author: WHIPPLE, J.

text:
    Brenda Joyce WILLIAMS v. Ronnie L. WILLIAMS.
    No. 2006 CA 2491.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.

      G. Bruce Kuehne, Marcus T. Foote, Baton Rouge, Counsel for Plaintiff/Appellant, Brenda Joyce Williams.
    Harry W. Ezim, Baton Rouge, Mark D. Plaisance, Baker, H. Michael Aaron, Baton Rouge, Counsel for Defendant/Appellee, Ronnie L. Williams.
    Before: WHIPPLE, GUIDRY and HUGHES, JJ.
   WHIPPLE, J.

DThis is an appeal from a judgment of the Family Court for East Baton Rouge Parish, partitioning the final asset co-owned by the parties. For the following reasons, we vacate the judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

Brenda Williams and Ronnie Williams were married on December 26, 1971, and were subsequently divorced by judgment dated February 25, 2000. On October 22, 1999, during the parties’ marriage and pri- or to the filing of a divorce petition, Mr. and Mrs. Williams signed an agreement purporting to settle “any and all claims each may have against the community of acquet[s] and gains that exist or has existed” between the parties. The agreement provided that the parties were to each retain an undivided one-half interest in the immovable property located at 280 Engle-wood in Baton Rouge, Louisiana and the furnishings contained therein. The agreement further provided that based upon a lump-sum payment of $30,000.00 and monthly payments of $1,500.00 by Mr. Williams, Mrs. Williams “waive[d] any and all further claims against Ronnie L. Williams for recovery of alimony, child support and/or community property claims.”

Almost four years later, on November 10, 2004, Mrs. Williams filed á petition for judicial partition of community property, contending that, while the parties had partitioned some movable property by mutual agreement, the parties had not been able to amicably agree to a partition of remaining community property, which she contended in her detailed descriptive list was valued in excess of $10,000,000.00. Mr. Williams filed a rule challenging Mrs. Williams’s petition for partition, and following a hearing on Mr. Williams’ rule, the court signed a judgment on December 17, 2004, 13based upon the pleadings, applicable law, evidence and “the stipulation of the parties,” which judgment, in part, decreed that the October 22, 1999 agreement to partition the community property was a valid and enforceable agreement and dismissed Mrs. Williams’s petition for judicial partition of community property with prejudice. Mrs. Williams’s subsequent attempts to nullify the December 17, 2004 judgment failed when the family court dismissed her petition to nullify and this court affirmed the judgment dismissing her petition for nullity. Williams v. Williams, 2006 CA 0358, 949 So.2d 672, 2007 WL 710226 (La.App. 1st Cir.2/9/07)(unpublished).

In the interim, on March 1, 2006, Mr. Williams filed in the family court a petition for partition of the only remaining asset of the community that had not been partitioned, ie., the house located at 280 Engle-wood Drive. On that same date, the court issued an ex parte order, ordering the parties to file a sworn and certified copy of an appraisal of the home within forty-five days of the order, ordering that an independent appraiser be appointed to estimate the value of the home, and ordering that the house be listed for sale unless either party indicated in writing his or her intent to purchase the home.

Subsequently, on May 15, 2006, Mr. Williams filed a rule to show cause why his detailed descriptive list should not be deemed a judicial determination of the only remaining asset of the former community. In his rule, Mr. Williams contended that, in accordance with the court’s March 1, 2006 order that both parties file a sworn and certified copy of an appraisal of the home, he had filed a detailed descriptive list and had attached an | ¿appraisal of the home, which set the fair market value at $125,000.00. Mr. Williams further contended that more than forty-five days had elapsed, and Mrs. Williams had not filed a detailed descriptive list or a certified copy of an appraisal of the home. Thus, Mr. Williams requested that the court accept his “detailed descriptive list and certified copy of an appraisal of the house” and deem his list to be a judicial determination that this was “the only remaining asset of the former community left to be partitioned.” Mr. Williams also filed into the record a letter of intent, setting forth his desire to purchase Mrs. Williams’s one-half interest in the former community home.

On June 13, 2006, a hearing was conducted on Mr. Williams’s rule, among other matters. Thereafter, by judgment dated August 22, 2006, the court ordered that Mr. Williams’s “detailed descriptive fist and sworn and certified copy of the appraisal is herein deemed a judicial determination of the only remaining asset, a house located at 280 Englewood Drive, Baton Rouge, Louisiana.”

Trial of the partition proceeding was scheduled for August 29, 2006. On August 25, 2006, Mrs. Williams filed in the record her notice of intent, declaring her intent to purchase the former community home for | s$151,000.00, which was approximately $25,000.00 more than the price listed in Mr. Williams’s detailed descriptive list. At the trial of the partition, the trial court refused to allow counsel for Mrs. Williams to present any evidence or testimony as to the value of the home, stating that it had previously accepted Mr. Williams’s detailed descriptive list and attached appraisal as the court’s judicial determination of the community assets and liabilities. The court also refused to allow counsel for Mrs. Williams to proffer any evidence as to the value of the home as of the time of the trial.

At the conclusion of the trial, the trial court ruled that Mr. Williams would be awarded sole ownership of the former community home located at 280 Engle-wood Drive and that he would be allowed to purchase Mrs. Williams’s interest in the former community home for $62,500.00, representing one-half of the $125,000.00 value previously determined by the court. From a judgment ordering Mrs. Williams to transfer her interest in the former community home to Mr. Williams for the sum of $62,500.00, Mrs. Williams appeals.

On appeal, Mrs. Williams contends that the trial court erred in: (1) refusing to value the property as of the time of trial on the merits as specifically required by LSA-R.S. 9:2801(A)(4)(a); (2) prohibiting Mrs. Williams from challenging the value of assets included in a detailed descriptive list, contrary to the specific provisions of LSA-R.S. 9:2801(A)(2); (8) not permitting a proffer of evidence, in violation of the specific requirements of LSA-C.C.P. art. 1636; (4) giving effect to the August 22, 2006 judgment, which had been obtained by fraud or ill practices; and (5) not permitting Mrs. Williams to purchase the property, when she offered to purchase it for $25,000.00 in excess of the amount Mr. Williams testified was the fair market value.

| ^ASSIGNMENTS OF ERROR NUMBERS ONE, TWO AND THREE

In her first, second and third assignments of error, Mrs. Williams contends that the trial court erred in refusing to value the former community home as of the date of the trial of the partition, refusing to allow her to offer evidence at the trial on the merits as to its value at that time, and refusing to allow her to proffer such evidence when it deemed the evidence inadmissible. We agree.

Louisiana Revised Statute 9:2801 sets forth the procedure to be followed in partitioning community property and settling claims arising from the co-ownership of former community property. Stringer v. Stringer, 96-1990 (La.App. 1st Cir.6/20/97), 698 So.2d 965, 966, writ denied, 97-2586 (La.12/19/97), 706 So.2d 463. It is incumbent upon the trial court to follow the procedure outlined in the statute. McElwee v. McElwee, 93-1010 (La.App. 1st Cir.8/17/94), 649 So.2d 975, 977. In particular, LSA-R.S. 9:2801(A) provides, in pertinent part, as follows:

When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse ... may institute a proceeding, which shall be conducted in accordance with the following rules: (l)(a) Within forty-five days of service of a motion by either party, each party shall file a sworn detailed descriptive list of all community property, the fair market value and location of each asset, and all community liabilities. For good cause shown, the court may extend the time period for filing a detailed descriptive list. If a party fails to file a sworn detailed descriptive list timely, the other party may file a rule to show cause why its sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities. At the hearing of the rule to show cause, the court may either grant the request or, for good cause shown, extend the time period for filing a sworn detailed descriptive list. If the court grants the request, no traversal shall be allowed.
* * *
|7(2) Within sixty days of the date of service of the last filed detailed descriptive list, each party shall either traverse or concur in the inclusion or exclusion of each asset and liability and the valuations contained in the detailed descriptive list of the other party.... The trial of the traverses may be by summary procedure. At the trial of the traverses, the court shall determine the community assets and liabilities; the valuation of assets shall be determined at the trial on the merits. The court, in its discretion, may by ordinary procedure try and determine at one hearing all issues, including those raised in the traverses.
* * *
(4) The court shall then partition the community in accordance with the following rules:
(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties. (Emphasis added).

Subsection (A)(2) of LSA-R.S. 9:2801 refers to a trial of the traverses, at which time the court shall determine the assets and liabilities of the community. However, the determination of the valuation of assets shall be determined at the trial on the merits. This statute envisions two possible trials: the first being the preliminary trial of the traverses and the second later trial being the trial on the merits whereupon the assets will be valued and allocated and an accounting rendered. Queenan v. Queenan, 492 So.2d 902, 914 (La.App. 3rd Cir.), writ denied, 496 So.2d 1045 (La.1986).

In specifying this procedure, the legislature intended that the assets be valued upon the occasion of the trial on the merits, at a time as close as possible to when those particular assets would actually be divided between the parties. Ideally, this would insure that each party would be getting a group of equally valued assets at the time of the partition. If, on the other hand, the assets are valued at a time well in advance of the actual partition, in the meantime, some assets could depreciate, and others could appreciate in value, and these fluctuations would not be accounted for in the final distribution. Queenan, 492 So.2d at 914.

IsPursuant to LSA-R.S. 9:2801(A)(l)(a), where, as here, one party fails to file a detailed descriptive list, the other party may seek to have the court deem his or her detailed descriptive list to constitute a judicial determination of the “community assets and liabilities.” If the court deems the other party’s list to be a judicial determination of the assets and liabilities of the parties, no traversal shall be allowed. LSA-R.S. 9:2801(A)(l)(a). However, given that the trial court is statutorily authorized only to determine the assets and liabilities of the parties at the trial of the traverses, and is not entitled to value those assets and liabilities at that time, we disagree with the trial court’s conclusion that by-failing to file a detailed descriptive list, Mrs. Williams forfeited her right to establish the value of the former community home at the trial on the merits. Rather, she forfeited only her right to traverse Mr. Williams’s detailed descriptive list of what items constituted the parties “assets and liabilities.” Thus, because the trial court had deemed Mr. Williams’s detailed descriptive list to be “a judicial determination of the parties’ assets and liabilities,” Mrs. Williams was not entitled to a trial to controvert his listing of the parties’ assets and liabilities. However, the remaining issues before the trial court at the trial on the merits were the valuation of the home as of the time of the trial on the merits, distribution of the home and any resulting equalizing payment that would have been due subsequent to the partition, in accordance with LSA-R.S. 9:2801(A)(4). Charles v. Charles, 2005-0129 (La.App. 1st Cir.2/10/06), 923 So.2d 786, 788.

IflAt the trial of the partition, Mr. Williams testified that he had had the home appraised in June 2005, and that the appraised value at that time was $125,000.00. He acknowledged that the appraisal had been performed more than one year before the current trial on the merits of the partition and before any change in property values in the Baton Rouge area resulting from Hurricane Katrina. However, Mr. Williams stated that he believed the current value of the home was $125,000.00, or possibly less due to mildew in the home and deterioration of the pool.

As stated above, based on its erroneous interpretation of the statute, the trial court refused to allow counsel for Mrs. Williams to put forth any evidence as to the current value of the former community home as of the time of trial, stating that it had deemed Mr. Williams’s valuation in his detailed descriptive list to be a judicial determination of the value to be assigned to the home. By proceeding in this manner, the learned trial court erred as a matter of law.

The valuation of the former community home in June 2005 clearly was not sufficient to establish the value for a partition of this same property in August 2006, especially considering the events that occurred between those two dates. See Cheramie v. Bone, 444 So.2d 200, 202 (La.App. 1st Cir.1983). Thus, we conclude that while the trial court acted within its discretion in deeming Mr. Williams’s detailed descriptive list to be a judicial determination of the extent of the parties’ assets and liabilities, it erred in deeming, at that time, and based on the filing of a list by one party (and the failure to file by the other), that the value of the home shown in Mr. ImWilliams’s detailed descriptive list constituted a judicial determination of the value of this asset. Rather, the value of the home should have been determined as of the time of the trial on the merits, LSA-R.S. 9:2801(A)(2) and (A)(4)(a), and the trial court committed legal error in failing to do so.

Likewise, we must conclude that the trial court erred in its decision to not allow counsel for Mrs. Williams to proffer her evidence as to valuation. Pursuant to LSA-C.C.P. art. 1636, when the court rules against the admissibility of any evidence, the court shall either permit the party offering such evidence to make a complete record thereof, or permit the party to make a statement setting forth the nature of the evidence. Article 1636 is mandatory, not discretionary. Michelli v. Michelli, 93-2128 (La.App. 1st Cir.5/5/95), 655 So.2d 1342, 1349. The purpose of requiring a proffer is to preserve excluded evidence so that the testimony or evidence is available for appellate review of a trial court’s erroneous ruling. McLean v. Hunter, 495 So.2d 1298, 1305 (La.1986). When legal error has been found and a complete record has been made through a proffer, the appellate court is able to conduct a de novo review of the record, including the proffered evidence, to render a decision on appeal. Holliday v. Holliday, 2000-0533 (La.App. 1st Cir.8/17/01), 795 So.2d 423, 429, amended in part on other grounds on rehearing, 2000-0533 (La.App. 1st Cir.9/28/01), 797 So.2d 774. However, without a proffer, appellate courts have no way of ascertaining the nature of the excluded evidence. McLean, 495 So.2d at 1305.

Because the trial court committed legal error in refusing to allow a proffer by Mrs. Williams of her evidence regarding the value of the home at the time of trial, we are unable to conduct a de novo review herein. Accordingly, we must vacate the portion of the August 29, 2006 judgment ordering Mr. Williams to pay Mrs. Williams $62,500.00 for her one-half h interest in the former community home. To the extent that the August 22, 2006 interlocutory judgment purported to assign a value of $125,000.00 to the home by providing that Mr. Williams’s “sworn and certified copy of the appraisal” attached to his detailed descriptive list was deemed a judicial determination of the only remaining community asset, it must also be vacated.

These assignments of error have merit.

ASSIGNMENT OF ERROR NUMBER FOUR

In her fourth assignment of error, Mrs. Williams contends that the August 22, 2006 judgment, deeming Mr. Williams’s “detailed descriptive list and sworn and certified copy of the appraisal” to be a judicial determination of the parties’ only remaining asset, was obtained by fraud or ill practices and that the trial court erred in giving it effect, because it differed in substance from the ruling as set forth in the June 13, 2006 minute entry of the hearing at which the ruling was orally rendered. Specifically, the minute entry for the June 13, 2006 hearing stated that the court deemed Mr. Williams’s “[djetailed [d]e-scriptive [l]ist” to be the assets and liabilities of the parties. The August 22, 2006 judgment, on the other hand, provided that Mr. Williams’s “detailed descriptive list and sworn and certified copy of the appraisal” were deemed a judicial determination of the only remaining asset of the parties. According to Mrs. Williams, this judgment, with language adopting the appraisal submitted by Mr. Williams, was | ^submitted to the court by counsel for Mr. Williams, without the opportunity for counsel for Mrs. Williams to review it.

Given our conclusion that the trial court’s premature valuation of the home based on the value listed in Mr. Williams’s detailed descriptive list constituted error, and our decision herein to vacate the trial court’s rulings, any request by Mrs. Williams to vacate the August 22, 2006 judgment with respect to the trial court’s valuation of the home, on the basis that the ruling was obtained or founded upon fraud and ill practices, is now moot.

ASSIGNMENT OF ERROR NUMBER FIVE

In her final assignment of error, Mrs. Williams contends that the trial court erred in not permitting her to purchase Mr. Williams’s interest in the former community home where she offered to purchase his interest with an assigned value of the home of $150,000.00, which was $25,000.00 in excess of the amount Mr. Williams testified was the fair market value of the home.

In deciding to whom an asset or liability shall be allocated, the court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances the court deems relevant. LSA-R.S. 9:2801(A)(4)(c); Cheramie, 444 So.2d at 202. The trial court’s allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. See McCarroll v. McCarroll, 99-0046 (La.App. 1st Cir.5/12/00), 767 So.2d 715, 719-720, writ denied, 2000-2870 (La.11/3/00), 773 So.2d 146; Newman v. Newman, 35,568 (LaApp. 2nd Cir.1/25/02), 806 So.2d 981, 983-984; and Kambur v. Kambur, 94-775 (La.App. 5th Cir.3/1/95), 652 So.2d 99, 101-102.

11sIn the instant case, while the issues before the trial court at the trial on the merits should have been valuation of the home as of the time of trial, allocation of the home and the amount of any resulting equalizing payment that would have been due subsequent to partition, as discussed at length above, the trial court failed to follow the proper procedure and, thus, improperly determined the value of the property when it failed to conduct a full trial on the merits. Because there has been no “full trial on the merits” herein, and because the value of the property may be higher or lower at the time of the full trial on remand, this court concludes that it would be unjust to require Mrs. Williams to sell her interest on the basis of a judgment rendered pursuant to incorrect procedure. Additionally, because the trial court must determine the proper value of the home on remand, disposition of the asset prior to its valuation (and without due regard for the parties’ respective financial situations) would be premature. See LSA-R.S. 9:2801(A)(4).

Accordingly, because we conclude that the errors committed by the trial court had the effect of denying Mrs. Williams a full trial on the merits, we conclude that the August 29, 2006 judgment must be vacated in its entirety. This matter will be remanded for a full trial on the merits to determine the valuation of the home as of the time of the trial, allocation of the home to one of the parties and the amount of any resulting equalizing payment, in accordance with LSA-R.S. 9:2801(A)(4). LSA-C.C.P. art. 2164; see Cheramie, 444 So.2d at 202-203.

^CONCLUSION

For the above and foregoing reasons, the August 29, 2006 judgment, awarding Mr. Williams sole ownership of the former community home and ordering Mr. Williams to tender to Mrs. Williams the sum of $62,500.00, for the purchase of her interest in the former community home located at 280 Englewood Drive, Baton Rouge, Louisiana, is vacated. Additionally, the portion of the August 22, 2006 interlocutory judgment purporting to recognize the certified copy of the appraisal obtained by Mr. Williams as a judicial determination of the value of the former community home is also vacated. This matter is remanded to the trial court to conduct a full trial to: (1) establish the actual value of the former community home as of the trial on the merits on remand; (2) determine which party, if any, should be allocated the former community home; and (3) order the payment of any resulting equalizing sum to the other party. Costs of this appeal are assessed equally between the parties.

JUDGMENT OF AUGUST 29, 2006 VACATED; INTERLOCUTORY JUDGMENT OF AUGUST 22, 2006 VACATED IN PART; AND REMANDED WITH INSTRUCTIONS.

      . We note that although the trial court ordered an independent appraisal of the home, this apparently was never accomplished.

      . While Mr. Williams contended in his rule and again on appeal that he filed a detailed descriptive list with an attached appraisal of the former community home, the record on appeal did not contain either of these documents. Following oral argument in this matter, Mr. Williams filed in the trial court a motion to supplement the record on appeal. In his motion, Mr. Williams contended that the detailed descriptive list along with the attached appraisal was filed on April 26, 2006, but was never made a part of the official record. Thus, Mr. Williams sought to have the trial court record supplemented with the detailed descriptive list and to transmit the supplementation to this court. By order dated August 15, 2007, the trial court ordered the appellate record supplemented with the detailed descriptive list and attached appraisal. We note, based on our review of the supplement, that the detailed descriptive list does in fact bear a file-stamp date of April 26, 2006. However, the attached appraisal bears no file-stamp date.

      .Subsequent to the hearing on Mr. Williams’s rule, but prior to the trial court’s signing of the August 22, 2006 judgment, Mrs. Williams filed a motion to appoint a real estate appraiser, requesting that the court appoint a qualified expert to appraise the home, with the cost to be split between the parties. While a hearing on the motion was scheduled for August 22, 2006, the minute entry for that date does not indicate that the trial court actually considered or ruled upon the motion on that date.

      . We recognize that the trial court, in its discretion, may by ordinary procedure, try and determine at one hearing all issues, including those raised in the traverses. LSA-R.S. 9:2801(A)(2). However, that procedure was not utilized herein.

      . Mrs. Williams averred that she elected to not file a detailed descriptive list because she did not dispute his representation that there was only one remaining asset owned in indi-visión by the parties, i.e., the home listed in Mr. Williams's detailed descriptive list.

      .As of the time of trial, the home had been vacant for approximately five months, after Mrs. Williams vacated the premises. There was some indication at trial that a tree had fallen on the home, causing some damage and the mildew problems. However, there was no evidence as to insurance proceeds, if any, available or received to make the necessary repairs.

      . For reasons discussed more fully in our discussion of assignment of error number five below, in addition to vacating the valuation set by the trial court, this court is vacating the August 29, 2006 judgment in its entirety and remanding this matter for a full trial on the merits.

      . When an unrestricted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutoiy rulings prejudicial to him or her, in addition to review of the final judgment. Rao v. Rao, 2005-0059 (La.App. 1st Cir. 11/4/05), 927 So.2d 356, 360, writ denied, 2005-2453 (La.3/24/06), 925 So.2d 1232.

      . The notice of intent filed into the record by Mrs. Williams actually declared her intent to purchase the home for a stated value of $151,000.00, not $150,000.00.

      . We note that on remand, the trial court must ascertain the value of the former community home with competent evidence at the time of trial on the merits on remand. See Cheramie, 444 So.2d at 2-3 n. 1.


source: Caselaw Access Project

author: DOWNING, J. KUHN, J.,

license: Public Domain

text:
    Kathy Bridges SUAZO v. Hermino SUAZO.
    Nos. 2007 CU 0795, 2007 CW 1428.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 14, 2007.
    Writ Denied Dec. 14, 2007.
    Rehearing Denied Oct. 31, 2007.

      Richard L. Ducote, Metairie, Counsel for Plaintiff/Appellant Kathy Bridges Sua-zo.
    Frank R. Rathle, Thibodaux, Counsel for Defendant/Appellee Hermino Suazo.
    Before: PARRO, KUHN and DOWNING, JJ.
   DOWNING, J.

|gMs. Kathy Bridges Suazo appeals a judgment in which she was held in contempt of court for failing to permit her ex-husband, Dr. Herminio Suazo, to exercise physical custody of their minor child as previously ordered by the court. Among other decrees, the judgment also denied Ms. Suazo’s motion to further limit Dr. Suazo’s exercise of physical custody and granted Dr. Suazo increased exercise of physical custody at specified times. For the following reasons, we affirm the judgment of the trial court.

Ms. Suazo also filed a writ application to have this court overturn a trial court decision rendered on a motion to recuse, entered after the judgment before us on appeal was rendered, declining to recuse the trial judge. For the following reasons, we deny the writ.

PERTINENT FACTS AND PROCEDURAL HISTORY

Ms. Suazo and Dr. Suazo were divorced in June 1992, approximately five months after their only child, a daughter, was born. The parties were granted joint custody. After 1992, the trial court did not become involved in custody issues again until February 2005. Ms. Suazo moved to California with their daughter in 2004, and Dr. Suazo filed a rule seeking specified times to exercise physical custody of his child. He also sought to have Ms. Suazo held in contempt. These matters were resolved by consent decrees.

Subsequently, Dr. Suazo and Ms. Suazo filed cross-motions concerning visitation and contempt. These matters had been dismissed without prejudice pursuant to a consent judgment entered on August 8, 2006. On August 25, 2006, Dr. Suazo filed a motion re-urging a rule for contempt, for a change in custody, and for modification of the “visitation” schedule that had been previously set for August 8, 2006. He also prayed that Ms. Suazo be held in contempt of court for failing to afford him a chance to | ^exercise physical custody of their child when she came to Louisiana on August 10 to attend a court-ordered counseling session, but returned to California the same day. On September 26, 2006, Ms. Suazo filed a motion for change of venue, change of custody or modification of “visitation,” for payment of medical costs, and for contempt against Dr. Suazo for not paying one-half her airfare for their daughter’s travel to Louisiana in April 2006.

These motions were heard on October 9, 2006. Pertinently, the trial court entered judgment on October 31, 2006, that retained joint custody in both parents, denied Ms. Suazo’s request for change in custody or modification of the exercise of physical custody, ordered specific, somewhat increased periods in which Dr. Suazo was to exercise physical custody of their child, ordered that the dates and times could not be changed without approval of the court, and held Ms. Suazo in contempt “for failing to permit [Dr. Suazo] to visit as previously ordered by the Court[.]”

Ms. Suazo now appeals, asserting two assignments of error, as follows:

1. The trial court clearly erred as a matter of law in finding Ms. Suazo in contempt of court for missing two appointments with Dr. Robertson, and for failing to have [their daughter] in Louisiana for visitation on August 6, 2006, as this was a criminal contempt proceeding and [Ms.] Suazo was never provided notice of these two allegations of contempt. Furthermore, no proof of contempt beyond a reasonable doubt was established.
2. The trial court manifestly erred and abused its discretion in denying Ms. Suazo’s motion for modification of visitation, and instead increasing [their daughter’s] visits in Louisiana, even if they interrupt her school or extracurricular schedule.

Further, on June 15, 2007, over seven months after the judgment on appeal was rendered, while no proceedings were pending in the trial court, Ms. Suazo filed a motion to recuse the judge on grounds of bias. After a hearing on June 19, 2007, a different trial judge denied the motion to recuse. |4Ms. Suazo filed a writ application to have this ruling reversed. This court referred the writ to the panel considering the merits of this appeal.

DISCUSSION

Notice of Contempt Allegation

As a preliminary matter, we note that the judgment on appeal holds Ms. Suazo in contempt for only one action — for failing to permit Dr. Suazo to exercise his physical custody of the minor child as previously ordered by the court. The judgment does not hold her in contempt for missing two appointments with a therapist, as Ms. Sua-zo suggests in her first assignment of error. Accordingly, there is nothing to appeal in this regard. We acknowledge that the trial court stated in an oral ruling that Ms. Suazo was being held in contempt for failing to attend these counseling sessions, but this decree was not included in the judgment. It is therefore not a part of the judgment of the court and is not subject to appeal.

Ms. Suazo argues in her first assignment of error that she did not get proper notice of the allegations of contempt against her in this criminal contempt matter. It is clear that the constructive contempt proceeding against Ms. Suazo was criminal in nature in that the court was seeking to punish Ms. Suazo for disobeying a court order. Billiot v. Billiot, 01-1298, p. 4 (La.1/25/02), 805 So.2d 1170, 1173. By contrast, in a civil contempt proceeding, the court seeks to force a person into compliance with a court order. Id.

Louisiana Code of Civil Procedure art. 225 A, governing the procedure for punishing a person charged with contempt, requires that a rule for contempt “shall state the facts alleged to constitute the contempt.” “One purpose of the requirement that the facts constituting the alleged contempt |fibe stated in the rule to show cause is to ensure that the person charged with contempt is clearly apprised of the nature and cause of the accusation against him.” Geo-Je’s Civic Ass’n, Inc. v. Reed, 525 So.2d 192, 196 (La.App. 1 Cir.1988). The notice requirement of La.C.C.P. art. 225(A) is analogous to the indictment or bill of information required in criminal eases. “The primary purpose each serves is to put a defendant on notice as to the charges against him, so that he can properly prepare a defense.” Id., 525 So.2d at p. 198.

Dr. Suazo’s motion for contempt at issue here alleged only the following regarding Ms. Suazo’s contempt:

On August 10, 2006, Kathy Bridges Suazo appeared with her daughter at the first scheduled therapy session with Dr. Jeanne Robertson and promptly returned to California on the next plane out without affording Herminio Suazo any opportunity to visit with his child.

While this language may not set out the facts alleged to constitute Ms. Suazo’s contempt in detail, we conclude that the notice was sufficient. The motion put Ms. Suazo on notice that she was accused of depriving him of the right to exercise physical custody of his child. The motion also put her on notice that he had expected to exercise this right on the specified date. Further, she was on notice that a different alleged instance of contempt earlier in the year was the subject of the prior contempt motion that had been reset.

In State v. Lee, 00-2516, p. 8 (La.App. 4 Cir. 4/6/01), 787 So.2d 1020, 1028, the court concluded that a clear general allegation of | sprosecutorial misconduct put the contempt defendant “on notice as to the nature of the accusation against him and [that he] was able to defend against it.” The court also concluded that when a complaint comes as no surprise, a contempt defendant is adequately informed of the charge against him. Id., 00-2516 at pp. 9-10, 787 So.2d at 1029. Accordingly, we conclude Ms. Suazo received sufficient notice to enable her counsel to prepare an adequate defense, which she did.

Additionally, we note that Ms. Suazo’s counsel failed to object to the adequacy of the notice, if she felt that it was inadequate. In State v. Allen, 01-2494, p. 1 (La.6/21/02), 824 So.2d 344, 344, the supreme court held that by failing to allege that an indictment provides inadequate notice of the charge prior to trial, the defendant had waived the claim. The supreme court’s rationale applies equally here in regard to the sufficiency of the notice afforded. See Geo-Je’s, 525 So.2d at 198.

We therefore conclude that Ms. Suazo’s assignment of error in this regard is without merit.

Sufficiency of the Evidence

Ms. Suazo also alleges in her first assignment of error that her contempt was not proven beyond a reasonable doubt. We disagree.

As the supreme court explained in Billiot, 01-1298 at p. 5, 805 So.2d at 1174, criminal contempt is a crime, and due process requires that a contempt defendant may not be convicted except on proof beyond a reasonable doubt of every fact necessary to prove the contempt charge. We review a finding of criminal contempt employing the Jackson standard. State in the Interest of R.J.S., 493 So.2d 1199, 1202 (La.1986). The reviewing court must determine that the evidence, viewed in the light most |7favorable to the prosecution, was sufficient for a rational trier of fact to conclude that every element of the crime of which the defendant was convicted was proved beyond a reasonable doubt. Id.

Here, we have concluded that Ms. Suazo received proper notice and that she was, therefore, under court order to have her daughter in Louisiana on August 6, 2006. As the trial court noted, she could have had the child in Louisiana on August 8, when she failed to appear for a court hearing. She could have left the child with her father on August 10⅝ when they all appeared for a counseling session.

Ms. Suazo makes no allegation that Dr. Suazo agreed to postpone his exercise of physical custody. And the consent judgment entered into on August 8, 2006, does not change the July 18, 2005 judgment. Rather, the August 8, 2006 judgment provides that the July 18, 2005 judgment “shall remain in full force and effect.”

Accordingly, it is clear that a rational finder of fact could find beyond a reasonable doubt that Ms. Suazo disobeyed the July 18, 2005 order of the court, as set forth in footnote 3, above. An additional element of criminal contempt that must be proven beyond a reasonable doubt, however, is willful disobedience of a lawful order of a court. R.J.S., 493 So.2d at 1203. See also La.C.Cr.P. art. 23(2). “[T]he act or refusal to act must be done with an intent to defy the authority of the court.” R.J.S., 493 So.2d at 1203.

Here, the trial court made no specific finding that Ms. Suazo acted with an intent to defy the court’s order. However, general criminal intent is present when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal |sconsequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). “Though intent is a question of fact, it need not be proven as a fact. It may be inferred from the circumstances of the transaction.” State v. LeBoeuf, 06-0153, p. 4 (LaApp. 1 Cir. 9/15/06), 943 So.2d 1134, 1137, writ denied, 961 So.2d 1158 (La.8/15/07).

Here, the record in connection with the trial court’s contempt finding shows that Ms. Suazo was properly notified pursuant to a court order and a letter from Dr. Suazo that she was to send her daughter to Dr. Suazo on August 6, 2006, for a two-week stay. She did not do so and made no showing that Dr. Suazo waived or delayed his right to exercise physical custody of his daughter. Ms. Suazo failed to appear for a scheduled August 8, 2006 contempt hearing for which she had received proper notice. This resulted in a consent decree that was entered into on August 8, 2006, in which she agreed to appear for counseling sessions, with the first session to be held August 10, 2006.

Ms. Suazo appeared for the first counseling session on Thursday, August 10, 2006, along with Dr. Suazo and their daughter. At the session, appointments were set with Ms. Suazo and their daughter on the next Monday and Tuesday. The parties discussed where Dr. Suazo would take their daughter to dinner that night and what movies she might like to see.

Yet when the session was over, while Dr. Suazo was waiting to move their daughter’s things to his car, Ms. Suazo and their daughter walked away. They walked a couple of blocks to Ms. Suazo’s mother’s waiting car, with Dr. Suazo scurrying after them. Ms. Suazo had bought round-trip tickets, and Ms. Suazo and their daughter returned to California that night. They did not return for the scheduled counseling sessions or to allow Dr. Suazo time with his daughter.

|9While Ms. Suazo claims she did not understand the order and that their daughter had to register for school on August 11, the trial court concluded that Ms. Suazo had “intentionally obstructed and frustrated the father’s visitation.” It further concluded that she was “hell bent on frustrating” Dr. Suazo’s exercise of physical custody of his daughter.

Accordingly, we conclude from the evidence in the record that a rational trier of fact could find beyond reasonable doubt that Ms. Suazo intended to defy the authority of the court and was in willful disobedience of the court’s order. Therefore, we will affirm the judgment of the trial court finding Ms. Suazo to be in contempt for failing to permit Dr. Suazo to exercise physical custody, as previously ordered by the court.

Ms. Suazo’s first assignment of error is without merit.

Ms. Suazo’s Motion to Modify

Ms. Suazo argues in her second assignment of error that the trial court erred in denying her motion to modify, which would have decreased or eliminated court-ordered contact between Dr. Suazo and their daughter. Ms. Suazo requests that we vacate the trial court’s order slightly increasing Dr. Suazo’s exercise of physical custody of their daughter and that we remand this matter to another judge for another hearing. She argues that the trial court’s judgments were a “punitive response.” Though there is no such decree in the record, she asserts the trial court disregarded a decree in a consent judgment that the parties would “abide by the recommendation of the therapist, Doreen Smith.” She asserts that the trial court’s reasons for denying her motion to modify legal and physical custody were because of its “obvious dislike for Ms. Sua-zo and his writing off [their daughter] as an ‘actress’ who cannot be given any weight.” Ms. Suazo concludes that the court’s rulings extending Dr. Suazo’s exercise of physical custody should be hnvacated and that this matter should be remanded to another judge because the trial court appears “intractably biased at this point.”

In this regard, we first observe that nothing in the record other than Ms. Sua-zo’s perspective suggests that the trial court acted punitively or was biased in its rulings. While it was appalled at some of Ms. Suazo’s actions, the record reflects that the judge was zealous in protecting the best interest of the child. The trial court found that it was in the child’s best interest for her to spend time with her father so that they might improve their relationship, and it fashioned a remedy to that end while respecting the child’s life and success in California. Ms. Suazo disagrees, contending that the child should not spend time with her father unless the child wants to.

In addressing Ms. Suazo’s contention that the trial court erred in denying her motion to modify, we first note that the trial court is vested with much discretion in deciding child custody cases. Martello v. Martello, 06-0594, p. 5 (La.App. 1 Cir. 3/23/07), 960 So.2d 186, 190. Because of the trial court’s better opportunity to evaluate witnesses, and recognizing the proper allocation of trial and appellate court functions, we give great deference to the decision of the trial court. Id. A trial court’s determination regarding child custody will not be disturbed absent a clear abuse of discretion. Id.

In making these orders, the trial court found Ms. Suazo to be an evasive liar. It found that in a year-and-a-half, Dr. Suazo had not been able to satisfactorily spend time with his daughter in peace. It found that Ms. Suazo “intended to deliberately prevent Dr. Suazo from developing a relationship with his daughter.”

Further, the trial court observed that “time is running out for Dr. Suazo to have whatever influence he would like to have in his daughter’s life. It’s as much for her as it is for him.” (Emphasis added.) It also found |1Tthat “Mrs. Suazo has gone to great lengths to destroy the father/daughter relationship that naturally exists between Dr. Suazo and [their daughter].”

Additionally, while Ms. Suazo argues that the trial court erred in failing to give the testimony of certain experts proper weight, a trial court may accept or reject in whole or in part the opinion expressed by any expert. Rao v. Rao, 05-0059, p. 14 (La.App. 1 Cir. 11/4/05), 927 So.2d 356, 365, writ denied, 925 So.2d 1232 (La.3/12/06). The effect and weight to be given expert testimony is within the broad discretion of the trial court. Id. Further, the rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound. Id.

Under these circumstances, we cannot conclude that the trial court was manifestly erroneous or unsound in making its factual findings, which are supported by the record, even though Ms. Suazo suggests another view of the evidence. Therefore, we cannot conclude that the trial court abused its discretion in denying her motion to modify.

Dr. Suazo’s Motion to Modify

Ms. Suazo also argues in her second assignment of error that we should vacate the trial court’s orders granting Dr. Suazo’s motion to modify and slightly increasing his exercise of physical custody of their daughter. She asks that we remand this matter to another judge for another hearing. We pretermit discussion of this assignment of error because the decrees are now moot.

Here, the trial court judgment set five different periods throughout 2006 and 2007 in which Dr. Suazo was to exercise physical custody of their child “without regard to school or extracurricular activities,” the last of which was to conclude on August 9, 2007. The court further ordered that |1?“the dates and times of this schedule are not to be changed without court approval.”

An appeal of a judgment awarding custody does not suspend the execution of the judgment. La. C.C.P. art. 3943. Therefore, any opinion we render regarding these decrees would be an impermissible advisory opinion affording no practical relief. As the Louisiana Supreme Court instructed:

Courts may not decide cases that are moot, or where no justiciable controversy exists. An issue is “moot” where “it has been deprived of practical significance and made abstract or purely academic.” In contrast, a justiciable controversy exists where there is an “‘existing actual and substantial dispute ... which involves the legal relations of the parties who have real adverse interests, and upon which the judgment of the court may effectively operate through a decree of conclusive character.’ ” (Citations omitted.)

Suire v. Lafayette City-Parish Consol. Government, 04-1459, p. 24 (La.4/12/05), 907 So.2d 37, 55. Therefore, we do not render an opinion on decrees that expired on August 9 of this year. Ms. Suazo’s second assignment of error is without merit.

Writ Application

On June 15, 2007, Ms. Suazo filed a motion to recuse the trial judge, making many of the same allegations she made on appeal. Ms. Suazo does not allege, and the record fails to show, that there were any pending proceedings in the trial court at the time. She contends that she has endured both hardship and embarrassment because of the trial judge’s personal dislike or bias towards her. Judge George J. Larke, Jr. conducted a hearing on the motion to recuse on June 19, 2007, wherein he denied Ms. Suazo’s motion. Ms. Suazo then filed a writ application with this Court, which we now address.

113In her writ application, Ms. Suazo maintains that Judge Areeneaux acted discourteously and insensitively towards her, calling her a “liar” and generally disregarding the sensitive and emotionally charged substance of her case. Ms. Suazo submits the trial judge’s behavior and demeanor towards her has been inappropriate and constitutes grounds for his recusal.

Secondly, Ms. Suazo argues, as she did in her brief on appeal, that Judge Arcen-eaux unlawfully found her in contempt of court and is thus biased and cannot be fair and impartial.

Louisiana Code of Civil Procedure art. 151 B(5) provides that a judge may be recused when he “[i]s biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.” The bias or prejudice is required to be of a substantial nature and based on more than conclusory allegations. Augman v. City of Morgan City, 03-0396, p. 3 (La.App. 1 Cir. 12/31/03), 864 So.2d 248, 249.

The provisions of La. C.C.P. art. 154 state, in relevant part: “If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoc ... for a hearing.” Where the motion to recuse fails to enunciate valid grounds for recusation, the trial judge may overrule the motion without referring the matter to another judge. Augman, 03-0396 at pp. 3-4, 864 So.2d at 250:

A party desiring, to recuse a judge of a district court shall file a written motion assigning the ground for recusation. This motion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or |! ¿refer the motion to another judge or a judge ad hoc, as provided in Articles 155 and 156 for a hearing. La. C.C.P. art. 154.

According to the record, the motion to recuse was heard on June 19, 2007, by Judge George J. Larke, Jr. Judge Larke found that while the trial judge may have inappropriately used the term “liar” out of frustration in connection with Ms. Suazo, such is not enough to show the trial judge is prejudiced. He concluded that the trial judge would be “fair and free of prejudice” for either party. Moreover, Judge Larke went on to state, “[Wjhen parties refuse orders of the court, it can be very frustrating to the court, especially in custody matters that deal with children and the best interest of the child. When you’ve got one party who determines they know the best interest over the Court’s .... ”

One of the grounds for recusal recognized in the Code of Civil Procedure is when the trial judge “[I]s biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.” La. C.C.P. art. 151(B)(5). Ms. Suazo contends that this ground for recu-sal existed during the trial of the instant case.

Based on the evidence before the court on the motion to recuse, Judge Larke found that Ms. Suazo failed to meet her burden of proving by a preponderance of the evidence that Judge Arceneaux was biased in favor of Dr. Suazo and against Ms. Suazo to such an extent that he would be unable to conduct fair and impartial proceedings. Our review of the record reveals no error in this finding. Therefore, Ms. Suazo’s writ application will be denied.

hsNot only were the trial judge’s actions proper and apparently warranted, we further observe and acknowledge that counsel for Ms. Suazo sets forth the same argument in his writ application as in the appellate brief he submitted to this Court regarding the appeal of this matter. We take offense and issue with the fact that in the documents submitted by counsel for Ms. Suazo, counsel distorted facts and implied that Judge Arceneaux engaged in illegal action, acted punitively, and was intractably biased. This Court admonishes counsel for this offensive, unprofessional behavior.

DECREE

For the foregoing reasons, we affirm the October 31, 2006 judgment of the trial court. We deny Ms. Suazo’s writ application challenging the June 19, 2007 ruling on recusal of the trial judge. Costs of this appeal are assessed to Ms. Kathy Bridges Suazo.

AFFIRMED; WRIT DENIED.

KUHN, J., concurs and assigned reasons.

KUHN, J.,

concurring.

|,I write separately to caution courts and litigants of the obvious dangers to our system of justice — the use of a motion to recuse as a litigation tool in response to unfavorable rulings.

      . The motion for change of venue was severed from this hearing, to be reset at a later date.

      . We begin our analysis under Article 225 of the Code of Civil Procedure because this criminal contempt proceeding arises from a civil action.

      . On July 6, 2006, Dr. Suazo sent a letter to Ms. Suazo in compliance with the trial court’s order of July 18, 2005, requesting Ms. Suazo to send their daughter to him on August 6, 2006, for a two-week stay. Ms. Suazo acknowledged receipt of the letter. The July 18, 2005 judgment required the following:
      Summer: HERMINIO SUAZO will be allowed to exercise visitation two (2) nonconsecutive two-week periods, providing thirty (30) day notice via certified mail. In the event that two (2) non-consecutive two (2) week periods are not available, then HERMINIO SUAZO will be allowed four (4) consecutive weeks, providing thirty (30) days notice via certified mail.

      . Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

      . Louisiana Revised Statutes 14:11 provides as follows: “The definitions of some crimes require a specific criminal intent, while in others no intent is required. Some crimes consist merely of criminal negligence that produces criminal consequences. However, in the absence of qualifying provisions, the terms ‘intent’ and ‘intentional’ have reference to 'general criminal intent.’ ’’

      . The issue of whether there must be a pending motion or other proceeding is not before us on review, so we do not discuss this issue. We note, however, that La. C.C.P. art. 154 requires that a motion to recuse be filed prior to trial or hearing unless grounds for recusal are discovered thereafter. The motion for recusal must be filed immediately after those facts are discovered, but prior to judgment.


author: MICHAEL E. KIRBY, Judge. BELSOME, J.,

text:
    John MAIURANO v. CARRIERE-STUMM, INC.
    No. 2007-CA-0225.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 24, 2007.

      Owen W. Joyner, New Orleans, LA, for Plaintiff/Appellant.
    Jeffrey C. Napolitano, Juge Napolitano Guilbeau Ruli Frieman & Whiteley, Me-tairie, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

11 Claimant, John Maiurano, appeals the judgment of the Office of Workers’ Compensation (“OWC”) in favor of his employer, defendant Carriere-Stumm, Inc. For reasons that follow, we affirm.

Claimant alleged that he sustained an accident with injury while working as a roofer for Carriere-Stumm on July 21, 2004. He filed a Disputed Claim for Compensation with the OWC on November 10, 2004. In that claim, claimant stated that on July 21, 2004, he was pushing a wheelbarrow filled with shingles when he lost his balance and twisted his right knee. He sought medical treatment from two physicians for his injuries. Following trial on the merits, the OWC judge rendered judgment dismissing claimant’s case with prejudice, finding that claimant did not carry his burden of proving that he suffered a work-related accident with injury on July 21, 2004. The OWC judge further found that the defendant did not carry its burden of proving its allegations of fraud under La. R.S. 23:1208. The judge stated that her judgment was based upon “the record, all pleadings, the evidence, the law, the credibility of the witnesses and the stipulations by and ^between the counsels for parties.” Claimant filed a motion for new trial, which was denied. Claimant now appeals.

On appeal, claimant argues the OWC judge erred in applying an incorrect standard of proof and in finding that claimant did not prove that he suffered a work-related accident with injury.

In a workers’ compensation case, the standard of review is the clearly wrong or manifest error standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733. A claimant in a workers’ compensation case has the burden of proving a work-related accident by a preponderance of the evidence. Millon v. Clarion Hotel, 98-0002, p. 3 (La.App. 4 Cir. 9/16/98), 719 So.2d 568, 570. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Id. In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontra-dicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992), citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979), and Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the worker’s testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Id.

In Bruno v. Harbert International, Inc., supra at 361, our Supreme Court held that a worker’s testimony may be sufficient to discharge his burden of proving a work-related accident by a preponderance of the evidence, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. La. R.S. 23:1021(1) defines accident as follows:

“Accident” means an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.

The OWC judge did not issue reasons for judgment. Claimant’s argument regarding the allegedly incorrect application of standard of proof seems to be directed toward the judge’s statement in the judgment that credibility of the witnesses was a consideration in finding that claimant did not prove a work-related accident with injury, and the judge’s apparent conclusion that claimant was not a credible witness. As stated in the above-cited case of Bruno v. Harbert International, Inc., supra, the claimant’s credibility in a workers’ compensation claim is certainly a factor to be considered in the OWC judge’s determination of a case. We find no merit in claimant’s argument that the OWC judge incorrectly applied the standard of proof in this case.

|40n the issue of whether or not a work-related accident with injury occurred, it is undisputed that there were no witnesses to the alleged accident. Claimant testified at trial that on July 21, 2004, he loaded roof shingles into a wheelbarrow. As he was pushing the wheelbarrow up onto the sidewalk, he hit the curb and lost his balance. He fell to the ground twisting his right knee, and the wheelbarrow full of shingles fell on top of him. He stated that he got up and then another employee arrived on the scene and helped him put the shingles back into the wheelbarrow. Claimant stated that he resumed working. He claims that he verbally reported the accident that same day to his supervisor, and filed a written accident report with his employer on July 23, 2004. Claimant quit his job several days later.

On the issue of whether or not claimant suffered an injury as a result of a work-related accident, claimant testified that he was treated by the employer’s physician within two weeks of the alleged accident, and then sought treatment from an orthopedist who determined that he was disabled from working as a roofer. Claimant concedes that he has pre-existing arthritis in his right knee.

Dr. David Aiken, an expert in orthopedic surgery, saw claimant on August 4, 2004 and testified by deposition. Dr. Aiken stated that he has treated many employees of the defendant, but that he did not consider himself to be the company’s physician. Dr. Aiken had also treated claimant in 2001 for osteoarthritis of the right knee after a work-related accident. Dr. Aiken said that at the August 4, 2004 visit, claimant told him that he had another accident at work in which he twisted his knee, but that the reason he was quitting his job was because | Bof a dispute with his supervisor. Dr. Aiken found no signs of acute injury when he examined claimant on August 4, 2004. He conducted diagnostic testing of the knee a week later, and found evidence of osteoarthritis but no evidence of a single twisting injury. Dr. Aiken told claimant that there was no medical reason why he could not continue with his roofing job.

Claimant then sought treatment on October 28, 2004 from Dr. George Murphy, an expert in orthopedic surgery, who also testified by deposition. Dr. Murphy examined claimant, reviewed results of previous diagnostic testing and conducted further tests. His opinion is that claimant had end stage osteoarthritis of the right knee, which was caused by degeneration and the accumulation of work-related accidents in 2001 and the accident at issue in 2004.

Although claimant’s testimony regarding the occurrence of a work-related accident was uncontradicted, the credibility of the claimant was an issue at trial. The defendant argues that no event occurred on July 21, 2004 that would constitute an accident as defined by La. R.S. 23:1021(1), and that the real reason claimant left his roofing job was because of his involvement in a construction company called D & S Construction. During cross-examination, claimant was questioned about his version of how the alleged accident occurred and about his role in D & S Construction. Testimony was elicited from claimant regarding purchases made by him at home improvement stores in the area around the time of the alleged accident and the days immediately thereafter. The cross-examination revealed numerous inconsistencies in claimant’s version of events regarding the alleged accident andj^his other activities during that time period. In particular, claimant’s testimony at trial regarding his description of the alleged accident differed in some respects from the description he gave on the written accident report filed days after the accident.

The OWC judge evaluated the witnesses’ credibility, and obviously did not find claimant to be a credible witness. The OWC judge also obviously favored the testimony of Dr. Aiken over that of Dr. Murphy. After reviewing the trial transcript and depositions, we cannot say that the credibility determinations of the OWC judge were unreasonable.

Following oral argument in this Court, the claimant filed a “Motion to Allow Filing of Affidavit.” Attached to this motion is the affidavit of Redie Armón, a former co-worker of claimant at Carriere-Stumm. Mr. Armón did not testify at trial, and the affidavit was obtained by claimant after trial in this matter. Claimant cites the case of Barnhill v. A-1 Remodeling, 2002-0357 (La.App. 1 Cir.7/2/03), 858 So.2d 661, as authority for the proposition that a remand to the trial court for the introduction of additional evidence is warranted when the new evidence is likely to affect the outcome of the case. The defendant has opposed the claimant’s motion, arguing that the affidavit does not contain new evidence and would not affect the outcome of the case if allowed.

We agree with the defendant on this issue. Mr. Armon’s affidavit does not contain any statement that he witnessed the alleged accident. He claims that he saw claimant lying on the ground, and that the claimant told him that he had |7suffered an accident. This does not constitute new evidence on the factual issue of whether or not an accident occurred because even if allowed, we are still faced with the claim of an unwitnessed accident and a claimant whose testimony the OWC judge obviously did not find credible. The Motion to Allow Filing of Affidavit is hereby denied.

We find no error in the judgment of the OWC that claimant failed to prove that he suffered a work-related accident with injury on July 21, 2004. We affirm the judgment of the OWC.

AFFIRMED.

BELSOME, J., Concurs with Reasons.

BELSOME, J.,

Concurs with Reasons.

hi respectfully concur in the result, but write separately to reiterate the general rule that a worker’s testimony, standing alone, can satisfy the burden of proving a work-related accident by a preponderance of the evidence. Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992). With regard to the particular facts of the instant case, however, other evidence exists to discredit Mr. Maiurano’s version of the incident. Id. Likewise, Mr. Maiurano’s testimony is not corroborated by the circumstances following the alleged accident. Id. Therefore, we must affirm the OWC’s finding that Mr. Maiurano did not meet his burden of proving a work-related accident.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana v. Darryl L. CLAY.
    No. 2007-KA-0698.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 24, 2007.
    Eddie J. Jordan, Jr., District Attorney, David S. Pipes, Assistant District Attorney, New Orleans, LA, for Plaintiff/Appellant.
    Ronald J. Rakosky, Ronald J. Rakosky, A P.L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

_JjThe State of Louisiana appeals the trial court’s grant of Defendant-Appellee Darryl L. Clay’s motion to quash. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Darryl L. Clay was initially charged by a bill of information with one count of possession with intent to distribute heroin on August 15, 2002. Two other co-defendants, Alsando Dowell and Travis J. Johnson, were also charged in the same case. Clay pled not guilty at arraignment and filed preliminary motions on August 26, 2003. Following numerous delays, motions were heard on May 7, 2003. The trial court granted defendant’s motion to suppress the evidence in part and found probable cause at that time. The state noticed its intent to seek supervisory review and subsequently filed a writ application with this court. On September 24, 2003, this court reversed the trial court’s ruling granting in part defendant’s motion to suppress the evidence. State v. Dowell, 2003-1143 (La.App. 4 Cir. 9/24/03), 857 So.2d 1098. Thereafter defendant’s trial was continued on numerous occasions | ¡>until April 12, 2005, when defendant pled guilty to an amended bill of information under the confines of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Prior to sentencing, defendant withdrew his guilty plea. Several status hearings followed until July 21, 2005, when the ease was set for trial on October 19, 2005. Of course, during the interim, New Orleans was devastated by the effects of Hurricane Katrina on August 29, 2005.

On June 19, 2006, the trial court set the case for trial on September 12, 2006. Trial was continued on that date and on several other occasions following until April 12, 2007. On that date, the State announced its readiness for trial; however, the defendant filed a motion to quash the bill of information on the basis of La.C.Cr. P. art. 578, arguing that more than two years had elapsed since the bill of information was filed. After hearing argument, the trial court granted the motion to quash, and the State appealed.

DISCUSSION

The State argues that the trial court’s ruling on the defendant’s motion to quash should be reversed, as the two-year limitation period for the commencement of trial imposed by La.C.Cr.P. art. 578 had been both suspended and interrupted such that the period had not expired. In this case, the bill of information was filed on August 15, 2002, and the motion to quash was granted in April 2007, well past the two-year limitation period. It is well established that when a defendant moves to quash the charges against him due to a violation of Article 578, the State “bears a heavy burden to demonstrate either an interruption or a suspension of the time limit such that prescription will not have tolled.” State v. Rome, 93-1221, p. 3 (La.1/14/94), 630 So.2d 1284, 1286 (citations omitted).

hThis Court recently held in State v. Brazile, 2006-1611 (La.App. 4 Cir. 5/30/07), 960 So.2d 333, that Hurricane Katrina interrupted the time delays for bringing a defendant to trial and that the two-year time limitation period imposed by La.C.Cr.P. art. 578 commenced anew once the causes preventing the State from trying the defendant (Hurricane Katrina and its aftermath) were removed and the court reconvened, pursuant to the language in La.C.Cr.P. art. 579. In Brazile, the defendant was charged by a bill of information on March 23, 2004, and trial was continued on numerous occasions by the State, the court, or by joint motion of the defense and the State. After Hurricane Katrina struck, trial was set for September 19, 2006, and on that date, the defendant filed a motion to quash the bill of information, arguing that over two years had elapsed since the bill of information was filed pursuant to La.C.Cr.P. art. 578. The trial court’s grant of the defendant’s motion to quash was reversed by this Court pursuant to the language in iJka.C.Cr.P. art. 579(B). This Court did not need to determine exactly when the interruption ceased in Brazile, as the motion to quash was granted within two years of August 29, 2005.

Likewise, we find that an interruption of prescription has occurred in the instant case because the State was unable, through no fault of its own, to try the defendant within the time period specified by statute. State v. Rome, 93-1221, p. 4, 630 So.2d at 1287. As was the case in Brazile, the motion to quash in the instant case was granted within two years of the date that Hurricane Katrina struck the Gulf Coast. Accordingly, by operation of article 579 of the Louisiana Code of Criminal Procedure, the limitations for bringing a defendant to trial articulated in article 578 had yet to expire at the time the trial court granted the defendant’s motion to quash. State v. Brazile, 2006-1611, p. 2, 960 So.2d at 336. Although the renewal of the entire two-year period could be found to be extremely prejudicial to the defendant, the constitutionality of article 579 was not raised in this case, nor was it raised in Brazile, supra. As a court of review, we are confined to the |ficontents of the record. Brazile, 960 So.2d at 336. Thus, we must find that the trial court erred in granting the defendant’s motion to quash. Id.

CONCLUSION

The trial court’s grant of Appellee’s motion to quash is hereby reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . The facts of this case, not at issue here, were articulated by this Court in State v. Dowell, 2003-1143, pp. 2-5 (La.App. 4 Cir. 9/24/03), 857 So.2d 1098, 1100-1102.

      . The trial court granted the motion only as to the evidence that was recovered on defendant's person. The court also granted Travis Johnson's motion to suppress the evidence and found no probable cause. As to defendant Alsando Dowell, the trial court found no probable cause. (No motion to suppress pertained to Dowell.)

      .La.C.Cr.P. art. 578 provides, in pertinent part (emphasis added):
      A. Except as otherwise provided in this Chapter, no trial shall be commenced nor any bail obligation be enforceable:
      (1) In capital cases after three years from the date of institution of the prosecution;

        (2) In other felony cases after two years from the date of institution of the prosecution; and
      (3) In misdemeanor cases after one year from the date of institution of the prosecution.

      . La.C.Cr.P. art. 579 provides (emphasis added):
      A. The period of limitation established by Article 578 shall be interrupted if:
      (1) The defendant at any time, with the purpose to avoid detection, apprehension, or prosecution, flees from the state, is outside the state, or is absent from his usual place of abode within the state; or
      (2) The defendant cannot be tried because of insanity or because his presence for trial cannot be obtained by legal process, or for any other cause beyond the control of the state; or
      (3) The defendant fails to appear at any proceeding pursuant to actual notice, proof of which appears of record.
      B. The periods of limitation established by Article 578 shall commence to run anew from the date the cause of interruption no longer exists.

      . We note that La.C.Cr.P. art. 580 provides that the period of limitation is suspended when a defendant files a motion to quash or other preliminary plea, “but in no case shall the State have less than one year after the ruling to commence the trial.” A motion to suppress evidence and a motion for preliminary hearing are both preliminary pleas under article 580 which suspend the running of the prescriptive period. State v. Brent, 2000-0072 (La.App. 4 Cir. 11/29/00), 775 So.2d 565; State v. Woodard, 35,202 (La.App. 2 Cir. 10/31/01), 799 So.2d 701. Likewise, a motion for continuance filed by defendant is a preliminary plea under La.C.Cr.P. art. 580, which suspends the running of the prescriptive period. State v. Fabacher, 362 So.2d 555 (La.1978); State v. Cranmer, 306 So.2d 698 (La.1975). Joint motions to continue also suspend the period of limitation. State v. Fish, 2005-1929 (La.4/17/06), 926 So.2d 493; State v. Parker, 1999-1446 (La.App. 4 Cir. 3/22/00, 757 So.2d 893). A guilty plea will also suspend the running of the article 578 time limitation in the same manner as a preliminary plea under article 580. State v. Allen, 2003-2815 (La.4/23/04), 871 So.2d 1097.
      In this case, the bill of information charging defendant with a felony was filed on August 15, 2002. Therefore, the State had until August 15, 2004 to commence trial unless the period was otherwise suspended or interrupted. The record reflects that initially the two-year prescriptive period was suspended between August 26, 2002 and May 7, 2003, during the pendency of defendant’s pretrial motions. Therefore, the initial two year period was extended until April 26, 2005. The record further reflects that on August 9, 2004, long before April 26, 2005, the case was continued by defense motion. Accordingly, the effect of defendant’s motion to continue was to extend the limitation period until August 9, 2005.
      Finally, the case was similarly continued on April 11, 2005, by joint motion of the State and the defense. Furthermore, on April 12, 2005, the defendant entered a guilty plea, which, as noted, was subsequently withdrawn on April 26, 2005. At that point, the time limitations of art. 578 had yet to expire, and by virtue of the suspension created by defendant’s guilty plea, the State had until April 26, 2006 to commence trial.
      Because we find that the two-year period commenced anew on August 29, 2005, however, it is unnecessary to also find that the time period was suspended pursuant to La.C.Cr.P. art. 580.


author: MICHAEL E. KIRBY, Judge.

text:
    Jonathan GRAUBARTH v. FRENCH MARKET CORPORATION.
    No. 2007-CA-0416.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 24, 2007.

      Harry E. Forst, New Orleans, LA, For PlaintifjyAppellant.
    Thomas E. Schwab, Barkley & Thompson, L.C., New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS JR., Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

|! Plaintiff, Jonathan Graubarth (“Mr.Graubarth”), appeals the trial court’s granting of summary judgment in favor of defendant, French Market Corporation (“FMC”). For the reasons assigned below, we affirm.

Mr. Graubarth is a freelance artist and art director. On April 20, 2001, Mr. Grau-barth was working at a show at the Jean Lafitte National Historical Park at 916 N. Peters Street. As part of his job, he climbed a ladder or stairs to enter a projection booth. Prior to this date, Mr. Graubarth had traversed, without incident, thousands of stairs, stairwells, doorframes, ladders, and theatrical trusses during the course of his career in the arts. While climbing the ladder or stairs, Mr. Grau-barth struck his head at the top of the doorframe, causing him to fall to the floor, injuring his head, neck, and back.

Mr. Graubarth filed a lawsuit against FMC, arguing that the design and pitch of the ladder or stairs and its proximity to the doorframe was defective and created an unreasonable risk of harm. Mr. Grau-barth argued that FMC, as the lessor of the premises located at 916 N. Peters Street, was liable for creating or failing to cure the defect in the premises.

| gFMC filed a motion for summary judgment, which was argued to the trial court on January 5, 2007. On January 10, 2007, the trial court granted the motion for summary judgment without written reasons for judgment. Mr. Graubarth timely filed a motion for appeal.

On appeal, Mr. Graubarth asserts the following assignments of errors: 1) the trial court erred in granting FMC’s motion for summary judgment without evidence in the form of affidavits, answers to interrogatories, documents, and expert reports, and 2) the trial court erred by holding as a matter of law that FMC did not have custody or garde over the premises, that the stairs/steps were not defective, that FMC did not have knowledge of the defect, and that the hazard was open and obvious.

Appellate courts review grants of summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Champagne v. Ward, 2003-3211, p. 4 (La.1/19/05), 893 So.2d 773, 776. When the mover will not bear the burden of proof at trial,

According to La. C.C.P. 966(C)(2), the mover need not negate all essential elements of the adverse party’s claim, action, or defense, but rather need point out to the court that there is an absence of factual support of one or more elements of the claim. Once the movant negates such a necessary element(s) of the adverse party’s claim, the burden then shifts to the adverse party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Lozier v. Security Transfer and Inv. Corp., 96-2690 (La.App. 4 Cir. 4/30/97), 694 So.2d 497. The effect of the legislature’s 1996 amendment to La. C.C.P. art. 966 is that the non-moving party is not allowed to rely on the |salIegations of its pleadings in opposition to a properly supported motion for summary judgment. Oakley v. Thebault, 96-0937 (La.App. 4 Cir. 11/13/96), 684 So.2d 488.

Shelvin v. Intralox, L.L.C., 2006-1418, pp. 9-10 (La.App. 4 Cir. 5/9/07), 957 So.2d 852, 857-858.

In this instance, the mover, FMC, will not bear the burden of proof at trial.

Mr. Graubarth’s first assignment of error alleges that the trial court granted the motion for summary judgment without evidence in the form of affidavits, answers to interrogatories, documents, and expert reports. The record reveals that FMC attached the affidavit of Patricia Henry, Interim Executive Director of FMC, to its motion for summary judgment, and the Order and Reasons for the dismissal of the federal court action filed by Mr. Graubarth. To his opposition, Mr. Graubarth attached his description of the accident, the lease agreement (“Lease”) between FMC and the General Services Administration (“GSA”), a federal agency which leases the premises on behalf of the United States Government, Defendant’s Answers to Interrogatories, Defendant’s Responses to Request for Production of Documents and Mr. Graubarth’s own affidavit. Therefore, Mr. Grau-barth’s argument that the trial court granted the motion for summary judgment without evidence is clearly without merit.

Mr. Graubarth’s second assignment of error alleges the trial court erred by holding as a matter of law that FMC did not have custody or garde over the premises, that the stairs/steps were not defective, that FMC did not have knowledge of the defect, and that the hazard was open and obvious.

|4The Louisiana Civil Code provides that we are responsible for damage caused by the things in our custody. La. C.C. art. 2317. This is to be understood with the following modification:

[t]he owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew, or in the exercise of reasonable care, should have known of the ruin, vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

La. C.C. art. 2317.1.

Thus, the plaintiff must prove three elements: 1) the defendant either owned or had care, custody, or control of the thing in question; 2) the thing was á cause-in-fact of the plaintiffs injuries; and 3) the thing presented an unreasonable risk of harm. Gallina v. Hero Lands Co., 2003-0331, pp. 4-5 (La.App. 4 Cir. 10/7/03), 859 So.2d 758, 762, citing Baker v. Murphy Oil USA, Inc., 2001-1299, p. 4 (La.App. 4 Cir. 4/10/02), 816 So.2d 329, 335.

In this instance, the affidavit of Patricia Henry established that FMC does not own the premises located at 916 N. Peters Street. The City of New Orleans owns the property and leases the property to FMC, who then sub-leases it to General Services Administration, a federal agency who leases the premises on behalf of the United States Government. Hence, FMC cannot be held liable as owner of the premises.

However, the courts have recognized the reality that custody or garde is a broader concept than ownership and custody or garde may be shared by multiple parties. To determine whether custody or garde is shared, the courts look to the parties’ actions and relationships to the thing causing injury. The test for determining custody or garde is two-fold: 1) whether the person bears such a ^relationship as to have the right of direction or control over the thing, and 2) what, if any, kind of benefit the person derives from the thing. Gallina, 2003-0331, at p. 5, 859 So.2d at 762, citing Dupree v. City of New Orleans, 99-3651, p. 7 (La.8/31/00) 765 So.2d 1002, 1009.

Patricia Henry stated in' her affidavit that “FMC does not have any means of access to the entire property” and further that “FMC had no control over the daily affairs at the location.” In response, Mr. Graubarth argued that as lessor, “they had the right to direct and to control the premises.” This unsupported assertion is insufficient to rebut the affidavit of Patricia Henry.

Mr. Graubarth next pointed this Court to Section 552.270 — 35(b)(2) of the Lease, which provides that the United States Government would not be held liable because of any defect in or condition of the premises or building. However, the remainder of that portion of the lease provides that certain information must be provided in the isolated instance where a Letter of Statement of Lease was to be issued to a prospective purchaser or lender. Hence, that section of the Lease is insufficient to rebut the affidavit of Patricia Henry.

Mr. Graubarth next argues that pursuant to La. R.S. 9:3221, a lessor must have the lessee assume the responsibility for the maintenance of the property to absolve itself from liability. A review of the record reveals this argument is being raised for the first time on appeal. Appellate courts generally find it inappropriate to consider an issue raised for the first time on appeal that was not plead, urged, or addressed in the court below. Johnson v. State, 2002-2382, p. 4 (La.5/20/03), 851 So.2d 918. Hence, this Court will not consider this argument.

In determining direction or control over the premises and hence custody or garde, the courts have looked to whether a defendant possesses the ability to | (¡access the premises at will and whether a defendant has the ability to alter the premises. While factually distinct, the legal principles located in Chaplain v. American Empire Surplus Lines Ins. Co., 98-1372, pp. 3-5 (La.App. 4 Cir. 3/31/99), 731 So.2d 973, are applicable to the case sub judice. In Chaplain, this Court determined that custody or garde will not be shared or transferred when there is a limited ability to inspect the premises, limited access to enter the premises, and an inability to alter the premises. See also Mix v. Krewe of Petronius, 95-1793 (La.App. 4 Cir. 5/22/96), 675 So.2d 792 (no custody or garde where defendant lacked authority to make alterations).

The affidavit submitted by Patricia Henry claims that FMC lacked access to the entire property and that FMC had no control over the daily affairs at the location. Yet, a review of the Lease reveals that FMC is responsible for maintenance. Section 552.270-12 provides:

Lessor shall maintain the premises, including the building and all equipment, fixtures, and appurtenances furnished by the lessor under this lease, in good repair and condition so that they are suitable in appearance and capable of supplying such heat, air conditioning, light, ventilation, access and other things to the premises, without reasonably preventable or recurring disruption, as is required for the Government’s access to, occupancy, possession, use and enjoyment of the premises as provided in this Lease. For the purpose of so maintaining the premises, the Lessor may at reasonable times enter the premises with the approval of the authorized Government representative in charge (emphasis supplied).

Attached to the Lease exhibit was GSA Form 3626, filled out by the General Services Administration, which detailed precisely when the services and utilities were to be maintained by FMC. The Lease clearly limited FMC’s access to the 1 facility as FMC could only enter the premises with approval. The record lacks evidence that FMC had authority to alter the premises.

Considering the affidavit of Patricia Henry and the Lease, this Court finds no evidence that FMC had the right of direction or control over the premises located at 916 N. Peters Street. Hence, the first prong of the test to determine custody or garde is not met. We note that FMC receives rental payments as a result of the lease and recognize this as a benefit. However, as the first prong of the test has not been met, we find that FMC did not have custody or garde of the premises located at 916 N. Peters Street. Lacking custody or garde, a necessary element of the claim of Mr. Graubarth, FMC cannot be held liable for injuries suffered by Mr. Graubarth.

Under the current statutory scheme, once FMC negated a necessary element of Mr. Graubarth’s claim, in this instance the lack of custody or garde of the premises, the burden of proof shifted to Mr. Grau-barth, requiring Mr. Graubarth to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Shelvin, 2006-1418, at p. 10, 957 So.2d at 858. Mr. Graubarth failed to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial that FMC possessed custody or garde of the premises.

Mr. Graubarth next argues that the trial court erred in finding the stairs were not defective and also argues that the court erred in finding the defect open and obvious. In its motion for summary judgment, FMC argued the door frame presented an open and obvious condition as to which no one owes any duty to warn. FMC noted that Judge Africk granted a motion for summary judgment on that issue in the federal case filed by Mr. Grau-barth. In this case, as in the federal Lease, Mr. Graubarth submitted his own statement that he believed that “the design, and pitch of the steps and its proximity to the door frame” were causes of the accident. Mr. Graubarth failed to substantiate these allegations and raise a genuine issue of material fact regarding the presence of a defect in the stairs or the door-frame.

Mr. Graubarth also argues that he could not obtain information regarding the stairs and doorframe or obtain access to the property. FMC answered interrogatories stating that the information is in the hands of the United States Government and that FMC does not own the stairs or the door-frame at issue. Mr. Graubarth failed to take further action to obtain the requested information. Mr. Graubarth retained the duty to seek discovery in the court below, to present to that court his request for further discovery, and/or specify to that court how further discovery would have advanced his cause. Spellman v. Peoples Bank & Trust Co. of St. Bernard, 544 So.2d 10 (La.App. 4 Cir.1989).

Mr. Graubarth failed to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden regarding the presence of a defect in the premises at trial. There is no evidence that the trial court in the instant ease found the stairs and doorframe an open and obvious condition. Further, this Court has stated that the open and obvious nature of a defect is merely another factor to be weighed in the risk-utility balance. Joseph v. City of New Orleans, 2002-1996, p. 6 (La.App. 4 Cir. 3/5/03), 842 So.2d 420, 424. As Mr. Graubarth failed to produce evidence that a defect existed, there is no need to conduct a risk-utility balance.

Mr. Graubarth’s final argument alleges that FMC possessed knowledge of the defect or should have known of the defect. As stated above, once FMC |9negated a necessary element of Mr. Graubarth’s claim, in this instance the lack of custody or garde of the premises, the burden of proof shifted to Mr. Graubarth, requiring Mr. Graubarth to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Shelvin, 2006-1418, at p. 10, 957 So.2d at 858.

Mr. Graubarth argues that the law provides that the lessor warrants the lessee that the thing is suitable for the purpose for which it was leased and that it is free of vices or defects that prevent its use for that purpose. Mr. Graubarth cites to a provision in the Lease requiring the interi- or doors to be 36" x 80" and concludes that this was not done. Mr. Graubarth failed to conduct further discovery and submitted no evidence of the actual measure of the doorframe. Further, the complete heading on the section on interior doors states “AS IS”. The warranty provided in La. C.C. art. 2696 may be waived by clear and unambiguous language that is brought to the attention of the lessee. La. C.C. art. 2699. While there are no reported cases under La.C.C. art. 2699, this Court finds the term “AS IS” to be clear and unambiguous. GSA provided the Lease containing the waiver to FMC to sign and it is reasonable to presume that GSA knew of the waiver. Hence, this Court finds any defect resulting from a nonconforming door size was waived by GSA.

Mr. Graubarth alleges that FMC should have inspected the doors, doorframes, and pitch of the stairs to ensure compliance with Life Safety codes. Mr. Graubarth failed to provide factual support for his argument. Mr. Graubarth [ 10neglected to submit the Life Safety code requirements and information as to how the doors, door-frames, and pitch of the stairs violated same.

Mr. Graubarth cites Ford v. Bienvenu, 95-1675 (La.App. 4 Cir. 4/24/96), 673 So.2d 1198 in support of his argument that FMC knew or should have known of the defect. This Court decided the Ford case prior to the amendment of La. C.C.P. art. 966. Prior to the amendment, summary judgments were not favored. With the amendment, summary judgments are favored and the burden of proof shifts to Mr. Grau-barth once FMC negates a necessary element of his claim. Shelvin, 2006-1418, at p. 10, 957 So.2d at 858.

Mr. Graubarth additionally cited Wallace v. Helmer Directional Drilling Inc., 93-901 (La.App. 3 Cir. 7/13/94), 641 So.2d 624. Wallace was also decided prior to the amendment to La. C.C.P. art. 966. Further, Wallace involved an owner-lessor. In this instance, FMC is not the owner of the premises.

FMC negated a necessary element of Mr. Graubarth’s claim by showing a lack of custody or garde of the premises where the injury occurred. Further, FMC answered interrogatories claiming no knowledge of the defect and no knowledge of prior complaints, accidents, claims, etc., regarding the stairs or doorframe. Moreover, FMC lacked free access to the building to inspect for defects. The burden of proof shifted to Mr. Graubarth, requiring Mr. Graubarth to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. Shelvin, 2006-1418, at p. 10, 957 So.2d at 858. Mr. Graubarth failed to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial that FMC knew or should have known of the defect.

| ^Accordingly, for the reasons stated herein, the judgment of the trial court granting FMC’s motion for summary judgment is affirmed.

AFFIRMED.

      . Mr. Graubarth filed a lawsuit in federal district court against the sub-lessee of the premises, the General Services Administration, a federal agency that leases the premises on behalf of the United States Government.

      . The transcript from this hearing was not provided to this Court.

      . Mr. Graubarth incorrectly cites La. C.C. art. 2695 as the applicable code article in this case. La. C.C. art. 2696 is the code article dealing with warranties of a lessor.