author: JOAN BERNARD ARMSTRONG, Chief Judge. JONES, J., McKAY, J.,

text:
    Dr. Donald GANIER, Jr., et al. v. SPECIALTY RISK ASSOCIATES, INC., et al. Dr. Donald Ganier, Jr., et al. v. Singlewood Homes, Inc.
    Nos. 2007-CA-1374, 2007-CA-1375.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 2008.

      Thomas A. Gennusa II, Joseph S. Pia-cun, Gennusa Piacun & Ruli, Metairie, LA, for Dr. Donald Ganier, Jr. & Pamela Ganier.
    Steven W. Usdin, Stephen L. Miles, Bar-rasso Usdin Kupperman Freeman & Sar-ver, LLC, New Orleans, LA, for Chubb Custom Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge JAMES F. McKAY III and Judge EDWIN A. LOMBARD).
   JOAN BERNARD ARMSTRONG, Chief Judge.

hThe plaintiffs-appellants, Dr. Donald Ganier, Jr. and Mrs. Pamela Ganier, appeal the summary judgment dismissal of that portion of their claim directed against the defendant-appellee, Chubb Custom Insurance Company. We affirm.

The plaintiffs originally sued Specialty Risk Associates, Inc.; Chub Insurance Agency, Inc.; Louis Noah and Donna Monteleone, for obtaining homeowners and flood insurance that did not comport with their specific request for the maximum coverage available as a result of which the plaintiffs allegedly sustained substantial damages from Hurricane Katrina for which they find themselves uninsured.

Chubb Custom Insurance Company was added as a defendant in a supplemental petition based on allegations that “Chubb arbitrarily and capriciously denied Plaintiffs’ claim on the grounds that the Policy contained a purported ‘wind exclusion’ that allegedly precluded Plaintiffs from any recovery under the Policy for any damages related to wind/and/or wind driven water.”

Appellate courts review summary judgment de novo, using the same criteria applied by the trial courts to determine whether the summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 c/w 99-2257, Up. 7 (La.2/29/2000), 755 So.2d 226, 230. The supporting documentation submitted by the parties should be scrutinized equally, and there is no longer any overriding presumption in favor of trial on the merits. Id., 99-2181, p. 7, 755 So.2d at 231. ‘

The Supreme Court reinforced this position shortly thereafter in Independent Fire Ins. in Willis v. Medders, 00-2507, p. 1 (La.12/8/00), 775 So.2d 1049,1050:

First, despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. See Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257 at pp. 16-17 (La.2/29/00), 755 So.2d 226, 236 (noting the court “must draw those inferences from the undisputed facts which are most favorable to the party opposing the motion”); See also Hebert v. St. Paul Fire and Marine Ins. Co., 99-0333 (La.App. 4th Cir.2/23/00), 757 So.2d 814.

Id.

In their original petition, the plaintiffs’ allege that:

On or after August 29, 2005, Plaintiffs’ Residence sustained significant wind driven water damage as a result of Hurricane Katrina.

In their opposition to Chubb’s motion for summary judgment, the plaintiffs repeat this allegation verbatim.

This is the only Katrina related damage to their home alleged by the plaintiffs.

Any ambiguity'in an insurance policy is to be strictly construed against the insurer and in favor of the insured. Peterson v. Schimek, 98-1712, p. 5 (La.3/299), 729 So.2d 1024, 1029. However, the rule of strict “construction of insurance contracts does not authorize a perversion of the words, or the exercise of inventive [ ¡¡powers to create an ambiguity where none exists.” Id.; Marcotte v. Progressive Sec. Ins. Co., 06-1368, p. 4 (La.App. 4 Cir. 3/21/07), 955 So.2d 708, 710. Nor does it authorize the court to make a new contract for the parties or disregard the evidence as expressed, or to refine away the terms of a contract expressed with sufficient clearness to convey the plain meaning of the parties, and embodying requirements, compliance with which is made the condition of liability thereon. Id. This is an outgrowth of the general rule concerning the construction of contract language found in the Civil Code. La. C.C. art. 2056; Marcotte, supra; Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/14/94), 630 So.2d 759, 763. When language of the insurance policy is clear, courts lack authority to change or alter its terms under guise of interpretation. Id.

Courts should not strain to find ambiguity in an insurance policy where none exists. Mossy Motors, Inc. v. Cameras America, 04-0726, p. 5 (La.App. 4 Cir. 3/2/05), 898 So.2d 602, 606; New Orleans Property Dev. v. Aetna Cas., 93-0692 (La.App. 1 Cir.1994), 642 So.2d 1312, 1315; Strickland v. State Farm Insurance Companies, 607 So.2d 769, 772 (La.App. 1 Cir. 1992).

An insurance policy should not be interpreted in an unreasonable or a strained manner so as to enlarge or to restrict its provisions beyond what is reasonably contemplated by its terms or so as to achieve an absurd conclusion. Louisiana Ins. Guar. Ass’n, supra, at 763. Absent a conflict with statutory provisions or public policy, insurers, like other individuals, are entitled to limit their liability and to impose and to enforce reasonable conditions upon the policy obligations they contractually assume. Id:

In construing the language of an exclusionary clause in an insurance policy, courts must look to the general rule that exclusionary clauses are to be narrowly Lconstrued against the insurer and in favor of coverage. Capital Bank & Trust Co. v. Equitable Life Assur. Soc. Of the United States, 542 So.2d 494, 495 (La.1989).

The Chubb policy contains an endorsement issued on December 21, 2004, (Form 10-02-0492) near the back of the policy showing in the left hand column in oversized, boldface letters the title: “Exclusions.” The “exclusions” are then described as follows:

Wind. We do not cover any loss caused by, contributed to, made worse by, or in any way resulting from any of the following:
• wind;
• wind driven water, rain, snow, sleet, sand or dust;
• wind driven objects;
• collapse or the imminent collapse due to wind; or
• erosion due to any of the above.

These exclusions clearly exclude the type of loss alleged by the plaintiffs. The plaintiffs do not contend otherwise. Instead, they complain that the exclusions should not be enforced because they conflict with the statement on the “Coverage Summary” at the beginning of the policy which lists among the policy coverages: “Water Damage INCLUDED.” However, we note that in addition to the endorsement excluding wind driven water quoted above, there is also a long list of water exclusions found on Form 10-02-0331, pp. B7-B8, not to mention the limits on water coverage referred to in Form 10-02-0331, pp. B1-B2. It is clear that the water damage coverage is subject to the policy exclusions. Exclusions and limitations by their very nature provide exceptions to broader coverage provisions in policies. Thus, the existence of a general declaration of broad coverage does not | ¡¡preclude provisions restricting that coverage elsewhere in the policy, subject to the proviso that they be clearly and unambiguously expressed. Moreover, we note that the two page quote for the policy sent to the plaintiffs prior to their decision to purchase the policy displayed on the first page thereof the term: “* "WIND EXCLUSION* *,” thereby flagging the existence of the exclusion that the plaintiffs now complain was not adequately called to their attention. Therefore, we are compelled to conclude that the policy provides water damage coverage subject to the unambiguous exclusions and limitations set forth in the policy. Accordingly, we find the exclusions for wind and wind driven water to be clear and unambiguous. Therefore, we find no error in the judgment of the trial court.

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

AFFIRMED.

JONES, J., dissents with reasons.

McKAY, J., dissents with reasons.

JONES, J.,

dissents with reasons.

hln the instant matter, the Ganiers assert that the district court erred as a matter of law by concluding that the policy unambiguously excluded coverage of their claims. They all, assert that Chubb was arbitrary and capricious in denying coverage of their claims.

The policy, argues the Ganiers, is ambiguous and is .susceptible to multiple interpretations. They suggest that since they reasonably interpreted the policy to provide the losses covered by water and rain damage, to suggest otherwise would be nonsensical considering that they paid thousands of dollars per month in insurance premiums for their homeowners policy. As a matter of law, they assert that the policy must be construed in favor of providing coverage for their losses caused by the rain and water damage, and as a matter of law that judgment which granted Chubb’s motion for summary judgment should be vacated.

Due to this ambiguity, the Ganier’s argue, the policy must be construed to provide coverage for their claims. They also note that as a matter of law, the policy must be construed to provide coverage for the contents of their home. The Ganiers note that the policy states THIS IS YOUR CHUBB CUSTOM HOMEOWNERS POLICY, TOGETHER WITH YOUR COVERAGE SUMMARY, IT EXPLAINS YOUR COVERAGES AND OTHER CONDITIONS | JN DETAIL. They assert that the coverage summary does not state that the policy contains a wind exclusion, or otherwise limit the water damage coverage. The policy identifies water coverage as:

Water damage amount of coverage. If a water damage amount of coverage is listed in the Coverage Summary, that amount of coverage is the most we will pay for all loss to:
• your house;
• other permanent structures;
• contents, if contents coverage is provided under this policy;
• and valuable articles, if valuable articles coverage is provided under this policy,
under this Custom Homeowner Policy in any one 12-month period for all occurrences of covered loss in which:
• water escapes from an appliance, pool, or plumbing, or heating or A/C;
• water flows, ' discharges, leaks, or seeps or backs up from the sewer or drain;
• rain, snow, sleet, or ice is admitted directly into the building interior WHETHER DRIVEN BY RAIN OR NOT, through open doors, windows, sky lights, transoms, or ventilators, (emphasis added)

The Gainers maintain that Chubb’s denial of coverage is based upon an endorsement contained in the second to last page of the policy. The endorsement specifically reads: “Wind. We do not cover any loss caused by, contributed to, made worse by or in any way resulting from any of the following: “wind driven rains, snow, sleet, sand, or dust.” The Ganiers argue that this distinction is absurd, but that it is included in the policy. •

Chubb argues that the policy it issued clearly excluded any loss “caused by, contributed to made worse by, or in any way resulting from ... wind or wind driven water.” Chubb asserts that the plaintiffs’ loss was caused by the winds of Hurricane Katrina and that the district court correctly enforced the wind exclusion’s unambiguous terms by granting summary judgment thereby dismissing the plaintiffs’ claims against Chubb. Chubb notes that particularly the Ganiers’ |spetition for damages and their first amended petition both specifically allege that their “residence sustained significant wind damage as a result of hurricane Katrina.” Additionally Chubb asserts that the Ganiers submitted an affidavit in opposition to Chubb’s motion for summary judgment in which Dr. Ganier specifically averred that “on or after August 29, 2005, [plaintiffs] residents for sustained damage caused by wind driven water as a result of hurricane Katrina.”

Chubb asserts that the policy- is not conflicted because the Ganiers’ interpretation fails to read the policy as a whole in violation of La.C.C. art. 2050. Chubb claims that when read together as the Civil Code requires, no conflict exists between the water damage coverage and wing exclusion.

Chubb maintains that the Ganier’s now make a feeble attempt on appeal to create ambiguity in the insurance policy exclusion via injecting doubt into the “clear” provisions of the policy. Chubb asserts that this appeal is meritless and that the court should affirm the district court’s granting of summary judgment. Additionally, to the extent that the Ganier’s argue that their purported ignorance about the wind exclusion entitles them to coverage, Chubb asserts that such an argument is meritless. Chubb asserts that under Louisiana law the plaintiffs are deemed to know the provisions of their policy and the insured should be held to have read and know the liability limits plainly disclosed on the face of the policy and is presumed to know its terms.

The subject policy indicates that while there is a coverage of water damages, “wind driven or not”, on page B-l, the conflicting and ambiguous exclusion is found on the endorsements page of the policy at Form-02-02-0492, which provides that the policy provided coverage:

Under:
• Custom Homeowners Deluxe House Coverage
14* Custom Homeowners Deluxe Contents Coverage
• Custom Homeowners Standard Contents Coverage
• Custom Homeowners Valuable Articles Coverage
• Custom Homeowners Deluxe Condominium Coverage
• Custom Homeowners Standard Condominium Coverage

However, under the exclusions section of the policy immediately succeeding the provided coverage, the wind exclusion is listed:

EXCLUSIONS Wind. We do not cover any losses cause by, contributed to or made worse by, or in any way resulting from any of the following:
• Wind;
• Wind driven water, rain, snow, sleet, sand, or dust;
• Wind driven objects;
• Collapse or the imminent danger of collapse due to wind; or
• Erosion due to any of the above.

After reviewing the subject policy in the matter before this Court, and comparing the provisions concerning the contested coverage provided on p. B1 (under the section titled Water damage amount of coverage), and Form 10-02-0492, which contains the exclusion on the endorsement page, there appears to be an ambiguity.

Chubb asserts that policy is not conflicted because the Ganiers failed to interpret the policy as a whole. In failing to do so, Chubb asserts that the Ganiers misunderstood the policy. Chubb maintains that the water damage coverage applies to water “ADMITTED DIRECTLY” into the property. Chubs states:

Clearly the water damage coverage only extends to what that enters through pre-existing openings which are left open, allowing rain to enter. By contrast the wind exclusion covers loss due to “wind” and wind driven water, rain, snow, sleet, sand, or dust.”

Chubb argues that the policy does not address whether coverage is provided for wind-driven rain entering “open doors, windows, sky lights,- . transoms, or 1 .¡ventilators.” However, I disagree because this position ignores the obvious ambiguity. While Chubb couches its position based on wordplay with respect to the conflicting provisions, it begs the question of determining if the damage was caused by wind and exacerbated by the rain, or if the rain damage was exacerbated by the wind. Quite simply, the damage as experienced by most hurricane victims, was concurrent and the cursory exclusion creates such an ambiguity, which unfortunately creates a win-win situation for the insurer.

Clearly, if we are to interpret the contract of insurance as evidence of a meeting of the minds, so to speak, there is clearly an ambiguity. As this Court stated recently in Sher v. Lafayette Insurance Co., 2007-0757 (La.App. 4 Cir. 11/19/07), 973 So.2d 39, “the common intent of the parties in an insurance contract is to provide insurance coverage.” Sher, at p. *5, 973 So.2d at 49. The Ganiers sought insurance to protect them from catastrophic .events such as a hurricane. Additionally, they paid substantial premiums for the insurance. It would be foolish to accept Chubb’s assessment that policy covered water damage, “whether driven by rain or not,” but at the same time excluded wind damage caused by “wind driven rain, snow sleet, sand or dust.”

Quite simply, the insurer cannot have it both ways. To allow this provision to stand as a document evidencing a meeting of the minds would not only open the door to “crafty” linguistic construction of insurance policies, but would also serve as a means of barring coverage. The law states that any ambiguity should be resolved against the insurer. As stated in Sher, in case of any doubt, when interpreting a contract of a standard form, the contract must be interpreted against the issuer of the policy. See Sher, at p. *5, 973 So.2d at 49.

Insurance companies are in the best position to defend claims because they construct the actual policies of insurance. For this reason, the courts have provided | fiinsureds a means defeating “craftily drawn”/ambiguous policies of insurance by the insurer.

Therefore, based upon a de novo review of this matter, it appears that an ambiguity exists and that this matter should have be, reversed. As stated earlier, “a fact is material when its ■ existence or non-existence may be essential to the plaintiffs cause of action under the applicable theory of recovery.” Windham v. Murray, 2006-1275, p. 3 (La.App. 4 Cir. 5/30/07),’ 960 So.2d 328, 33.1. This ambiguity should have been enough to preclude the motion for summary judgment, as a genuine issue of material fact exists with respect to the policy of insurance and whether the coverage and exclusions are ambiguous.

Thus, for these reasons, I respectfully dissent.

McKAY, J.,

dissents with reasons.

I respectfully dissent from the majority’s decision to affirm the trial' court’s granting of the defendant’s motion for summary judgment. The insurance policy at issue is both ambiguous and conflicting when it comes to coverage for damages caused by wind driven water. It is well established that “the ambiguous provision is to be construed against the insurer who issued the policy and in favor of the insured.” Hill v. Shelter Mut. Ins. Co., 05-1783 (La.7/10/06), 935 So.2d 691. This creates a genuine issue of material fact and makes summary judgment inappropriate in this situation.

      . [Missing Text]

      . The plaintiffs have challenged the authenticity of this "quote” for the first time in their reply brief on appeal, arguing that it is for a different policy. This challenge was not made to the trial court and cannot be raised for the first time on this appeal. The plaintiffs contend that the "quote” was dated October 16, 2003, more than a year before the issuance of the Chubb policy in question which has an effective date of October 20, 2004. However, we note that there are two "quotes” annexed to Chubb's motion for summary judgment in the trial court. The other quote is dated October 4, 2004, a date completely relevant to this case. Both "quotes” make the same identical upper case reference to " **WIND EXCLUSION.”

      . La. Civ.Code art. 2050, titled Provisions interpreted in light of each other, provides:

        Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.


source: Caselaw Access Project

author: DENNIS R. BAGNERIS, SR., Judge. CANNIZZARO, J.,

license: Public Domain

text:
    Jimmy BOYKIN v. Ray PLESCIA and LWCC.
    No. 2007-CA-0619.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 2008.
    Salvador M. Brocato III, Law Office of Salvador M. Brocato, III, APLC, Metairie, LA, for Plaintiff/Appellee.
    Debra Talbot Parker, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendant/Appellant.
    Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.
   DENNIS R. BAGNERIS, SR., Judge.

b The Appellants, Ray Plescia and the Louisiana Workers’ Compensation Corporation appeal the judgment of the trial court denying their Motion for Summary Judgment and granting a Motion for Summary Judgment in favor of the Appellee, Jimmy Boykin. We affirm.

The facts of this case are not in dispute. Mr. Boykin was injured while employed by Mr. Plescia on May 8, 1996. The Louisiana Workers’ Compensation Corporation (the “LWCC”) insured Mr. Plescia and as a result of the accident, Mr. Boykin was awarded a total of $236,000 in medical expenses and indemnity benefits. On May 13, 2005, the LWCC terminated Mr. Boy-kin’s benefits when it learned that Mr. Boykin settled a case that the arose from Mr. Boykin’s accident. Mr. Boykin filed a 1008 dispute in an effort to have his benefits reinstated. He then filed a Motion for Summary Judgment which was denied by the trial court and again by this Court holding that the “... judge did not err in the denying relator’s motion for summary judgment pending discovery.” After discovery, both parties filed cross Motions for Summary Judgment. In a judgment signed November 28, 2006, the trial judge denied summary judgment as to the LWCC and granted as to Mr. Boykin finding that Mr. Boykin’s termination of benefits was in error, that his 1 ¡^benefits were to be fully reinstated, that the LWCC is not entitled to any credit from Mr. Boykin and that the LWCC was arbitrary and capricious in terminating Mr. Boykin’s benefits. It is from this judgment that Mr. Plescia and the LWCC take the instant appeal.

The Appellants offer the following three assignments of error, (1) that the trial court erred in denying the defendant’s Motion for Summary Judgment when it is undisputed that there was no written consent by the LWCC of the tort litigation of the May 8, 1996 work accident; (2) that the trial court erred in granting the claimant’s Motion for Summary Judgment and ignoring La. R.S. 23:1101 regarding the forfeiture of worker’s compensation benefits; and (3) the trial court erred in holding that the LWCC was “arbitrary” and “capricious”’ for the proper termination of worker’s compensation benefits in accordance with the Louisiana Workers’ Compensation Act.

Although the Appellants offer three assignments of error, we find that the sole issue before this Court is whether the district court erred in granting Mr. Boy-kin’s summary judgment in light of La. R.S. 23:1101.-

“Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate.” Independent Fire Insurance Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230; Schroederv. Board of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991); DeClues v. Carubba Engineering, Inc. 2006-1336 (La.App. 4 Cir. 3/28/07) 955 So.2d 711.

|sThe record reveals that Mr. Boykin hired Van Robichaux as an attorney to represent him in a third-party tort action arising from Mr. Boykin’s accident. Mr. Robichaux filed Mr. Boykin’s claim against the improper parties and the matter prescribed. Afterwards, Mr. Boykin hired Attorney Glynn Godwin to represent him in a malpractice case against Mr. Robi-chaux. Mr. Godwin dismissed the claim and it was later determined that the legal malpractice claim against Mr. Robichaux had prescribed. From there, Mr. Boykin hired Attorney Dan Robin who represented him in a malpractice suit against Glynn Godwin which was settled on March 3, 2004, for a total of $399,000. In an affidavit by Dan Robin he swore that the settlement for the legal malpractice claim was for Mr. Boykin’s “pain and suffering, disability rating, loss of consortium claims of his wife and children and unpaid portions of his salary. The settlement did not include any funds for medical expenses and/or wage benefits paid by the LWCC.”

La R.S. 23:1101, Employee and employer suits against third persons; effect on right to compensation, states:

A. When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as “third person”) other than those persons against whom the said employee’s rights and remedies are limited in R.S. 23:1032, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.
|4B. Any person having paid or having become obligated to pay compensation under the provisions of this Chapter may bring suit in district court against such third person to recover any amount which he has paid or becomes obligated to pay as compensation to such employee or his dependents. The recovery allowed herein shall be identical in percentage to the recovery of the employee or his dependents against the third person, and where the recovery of the employee is decreased as a result of comparative negligence, the recovery of the person who has paid compensation or has become obligated to pay compensation shall be reduced by the same percentage. The amount of any credit due the employer may be set in the judgment of the district court if agreed to by the parties; otherwise, it will be determined pursuant to the provisions of R.S. 23:1102(A).
C. For purposes of this Section, “third person” shall include any party who causes injury to an employee at the time of his employment or at any time thereafter provided the employer is obligated to pay benefits under this Chapter because the injury by the third party has aggravated the employment related injury, (emphasis added).

La R.S. 23:1102 A(l), Employee or employer suits against third persons causing injury; notice of filing, states:

If either the employee or his dependent or the employer or insurer brings suit against a third person as provided in R.S. 23:1101, he shall forthwith notify the other in writing of such fact and of the name of the court in which the suit is filed, and such other may intervene as party plaintiff in the suit.

The trial court determined in its Reasons for Judgment that the lawsuit against Mr. Godwin did not constitute a third-party suit under the statute, it concluded:

Clearly the legal malpractice by Robi-chaux and the subsequent legal malpractice by Godwin did not cause injury to claimant at the time of his employment. |fiHence the lawsuit against Glyn [sic] Godwin was not against a “third person” because the timing of the events of malpractice occurred long after the employment ended.

The trial court is correct. This Court finds that the suit for malpractice filed by Mr. Boykin is a separate and distinct action that arose from his initial accident but manifested itself into a claim that went beyond the scope of his injuries. The. LWCC’s argument that “Mr. Robi-chaux, his (Mr. Boykin’s) original legal malpractice attorney, caused him (Mr. Boykin) injury and the injury by the third party has aggravated the employment related injury,” is without merit. Further, the record supports that the LWCC had ample notice of the pending litigation and could have intervened if it so desired (even if the LWCC would have been dismissed-by the district court).

Specifically, .the LWCC seeks reimbursement of its $236,000 lien for payment or in the alternative, a credit in the amount of $300,000 of the settlement Mr. Boykin received. The LWCC maintains that Mr. Boykin admitted that he never received written approval of the settlement from his employer or the insurer as required by law. However, we have determined, as did the district court, that the malpractice suit and subsequent settlement was not a suit against a third-party under the statute discussed above and no written approval was Warranted. Further, in a letter dated February 7, 2003, counsel for the LWCC assured Mr. Boykin that “[i]t is my understanding that Mr. Robin’s client is only seeking damages for pain and suffering and unpaid portions of his salary. If this is the case, then I agree that LWCC is not entitled to any portion of the third party settlement funds ...”

A de novo review reveals that Mr. Boy-kin supported his Motion for Summary Judgment by submitting evidence of correspondence to' the LWCC of his ^pending claim in which he received a response. Further, Mr. Plescia and the LWCC failed to provide the trial court with evidence sufficient to dispute Mr. Boykin’s claim and to support their Motion for Summary Judgment.

Decree

For the reasons above, we affirm the judgment of the district court granting summary judgment as to Jimmy Boykin. Further, we find that there was no error by the district court in denying summary judgment as to Mr. Ray Plescia and the Louisiana Workers’ Compensation Corporation. The Appellants are not entitled to any reimbursement of relief.

AFFÍRMED.

CANNIZZARO, J.,

concurring with reasons.

hi concur with the result reached by the majority and write separately to elaborate on the issues presented for review.

In Head v. Continental Casualty Company, 06-236 (La.App. 3 Cir. 5/31/06), 931 So.2d 1192, writ denied, 2006-1525 (La.9/29/06), 937 So.2d 866, the Third Circuit, in a case similar to the one at hand, considered whether an attorney who failed to timely file a personal injury suit arising from his client’s work related accident was a “third person” within the meaning of La. R.S. 23:1101. - In that case, the claimant, Mr. Head, was injured while driving a vehicle owned by his employer, the City of Abbeville, in the course and scope of his employment, when the vehicle was struck by Mr. Landry. Risk Management, the city’s workers’ compensation insurer, paid medical and indemnity benefits to Mr. Head. Mr. Head retained attorney Kyle Sherman of the Law Offices of Charles Brandt, to file a personal injury suit against Mr. Landry. Risk Management intervened in the suit to recover the $132,299.00 in compensation and medical benefits it had paid to Mr. Head. However, the suit against Mr. Landry was not filed timely and was dismissed on an exception of prescription. •

Mr. Head then filed suit against Mr. Sherman, his law firm, and their malpractice insurer, for the failure to timely file the personal injury suit. Risk Management again intervened, claiming it was unable to recover its subrogation Lclaim against Mr. Landry because of Mr. Sherman’s negligence, and seeking to recover those amounts in the current malpractice suit. Both Mr. Head and Mr. Sherman filed exceptions of no cause of action, which the trial court granted dismissing Risk Management’s claims.

On appeal, the Third Circuit found that the alleged legal negligence committed by Mr. Sherman did not cause an injury to Mr. Head that obligated Risk Management to pay benefits, nor did it aggravate the physical injury which created the obligation. The court concluded that the injury that obligated Risk Management to pay Mr. Head was separate from the alleged malpractice and was caused by Mr. Landry alone. Thus, the court held, Mr. Sherman and his law firm were not “third persons” that could be sued by Risk Management under La.R.S. 23:1101 C. Id., at p. 3, 931 So.2d at 1194.

Here, the legal malpractice of Mr. Boy-kin’s previous attorneys, Mr. Robichaux and Mr. Godwin, did not cause an injury to him that obligated Mr. Plescia (his employer) and the LWCC (his employer’s insurer) to pay any benefits. In fact, Mr. Boykin never suffered any interruption of his benefits despite the malpractice of his previous attorneys. Thus, it cannot be said that the malpractice caused any injury at any time to Mr. Boykin.

Additionally, the legal malpractice did not aggravate or make worse the physical injury Mr. Boykin initially suffered which created the obligation of Mr. Plescia and the LWCC. The injury that obligated Mr. Plescia and the LWCC to pay Mr. Boykin compensation benefits was separate from the attorneys’ malpractice and was caused b the initial tortfeasor(s) in the work-related accident. Thus, the negligent attorneys are not third persons that can be sued by Mr. Plescia and the LWCC under La. R.S. 23:1101.

|J also note that, as in Head, Mr. Ples-cia and the LWCC had the right to file suit against the initial tortfeasor(s) who had caused Mr. Boykin’s injury in the work-related accident because that injury obligated them to pay him medical and compensation benefits. They did not exercise that right and file suit against the initial tortfeasor(s) independently, but rather chose to intervene in Mr. Boykin’s suit which had prescribed.

Furthermore, I agree with the majority that Mr. Plescia and the LWCC were arbitrary and capricious in terminating the benefits. Although the OWC judge and the majority only considered the fact that the negligent attorneys did not cause Mr. Boykin’s injuries “at the time of his employment,” they made no reference to the “at any time thereafter” language in La. R.S. 23:1101 C. In this case, the attorneys’ malpractice did not cause an injury to the employee “some time thereafter” if the medical treatment and/or compensation benefits are delayed or denied, for whatever reason, thereby exacerbating the initial injury, and the claimant’s only relief was a favorable judgment in the personal injury claim for damages against the initial tortfeasors but the claim had prescribed. In such a case, the negligent attorney could be considered a “third person” within the context of La. R.S. 23:1101 C.

Finally, although La. R.S. 23:1102 A requires the employee to notify the employer and the compensation insurer when suit is filed and La.R.S. 23:1102 B requires the employee to obtain written approval of the compromise from the employer and the compensation insurer of risk forfeiture of the right to future benefits, I agree with the OWC judge that Mr. Plescia and the LWCC were not justified in terminating the benefits unilaterally, La. R.S. 23:1201 H provides that in the event the employer or the insurer wants to discontinue the payment of ^benefits for any cause, the party shall notify the OWC in the manner prescribed by the rules of the director that payments have been suspended. In this case, the record indicates that Mr. Plescia and the LWCC were aware that Mr. Boy-kin had filed a legal malpractice suit against his prior attorney. Considering that fact, once they discovered that Mr. Boykin had settled the suit without their prior approval and believed their subrogation rights were jeopardized, they were required to notify the OWC pursuant to La. R.S. 23:1101- H by filing a Form LDOL-WC-1008 to dispute the claim, but failed to do so. Thus, I agree with the majority that the OWC judge did not err in finding Mr. Plescia and the LWCC were arbitrary and capricious in terminating Mr. Boykin’s benefits and assessing penalties and attorney fees against them.

      . Jimmy Boykin v. Ray Plescia, et al., 2006-C-0893.

      . The judgment was designated by the trial court as a "Partial Appealable Summary Judgment pursuant to C.C.P. 1915 B.”

      . Emphasis added by the trial court.

      . The record in this case does not contain a copy of the petition filed by Mr. Boykin in his personal injury suit arising out of the May 8, 1996 work-related accident. Thus, the names of the alleged tortfeasors in that suit are not ascertainable from this record.


author: JAMES F. McKAY III, Judge.

text:
    STATE of Louisiana v. Kendall WILLIAMS.
    No. 2007-KA-0700.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 2008.

      Eddie J. Jordan, Jr., District Attorney of Orleans Parish, Alyson Graugnard, Assistant District Attorney of Orleans Parish, Dayal Reddy, Rule XX Attorney, Loyola University of N.O., College of Law, New Orleans, LA, for Plaintiff/Appellee.
    Jack H. Tobias, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   JAMES F. McKAY III, Judge.

L STATEMENT OF THE CASE

The defendant Kendall Williams was charged by bill of information on March 12, 2006, with possession of cocaine, a violation of La. R.S. 40:967(C). The defendant pleaded not guilty at his September 8, 2006 arraignment. The trial court denied the defendant’s motion to suppress the evidence on October 5, 2006. On December 5, 2006, the defendant waived his right to trial by jury and was tried by the court, which found him guilty as charged. On February 8, 2007, the trial court sentenced the defendant to two years imprisonment, suspended, and three years active probation with conditions.

FACTS

New Orleans Police Officer Lawrence Jones testified at trial that on May 12, 2006, he was driving in a marked police unit with Officer Victor Gant Jr., when he observed the defendant sitting on the doorstep of a porch at 1040 Clouet Street, a residence that had a “No Trespassing” sign posted on the door. During cross examination, the defense counsel cited the police report, written by Officer Jones, as stating that officers had received numerous complaints from concerned citizens and neighbors in the area about subjects loitering on their porches for the sole 12purpose of soliciting narcotics sales. Officer Jones said that when the defendant observed the officers he discarded an item out of his right hand. He later confirmed what he had written in his police report, that the defendant’s eyes got big when he saw the officers, before he discarded the item. Officer Jones indicated that in his three years on the police department he had seen others discard items at the sight of police. Officer Jones said the defendant then stepped off the porch and walked toward the police unit. Officer Jones stated that he walked over and retrieved the discarded object, without losing sight of it. It was a clear plastic bag containing seventeen individually wrapped pieces of a white substance which the officer believed to be cocaine. The defendant was then arrested. Officer Jones said that the defendant was not booked with trespassing because the owner of the property could not be located. Officer Jones also stated that defendant told him that he resided at 1426 Marigny Street.

New Orleans Police Officer Victor Gant Jr.’s testimony tracked that of Officer Jones. Officer Gant noted that when the defendant observed the officers his eyes got big and he made a quick motion with his hand. Officer Gant confirmed that there was a “No Trespassing” sign posted on the door of the residence, and he was shown a photo of the residence at 1040 Clouet Street with a “No Trespassing” sign above the address. No one else was in the area. Officer Gant said that he called the defendant over and informed the defendant that there were complaints about trespassing at this location. He then inquired if this was the defendant’s residence. The defendant said that he was not a resident at that location, but that he lived in the 1400 block of Marigny Street. Officer Jones advised Officer Gant that he had recovered the cocaine. Officer Gant arrested the defendant, handcuffed him, and advised him of his “Miranda rights.” During the | ^course of the arrest, four hundred fifteen ($415.00) dollars were seized from the defendant’s person.

The defendant testified that on the day in question he was standing in front of the residence on Clouet Street, while four of his friends were sitting on the steps. He lived some six blocks away, and he and his friends used to hang out around the area. The defendant said he thought the officers stopped him because he had fled from them two days earlier; he thought he “had a warrant, or whatever,” for “some tickets or whatever.” The defendant said the officers were lying by saying that they saw him throw something. He said no one else threw anything either. He testified that the officers did not find anything on the ground, even though one of them looked around. The defendant said he had earned the money that he was. in possession of at the time of his arrest by “working on houses and stuff’ for his neighbor. He asserted that that he had gotten paid on Friday the day he was arrested. The defendant admitted he had seen the “No Trespassing” sign, but that the owner, “Al,” let them sit there. He testified the police walked straight toward him when they exited their unit, and they let everyone else go.

Monique Parker, the defendant’s girlfriend, replied in the negative when asked whether the defendant used cocaine or whether she knew of any reason why he would have seventeen rocks of cocaine on his person.

ERRORS PATENT AND ASSIGNMENT OF ERROR NO. 6

A review of the record reveals no errors patent.

ASSIGNMENT OF ERROR NOS. 1, 2 & 3

Considering the arguments in these assignments of errors, in light of the defendant’s prayer for relief, these assignments the defendant claims that the trial court erred in admitting into evidence the defendant’s statement that he did not preside at the residence in question; that the trial court erred in denying the motion to suppress the evidence; and that the evidence was insufficient to convict him, and/or that there was no probable cause to arrest him.

When issues are raised on appeal as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So.2d 731, 734 (La.1992). State v. Marcantel, 2000-1629, p. 8 (La.4/3/02), 816 So.2d 50, 55. Accordingly, the assignment of error directed to the sufficiency of the evidence will be considered first.

This Court set out the well-settled standard for reviewing convictions for sufficiency of the evidence in State v. Ragas, 98-0011 (La.App. 4 Cir. 7/28/99), 744 So.2d 99, as follows:

In evaluating whether evidence is constitutionally sufficient to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Green, 588 So.2d 757 (La.App. 4 Cir.1991). However, the reviewing court may not disregard this duty simply because the record contains evidence that tends to support each fact necessary to constitute the crime. State v. Mussatt, 523 So.2d 1305 (La.1988). The reviewing court must consider the record as a whole since that is what a rational trier of fact would do. If rational triers of fact could disagree as to the interpretation of the evidence, the rational trier’s view of all the evidence most favorable to the prosecution must be adopted. The fact finder’s discretion will be impinged upon only to the extent necessary to guarantee the fundamental protection of due process of law. Mus-satt; Green; supra. “[A] reviewing court is not called upon to decide whether it believes the witnesses or whether the conviction is contrary to the weight of the evidence.” State v. Smith, 600 So.2d 1319 (La.1992) at 1324.
In addition, when circumstantial evidence forms the basis of the conviction, such evidence must consist of proof of collateral facts and circumstances from which the existence of the main fact may be inferred according to reason and common experience. State v. Shapiro, 431 So.2d 372 (La.1982). The elements must be proven such | sthat every reasonable hypothesis of innocence is excluded. La. R.S. 15:438. This is not a separate test from Jackson v. Virginia, supra, but rather an evidentiary guideline to facilitate appellate review of whether a rational juror could have found a defendant guilty beyond a reasonable doubt. State v. Wright, 445 So.2d 1198 (La.1984). All evidence, direct and circumstantial, must meet the Jackson reasonable doubt standard. State v. Jacobs, 504 So.2d 817 (La.1987).

98-0011 at pp. 13-14, 744 So.2d at 106-107, quoting State v. Egana, 97-0318, pp. 5-6 (La.App. 4 Cir. 12/3/97), 703 So.2d 223, 227-228.

The defendant was convicted of possession of cocaine, a violation of La. R.S. 40:967(C). The State had to prove that the defendant knowingly or intentionally possessed cocaine. La. R.S. 40:967(C).

The testimony in the instant case was that upon seeing the officers the defendant’s eyes got big, he made a quick movement with his right hand towards the right side of the steps on which he was sitting, and he got up from the steps and walked toward the officers. Officer Jones said he kept his eye on the spot where he, the suspected defendant, had discarded contraband. This is the same spot where the Officer recovered a plastic bag containing seventeen rocks of crack cocaine. No one else was in the area. The defendant’s testimony directly contradicted the police in that he denied discarding any cocaine and said he was sitting on the steps with four other persons who the police let leave. The defendant confirmed the officers’ testimony that there was a “No Trespassing” sign on the residence where he was sitting.

The defendant’s girlfriend, Monique Parker, testified to the effect that the defendant did not use cocaine and that she knew of no reason why he would have possessed the cocaine in question.

The defendant argues that Officer Jones’ testimony that he never lost sight of the ground where the defendant had apparently discarded something was not | ^credible, because the officers approached in their vehicle from the defendant’s left. He submits that, given that the steps were solid concrete, Officer Jones must have lost sight of whatever object had been discarded. The defendant also notes that the area was undergoing complete renovation, and thus Officer Jones’ testimony that the area was free of debris also was not credible.

The defendant was convicted of knowingly or intentionally possessing seventeen pieces of crack cocaine. The trial court believed the officers’ testimony and disbelieved that of the defendant and his girlfriend. A reviewing court is not called upon to decide whether it believes the witnesses. State v. Rose, 2005-0396, pp. 2-3 (La.App. 4 Cir. 4/13/07), 955 So.2d 270, 272. Viewing all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt, that the defendant possessed and discarded the seventeen rocks of crack cocaine Officer Jones found on the right side of the steps where the officers had observed defendant sitting.

There is no merit to any argument that the evidence was insufficient to sustain the defendant’s conviction or that there was insufficient probable cause to arrest him.

As to whether the trial court erred in denying defendant’s motion to suppress the evidence, in reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence adduced at the hearing on the motion to suppress; it may also consider any pertinent evidence given at trial of the case. State v. Craft, 2003-1852, p. 5 (La.App. 4 Cir. 3/10/04), 870 So.2d 359, 363; State v. Nogess, 98-0670, p. 11 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 137.

The evidence in the instant case establishes that the defendant discarded the cocaine while the officers were driving up the street in their police unit. While the l7officers admitted that they turned onto the street because of general citizen complaints that individuals were trespassing on the porches of residents, possibly to sell narcotics, there was no evidence that the officers had done anything to signal that they were going to stop and approach the defendant. “When property is abandoned without any prior unlawful intrusion into a person’s right to be free from governmental interference, that property may be lawfully seized.” State v. Wilson, 2002-0776, pp. 6-7 (La.App. 4 Cir. 1/22/03), 839 So.2d 206, 210, citing State v. Belton, 441 So.2d 1195, 1199 (La.1983) and State v. Handy, 2002-1025, p. 2 (La.App. 4 Cir. 9/25/02), 828 So.2d 1207, 1210. At the point the defendant abandoned the cocaine the officers had not intruded on his right to be free from governmental interference. Accordingly, Officer Jones lawfully seized the cocaine abandoned by the defendant. The trial court properly denied the motion to suppress the evidence.

As to any motion to suppress the statement, it can be noted that it does not appear that the defendant filed a motion to suppress the statement, only a motion to suppress the evidence. The record does not contain any written motion to suppress, either evidence or a statement. A minute entry from October 5, 2006, reflects that a hearing was held that date on a motion to suppress the evidence, and the transcript of that hearing reflects that the trial court denied a motion to suppress the evidence. Only a few lines of the motion to suppress testimony concerned the defendant’s making of the statement that he did not live at the residence where he was sitting. However, the record does contain a copy of a State notice of intention to use a statement made by the defendant, which presumably was filed. Even if the defendant did not file a motion to suppress the statement, the State is not free to introduce an inculpatory statement into evidence without first meeting some | Srequirements. It will be assumed for the sake of argument that the statement was inculpatory, however minimally.

This Court discussed the requirements for admission into evidence of an inculpatory statement in State v. Butler, 2004-0880 (La.App. 4 Cir. 1/27/05), 894 So.2d 415, as follows:

It is well settled that before the state may introduce an inculpatory statement or confession into evidence, it must affirmatively show that the statement was free and voluntary and not the result of fear, duress, intimidation, menace, threats, inducements, or promises. La. R.S. 15:451; La.C.Cr.P. art. 703(D); State v. Gradley, 97-0641 (La.5/19/98), 745 So.2d 1160, 1166. The State must prove that the accused was advised of his Miranda rights and voluntarily waived these rights in order to establish the admissibility of a statement made during custodial interrogation. State v. Green, 94-0887, pp. 9-10 (La.5/22/95), 655 So.2d 272, 280; State v. Labostrie, 96-2003, p. 5 (La.App. 4 Cir. 11/19/97), 702 So.2d 1194,1197. A court must look to the totality of the circumstances surrounding the confession to determine its voluntariness. State v. Lavalais, 95-0320, p. 6 (La.11/25/96), 685 So.2d 1048, 1053. The testimony of police officers alone can be sufficient to prove the defendant’s statements were freely and voluntarily given. State v. Jones, 97-2217, p. 11 (La.App. 4 Cir. 2/24/99), 731 So.2d 389, 396. (Footnote giving cite to Miranda omitted.).
Butler, 2004-0880, p. 4, 894 So.2d at 418.

Whether a statement was voluntary is a fact question; thus, the trial judge’s ruling, based on conclusions of credibility and the weight of the testimony, is entitled to great deference and will not be disturbed on appeal unless there is no evidence to support it. State v. Byes, 97-1876, pp. 11-12 (La.App. 4 Cir. 4/21/99), 735 So.2d 758, 765; State v. Parker, 96-1852, pp. 12-13 (La.App. 4 Cir. 6/18/97), 696 So.2d 599, 606. The evidence is that Officer Gant merely asked the defendant if he resided at the residence where he was sitting on the steps. There is no evidence that the defendant’s response that he did not, but lived in the | {¡neighborhood, was not free and voluntary and not the result of fear, duress, intimidation, menace, threats, inducements, or promises.

The defendant appears to argue that at the time his statement was given he was in custody for the crime of trespassing. However, there is no indication that the defendant was ever in custody for the crime of trespassing. Officer Jones testified that the defendant was not booked with trespassing because the officers could not locate the owner of the property. Therefore, there is no merit to that particular claim.

As to a claim that the defendant was in custody at the time he made the statement, during defense counsel’s cross-examination of Officer Gant at the motion to suppress hearing the officer was queried concerning his questioning of the defendant about residing at the location, and the officer stated in this regard:

Right. That was after the matter when we found the drugs. I asked him something—

Officer Gant also testified during the motion to suppress hearing that once his partner found the contraband and advised him of it, he placed the defendant under arrest, after advising him of his Miranda rights.

At trial, Officer Gant stated that the officers stopped the vehicle. His partner exited. Officer Gant called the defendant over to him — although it was clear that Officer Gant had stepped out of the police unit — and informed the defendant he was conducting an investigation to find out whether he lived at the residence or had business there. Officer Gant stated that the defendant informed him he did not reside at that location. The officer was asked by the prosecutor what his partner, Officer Jones, was doing at that time. Officer Gant replied that his partner had relocated to the steps and then advised him of the contraband he found there. 1 mOfficer Gant stated that at this point he arrested the defendant, placed him in handcuffs, and advised him of his Miranda rights.

The record is somewhat unclear as to when Officer Gant questioned the defendant as to whether he lived at the residence, whether it was prior to his custodial arrest or afterward. If it was after Officer Gant’s partner found the contraband and alerted him, and after the defendant was advised of his Miranda rights, then there was no error in admitting the statement.

The defendant essentially argues that there was no evidence he had committed the offense of trespassing, and therefore the officers had no reason to approach him and ask him if he resided at the residence.

Police officers can approach an individual as to whom they have no reasonable suspicion or probable cause to arrest and ask that individual potentially incriminating questions. See State v. Lewis, 2000-3136, p. 3 (La.4/26/02), 815 So.2d 818, 820 (“[T]he proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions .... is by no means novel; it has been endorsed by the Court any number of times,” quoting Florida v. Bostick, 501 U.S. 429, 439, 111 S.Ct. 2382, 2388, 115 L.Ed.2d 389 (1991)). “[L]law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen.... ” Lewis, 2000-3136, p. 3, 815 So.2d at 820, quoting Florida v. Royer, 460 U.S. 491, 498, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983).

The next incremental step in police-citizen interaction is the investigatory stop, based on reasonable suspicion of criminal activity. La.C.Cr.P. art. 215.1(A) In codifies the U.S. Supreme Court’s authorization of stops based on reasonable suspicion set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and provides:

A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.

“Reasonable suspicion” to stop is something less than the probable cause required for an arrest; a reviewing court must look to the facts and circumstances of each case to determine whether a detaining officer had sufficient facts within his knowledge to justify an infringement of the suspect’s rights. State v. Jones, 99-0861, p. 10 (LaApp. 4 Cir. 6/21/00), 769 So.2d 28, 36-37; State v. Littles, 98-2517, p. 3 (LaApp. 4 Cir. 9/15/99), 742 So.2d 735, 737. Evidence derived from an unreasonable stop, i.e., seizure, will be excluded from trial. State v. Benjamin, 97-3065, p. 3 (La.12/1/98), 722 So.2d 988, 989; State v. Tyler, 98-1667, p. 4 (La.App. 4 Cir. 11/24/99), 749 So.2d 767, 770. In assessing the reasonableness of an investigatory stop, the court must balance the need for the stop against the invasion of privacy that it entails. State v. Carter, 99-0779, p. 6 (La.App. 4 Cir. 11/15/00), 773 So.2d 268, 274. The totality of the circumstances must be considered in determining whether reasonable suspicion exists. State v. Oliver, 99-1585, p. 4 (La.App. 4 Cir. 9/22/99), 752 So.2d 911, 914. The detaining officers must have knowledge of specific, articulable facts, which, if taken together with rational inferences from those facts, reasonably warrant the stop. State v. Dennis, 98-1016, p. 5 (La.App. 4 Cir. 9/22/99), 753 So.2d 296, 299. In reviewing the totality of the circumstances, the officer’s past experience, training and common sense may be considered in determining if his inferences from the facts at hand were reasonable, h 2 State v. Hall, 99-2887, p. 4 (La.App. 4 Cir. 10/4/00), 775 So.2d 52, 57; State v. Cook, 99-0091, p. 6 (La.App. 4 Cir. 5/5/99), 733 So.2d 1227, 1231. Deference should be given to the experience of the officers who were present at the time of the incident. State v. Ratliff, 98-0094, p. 3 (La.App. 4 Cir. 5/19/99), 737 So.2d 252, 254. In reviewing a trial court’s ruling on a motion to suppress, an appellate court is not limited to evidence adduced at the hearing on the motion to suppress; it may also consider any pertinent evidence given at trial of the case. State v. Craft, 2003-1852, p. 5 (La.App. 4 Cir. 3/10/04), 870 So.2d 359, 363; State v. Nogess, 98-0670, p. 11 (La.App. 4 Cir. 3/3/99), 729 So.2d 132, 137.

In the instant case, the evidence from both the motion to suppress hearing and the trial is that the officers had citizen complaints of persons trespassing on residents’ porches/steps in the block in question for the purpose of selling narcotics. The officers rounded a corner and spied the defendant sitting on the steps of a residence with a “No Trespassing” sign. When the defendant saw the officers his eyes got big, he nervously made a quick motion with his right hand, and he alighted from the steps and walked toward the officers. At that point Officer Jones exited the police unit and went directly to the ground below where he had noticed the defendant make the quick hand motion.

While Officer Gant testified at trial that he motioned the defendant over to him, the evidence is that Officer Gant was out of the police car and very near the defendant at this point. The testimony was that the defendant got up from the steps and walked toward the officers. While Officer Gant stated that he informed the defendant that he was investigating complaints of individuals trespassing in the area and asked the defendant if he resided at the location where he had been sitting, the encounter between Officer Gant and the defendant could possibly be | ^considered a non-investigatory encounter between a citizen and an officer. If that was the case, Officer Gant had every right to ask the defendant if he resided at that location, without regard to whether Gant had reasonable suspicion.

To the extent the encounter between Officer Gant and the defendant constituted more, it was an investigatory stop pursuant to La.C.Cr.P. art. 215.1 that was justified by the totality of the circumstances — the general citizen complaints the officers had received of individuals trespassing on porches and steps of residents in that block; the observation of the defendant sitting on the steps of a residence in that block; the defendant’s actions at the sight of the officers — defendant’s eyes got big; he made a quick movement toward the right side of the steps with his right hand; and he quickly got up from the steps and walked toward the officers. Officer Jones also indicated that he had experience with subjects discarding narcotics at the sight of police.

Further, the erroneous admission of an inculpatory statement is subject to the harmless error analysis. State v. Harris, 2001-2730, p. 26 (La.1/19/05), 892 So.2d 1238, 1260. To determine whether an error is harmless, the proper question is whether the guilty verdict actually rendered in this trial was surely unattributable to the error. State v. Snyder, 98-1078, p. 15 (La.4/14/99), 750 So.2d 832, 845. Even assuming that the defendant’s statement that he did not reside at the residence was given in response to custodial interrogation prior to defendant being advised of his Miranda rights, or in response to questioning where Officer Gant did not have sufficient reasonable suspicion, any such error would have been harmless, considering the other evidence against defendant.

There is no merit to Assignments of error Nos. 1, 2 & 3.

| -¡¿ASSIGNMENT OF ERROR NO. 4

By this assignment of error the defendant argues that the trial court erred by not ascertaining that he knowingly and voluntarily waived his right to trial by jury.

A defendant charged with an offense other than one punishable by death may knowingly and intelligently waive his right to trial by jury and elect to be tried by the judge. La.C.Cr.P. art. 780(A); State v. Lee, 2001-2082, p. 4 (La.App. 4 Cir. 8/21/02), 826 So.2d 616, 622. The waiver must be express and is never presumed. State v. Santee, 2002-0693, p. 3 (La.App. 4 Cir. 12/4/02), 834 So.2d 533, 534. A waiver of the right to trial by jury is valid only if the defendant acted knowingly and voluntarily. State v. Kahey, 436 So.2d 475, 486 (La.1983); Santee, supra. However, while the trial judge must determine if the defendant’s jury trial waiver is knowing and intelligent, that determination does not require a Boykin-like colloquy. Santee, supra.

In the instant case, the following colloquy occurred between the trial court, the defendant and his attorney:

THE COURT:
Kendal Williams. Mr. Williams, do you understand in this case, you’re entitled to a trial by a jury. Six jurors would be selected. All six would have to agree on the verdict. That is, guilty as charged; guilty of attempted possession of cocaine, or not guilty. Do you understand ?
THE DEFENDANT:
Yeah.
THE COURT:
You also have a right to waive a trial by jury and elect a trial by judge. This morning your attorney informed me that you wish to elect a trial by judge; is that correct?
THE DEFENDANT:
Yeah.
|1STHE COURT:
And you agree with that, Mr. Band? MR. BAND:
Yes, sir.

In Lee, supra, the trial court questioned the defendant in the presence of his attorney, asking him: “Sir, do you understand you have a right to trial by judge or jury?” Lee, 2001-2082, p. 5, 826 So.2d at 622. The defendant responded affirmatively. The trial court then asked the defendant: “Tell me what type of trial you elect to proceed by.” Id. The defendant replied: “I would like to go with a judge.” Id. This Court held that this colloquy clearly established that the defendant articulated his desire to waive his right to a jury trial, and it thus rejected his argument that the record failed to show that he made a knowing and intelligent waiver of his right to a jury trial.

In the instant case, the evidence that the defendant knowingly and voluntarily waived his right to trial by jury is even stronger than it was in Lee, supra. Accordingly, the defendant in the instant case made a knowing and voluntary waiver of his right to trial by jury.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 5

By this assignment of error the defendant essentially argues that his counsel was ineffective, mentioning that counsel failed to elicit sufficient testimony at the motion to suppress hearing and at trial.

“As a general rule, claims of ineffective assistance of counsel are more properly raised by application for post conviction relief in the trial court where a full evidentiary hearing may be conducted if warranted.” State v. Howard, 98-0064, p. 15 (La.4/23/99), 751 So.2d 783, 802. However, where the record is Insufficient, the claims may be addressed on appeal. State v. Wessinger, 98-1234, p. 43 (La.5/28/99), 736 So.2d 162, 183; State v. Bordes, 98-0086, p. 7 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147. Ineffective assistance of counsel claims are reviewed under the two-part test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). State v. Brooks, 94-2438, p. 6 (La.10/16/95), 661 So.2d 1333, 1337 (on rehearing); State v. Robinson, 98-1606, p. 10 (La.App. 4 Cir. 8/11/99), 744 So.2d 119, 126. In order to prevail, the defendant must show both that: (1) counsel’s performance was deficient; and (2) he was prejudiced by the deficiency. Brooks, supra; State v. Jackson, 97-2220, p. 8 (La.App. 4 Cir. 5/12/99), 733 So.2d 736, 741. Counsel’s performance is ineffective when it is shown that he made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064; State v. Ash, p. 9 (La.App. 4 Cir. 2/10/99), 729 So.2d 664, 669. Counsel’s deficient performance will have prejudiced the defendant if he shows that the errors were so serious as to deprive him of a fair trial. To carry his burden, the defendant must show that there is a reasonable probability that, but for counsel’s deficient performance the result of the proceeding would have been different; “[a] reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 693, 104 S.Ct. at 2068; State v. Guy, 97-1387, p. 7 (La.App. 4 Cir. 5/19/99), 737 So.2d 231, 236.

This Court has previously recognized that if an alleged error falls “within the ambit of trial strategy” it does not “establish ineffective assistance of counsel.” State v. Bordes, 98-0086, p. 8 (La.App. 4 Cir. 6/16/99), 738 So.2d 143, 147, quoting State v. Bienemy, 483 So.2d 1105, 1107 (La.App. 4 Cir.1986). Moreover, as “opinions may differ on the advisability of a tactic, hindsight is not 117the proper perspective for judging the competence of counsel’s trial decisions. Neither may an attorney’s level of representation be determined by whether a particular strategy is successful.” Id. quoting State v. Brooks, 505 So.2d 714, 724 (La.1987).

The defendant fails to point to any specific deficiency on the part of trial counsel. Even if it is assumed that trial counsel failed to file a motion to suppress the defendant’s statement that he did not reside at the residence and that counsel’s performance was thereby deficient, the defendant suffered no prejudice as a result of any such deficiency, as discussed herein-above.

There is no merit to this assignment of error.

For the foregoing reasons, we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).


author: ROLAND L. BELSOME, Judge.

text:
    Donna Dalcour SMITH v. Barry Gerard SMITH. Donya Dalcour Smith v. Barry Gerard Smith.
    Nos. 2007-CA-0260, 2007-CA-0261.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 2008.

      James B. Guest, Kenner, LA, for Plaintiff/Appellee.
    Janet M. Ahern, Raul E. Guerra, Jr., Kenner, LA, for Defendant/Appellant.
    Court composed of Judge DENNIS R. BAGNERIS SR., Judge TERRI F. LOVE, Judge ROLAND L. BELSOME.
   ROLAND L. BELSOME, Judge.

| Appellant Devin Barry Smith (“Mr. Smith”) appeals the trial court’s judgment denying his rule for change of custody. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Appellant Mr. Smith and Appellee Don-ya Dalcour-Ralph (“Mrs. Dalcour-Ralph”) married in Louisiana in 1991. One child, Devin Barry Smith, was born of their marriage on May 24, 1993. In 1998, when Devin was four years of age, the parties divorced. That same year, Mrs. Dalcour-Ralph was initially granted sole custody of Devin; a second judgment awarding joint custody was issued in August 1998, with Mrs. Dalcour-Ralph as the primary domiciliary parent. Mr. Smith was allowed reasonable visitation rights. On February 22, 2005, when Devin was approximately twelve years of age, a consent judgment was signed by both parties which granted Mr. Smith visitation with Devin every other weekend. On July 21, 2005, Mr. Smith filed a Motion for Contempt, To Modify Child Support, and to Modify the Visitation Schedule, seeking to be declared the domiciliary parent, or in the alternative, joint and shared custody. The motion was set for September 2, 2005.

|aOn August 29, 2005, Hurricane Katrina struck. Mrs. Dalcour-Ralph, an employee of Whitney National Bank (“Whitney”) in New Orleans, was temporarily relocated by Whitney to Houston, Texas following Hurricane Katrina, where she remained until January 13, 2006. For a period of time in late 2005, Devin resided with Mr. Smith, and was enrolled in Coppell Middle North School in Coppell, Texas. Mrs. Dalcour-Ralph relocated to an apartment in New Orleans, and in May 2006, Devin returned to Louisiana.

On May 11, 2006, Mr. Smith filed a Motion to Reset Motion for Contempt, Motion to Modify Child Custody and Request for Temporary Restraining Order to Modify Child Support, and to Modify the Visitation Schedule, seeking to be designated the domiciliary parent and to relocate Devin to Dallas. On May 16, 2006, Ms. Dalcour-Ralph filed a Rule for Sole Custody. It is from the trial court’s denial of Mr. Smith’s Rule for Change of Custody on August 31, 2006 that he appeals.

STANDARD OF REVIEW

An appellate court reviews a trial court’s determination of whether to modify a custody order under the abuse of discretion standard. Bergeron v. Bergeron, 492 So.2d 1193, 1196 (La.1986).

DISCUSSION

Assignments of Error # 1 and # 2

In his first assignment of error, Mr. Smith asserts that the trial court abused its discretion in. not recognizing major changes that occurred after the original |scustody decree that he maintains materially affected Devin’s well-being. The Louisiana Supreme Court has articulated the appropriate standard for determining whether a custody order should be modified:

The party seeking a change “bears the heavy burden of proving that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.” Bergeron [v. Bergeron], 492 So.2d [1193] at 1200. This burden of proof is imposed as a means of implementing the best interest standard in light of the special considerations present in change of custody cases. Last, the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse. Bergeron, 492 So.2d at 1196.

A.E.B. v. J.B.E., 99-2668, p. 7 (La.11/30/99), 752 So.2d 756, 760-61 (emphasis added). Custody matters are also governed by La. Civ.Code art. 131, which provides that a court “shall award custody of a child in accordance with the best interest of the child.”

Mr. Smith argues that the change in the environment necessitating a modification of the custody order is the alleged use of corporal punishment by Mrs. Dalcour-Ralph, Devin’s stepfather Tyrone Ralph, and other family members to occasionally discipline Devin. Additionally, Mr. Smith also references testimony regarding an incident where Devin was left by Mrs. Dalc-our-Ralph at a gas station for approximately ten minutes. Mrs. Dalcour-Ralph, Mr. Ralph, and |4Sandra Dalcour, Devin’s grandmother, disputed these allegations in their testimony at trial.

In this case, the trial court was in a superior position to observe and evaluate each witness’ demeanor and credibility. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973)(noting that the principal that a trial court’s factual findings are entitled to deference “is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts”). Likewise, it is well-settled that the trial court is vested with vast discretion when deciding child custody matters, and that the court’s findings are to be accorded great deference on appellate review. Bagents v. Bagents, 419 So.2d 460, 462 (La.1982).

Upon a review of the record, and in accordance with the standard articulated in Bagents, 419 So.2d at 462, we do not find that the trial court abused its discretion in determining that a change in circumstances necessitating a modification of the custody decree had not occurred in this case. Likewise, we do not find that the trial court erred in determining that Mr. Smith failed to demonstrate that a continuation of the present arrangements would be so harmful and deleterious to Devin as to justify a modification of the custody decree. This assignment of error lacks merit.

| RWith respect to the second assignment of error, Mr. Smith submits that the trial court abused its discretion in failing to find that the modification of custody and relocation to Texas was in Devin’s best interest.

To determine the best interests of the child in each case, a court must make factual determinations, taking into consideration all relevant factors, including those set forth in La. Civ.Code art. 134. Dalferes v. Dalferes, 1998-1233 (La.App. 4 Cir. 11/18/98), 724 So.2d 805, 807. Article 134 provides as follows:

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

La. Civ.Code art. 134 (emphasis added).

We agree with our brethren in the First Circuit, who have noted that the best-interest-of-the-child test is a fact-intensive inquiry, involving the weighing and balancing of factors favoring or opposing custody with respect to the competing parties on the basis of the evidence presented in each case. Martello v. Martello, 2006-0594, p. 5 (La.App. 1 Cir. 3/23/07), 960 So.2d 186, 191. Additionally, “[ejvery child custody case is to be viewed on its own peculiar set of facts and relationships involved, with the paramount goal of reaching a decision which is in the best interest of the child.” Id.

As previously stated, the trial court heard conflicting testimony from both parties in this case, in addition to testimony from Devin Smith and other witnesses. The trial court evaluated the testimony and evidence and made factual findings accordingly. We find nothing in the record which evidences that the trial court abused its discretion in reaching its determination that it was not in Devin’s best ^interest to modify the custody order and relocate him to Texas. This assignment of error lacks merit.

Assignment of Error # 3

In his third assignment of error, Mr. Smith maintains that the trial court abused its discretion in disregarding the testimony and recommendations of the court appointed custody evaluator. We find nothing in the record which evidences that the trial court disregarded the testimony and recommendations of the custody evaluator. In this case, the court appointed evaluator testified at length regarding her interviews with Mr. Smith, Mrs. Dalc-our-Smith, and Devin. This assignment of error lacks merit.

Assignment of Error # 4

In his fourth assignment of error, Appellant asserts that the trial court abused its discretion in not placing more emphasis in the minor child’s preference to live with Appellant in Texas. We note that a child’s preference is one of twelve factors to be considered under La. Civ.Code art. 134. Comment (b) to Article 134 states that “[t]he list of factors provided in this Article is nonexclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court.” La. Civ.Code art. 134, Comment (b)(emphasis added). Comment (b) to Article 134 further provides that “[i]n general, the court should consider the totality of the facts and circumstances of the individual case.” Id.

This Court has held that a court all relevant factors should be taken into consideration in making child custody determinations. Dalferes, 1998-1234, 724 So.2d at 807. The Louisiana Supreme Court has stated that the twelve factor | S“checklist” was only intended to provide guidance to courts in making custody determinations. Turner v. Turner, 455 So.2d 1374, 1377, n. 2 (La.1984). In this case, the trial court questioned Devin at length regarding his preferences and acknowledged that Devin articulated a desire to live with his father when giving its oral reasons for judgment. Thus, we find that the trial court took Devin’s preference into consideration in making its determination. This assignment of error lacks merit.

Assignment of Error # 5

In his fifth and final assignment of error, Appellant submits that the trial court abused its discretion in denying a change in custody. We note that the trial court heard extensive testimony from ten witnesses over a period of two days in this matter, and despite the lack of written reasons for judgment, we find that the trial court took into consideration all relevant factors when making its decision. In addition to the aforementioned reasons discussed in the previous assignments of error, we note again the standard imposed by Bagents, 419 So.2d at 462. Accordingly, we find nothing in the record which evidences an abuse of discretion by the trial court in making its factual finding that a change in custody was not warranted in this case. This assignment of error lacks merit.

CONCLUSION

While another trier of fact may have reached a different conclusion, we cannot say that the trial court abused its discretion in this particular case. For the | aforegoing reasons, the judgment of the trial court denying a Rule for Change of Custody is hereby affirmed.

AFFIRMED.

      . Mrs. Dacour-Ralph then filed a Rule for Return of Child and for Contempt on March 29, 2006. Mr. Smith filed a Petition to Effect Parent-Child relationship on the same day, citing Texas' Uniform Child Custody Jurisdiction Act. Texas did not accept jurisdiction and returned Devin to Mrs. Dacour-Ralph in Louisiana on May 8, 2006.

      . We note that Louisiana law does not recognize, nor does Mr. Smith argue that a change in a child’s age (i.e., from an infant to an adolescent) could constitute a change in circumstances.

      . We note that the trial court addressed the issue of corporal punishment in its oral reasons for judgment and in the written judgment itself, explicitly ordering that no family member or agent, including Mr. Smith, was to use any form of corporal punishment on Devin.

      . The Second Circuit has articulated similar guidelines, stating that "[t]he court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors.” Flanagan v. Flanagan, 36,852 (La.App. 2 Cir. 3/5/03), 839 So.2d 1070, 1073. The court further noted that “the court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented.” Id.

      . See also Bodie v. Harvey, 2006-845, p. 4 (La.App. 3 Cir. 11/2/06), 943 So.2d 1256, 1258 ("the trial court is not limited to considering the factors enunciated and should consider the totality of the facts and circumstances in each particular situation”)(citing Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, writ denied, 96-1650 (La.10/25/96), 681 So.2d 365).


text:
    David M.D. LANNES v. Marisol Fernandez LANNES.
    No. 2007-CA-0345.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 13, 2008.

      David M. Hufft, Pivach, Pivach, Hufft & Thriffíley, L.L.C., Belle Chase, Louisiana, for Plaintiff/Appellee.
    Mitchell J. Hoffman, Kim N. Nguyen, Lowe Stein Hoffman Allweiss & Hauver, L.L.P., New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   JAMES F. McKAY III, Judge.

hThe appellant, Marisol Lannes , appeals the judgment of the trial court granting joint custody of the two minor children and setting specific visitations with the appellee, David Lannes.

FACTS AND PROCEDURAL HISTORY

In May of 2004, as per final decree of divorce in the County of Henico, State of Virginia, Marisol and David Lannes, were awarded joint custody of the two minor children of the marriage, with reasonable visitation rights granted to David Lannes.

On July 14, 2006, David Lannes filed a petition for change of child custody in Plaquemines Parish, State of Louisiana, where the custodial parent, Marisol Lannes resides. Since the divorce decree in Virginia, Mr. Lannes moved to the State of Illinois. In his petition he requested expanded physical custody/visitation rights. On December 4, 2006, the matter came to trial and David Lannes was awarded expanded custodial rights to include periods at his home in Naperville, | glllinois. On December 19, 2006, Marisol Lannes filed a notice of motion for appeal. After numerous changes in counsel of record in the matter, Marisol Lannes filed a notice of intent to apply for writs of review, certiorari, and mandamus and a request for stay order for the February 22, 2007 judgment with the district court, which was denied. Subsequent to this denial, she filed a request for expedited consideration, request for stay order and emergency application for supervisory writs of review, certiorari and mandamus with this Court. This Court denied her application finding that the trial court had not abused its discretion. On April 26, 2007, she filed a request for expedited consideration, request for stay order and emergency application for supervisory writs of review, certiorari and mandamus with the Louisiana Supreme Court, which was denied on May 18, 2007.

ASSIGNMENT OF ERROR

In her appellate brief, Marisol Lannes, virtually duplicates the same argument she previously addressed before this Court in 2007-C-0362 and the Louisiana Supreme Court in 2007-CJ-855. In this appeal, she asserts that the trial court committed legal error and abused its discretion in failing to consider all relevant factors regarding the best interest of the children pursuant to La. C.C. arts. 131 and 134. She further argues that the trial court’s written judgment departs from the statements on the record.

| oSTANDARP OF REVIEW

In child custody cases, appellate courts will not disturb an award of custody absent a manifest abuse of discretion in the trial court. See Revision Comments—• 1993 to La. Civil Code art. 134, Comment (b). In Bergeron v. Bergeron, 492 So.2d 1193 (La.1986), the Louisiana Supreme Court described the appellate review standard by stating that “upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review in the absence of a clear showing of abuse.” Id. at 1196. See also AEB v. JBE, 99-2668, p. 7 (La.11/30/99), 752 So.2d 756, 761.

Where there has been an error of law, a de novo review is required in a child custody case. In Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, the Supreme Court discussed the appellate review standard where the trial court has committed legal error. The Supreme Court stated:

[Wjhere one or more trial court legal errors interdict the fact-finding process, 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. "When such a prejudicial error of law skews the trial court’s finding of a material issue of fact and causes it to pretermit other issues, the appellate court is required, if it can, to render judgment on the record by applying the correct law and determining the essential material facts de novo.

97-0541, 97-0577, pp. 6-7, 708 So.2d at 735 (citations omitted).

In the instant matter a de novo review standard is not applicable.

^ANALYSIS

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, Id., Rutledge v. Rutledge, 41,792 (La.App.2d Cir. 12/13/06), 945 So.2d 307. The best interest of the child test under Articles 131 and 134 is a fact-intensive inquiry requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented in each case. Rutledge, supra; Cook v. Cook, 40,572 (La.App.2d Cir.1/25/06), 920 So.2d 981. Each custody case must be viewed within its own peculiar set of facts. Cook, supra.

La. C.C. art. 134 provides that the court shall consider all relevant factors in determining the best interest of the child and such factors may include the following:

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

The court is not bound to make a mechanical evaluation of all of the statutory factors listed in Article 134, but should decide each case on its own facts in light of those factors. The court is not bound to give more weight to one factor over another, and when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Rutledge, supra. Moreover, the factors are not exclusive but are provided as a guide to the court and the relative weight given to each factor is left to the discretion of the trial court. Rutledge, supra, citing McIntosh v. McIntosh, 33,908 (La.App.2d Cir.8/31/00), 768 So.2d 219.

On December 4, 2006, a trial was held and all of the parties presented their arguments and evidence reflecting their respective concerns. One of the factors a court must consider, if it is relevant, is “[t]he reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.” Id. Revision Comments — 1993 to La. Civil Code art. 134, Comment (b), however, states that “[t]he list of factors provided in this Article is nonexclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court.” Here, the trial judge interviewed the eldest child and the record contains a transcription of the exchange. On February 22, 2007, the trial court rendered judgment in which he carefully outlines in great detail the criteria for the joint custody/visitation rights to be followed by both parents. The trial court’s comments throughout the transcript coupled with the evidence as a whole ^preponderates in favor of the reasonableness of the trial courts decision. All of the factors painstakingly take into account all of the concerns of the appellant, which include parenting classes, therapy, taking the children’s’ schooling into consideration when determining the visitations for holidays and summers, ordering non-stop flights between New Orleans and Chicago and ordering Mr. Lannes to consult with the children’s’ doctor to find out what is safe in his home to meet the children’s’ various medical concerns. These children are not young children, but are now young teenagers and their best interest was clearly considered by the trial court in compliance with La. C.C. arts. 131,134 and applicable jurisprudence. It is abundantly clear that the trial court did not abuse its discretion in its final judgment.

CONCLUSION

After a careful reading of the transcript and a review of the entire record before this Court, we find that there was no abuse of discretion of the trial court concerning the final judgment. Furthermore, we find no merit to appellant’s argument that the final written judgment does not adequately reflect the oral judgment from the trial on the merits. Therefore, we affirm the judgment of the trial court.

AFFIRMED.

BELSOME, J., concurs in the result.

      . Based on a remarriage, her name is now Marisol F. Tucker.

      . To date, based on the record, the oldest child is almost sixteen years old and the youngest is almost thirteen years old.

      .The judgment was reduced to a written judgment on February 22, 2007.