author: GENOVESE, Judge. THIBODEAUX, Chief Judge,

text:
    Ronald J. CARTER v. D P & L TIMBER.
    No. 2006-714.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 8, 2006.
    Rehearing Denied Jan. 10, 2007.

      George Flournoy, Flourney & Doggett (APLC), Alexandria, Louisiana, for Plaintiff/Appellant, Ronald J. Carter.
    Shannon Seiler Dartez, Hurlburt, Privat & Monrose, Lafayette, Louisiana, for Defendant/Appellee, D P & L Timber.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

11 In this workers’ compensation case, the Workers’ Compensation Judge (WCJ) ruled that: (1) Claimant’s surgical recommendation was reasonable and necessary; (2) Claimant was totally and permanently disabled; and (3) the language in a previously filed joint petition to settle back-due benefits constituted a judicial confession of Claimant’s average weekly wage. The judgment also cast each party with its own costs. Claimant appeals. For the following reasons, we affirm in part, and reverse in part.

FACTS

Claimant, Ronald J. Carter (Carter), was injured in a work-related accident on November 12, 2000. In 2000, Carter filed a Disputed Claim for Compensation Form (1008) with the Office of Workers’ Compensation (OWC) when disputes arose between Carter and his employer, D P & L Timber (DPL), regarding his entitlement to and the amount of workers’ compensation benefits. In 2002, the parties filed a joint petition and compromise settlement for all claims for back-due indemnity benefits between November 12, 2000, and February 11, 2002, which settlement agreement was approved by the OWC.

An issue later arose regarding Carter’s medical treatment and condition which resulted in his filing a second 1008 in 2003. Carter contended that he was entitled to undergo a lumbar surgery, which had been recommended to him by Dr. Clark Gun-derson, and also sought penalties and attorney fees. In its answer, DPL asserted that Carter was totally and permanently disabled, which status entitled it to claim a social security offset against the amount of workers’ compensation benefits due.

The matter was set for trial on June 14, 2005. On the morning of trial, the parties reached a compromise agreement on the issues of penalties and attorney fees. 12Additionally, Carter raised the issue of the amount of his average weekly wage. Counsel for DPL objected to the introduction of evidence regarding Carter’s wages based upon the 2002 joint petition and compromise settlement. The WCJ took judicial notice of the previous filings and sustained the objection. Carter was allowed to proffer testimony on that issue.

On September 9, 2005, the WCJ issued oral reasons for judgment wherein he found that Carter proved by a preponderance of the evidence that he suffered a back condition, that the back condition was related to his work-related accident of November 2000, and that the lumbar surgery recommended by Dr. Gunderson was reasonable and necessary treatment. The WCJ also found that Carter was permanently and totally disabled, and awarded DPL an offset for social security benefits received pursuant to La.R.S. 23:1225(A). A judgment was signed on November 14, 2005, casting each party with their own costs of court. Carter filed a motion for new trial on the assessment of court costs which was denied. Carter then lodged this appeal.

ISSUES

The following issues are presented by Carter for our review:

1. Whether the WCJ erred in holding that the joint petition to settle back-due benefits constituted a judicial confession? Alternatively, if the language constituted a judicial confession, should it be revoked on the basis of error of fact?
2. Whether the WCJ abused his discretion in ordering Carter to bear his own costs?

LAW AND ARGUMENT

JUDICIAL CONFESSION

In the instant case, we are called upon to decide whether the WCJ was legally correct in holding that Carter’s average weekly wage, as expressed in the settlement documents filed with and approved by the OWC in 2002, constituted a judicial confession by Carter of his average weekly wage. This determination requires us to | ¡¡consider whether the law was correctly applied to the facts of this case.

An appellate court may not set aside a trial court’s finding of fact absent manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). However, when the trial court makes an error of law, the manifest error standard no longer applies. The Supreme Court of Louisiana has established that in the event of legal error:
the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine a preponderance of the evidence. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights.

Succession of Moss, 00-62, pp. 3-4 (La. App. 3 Cir. 6/21/00), 769 So.2d 614, 617, writ denied, 00-2834 (La.12/8/00), 776 So.2d 462 (citing Evans v. Lungrin, 97-541, pp. 6-7, (La.2/6/98), 708 So.2d 731, 735 (citations omitted)).

Louisiana Civil Code Article 1853 defines a judicial confession as “a declaration made by a party in a judicial proceeding.” Louisiana Civil Code Article 1853 further provides that a judicial confession “constitutes full proof against the party who made it” and that it “is indivisible and it may be revoked only on the ground of error of fact.” Once a judicial confession is made by a party, it “has the effect of waiving evidence as to the subject of the admission-of withdrawing the subject matter of the confession from issue.” Cichirillo v. Avondale Indus. Inc., 04-2894, p. 6 (La.11/29/05), 917 So.2d 424, 429 (citing Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979); Sutton’s Steel & Supply, Inc. v. BellSouth Mobility, Inc., 00-511 (La.App. 3 Cir. 12/13/00), 776 So.2d 589, unit denied, 01-152 (La.3/16/01), 787 So.2d 316). However, a judicial confession by a party does not preclude that party from denying the correctness of the admission, unless the party claiming the benefit from the admission has relied on the admission to his prejudice. Crawford v. Deshotels, 359 So.2d 118 (La.1978).

14As this court explained in Leday v. Safeway Ins. Co. of La., 04-610, pp. 5-6 (La.App. 3 Cir. 11/17/04), 888 So.2d 1084, 1088:

A judicial confession under La.Civ. Code art. 1853 constitutes incontrovertible evidence of a particular issue and serves to waive the necessity of any further proof on that issue. Ramelow v. Bd. of Trustees of the [Univ.] of Louisiana System, 03-1131 (La.App. 3 Cir. 3/31/04), 870 So.2d 415, writ denied, 04-1042 (La.6/18/04), 888 So.2d 184; C.T. Traina, Inc. v. Sunshine Plaza, Inc., 03-1003 (La.12/3/03), 861 So.2d 156. In order for a party’s statement to constitute a judicial confession, it must be an express acknowledgment of an adverse fact. Jones v. Gillen, 564 So.2d 1274 (La.App. 5 Cir.1990); Sanders v. Earnest, 34,656 (La.App. 2 Cir. 7/24/01), 793 So.2d 393; State v. Lamb, 31,919 (La. App. 2 Cir. 5/7/99), 732 So.2d 1270. Additionally, “the adverse party must have believed the fact was no longer at issue or must have relied on it, to his detriment.” Lamb, 732 So.2d at 1270; Alexis v. [Metro.] Life [Ins.] Co., 604 So.2d 581 (La.1992); Jefferson Parish v. [Fid.] & Deposit Co., 95-951 (La.App. 5 Cir. 4/30/96), 673 So.2d 1238; Jones, 564 So.2d 1274.

As explained above, this is not the first litigation arising from Carter’s work-related accident of 2000. When the first 1008 was filed with the OWC in 2000, the calculation of Carter’s average weekly wage and indemnification rate was at issue, as was his disability status and medical treatment. In the 1008, Carter alleged that his average weekly wage was $710.00. In August of 2002, the parties filed a joint petition to compromise those claims with the OWC. The settlement documents expressly stated that Carter agreed to dismiss his claims for all back-due workers’ compensation benefits, including but not limited to, any claim for indemnity benefits, mileage, penalties and attorney fees. Notably, the amount of Carter’s average weekly wage is expressly noted therein as $503.73. We find that the provisions of these documents constitute “a declaration made by a party in a judicial proceeding” and, therefore, a judicial confession in accordance with La.Civ.Code art. 1853.

lRWe further conclude that DPL considered this fact to no longer be at issue. First, following the settlement between the parties in 2002, and thereafter, DPL paid Carter workers’ compensation benefits based on an average weekly wage of $508.73. Additionally, the second 1008 filed oh February 1, 2003 did not raise the issue of the calculation of Carter’s average weekly wage. Rather, the disputes identified on the 1008 included Carter’s entitlement to surgery and penalties and attorney fees. The reliance by DPL on this judicial confession continued until the date of the trial, when Carter raised the issue of his average weekly wage. The WCJ noted at the commencement of trial that Carter had not amended his 1008 to include the calculation of the average weekly wage as an issue, and he had not filed a pre-trial statement apprising the court and counsel that this was an issue to be addressed at trial. The record reveals that at trial, and after the parties put a partial settlement on the record, counsel for Carter then stated that he intended to introduce evidence regarding Carter’s wages. It is evident from reading the trial transcript that this was the first notice to DPL that the average weekly wage was disputed.

For the foregoing reasons, we find no legal error in the WCJ’s ruling that Carter’s average weekly wage of $508.73 was judicially admitted by him in the joint petition for settlement which was field with the OWC in 2002, and that DPL considered that fact to no longer be at issue. As such, Carter’s judicial admission of his average weekly wage had the effect of withdrawing the subject matter from issue.

ERROR OF FACT

Carter argues, in the alternative, that if the prior settlement documents constituted a judicial admission of his average weekly wage, it should be revoked on the basis of error of fact pursuant to La.Ciy. Code art. 1853. We disagree.

Carter’s average weekly wage was an issue in dispute in the prior litigation. It was the subject of discovery, was calculated and agreed upon by the parties, and the | ¿matter ultimately culminated in a settlement. There is no evidence in the record of a factual error by Carter in this case. He did not set forth in the second 1008 any claim of mistake of fact or mistake in calculation involving his average weekly wage, nor did he amend his pleading to assert same. We find this contention to be without merit.

COURT COSTS

In his second assignment of error, Carter contests the assessment of court costs wherein the WCJ ordered that “each party bear their own costs.” For the following reasons, we find an abuse of discretion in the assessment of court costs and reassess costs as set forth below.

Louisiana Code of Civil Procedure Article 1920 provides, in pertinent part, that “the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.” “The trial court may assess costs against any party in the proportion it deems equitable, even against the party prevailing on the merits.” Greene v. Greene, 94-79, p. 4 (La.App. 3 Cir. 10/5/94), 643 So.2d 891, 894 (citing D.B. Orban Co. v. Lakco Pipe, 496 So.2d 1382 (La.App. 3 Cir.1986)).

In the case at bar, neither party prevailed on every issue. DPL was successful in establishing that Carter was totally and permanently disabled, and thereby entitled to claim a social security offset against the amount of workers’ compensation benefits it owed Carter. Likewise, the issue of Carter’s average weekly wage, and his judicial admission thereof, was resolved in favor of DPL. On the other hand, Carter prevailed on the issue of his entitlement to the recommended surgery. In light of the issues presented, and the judgment rendered, we reassess trial court costs by assessing the costs of taking the depositions of Drs. Gunderson, Ware, and Picou against the | ./Defendant, with all other related trial costs of court to be equally assessed against all parties.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in part, and reversed in part.

Costs of this appeal are assessed equally against all parties.

AFFIRMED IN PART; AND REVERSED IN PART.

THIBODEAUX, Chief Judge, dissents in part and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting in part.

|,The previous settlement which included the computation of average weekly wage does not constitute a judicial confession.

The second Form 1008 in 2003 was a separate lawsuit which focused on issues separate from and independent of the 2000 claim for back-due indemnity benefits. The 2000 claims were comprised by a settlement in 2002. The settlement encompassed the plaintiffs claim for “all back due workers’ compensation benefits.” The compromise settlement specifically stated that the “[ejmployee’s rights to any claims for workers’ compensation benefits arising after February 11, 2002, shall be reserved by Employee. (Emphasis supplied). This settlement in 2002 settled all previously disputed issues regarding back due benefits. It had nothing to do with the issue of permanent and total disability and entitlement to lumbar surgery.

A workers’ compensation claimant initiates a proceeding by filing a claim “on a form to be provided by the director.” La. R.S. 23:1310(A). The claim shall set forth the benefits in dispute. La.R.S. 23:1310(B). The term “claim” appears throughout the Workers’ Compensation Act but that term is not defined. However, “it is clear from the context of provisions using the term [in the Workers’ Compensation Act] that the underlying claim for relief is what is meant, not the | aenforcement of a judgment. A claim is initiated by the filing of a petition with the OWC once an issue surfaces which the parties cannot themselves resolve.” Fon-tenot v. Reddell Vidrine Water Disk, 02-439, 02-442, 02-478 (La.1/14/03), 836 So.2d 14. The parties could not resolve the issues of permanent and total disability and the necessity for lumbar surgery. Thus, a new claim, i.e., a new lawsuit, was initiated pursuant to La.R.S. 23:1310.

A judicial confession is “a declaration made by a party in a judicial proceeding.” La.Civ.Code art. 1853. That judicial confession was made in a judicial proceeding which governed the issues of back due indemnity benefits. It does not apply in all legal proceedings. It had nothing to do with the present disputes which the parties could not themselves resolve. That is why an additional claim was filed in 2003.

Further, the claimant makes a point in relying on Picard v. Vermilion Parish School Board, 00-1222 (La.App. 3 Cir. 44/01), 783 So.2d 590. There, we said that “[t]he judicial confession is binding on the court and must be applied as the law of the case in which it is made.... Thus, an earlier judicial confession does not bind a party in a subsequent proceeding unless the ‘other party claiming benefit of judicial estoppel resulting therefrom has been deceived by such judicial confession and has relied or acted thereon to his prejudice.’ ” The previous judicial confession regarding the average weekly wage was made in another proceeding with wholly different issues. No one was deceived by the past stipulation of average weekly wage in this present proceeding which was initiated by a separate Form 1008. In my view, this is an entirely new proceeding and the reference to the average weekly wage in a settlement for back-due indemnity benefits is not binding.

For the foregoing reasons, I dissent in part.

      . We agree with the WCJ's determination that Carter’s claim for back-due benefits necessarily encompassed a determination of his average weekly wage. See La.R.S. 22:1221.

      . A trial court's assessment of court costs will not be disturbed on review in the absence of an abuse of discretion. Ford v. State, through Dep’t of Pub. Safety, 00-1546 (La.App. 3 Cir. 6/5/02), 819 So.2d 1156.


source: Caselaw Access Project

author: JOAN BERNARD ARMSTRONG, Chief Judge. MURRAY, J.,

license: Public Domain

text:
    H.S.C. v. C.E.C.
    No. 2005-CA-1490.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 2006.

      Kim M. O’Dowd, O’Dowd & O’Dowd, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|, The defendant-appellant, hereinafter referred to variously as “C. C.” or “the father” appeals a judgment of the trial court, signed on March 18, 2005, permitting his spouse, hereinafter referred to variously as “H. S. C.” or “the mother”, to relocate their minor daughter, hereinafter referred to variously as “H. C.” or “the child”, to Medford, Oregon.

The parents were married on October 25, 1998 in New Orleans. One child was born of this marriage on April 13, 1999, the little girl who is the subject of this relocation litigation. The parties separated on December 1, 2001, filed for divorce on February 26, 2003 and the judgment of divorce was signed on June 5, 2003. From the time of the separation the child lived with the mother, although she visited frequently with the father as he picked her up after school and kept her for a couple of hours until the mother got off from work.

In June of 2004, the mother sent the father a letter informing him that “it is necessary for me to move on with my life in a new place.” The target date for the contemplated move was projected to be in the coming August, as “I believe the school year starts around the 16th of August.” The letter did not state where that 12new place might be. The letter did state that the mother felt that she would benefit professionally; that the unnamed city had virtually no crime; that the child and the child’s half-brother “would also not feel the constant stress level that is between the two of us”; that the two children would benefit from going to the same school and being on the same schedule; that it would eliminate the daily after-school transfer of the child between houses that resulted in inconsistent rules and levels of discipline. The letter offered to allow the child to visit the father during the summer and alternating major holidays.

In response, on July 12, 2004, the father filed an opposition to relocation as a result of which the trial court issued a custody evaluation order on July 23, 2004, ordering the parties to contact the court appointed custody evaluator, Ms. Clare Hesse. A trial on the relocation was ultimately heard on March 8, 2005, resulting in the judgment signed on March 18, 2005, allowing the relocation, which is now before the court on this appeal.

The judgment also established the following:

The visitation dates for [H.C.] to visit with her father and paternal grandparents are:
During March 2005 every Tuesday night, an overnight visit.
During April and May 2005, every Tuesday and Wednesday nights.
From June 1, 2005 for six consecutive weeks then returned to Heather Crab-tree.
In odd years (2005) father will have child for Christmas and even years (2006) for Thanksgiving.
[3Mother will have child on those holidays in the opposite order.
In the summer of 2006 and during this (2005) summer, child support payments are suspended for [t]he period of time child is with father, which money is to be used to pay for summer camps for [H.C.] Child support payments are to be paid for the period of time per month with mother.
The summer of 2006 father will have the child for ten (10) weeks, June July and first two weeks in August and for the same time period each year thereafter. Resumes of those persons who will be caretakers for [H.C.] while with [H.S.C.] will be sent to [H.C.’s] father, also [H.C.’s] doctors, school, report cards, etc.

The father filed a motion for new trial. On May 13, 2005, the trial court signed a judgment denying the application for new trial; declaring that the trial court retained jurisdiction over the matter; and specifying how the transportation costs of the child’s visitation should be allocated between the parents.

This is what is known as a “child relocation” case and falls under La. R.S. 9:355.13, et seq. According to the leading relocation case, Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094, the trial court’s determination in a relocation matter is entitled to great weight and will not be overturned on appeal absent a clear showing of abuse of discretion. Id., 02-1891, p. 4, 828 So.2d at 1096. Pursuant to La. R.S. 9:355.12, the relocating parent has the burden of proving that the proposed relocation is: (1) made in good faith; and (2) in the best interest of the child. Id. The legislature considered other possible ways of allocating the burden of proof in relocation cases, but instead made the specific, conscious decision to impose this burden on the parent seeking to relocate the child. Id., 02-891, p. 5, 828 So.2d at 1097.

|4In Curóle the Court noted that: “La. R.S. 9:355.12 sets forth eight factors the court must consider in determining whether the proposed relocation is in the best interest of the child.” Id., 02-1891, pp. 5-6, 828 So.2d at 1097. The Curóle opinion then quotes the eight La. R.S. 9:355.12 factors.

In Leaf v. Leaf, 05-0592 (La.App. 4 Cir. 3/2/06), 929 So.2d 131, this Court, in relying exclusively on the authority of Curóle in deciding the question of relocation, noted that there are twelve factors to be considered under La. R.S. 9:355.12. This is not inconsistent with the quotation in Curóle of the eight factors set forth above. Rather it represents an amendment to La. R.S. 9:355.12 by Acts 2003, No. 676 § 1, subsequent to the date of the Curóle decision, but effective prior to the instigation of these proceedings in 2004, adding the following four factors to the original eight:

(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

IfjThe appellant assigns as error the allowing of the relocation when taking into account the statutory factors. Although La. R.S. 9:355.12 mandates that all of the factors it sets forth be considered in making the determination regarding a proposed relocation of a child, it does not require a court to give preferential consideration to any certain factor or factors. Curole, supra, 02-1891, p. 828 So.2d at 1097; Blackburn v. Blackburn, 37,006 (La. App. 2 Cir. 1/29/03), 836 So.2d 1222.

There are no written reasons for judgment in the instant case. While there is no doubt that the trial court expressed a very genuine concern for all parties affected by this difficult situation, especially the child, it is very difficult for this Court to determine whether or how the trial court considered any or all of the factors. This raises the question of whether the trial court is required to explicitly reference the twelve factors either orally or in writing in reaching its decision, or whether this Court may somehow infer that it did so from the record. Leger v. Leger, 03-419 (La.App. 3 Cir. 7/2/03), 854 So.2d 955, pursuant to Johnson v. Johnson, 99-1933 (La. App. 3 Cir. 4/19/00), 759 So.2d 257, suggests, in a portion of the opinion entitled “Failure to Address Factors with Particularity” , that the answer is the former and that we may not assume that the trial court actually considered the twelve factors based on the fact that there was evidence in the record that would have permitted it to do so.

In Leger, supra, the court noted that: While the trial court listed the factors to be considered, it did not consider the factors individually concerning particular evidence presented.

| fjd., 03-419, p. 2, 854 So.2d at 956.

Similarly, in Johnson, supra, the court stated that:

We find the court erred, however, by failing to apply an analysis of the above [La. R.S. 9:355.12]factors to its findings of fact.

Id., 99-1933, p. 7, 759 So.2d at 260; See also Hodges v. Hodges, 02-0489 (La.App. 3 Cir. 10/2/02), 827 So.2d 1271 and Hoskins v. Hoskins, 36,031 (La.App. 2 Cir. 4/5/02), 814 So.2d 773.

In Hoskins, citing to Johnson, supra, the court held that the failure of the trial court to conduct an analysis of the statutory factors was legal error. Consequently, a de novo review was in order. In Hos-kins the issue before the court was the factors set forth in La. C.C. art. 134. However, the jurisprudence equates those factors to those of La. R.S. 9:355.12, and, as noted, in reaching its conclusion, the Hoskins court relied on the Johnson opinion, an La. R.S. 9:355.12 case.

In the following La. R.S. 9:355.12 cases, the opinions note that the trial court addressed the factors specifically: Curole, supra; Peacock v. Peacock, 39,950 (La. App. 2 Cir. 5/4/05), 903 So.2d 506; Larsen v. Polk, 02-1104 (La.App. 5 Cir. 2/25/03), 841 So.2d 992; Blackburn, supra; Dettman v. Rablee, 01-1228 (La.App. 1 Cir. 9/28/01), 809 So.2d 373; Brisbois v. Brisbois, 00-203 (La.App. 5 Cir. 8/29/00), 767 So.2d 887; Franklin v. Franklin, 99-1738 (La.App. 3 Cir. 5/24/00), 763 So.2d 759; Deason v. Deason, 99-1811 (La.App. 3 Cir. 4/5/00), 759 So.2d 219.

In Curole, supra, the Supreme Court noted that: “[T]he trial court properly considered each of the factors listed in La. R.S. 9:355.12 ...” Id., 02-1891, p. 12, 828 So.2d at 1100.

|7In the following cases, we can infer from the fact that the appellate courts’ written opinions discuss each of the statutory factors without referring to any of the trial courts’ findings regarding those factors, that the record did not reflect that the trial court addressed the requisite factors: Nelson v. Land, 01-1073 (La.App. 1 Cir. 11/9/01), 818 So.2d 91; Richardson v. Richardson (Blackmar), 01-0777 (La.App. 1 Cir. 9/28/01), 802 So.2d 726. These cases appear to implicitly involve de novo reviews.

In Englebrook v. Guillory, 01-1404 (La. App. 3 Cir. 4/17/02), 824 So.2d 376, the Third Circuit in reversing the trial court, noted that the trial court had failed to mention in its oral reasons (there apparently being no written reasons) whether it had considered the La. R.S. 9:355.12 factors, but did not ascribe that as the reason for reversal. Instead, without explicitly stating a standard of review, the Third Circuit appears to have reversed based on a de novo review. In a concurring opinion, Judge Saunders took the position that the trial court “erred by failing to apply an analysis of the above [La. R.S. 9:355.12] factors to its findings of fact when rendering its decision.”

Miller v. Miller, 01-0356 (La.App. 3 Cir. 10/31/01), 799 So.2d 753, is unique in the La. R.S. 9:355.12 jurisprudence. In Miller the Third Circuit had before it a trial court opinion that referred to all of the La. R.S. 9:355.12 factors but only discussed three of them specifically. The Miller court upheld this approach based upon the following reasoning:

In Johnson, we found that the trial court erred in its application of the relocation statute because, [w]hile the trial court listed [the relocation] factors in its [written reasons for judgment], it did not analyze them as required by La.R.S. 9:355.12. Johnson, 759 So.2d at 259. Thus, in Johnson, we analyzed the factors from the facts in the record. Peggy advocates that because the trial court did |Rnot consider all of the factors of La.R.S. 9:355.12, this court should do so. We disagree.
Johnson does not stand for the proposition that the failure of a trial court to give equal weight to each factor in La. R.S. 9:355.12 is an error of law. [FN1 omitted.] Louisiana Revised Statutes 9:355.12 states that the court shall consider the listed relocation factors. After noting the applicable statutes, the trial court stated:
Although Ms. Miller’s reasons for relocating are in good faith, the court finds that they are more for her interest than for the children. Her reason for being near her extended family members is more personal than the best interest of the children since the children have had virtually no contact with the maternal side of the family. Lake Charles is the only home these children have known and the children have playmates, schoolmates, ball team members and a rather extensive extended paternal family in the Lake Charles area. Ms. Miller’s desire to attend nursing school in the relocation area could be accomplished at the various colleges in the Lake Charles area. The 3rd factor would be a strain to say the least, due to the distance between the parties. The court does not find factor five to be strictly applicable to Ms. Miller, however some of her actions from Easter to present have, as it relates to visitation by the father, tend to raise some doubt in the court’s mind as to that factor. Ms. Miller has not met her burden of proof as it relates to factor six. Therefore, the court will deny the relocation of the children.

It is clear the trial court considered all of the evidence in light of the factors listed in La.R.S. 9:355.12, but chose to emphasize only factors three, five and six in its written reasons for judgment. Our review reveals no abuse of discretion with respect to the trial court’s decision regarding the relocation.

Id., 01-0356, p. 6-7, 799 So.2d at 756-757.

| nBased on the foregoing review of the La. R.S. 9:355.12 jurisprudence, we find that the weight of authority indicates that the record must support the conclusion that the trial court actually considered each of the La. R.S. 9:355.12 factors. This is not the same as saying that because there is sufficient evidence in the record to have allowed the trial court to have considered each factor that it must necessarily have done so. However, we are not ruling out the possibility that proof that the trial court considered the factors might be adduced from other than a rigid formulaic factor by factor analysis by the trial court, much as appears to have been done in Miller, supra.

We also find that the weight of the above authority indicates that where the record does not support a finding that the trial court actually considered each separate La. R.S. 9:355.12 factor does not mandate a reversal on that ground alone — the appellate court may remedy the deficiency via a de novo review, which we will now undertake in the instant case, factor by factor, based on the evidence in the record.

Three witnesses testified: Clare Hesse, a Licensed Professional Counselor, and court appointed expert in this case; the mother; and the father. (The child did not testify because of her tender age. However, based on the testimony of the witnesses, we can deduce what her reaction to the relocation would be.)

Ms. Hesse’s report was not admitted into evidence, but the trial court stated that it was basing its decision largely on that report. While this Court does not have the benefit of that report, we have the best evidence in the form of Ms. Hesse’s live testimony, during the course of which constant references were made to the report.

|inMs. Hesse testified that the child is warmly and securely attached to both of her parents. She acknowledged that the move would create distance between the child and her paternal grandparents and maternal grandmother, all of whom currently live in New Orleans. The father lives with his parents, the child’s paternal grandparents. Mr. Crabtree picked her up after school on almost a daily basis and kept her with him and his parents until the mother could pick her up. The mother was on a different work schedule. Therefore, the child saw her father and paternal grandparents almost every school day. While the child spent occasional nights with her father at the home of her paternal grandparents, Ms. Hesse noted that in the “last year or so” she was resisting this arrangement. Ms. Hesse testified that the father had informed her that the child did not want to be away from her mother overnight. Therefore, the father did not exercise his overnight visitation privileges as he did not want to force the child against her will. Ms. Hesse testified that the child expressed a preference for the way her mother left the lights on in her home at night. According to Ms. Hesse:

I think she is at the age where she wants it just a certain way that she is used to.
Ms. Hesse reported that:
[The child] did say that [the paternal grandparents’ house] was her least favorite place to spend the night because it was boring there. [Her paternal grandfather] doesn’t leave the light on at night also.

The child has a 12-year old half-brother on her mother’s side. When the child drew a picture of her family, she did not include James in the picture. She drew another picture including the half-brother, but when she did so she drew him with no eyes:

InShe said she made [him] blind, so that he can’t do bad things.
Ms. Hesse explained what this meant: She said that when she is at Pawpaw’s house, which I believe is her maternal grandfather, she tries to wake [her half-brother] up on the Sabbath Day, so he won’t miss Sabbath school and get in trouble. She is trying to protect [him] from getting in trouble and sometimes [he] hurts her on purpose.
Her three wishes, one of them was that [her half-brother] wouldn’t be so mean. One that was daddy won’t yell at mommy so much; and one that [her paternal grandmother] won’t have to work so much around the house.

The mother identified the main stressors in her life for Ms. Hesse: Having a child (her son, H.C.’s half-brother, referred to above) with attention deficit disorder and mild conduct disorder; dealing with an ex-husband, the father of H.C., “who still needs to control me; and living in the New Orleans area with crime and the school system.”

Ms. Hesse said that she took into consideration the half-brother’s behavioral problems when weighing the catch-all last factor of La. R.S. 9:355.12.

Ms. Hesse testified that the father expressed concerns to her about the mother’s willingness to move all the way to Medford to be near a man she had spent very little time with.

Ms. Hesse expressed concerns about the mother’s ability to obtain adequate child care in a new city where she did not have either the father or the grandparents to fall back on. She noted that the father and his parents would be welcome to | ^come visit at any time, but not to stay overnight in her house. The father’s attorney asked Ms. Hesse:

Q. But isn’t it better for a child, particularly a younger child, to see their parent on a regular and continuous basis and not be away from them?
A. That is recommended in general guidelines for infants and toddlers. Hannah is sort of on the borderline that being five. She is going into a latency period of elementary school age where general guidelines say she can tolerate longer visits and longer separations from a parent.
Q. What is longer visits and longer separations?
A. Well, of course, it is not ideal for it to only be a few times a year. It would be much better for it to be every weekend or every other weekend, but when there is a distance that is not possible.

Ms. Hesse testified that she made her evaluation based on the eight La. R.S. 9:355.12 factors as they existed prior to the 2003 amendment adding four more factors. Ms. Hesse testified that she would not have recommended the relocation had she thought that the move would aggravate the half-brother’s behavioral problems to the extent of making him a danger to the child. They already live together.

The trial court admonished counsel for the mother that:

[Y]ou had the opportunity to ask any and everything that you wanted to ask about this report, but you chose not to. You only asked a couple of questions and then you referred to — you moved it to [the father’s attorney] for her cross.

Ms. Hesse testified that the mother had told her among the important negative factors motivating her desire to move were the father’s history of 11sdomestic violence and stalking and what she perceived to be the overly aggressive discipline by the father of her son, his step son. Among the positive factors reported by the mother were the cleaner environment of Medford, the lower crime rate, higher household income, opportunity for career advancement and better educational opportunities. While Ms. Hesse testified that she considered the eight factors of which she was aware, when asked whether she felt that the impact of the move on the father and grandparents “is going to be less important than this lady relocating for the reasons that you have stated in your report,” she responded:

I am not interested in the parents at all whether they are deprived or not. I am only interested in Hannah’s welfare.

Ms. Hesse said that in making her recommendation she took into account how separation from her grandmother would affect the child, recognizing that “the bond between the grandmother and the grandchild is very special, very important.” She also testified that she felt that the mother had given proper consideration to how the special behavioral needs of her son, the child’s half-brother, could be met in Med-ford, either through the support of family members (the mother has a great-aunt and cousin who live there) and/or through the school system which has special education available for behavioral disorders. In order to reduce the stress of the move on the children, Ms. Hesse suggested that they move during the summer in order that they be given a chance to adapt to their new environment prior to having to adapt to a new school situation. She also felt that the move could actually have a positive effect on the half-brother’s behavior as he had witnessed some domestic violence between his mother and step-father and a lot of friction, commotion and stalking, and the move would be an opportunity for him to live in a calmer, more stable environment.

| uMs. Hesse testified that she was told by the mother that her main reason for moving was her career and the environment and that she did not intend to live with the man she hoped to date while there. She added that:

You know, it is a risk for her to go that far away, away from all this extended family. My sense is that the job won’t be a problem. Judging by what information I have about her level of skill in her career, I think that part will work out well. My instinct is that if this fails, and does not work, she will put [the child] first and she will not hesitate to move back, if it doesn’t work out. That is just I can’t give you any facts of why I think that. I just got the impression that the children’s welfare is number one and that is it.

Ms. Hesse testified that even in intact families children move away from grandparents all the time, all over the country, frequently for career reasons. In this case she was confident that the mother was not motivated by any animosity towards the grandparents:

That she understands how close the child is to her grandparents and she is going to do everything she could to support that relationship....
There is no, you know, there is no ideal answer when someone moves [a]way. It is definitely better, as [counsel for the mother] said, if you have to get divorced, if everybody should live next door to each other.

Ms. Hesse went on to explain that any move more than a couple of hours away, too far to drive back and forth on a weekend, even if only to Mississippi or Texas, will result “in the same story.”

The first reason given for wishing to relocate to Medford given by the mother, H.S.C., when she testified was that:

[T]here has been a lot of harassment and stalking issues that went on. The stalking has stopped since the restraining order was placed on him and he violated it ... [T]here still has been verbal harassment either in person or on the phone.

|1BShe testified that the environment was cleaner, schools were better, the crime rate was lower, there were more Seventh Day Adventists (participation in the Seventh Day Adventist church was unquestionably and sincerely a matter of great importance to both parents) with whom she could interact, and there were more nursing jobs available with better opportunities for advancement. She pointed out that in New Orleans she was merely a staff nurse, but in Medford there was a greater likelihood that she could advance to a management position. She testified that she was afraid of her husband. On the other hand she also testified that:

When he is with Hannah, he and Hannah ha[ve] a very good relationship. He is a loving father to her.

She testified that the gentleman that she wished to date in Medford is a police officer and a member of the Seventh Day Adventist church. He has an eight-year old son. She has met him as well as other family members, all of whom are Seventh Day Adventists. While she was out in Medford she spent a substantial amount of time investigating school and nursing facilities. She testified that the nursing facility would get housing for her. She testified that Medford has many activities for children — a park, mountain climbing and skiing, including a winter ski program at the Seventh Day Adventist school. The schools have before and after care programs. She has already started considering potential candidates to baby-sit her daughter.

The mother testified that the child currently has no neighborhood playmates. She felt that she could more likely find a member of her Medford church congregation in whom she could have confidence to baby-sit her daughter.

She has taken trips as long as two weeks with the child and her son without the father or the grandparents. On occasion the child might say that she misses her 11figrandmother, but when asked if she wished to call her, she would say: ‘[N]o, not right now. The mother testified that the child would miss her grandparents, but when asked about the move to Medford:

She wants to go. She says I want to go. I want to be with you mommy.
She said, I know I will miss grandma and dad and I can fly on the airplane to come see them.

She also testified that the grandparents would miss the child, but that they had other grandchildren who lived in other places that they managed to visit.

She testified that she would not leave until she had a job, even if it meant flying out to Medford six or seven times for interviews. She would have a place to stay secured before she left.

She felt it was in the child’s best interest to move because of the unhappy memories arising out of the pre-divorce domestic turbulence and the ongoing tension existing between her and her husband. On cross-examination she testified that it would be in the best interest of the child to move because while the father had never been abusive to her, he had been abusive to the child’s half-brother while in the home.

She testified that she expected to go up to Medford initially on a 13-week assignment, with the option to extend at the end of the assignment. She admitted that she currently did not have a permanent position in Medford. She also admitted that as a new hire without seniority that she would likely have night-shift work or weekend work:

Q. So you would be working every other weekend, but you don’t have any definitive plans at this point for the child care for Hannah when you go up there?
|17A. At this point, no, no because I haven’t been able to take and establish a friendship with somebody and find suitable day care for her.

Because of her tender age, the airlines would only allow her to take direct flights. She could not fly where connecting flights would be necessary. There are no direct flights from Medford to New Orleans. In order to put the child on a direct flight to New Orleans, the mother would have to drive the child for five hours to Portland or Sacramento, or drive six hours to San Francisco. Such a round trip flight in the Christmas season could run from $350.00 to $400.00.

When asked about child support payments for the child, the mother responded that the father has generally been more or less on time, but that in the last month before the hearing he had given her $300.00 on the tenth of the month out of the $445.00 due and promised the balance by the eighteenth, but she did not actually receive it until the twenty-second. She admitted that the letter she sent to the father notifying him of her intended move did not indicate where she intended to move because at the time she sent the letter she did not know whether she wanted to move to Medford or to the Fort Worth area.

She explained that some of the indefiniteness concerning her prospective arrangements in moving to Medford is because it will take time and money to get things like her Oregon nursing certificates, time and money that is difficult to justify prior to a ruling by the court permitting her to relocate with the child.

She testified that her decision to move away from the father was not prompted by the relationship that was developing between her and the gentleman she was becoming interested in Medford, but that the choice of Medford as the [ isplace to carry out the desire to move was influenced by her interest in this gentleman.

She testified that her anticipated salary would be approximately the same as it is in New Orleans. She testified that if the relationship with the new gentleman did not work out and the children did not like Medford, her plan was to move to the Fort Worth area.

The father testified that he and his daughter go to the park, various functions, play outside, do homework together and go on field trips.

His salary is approximately $32,000.00 per annum. Based on the percentage of child support required of each parent, we can assume that the mother probably makes almost twice what the father makes.

The father testified that it would be both a scheduling and a financial hardship for him to fly out to Oregon because of his limited income and the fact that he usually works holidays and only gets two weeks vacation. His company usually does not allow vacation time to be scheduled during the week between Christmas and New Years, which would apply even if the child came here for the Christmas holidays.

He testified that he voluntarily attended an anger management class. He is classified as a Police Officer 2, a corporal position with the State of Louisiana, a position that is not transferable to Oregon.

The father’s testimony indicated that while the child would miss her mother if she came to visit, and might not prefer overnight visitations, if she were required to come for scheduled visits that, “she will quickly feel comfortable with me in spending the night.”

|19We will now evaluate each of the twelve La. R.S. 9:355.12 factors in light of the foregoing review of the record as a whole:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the non-relocating parent, siblings, and other significant persons in the child’s life.

The record indicates that the child has a positive relationship with her father and her New Orleans based grandparents, but that her strongest ties are to her mother.

(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.

The record reflects that the child was five years old at the time of the hearing on March 8, 2005. Special needs are not an issue. The mother contends that the educational system is better in Medford, Oregon than it is here in New Orleans. By fortunate happenstance, the expert appointed by the trial court, Clare Hesse, has relatives in Medford and had made a number of family trips there. She confirmed, based on her own firsthand knowledge, that Medford offered educational advantages over those available here. The child is accustomed to being primarily with the mother and preferred to spend the night in the mother’s home, which she normally did, except on those occasions when the mother was out of town. On those occasions the child stayed overnight with the father who lived in his parents’ home, the grandparents of the child. Both parents testified that the child would accept leaving the mother for visitation trips to New Orleans with the father and her grandparents.

Ln(8) The feasibility of preserving the relationship between the non-relocating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.

The judgment of the trial court addresses this issue with detailed visitation instructions as quoted at the outset of this opinion. The court appointed expert noted that while the child would see her father and New Orleans based grandparents less often, this would be compensated for by the fact that on those occasions when she did visit the stays would be of several days duration instead of the more frequent but brief, two hour visits she customarily made to her father after school until her mother could pick her up after work. The financial arrangements, while tight, appear workable.

(í) The child’s preference, taking into consideration the age and maturity of the child.

The child, while loving her father and grandparents, would prefer moving to Oregon, leaving them behind except for visits, than being without her mother, which is normal for a child her age, according to the expert.

(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the non-relocating party.

The mother readily acknowledges the loving relationship that exists between the child and her father and has not sought to thwart it in the past and does not intend to in the future.

(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.

| ^The record indicates that the relocation will offer the mother improved opportunities for advancement as well as better schools for the child, all in a cleaner and safer environment than exists in New Orleans. Additionally, relocating would offer the mother a chance to move on with her life post divorce and, at the same time, offer the child a chance to be free of the friction that exists between her parents. (7) The reasons of each parent for seeking or opposing the relocation.

Both parents appear to have good faith reasons for seeking or opposing the relocation. There is no question that the father opposes the relocation because he genuinely loves the child and his motive in opposing the relocation is not vindictiveness. On the other hand, the mother’s reasons for relocation are equally sincere, and on the whole, are more compelling.

(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to improve the circumstances of the parent seeking relocation of the child.

The record supports a finding that by moving, the relocation might enable the mother to advance to a management position. The husband’s job would not be affected by the relocation, and his job is not portable, while the mother’s job is.

(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.

While the father may not have been consistently punctual in making his child support payments, he was essentially current. Any recent tardiness was immaterial and the mother did not testify that it caused her or the child any hardship. la;,(10) The feasibility of a relocation by the objecting parent.

As noted previously, the father’s job is not portable. He does not wish to leave his parents. We would have to conclude that it is not feasible for him to relocate. (11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.

There is a history of domestic violence and abuse. There are also indications that the father has largely succeeded in rehabilitating himself. However, the record also indicates that while the violence and stalking appear to have ceased under court order, there is ongoing anger on his part and a great deal of resulting friction that would be alleviated by allowing the relocation. This factor strongly favors relocation.

(12) Any other factors affecting the best interest of the child.

The court appointed expert expressed some concerns about the child’s half-brother who has behavioral problems, but he has never been violent to the child. Moreover, his problems would exist regardless of whether the mother relocated with him to Oregon or stayed here in New Orleans, the only difference being that there appear to be more resources available in the Med-ford educational system for children with behavioral problems.

Based on our de novo analysis of the above twelve factors, we find no factors that would prevent relocation. After weighing the factors as a whole, we find that they weigh heavily in favor of allowing the relocation. Accordingly, we find that the mother has successfully borne her La. R.S. 9:355.13 burden of proving that the relocation is in the best interest of the child.

UaFor the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

MURRAY, J.,

concurs and assigns reasons.

_JjI concur because I find, on the basis of the record, that the trial court did not abuse its discretion by concluding that the mother’s desire to relocate is not motivated by bad faith and that the relocation is in the best interest of the child. I do not agree, however, with the majority’s determination that a de novo review by this court is necessary in the instant case.

The standard of review in a relocation case, as expressed by the Supreme Court in Curóle v. Curóle and acknowledged by the majority herein, is that the trial court’s determination “will not be overturned absent a clear showing of abuse of discretion.” 02-1891, p. 4, 828 So.2d at 1096. Further, in the course of reviewing the entire record to determine whether the trial court’s ultimate conclusion is an abuse of discretion, the appellate court must accept each factual finding the trial court made in arriving at that conclusion, unless the particular finding is manifestly erroneous.

Pursuant to La. R.S. 9:355.13, the relocating parent has the burden of proving that the proposed relocation is: (1) made in good faith; and (2) in the best interest of the child. Curole v. Curole, 02-1891, pp. 4-5, 828 So.2d at 1097. Guidance to the trial court in making its determination as to whether the relocating Rparty has met this burden of proof is provided by La. R.S. 9:355.12, which lists twelve specific factors the trial court “shall consider” in reaching its decision regarding a proposed relocation.

In the instant case (in which the trial court did not give written reasons for judgment), the majority concludes, largely on the basis that the trial judge did not expressly discuss the statutory factors nor state that she had considered them, that the record does not support a finding that the trial court actually considered the factors as is required. I disagree. I believe that when, as here, there is evidence in the record regarding these factors, and the record as a whole preponderates in favor of the decision reached by the trial court being reasonable, we should assume that the trial court was aware of the law and that it considered the factors as required. While a recitation and/or discussion of the factors by the trial court is helpful, I do not believe it is mandated by law; the statute provides that the trial court “shall consider” the factors, not that the trial court must expressly analyze each factor or even state that it has considered each. I therefore disagree with the majority opinion insofar as it suggests that the trial court’s failure to expressly discuss the factors constitutes a “deficiency” that triggers de novo review. To the extent that the majority relies upon appellate decisions from other circuits, which indicate that the trial court’s failure to expressly analyze the factors is a legal error that prompts de novo review, I disagree with those decisions.

In the instant case, the evidence presented relating to each of the statutory factors and trial court’s comments throughout the transcript, coupled with my finding that the evidence as a whole preponderates in favor of the reasonableness of trial court’s decision, permit the inference that the trial judge did actually consider the statutory factors as she was required to do. I therefore conclude on | sthe basis of the record that the trial court did not abuse its discretion in approving the relocation. De novo review is not applicable.

Accordingly, for the reasons stated, I respectfully concur in the result reached by the majority.

      . Initials are used to protect the identity of the minor child.

      . The child was one month shy of turning six at the time of the hearing.

      . This letter appears to be the notice of relocation required by La. R.S. 9:355.3.

      . The trial court ruled in favor of the relocation from the bench, but the judgment was not reduced to writing until a few days later.

      . The first seven factors retain their original numbering in the amended statute, but the original factor number eight has been retained but renumbered as "(12)”. The four new factors are numbered "(8)” through "(11)”.

      . Id,, 03-419, p. 1, 854 So.2d 955

      . We might take judicial notice of the fact that, if anything, stress levels in the city have increased significantly post Katrina,

      . Much later in the hearing, during the course of the mother’s testimony, the mother's attorney stated erroneously that the four factors added to La. R.S. 9:355.12 were not in effect when Ms. Hesse made her evaluation

      . See, e.g.: Curole v. Curole, 02-1891. pp. 6-7, 828 So.2d at 1097-98, wherein the Court expressly determined that the trial court's finding that the custodial parent had sought the proposed relocation in good faith was not manifestly erroneous.

      . See Leger v. Leger, 03-419 (La.App. 3 Cir. 7/2/03), 854 So.2d 955; Johnson v. Johnson, 99-1933 (La.App. 3 Cir. 4/19/00), 759 So.2d 257; Hoskins v. Hoskins, 36,031 (La.App. 2 Cir. 4/5/02), 814 So.2d 773.

      . Nor do I agree with the majority's assumption that certain other appellate decisions "appear to implicitly involve de novo review” merely because those decisions discuss the statutory factors without making reference to the trial court's findings regarding them.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Kendrick REDDICK.
    No. 2005-KA-1143.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 2006.

      Eddie J. Jordan, Jr., District Attorney, Autumn L. Cheramie, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DENNIS R. BAGNERIS SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

h FACTS AND PROCEDURAL HISTORY

On March 31, 2004, the defendant Red-dick was charged in case 446-989 with one count each of simple escape and simple possession of marijuana. The case was designated a fourth class case and was allotted to Section “C,” which then ordered it reallotted to the magistrate court. On April 14, 2004, Reddick appeared in court, and the court ordered the case be reallot-ted because the escape charge was a felony charge. On April 28, 2004, the State nolle prosequied both counts of the bill of information.

On October 5, 2004 the State reinstitut-ed the escape charge in case 452-428. Reddick appeared for arraignment on October 20, 2004, and pled not guilty. The record indicates that on November 19, 2004, the court found no probable cause and ordered Reddick released. The court reset a motion hearing for December 10, 2004. Apparently, by that time Reddick was back in jail, and the court reset the hearing to December 16, 2004, at which time, Reddick appeared with counsel, but the court again found no probable cause to hold him due to the fact that the State’s witnesses did not appear for the hearing. The court again ordered Reddick 1 ?released, and it set trial for December 29, 2004. On December 29, 2004 the State nolle prosequied the case.

On January 12, 2005, the State reinsti-tuted the escape charge yet again in the present case. The case was allotted to Section “G” and then reallotted to Section “K” to follow case 452-428. Reddick appeared for arraignment on February 2, and the court set trial for February 28, 2005. On February 28, 2005, Reddick filed a motion to quash the bill of information. The court set a hearing on the motion for March 14, 2005. When Reddick did not appear on March 14, 2005, the court reset the hearing to March 18, 2005. On March 17, 2005 the State filed its opposition to the motion to quash, and on March 18, 2005 the court granted the motion.

DISCUSSION

By its sole assignment of error, the State argues that the trial court erred by quashing the charge against the defendant in the present case. The transcript of the hearing shows that the trial court granted the motion to quash without oral argument. The trial court did not assign reasons at the time it granted the motion. However, the trial court’s per curiam, filed on May 10, 2005, states that in a number of cases including the instant case, the State had nolle prosequied cases as a way of obtaining a continuance after failing to comply with La.C.Cr. P. art. 707

|aThe State argues that it had the authority to dismiss the previous bills of information and reinstitute the charges in the present bill. It further argues that its decision to nolle prosequi did not infringe on the defendant’s constitutional or statutory rights to a speedy trial. Approximately 12 months had elapsed from the time the charges were initially brought until the time the trial court quashed the bill of information. For the type of felony alleged in this case, La.C.Cr.P. art. 578(2), allows the State two years from the institution of prosecution to bring the defendant to trial.

The Supreme Court has most recently discussed this issue in State v. Battiste, 05-1571 (La.10/17/06), — So.2d - Citing State v. Love, 00-3347 (La.5/23/03), 847 So.2d 1198, the court reiterated:

A court’s resolution of motions to quash in cases where the district attorney entered a nolle prosequi and later reinsti-tuted charges should be decided on a case-by-case basis. In those cases ‘where it is evident that the district attorney is flaunting his authority for reasons that show that he wants to favor the State at the expense of the defendant, such as putting the defendant at risk of losing witnesses, the trial court should grant a motion to quash and an appellate court can appropriately reverse a ruling denying a motion to quash in such a situation.’ (citations omitted).

Battiste, p. 5

Absent a specific finding by the trial court that the State was intentionally flaunting its authority, we must follow Bat-tiste. Based on the record of the present case we have no evidence to indicate that the State was attempting to gain a tactical advantage. Although it seems |4that the trial court would be in a better position to make such a determination, we are a court of review and thus bound by the record.

In light of the Supreme Court’s opinion in Battiste and the record as a whole, we must find the State was within its authority to nolle prosequi and reinstate the instant matter. Therefore, we reverse the trial court and remand the matter for further proceedings.

REVERSED AND REMANDED.

      . Motion for continuance; time for filing — A motion for a continuance shall be in writing and shall allege specifically the grounds upon which it is based and, when made by a defendant, must be verified by his affidavit or that of his counsel. It shall be filed at least seven days prior to the commencement of trial.

        Upon written motion at any time and after contradictory hearing, the court may grant a continuance, but only upon a showing that such motion is in the interest of justice. La. C.Cr.P. art. 707.

      . Dismissal of prosecution by district attorney — The district attorney has the power, in his discretion, to dismiss an indictment or a count in an indictment, and in order to exercise that power it is not necessary that he obtain consent of the court. The dismissal may be made orally by the district attorney in open court, or by a written statement of the dismissal signed by the district attorney and filed with the clerk of court. The clerk of court shall cause the dismissal to be entered on the minutes of the court. La.C.Cr.P. art. 691.


author: LOMBARD, J.

text:
    Donald R. GANIER, Jr. and Pamela Ganier v. INGLEWOOD HOMES, INCORPORATED.
    No. 2006-CA-0642.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 2006.

      Thomas A. Gennusa II, Joseph S. Pia-cun, Gennusa Law Firm, Metairie, LA, for Plaintiffs/Appellees, Dr. Donald R. Ganier, Jr. and Pamela Ganier.
    Daniel A. Ranson, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, Dominic J. Ovella, Sean P. Mount, Hailey, McNamara, Hall, Larmann & Papale, L.L.P., Metairie, LA, for Defendant/Appellant, Inglewood Homes, Inc.
    (Court composed of Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   LOMBARD, J.

| defendant, Inglewood Homes, Inc. (“Inglewood”), filed an interlocutory appeal from a judgment denying its Exception of Prematurity and Alternative Motion to Stay. For the reasons stated herein, we convert the appeal to an application for supervisory writs and affirm the trial court’s judgment.

Relevant Facts

In 2001, Plaintiffs, Donald and Pamela Ganier (“the Ganiers”), entered into a contact with Inglewood for the construction of their home. After moving in upon the home’s completion, the Ganiers noticed problems with the home including mildew, faulty stucco, leaking windows, etc. They contacted Inglewood about the problems and Inglewood remedied some, but not all, of them. The Ganiers subsequently filed suit for damages and attorney’s fees on a breach of warranty claim. Inglewood answered the suit with an Exception of Prematurity or, in the Alternative, Motion to Stay based on an alleged contractual agreement to arbitrate contained in the construction contract. The clause, which is contained in Article VI of the construction contract provides that “any dispute relating to the contract be referenced for final determination by the Orleans Parish Inspection Department, or another expert mutually agreed on by the parties.”

| Jn their Opposition to the Exception, the Ganiers argued that the construction contract does not contain a valid and enforceable arbitration clause. According to the Ganiers, Article VI is hopelessly vague and ambiguous, as it never uses the terms “binding arbitration.” They further argued that the “Orleans Parish Inspection Department” is a non-existent entity. Judge Giarusso denied Inglewood’s Exception without providing reasons and Inglewood appealed.

Law and Discussion

At the outset, we note that the denial of an Exception of Prematurity is an interlocutory judgment. Louisiana Code of Civil Procedure Article 2083(C) governs the appealability of interlocutory judgments. The legislature amended Article 2083 last year, effective January 1, 2006. In its present form, Article 2083 provides that an interlocutory judgment is appeal-able only when expressly provided for by law. La.Code Civ. Pkoc. ART. 2083(C). The proper procedural vehicle to contest an interlocutory judgment that is not immediately appealable is an application for supervisory writ. See La.Code Civ. Proc. ARTICLES 2087 and 2201. However, we have the authority to exercise our supervisory jurisdiction and, in the interest of justice, treat the appeal of this interlocutory judgment as an application for supervisory writ. See Reed v. Finklestein, 01-1015 (La.App. 4 Cir. 1/16/02); 807 So.2d 1032, 1033, reh’g. den. 1/30/02.

The determination as to whether to stay or compel arbitration is a question of law. Billieson v. City of New Orleans, 02-1993 (La.App. 4 Cir. 9/17/03), 863 So.2d 557. The standard of appellate review on questions of law is to determine whether the trial court was legally correct or incorrect. Id.

|3When the issue of whether to stay a proceeding pending arbitration is raised by the exception pleading prematurity, the party pleading the exception has the burden of showing the existence of a valid contract to arbitrate. Cook v. AAA Worldwide Travel Agency, 360 So.2d 839 (La.1978). The threshold inquiry is whether the parties have agreed to arbitrate the dispute in question. Breaux v. Stewart Enterprises, Inc., 04-1706 (La.10/8/04), 883 So.2d 983. This determination involves two considerations: (1) whether there is a valid agreement to arbitrate between the parties; and (2) whether the dispute in question falls within the scope of the arbitration agreement. Id., citing, Collins v. Prudential Ins. Co., 99-1423 (La.1/19/00), 752 So.2d 825.

Louisiana law favors arbitration. Aguillard v. Auction Mgmt. Corp., 04-2804 (La.6/29/05), 908 So.2d 1, 7. However, an arbitration clause will not be enforced, notwithstanding the strong presumption in favor of arbitration, unless its meaning is “reasonably clear and ascertainable.” J. Caldarera & Co. v. Louisiana Stadium & Exposition Dist., 98-294 (La.App. 5 Cir. 12/16/98); 725 So.2d 549, 551. Additionally, the Louisiana Civil Code provides that the interpretation of a contract is the determination of the common intent of the parties. La. Civ.Code. ART. 2045.

The construction contract in the instant case does not contain a clear, unequivocal written expression that the parties agreed to “arbitrate” disputes Larising out of the contract. Article VI, the clause pursuant to which Defendants claim a right to arbitrate, does not contain the word arbitration. Instead, Article VI purports to require the parties to submit disputes for resolution to “the Orleans Parish Inspection Department,” which, as the Gamers pointed out, is a non-existent entity. Inglewood cited no cases in which a party was forced to arbitrate when the contract at issue did not contain the word arbitrate. The meaning of Article VI is neither clear nor ascertainable and is, therefore, unenforceable. Inglewood did not meet its burden of proving the existence of a valid “Arbitration Agreement.” Accordingly, the trial court’s denial of Inglewood’s Exception of Prematurity was legally correct and Inglewood’s application for supervisory writ is DENIED.

APPEAL CONVERTED TO WRIT; WRIT DENIED

BELSOME, J., Concurs in the Result.

      . The motion for appeal was filed within the 30 day period applicable to supervisory writs contained in Uniform Rule 4-3 and thus, application for supervisory writs would have been timely.

      . Once the trial court finds a valid arbitration agreement, Louisiana law provides a remedy for the party seeking arbitration. “If any suit or proceedings be brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which suit is pending, upon being satisfied that the issue involved in the suit or proceedings is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until an arbitration has been had in accordance with the terms of the agreement....” La. R.S. 9:4202.

      .Louisiana courts look to federal law in interpreting the Louisiana Arbitration Law because it is virtually identical to the United States Arbitration Act, 9 U.S.C. §§ 1.14. Aguillard v. Auction Mgmt. Corp., 04-2804 (La.6/29/05), 908 So.2d at 18.


author: EDWIN A. LOMBARD, Judge.

text:
    Edwin HARRISON v. Olivia COOPER.
    No. 2006-CA-0528.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 8, 2006.
    Karen Wiedemann, Wiedemann & Wied-emann, New Orleans, LA, for Plaintiff/Appellant.
    Lucia G. Hawks, Law Offices of Harold G. Toscano, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS JR., Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   EDWIN A. LOMBARD, Judge.

_[iPlaintiff/Appellani/Lessee, Edwin Harrison (“Mr.Harrison”) appeals from the trial court’s judgment dismissing his case on the basis that he did not meet the burden of proving that his injuries were caused by a defective ceiling in the apartment he rented from the Defendant/Appellee/Les-sor, Olivia Cooper (“Ms.Cooper”). For the reasons stated herein, we affirm the trial court’s judgment.

Relevant Facts

In May of 2001, Mr. Harrison informed his landlady, Ms. Cooper, that there was a problem with his bathroom ceiling. Ms. Cooper came to the house and observed a crack in the ceiling, which she reported to her insurer, Allstate Insurance Company (“Allstate”). An Allstate adjuster viewed the crack and took photos of it, which were entered into evidence in the trial court. Mr. Harrison claims that over the course of the next two to four weeks, the crack gradually worsened to the point that a 5 to 6 foot by 3 to 4 foot section of sheetrock was hanging down about 5 inches. According to Mr. Harrison, on June 12, 2001, he entered the bathroom to use the toilet and a 4 foot by 3 foot piece of the ceiling fell on him, injuring his neck and subsequently causing him to suffer severe headaches.

[ ¿Trial Testimony

The matter proceeded to a bench trial before Judge Charles Imbornone. At trial, Mr. Harrison testified to his version of the accident — that the ceiling, which, he claims, was hanging down about five inches, suddenly and without warning, fell on him. Mr. Harrison testified that did not recall seeing any water stains on the ceiling before it allegedly fell and that the sheetrock felt dry when it fell on him. He further testified that he had no idea why the ceiling fell. Mr. Harrison did not offer any witness or expert testimony at trial to support his contentions.

Ms. Cooper testified that she had lived in the house for the fifteen preceding years and that there were never any problems with the bathroom ceiling during that time, or at the time she rented it to Mr. Harrison. Ms. Cooper further testified that when she initially came to look at the ceiling at Mr. Harrison’s request, she observed a crack in the ceiling that was sagging about an inch, but she did not see any leaks or discoloration on the ceiling. When she returned to see the ceiling after the incident, Ms. Cooper remembered seeing nails and dry insulation on the floor and jagged, torn edges on the fallen sheet-rock.

Mr. Leonard Quick, a civil engineer practicing in the area of forensic engineering and failure analysis, was accepted as an expert by the court and testified on behalf of Ms. Cooper. Mr. Quick has extensive experience with sheetrock collapse and had been retained as an expert in over fifty sheetrock failure cases. He reviewed the photos taken by the Allstate adjuster before the accident as well as photos taken immediately after the incident by Mr. Harrison. Mr. Quick also reviewed Mr. Harrison and Ms. Cooper’s deposition testimony. Based on the photos he reviewed, the deposition testimony, and his knowledge regarding construction in general, Mr. Quick came to the conclusion that the ceiling wasjjintentionally pulled down and did not fall due to moisture, structural failure, or traffic vibration.

In Mr. Quick’s opinion, the fact that there were no water stains on the ceiling before the accident and that the sheetrock that came down was dry, failure due to moisture was not the cause of the accident. In his opinion, the sheetrock did not fall due to vibration because the distance from the bathroom to the street was too great to cause this kind of failure. He was also able to rule out failure by improper installation because the photographs showed that the crack in the sheet-rock was between two joists and not where the sheetrock was nailed onto the joists. Furthermore, he opined that had improper installation of the sheetrock caused the ceiling to fall, the failure would have begun within a year of its installation, not fifteen or more years later.

In Mr. Quick’s expert opinion, the accident could not have happened the way Mr. Harrison claimed it did. Mr. Quick explained that had the sheetrock fallen on its own, as Mr. Harrison claimed, it would have sheared off in a smooth straight line rather than with jagged edges and pieces dangling. Moreover, in Mr. Quick’s opinion, given the weight of the piece of sheet-rock that fell, it could not have remained suspended for weeks as Mr. Harrison claimed, but rather, would have fallen immediately. Mr. Quick opined that had the sheetrock fallen on its own, the nails would have remained in place and would not have fallen to the floor. Importantly, Mr. Harrison did not offer any evidence or testimony to refute Mr. Quick’s testimony.

Judge Imbornone found in favor of Ms. Cooper and Allstate Insurance Company and dismissed the case. In his Reasons for Judgment, Judge Imbornone stated that, the court, “after hearing the testimony of the parties, the defendant’s Rexpert and reviewing all of the evidence presented, found the “defendant [sic] failed to carry the burden of proof to support his claim.”

Mr. Harrison filed the instant devolutive appeal on January 17, 2006. On appeal, Mr. Harrison argues that the trial court should not have considered the testimony of Mr. Quick since Mr. Quick based his opinion only on photos of the accident and did not actually inspect the sheetrock in question. Mr. Harrison further argues that Mr. Quick failed to negate the other ways the sheetrock could have fallen.

Standard of Review

Mr. Harrison asserts that the trial court erred in finding that he did not meet his burden of proof that the defect in the ceiling was the cause of his injuries. Causation is question of fact. Estate of Adams v. Home Health Care of Louisiana, 00-2494, p. 1 (La.12/15/00), 775 So.2d 1064, 1066 (per curiam). The standard of review for the trial court’s findings of fact has been clearly established by the Louisiana Supreme Court. A court of appeal may not set aside a trial court’s factual finding unless that finding was manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t Of Transp. & Dev., 617 So.2d 880, 882 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112. Moreover, where there are two permissible views of the evidence, the fact-finder’s choice between | Bthem cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989).

Plaintiff’s Burden of Proof

The issues herein are governed primarily by former Louisiana Civil Code Article 2695, which, at the time of the accident, provided: “The lessor guarantees the lessee against all vices and defects of the thing, which may prevent its being used even in the case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee, and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.” La. Civ.Code Art. 2695 (West 2001). To recover under Article 2695, it is the lessee’s burden to prove, by a preponderance of the evidence, that a defect existed in the premises and that the defect caused the damages. See Latham v. Aetna Casualty & Surety Co., 377 So.2d 350, 351 (La.1979).

Mr. Quick’s Opinion Testimony

Mr. Harrison argues that the trial court should not have considered the testimony of Mr. Quick since Mr. Quick based his opinion only on photos of the accident and did not actually inspect the sheetrock in question. Louisiana Code of Evidence Article 702 provides that if specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, an expert witness may testify in the form of an opinion or otherwise. La. Code Evid. Ajrt. 702. A trial court may accept or reject in whole or in part the opinion expressed by an expert. Green v. K-Mart Corp., 03-2495, p. 5 (La.5/25/04), 874 So.2d 838, 843. “The rule that questions of credibility are for the trier of fact applies to the Revaluation of expert testimony, unless the stated reasons of the expert are patently unsound.” Lirette v. State Farm, Ins. Co., 563 So.2d 850, 853 (La.1990).

The trial court’s finding that Mr. Harrison did not meet his burden of proof that the defect caused the ceiling to fall is not manifestly erroneous Mr. Harrison testified that he had no idea why the ceiling fell and he offered no expert testimony as to how and why it fell. It was reasonable for the trial court to accept, and give credence to, the testimony of Mr. Quick, the only expert to testify, that the ceiling was intentionally pulled down. Mr. Quick’s opinion was based on photographic evidence of the accident scene as well as his specialized knowledge of sheetrock. Mr. Cooper made no objection to Mr. Quick being accepted as an expert witness in this field, and Mr. Cooper offered no expert testimony to refute Mr. Quick’s opinion. Moreover, Mr. Harrison’s argument that Mr. Quick failed to negate the other ways the sheetrock could have fallen is without merit. It is the plaintiffs burden to show, by a preponderance of the evidence, that the defect existed and that the defect caused the accident, and Mr. Cooper failed to meet his burden of proof. Therefore, the trial court was reasonable in denying recovery to the plaintiff. Accordingly, we AFFIRM the trial court’s judgment.

AFFIRMED.