evidence shows that he is now fully aware of these issues. Further, it appears that great strides have been made on the part of Bodie to improve his parenting skills and that he is making every effort to assist his son with his educational delays.

As to the remaining discussion, it is clear that Wesley and his half-brother Race have a close relationship that continued to flourish during the week-to-week arrangement. This has no bearing on Wesley’s academic difficulties. What appears to be Harvey’s co-dependence on men and Bodie’s alleged co-dependence on his son, also had no bearing on Wesley’s academic performance, which was described as generally lacking, regardless of whether he was at his mother’s or father’s house. Finally, it is clear from the record that communication between the parties has been strained, however, we find that Bodie has made the greater effort in putting aside past problems to facilitate a better relationship for the benefit of his son. In light of the fact that Bodie has an extremely close relationship with Wesley and is l12clearly making every effort to assist him with his academic problems, we feel that it would not be in Wesley’s best interest to limit his time with his father to four days per month. Harvey and Bodie must address his educational needs together.

Addressing Bodie’s claims on appeal, we find his argument unpersuasive. Although it is clear that Harvey defied court orders, for which she was held in contempt, her previous cohabitation, though not favored by the law, was cured by her subsequent marriage and, in our opinion, has no bearing on the reasons the trial court cited as warranting a change in the custody arrangement. We further find that it would not be in Wesley’s best interests if primary domiciliary custody were to be awarded to Bodie. As we have mentioned earlier, we find that the best interests of Wesley are served by reinstating the week-to-week custody arrangement which facilitates a close bond between Wesley and his mother and father.

CONCLUSION

We find the trial court abused its discretion in modifying the joint custody award for the aforementioned reasons. Accordingly, the judgment of the trial court is reversed and the previous custody order of August 2002 is reinstated. Costs of this appeal are assessed equally between the parties.

REVERSED AND RENDERED.

      . Harvey and Bolton were married in May 2004, however, we will refer to Tammy as Harvey throughout this opinion.


text:
    Gregory Kent MOROUX, et al. v. Andre F. TOCE, et al. Daniel Lombas, et al. v. Gregory K. Moroux, et al.
    Nos. 2006-831, 2006-832.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 2, 2006.
    Rehearing Denied Dec. 20, 2006.

      Michael W. Adley, Michelle Regan Popp, Judice and Adley, Stacy N. Kennedy, Ga-chassin Law Firm, LLC, Lafayette, LA, for Plaintiffs/Appellants, Gregory Kent Moroux, Gregory Kent Moroux, A Professional Law Corporation.
    Randall A. Smith, Owen B. St. Amant, Smith & Fawer, LLC, New Orleans, LA, for Defendant/Appellee, Andre F. Toce, et al.
    Michael G. Daiy, Andre F. Toce, The Toce Firm, APLC, Lafayette, LA, Adras Paul LaBorde Endom, Baton Rouge, LA, for DefendanVAppellee, Andre F. Toce.
    John E. McElligott, Jr., Christopher J. Piasecki, Davidson, Meaux, Sonnier & McElligott, Lafayette, LA, for Defen-danVAppellee, Michael Wayne Adley, Judi-ce & Adley, APLC.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   GREMILLION, Judge.

_JjThis matter involves a fee dispute between attorneys. The plaintiffs, Gregory K. Moroux and Gregory K. Moroux, A Professional Law Corporation, appeal the trial court’s grant of summary judgment on various issues and its finding that the defendant, Andre F. Toce, did not breach an oral contract to share legal fees. For the following reasons, we affirm.

FACTS

Toce was retained to represent numerous plaintiffs after chemicals sprayed on a cane crop drifted onto the grounds of the Green T. Lindon School, in Youngsville, Louisiana, on February 23,1995. Moroux became associated with Toce on August 22, 1996, mainly to work on the chemical drift case which involved in excess of one hundred plaintiffs. Both parties agree that the terms of his compensation were pursuant to an oral contract.

Discovery in the chemical drift case extended over five years. During that time numerous depositions were taken, experts hired and deposed, and medical information gathered. In late March 1999, Toce informed Moroux that he was forming a partnership with another attorney, Michael Daiy, effective April 1, 1999. He stated that Daiy was unhappy with the amount of Moroux’s draw ($8000 per month) and that it would be decreased under the new partnership. Moroux severed his association with Toce on April 15, 1999, but continued to assist him with the representation of the chemical drift case, as it was scheduled for mediation on April 22, 1999. On that date, a partial settlement was reached between the plaintiffs and |aall but one defendant. This ended Moroux’s association with the suit. Thereafter, he filed an intervention in the suit seeking a portion of the legal fees. His intervention was later dismissed by the trial court.

Moroux filed the instant suit against Toce seeking to recover a portion of the attorney’s fees pursuant to various theories: breach of contract, joint venture, detrimental reliance, and unjust, enrichment/quantum meruit, This matter was later consolidated with Lombas v. Gregory K. Moroux and Gregory K. Moroux, A Professional Law Corporation, docket number 20001207, in which various plaintiffs from the chemical drift suit filed a petition seeking damages for legal malpractice against Moroux. Thereafter, Toce filed motions for partial summary judgment on the issues of breach of contract, joint venture, detrimental reliance, and unjust enriehmenl/quantum meruit. The trial court granted partial summary judgments on the issues of detrimental reliance, unjust enrichmenVquantum me-ruit, and joint venture, but refused to designate these as being final, appealable judgments. The trial court later severed Lombas v. Gregory K. Moroux and Gregory K. Moroux, a Professional Law Corporation, from this matter for all purposes.

The matter proceeded to a trial on the merits on the issue of breach of contract. Following the hearing, the trial court held that an oral contract did exist between Moroux and Toce, but held that Moroux failed to prove that it included a share of the legal fee from the chemical drift case. It further awarded him $5000 for work he performed on the case after severing his association with Toce. This appeal followed.

| «ISSUES

On appeal, Moroux raises five assignments of error. He argues that the trial court erred in granting summary judgment in favor of Toce, dismissing his claims of joint venture, detrimental reliance, and unjust enrichment /quantum me-ruit. He further argues that the trial court erred in denying his breach of contract claim. Toce has answered the appeal and argues that the trial court erred in awarding Moroux $5000 for work performed after he severed his association with him. He further argues that the trial court erred in finding him personally liable for that amount and in assessing him with all of the court costs in this matter.

BREACH OF CONTRACT

Moroux argues that the trial court erred in finding no breach of contract. He claims that the trial court erred in two regards. First, the trial court held that no oral contract existed as Moroux failed to indicate a specific percentage he was to receive from the fee. Second, the trial court found a lack of evidence corroborating Moroux’s claim of an oral contract to share the fee.

The party demanding performance of an obligation bears the burden of proving the obligation's existence. La.Civ. Code art. 1831. As the obligation in this instance involves an oral contract in excess of $500, Moroux must prove its existence through at least one credible witness and other corroborating evidence. La.Civ. Code art. 1846. Moroux may serve as the one credible witness, but the other corroborating evidence must come from some other source. Suite v. Lafayette City-Parish Consol. Gov’t, 04-1459 (La.4/12/05), 907 So.2d 37. “The ‘other corroborating circumstances’ need only be general in nature; independent proof of every detail of |4the agreement is not required.” Id. at 58 (quoting Kilpatrick v. Kilpatrick, 27,241 (La.App. 2 Cir. 8/23/95), 660 So.2d 182, 185). Whether the party has satisfied his burden of proof is a question of fact subject to the manifest error rule. Crowe v. Homeplus Mft. Housing, Inc., 38,382 (La. App. 2 Cir. 6/21/04), 877 So.2d 156.

Moroux testified that he became associated with Toce mainly to work on the chemical drift case due to his experience in the area of toxic torts. He stated that Toce was involved in another large suit and did not have time to devote to the chemical drift case. He testified that he handled the suit until he severed his association with Toce on April 15, 1999. However, he stated that he continued working on the case and participated in the mediation conference, after which all but one defendant settled.

Moroux claims that he and Toce agreed that he -would receive a draw against the annual revenue he was expecting to generate for the firm, starting at $6000 per month. This amount was later increased to $8000 per month. However, he claims that the draw did not apply to work performed in the chemical drift case, as he and Toce agreed that he would receive a share of the fees that case generated, based on the amount of work he performed. He further stated that any monies he received from Toce were paid to his professional law corporation, even though he was listed personally on the 1099s up until October 1, 1998. Thereafter, the 1099s listed his professional law corporation as the entity being paid. In addition to the draw, Moroux further testified that Toce paid his legal malpractice insurance, and later provided him with a Mercedes Benz automobile, auto insurance, and health insurance. He Stated that Toce also provided him with paralegals, a secretary, and all |Boffice equipment.

Although they never specifically discussed how they would split the fee, Mor-oux stated that Toce once asked if he agreed to a split of twenty-five percent to the person who signed and financed the case (Toce),' forty percent to the person who worked the case (Moroux), and the remaining thirty-five percent to the person who performed early work in the case (Toce). Moroux testified that he asked Toce on more than one occasion to reduce their agreement to writing, but was told that there was no need to take such a step.

Moroux presented several witnesses to corroborate his claim. His wife, Lynn, testified that Toce told her on two separate occasions that the chemical drift case would make her husband a millionaire. Maxine Vaccarella, . a paralegal who worked with Moroux on the chemical drift case, testified that Toce told them that they were all going to be rich as a result of the case, that he was paying Moroux a lot, and that he was going to make a lot off the case. F. Douglas Wimberly and Lane Roy were attorneys who represented defendants in the chemical drift case. Both testified that they dealt primarily with Moroux through the first mediation hearing. None of the above witnesses, other than Moroux, had any personal knowledge of the agreement for compensation existing between Moroux and Toce.

Glenn Hebert, the medical case manager on the chemical drift case, testified that he heard Toce, on three different occasions, state that Moroux was going to make forty percent of the fee from the case. Hebert stated that once, at a meeting with Moroux and Toce in 1998, he heard Toce tell Mor-oux, “Just get the job done. Mr. Moroux is going to make the biggest fee he ever made in his life. He’s going to Rmake 40 percent of the file.” Hebert said that he later asked Moroux if this was true and that he was told that it was. The second time occurred at a hunting camp in mid-December 1998, when Hebert testified that he heard conversations between Toce and Daiy about forming a partnership. He stated that Toce told Daiy that he would sever his business relationship with Mor-oux so that Daiy could receive Moroux’s forty percent share in the chemical drift case fee, which would be $500,000. A third time occurred at Toce’s office, when Toce was mad and yelled, “God damn it, y’all get it done. You’re making 40 percent on this file. Just get it done.”

However, the trial court discounted Hebert’s testimony because of bias as Hebert had filed an intervention in the chemical drift suit seeking money owed to him by Toce, filed a complaint against Toce with the Louisiana State Bar Association, and complained that Toce and his wife threatened him.

Toce testified that he represented the plaintiffs in the chemical drift case pursuant to contingency fee contracts. At the time that he took on the case, he stated that he was already involved in a large litigation (Texaco) and, thus, needed more associates and paralegals to carry out his business. He stated that he signed the chemical drift case in March 1995, and performed all of the work in that case in 1995 and 1996. At the time he hired Mor-oux, he testified that he asked him if he would risk his time and agree to accept a percentage of the fee at the end of the case. However, he stated that Moroux required a fixed income because of family obligations and they eventually agreed that he would work for a monthly salary of $6000, which was later raised to $8000 a month. Toce further testified that he told Moroux that he would give him bonuses if he would work hard and “stick with him.” |7He stated that he never promised him a percentage of the fee in the chemical drift case and only became aware that he was claiming such an interest when the intervention was filed.

Toce testified that he was in charge of the chemical drift case as he had a tremendous investment in the case. He stated that he had borrowed $850,000 for the case and had another $100,000 to $200,000 in expenses. He stated that he told Moroux and the paralegals what to do and that he was in charge of filing pleadings, suing the defendants, and in filing the motion for summary judgment. He stated that he either told Moroux what to do or performed the task himself. He said that meetings were held in the office and that he kept track of what every person was doing in the case. While Moroux was employed by his firm, Toce stated that he spent five to ten percent of his time on the chemical drift case. He stated that he also tried nine to ten jury trials during that time and still had time to oversee his practice and work on the Texaco litigation. He further stated that he paid all of the overhead for the firm, including the salaries of all employees.

Toce testified that his partnership with Daiy became effective April 1, 1999. As part of their agreement, he stated that Daiy received $500,000 from the fee generated by the chemical drift case and he received $500,000 from a fee generated in a quadriplegic case Daiy was handling. He stated that he informed Moroux of his intent to form the partnership in late March 1999, and told him that as a result his salary would decrease from $8000. He stated that Moroux severed his association in April 1999. Thereafter, the chemical drift case went into mediation and settled with all but the school board for $8,500,000. He stated that the fee generated by this |ssettlement was $1,220,303.20. He indicated that the school board eventually settled for $625,000.

Mike McCullough, Toce’s former office manager, testified that Moroux was paid twice a month for his services, but that his compensation was not in the form of a draw. He further stated that any extra money earned by Moroux was due to bonuses, which were paid at Toce’s discretion. He testified that Moroux never indicated to him that he was sharing in the fee from the chemical drift case.

Daiy testified that he formed a partnership with Toce on April 1, 1999. As part of their partnership agreement, he stated that he received $500,000 from Toce. He explained that this money was generated by the chemical drift case’s legal fee. With regard to Moroux’s compensation, Daiy stated that he had no personal knowledge regarding the agreement existing between Toce and Moroux. However, he stated that Toce never informed him that Moroux had an interest in the chemical drift case fee.

In rendering its oral reasons, the trial court stated:

The agreement, of course, was in oral form and this agreement, of course, was consummated at the time that Mr. Mor-oux went to work. However, it is up to Mr. Moroux to prove any other additions of this contract in this particular case.
The agreement that Mr. Moroux claims, the Court cannot accept, in view of the fact that there is no percentage that was testified to that he was to receive from this fee if he was going to participate in the fee of the Lombas case.
The only testimony was from one individual, who — Mr. Hebert, who took the stand, and he said that he heard forty percent (40%) four times. The court observed Mr. Hebert and his demeanor on the stand. I also note that Mr. Mor-oux himself never mentioned any amount of forty percent (40%). Consequently, I cannot accept the testimony of Mr. Hebert, and I have discounted it also because it shows — it would show 19that he had such animosity towards the defendant in this particular case.
Under Article 1846, of course, a writing can be proved by one witness and corroborating circumstances, and the Court listened intently to determine what the corroborating circumstances in this particular case were. There was no evidence presented to the Court that I could accept as being corroborating evidence to the effect that the contract as claimed by Mr. Moroux was correct.

After reviewing the aforementioned evidence, we cannot say that it was unreasonable for the trial court to find that no oral contract existed between Toce and Moroux with regard to fee sharing in the chemical drift case. Even if Moroux is not required to present evidence concerning an agreed upon percentage, there is still a lack of corroborating evidence with regard to the oral contract. All we can glean from the evidence presented was that he stood to make a lot of money once the case concluded. What remains unclear is whether the money would have been a percentage of the fee or a bonus. Without more evidence and, as the trial court’s decision was based in part on a credibility determination, its finding is entitled to great deference on appeal. Accordingly, the judgment is affirmed with regard to the issue of a breach of contract.

SUMMARY JUDGMENT

Moroux argues that the trial court erred in granting partial summary judgments in favor of Toce on the issues of joint venture, detrimental reliance, and unjust enrichment/quantum meruit.

The law pertaining to summary judgment was discussed by the Louisiana Supreme Court in its per curiam opinion in Hines v. Garrett, 04-0806, pp. 1-2 (La.6/25/04), 876 So.2d 764, 765-66 (alteration in original):

ImWe review a district court’s grant of summary judgment de novo, viewing the record and all reasonable inferences that may be drawn from it in the light most favorable to the non-movant. Summary judgment is warranted only if “there is no genuine issue as to material fact and [ ] the mover is entitled to judgment as a matter of law.” La. Code Civ.Proc. art. 966(C)(1). In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor.

The party urging the motion for summary judgment bears the burden of proof. However, if that party will not bear the burden of proof at trial, he need only point out that the opposing party will be unable to prove his claim. He does this by noting that the opposing party will be unable to factually prove an element essential of his claim. La.Code Civ.P. art. 966(C)(2). Once this occurs, the burden shifts to the opposing party to “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial.” La.Civ.Code art. 966(C)(2). If the opposing party fails in this particular, no genuine issue of material fact exists and summary judgment is appropriate.

Joint Venture

In Coffee Bay Investors, L.L.C. v. W.O.G.C. Co., 03-406, pp. 7-8 (La.App. 1 Cir. 4/2/04), 878 So.2d 665, 670, the law pertaining to joint venture was discussed:

A joint venture has been defined as “a special combination of two or more persons, where in some specific venture a profit is jointly sought without any actual partnership or corporate designation.” Grand Isle Campsites, Inc. v. Cheek, 262 La. 5, 19, 262 So.2d 350, 355 (1972), citing Daily States Publishing Company v. Uhalt, 169 La. 893, 901, 126 So. 228, 231 (1930). Generally, the object and the motive behind a joint venture are the anticipated profits derived from a specific business enterprise. See Hayes v. Muller, 245 La. 356, 367, 158 So.2d 191, 195 (1963); Williamson v. Roberts, 103 So.2d 499, 504 (La.App. 2nd lnCir.1958). The existence or nonexistence of a joint venture is a question of fact, although what constitutes a joint venture is a question of law. Grand Isle Campsites, 262 La. at 24, 262 So.2d at 357.
The essential elements of a joint venture are generally the same as those of partnership, i.e., two or more parties combining their property, labor, skill, etc., in the conduct of a venture for joint profit, with each having some right of control. Cajun Electric Power Cooperative, Inc. v. McNamara, 452 So.2d 212, 215 (La.App. 1st Cir.1984), writ denied, 458 So.2d 123 (La.1984). Accordingly, joint ventures are generally treated by our law as a species of partnership, and governed by the law of partnerships. Id. For example, there is a fiduciary duty between members of a joint venture similar to that which exists between partners in a partnership. Sutton v. Fleming,. 602 So.2d 228, 230 (La.App. 3rd Cir.1992).

Louisiana Civil Code article 2801 defines a partnership as follows:

A partnership is a juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit.
The requisite criteria for the existence of a joint venture (and a partnership) have been defined as follows:
(1) A contract between two or more persons;
(2) A juridical entity or person is established;
(3) Contribution by all parties of either efforts or resources;
(4) The contribution must be in determinate proportions;
(5) There must be joint effort;
(6) There must be a mutual risk vis-a-vis losses;
(7) There must be a sharing of profits.
Cajun Electric, 452 So.2d at 215.
These criteria require findings of fact. Tabco Exploration, Inc. v. Tadlock Pipe & Equipment, Inc., 617 So.2d 606, 609 (La.App. 3rd Cir.), writ denied, 625 So.2d 1057 (La.1993).

112After reviewing the pertinent law and the evidence introduced in conjunction with this motion, we find that the trial court correctly granted a partial summary judgment on this issue. Moroux testified via deposition that he incurred no risks while working on the chemical drift case for Toce, as Toce financed the case, paid all office overhead, provided Moroux with secretarial staff, paid his legal malpractice insurance, provided his computer, phone, and other equipment, and paid all research expenses. Moroux further admitted that the contingency fee contract was between Toce and the plaintiffs and, although he felt that he exercised some measure of control over the case, he agreed that the ultimate authority rested with Toce. Accordingly, we find that Moroux will be unable to prove that he and Toce shared a mutual risk in the case vis-á-vis loses. Thus, we affirm the trial court’s grant of a partial summary judgment on this issue.

Detrimental Reliance

The doctrine of detrimental reliance is found in La.Civ.Code art. 1967, which provides:

Cause is the reason why a party obligates himself.
A party may be obligated by a promise when he knew or should have known that the promise would induce the other party to rely on it to his detriment and the other party was reasonable in so relying. Recovery may be limited to the expenses incurred or the damages suffered as a result of the promisee’s reliance on the promise. Reliance on a gratuitous promise made without required formalities is not reasonable.

Detrimental reliance, also known as equitable estoppel, prevents a party from reneging or taking a position contrary to his prior acts, admissions, representations, or silence. Swire, 907 So.2d 37. To recover pursuant to detrimental reliance, a | ^plaintiff must prove (1) a prior representation by conduct or word, (2) a justifiable reliance, and (3) a detrimental change in one’s position based on that reliance. Id. As the supreme court stated:

Rather, the basis of detrimental reliance is “the idea that a person should not harm another person by making promises that he will not keep.” Id. Thus, the focus of analysis of a detrimental reliance claim is not whether the parties intended to perform, but, instead, whether a representation was made in such a manner that the promisor should have expected the promisee to rely upon it, and whether the promisee so relies to his detriment. Id.

Id. at 59 (quoting Morris v. People’s Bank & Trust Co., 580 So.2d 1029, 1036 (La.App. 3 Cir.), writ denied, 588 So.2d 102 (La. 1991) (quoting A Student Symposium, The 1981 Revision of the Louisiana Civil Code’s Articles on Obligations: Detrimental Reliance, 45 La.L.Rev. 747, 765-66 (1985)). Moreover, the doctrine of detrimental reliance is not favored by the law and all claims must be examined carefully and strictly. May v. Harris Mgmt. Corp., 04-2657 (La.App. 1 Cir. 12/22/05), 928 So.2d 140.

In his affidavit, Moroux stated that he spent sixty to seventy percent of his time on the chemical drift case as a result of Toce’s promise. After a settlement was reached and Toce refused to share the fee with him, Moroux stated that he relied to his detriment in the following ways: he would not have spent the majority of his time on the case, he would have focused his attention on other cases in order to increase his earnings, he would have pursued other work, he would have sought out other job opportunities, and that he could have generated approximately $250,000 to $300,000 in earnings per year.

|uIn his deposition, Moroux testified that while the chemical drift case was a big incentive for him to work for Toce, financial security for his family was another important incentive. He stated that he received a monthly draw of $6000 per month, which later increased to $8000 per month. He testified that he bore none of the risk in the chemical drift case, as Toce financed it, paid all office overhead, paid his legal malpractice insurance, and provided him with a car, car insurance, and health insurance. In addition to his monthly draw, Moroux stated that he also received bonuses from Toce and obtained a personal loan of $27,000, which Toce later offset against a fee received from a ease Moroux brought with him to his firm. Under questioning, Moroux admitted that no other firm had guaranteed him the amount of money he was receiving from Toce at the time he associated with him. He further admitted that he had received no such offers since severing his association with Toce.

After reviewing the evidence, we find that the trial court correctly rendered a partial summary judgment on this issue. In reviewing Moroux’s deposition and affidavit, we find that there is a lack of evidence proving that he detrimentally changed his position based on his reliance that he would share in the chemical drift case fee. Although he may claim that he would have sought other job opportunities and could have generated a large amount in income, these statements, on their own, are insufficient to prove that he changed his position to his detriment, in light of the evidence relating to his monthly income, bonuses, and other incentives. Accordingly, the judgment of the trial court is affirmed on this issue.

Unjust Enrichment/Quantum Meruit

The doctrine of unjust enrichment, otherwise known as actio de in rem 11averso, is codified by La.Civ.Code art. 2298, which provides:

A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term “without cause” is used in this context to exclude cases in which the enrichment results from a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.

A party seeldng to recover pursuant to this theory bears the burden of proving five elements:

(1) an enrichment of the defendant;
(2) an impoverishment of the plaintiff;
(3) causation between the enrichment and the impoverishment;
(4) an absence of justification or cause for either the enrichment or the impoverishment; and
(5) no other remedy available at law.

Bieber-Guillory v. Aswell, 98-559 (La. App. 3 Cir. 12/30/98), 723 So.2d 1145.

The evidence reveals that the parties in the chemical drift case settled for $3,500,000, which generated a legal fee of $1,220,303.20. Based on the facts established pursuant to the issue of detrimental reliance, we find that the trial court correctly rendered a partial summary judgment with regard to unjust enrichment/quantum meruit. Although Toce was enriched to the tune of $1,220,303.20, the evidence failed to substantiate that Mor-oux suffered an impoverishment. Accordingly, the judgment of the trial court is affirmed on this issue.

ANSWER TO APPEAL

In his answer to appeal, Toce argues that the trial court erred in finding |ishim personally liable to and in awarding Mor-oux $5000, representing work performed by him after he severed his association with Mm. He further argues that the trial court erred in casting him with all of the court costs in this matter.

Louisiana Code of Civil Procedure Articlé 862 provides, “Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.” See Venable v. U.S. Fire Ins. Co., 02-505 (La.App. 3 Cir. 10/30/02), 829 So.2d 1179. In this instance, Moroux’s petition does contain a prayer for all general and equitable relief. Further, the evidence' established that he received no further payment from Toce after severing his association with him on April 15, 1999, although continuing to work on the chemical drift case, participating in an on-site inspection, and participating in the all-day mediation on April 22, 1999. Accordingly, we find no error in the trial court’s award of $5000 to Moroux for work performed on the chemical drift case subsequent to April 15, 1999.

With regard to court costs, La. Code Civ.P. art. 1920 provides that the trial court may assess court costs in any manner it considers equitable. On review, an appellate court may not modify the trial court’s assessment absent an abuse of discretion. Hazelwood Farm Inc. v. Liberty Oil and Gas Corp., 02-266 (La.App. 3 Cir. 4/2/03), 844 So.2d 380. In this instance, we cannot say that the trial court abused its discretion in casting Toce with all of the court costs.

Finally, Toce argues that the trial court erred in finding him personally liable to Moroux for the $5000. He claims that Toce & Daiy, L.L.C. would be the 117proper party to owe Moroux any money due him after April 15, 1999. However, we find that this claim should properly have been brought before the trial court pursuant to peremptory exceptions of no cause of action or nonjoinder of a party. La.Code Civ.P. art. 927. As no such exception was filed prior to the submission of the case for a decision, we need not address this issue. Finding no merit in these assignments of error, the judgment of the trial court awarding Moroux $5000 is affirmed.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed. The costs of this appeal are assessed equally fifty percent to the plaintiffs-appellants, Gregory K. Moroux and Gregory K Moroux, A Professional Law Corporation, and fifty percent to the defendant-appellee, Andre F. Toce.

AFFIRMED.

      . Lombas v. Farm Bureau Ins. Co., Docket No. 95-4792-J.


author: AMY, Judge.

text:
    STATE of Louisiana v. Ronald M. FONTENOT.
    No. KA06-1373.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 29, 2006.
    Hon. Christopher Brent Coreil, District Attorney, Ville Platte, LA, for Appellee, State of Louisiana.
    Shelley A. Deville, Ville Platte, LA, for Appellant, Ronald M. Fontenot.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

|,After a trial by jury, the Defendant, Ronald M. Fontenot, was convicted of two counts of second degree murder. Thereafter, on April 1, 2004, the Defendant was sentenced on both counts to life imprisonment at hard labor without the benefit of parole or suspension of sentence. The Defendant appealed and this court affirmed his convictions and sentences. State v. Fontenot, an unpublished opinion bearing docket number 04-570 (La.App. 3 Cir. 11/10/04). In that same opinion, this court granted defense counsel’s motion to withdraw.

The Defendant filed an application for post-conviction relief in the trial court on May 16, 2006. A hearing on the application was held on September 14, 2006, and the trial court denied the application that same date. Subsequently, on September 22, 2006, the Defendant filed a “Motion for Notice to Seek Appeal” from the trial court’s denial of his application for post-conviction relief. The motion for appeal was granted by the trial court on October 2, 2006.

On October 25, 2006, this court issued a rule to show cause why the appeal in this case should not be dismissed as the judgment at issue is not appealable. The Defendant filed a brief with this court in response to the rule in which he acknowledges that the judgment is not an appeal-able judgment, but requests that the notice of appeal be converted to an application for supervisory writ. The Defendant also requests an extension of time to submit an application for supervisory writ and brief in support thereof. In conjunction with his response brief, the Defendant filed a Motion to Convert Appeal to Supervisory Writ Application.

Louisiana Code of Criminal Procedure Article 980.6(A) provides:

The petitioner may invoke the supervisory jurisdiction of the court of appeal if the trial court dismisses the application or otherwise denies relief on an application for post conviction relief. No appeal lies from a judgment dismissing an application or otherwise denying relief.

1 ¡¡.(Emphasis added.) Because the judgment is not appealable, the appeal in this case is hereby dismissed. Further, we deny the Defendant-Appellant’s request that we covert the appeal to a supervisory writ application.

Defendant-Appellant, Ronald M. Fonte-not, is hereby permitted to file a proper application for supervisory writs, in compliance with Uniform Rules — Courts of Appeal, Rule 4, no later than thirty days from the date of this decision. The Defendant is not required to file a notice of intent to seek writs nor obtain an order setting a return date pursuant to Uniform Rules — Courts of Appeal, Rule 4-3 as we hereby construe the motion for appeal as a notice of intent to seek a supervisory writ.

APPEAL DISMISSED. DEFENDANT-APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION.


author: BILLY H. EZELL, Judge.

text:
    STATE of Louisiana v. Julius WILLIS.
    No. KA06-1227.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 29, 2006.
    Hon. Douglas L. Hebert, District Attorney, Oberlin, LA, for Appellee State of Louisiana.
    Julius Willis, Oberlin, LA, pro se.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   BILLY H. EZELL, Judge.

The Defendant, Julius Willis, was charged by bill of information with remaining after being forbidden, a violation of La.R.S. 14:63.3. On July 13, 2006, a bench trial was held and the Defendant was found guilty as charged. The Defendant was sentenced to six months in the parish jail, suspended, and placed on eighteen months of supervised probation.

The Defendant filed a Motion of Appeal which was granted by the trial court on July 31, 2006.

On October 6, 2006, this court issued a rule to show cause why the appeal in this case should not be dismissed as the judgment at issue is not appealable. On November 6, 2006, the Defendant submitted a pleading to this court explaining his innocence to the charge.

The proper procedural vehicle for the Defendant to seek review of his misdemeanor conviction is via supervisory writs. Therefore, the appeal in this case is hereby dismissed. The Defendanb-Appellant, Julius Willis, is hereby permitted to file a proper application for supervisory writs in compliance with Uniform Rules — Courts of Appeal, Rule 4, no later than thirty days from the date of this decision. The Defendant is not required to file a notice of intent to seek writs nor obtain an order setting a return date pursuant to Uniform Rules — Courts of Appeal, Rule 4-3, as we hereby construe the motion for appeal as a timely filed notice of intent to seek a supervisory writ.

APPEAL DISMISSED. DEFENDANT-APPELLANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY WRITS WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION.