text:
    LUMBER INVESTORS, LLC d/b/a Martin Building Materials v. Herman HUMPHRIES.
    No. 05-1560.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    Herman M. Savoie, Jr., Attorney at Law, Alexandria, Louisiana, for Plain-tiffiAppellee, Lumber Investors, L.L.C. d/b/a Martin Building Materials.
    Jerold Edward Knoll, The Knoll Law Firm, Márksville, Louisiana, for Defendant/Appellant, Herman Humphries.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   COOKS, Judge.

^STATEMENT OF THE CASE

This is a suit on an open account. Lumber Investors, L.L.C. d/b/a Martin Building Materials (Martin) sued Herman Hum-phries for $2,923.62, the balance due on Mr. Humphries’ account with Martin. Charges to the account were made by Amy and Scott Robertson. The only fact in dispute was whether Mr. Humphries consented to the charges. The trial court found that he did. For the reasons assigned below, we affirm the decision of the trial court.

STATEMENT OF THE FACTS

Herman Humphries opened an account in 1989 with Martin for the purchase of building materials for his home. Even after his home was completed, Mr. Hum-phries allowed Amy and Scott Robertson to use the account to charge materials for their re-modeling business. It appears the parties had an arrangement whereby the Robertsons would use the credit account to charge materials and then pay Mr. Hum-phries when he received statements from Martin. A dispute arose between the parties concerning a $380.00 bill. Mr. Hum-phries testified he called Martin to complain about the bill and they told him they were going to close the account. Mancy Howell, Martin’s bookkeeper, remembered the conversation regarding the $380.00 bill. She testified she spoke to Mr. Humphries “[a]nd I told him I was not going to open the account up unless he authorized any charges.”

In December 2004, Amy Robertson went to Martin to purchase building materials. She requested the materials be charged to Mr. Humphries’ account. She was informed by Merlene Shackelford, a sales person for Martin, that the account was on hold and Mr. Humphries would have to give approval for 'the charges. Amy called Mr. Humphries and Ms. Shackelford spoke directly to Mr. Humphries. Ms. laShackelford testified: “Amy talked to him. A very short conversation and she told him, you need to tell this saleslady that it’s okay for us to charge on the account. At that point I took the phone and he told me, ‘Go ahead and let them have whatever they needed on the account.’ ” Mr. Humphries also spoke to Martin’s bookkeeper, Mancy Howell. Ms. Howell testified: “[H]e told me that it was okay for her to charge.”

Mr. Humphries does not dispute that he spoke to Amy, Ms. Shackelford or Ms. Howell in December 2004 regarding charges on the account. He does dispute that he gave his approval for the charges to be posted to his account. The trial court concluded Mr. Humphries did give prior approval for the charges to be made on his account with Martin.

LAW AND DISCUSSION

Louisiana Revised Statutes 9:2781(D) defines an open account, as follows:

Open account includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions.

In order to recover in an action on an open account, a creditor must prove the account by showing that the record of the account was kept in the course of business and by introducing testimony regarding its accuracy. Once a prima-facie case has been established by the creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove the debt- or is entitled to certain credits. Bieber-Guillory v. Aswell, 98-559 (La.App. 3 Cir. 12/30/98), 723 So.2d 1145. Mr. Humphries does not dispute he had an account with Martin. The account was opened in 1989 when Mr. Humphries was building his home. Martin submitted into evidence the invoices totaling $2,923.62 for building materials charged to Mr. Humphries’ account by the Robertsons.

|4The evidence suggests Mr. Humphries and the Robertsons had an arrangement whereby the Robertsons would charge on Mr. Humphries’ account and then pay Mr. Humphries for any amounts billed. The Robertsons had been using the account for several years beginning in 1989. At one point, when the Robertsons failed to pay a $380.00 bill, a dispute arose. Mr. Hum-phries testified:

Q: Had she [Amy] told you that she would pay for these .... had she ever charged to your account and paid the bills before?
A: Once before Amy and them had charged on my account and I told them.... I talked to Amy and said she was trying to establish an account with Martin, she said. So, I said, okay, go ahead. And that’s whenever the dispute come up on the $380 something dollars.

In fact, Mr. Humphries’ wife, Martha, who handled the bookkeeping, was well aware of the arrangement between the Robertsons and Mr. Humphries regarding the account at Martin. Mr. Humphries testified:

Q: Did you subsequently receive bills from Martin Building Materials on your account?
A: I never saw the bill. Let me put it this a way, bills, I’m sure came in, but Martha got the bills and she knew we had not charged anything at Martin so she sent it to Amy and Scott.

Mr. Humphries now contends he did not give approval for the charges made by Amy in December 2004. He does not deny the telephone conversations took place; however, he contends Martin is mistaken ■in its belief he agreed to the charges. When questioned regarding the telephone conversations, he testified, as follows:

Q: Do you recall Mrs. Robertson calling you on the day she came in to purchase these building materials?
A: I was working the store when Amy called me that morning, yes. And I had customers and I do remember Amy calling me but I do not remember telling Amy yes or no. I told Eddie I remember I was waiting on some customers and one of the customers handed me some money and he ... it was for a drink or something or another, I think it was $1.25 a piece, and he asked me was that correct and I said yes. And I don’t remember saying anything to IsAmy whether I did or didn’t. But I did talk to Mancy that morning.
Q: Okay. Did you tell her it was okay for her ...
A: I told ... I said ... I don’t care what ya’II do. I’m not charging anything and I’m not paying anything. That was my statement to Mancy.
Q: So, you do remember speaking to Amy?
A: I did.
Q: Did you tell Amy she couldn’t charge anything?
A: I did not tell Amy she could not charge anything. No, I did not.
A: I told her... .Well I was talking to somebody else and I said okay. But she said that I had to talk to Mancy and that’s whenever they gave the phone to her I assume or transferred the call to her, whatever they did. I don’t know.

Mr. Humphries’ version of the facts is contradicted by three witnesses, all of whom testified he gave approval for the charges to be made on his account. Moreover, the testimony indicates numerous statements were sent to Mr. Humphries prior to suit being filed. Mr. Humphries did not call Martin to dispute the charges made on his account. The trial court apparently concluded Mr. Humphries’ account of the telephone conversation was unbelievable and found he approved the charges on his account. Credibility determinations are within the purview of the trier of fact. An appellate court may not set aside the factual findings of a trial court unless manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). We have reviewed the testimony of the parties and find no error in the decision of the trial court.

| «DECREE

Based on the foregoing review of the record, we affirm the decision of the trial court. All costs of this appeal are assessed to Herman Humphries.

AFFIRMED.


source: Caselaw Access Project

author: DECUIR, Judge.

license: Public Domain

text:
    Mary CAVAZOS v. SOUTHERN CONSTRUCTION SUPPLY, INC.
    No. 05-1559.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff/Appellee, Mary Cavazos.

      Mark Ackal, Mark Ackal & Associates, Lafayette, LA, for Defendant/Appellant, Southern Construction Supply, Inc.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   DECUIR, Judge.

lUn this workers’ compensation case, the defendant, Southern Construction Supply, Inc., seeks to reverse a grant of summary judgment in favor of the claimant, Mary Cavazos. For the reasons that follow, we reverse and remand.

FACTS

Sometime in 1996, Mary Cavazos began working as a babysitter and cleaning lady for James and Lori Guinn. At the time, she was paid by the Guinns in cash or personal check. In 1999, the Guinns completed an office building next to their home out of which they operated their business, Southern Construction Supply, Inc. At about the same time, Cavazos asked for a raise. The Guinns agreed to the raise but indicated that they would like to have her clean the office as well. Cavazos’ duties remained essentially the same and with the exception of cleaning the office a couple of hours a week, she worked in the Guinns’ residence. However, because the Guinns were often absent from the home when it was time for Cavazos to be paid, she began to be paid through Southern Construction Supply, Inc.

Over the next four years, her responsibilities varied and included occasional cleaning for some of the Guinns’ relatives and cleaning the company’s recreational vehicle for trips, but her hours remained the same. On November 3, 2003, while working at the Guinns’ residence, Cavazos fell while attempting to repair a toy tractor belonging to one of the Guinns’ children. Subsequently, she filed a claim for workers’ compensation benefits against Southern Construction Supply, Inc.

Southern Construction Supply, Inc. filed a motion for summary judgment alleging that Cavazos was not its employee but was a domestic employee of the Guinns and was not covered by the compensation act. Cavazos filed a counter motion for summary judgment seeking dismissal of Southern Construction Supply, Inc.’s defense. The workers’ compensation judge found that Cavazos was employed by 12Southern Construction Supply, Inc. and granted her motion for summary judgment and denied the motion of Southern Construction Supply, Inc. Subsequently, Southern Construction Supply, Inc. lodged this appeal.

SUMMARY JUDGMENT

A motion for summary judgment shall be granted when the mover establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law, based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. La.Code Civ.P. art. 966. Summary judgment is now favored, however, the mover still bears the burden of establishing that no material issue of fact exists. Stephenson v. Van Vleit, 96-1407 (La.App. 3 Cir. 4/30/97), 693 So.2d 858, writ denied, 97-1431 (La.9/19/97), 701 So.2d 174. An appellate court reviews a summary judgment de novo, using the same criteria as the district court which determined that summary judgment was appropriate. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180.

Southern Construction Supply, Inc. argues that the workers’ compensation judge erred in finding that Cavazos was its employee and in granting her motion for summary judgment. We agree.

In Jordan v. Central Management Co., 99-748, p. 7 (La.App. 3 Cir. 10/13/99), 745 So.2d 116, 120, writ denied, 99-3231 (La.1/14/00), 753 So.2d 220, this court said:

A prerequisite to any workers’ compensation action is the existence of an employer-employee relationship. Boswell v. Kurthwood Manor Nursing Home, 94-703 (La.App. 3 Cir. 12/7/94); 647 So.2d 630, writ denied, 95-0050 (La.3/17/95); 651 So.2d 267. The claimant bears the burden of proving the employer-employee relationship by a preponderance of the evidence. Id. The right to control is the essence of the employer-employee relationship, as evidenced by four factors: (1) selection and engagement, (2) payment of wages, (3) power of dismissal, and (4) power of control. Id. No single factor is determinative, but the totality of the circumstances must be considered. Id.

|sIn this case, the determination of whether Southern Construction Supply, Inc. is Cavazos’ employer is critical because if it is, workers’ compensation benefits may be available. However, if she is a domestic employee of the Guinns, she is not covered by the act. Louisiana Revised Statutes 23:1035(B).

In his reasons for judgment, the workers’ compensation judge indicated that he was somewhat unsure of his decision in part because he had not heard testimony. As a result, he elected to err on the side of the claimant. We have reviewed the materials submitted by the parties, and like the workers’ compensation judge, are uncomfortable with making a determination as to who is Cavazos’ employer. However, we find neither party has established that they are entitled to judgment as a matter of law. Moreover, we find that there are genuine issues of material fact in dispute particularly with regard to the factors enunciated in Jordan. Accordingly, the workers’ compensation judge erred in granting Cavazos’ motion for summary judgment.

DECREE

For the foregoing reasons, the judgment of the workers’ compensation judge is reversed, and the case is remanded for further proceedings. Costs of these proceedings are taxed one-half to Mary Cavazos and one-half to Southern Construction Supply, Inc.

REVERSED AND REMANDED.


author: AMY, Judge.

text:
    Jenny SLAYTON v. Billy G. SLAYTON, Jr.
    No. 05-1529.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      W. Jay Luneau, Luneau Law Office, Alexandria, LA, for Plaintiff/Appellant, Jenny Slayton.
    Ruby N. Freeman, Assistant District Attorney, Alexandria, LA, for Third Party Appellee, State of Louisiana, Department of Social Services. .
    Billy G. Slayton, Jr., Zwolle, LA, for Defendant/Appellee, Billy G. Slayton, Jr.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.

      . Billy testified that an investigation ensued, and the case was subsequently closed.

   AMY, Judge.

| jThe defendant allegedly physically abused the plaintiff, his ex-wife, and his minor son. When the plaintiff prevented him from seeing his two children, the defendant filed a petition for visitation. A hearing was held, in which the trial court confirmed the couple’s joint custody arrangement, naming the plaintiff as the domiciliary parent. The defendant was granted visitation every other weekend, alternating weeks during the summer, and pre and post holiday visits. The plaintiff appeals, asserting two assignments of error. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Jenny Slayton Normand, and the defendant, Billy G. Slayton, Jr., dated for approximately eight years and had two children, Stayce and Steven. The record indicates that they married in 2000, separated nine months later, and divorced in 2001. The parties entered into a consent judgment in which they shared joint custody of the children and Billy was entitled to exercise reasonable visitation. According to Billy, “[t]he word reasonable was put in there due to the fact I worked shut-downs. I had no set schedule that I could lock in with my children.” Billy testified that for two years, he usually was able to see the children anytime he called their mother. However, his visitation was terminated, according to Billy, when.his fiance’s sister alleged that he abused his fiance’s children and her nephew.

Billy filed a petition for visitation in June 2004, alleging that Jenny had “refused to allow [him] to visit with the children due to his past arrearage in monthly child support payments.” A hearing was held on October 25, 2004, in which the trial |2court ordered Billy to submit to a mental health evaluation to determine if he should be granted visitation with the children. In the interim, the trial court granted Billy visitation every other Saturday from nine in the morning to six in the evening.

Billy testified that he “went to two different mental evaluations and to an anger management counselor.” He stated that he did not know why the trial court had ordered the mental evaluation as he is not “crazy.” He also denied that he had an anger problem. When asked if any good came out of it, Billy replied: “I thought it was doing me good with the Court.”

Billy testified that during the Fourth of July weekend, his family was coming into town, and he asked Jenny if the children could stay with him longer. Jenny refused. Billy did not return the children Saturday evening; he kept them until Monday. He testified that he knew it was wrong, explaining that: “[I]t’s hard when your kids want to, you know, cry and ask to stay every time ... You know, and I had been waiting and waiting, and I was very frustrated.”

A hearing was held on the petition for visitation on July 18, 2005. Witnesses testified to Billy’s relationship with Jenny as well as his relationship with his son, Steven. It was alleged that Billy physically abused both Jenny and Steven and that this abuse adversely affected Steven in terms of his psychological well-being. The trial court, after examining all of the evidence, continued the parties’ joint custody of the children. Jenny was named the domiciliary parent. The trial court further ruled:

Mr. Slayton be allowed visitation from 5:00 o’clock p.m. on Friday until 6:00 o’clock p.m. on Sunday; that there be pre and post holidays according to the Rapides Parish schedules and that beginning with next summer that both parents alternate weeks during the summer, one week to be spent with Mr. Slayton, the following week to be spent with Ms. Normand, and this will begin one week after school lets out, and that will begin next summer. Mother’s Day will be spent with Ms. Normand and Father’s Day will be spent with Mr. Slayton.

| ¡¡It is from this judgment that Jenny appeals. She designates the following as error:

1. The Trial Court correctly found that there was anger (more correctly family violence) directed toward Appellant, but still granted overnight unsupervised visitation to Appellee without a showing by a mental health care provider that Appellee was not a threat to the minor children.
2. The Trial Court committed error finding that there was no anger directed toward the minor children by Appellee and therefore, Appellee should not be allowed unsupervised overnight visitation.

Discussion

Family Violence

Jenny argues that in its reasons for ruling, the trial court found that there was anger or family violence directed toward her. Thus, she contends that pursuant to the Post^Separation Family Violence Relief Act, the trial court erred in granting overnight unsupervised visitation to Billy without a showing by a mental health care provider that he was not a threat to the minor children. Furthermore, she asserts that a mental health professional presented uncontradicted testimony that “Steven had been the victim of family violence and was fearful of his father.” Jenny contends, therefore, that the trial court erred in finding that there was no anger directed toward the minor children by Billy and in allowing Billy unsupervised overnight visitation.

The Posh-Separation Family Violence Relief Act is found in La.R.S. 9:361, et seq. “From a review of the Act as well as the case law, the apparent legislative intent in creating the Act was to protect victimized parties when domestic disputes arise in the course of separation and divorce.” State ex rel. S.D.K., 04-218, p. 5 (La.App. 5 Cir. 5/26/04), 875 So.2d 887, 890-91. Louisiana Revised Statutes 9:364(C) “was specifically designed to protect the child’s interest by restricting the right of visitation Rof the abusing spouse in families with a history of family violence.” Michelli v. Michelli, 93-2128, p. 5 (La.App. 1 Cir. 1/5/95), 655 So.2d 1342, 1346. Louisiana Revised Statutes 9:364 provides in pertinent part:

A. There is created a presumption that no parent who has a history of perpetrating family violence shall be awarded sole or joint custody of children. The court may find a history of perpetrating family violence if the court finds that one incident of family violence has resulted in serious bodily injury or the court finds more than one incident of family violence. The presumption shall be overcome only by a preponderance of the evidence that the perpetrating parent has successfully completed a treatment program as defined in R.S. 9:362, is not abusing alcohol and the illegal use of drugs scheduled in R.S. 40:964, and that the best interest of the child or children requires that parent’s participation as a custodial parent because of the other parent’s absence, mental illness, or substance abuse, or such other circumstances which affect the best interest of the child or children. The fact that the abused parent suffers from the effects of the abuse shall not be grounds for denying that parent custody.
C. If the court finds that a parent has a history of perpetrating family violence, the court shall allow only supervised child visitation with that parent, conditioned upon that parent’s participation in and completion of a treatment program. Unsupervised visitation shall be allowed only if it is shown by a preponderance of the evidence that the violent parent has completed a treatment program, is not abusing alcohol and psychoactive drugs, and poses no danger to the child, and that such visitation is in the child’s best interest.

Louisiana Revised Statutes 9:362(3) defines family violence:

“Family violence” includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injuring and defamation, committed by one parent against the other parent or against any of the children.

In its reasons for ruling, the trial court stated:

The Court, after taking into consideration the testimony of all of the parties, arguments of counsel, taking into consideration -the entire suit record, this Court has heard no testimony as to any anger by Mr. Slayton against the children in question. All anger and anger related issues have been directed toward his ex-spouse. Even the boat paddling incident, if you call it a paddling, shows no intent to hurt or harm the child in any | ¿way, but it did in fact show a lack of good judgment. I, in fact, was waiting for any testimony that showed that Mr. Slayton has any ill will or ill feelings toward the children in question. The Court does take into consideration the fact that being a parent means more than just seeing his or her child once or twice a month. The Court takes into consideration the fact that Mr. Slayton did in fact withhold these children a day longer than what he should have, or even two days. The Court also takes into consideration that the children were held from Mr. Slayton for a period in excess of two and one half to three years. There’s one more — the Court did note that Mr. and Mrs. Slayton lived together or [sic] seven or eight years and that the marriage itself lasted nine and one half months. Throughout this stormy relationship it appears that both parents contributed to the anxiety of the children involved and, after hearing the testimony of the parties, the Court finds it to be in the best interest of the minor children that they in fact develop a relationship with their father.

The trial court’s custody decision will not be overturned on appeal absent an abuse of discretion. Duhon v. Duhon, 01-731 (La.App. 3 Cir. 12/12/01), 801 So.2d 1263. At trial, Jenny alleged that Billy physically abused her before and during their marriage. When asked how Billy was physically violent towards her, Jenny responded: “There were times that he’d choked me up against the wall. There were times that he’d push me. He’s pulled my hair.” She also testified that on one particular occasion they were arguing over a phone line, and she “got the brush in [her] — it was [her] left eye.” We note that Jenny’s mother and sister-in-law testified that they witnessed Billy grabbing Jenny by the head and pushing her.

According to Jenny and her sister-in-law, Diana Gross, Billy also physically abused their son, Steven. Mrs. Gross testified that she saw Billy whipping Steven with a belt and that she thought Billy was “rough.” Jenny testified that in 2002, she noticed a bruise on Steven’s leg, and he stated that Billy had whipped him with a leather strap. She explained that because of this incident, she stopped Billy’s visitation with the children. Jenny also described an incident that happened a few | (¡weeks before the visitation hearing. Steven told Jenny that Billy hit him on the “butt” with a boat paddle because he did not get into the boat when Billy told him to do so. Nevertheless, when asked under what circumstances would she feel comfortable with the children having overnight visitation with Billy, Jenny answered: “Well, if he would get help with his anger I guess that would be a fact — I mean, like I said before, I don’t want to keep them from him. I just want him to get help with his anger.”

Jenny sought help for Steven because he had behavioral problems. Steven was referred to Northside Mental Health, where he met with Dr. Phillip Rowden, a child psychiatrist. Elizabeth Babcock, a mental health professional at Northside, worked under Dr. Rowden’s supervision and was also assigned to Steven’s case. Ms. Bab-cock testified that Steven was diagnosed as being bipolar and having Attention Deficit Hyper Activity Disorder (ADHD) and Post-Traumatic Stress Disorder (PTSD). According to Ms. Babcock, Steven was diagnosed with PTSD because he witnessed abuse “from his mom and his dad, domestic violence, and then also from his abuse from being whipped.” She testified that Steven informed her that Billy whipped him with a leather horse strap. She further testified that Steven stated that Billy “hit” him with a boat paddle, and “[i]t scared him because his dad struck him with an object.”

Ms. Babcock was aware of the fact that Jenny and/or Steven’s stepfather had gotten angry at Steven and whipped him, or as she puts it “spanked” him. We note that Jenny admitted to using a paint stick to discipline the children. On cross-examination, defense counsel pointed out that Ms. Babcock previously testified that she did not believe a boat paddle was a proper tool to use to spank a child. When 17asked about the comparative use of a paint stick, she responded: “I think that just the thickness of a boat paddle is totally different from a paint stirrer [sic].” She also stated that the amount of force used should be taken into consideration. Ms. Babcock acknowledged that Steven did not state that Billy used a lot of force when hitting him with the boat paddle. Rather Steven “just said that his dad hit with the boat paddle and it scared him.”

Ms. Babcock testified that Steven likes going to Billy’s house and enjoys himself when he is there. However, she stated that Steven told her that he does not feel safe at his dad’s house. She explained: “[A] constant thing that Steven and I are working on right now is a fear that he has. He doesn’t know why he’s scared. It’s just a fear that he has.” Ms. Babcock agreed with plaintiff counsel’s assertion that people with PTSD sometimes convince themselves that they are not safe when, in fact, they are. Ms. Babcock opined that if Billy were to go to counseling and Steven was aware of it, he would feel more safe around Billy and presumably would be comfortable with having overnight visitation with him.

Ms. Babcock admitted that it was her opinion, and not Dr. Rowden’s, that Steven should not have overnight visitation with Billy. She testified that Dr. Rowden stated that “a child should know both parents and both parents should be involved in the child’s life.”

After reviewing the testimony and evidence before it, the trial court found that' Billy did not direct any “anger” towards the children. Rather the trial court determined that “[a]ll anger and anger related issues have been directed toward his ex-spouse.” Jenny argues that “considering the testimony addueed[,3 this finding was one of family violence” and that pursuant to La.R.S. 9:364(C), the trial court erred in | sallowing visitation. In Michelli, 655 So.2d 1342 at 1346, the court held that “in order for [La.R.S. 9:364(0 ] to become operative, two things must occur. First, the court must find that there is family violence, and second, there must be a history of the family violence.”

In the matter before us, the trial court made no finding under the statute as it did not specifically find that Billy physically abused Jenny and/or Steven or that Billy had a history of perpetrating family violence. We note that the “trial court is not bound by expert testimony and remains free to accept or reject an expert’s conclusions.” Taylor v. State, Dep’t of Transp., 03-219, p. 15 (La.App. 3 Cir. 6/23/04), 879 So.2d 307, 318, writ denied, 04-1887 (La.10/29/04), 885 So.2d 595. The trial court was not required to accept Ms. Babcock’s testimony concerning the basis for Steven’s PTSD or her conclusion that Steven should not have overnight visitation with Billy.

Furthermore, the trial court was free to make credibility determinations related to the occurrence of alleged events. Id. Insofar as the trial court only found “anger” directed towards Jenny, we conclude that this is insufficient to invoke the applicability of the PosWSeparation Family Violence Relief Act. We find no abuse of discretion in the trial court’s determination that it would be in the best interest of the children to develop a relationship with their father. Accordingly, the award of joint custody naming Jenny as the domiciliary parent and granting visitation to Billy as provided by the trial court is affirmed.

| ¿DECREE

For the above reasons, the judgment of the trial court is affirmed. All costs of these proceedings are assessed against the plaintiff, Jenny Slayton Normand.

AFFIRMED.

      . We note that prior to the filing of Billy's petition for visitation, Jenny applied for child support enforcement services with the State of Louisiana, Department of Social Services. The Department of Social Services filed an ex parte motion ánd order for Billy to make all of his child support payments, including arrear-age, payable to it pursuant to La.R.S. 46:236.2(C).

      . Billy testified that never abused Jenny in any way.

      . We note that not only did Billy deny hitting Steven with a boat paddle, he also denied whipping Steven with a leather strap.


author: COOKS, Judge.

text:
    Mark REED, et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., et al.
    No. 05-1532.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.
    Rehearing Denied July 12, 2006.

      Joseph F. Gaar, Jr., Jason M. Welborn, Attorneys at Law, Lafayette, Louisiana, for Plaintiffs/Appellees, Mark Reed and Riki Reed.
    Jimmy L. Dauzat, Attorney at Law, Opelousas, Louisiana, for Defendants/Appellants, State Farm Mutual Automobile Insurance Company, Lena Jannise.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and MARC T. AMY, Judges.
   COOKS, Judge.

| .STATEMENT OF THE CASE

Mark and Riki Reed, filed suit against Lena Jannise, and her insurer, State Farm Mutual Automobile Insurance Company (State Farm), for injuries sustained by Mr. Reed when he was struck by Mrs. Jan-nise’s automobile while riding a dirt bike. The jury found the parties equally at fault and awarded Mr. Reed $58,124.02 in past medical expenses, $15,000.00 in general damages and $1,000.00 for lost wages. The jury awarded nothing for future pain and suffering or future medical expenses. Both parties appealed. For the reasons assigned below, we find Mrs. Jannise was not negligent is causing this accident and, therefore, we reverse the judgment of the trial court.

STATEMENT OF THE FACTS

On April 10, 2004, at approximately 10:55 p.m., Mrs. Jannise was driving her Toyota Avalon automobile in a northerly direction on the 1-49 service road. She was on her way home from Kozy’s Lounge, a small country bar located near the outskirts of Opelousas. Mrs. Jannise is seventy years old and a widow. She went to Kozy’s Lounge at the urging of her son to listen to his Cajun band and visit with friends. Mrs. Jannise’s home is located off the 1-49 service road, a few miles north of Opelousas, on property which is fairly isolated and wooded. There are no street lights in the area and no commercial developments nearby. Her house is set back about 150 feet from the service road and her son-in-law lives in a home on her property. Mrs. Jannise’s gravel driveway crosses over an open ditch which, at the time of the accident, was dry and grassy. The distance from the bottom of the ditch to the top of her driveway is approximately four and a half feet. The shoulder of the road is not flat, but slopes downward toward the center of the ditch.

|sThat same evening Mark Reed, and a friend, Adam Thibodeaux, were riding small “pit” dirt bikes in the woods to the west of 1-49. A pit bike is a five and a half horsepower two-wheel motorcycle, designed for children ages eight to twelve. The weight capacity is about 120 pounds. Mr. Reed is approximately six feet tall and weighs 210 pounds. Dirt bikes are not designed for on-road use and are not equipped with headlights. Illumination at night for the driver is provided by a LED “frog lamp” which Mr. Reed was wearing. Mr. Reed has been riding motorcycles and ATVs since he was four years old. He is a salesman for First Turn, working on commission, selling motorcycles, ATVs, utility vehicles, lawn mowers, trimmers and accessories. He is an experienced cyclist and rides for pleasure during the spring and summer months.

On the evening of the accident, the weather was clear and dry. The two men had been riding on small trails and across empty fields. At some point during the evening, Mr. Reed noticed his bike was leaking oil. He decided to switch bikes with Mr. Thibodeaux, ride to retrieve his truck, which was parked in his employer’s lot, and then drive back to pick up the disabled dirt bike. He was riding the dirt bike in a southerly direction on the grassy area adjacent to the 1-49 service road. As he approached Mrs. Jannise’s driveway, he observed her car coming toward him. There were no other cars on the road at the time. Mrs. Jannise contends she activated her blinker and began to slow down to execute the left-turn onto her driveway. Mr. Reed asserts she did not have her turn signal on. Mrs. Jannise turned left just as Mr. Reed was crossing her driveway. She struck him on the left leg, crushing the bones in his leg and causing him to fly onto the hood of her car. He fell off of the hood onto the side of her gravel driveway. Mrs. Jannise panicked and drove to her son-in-law’s home to get help. A short time later an ambulance arrived and transported Mr. Reed [4to Opelousas General Hospital. The jury found each party was fifty percent at fault in causing the accident. Mrs. Jannise appeals asserting the following assignments of error:

(1) The jury committed error in its finding of negligence on the part of Lena Jannise.
(2) The jury instructions given by the trial court regarding the law applicable to a left-turning motorist were erroneous.
(3) The trial court erred in failing to instruct the jury that the defendant had a right to assume that her pathway was safe for travel and she had no duty to guard against an unusual or unexpected obstacle which she had no reason to anticipate and which was difficult to discover.

Mr. Reed appeals the judgment asserting the following assignments of error.

(1) The jury committed error in its finding of 50% negligence on the part of Mr. Reed.
(2) The jury committed error in awarding only $15,000.00 in general damages.
(3) The jury committed error in awarding only $1,000.00 for past lost wages.

LAW AND DISCUSSION

Mrs. Jannise contends the jury instruction given by the trial court, which holds a left-turning motorist to a higher standard of care and creates a presumption of negligence, is inapplicable to the facts in this case and compelled the jury to conclude she was at fault. We agree. The duty required of a left-turning motorist is mandated by La.R.S. 32:104 which provides, in relevant part:

A. No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in R.S. 32:101, or turn a vehicle to enter a private road or driveway, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety-
B. Whenever a person intends to make a right or left-turn which will take his vehicle from the highway it is then traveling, he shall give a signal of such intention in the manner described hereafter and such signal shall be given continuously during not less than the last one | .^hundred (100) feet traveled by the vehicle before turning.
C. No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.

A motorist making a left-turn is required to provide a signal at least 100 feet from the intersection, private road or driveway and to refrain from crossing the center line “until such movement can be made with reasonable safety.” La.R.S. 32:104(A). Moreover, when an accident occurs during a left-turn, the courts have held a left-turn is a dangerous maneuver and burdens the left-turning motorists with a presumption of negligence. This jurisprudential standard was articulated by this court in Thomas v. Champion Insurance Company, 603 So.2d 765 (La.App. 3 Cir.1992), as follows:

A left-turn is generally a dangerous maneuver which must not be undertaken until the turning motorist ascertains that the turn can be made in safety, (citations omitted.) A left-turning motorist involved in an accident is burdened with a presumption of liability and the motorist must show that he is free of negligence.

Id. at 767. (emphasis added.)

The trial court concluded since Mrs. Jannise was executing a left-turn into her driveway, a jury instruction regarding this presumption of negligence was appropriate. The trial court gave the following instruction to the jury:

The law considers a left-turn to be the most dangerous maneuver a motorist may execute, and a driver attempting to make a left-turn has a duty to make certain the turn can be completed safely. A motorist attempting to turn left is required to exercise a very high degree of care and shall give the right of way to all vehicles approaching from the opposite direction which are within the intersection or so close to the intersection as to constitute an immediate hazard. He should not attempt a left-turn unless he has taken every reasonable precaution to insure that the left-turn can be made without endangering approaching motorists. Once the plaintiff has established that the defendant was attempting to make a left-turn when the accident occurred, the burden of proof then shifts to the defendant to provide that he was free of fault. Thus, you must presume that the defendant was at fault in this case, since she ivas executing a left-turn at the time of the accident, (emphasis added.)

| f,However, in order for the presumption of negligence to apply, the scope of the duty jurisprudentially recognized by our courts must extend to the plaintiff and the risk of injury which occurred must fall within the ambit of protection afforded under the law. The scope of the duty required of a left-turning motorist extends to vehicles approaching from the opposite direction or overtaking vehicles using the lawfully designated portions of the highway for travel. Thomas, 603 So.2d 765. A left-turning motorist is only required to make proper observation that the left-turn can be made safely without endangering other motorists. Wooten v. Bartholomew, 556 So.2d 75 (La.App. 4 Cir.1990), writ denied, 90-614 (La.4/20/90), 560 So.2d 23; Falgout v. Louis-Jeune, 00-2453 (La.App. 4 Cir. 10/3/01), 799 So.2d 610. In this case, Mr. Reed was neither an oncoming nor an overtaking vehicle. In fact, he was not even riding on the roadway where it can be reasonably anticipated vehicles would be located. Instead, he was located off of the service road, in a recessed ditch, or on the shoulder of the road. Moreover, the vehicle he was riding was never intended to be driven in such an area and Mr. Reed’s actions placed him in a perilous position. In this case, we find the duty of care required of a left-turning motorist, with its attendant presumption of negligence, does not encompass the risk of injuring an individual who is traveling off of the highway and who suddenly crosses in the path of the motorist. The charge read to the jury by the trial court was given in error and led the jury to apply the wrong standard of care to Mrs. Jannise’s actions. The record contains evidence that the jury was confused by the charge and felt compelled to find Mrs. Jannise was negligent simply because she was engaged in a left-turn when the accident happened. During deliberations, the trial court received a note from the jury which read: “If we put fault to both parties, do we have to have a dollar amount?”

When an improper jury instruction contributes to the verdict, no weight should |7be given to that portion of the verdict. Whiddon v. Hutchinson, 94-2000 (La.App. 1 Cir. 2/23/96), 668 So.2d 1368. Therefore, we will give no weight to that portion of the jury verdict finding Mrs. Jannise negligent. However, it is not necessary to remand the case. When the entire record is on appeal, an appellate court may conduct a de novo review in order to assess the fault of the parties using the appropriate standard of care. Id. The appropriate standard of care required of Mrs. Jannise is that of ordinary negligence and we will examine the facts to determine whether a reasonable person could have seen or could have anticipated the sudden appearance of an unlit dirt bike crossing a private driveway on a deserted unlit service road.

The accident occurred late at night in a rural area without street lights or other commercial developments. Mr. Reed was operating a small dirt bike which was not equipped with headlights or reflectors and is not designed for on-road use. The only illumination was provided from a small headlamp. Mr. Reed is an experienced bike rider. His job involves selling motorbikes and he advises customers on safety issues relating to the operation of the bikes. Mr. Reed testified he has experienced a number of close calls before this accident when motorists turned across his path at night while he was operating a motorcycle. Mr. Reed contends he was not traveling on the roadway, but was on the shoulder. However, the shoulder of the highway is designated for temporary emergency use by motorists or as a recovery center in case an inadvertent driver drifts from the roadway. Shepard on Behalf of Shephard v. Scheeler, 96-1690 (La.10/21/97), 701 So.2d 1308. A motorist has no reason to anticipate the shoulder of the road will be used as a travel lane for a motorized dirt bike. In this case, Mrs. Jannise had no reason to expect Mr. Reed would be driving his unlit motorcycle on the shoulder of the dark, deserted service road late at night. Moreover, from our review of photographs of the accident site, the shoulder was |ssloped downward toward the ditch. The evidence strongly suggests Mr. Reed was riding, not on the shoulder, but on the flat bottom portion of the ditch which was four and a half feet below the subject driveway. In fact, Deputy Clinton Darden, Jr. testified: “According to Mr. Reed, he was traveling in a ditch headed south along 1-49 South Service Road.” (emphasis added.) Mrs. Jan-nise had a right to assume that her driveway was safe for travel and she had no duty to guard against or discover an unlit vehicle traveling in a ditch four and a half feet below the level of the roadway. It is unreasonable to require Mrs. Jannise to anticipate Mr. Reed would appear “out of nowhere” right in the path of her car.

Mr. Reed was in a much better position to protect himself. It is undisputed he saw the lights of her car coming down the road. He testified when he saw the headlights, he “slowed down, down-shifted into first gear, and got as close to the ditch as possible.” Although he was wearing a headlamp he testified he did not realize he was crossing a driveway. “The next thing I know, the headlights were coming towards me and I was — it kind of happened sort of fast.”

Mrs. Jannise testified it was approximately three seconds from the time she executed the ton until the accident happened. “When I turned into the driveway, I remember hearing a horrible crash, and I immediately thought, Oh, my God, what did I hit? I didn’t know if I had hit something.... At first I was blaming myself and then as I started to realize, this is a grown man at night on a dirt bike with no lights.”

Wooten v. Bartholomew, 556 So.2d 75 (La.App. 4 Cir.1990), involved a collision between a left-turning motorist and a motorcycle. The accident occurred on a two-lane highway at night. The testimony established the motorcycle had no headlights and was traveling at a high rate of speed. The motorcycle struck the automobile when the motorist turned left into the path of the motorcycle. The trial 19court found the driver of the automobile free of fault in causing the accident and the appellate court affirmed, stating:

By his testimony defendant established that he stopped and looked before making his turn. The motorcycle was approaching but defendant could not see him because he was too far away and had no lights. Because of his excessive speed plaintiff closed the distance on defendant before he could complete his turn. A turning motorist has the duty of making proper observation that the turn can be made safely. Brightman [v. Regional Transit Authority, 543 So.2d 568 (La.App. 4 Cir.1989)], supra. Bartholomew did this and his turn would have been made safely except that plaintiff could not be seen as he approached without lights at an excessive rate of speed.

Id. at 77.

In this case, Mrs. Jannise could not have anticipated Mr. Reed would be riding an unlit dirt bike in a ditch recessed below the level of the roadway and could not have anticipated he would unexpectedly appear in the path of her car. The evidence does not convince us that Mrs. Jan-nise was intoxicated, impaired, or distracted at the time of the accident. On the other hand, Mr. Reed is an experienced cyclist and well aware of dangers involved in riding a dirt bike near the roadway late at night. Our review of the evidence indicates Mrs. Jannise was not at fault in causing this accident. Accordingly, we reverse the judgment of the trial court. Because we find Mrs. Jannise free of fault, we need not address Mr. Reed’s assignments of error regarding the award of damages.

DECREE

Based on the foregoing review of the record, we reverse the judgment of the trial court. All costs of this appeal are assessed to Mark and Riki Reed.

REVERSED.


author: SULLIVAN, Judge.

text:
    Tim Young BAKER v. Francis T. DELHOMME, et al.
    No. 05-1405.
    Court of Appeal of Louisiana, Third Circuit.
    May 3, 2006.

      Robert L. Broussard, Durio, McGoffin, Stagg & Ackermann, Lafayette, Louisiana, for Plaintiff/Appellant, Tim Young Baker.
    Jack A. Ricci, Gary J. Giepert, Ricci & Giepert, New Orleans, Louisiana, Arthur I. Robison, Allen & Gooch, Lafayette, Louisiana, for Defendants/Appellees, Dennis Brooks Stirling, Properties, Inc.
    Theodore G. Edwards, IV, Steven T. Ramos, Davison, Meaux, Sonnier & McEl-ligott, Lafayette, Louisiana, for Defendant/Appellee, Francis T. Delhomme.
    Court composed of MICHAEL G. SULLIVAN, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   SULLIVAN, Judge.

hOn July 22, 2002, Dr. Tim Young Baker bought a home in Lafayette, Louisiana, from Francis Delhomme. After moving into the home, Dr. Baker filed a Petition in Redhibition, for Breach of Agency, and for Damages. He included his real estate agent, Dennis Brooks, and the real estate agency which employs Mr. Brooks, Stirling Properties, Inc., as defendants. These defendants filed a motion for summary judgment, which the trial court granted. For the following reasons, we reverse.

Facts

On October 17, 2001, Mr. Delhomme listed his residence for sale with Mr. Brooks and Stirling Properties, Inc. Dr. Baker contacted Mr. Brooks to see the home. Mr. Brooks showed the home to Dr. Baker a couple of times. Dr. Baker did not have his own agent. After conferring with Mr. Delhomme and Dr. Baker, Mr. Brooks had them sign a “Disclosure and Consent to a Dual Agent Designated Agency.” Thereafter, Mr. Delhomme and Dr. Baker entered into an Agreement to Purchase or Sell the home. The Agreement provided Dr. Baker the right to have the home inspected.

Dr. Baker sought Mr. Brooks’ assistance in the selection of an inspector because he was not a resident of Lafayette and was not familiar with any of the inspectors in the area. Mr. Brooks chose one inspector from a list of state-certified inspectors maintained by Stirling Properties, Inc. An inspection was performed on July 3, 2001, by Russell Broussard with Dr. Baker and Mr. Brooks both present. Dr. Baker conferred with Mr. Broussard during the inspection, and Mr. Broussard pointed out a crack in the exterior siding of the home. Mr. Broussard told Dr. Baker he believed the crack could be sealed without a problem.

12After completing his inspection, Mr. Broussard prepared a written report of his findings. On July 5, 2002, he hand delivered a copy of his report to Mr. Brooks, who reported Mr. Broussard’s “adverse findings” by telephone to Dr. Baker on July 8 or 9, 2002. Mr. Brooks did not relate to Dr. Baker the following provision in Mr. Broussard’s report:

Note: ‘Dryvit[’][ ]the commonly used phrase for “[EIFS]” which is a wall application consisting of usually Styrofoam sheets attached to the wall, sealed and textured. [This] particular application does not have Styrofoam sheeting. As was mentioned earlier the wall siding is “[Durock.]” This application has been used on this structure. Most times it is called “Stucco”. Historically there have been instances where moisture has accumulated behind this siding and problems have occurred. This usually occurs when this application was not applied properly and cracks were not sealed properly. Testing for this moisture behind this sheeting includes probing this surface to reach the underlying walls, which is invasive and is not part of this inspection. This siding appears to be crack free, with the exception of a crack adjacent to one right rear window. I recommend this crack be sealed. See enclosed photo. This siding appears to have been properly applied; however this is only a visual inspection and no guarantee of the integrity of this product. If any doubts remain as to the condition of the above mentioned product it may be prudent to have this covering inspected by a “Dryvit” specialist.

Mr. Brooks provided Dr. Baker a copy of Mr. Broussard’s written report at the closing, July 22, 2002. After the closing, Dr. Baker moved into the home. In the fall of 2002, he noticed cracks in the exteri- or finish. An inspection and testing revealed the exterior finish of the home had numerous instances of “higher than acceptable moisture.” Dr. Baker contends this condition constitutes a redhibitory defect and that Mr. Brooks’ failure to provide him a full copy and/or inform him of Mr. Broussard’s “warning” regarding the exterior finish renders Mr. Brooks and Stirling Properties, Inc. liable to him for damages.

|sIn their motion for summary judgment, Mr. Brooks and Stirling Properties, Inc. contend they did not breach any duties they owed to Mr. Baker. The trial court granted the motion, finding Mr. Brooks did not have any liability.

Standard of Review

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2).

The mover bears the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the nonmoving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

Appellate courts review motions for summary judgments de novo, asking the same questions the trial court asks to determine whether summary judgment is appropriate. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. This inquiry seeks to determine whether any genuine issue of material fact exists and whether the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). “A fact is material if it potentially insures or precludes recovery, affects a | ¿litigant’s ultimate success, or determines the outcome of a legal dispute.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765.

Discussion

The parties agree that a real estate agent’s duties are determined by the duties the agent obligates himself to perform and his agreements with the parties. Mr. Brooks agreed to assist Dr. Baker in obtaining an inspection of the home. He contacted Mr. Broussard to conduct the inspection, he received Mr. Broussard’s report, and he reported what he perceived to be Mr. Broussard’s adverse findings to Dr. Baker.

Mr. Brooks also provided Dr. Baker a copy of Mr. Broussard’s report but not until the closing, which was two weeks after he contacted Dr. Baker concerning Mr. Broussard’s report. Mr. Brooks testified that Dr. Baker did not request a copy of the report; Dr. Baker testified that he did. Thus, genuine issues of material fact exist as to whether Dr. Baker requested the report and whether Mr. Brooks had a duty to provide Dr. Baker a copy of the report sooner. Mr. Brooks and Stirling Properties, Inc. argue that Dr. Baker did have a copy of the report prior to the closing but did not act on it; therefore, he cannot argue that Mr. Brooks did not fulfill his duty to him. Mr. Brooks delivered a copy of the report to Dr. Baker at the closing. Whether Dr. Baker should have reviewed the report at that time and refused to proceed with the sale is also a genuine issue of material fact.

Disposition

The judgment of the trial court granting summary judgment is reversed, and this matter is remanded for further proceedings. All costs are assessed to Dennis Brooks and Stirling Properties, Inc.

1 ¡¿REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.


author: TERRI F. LOVE, Judge.

text:
    James LITTLES v. Charles FOS and Melissa Fos and Progressive Insurance Company.
    No. 2005-CA-1092.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 2006.
    Rehearing Denied June 15, 2006.

      James Arthur Littles, in Proper Person.
    David J. Schexnaydre, Wade D. Rankin, Pajares & Schexnaydre, L.L.C., Coving-ton, Counsel for Defendant/Appellee.
    (Court composed of Judge JAMES F. MCKAY III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO Jr.)
   TERRI F. LOVE, Judge.

| TAppeIlant, James Littles, appeals a March 2, 2005 ruling by the trial judge regarding disbursement of settlement funds arising from an automobile accident. For the reasons stated below, the appeal is dismissed.

RELEVANT FACTS AND PROCEDURAL HISTORY

Alex O. Lewis, III (“Attorney Lewis”) filed a lawsuit against Charles Fos, Melissa Fos and Progressive Insurance Company (collectively referred to as “Progressive”) as a result of an automobile accident in. which plaintiff, James Littles (“Mr.Lit-tles”), allegedly suffered injuries. On April 15, 2003, Mr. Littles filed a Motion to Remove Attorney Lewis as counsel of record because he decided to proceed pro se. The trial court signed the order.

On or about August 20, 2003, Elaine Conley (“Attorney Conley”) filed a Motion to Enroll as Counsel of Record for Mr. Littles. The trial court signed the order. On or about January 6, 2004, Attorney Conley, citing irreconcilable differences with Mr. Littles, filed a Motion to Withdraw as Counsel of Record for plaintiff. The trial court signed the order.

On the day of trial, February 4, 2004, Mr. Littles presented with Attorney Lewis as his counsel, who entered a verbal enrollment as counsel of record. The 12trial court granted the request. During the course of the trial, the parties reached a settlement agreement. All parties agreed to the settlement in open court and it was placed on the record.

Later a dispute arose between Mr. Lit-tles and Attorney Lewis regarding the settlement including, but not limited to, the amount of attorney’s fees due to Attorney Lewis. As a result, Attorney Lewis filed an “Ex Parte Motion allowing Plaintiffs Counsel to Execute Release, Receipt & Indemnity Agreement and to Authorize Separate Checks.” During the same time, Mr. Littles filed a Motion to Dismiss Attorney’s Fees in proper person. A hearing date was set and service was requested on Attorney Lewis only.

A hearing was held on the attorney’s fees, but Attorney Lewis did not attend. The trial court ordered that Attorney Lewis was only entitled to one-third of medical recovery fees due to the International Brotherhood of Boilermakers and Mr. Littles was awarded the full amount of the settlement and Attorney Lewis’ request for attorney’s fees was denied. The judgment was submitted and signed by the trial court on November 8, 2004. The trial court amended the judgment on December 20, 2004, for clarification to read that Progressive was to release any and all funds for attorney’s fees to Mr. Littles. Mr. Littles contacted David Schexnaydre (“Attorney Schexnaydre”), Progressive’s counsel of record, to ask that the checks be forwarded directly to him, but Mr. Schex-naydre did not speak with him as he was represented by counsel.

| ¡(Thereafter, Progressive filed a Motion to Deem the Matter Concluded between itself, the insured, and Mr. Littles. The trial court granted the motion. In its Reasons for Judgment, the trial court stated that Progressive did not have “legal notice” of the attorney’s fees dispute because it was not served with either motion concerning the dispute. “Therefore, there was no reason for the defendants to refuse to release the settlement funds to the plaintiffs attorney, Mr. Lewis.” The trial court also recognized that Progressive “went to great measure to ensure that the funds were disbursed properly.” Progressive did not have notice that Attorney Lewis had “apparently absconded” with Mr. Littles’ funds. The trial court felt “sympathy” towards Mr. Littles. However, the trial court stated that Mr. Littles’ “issue and/or claims are seemingly against” Attorney Lewis and not Progressive or the insured. Therefore, the trial court concluded that Progressive had “fulfilled their obligations” in regards to disbursing the funds and deemed the matter concluded. The trial court signed the judgment on March 2, 2005.

It appears that Mr. Littles is appealing the March 2, 2005 judgment. He listed the following “Statement of Issues” in his brief: 1) whether the trial court abused its discretion by issuing the order authorizing Attorney Lewis to execute the Release, Receipt, and Indemnity Agreement and tó receive payment exceeding the interest of the Boilermakers; 2) whether Attorney Schexnaydre and Attorney Lewis’ filing motions to execute documents and receive payments constituted fraud; 3) whether the trial court clearly or plainly erred in the March 2, 2005, judgment; 4) whether the trial court committed manifest error in the March 2, 2005 judgment; and 5) whether or not the conduct of Attorney Schexnaydre and Attorney Lewis constituted perjury.

14An appeal may be taken from a final judgment or from an interlocutory judgment, which causes irreparable injury. La. C.C.P. art 2083. A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. The trial court’s March 2, 2005 judgment that Progressive had fulfilled its obligation by issuing checks to Mr. Littles and Attorney Lewis as counsel of record did not determine the merits of the action, and thus was an interlocutory judgment. Further, Mr. Littles failed to demonstrate irreparable injury by the ruling of the trial court. If Mr. Littles believes he is entitled to reimbursement for the attorney’s fees he may proceed against Attorney Lewis in a separate action. Therefore, we find that the matter is not properly before us on appeal because it is an interlocutory judgment and Mr. Littles has failed to make a showing of irreparable injury.

Mr. Littles also raised allegations of fraud and perjury against Attorney Lewis and Attorney Schexnaydre. The record does not support the allegations. Progressive, pursuant to an order of the court, issued separate checks made payable to Mr. Littles and Attorney Lewis respectively. Service was not requested or perfected on Progressive regarding the attorney’s fees dispute or the pleading alleging fraud against Attorney Lewis. As such, we find no merit in these arguments.

CONCLUSION

For the reasons stated above, Mr. Lit-tles’ appeal is dismissed.

APPEAL DISMISSED

MCKAY, J., concurs in the result.

      . Mr. Littles had not filed a Motion to Remove and/or Withdraw Attorney Lewis as counsel of record.

      . In the interim, Progressive submitted the settlement check and documents to Attorney Lewis.

      . The Boilermakers Union paid Mr. Littles’ medical bills that resulted from the instant litigation.

      .The judgment was amended as the Court was informed that the settlement checks, one in the name of Attorney Lewis representing his 40% for attorney's fees, and one in the name of Mr. Littles for the balance, had been previously released to Attorney Lewis as counsel of record and both checks had been cashed.


text:
    THE MISSISSIPPI BAR, Appellant v. Daniel L. INSERRA, Appellee.
    No. 2005-BD-01967-SCT.
    Supreme Court of Mississippi.
    Feb. 22, 2006.
   ORDER

¶ 1. This matter came before the Court sitting en banc on The Mississippi Bar’s formal complaint against attorney Daniel L. Inserra.

¶ 2. Inserra is a resident of Arizona whose last known address is 8930 East Raintree Drive, Suite 100, Scottsdale, Arizona 85260-7029. Inserra is currently administratively suspended in Mississippi for non-payment of dues pursuant to Miss. Code Ann. § 73-3-127 (2004). This Court previously imposed a public reprimand against Inserra as a reciprocal sanction pursuant to Rule 13 of the Mississippi Rules of Discipline for his two-year probation imposed by the Supreme Court of Arizona. See The Mississippi Bar v. Inserra, 855 So.2d 447, 451 (Miss.2003). While Inserra is not a member of the Bar in good standing, he is subject to the disciplinary jurisdiction of this Court.

¶ 3. On or about August 23, 2005, the Supreme Court of Arizona issued a Judgment and Order censuring Inserra and placing him on probation for a period of one year. In re Member of State Bar of Arizona, Inserra, No. SB-05-0124-D (Ariz. August 23, 2005). The court concluded that Inserra had violated his duties and obligations as a lawyer.

¶ 4. As a result of his discipline in Arizona, the Bar initiated disciplinary proceedings against Inserra under Rule 13 of the Mississippi Rules of Discipline on October 18, 2005. A Summons and a copy of the formal complaint was mailed by the Bar to Inserra on October 18, 2005. The documents were mailed certified, return receipt requested to Inserra at 8930 East Raintree Drive, Suite 100, Scottsdale, Arizona 85260.

¶ 5. Inserra signed for the envelope on October 21, 2005. Inserra did not respond to the complaint, nor has Inserra filed any answer to the complaint. The court file also contains a proof of personal service of summons on Daniel Inserra c/o Larry Houehins, Executive Director of the Mississippi Bar, pursuant to Miss. R. Discipline 16(a).

¶ 6. The Bar further seeks to have In-serra disciplined in the State of Mississippi by a reciprocal sanction pursuant to Rule 13 of the Mississippi Rules of Discipline. The Bar’s request is based on the Judgment and Order of the Supreme Court of Arizona censuring Inserra and placing him on one-year probation. The Bar seeks to recover its costs and expenses occasioned by the filing of this formal complaint against Inserra.

¶ 7. Having carefully and fully considered the Bar’s complaint, the Court accepts, pursuant to Miss. R. Discipline 13, the disciplinary action of the Supreme Court of Arizona as conclusive proof of his disciplinary violation. Reciprocal sanctions are warranted; and we impose a public reprimand against Inserra. See Miss. R. Discipline 8(b)(ii).

¶ 8. IT IS, THEREFORE, ORDERED that, effective upon entry of this order and based on Rule 13 of the Mississippi Rules of Discipline, a public reprimand shall be enforced in the event Inserra ever seeks reinstatement to The Mississippi Bar under Miss.Code Ann. § 73-3-127 by curing his enrollment fee obligations. The Bar is entitled to recover from Inserra all costs of this disciplinary proceeding, as well as all previously assessed sums. The Bar shall file its Motion for Costs and Expenses with the Court within ten days of the filing of this Order.

¶ 9. IT IS FURTHER ORDERED that the Clerk of the Court shall send, via certified mail, copies of this Order to Daniel L. Inserra and to The Mississippi Bar.

¶ 10. ■ SO ORDERED.

/s/Chuek Easley CHUCK EASLEY, JUSTICE FOR THE COURT

DIAZ, J., NOT PARTICIPATING.

      . Inserra addressed that, because Inserra is currently suspended from the Bar for nonpayment of fees, the public reprimand could not be enforced until Inserra ever seeks reinstatement under Miss.Code Ann. § 73-3-127 by curing his enrollment fee obligations. See Inserra, 855 So.2d at 452.

      . The Supreme Court of Arizona incorporated the Disciplinary Commission Report which had the Hearing Officer’s Report attached as an exhibit. The Mississippi Bar incorporated by reference the Supreme Court of Arizona's Judgement and Order to its formal complaint. The Hearing Officer’s Report listed Inserra's violations. The violations primarily consisted of Inserra’s failure to keep his client, Eric Kurland, informed of the status of his 1997 lawsuit against his landlord, the landlord’s counterclaim, and a subsequent 2000 lawsuit filed by the landlord against Kurland and his wife. Inserra dismissed Kurland's appeal of the unfavorable ruling in the 1997 lawsuit and negotiated resolution of the action without his client's consent or knowledge. Inser-ra further agreed to entry of a judgment in the 1997 lawsuit against Kurland in the amount of $5,900 for attorney’s fees and agreed the defendant/landlord could bring a new action against Kurland for property damages without his consent or knowledge. In-serra accepted process without his client’s consent or knowledge in the subsequent 2000 lawsuit filed by the same landlord against Kurland and his wife. Inserra waived court-ordered mediation and the right to a jury trial in the 2000 lawsuit without his client’s consent or knowledge. Inserra agreed to entry of judgment against Kurland and his wife in the amount of $2,000 in property damage and $3,200 in attorney's fees in the 2000 lawsuit without their consent or knowledge.