author: MARION F. EDWARDS, Judge.

text:
    Conran J. FRICKE and Kim Fricke v. OCHSNER FOUNDATION HOSPITAL and Debra Mills, R.N.
    No. 05-CA-868.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 11, 2006.
    Rehearing Denied May 18, 2006.

      Eulis J. Simien, Jr., Simien & Simien, L.L.C. Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Harry T. Lemmon, New Orleans, Louisiana, for PlaintifflAppellant.
    Pamela Ashman, Baton Rouge, Louisiana, for Plaintiff/Appellant.
    Don S. McKinney, Adams and Reese, LLP, New Orleans, Louisiana, for Defendant/Appellee.
    Panel composed of Judges JAMES L. CANNELLA, MARION F. EDWARDS, and WALTER J. ROTHSCHILD.
   MARION F. EDWARDS, Judge.

| sPlaintiffyappellant, Conran J. Fricke (“Fricke”), appeals a jury verdict in favor of defendant/appellee, Alton Ochsner Medical Foundation (“Ochsner”), dismissing his claim of medical malpractice. We affirm for the following reasons.

Fricke avers that, on December 19, 1996, he was admitted to Ochsner for corrective surgery on his right hand for carpal tunnel syndrome. While preparing him for surgery, Nurse Debra Mills (“Mills”), an employee of Ochsner, gave him an injection of Novocain in his left hand and then attempted to insert an IV needle into the vein at his wrist. At that time, Fricke stated he experienced a severe electric shock sensation in his arm. After reporting this to Mills, she withdrew the needle and then attempted, unsuccessfully, to reinsert it. An anesthesiologist was later able to accomplish the procedure. Fricke alleged that, as a result of improper [ ^methods used by Mills, he experienced an injection injury and suffered Reflex Sympathetic Dystrophy and other damages as a consequence.

On October 19, 1999, a medical review panel unanimously concluded that the evidence supported the conclusion that Ochs-ner failed to meet the applicable standard of care. At that time, the panel determined that paraesthesia is a known complication of venipuncture and when the patient reported paraesthesia, the nurse should have tried a completely different site. According to the panel:

We must assume that the second veni-puncture attempt may have aggravated the nerve injury. The initial attempt created a paraesthesia which was probably the inciting mechanism. However, it is impossible to know whether the first or second venipuncture attempt caused the initial injury.

In 2001-2002, the members of the panel executed separate affidavits attesting that, after review of Fricke’s deposition, they concluded the nerve injury occurred on the first stick. Fricke had stated he felt a strong electrical sensation on the first attempt and felt no sensation on the second, and this information caused them to alter their original opinions. According to the affidavits, there was no evidence that the first attempt was negligently made, and an injury on a first attempt may occur in the absence of negligence. Thus, the individual members concluded, as per their affidavits, that there was no breach in the standard of care.

In the Petition For Damages, Fricke named Ochsner and Mills as defendants. Mills was eventually dismissed from the lawsuit because Fricke stipulated that she was acting In the course and scope of her employment with Ochsner when the injury occurred, and Ochsner was responsible for any proven acts of negligence on her part.

Trial on the merits was conducted over a period of several days, at the conclusion of which the jury returned a verdict, finding the evidence did not prove that Nurse Mills lacked the necessary degree of knowledge or skill exercised by a Lhealth care provider, or that she failed to use reasonable care along with her best judgment with regard to Fricke. The verdict was made the judgment of the court. Following the denial of Fricke’s Motion For Judgment Notwithstanding The Verdict, or in the alternative, Motion For New Trial, Fricke perfected the present appeal.

Fricke testified at trial that he had been diagnosed with carpal tunnel syndrome and decided to have surgery in December of 1996. When he went for the surgery, Mills came in to check his vital signs, looked at his hands, and told him he had good veins. She put a tourniquet on, gave him a small stick, and proceeded to insert the IV. Fricke testified that Mills had given him the Lidocaine stick in his hand, before inserting the IV in his wrist. When she tried to start it, he got a terrible electrical shock up his arm and he yelled, telling her that it hurt and he had a shocking feeling. She took the needle out. He watched, although he squinted his eyes, as she tried again, close to the same area, although he did not know exactly how close or whether it was in the same spot. Fricke did not recall if he felt pain the second time. On the second attempt, Mills missed the vein, and called in someone else, saying she thought she hit a valve. A second person from anesthesiology came in to insert the IV. Fricke had previously had two surgeries on the ulnar nerve in his left arm, some years prior, because he had been bitten on the hand and was having pain in his hand and wrist.

At trial, Mills testified that she had been a registered nurse since 1969. She started doing IVs at Oclisner in 1985 when she worked in the holding area, getting patients ready for surgery. She typically started about 20-25 TVs a week, and that the nurses start more IVs than the anesthesia department. She prefers to start IVs in the hand, because it is easier to hold a patient’s hand and anchor it.

| ¡¡She testified that the best place to start an IV is a large vein that does not curve very much. IVs are often started in the wrist. Over the years, she has started IVs in every part of the hand and wrist. Whatever prominent vein appears first, if it is in a comfortable position, is the one she would use. Nurse Mills applied a tourniquet, but was not certain if she palpated Fricke’s hand before attempting venipuncture, because sometimes a large vein just pops out. Before inserting an IV, she would first stick the patient with Lidocaine to numb the point of insertion. She has never attempted to start an IV at a point remote from the Lidocaine stick. The area where the wrist bends is not a good area because if you flex the wrist too much, it stops the flow of fluids.

Before the current event, she did not know that nerve injury was a risk of veni-puncture. She knew there was a risk of hematoma or infection. Many patients express pain after an IV insertion, but she had not been aware that such pain could have been a nerve injury. Although he may have expressed some pain, Mills did not recall Fricke saying that he had a shocking pain or other significant symptoms. If a patient indicated pain out of the ordinary, she would not try to go back to the same spot but would get someone else.

Mr. Gary Gagnard, a registered nurse, testified as an expert in the field of nursing. He opined that a reasonably trained nurse should have been aware of the potential for nerve injury when inserting an IV. The wrist area is one to be avoided if there is other available access because the branches of the radial nerve cluster there and come closer to the surface of the skin. Thus, there is a higher possibility of injury at that site. An attempted insertion of the IV in the area between two tendons was wrong, and one should try the wrist only if there was no other equally available access. One should use the site furthest down the extremity vein, which in most people is the hand. A nurse who was unaware of the cluster of nerves in |fithe wrist lacks the degree of skill ordinarily possessed by nurses starting IVs and failing to take that into consideration was not reasonable care. Referring to a publication written for nurses, “On The Road To Successful IV Starts,” Gagnard read that “veins in all aspects of the wrist shouldn’t be used for venipuncture because of their close proximity to nerves. Besides the risk of causing pain, preventing movement at these sites may be impossible increasing the risk of complications.” On cross-examination, Gagnard conceded that one of the leading basic nursing textbooks, “Potter and Perry,” and the “Handbook of Infusion Therapy” do not caution against using the wrist as a site for venipuncture. Gag-nard felt that the wrist should be avoided if possible, although he has used sites very close to the site identified by Fricke. A reasonable nurse should not have gone first to the area where Mills initially attempted the IV. If the nerve had been nicked in the first IV stick, it was not reasonable to attempt a second stick within an inch of that area.

He did not know what the best venous access for Fricke was at the time of the incident. He has had some patients experience electrical pain up the arm even while being careful and exercising the proper standard of care. A nerve injury can occur even when a nurse is doing everything properly. However, if the proper steps are subsequently taken, in his experience, an injury can be prevented.

Dr. Richard Morse was recognized as an expert in pain management, psychiatry, and neurology. Dr. Morse began to treat Fricke in December 2002. He testified that any stimulation of the nerve once a pain circuit begins has an amplifying effect. When there is unusual pain connected with injection, one should pull out and move to a safe distance.

Dr. Mack Thomas, an anesthesiologist, clinical professor of surgery in anesthesiology at LSU, and medical advisor and physician at Kenner Regional |7Medical Center, was on the Medical Review Panel for the present case. He testified that, at the time the panel rendered its opinion, it had concluded there was a repeated attempt to place the IV in the same area adjacent to the injured nerve after the patient reported paraesthesia. According to Fricke’s deposition, which Dr. Thomas read after the panel rendered its opinion, Mills went back into the same area on the attempted second IV. If Fricke testified that the second attempt was in the same -area as the first, and if he did not recall whether that second stick caused pain, then Dr. Mack would revert to his original panel opinion. The second stick would have caused additional trauma to the same nerve.

It does not make much difference whether the nurse chooses a site on the wrist or the hand, if they are both adequate access. If there is a good vein in the area of the wrist, it is a good place to start an IV, and Dr. Thomas has never taught that the wrist area should be avoided because of possible nerve injury. Dr. Thomas, in the thousands of IVs that he has started, never looked at a good access site on the wrist and not used it just because of the fear of causing a nerve injury. A nurse or doctor using proper skill and technique can, nevertheless, cause a nerve injury without fault on then-part. The panel concluded that the first stick was not performed negligently, and the panel’s opinion was based solely on their belief that after the shocking sensation was reported, Mills went back into the same area to attempt the IV.

Kim Fricke, wife of Conran Fricke, testified that, on the day of surgery, her husband became very upset at having been stuck with the IV so many times, and he was in pain. Mrs. Fricke did not witness the first attempts by Mills but was there when the anesthesiologist made the successful insertion. Afterward, Fricke did not complain about the surgery but was suffering from the IV problems.

IsThe deposition of Dr. David Kline was read into the record. Fricke was referred to Dr. Kline for the post-surgical pain that he continued to have. Dr. Kline performed surgery on Fricke’s arm and discovered that one branch of a superficial sensory nerve had pulled away or severed from the main nerve. This branch nerve was removed, and the main radial nerve appeared to be intact. Several years later, when the symptoms persisted, a large part of the main nerve had to be removed. Based on the history given him by Fricke as well as the condition of his arm, Dr. Kline felt that the IV needle struck a nerve and parted a branch. Although there are presently procedures for veni-puncture that could help steer a puncture away from the nerves, the technology was not there at the time of the incident. Dr. Kline could not tell if Mills attempted a puncture in the same spot more than once. It is likely the injury occurred on the first attempt.

Dr. Wendy Jamison, a neurologist, was also on the Medical Review Panel, and agreed that the panel reached its original conclusion of negligence based on the assumption of repeated attempts at sticking in the same area after Fricke complained of pain. The panel believed that the first stick started the symptoms and the second must have aggravated it. It is still her opinion that, very likely, if the nurse returned to the same area, the nerve was aggravated. If Fricke felt no pain on the second attempt, it was partially because the nerve had already been traumatized. Dr. Jamison understood that IVs can be started in the wrist area, although if there is adequate access in the hand, it would be better to use that hand with fewer nerves in the area. If a nurse is comparing two sites, she should go to the one least likely to be near a nerve.

Dr. James R. Douglas practices anesthesiology at Ochsner and testified by deposition. Within a month or two of Fricke’s carpal tunnel surgery, Dr. Douglas was advised that Fricke was experiencing a nerve problem in his left arm. Dr. IflDouglas spoke with Fricke and understood that Mills had attempted once to insert the IV in his left hand, that Fricke had some discomfort, and that Mills tried the IV on a second site, which was fine. Mills did not chart either multiple sticks or paraesthesia because it probably did not impress her as being a major issue. A good place to start an IV is the back of the left hand if the right hand is being operated on. Touching a nerve can happen in any area that has some innervation.

Suzanne Riche (“Riche”), a registered nurse, was accepted as an expert in the field of nursing. She testified that, among other things, she taught IV therapy to nursing students and in the military. Riche stated that, in her opinion, Mills met the standard of care for nurses when she started the IV on Mr. Fricke. She demonstrated the proper technique in court. If a nurse examined a hand and determined that the cephalic vein above the wrist area looked more accessible than veins in the hand, it is acceptable to start the IV there. The part of the wrist nearest the hand is not the preferred site because of a nerve cluster around the cephalic vein there and because the wrist there is flexible. A reasonable, competently trained nurse should have known to avoid the wrist and been aware of the potential for nerve injury. However, Riche was not aware of any publication as of 1996 that recommended an IV not be started within four or five inches of the wrist. It was Riche’s understanding that the IV started by Mills’ IV was just above the level of the wrist, and she herself has started IVs there. Before coming close to nerve-rich area, Riche would look at whatever sites were available. It is unusual to put Lidocaine as far from the IV entry as Fricke had testified it was done. It is not unusual for a patient to express pain, but a nurse should withdraw the needle if they do. Then the attempt could be made in the same vein, but at least an inch closer to the heart. A nurse, exercising proper technique and skill, can, nevertheless, cause a nerve injury.

|inOn appeal, Fricke asserts that two salient facts, not in dispute, evidence that the jury was manifestly erroneous in failing to conclude that Mills lacked the necessary degree of knowledge or skill ordinarily exercised by a health care provider under the circumstances. The points, according to Fricke, are that Mills was not aware of the potential for nerve injury during an IV insertion and that she was not aware of the increased risk of nerve injury from an IV attempt in the wrist. Combined with testimony that the standard of care required Mills to have this knowledge, Fricke urges manifest error occurred. Fricke asserts that the testimony conclusively shows that Mills went directly to the wrist without attempting or evaluating any other area. Fricke also contends that Ochsner was negligent for failing to competently train its intravenous nurses.

The burden of proof in a malpractice suit is governed LSA-R.S. 9:2794(A). A medical malpractice claimant carries a burden of proof that is two-fold. The plaintiff must establish by a preponderance of the evidence that the treatment was below the standard of care for particular specialties and a causal relationship existed between the alleged negligent treatment and the injury sustained. Whether alleged malpractice constitutes negligence is a question for the jury. In addition, the manifest error rule applies in appeals of medical malpractice actions. It is the jury’s duty to assess the testimony and credibility of all witnesses and to make factual determinations regarding these evaluations. In a medical malpractice case, “a reviewing court will give great deference to a jury’s findings when medical | n experts express different views, judgments, and opinions on whether the standard of care was met in any given case.”

Expert opinions are necessary sources of proof whose views are persuasive, though not controlling, and any weight assigned to their testimony by the jury is dependent upon the expert’s qualifications, experience, and studies upon which his testimony is based. When a factfinder’s decision is based on crediting the testimony of one or more witnesses, that finding can virtually never be manifestly erroneous -or clearly wrong.

After a review of the record, we find that the verdict of the jury is not manifestly erroneous or clearly wrong. Although Mills testified that she was not aware of the potential for nerve damage as a risk of venipuncture, that testimony in and of itself is not a basis for a finding that the procedure was negligently performed. While the evidence did not clearly prove the exact location of the first stick, Mills testified that, in her experience, the area near where the wrist bends is not a good place for IVs, although for reasons other than that it is a nerve-rich location as expressed by Riche. The jury could have reasonably concluded that the first stick was not made at that hand juncture. In addition, all of the experts testified that the wrist area is an acceptable location in which to begin an IV, and several stated they had also started IVs in the wrist. They further agreed that nerve injuries can occur in the absence of negligence. Fricke’s expert, Mr. Gagnard, admitted that he has had patients experience nerve pain even while exercising due care. There was no testimony or evidence that it is negligence per se to perform venipunc-ture in an area where nerves are present. The jury could reasonably have | ^determined that the wrist area is a suitable area in which to start an IV, and that Mills was not negligent in making that decision.

Further, there was a reasonable basis for a determination that Mills did not make the second try in the same spot as the first. Fricke himself wavered and was uncertain as to where the sticks were made, particularly the second attempt, and Mills testified that she would not return to the same area after significant pain is reported. There was no physical evidence on this issue. Although it is apparent that Fricke suffered a nerve injury, there was nothing in the evidence to indicate that the IV was administered improperly. Thus, considering the evidence as a whole, the jury could reasonably conclude that Mills did not lack the requisite knowledge or skill ordinarily exercised by a health care provider administering an IV, or that she failed to use reasonable care along with her best judgment, in applying that skill to Fricke.

For the foregoing reasons, the judgment is affirmed. Costs are assessed to the appellant.

AFFIRMED.

      . Martin v. East Jefferson Gen. Hosp., 582 So.2d 1272, 1276 (La.1991); Burns v. UHS of New Orleans, Inc., 2002-1514 (La.App. 4 Cir. 2/19/03), 841 So.2d 51, writ denied, 2003-0793 (La.5/9/03), 843 So.2d 408. See also, Beilenson v. Jefferson Parish Hosp. Serv. Dist. No. 2, 04-814 (La.App. 5 Cir. 12/14/04), 891 So.2d 74.

      . Dutton v. O'Connell 04-1287 (La.App. 5 Cir. 4/26/05), 901 So.2d 602, 606, writ denied, 2005-1605 (La.1/9/06), 918 So.2d 1049.

      . Dutton v. O’Connell, supra (citing Martin v. East Jefferson Gen. Hosp., supra and Alello v. Smith, 94-103 (La.App. 5 Cir.7/26/94), 641 So.2d 664).

      . Id.

        . Dutton v. O’Connell, supra, at 606.

      . 'Id.

      ; Id.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Felicia WASHINGTON, Plaintiff-Respondent, v. STATE of Louisiana, through the DEPARTMENT OF SOCIAL SERVICES, Defendant-Applicant.
    No. 40,878-CW.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.

      Charles C. Foti, Jr., Mark E. ■ Posey, Louisiana Department of Justice, for Applicant.
    Williams Family Law Firm, L.L.C., by Joe Payne Williams, for Respondent.
    Before STEWART, CARAWAY and DREW, JJ.
   CARAWAY, J.

| t Plaintiff brings this personal injury claim which resulted from the actions of children whose custody had been the subject of actions by the State of Louisiana, through the Department of Social Services (“DSS”). DSS filed an exception of no cause of action which the trial court denied. The exception placed at issue whether the state agency may be held strictly liable for torts committed by children whose care, at the direction of the DSS, was placed with other parties. This court granted a writ of certiorari; we now reverse, sustain the exception and remand to the district court with instructions.

Facts

The matter was presented below on' an exception of no cause of action, so the facts alleged in the petition are taken as true. In March 2003, Felicia Washington was an employee at a residential facility for “wayward children” between ages 8 and 18, operated by Hope Youth Ranch, Inc. (“Hope”). While Washington was working, two juveniles “became embroiled in a fistic encounter.” Her petition alleges that because of her duties at Hope, she “was required to try and break up” the fight. When she did so, she was pushed backward and allegedly suffered a serious back injury.

Washington sued DSS, alleging that the two youths involved in the fight “had been placed at [Hope] through a foster home program operated by [DSS].” She also alleged the boys “were considered foster children of \¶,[DSS],” and because of these facts, DSS was liable in tort for her injuries resulting from the boys’ actions. Significantly, Washington’s petition contains no allegation of facts concerning acts or omissions by DSS indicating its negligent involvement in the occurrence.

In response, DSS filed an exception of no cause of action, urging that there is no basis for strict liability for minors’ tortious acts because the agency was neither the parent nor tutor of the children in foster care. Washington opposed the exception, and following a hearing, the trial court overruled DSS’ exception. DSS seeks review of the ruling.

Discussion ■

The peremptory exception of no cause of action tests the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Knutsen v. Prince, 40,109 (La.App.2d Cir.9/21/05), 911 So.2d 404, (citing Industrial Companies, Inc. v. Durbin, 02-665 (La.1/28/03), 837 So.2d 1207). The exception is triable on the face of the petition and the well-pleaded facts of the petitions must be accepted as true. Knutsen v. Prince, supra; Robertson v. Caddo Parish, La., 36,540 (La.App.2d Cir.12/11/02), 833 So.2d 1139, writ denied, 03-729 (La.4/23/04), 870 So.2d 284. The appellate court conducts a de novo review of a no cause of action exception because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition. Knutsen v. Prince, supra; Robertson v. Caddo Parish, La., supra. When the grounds of the peremptory exception l3of no cause of action may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. La. C.C.P. art. 934. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. Id.

Notably, the reason for the juveniles’ placement at Hope is not stated in the plaintiffs petition. Presumably, the custody of these minors was placed with Hope by the administrative actions of DSS. La. R.S. 46:51 provides, in part:

The Department of Social Services, through its secretary, shall administer the public assistance and welfare laws of the state, as follows:
* * *
(8) Administer and supervise all public child welfare activities relating to children who are dependent, neglected, delinquent, or physically or mentally handicapped; establish, extend, and strengthen services for such children in parish or regional offices; license and supervise all parish, municipal, and private agencies, institutions, and individuals, caring for children, including visitorial powers, under the rules and regulations of the department; contract with private individuals to hold their homes open for and to care for children in need of temporary or long time foster care and provide such other services for children as may be authorized by law.

We have reviewed various provisions of the Children’s Code under which DSS could have placed these children in the custody of a private agency such as Hope. See La. Ch. C. art. 681 (Title TV, Child in Need of Care); La. Ch. C. art. 779 (Title VII, Families in Need of Services); La. Ch. C. art. 801, et seq. (Title VIII, Delinquency). These statutes provide three possible sources for custodial placement with a private institution occurring pursuant]^) court order under La. Ch. C. arts. 684, 782 and 897. Under La. Ch. C. art. 683(C), the selection of a private institution is addressed as follows:

(C) If the court commits a child to a private institution or agency, it shall select one that has been licensed under state law, if licensure is required by law for such an institution or agency. When no institution, social agency, or association so licensed for care or placement of children is available to the court, the court may commit the child to some other institution, social agency, or association which in the court’s judgment is suitable for such child.

Further, La. Ch. C. art. 116(12) provides:

(12) “Legal custody” means the right to have physical custody of the child and to determine where and with whom the child shall reside; to exercise the rights and duty to protect, train, and discipline the child; the authority to consent to major medical, psychiatric, and surgical treatment; and to provide the child with food, shelter, education, and ordinary medical care, all subject to any residual rights possessed by the child’s parents.

Washington concedes in her argument the inapplicability of the so-called strict liability of Civil Code Article 2318 for the parents’ responsibility for the acts of their minor children. That strict liability was established by the supreme court in Turner v. Bucher, 308 So.2d 270 (La.1975), upon the following ruling:

We conclude that although a child of tender years may be incapable of committing a legal delict because of his lack of capacity to discern the consequences of his act, nevertheless, if the act of a child would be delictual except for this disability, the parent with whom he resides is legally at fault and, therefore, liable for the damage occasioned by the child’s act. This legal fault is determined without regard to whether the parent could or could not have prevented the act of the child, i.e., without regard to the parent’s negligence. It is legally imposed strict liability.

Id. at 277. Following the pronouncement of this strict liability in Turner, the Louisiana courts of appeal have refused to impose such parental strict | liability upon the state for harm caused by children in state foster care. Opelousas Scrap Materials, Inc. v. State, Div. of Evaluation & Services, Foster Homes Program, 525 So.2d 1144 (La.App. 3d Cir.1988); Gooden v. State, Dep’t. of Health and Human Resources, 546 So.2d 279 (La.App. 3d Cir.1989), writ denied, 551 So.2d 630 (La.1989); Edwards v. Burgess, 96-2064 (La.App. 4th Cir.10/1/97), 700 So.2d 1129; Harris v. Stimac, 99-2070 (La.App. 1st Cir.9/22/00), 768 So.2d 265. Nevertheless, this jurisprudence has allowed examination of the question of the state’s negligence.

Despite the absence of Turner’s strict liability under Article 2318, Washington argues that Civil Code Article 2317 alone applies and suggests that DSS’s liability flows merely from its legal relationship with the foster children “as persons for whom [DSS is] answerable” as addressed under that article. This claim, like the liability of Article 2318, is for strict liability and not for fault based upon negligent acts or omissions.

Prior to 1996, Article 2317, as interpreted by Loescher v. Parr, 324 So.2d 441 (La.1975) and its progeny, imposed strict liability solely “based upon the relationship, i.e. supervision and control, between the person with custody and the thing posing an unreasonable risk of harm to others.” Dupree v. City of New Orleans, 99-3651 (La.8/31/00), 765 So.2d 1002. Apart from the specific illustrations (or “modifications”) of the principle of Article 2317 found in Articles 2321 and 2322 for the ownership of animals |fiand buildings, respectively, Loescher applied Article 2317 as a stand-alone rule for strict liability for all defective things in one’s custody.

There has been no similar ruling broadly interpreting in the manner now suggested by Washington the additional language of Article 2317 for “persons for whom we are answerable.” The relationships among persons such as parent-child, curator-interdict and employer-employee are the subject of substantive law, and under Articles 2318, 2319, and 2320 may give rise to fault without negligence or strict or vicarious liability in those instances. Given the complex and varying relationships between people, in this case among the state, Hope and these minors, one general rule of legal responsibility in the form of strict liability for all such relationships is not clearly expressed in the language of Article 2317 nor within its intendment. Therefore, in the absence of a specific statute imposing strict or vicarious liability upon a given relationship between persons, such relationship like the one here will be subject to our law governing fault pursuant to Article 2315 and a showing of negligence.

In this case, DSS placed children with Hope for their welfare and that of society, particularly to the extent that acts of delinquency may be involved. We identified above the statutory authority in the Children’s Code under which DSS may have recommended placement of the children with Hope pursuant to dispositional orders of a court. In allowing for that statutory placement scheme, the legislature did not choose to make DSS vicariously liable to third parties injured by the child, and as reviewed above, our general tort law under La. C.C. arts. 2317, et seg., imposes no 17such responsibility. Accordingly, there is no statutory basis for strict or vicarious liability on the part of DSS.

Finally, in reaching this conclusion regarding DSS’s duty vis-a-vis an injured third party, we find the rationale of Miller v. Martin, 02-0670 (La.1/28/03), 838 So.2d 761, inapplicable. Miller pronounced and employed a non-delegable duty of the state for the well-being of children harmed by placement in foster care and found the state vicariously liable for the acts of the foster parents against the child. We hold that DSS is not vicariously or strictly liable for the acts of a foster child and that the only duty owed DSS to an injured third party is the duty of reasonable care for the placement of the child’s custody and supervision in another party.

In summary, we find that it was incumbent upon Williams to allege negligent acts or omissions on the part of DSS as the cause for her injuries. The petition makes no such allegation, and DSS’s exception of no cause of action applies.

Conclusion

For the above reasons, the ruling of the district court is reversed and the exception of no cause of action is sustained. The matter is remanded to allow the plaintiff to attempt within fifteen days to amend her petition to state a cause of action in accordance with this opinion. Costs of appeal are assessed to plaintiff.

REVERSED AND REMANDED.

      . The petition does not allege the ages of the youths and indicates that youths "between the ages of eight and eighteen” are housed at the facility. Given the petition's description of the youths as "children,” we believe the petition has sufficiently alleged that the youths had not yet reached the age of majority at the time of this incident.

      . By the enactment of La. C.C. art. 2317.1 and the addition of the requirement that the custodian of a thing have knowledge or constructive notice of the defect of the thing, the strict liability test for things in one’s custody existing prior to 1996 has been changed to a negligence standard. Reitzell v. Pecanland Mall Assoc., Ltd., 37,524 (La.App.2d Cir.8/20/03), 852 So.2d 1229.


author: PEATROSS, J.

text:
    Tonya A. COLVIN, Plaintiff-Appellant, v. LOUISIANA PATIENTS COMPENSATION OVERSIGHT BOARD, Defendants-Appellees. Thomas Miller, Plaintiff-Appellant, v. Louisiana Patients Compensation Oversight Board, Defendants-Appellees.
    Nos. 40,903-CA, 40,904-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 12, 2006.
    Nelson & Hammons, by John L. Ham-mons, Cornell R. Flournoy, and Frank M. Ferrell, Shreveport, for Appellants.
    Louisiana Department of Justice, by Charles C. Foti, Jr.-, Attorney General, Jerald L. Perlman, Asst. Attorney General, Roedel, Parsons, Koch, Blache, Balhoff & McCollister, by Carlton Jones, III, Larry M. Roedel, Baton Rouge, for Appellees.
    Before PEATROSS, DREW & MOORE, JJ.
   PEATROSS, J.

h These consolidated cases began as medical malpractice actions, wherein the respective plaintiffs, Tonya Colvin and Thomas Miller, settled with the healthcare providers for the statutory maximum of $100,000 and reserved their rights against the Patient’s Compensation Fund for damages. The underlying medical malpractice actions were properly filed in Caddo Parish, Louisiana. Subsequently, Colvin and Miller filed the instant suits, also in Caddo Parish, claiming that the Patient’s Compensation Fund Oversight Board (“PCFOB”) failed to promptly and in good faith evaluate their claims so that full and complete compensation could be made. Both plaintiffs seek declaratory and monetary relief against the PCFOB for negligent adjustment and administration of the underlying medical malpractice claims.

Exceptions of improper venue were filed by the PCFOB in both Colvin’s and Miller’s actions. The exceptions were granted and the cases were dismissed without prejudice. Colvin and Miller then filed suit in Bossier Parish, Louisiana, where both are domiciled, and the two cases were consolidated. The PCFOB then filed exceptions of improper venue in Bossier Parish, which were granted, and the cases were transferred to the 19th Judicial District Court in East Baton Rouge Parish, Louisiana. This appeal ensued. For the reasons stated herein, we reverse and remand this case back to the 26th Judicial District Court, Bossier Parish.

DISCUSSION

Colvin and Miller argue that venue is proper in Bossier Parish and, alternatively, that venue is proper in Caddo Parish.

I p.La. R.S. 13:5104. Venue, provides in pertinent part:
A. All suits filed against the state of Louisiana or any state agency may be instituted before the district court of the judicial district in which the state capítol is located or in the district court having jurisdiction in the parish in which the cause of action arises. (Emphasis added.)

Focusing on the phrase “cause of action” from the statute, the plaintiffs argue that, while venue may be proper in East Baton Rouge Parish, venue is also proper in Bossier Parish because that is where the causes of action arose in both suits. Col-vin and Miller are domiciled in Bossier Parish and urge that the special financial losses and general emotional and mental anguish and distress from the intentional and negligent action and inactions of the PCFOB arose and continue in this parish. We agree.

Under the plain language of the statute, in a suit against the PCFOB, venue is clearly proper in East Baton Rouge Parish since that is where the PCFOB is located. The venue provision of the statute, however, is written in the disjunctive, indicating that there may be multiple proper venues for an action against this state agency. Hence, the central issue in this case is how the phrase “in which the cause of action arises” is defined, i.e., in which parish(es) does a cause of action arise so as to be a parish of proper venue (in addition to East Baton Rouge Parish) in a suit against the PCFOB.

Under Louisiana law, a cause of action accrues when a party has the right to sue. Landry v. Avondale Industries, Inc., 03-0719 (La.12/3/03), 864 So.2d 117. A negligence cause of action will arise only upon the happening of a wrongful act and the existence of an injury resulting in ^legally cognizable damages. Walls v. American Optical Corp., 98-0455 (La.9/8/99), 740 So.2d 1262. The plaintiffs in the case sub judice allege that they have suffered economic damages as well as general damages arising from, inter alia, the alleged intentional infliction of emotional and mental distress on the part of the PCFOB in failing to properly administer their claims. These damages were sustained by the plaintiffs in Bossier Parish, their parish of domicile.

In the analogous case of Louisiana Patient’s Compensation Fund Oversight Bd. v. Edwards, 39,149 (La.App.2d Cir.12/15/04), 891 So.2d 85, this court explained as follows:

The PCFOB argues that venue is only proper in East Baton Rouge Parish under the provisions of La. R.S. 13:5104, which designates venue in suits against certain public entities. Under La. R.S. 13:5104, venue for suits against the state, state agencies, and political subdivisions exists “in the parish in which the cause of action arises.” Moreover, the statutory venue is mandatory but waivable. Franques v. Evangeline Parish Police Jury, 93-1625 (La.10/1/93), 625 So.2d 157. In this case, the cause of action arises in Ouachita Parish where Lashley resides and where he has need for future medical care and related benefits. Accordingly, we find no merit to the PCFOB’s argument that venue is only proper in East Baton Rouge Parish.

Accordingly, we find that Bossier Parish is a parish of proper venue under La. R.S. 13:5104(A) and that the trial court’s ruling to the contrary was incorrect.

DECREE

For the foregoing reasons, the judgment of the trial court granting the Patient’s Compensation Fund Oversight Board’s exception of improper venue and transferring the case to East Baton Rouge Parish is reversed. The | ¿matter is remanded to the 26th Judicial District Court, Bossier Parish, for further proceedings.

REVERSED AND REMANDED.


author: BROWN, C.J.

text:
    Noula ROUDAKIS, et al., Appellants v. CITY OF RUSTON, Louisiana, et al., Appellees.
    No. 40,952-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 2006.

      Wiener, Weiss & Madison, by John M. Madison, Jr., M. Allyn Stroud, Shreveport, for Plaintiffs/Appellants.
    Lemle & Kelleher by Jerald N. Jones, Shreveport, for Defendants/Appellants.
    William S. Carter, Jr., Ruston, for Ap-pellee.
    Before BROWN, STEWART, and MOORE, JJ.
   BROWN, C.J.

|, Plaintiffs, residents of the City of Ru-ston (“the City”), filed this action against the City seeking declaratory and injunctive relief because the City’s board of aldermen had granted variances to its zoning ordinance that allowed Cingular Wireless to construct two cellular phone towers. Cin-gular Wireless, Frank Cordaro, and related entities were later added as defendants. Cingular Wireless filed a cross-claim against the City seeking an injunction to prevent the removal of the towers due to the preemptive authority of the Telecommunications Act of 1996 (“TCA”). The trial court denied plaintiffs’ claim with prejudice and denied Cingular’s cross claim without prejudice. For the reasons set forth below, the judgment of the trial court is affirmed.

Facts

In 1998, the City enacted a zoning ordinance that contained specific provisions and requirements for the location and construction of cellular towers. On June 2, 2003, the City, acting through its board of aldermen, approved applications for variances from the requirements of the Cellular Tower Zoning Ordinance with respect to the construction of two cellular towers by Cingular Wireless. The two towers were to be located near the Louisiana Tech campus at 711-712 Tech Drive and 408 West Mississippi. Variances were granted from the distance requirements for both, but no ^specific variances were granted from the 25-foot setback or the landscaping requirements.

Plaintiffs, residents of Ruston, filed a petition for declaratory and injunctive relief alleging that the action by the City in granting the two variances was invalid because the ordinance contained no objective standards for allowing a variance. Cingu-lar Wireless filed a cross-claim seeking an injunction to prohibit the City from complying with plaintiffs’ request due to the preemptive authority of the TCA.

The trial court held that, because plaintiffs failed to specifically plead that the Cellular Tower Zoning Ordinance was unconstitutional in either their original or first supplemental and amending petition, and further failed to serve the attorney general with a copy of the pleadings, the trial court was precluded by the provisions of La. C.C.P. art. 1880 from determining the constitutionality of the ordinance. Additionally, the trial court held that, based on the evidence, plaintiffs had not demonstrated that the City’s decision was arbitrary or unreasonable. Finally, the trial court held that the defendants, in their cross-claim against the City seeking a permanent injunction, did not meet their burden of proof and denied the claim.

It is from this ruling that plaintiffs have appealed.

Discussion

Louisiana Code of Civil Procedure article 1880 provides that if an ordinance is alleged to be unconstitutional, the attorney general of the state shall be served with a copy of the proceeding and given an opportunity to be | sheard. In Vallo v. Gayle Oil Company, Inc., et al., 94-1238 (La.11/30/04), 646 So.2d 859, 864-65, the court stated:

Our Code of Civil Procedure does not require a single procedure or type of proceeding for challenging or assailing the constitutionality of a statute. However, the long-standing jurisprudential rule of law is: a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.
The pleadings allowed in civil actions are petitions, exceptions, written motions and answers. LSA-C.C.P. art. 852. Therefore, when the unconstitutionality of a statute is specifically pled, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings.

Paragraph two of plaintiffs’ first supplemental and amended petition for declaratory and injunctive relief states:

Plaintiffs re-allege all allegations of their original petition as though written in full herein, provided, however, if it is shown that the Zoning Ordinance has a provision for the granting of variances, the plaintiffs show that such a provision contains no criteria for the granting of a variance and does not meet the requirements of law.

Plaintiffs cited a number of cases to support their contention that the variances were granted in error: Tiber Petroleum, Inc. v. Jefferson Parish, 391 So.2d 1178 (La.1980); Morton v. Jefferson Parish Council, 419 So.2d 431 (La.1982); Summerell v. Phillips, 282 So.2d 450 (La.1973); McCauley v. Albert E. Briede & Son, 231 La. 36, 90 So.2d 78 (1956). Each of these cases deal squarely with the unconstitutionality of a particular ordinance for failure to include objective standards.

Plaintiffs argue that the trial court misinterpreted the nature of their claim for relief. According to plaintiffs, they never sought a judgment |4declaring the Zoning Ordinance to be unconstitutional. Instead, it was plaintiffs’ position that in the absence of any criteria for granting a variance, the Zoning Ordinance “does not meet the requirements of law” for the granting of a variance.

In Morton, supra, at 434, the supreme court wrote:

The authority to enact zoning regulations flows from the police power of governmental bodies and is valid if it bears a rational relation to the health, safety and welfare of the public. Folsom Road Civic Association v. Parish of St. Tammany, 407 So.2d 1219 (La.1981); Four States Realty Co., Inc. v. City of Baton Rouge, 309 So.2d 659 (La.1974). Zoning ordinances are presumed to be valid; the party attacking the ordinance bears the burden of proving that it is unconstitutional or that it was applied in an arbitrary and discriminatory manner. Furr v. Mayor and City Council of Baker, 408 So.2d 248 (La.1981); Folsom Road Civic Association v. Parish of St. Tammany, supra; Southside Civic Association v. Guaranty Savings Assurance Co., 339 So.2d 323 (La.1976).
However, a zoning ordinance which contains no standard for the uniform exercise of the power to grant or deny applications for permits is unconstitutional. Summerell v. Phillips, 282 So.2d 450 (La.1973); Gaudet v. Economical Super Market, Inc., 237 La. 1082, 112 So.2d 720 (1959); McCauley v. Albert E. Briede & Son, 231 La. 36, 90 So.2d 78 (1956). To be constitutional, a zoning ordinance must be sufficiently definite to notify citizens of their rights pursuant to the ordinance and must establish adequate standards to govern officials with respect to the uniform treatment of applications for permits under the ordinance. Summerell v. Phillips, supra.

As found by the trial court, plaintiffs’ claim that the zoning ordinance contains no standard for the uniform exercise of power to grant or deny a variance is based upon an assertion of unconstitutionality of the ordinance. Plaintiffs’ pleadings do not claim the ordinance is unconstitutional nor was the attorney general served. Therefore, we are constrained to affirm the trial court’s ruling.

[sThe trial court also found that the board of aldermen considered the facts and circumstances of the case, and exercised their authority honestly and upon due consideration. The trial court relied on Bailey v. Parish of Caddo, 30,822 (La.App. 2d Cir.08/19/98), 716 So.2d 523, 527, writ denied, 98-2642 (La.12/11/98), 730 So.2d 461, in which this court observed that:

Zoning regulation flows from the police power of government bodies and is valid if it bears a rational relation to the health, safety and welfare of the public. La. Const. Art. 6 § 17; Morton v. Jefferson Parish Council, 419 So.2d 431 (La.1982).

The trial court noted the testimonies of several of the board members. Lavel Thurman, Jedd Lewis, Elmore Mayfield each testified to taking into consideration the safety, aesthetic, and technical needs of the people of Ruston in deciding to grant the variances, as well as the need to allow Cingular a fair chance to compete in the area. Prior to the enactment of the Zoning Ordinance, AT & T and Alltel had constructed towers in similar areas and similar distances from property lines.

David Ackerman, a licensed engineer who spoke to the board regarding safety concerns, stated that the monopole design of the two new towers is virtually infallible. Robert Jones, a Cingular engineer, stated by affidavit that no monopole cellular towers similar to the Ruston towers failed during the then recent Florida Hurricanes. Ackerman agreed. Jones further explained that there had been consistent extraordinary growth in cell phone usage among Louisiana Tech students since September 1999. The increased usage resulted in declining service.

1 ^Because the City did not specifically grant variances from the 25-feet setback and landscaping requirements, plaintiffs argue that the towers are in violation of these requirements, and that the only way to remedy the error is the removal of the towers. Sherry Bailey, the Ruston city planner, assured defendants that variance applications “covered all the bases.” Additionally, the record shows that the aider-men clearly approved the erection of the towers and intended to give the defendants a blanket variance to erect the towers.

The record shows that the board of aldermen considerations were reasonably related to the public health, safety, and the general welfare. A prima facie presumption of validity attaches to a zoning body’s actions. Bailey, supra. It is not within the province of the appellate court to second guess a zoning decision that appears to have been based on appropriate and well-founded concerns for the public. TSC, Inc. v. Bossier Parish Police Jury, 38,717 (La.App. 2d Cir.07/14/04), 878 So.2d 880.

Based on our disposition of this matter, we pretermit a discussion of defendants’ alternative assignment of error.

Conclusion

For the reasons set forth above, the trial court’s judgment dismissing part of plaintiffs’ suit for improper procedure, and finding that the City did not act in an arbitrary or unreasonable manner, are affirmed. Costs of appeal to be borne by the plaintiffs.

AFFIRMED.

      . These provisions are set forth in Ordinance No. 1301 of 1998, codified at Section 29-43(5) of the City of Ruston Municipal Code, and provide that a cellular tower must be located a distance equal to 200% of the tower height from the nearest residentially zoned property line, that the tower must be located a minimum distance from its property lines equal to 100% of its height, and that the owner of the tower must comply with setback and commercial landscaping requirements.

      . We note that this argument was first presented by defendants after trial in briefs to the trial court.


author: GASKINS, J.

text:
    Stanley MASON, Plaintiff-Appellant v. Rowena MASON, Defendant-Appellee.
    No. 40,804-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 2006.
    Rehearing Denied May 11, 2006.

      Louis Granderson Scott, for Appellant.
    Evelyn Kelly, for Appellee.
    Before GASKINS, CARAWAY and PEATROSS, JJ.
   GASKINS, J.

I,The plaintiff, Stanley Mason, appeals a trial court judgment partitioning the former community property of the plaintiff and the defendant, Rowena Mason. For the following reasons, we affirm in part and reverse in part the trial court judgment.

FACTS

The parties were married in 1980 and Stanley filed a petition for divorce, custody and visitation on December 13, 2000. A judgment of divorce was filed by the trial court on December 19, 2000. The former community property was not partitioned at that time.

On February 12, 2003, Stanley filed a petition for partition of the former community and attached a detailed descriptive list. Rowena asserted that the parties had reached an extrajudicial verbal agreement to partition the former community. She also traversed the detailed descriptive list filed by Stanley.

A hearing on the partition suit was held on March 26, 2004. On February 24, 2005, the trial court filed a judgment partitioning the community. After assigning a net value of $83,972.00 to the former community, the court awarded Stanley $8,217.45 and Rowéna $28,400.00 for reimbursement for payment of community debts. The court recognized that each party was entitled to a portion of the other’s retirement and then allocated assets and liabilities between them. Rowena received the family home, a vacant lot, a 1997 Ford Expedition, and household furnishings. Stanley received a 1968 Camaro, a master bedroom set and painting, a 1992 GMC pickup truck, a riding lawn mower, and savings bonds.

pin assigning community liabilities, Rowena was allocated the mortgage on the house, the loan on the Expedition, and the balance due on another loan. No liabilities were assessed to Stanley. After considering the reimbursement amounts owed between the parties, the court found that Rowena owed Stanley an equalizing payment of $1,803.35.

Stanley appealed the trial court judgment, arguing that the trial court erred in awarding Rowena reimbursement for one-half of the amount she paid on the mortgage on the family home and the loan on the Expedition after the termination of the community. He also claimed that the trial court erred in overvaluing the Camaro which was allotted to him in the partition.

VALUATION OF THE 1968 CAMARO

Stanley claims that he listed the value of his Camaro at $5,290.00, but that the trial court valued the car at $11,300.00, without any evidence to support that decision. This argument is without merit.

La. R.S. 9:2801(A)(4)(a) provides that the court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties. La. R.S. 9:2801(A)(4)(c) provides, in pertinent part, that the court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant.

|3A trial court has broad discretion in adjudicating issues raised by divorce and partition of the community regime. The trial judge is afforded a great deal of latitude in arriving at an equitable distribution of assets between the spouses. A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Sherrod v. Sherrod, 1997-907 (La.App. 5th Cir.3/25/98), 709 So.2d 352, writ denied, 1998-1121 (La.6/5/98), 720 So.2d 687.

In light of this discretion, the trial court is not required to accept at face value a spouse’s valuation of assets or debts, or claims against the community. See Cutting v. Cutting, 625 So.2d 1112 (La.App. 3d Cir.1993), writ denied, 1993-2770 (La.1/7/94), 631 So.2d 453; Sheridon v. Sheridon, 2003-103 (La.App. 3d Cir.2/4/04), 867 So.2d 38.

After the hearing on the suit for partition, the trial court ordered the parties to provide proof of the value of the automobiles involved in this case. Regarding the Camaro, the plaintiff attached a page from an internet car appraisal guide to his post-trial brief. This document lists the low retail price of the ear, with a V-8 engine at $5,290.00. This amount is circled. Low retail value is defined as a vehicle in mechanically functional condition. There was no evidence presented at trial as to the options on the car, such as a V-8 engine, or the condition of the car. Based upon the information furnished by Stanley, the average retail of such a vehicle, without a V-8 engine, is listed as $11,300.00. The average retail value is described as a vehicle in good condition overall. In its reasons for judgment, the trial court specified that it accepted the average retail value. |/There is no showing that the trial court abused its discretion in making this determination. The plaintiffs argument to the contrary is rejected.

REIMBURSEMENT FOR MORTGAGE PAYMENTS

The judgment of partition recognizes Rowena’s entitlement to one-half of the mortgage notes she paid on the former matrimonial domicile from the termination of the community property until the date of trial. This amount totaled $11,705.00.

Stanley contends that the trial court erred in ordering reimbursement to Rowena for one-half of the mortgage payments where she was awarded use of the family home during the proceedings and ownership of the house in the partition judgment. He also asserts that a spouse seeking reimbursement must show that separate funds were used to pay a debt of the community. Stanley claims that Rowena failed to make such a showing. These arguments are without merit.

La. R.S. 9:374(C) provides:

C. A spouse who uses and occupies or is awarded by the court the use and occupancy of the family residence pending either the termination of the marriage or the partition of the community property in accordance with the provisions of R.S. 9:374(A) or (B) shall not be liable to the other spouse for rental for the use and occupancy, except as hereafter provided. If the court awards use and occupancy to a spouse, it shall at that time determine whether or not to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings. If the parties agreed at the time of the award of use and occupancy to defer the rental issue, the court may make an award of rental retroactive to the date of the award of use and occupancy.

Lin McCarroll v. McCarroll, 1996-2700 (La.10/21/97), 701 So.2d 1280, the Louisiana Supreme Court held that rental payments may not be retroactively assessed under La. R.S. 9:374(C) unless otherwise agreed by the spouses or ordered by the court. The court reasoned that the use and management of a thing held in indivisión is determined by agreement of all the co-owners. A co-owner is entitled to use the thing held in indivisión according to its destination, but he cannot prevent another co-owner from making such use of it. Nevertheless, it is well established that a co-owner need not pay rent to another co-owner for his exclusive use of the eo-owned property. The assessment of rent under La. R.S. 9:374(C) requires an agreement between the spouses or a court order for rent contemporaneous with the award of occupancy. McCarroll v. McCarroll, supra. When there is no evidence of court ordered rent or an agreement between the parties, the occupying spouse is not liable for rent. Gay v. Gay, 31,974 (La.App. 2d Cir.6/16/99), 741 So.2d 149.

In this case, Rowena had the exclusive use of the family home, but there was no agreement or court order regarding rent. To disallow her reimbursement claim for one-half of the mortgage payments would be to effectively charge her for use of the home by retroactively assessing her rent for her occupancy, without either an agreement by the parties or a court order to that effect. This would violate La. R.S. 9:374(C) and the rule established in McCarroll v. McCarroll, supra. See Gill v. Gill, 39,406 (La.App. 2d Cir.3/9/05), 895 So.2d 807; Ball v. Ball, 32,851 (La.App. 2d Cir.3/1/00), 757 So.2d 824; Moore v. Moore, 2005-0290 (La.App. 3d Cir. 11/2/05) 917 So.2d 1126. Accordingly, the trial court did not err in awarding Rowena reimbursement for the mortgage payments.

Further, we reject Stanley’s argument that Rowena failed to prove the separate nature of the funds used to pay the house notes. The parties stipulated that Rowena made 40 payments on the mortgage after termination of the community until the date of the hearing. The record does not indicate that any source of community funds was used to make the payments. Therefore, the trial court correctly concluded that Rowena made the payments out of her separate funds.

REIMBURSEMENT FOR NOTES ON THE 1997 FORD EXPEDITION

Stanley contends that the trial court erred in ruling that Rowena was entitled to reimbursement for one-half of the payments she made on the 1997 Ford Expedition following the termination of the community. This argument has merit.

In Gill v. Gill, supra, this court rejected a spouse’s claim for reimbursement for one-half of the payments for a community automobile that had been in the exclusive use of that spouse. We stated that:

Interpreting Article 2365 for community automobile debt, the courts have held that a spouse who has the exclusive use of an automobile following the termination of the community is not entitled to credit for notes she paid on the vehicle. See, Bergeron v. Bergeron, 96-1586 (La.App. 3d Cir.4/9/97), 693 So.2d 199; Preis v. Preis, 94-442 (La.App. 3d Cir.11/2/94), 649 So.2d 593, writs denied, 94-2939, 94-2942 (La.1/27/95), 649 So.2d 392. Davezac v. Davezac, 483 So.2d 1197 (La.App. 4th Cir.1986), explained that this occurs because an automobile rapidly depreciates so that its use is directly related to its depreciation. We agree with this reasoning. The car note payments by the spouse using the vehicle are considered as |7payment for the depreciation caused by such use. Therefore, the trial court’s rejection of this reimbursement claim is affirmed.

The Gill opinion was contrary to an earlier opinion this court made on depreciating movables. In Chance v. Chance, 29,-591 (La.App. 2d Cir.5/7/97), 694 So.2d 613, we reasoned that La. C.C. art. 2365 makes no distinction between movable or immovable property that depreciates over time. We noted that the first circuit, in Williams v. Williams, 509 So.2d 77 (La.App. 1st

Cir.1987), refused to make the distinction applied by the other circuits in this state. In Chance, we allowed reimbursement for one-half of the separate funds expended by one of the parties after the termination of the community on the car payments for a former community vehicle.

We also note that several other circuits in this state distinguish between payments on former family homes and those made on automobiles. Those courts hold that mortgage payments on depreciable assets, like vehicles, are not reimbursable. In Gachez v. Gachez, supra, the fifth circuit reasoned that, even though reimbursement is allowed for separate funds expended, after the termination of the community and before the partition, on community mortgage notes for the former family home, the situation |sinvolving moveable property is distinguishable. The court in Gachez stated that automobiles tend to depreciate in value over a period of time and the use of the vehicle is directly related to its depreciation. Equity would dictate that a party should not have the full use, benefit, and enjoyment of the moveable at the expense of the other party. Accordingly, the reimbursement claim was denied.

Interestingly, the third circuit had a similar split of opinion on this issue. In Preis v. Preis, supra, and in Bergeron v. Bergeron, supra, the third circuit declined to award reimbursement for payments made following the termination of the community by a spouse who had exclusive use of an automobile. However, in Nash v. Nash, 2001-766 (La.App. 3d Cir.10/31/01), 799 So.2d 829, writ denied, 2001-3154 (La.2/1/02), 808 So.2d 344, a panel of the third circuit held that there was no reason for any distinction in the application of La. C.C. art. 2365 and allowed reimbursement.

In Sheridon v. Sheridon, supra, the third circuit rendered an opinion en banc to resolve the conflict. The Sheridon court examined La. C.C. art. 2365 and concluded that the provision was not applicable to those instances in which a spouse seeks reimbursement for separate funds spent to satisfy a community obligation after the termination of the community. In reaffirming the holdings in Preis and Bergeron, the Sheridon court reasoned as follows:

The phrase “upon termination of the community property regime” is crucial to our interpretation of La. Civ.Code art. 2365. The Article does not say “upon partition,” but specifically uses the words “upon termination.” Because of the | nspecific language used, it is clear that the reimbursement scheme contemplated by La. Civ.Code art. 2365 pertains solely to debts paid during the marriage, and not those paid after divorce. Thus, Ms. Sheridon would be entitled, under La.Civ.Code art. 2365, to reimbursement for community debts she paid with separate funds before termination of the marriage. As such, La. Civ.Code art. 2365 is not applicable to the matter before us, and we specifically overrule this holding in Nash.

The court in Sheridon concluded that the trial court erred in ordering the former husband to reimburse the ex-wife for one-half of the amount she paid on a community car after the termination of the community and before the partition.

In the case sub judice, we likewise hold that the more reasonable interpretation of the applicable authority is that contained in Gill v. Gill, supra, as set forth above and followed by the third, fourth, and fifth circuits of this state. Accordingly, we reverse that portion of the trial court judgment which ordered that Rowena was entitled to reimbursement for one-half of her separate funds spent on the note on the Expedition. Limited to this issue, we overrule our contrary opinion in Chance v. Chance, supra.

However, we note that the trial court also allowed reimbursement to Stanley for $1,200.00, one-half of the payments he made on the Camaro after the termination of the community. Even though Rowena has not appealed or answered the appeal questioning this item of reimbursement, it would be inequitable to hold that she is not entitled to reimbursement for payments made on the Expedition while allowing reimbursement to Stanley for the Camaro. La. C.C.P. art. 2164 provides that an appellate court shall render any judgment which is just, legal, and proper upon the record on |inappeal. Accordingly, we also reverse that portion of the trial court judgment granting reimbursement to Stanley for $1,200.00.

CONCLUSION

For the reasons stated above, we affirm the trial court ruling regarding the valuation of the 1968 Camaro awarded to Stanley Mason and the reimbursement claim of Rowena Mason for one-half of the mortgage payments she made on the former family home after termination of the community.

We reverse that portion of the trial court judgment allowing reimbursement to Rowena Mason for one-half of the payments made on the 1997 Ford Expedition, $10,916.80. We also reverse the trial court judgment granting reimbursement to Stanley Mason of one-half of the payments he made on the Camaro, $1,200.00. Accordingly, we find that Rowena Mason owes an equalizing payment to Stanley Mason of $11,520.15. Costs in this court are assessed one-half to Stanley Mason and one-half to Rowena Mason.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

APPLICATION FOR REHEARING

Before GASKINS, CARAWAY, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.

      .La. C.C. art. 2365 provides in pertinent part:
      If separate property of a spouse has been used to satisfy a community obligation, that spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. The liability of a spouse who owes reimbursement is limited to the value of his share in the community after deduction of all community obligations.

      . The trial court decision in the present case, citing Chance, was entered shortly before this court rendered Gill v. Gill, supra.

        . See Moore v. Moore, supra; Gautreau v. Gautreau, 1996-1548 (La.App. 3d Cir.6/18/97), 697 So.2d 1339, writ denied, 1997-1939 (La.11/7/97), 703 So.2d 1272; Bergeron v. Bergeron, supra; Preis v. Preis, supra; Meyer v. Meyer, 553 So.2d 943 (La.App. 4th Cir.1989); Davezac v. Davezac, supra; Gachez v. Gachez, 451 So.2d 608 (La.App. 5th Cir.1984), writ denied, 456 So.2d 166 (La.1984).

      . The amount is reached by offsetting $10,916.80, and $1,200.00 in reimbursement for car payments improperly granted, for a total of $9,716.80. This figure is added to $1,803.35, the amount previously awarded by the trial court to achieve the total amount of equalizing payment due from Rowena to Stanley, $11,520.15.