author: JUDE G. GRAVOIS, Judge. CHEHARDY, J.,

text:
    Abel Romeo CUEVA, Jr. v. Sabrina Shantel GADDIS.
    No. 10-CA-981.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Tracy G. Sheppard, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.
    G. Patrick Hand, III, Attorney at Law, Gretna, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| ;;The defendant, Sabrina Shantel Gad-dis, has appealed the trial court’s judgment denying her request for relocation of her minor child. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Sabrina Shantel Gaddis (now known and referred to herein as “Mrs. Cage”) and Abel-Romeo Cueva, Jr. are the biological parents of the minor child E.C., who was born on June 12, 2006. They were never married to each other. By Consent Judgment rendered and signed on October 25, 2007, Mr. Cueva was declared to be the biological father of E.C. and agreed to pay child support and provide health and hospitalization insurance for the benefit of E.C. No formal visitation agreement was entered into by the parties. Instead, they informally agreed to a shared custody |sarrangement between themselves, which included liberal visitation privileges to both of them.

Upon learning that Mrs. Cage possibly intended to relocate outside the State of Louisiana with E.C., on October 24, 2008 Mr. Cueva instituted this proceeding by filing a Petition for Custody, Visitation and Objection to Relocation of Minor Child. On January 14, 2009, Mr. Cueva and Mrs. Cage consented to a Judgment recommended by the hearing officer that awarded joint legal custody and shared physical custody of E.C. to both of them, and that named Mrs. Cage as the domiciliary parent of E.C. The only mention contained in this judgment concerning relocation is the following statement: “Neither parent shall move the residence of the child out of state or within the state at a distance of more than 150 miles from the other parent without giving the other party written notice as required by La. R.S. 9:355.1 et seq.”

On January 29, 2010, Mr. Cueva filed a second Objection to Proposed Relocation of Child, alleging that he had been verbally advised by Mrs. Cage that she intended to relocate to Glendale, Arizona with E.C., over his objection. In his Objection, Mr. Cueva stated that the proposed relocation is not in the best interest of E.C. for various reasons, including that the relocation would significantly reduce the amount of time that he spends with E.C., would affect the custody arrangement agreed to by the parties, and would preclude regular ongoing contact with E.C., particularly considering the cost of transportation and/or the time travel would entail. Mr. Cueva further alleged that, being in the military, Mrs. Cage’s husband is subject to additional relocation within the United States and/or possibly out of the country. Mr. Cueva also alleged in his Objection that the relocation would have a dramatic effect not only on the relationship between the father and child, |4but also between the child and his entire paternal family. Mr. Cueva requested an order prohibiting Mrs. Cage from relocating with E.C.

The parties appeared before a hearing officer who recommended against the relocation. Pursuant to Mrs. Cage’s objection to the hearing officer’s recommendation, a full hearing was held before the district judge.

At the hearing, Lucilia Cueva, E.C.’s paternal great-grandmother, testified that she cared for E.C. on a daily basis from the time he was four months old until he was two, that she currently sees E.C. about every two weeks, and that she would be sad if E.C. was allowed to relocate.

Anna Cueva, E.C.’s paternal grandmother, testified that Mrs. Cage lived with her while she was pregnant with E.C., that her home is only about ten minutes away from Mr. Cueva’s home, which allows her to visit E.C. on a weekly basis, and that she and her extended family attend E.C.’s birthday parties, which have in recent years been held at Mrs. Cage’s mother’s home. She further stated that she would assist in caring for E.C. if the relocation was denied. In response to questioning by the court, Mrs. Cueva testified that her son is able to care for E.C.

Carla Cueva testified that she is married to Abel Cueva, and accordingly is E.C.’s step-mother. She and Mr. Cueva also have a son who is two years older than E.C. She was living with Mr. Cueva when E.C. was born. Mr. Cueva visited E.C. on a daily basis during the first year of his life. E.C. began having overnight visits with his father when he was one year old. Mr. Cueva takes care of E.C.’s daily needs and takes care of both boys when she is at work. Mrs. Cueva stated that there are no fights between Mrs. Cage and Mr. Cue-va regarding E.C.’s visitation schedule. She testified that she loves E.C. like a son and would be hurt if he moved away.

|fiMr. Cueva testified that he and Mrs. Cage decided to put E.C. in day care when he was two years old because Mrs. Cage had to miss work when his grandmother was unable to watch E.C. He explained that he and Mrs. Cage always worked out the visitation schedule and that E.C. was with him 50% of the time. He testified that he filed a petition for custody and visitation and to oppose relocation of E.C. in October of 2008 after Mrs. Cage informed him that her husband may be transferred to Arizona. This filing resulted in the January 14, 2009 judgment establishing the 50% physical custody arrangement between the parties. Mr. Cueva testified that when E.C. is scheduled to be with him, he sometimes leaves work early in order to pick up E.C. If the relocation is denied, he, his wife, or a nanny will pick E.C. up from school. E.C. is enrolled to attend school with his older brother in the fall. Mr. Cueva opposes the relocation because he tries to spend as much time as possible with E.C. and will not be able to see him on a regular basis if he is allowed to relocate. While admitting that E.C. has a good relationship with Mrs. Cage, he testified that there are no family or friends in Arizona. Mr. Cueva testified that he has lived in the New Orleans area for 24 of his 28 years, that he has a job here, and that he has no intention of relocating. In May of 2009, he moved to a home with a bigger yard so that his children would have a place to play. Mr. Cueva testified that according to his research, it would cost about $500-600 for him to spend a weekend to visit E.C. in Arizona, but admitted that Mrs. Cage told him she would pay these expenses. If the relocation is denied, he will allow E.C. to visit Mrs. Cage over the summer, for extended holidays and weekends, and will allow visitation when Mrs. Cage visits the New Orleans area. Even when Mrs. Cage is not here, he would allow E.C. to have visitation with Mrs. Cage’s family.

IfiTimothy Cage, Mrs. Cage’s husband, testified that he has been involved in E.C.’s life since E.C. was one year old. E.C. has tubes in his ears and it was Mrs. Cage who always took E.C. to the doctor. He testified that upon relocation, Mrs. Cage would no longer work outside of the home. Mr. Cage stated that upon relocation, he would do everything he could to ensure E.C. maintains a relationship with Mr. Cueva and would try to obtain inexpensive lodging on the military base in Arizona where Mr. Cueva could stay when he would visit E.C. He would also pay for E.C. to visit Mr. Cueva during the summer. He explained that he has researched the schools in the district where he will be relocated, explaining that six of the top ten schools in Arizona are located in that district. He further explained upon his retirement, he wants to move to Texas because of the good school system there. Mr. Cage further testified that if E.C. were to be domiciled with him, according to his military benefits, E.C. would have 100% of his college tuition paid. On cross-examination, Mr. Cage stated that this educational benefit would be available even if he retired.

Cheryl Blackburn, who works with the family assistance program for the army, testified that there will be assistance for the Cage family when they relocate that will help them with finding schools, doctors and any special assistance needed for the family. Ms. Blackburn testified that she has known Mr. Cage since 2001 and that he is a good person.

Mrs. Cage testified that E.C. should not be denied relocation because it is not in the best interest of E.C.’s father. She acknowledged, however, that E.C. would not be able to see her family or his father’s family as much if relocation was allowed. She stated that she would always come back to Louisiana to visit because both she and her husband have family here. She testified that her aunt and cousins also planned to relocate to Arizona. On cross-examination, Mrs. Cage admitted |7that Mr. Cage was eligible for retirement but chooses not to retire for another five years, and that future relocations are almost certain; in fact they could be stationed back in the New Orleans area in a year.

At the conclusion of the hearing, the trial judge ruled against Mrs. Cage’s proposed relocation. This timely appeal followed.

LAW AND DISCUSSION

LSA-R.S. 9:355.12 sets forth the factors to be considered by the court to determine whether relocation should be allowed when the nonrelocating parent objects. These factors are:

(1) The nature, quality, extent of involvement, and duration of the child’s relationship with the parent proposing to relocate and with the nonrelocating parent, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development, taking into consideration any special needs of the child.
(3) The feasibility of preserving a good relationship between the nonrelo-cating parent and the child through suitable visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s preference, taking into consideration the age and maturity of the child.
(5) Whether there is an established pattern of conduct of the parent seeking the relocation, either to promote or thwart the relationship of the child and the nonrelocating party.
(6) Whether the relocation of the child will enhance the general quality of life for both the custodial parent seeking the relocation and the child, including but not limited to financial or emotional benefit or educational opportunity.
(7) The reasons of each parent for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each parent and whether or not the proposed relocation is necessary to [^improve the circumstances of the parent seeking relocation of the child.
(9) The extent to which the objecting parent has fulfilled his or her financial obligations to the parent seeking relocation, including child support, spousal support, and community property obligations.
(10) The feasibility of a relocation by the objecting parent.
(11) Any history of substance abuse or violence by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.

The parent seeking relocation has the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child. LSA-R.S. 9:355.13.

In his extensive oral reasons for judgment, the trial judge first found that the request for relocation was obviously in good faith. He then proceeded to discuss the statutory factors to determine if relocation was in the best interest of E.C. Considering the first factor, the trial judge stated that the child’s relationship with the family members as well as biological parents was “tremendous” and that all parties have great interest in the child and in his well-being. With regard to the second factor, the court found that the three-year-old child’s condition would improve from the relocation since there would be no day care. Noting that there was no expert testimony as to the child’s development or special needs, he found that the child’s needs are being met adequately. With regard to the third factor, the feasibility of preserving a good relationship with the nonrelocating parent, the court found that the testimony showed that the parties would have suitable visitation arrangements in place. He found factor four, the child’s preference, and factor five, the conduct of the parent seeking relocation, were not applicable given the particular facts of this case. With regard to factor six, whether the relocation would enhance the quality of life for the custodial parent and the child, the court [ ¡¡found that there is a better educational system and opportunities for the child if he relocated.

The trial judge did not read all of the other factors but specifically stated on the record that all the factors were considered, that he looked into the chronology of the events involving the child up to that point, and that he has considered the best interest of the child at that point. The court then denied the relocation stating that it was not in the best interest of the child to be taken away from the family members in the stable environment in which he currently resides. The court expounded that it took into consideration the extended family and balanced the equities of both parents and E.C. The court heaped much praise on both parents and their extended families for their past cooperation with each other and for their obvious desire to strongly support and be involved with this child. In addition to all of the other stated reasons for its judgment, the court stated, “But I do have serious reservations about relocation at this point in time for a minor child three years old away from what I consider to be a stable environment, which I consider to be the primary factor in the best interest of the child test as enunciated by Louisiana law.”

On appeal, Mrs. Cage argues that the trial judge committed legal error when he considered the statutory requirements for relocation and stated the stable environment was the “primary factor” in determining the best interest of the child as enunciated by Louisiana law, and ignored the benefits of relocation as required by LSA-R.S. 9:355.13. For this reason, Mrs. Cage urges this court to conduct a de novo review in this matter. Mr. Cueva responds that there was no error of law, but rather the trial court made a factual determination as to the best interest of the | mchild, and as such, his ruling is subject to the manifest error/clearly wrong standard of review.

LSA-R.S. 9:355.12 mandates that the trial court consider the enumerated factors in reaching its decision regarding a proposed relocation. It does not require the court to give preferential consideration to any certain factor. Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094. While a trial court is not required to specifically list each of the enumerated factors, the record must support that it considered the factors in light of the particular evidence presented. Leger v. Leger, 03-419 (La.App. 3 Cir. 7/2/03), 854 So.2d 955. A trial court’s determination in a relocation dispute is entitled to great weight and will not be overturned absent a clear showing of abuse of discretion. Id. Further, a reviewing court may not set aside a trial court’s factual findings in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order for an appellate court to reverse the trial court’s findings: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the trial court’s findings; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Richardson v. Richardson, 09-609 (La.App. 3 Cir. 11/18/09), 25 So.3d 203. On appellate review, if the trial court’s findings are reasonable based upon the entire record, the reviewing court may not reverse even if it is convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Id.

Mrs. Cage asks this court to isolate one statement by the trial judge made in his lengthy reasons for judgment that his decision was made because he gave more weight to the current stable environment of the child than the other enumerated factors to find that the relocation was not in the best interest of the child. While |nthe record is clear that the trial court did make such a statement, the reasons taken as a whole indicate that he considered all of the required factors and balanced them to make a determination as to the best interest of E.C. This finding is clearly supported by the testimony at the hearing. This testimony clearly established that E.C. has a very close relationship with his father and several members of his father’s and mother’s extended family, and that removal to Arizona will place E.C. at such a distance from Mr. Cueva and all of the child’s significant extended family that their contact will be irregular and sporadic. The separated family will lack the proximity necessary for development of true familial relationships. Even Mrs. Cage expressed concern that the relocation would not allow E.C. to visit with her family and Mr. Cueva’s family as frequently. While Mrs. Cage testified that her aunt and cousins would also be relocating to Arizona, we note that there was no testimony from anyone in Mrs. Cage’s family to support this, or to explain how they could assist in maintaining E.C.’s relationship with his father and his father’s family if relocation were allowed.

Additionally, the evidence also showed that Mrs. Cage to a certain extent has a choice of moving. She plainly testified that her husband is able to retire but chooses not to do so at this time, and that upon Mr. Cage’s retirement the couple plans to move to Texas. While there was testimony as to the superiority of the educational system in Arizona as compared to the school E.C. was scheduled to attend at the time of the hearing, there was testimony from Mr. and Mrs. Cage that if they were to stay here, they would pay for E.C. to attend a private school. There appears to be no reason why they could not pay for E.C. to attend a private school in the New Orleans area even if they relocate.

Further, there was testimony that the move to Arizona is not permanent due to the nature of Mr. Cage’s job in the military. Thus, although relocation to |,2Arizona may enhance E.C.’s education in the immediate future, there is no indication as to how long the Cages would be in Arizona.

Mrs. Cage argues that the trial court failed to consider the benefits E.C. will receive because of the relocation, these being a better education and Mrs. Cage’s ability to stop working outside of the home. We find little merit to this argument. The transcript indicates that the trial judge was well aware of these benefits, but in balancing all of the enumerated factors found that the proposed relocation was not in the best interest of E.C. There is a reasonable factual basis for this finding in the record, and there is nothing in the record to show that this finding is clearly wrong.

CONCLUSION

Our thorough review of the record as a whole convinces us that the trial judge did not abuse his discretion in determining that relocation was not in the best interest of the child. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED

CHEHARDY, J., dissents with reasons.

CHEHARDY, J.,

dissents with reasons.

Iil respectfully dissent from the majority. In this case, the trial court did not adequately support his decision to deny Mrs. Cage’s relocation request. I do not find that the trial court actually considered each relocation factor listed in La. R.S. 9:355.12. Thus, the trial court committed prejudicial legal error that materially affected the outcome and deprived a party of substantial rights. Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735. Unlike the majority, I would review this matter de novo, factor by factor, based on the evidence in the record. See: Johnson v. Spurlock, 07-949 (La.App. 5 Cir. 5/27/08), 986 So.2d 724, 727-728.

Upon de novo review, I would reverse the trial court and approve the relocation. Under La. R.S. 9:355.13, the relocating parent must prove the relocation is made in good faith and is in the best interest of the child. The statute further provides that the court shall consider “the benefits which the child will derive either directly or indirectly from an enhancement in the relocating parent’s general quality of life.” The trial judge found and the majority agrees that the relocation by Mrs. Cage is in good faith. In my view, the relocation is also in the best interest of E.C. A review of the facts indicates that while E.C. now enjoys a close relationship with his father and his family, E.C.’s father did not acknowledge paternity until October 25, 2007, well after the boy’s first birthday.

|2It is clear that E.C. has lived primarily with his mother, who has been his primary caretaker, and the mothers’ current marriage has created a stable traditional household, which will benefit E.C. The economic benefit derived from the relocation will allow Mrs. Cage to stop working outside of the home and to spend more time with her son, eliminating the need for non-parental before and after school care programs. Further, Mrs. Cage would be able to personally attend to her son’s medical, physical and emotional needs on a daily basis.

While the relocation clearly diminishes Mr. Cueva’s opportunity to spend time with his son on a weekly basis, the testimony indicates that Mrs. Cage and her husband are committed to maintaining the relationship between her son and Mr. Cue-va. In my view, the testimony indicates that E.C. would derive both direct and indirect benefits from the enhancement in Mrs. Cage’s quality of life due to the relocation. Therefore, I respectfully disagree with the majority.

      . We designate the child by his initials in this opinion to protect his privacy. See La. S.Ct. Rules, Rule XXXII, Section 3.

      . This Consent Judgment was rendered in the proceeding entitled "State of Louisiana, et al versus. Abel Romeo Cueva, Jr.,” No 2007-13885 of Domestic Relations Section 2, Civil District Court, Parish of Orleans, State of Louisiana.

      . LSA-R.S. 9:355.13 provides, in pertinent part: "... In determining the child's best interest, the court shall consider the benefits which the child will derive either directly or indirectly from the enhancement in the relocating parent’s general quality of life.”


source: Caselaw Access Project

author: JUDE G. GRAVOIS, Judge.

license: Public Domain

text:
    STATE of Louisiana in the Interest of S.J.
    No. 10-KA-990.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, Joseph R. McMahon, Jr., Jody J. Fortunato, Elizabeth B. Curen, Assistant District Attorneys, Juvenile Court, Parish of Jefferson, Harvey, LA, for Plaintiff/Appellee.
    Katherine M. Franks, Attorney at Law, Louisiana Appellate Project, Abita Springs, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   JUDE G. GRAVOIS, Judge.

| ^Defendant S.J., a minor, who was adjudicated a delinquent on a charge of aggravated battery, argues on appeal that he received an excessive sentence. For the following reasons, we affirm, finding that the sentence defendant received is not excessive, and remand with instructions for correction of an error patent.

STATEMENT OF THE CASE

On July 21, 2010, the Jefferson Parish District Attorney’s Office filed two delinquency petitions charging S.J. with aggravated battery with a knife, and resisting an officer by refusing to give his name and make his identity known to the arresting officer or providing false information regarding his identity, in violation 14of LSA-R.S. 14:34 and LSA-R.S. 14:108, respectively. The adjudication hearing was held on August 25, 2010. At the conclusion of the hearing, the trial court adjudicated S.J. guilty as charged as to both offenses.

On September 23, 2010, the trial court sentenced S.J. to the Office of Juvenile Justice (“OJJ”) until his twenty-first birthday on the aggravated battery charge. The trial court additionally sentenced S.J. to two years with OJJ on an unrelated burglary charge, and six months with OJJ on the resisting arrest charge, all to run concurrently.

FACTS

The victim, Danielle Waddell, testified at the adjudication hearing that she works as a paramedic for West Jefferson Emergency Medical Services (“EMS”). At approximately 3:00 a.m. on July 17, 2010, Ms. Waddell pulled into the driveway of her home in Marrero, Louisiana, and proceeded to exit her vehicle. As soon as she shut her car door, she “had a knife to her neck” from a man standing behind her. According to Ms. Waddell, the attacker then threatened to rape her, while slowly drawing the knife across her neck, cutting her. Ms. Waddell further testified that she was sure that her attacker was young because of his voice, and that her attacker was taller than she was because she could hear his voice above her ear. She additionally indicated that when she looked down, she saw a flame tattoo on her attacker’s right wrist.

After her attacker said he could bend her over her car, Ms. Waddell head-butted him in an attempt to “get out of the situation.” She then felt the knife against her chest. This movement caused the motion-sensitive lighting under her carport and on her neighbor’s garage to come on. Ms. Waddell’s attacker then ran off under the glare of the lights. She then fell to her knees, turned, and saw her | ^attacker fleeing. She could see that her attacker was a black male wearing dark clothing, a dark shirt with baggy jeans. She then ran inside and immediately covered her neck because she was afraid her carotid artery had been slashed. She then used her work-issued hand-held radio to summons help to her home. The attack left Ms. Waddell with a three- or four-inch cut on her neck and a cut on her chest.

Ms. Waddell testified that a short time later, a Jefferson Parish Sheriffs Office deputy came to her house and told her that they had detained a suspect. The deputy brought Ms. Waddell to a Burger King at the corner of Ames and Lapalco Boulevards, where she positively identified S.J. as the person who attacked her. She was certain of her identification because S.J. was wearing the same clothes as the person who attacked her and the tattoo on his right wrist was the same as the person who attacked her. She also recognized his voice.

Brian Laubenstein testified that he also worked at West Jefferson EMS. While responding to the radio call placed by Ms. Waddell, Mr. Laubenstein noticed a suspicious looking young man “hustling across the street, [who] kept looking over his shoulder like he was — like someone was chasing him or something.” A short time later, Mr. Laubenstein encountered a Jefferson Parish Sheriffs Office deputy. Mr. Laubenstein told the deputy that he had seen a suspicious looking young man heading towards a Burger King at the corner of Ames and Lapalco Boulevards. Mr. Lau-benstein also told the deputy that the young man was wearing “a dark shirt, dark pants, kind of baggy.” At trial, Mr. Laubenstein identified S.J. as the man that he saw heading towards the Burger King.

Deputy Brandon Veal of the Jefferson Parish Sheriffs Office testified that he received information that a black male wearing dark clothing with flame tattoos Ron his wrists had attacked Ms. Waddell. He then located S.J. at the Burger King and detained him. Deputy Veal confirmed that Ms. Waddell positively identified S.J. as the person who attacked her.

Deputy Jessica Bergeron of the Jefferson Parish Sheriffs Office testified that she took Ms. Waddell to the Burger King where Deputy Veal had detained S.J. Deputy Bergeron noted that when Ms. Waddell first saw S.J., she got upset and began to cry. She then positively identified S.J. as the person who attacked her.

ASSIGNMENT OF ERROR

In his sole assignment of error, S.J. contends that his sentence was excessive.

The Louisiana Constitution of 1974, Art. I, Sec. 20, prohibits “cruel, excessive, or unusual punishment.” See also State ex rel. T.S., 04-1111 (La.App. 5 Cir. 3/1/05), 900 So.2d 77, 79. “In considering disposi-tional options, the court shall not remove a child from the custody of his parents unless his welfare or the safety and protection of the public cannot, in the opinion of the court, be adequately safeguarded without such removal.” LSA-Ch.C. art. 901(A); State ex rel. T.S., 900 So.2d at 80. “The court should impose the least restrictive disposition authorized by Articles 897 through 900 of this Title which the court finds is consistent with the circumstances of the case, the needs of the child, and the best interest of society.” LSA-Ch.C. art. 901(B); Id. The commitment of the child to the custody of the Department of Public Safety and Corrections may be appropriate if there is an undue risk that during the period of a suspended commitment or probation the child will commit another crime, the child is in need of correctional treatment or a custodial environment that can be provided most effectively by his commitment, a lesser disposition will deprecate the seriousness 17of the child’s delinquent act, or the delinquent act involved the illegal carrying, use, or possession of a firearm. LSA-Ch.C. art. 901(C).

Much discretion is granted to the court in juvenile matters due to the special nature of the proceedings. However, the court must balance the needs of the child with the best interest of society when setting a term of commitment. State in the Interest of J.G., 94-194 (La.App. 5 Cir. 7/26/94), 641 So.2d 633. On appeal, where excessive commitment is complained of in juvenile proceedings, the record must be reviewed in order to determine whether the juvenile court imposed the least restrictive disposition consistent with the circumstances of the case, the child’s needs, and the best interest of society. LSA-Ch.C. art. 901(B); State v. In The Interest of J.M., 96-801 (La.App. 5 Cir. 1/15/97), 687 So.2d 136, 139, n. 1, writ denied, 97-734 (La.11/21/97), 703 So.2d 1298.

In this case, S.J. was sentenced to custodial placement until his twenty-first birthday, the most restrictive disposition possible. See LSA-Ch.C. art. 898; LSA-R.S. 14:34. The record indicated that S.J. was 15 years old at the time of the offense, resulting in custodial placement for approximately six years.

Ms. Waddell gave a victim impact statement that showed that she was traumatized by the event. She indicated that the aftermath of the incident was “unbearable” to her and that she has to sit in her car for ten minutes when she gets home because of fear.

A predisposition investigation (“PDI”), pursuant to La. Children’s Code arts. 888-891, was done by the Jefferson Parish Juvenile Probation Department, resulting in a report and a supplemental report being submitted to the trial court. Shernell Shepeard from the Jefferson Parish Juvenile Probation Department testified regarding the results of the PDI. She stated that her investigation revealed that the juvenile was “cutting up” in his alternative school, and further exhibited no | ¡^responsibility or remorse for the charges. The trial judge commented further on the PDI reports, noting that the juvenile had been expelled from several schools for his attitude, disrespect, and failure to comply with rules. The supplemental report revealed that the juvenile’s mother exhibited attitudes that did not encourage him to take responsibility for his behavior. The trial judge further noted that a psychological evaluation performed by Dr. Christine B. Powanda recommended placement of defendant, a 15-year-old child, in a secured facility, which in the trial judge’s experience was very rare.

In imposing her sentence on defendant, the trial court indicated:

[Wjhat you did to Ms. Waddell that night is every citizen’s nightmare. Every citizen’s nightmare that after a hard day’s work, as she said of saving other people’s lives, she comes home to her sanctuary, pulls up in her driveway and is confronted by you who puts a knife to her throat and came this close to cutting her aorta and taking her life. And what you said to her was even more chilling than what you did to her. So when she says that she believes your intent was really to rape her, I can understand how she feels that way.

The trial judge further indicated that the circumstances of this case troubled her more than ninety-eight percent of the other cases in her courtroom.

The maximum sentence is not unprecedented in cases before this Court. In State in Interest of L.A., 95-409 (La.App. 5 Cir. 12/13/95), 666 So.2d 1142, the defendant, an approximately sixteen-year old male, was detained by two Jefferson Parish Sheriffs Office deputies for shoplifting. He hit one, managed to knock the other down, and fled for his vehicle. Id. at 1144. Once in his vehicle, he ignored officers’ commands to stop and struck one deputy. The defendant could have left the scene by continuing to back up; instead, he drove forward toward the second deputy, who fired his pistol into the vehicle, striking the defendant.

|9The defendant was adjudicated a delinquent for committing aggravated battery against the deputy, and was sentenced to confinement until his twenty-first birthday. On appeal, the defendant contended that this sentence was excessive. This Court disagreed, concluding simply, “[cjonsider-ing the evidence presented at trial and at the disposition hearing, we cannot say that the sentence for aggravated battery ... [was] excessive.” Id. at 1146-47.

In this case, S.J. was adjudicated a delinquent for committing aggravated battery against Ms. Waddell and was sentenced to confinement until his twenty-first birthday. The record indicates that at approximately 3:00 a.m. on July 16, 2010, S.J. accosted Ms. Waddell in her own driveway, threatened to rape her, drew a knife across her neck, causing injury, and fled only after her motion-sensitive carport lights were activated.

With these facts in mind, we find that the sentence imposed on S.J. was not excessive. This defendant’s conduct was reprehensible, even heinous. S.J. threatened to rape Ms. Waddell, could have easily killed her -with the knife, and did in fact cut her neck and chest, causing injuries. It appears that he only ran away because Ms. Waddell’s carport lights were activated. Moreover, the trial court was aware that defendant had only recently pled guilty to a simple burglary charge. The PDI’s supplemental report and the psychological evaluation reveal that the juvenile’s behavior has escalated from being expelled from school to criminal behavior and a failure to take responsibility therefor. Furthermore, the juvenile showed a lack of remorse and a lack of empathy for his victims. The record shows that the trial judge carefully considered all of the evidence and the applicable guidelines. The trial judge had a clear basis for sentencing the juvenile to custody until his twenty-first birthday as recommended by the reports.

| inFinally, it is noted that LSA-R.S. 14:34 provides that “[w]hoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.” Thus, S.J. could have received a sentence of imprisonment of ten years at hard labor, a much harsher sentence than he actually received, if he had been tried as an adult.

Considering the trial judge’s wide discretion in juvenile matters, and given the particular facts of this case, we find no merit to S.J.’s contention that the trial court abused its discretion in the disposi-tional phase, and find that the sentence imposed is not excessive.

ERRORS PATENT DISCUSSION

This Court has determined that in juvenile cases, LSA-C.Cr.P. art. 920 mandates an errors patent review whether or not defense asks for one. State ex rel. T.S., 04-1111 (La.App. 5 Cir. 3/1/05), 900 So.2d 77, 82.

In the following instance, the transcript and the commitment contain discrepancies. The transcript indicates that the trial court ordered that S.J.’s sentences were to be served concurrently, while the Judgment Ordering Commitment does not so indicate. When there is a discrepancy between the transcript and the commitment, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, we remand this case to the trial court for correction of the Judgment Ordering Commitment to note that defendant’s sentences are to be served concurrently.

CONCLUSION

For the above reasons, we affirm the ruling of the trial court, finding that the sentence defendant received is not excessive. We remand this matter for the trial In court with instructions to correct the judgment ordering defendant’s commitment to note that defendant’s sentences are to be served concurrently, as set forth above.

AFFIRMED; REMANDED WITH INSTRUCTIONS

      . In order to maintain the confidentiality of the proceedings, as required by LSA-Ch.C. art. 412, the juvenile is referred to by his initials.

      . The record contains evidence of three delinquency adjudications of defendant: simple burglary, aggravated battery, and resisting arrest by providing false information to an arresting officer. The delinquency petition on the burglary charge was filed on April 28, 2010. On appeal, defendant challenges only his sentence on the aggravated battery adjudication.

      . The opinion does not specify precisely how old L.A. was at the time of the offenses. However, the opinion explains that "[t]he major part of the sentence was five years detention or until A.H.’s [sic] 21st birthday for aggravated battery.” Id. at 1143.


author: WALTER J. ROTHSCHILD, Judge.

text:
    GARDEN LAKES CONDOMINIUM HOMEOWNERS ASSOCIATION, INC. v. Kenneth PERRIER.
    No. 10-CA-1016.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Regina S. Wedig, Carlee J. White, Attorneys at Law, Amite, LA, for Plain-tiffAppellee.
    David L. Neeb, Attorney at Law, Me-tairie, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and JUDE G. GRAVOIS.
   WALTER J. ROTHSCHILD, Judge.

|2In this suit to enforce a lien, defendant appeals from a ruling of the trial court assessing attorney’s fees. We affirm.

Garden Lakes Condominium Homeowners Association, Inc. filed the instant action against Kenneth Perrier seeking to recover amounts due under the condominium association’s by-laws. Garden Lakes alleged that it was entitled to $5,350, plus costs, interest and attorney’s fees which represented two liens filed against defendant’s property as well as association dues, assessments and late fees. Defendant failed to appear or answer this pleading, but instead filed a rule to tax costs alleging that plaintiff was demanding costs and fees that were excessive. Garden Lakes opposed the rule as premature, as no party had yet been cast in judgment. Further, Garden Lakes argued that the amounts sought were reasonable and attached invoices and an affidavit supporting the claim. Following a hearing, the trial court rendered judgment in favor of Garden Lakes and against defendant in the amount of $6,867.31 in attorney’s fees and $472.50 in court costs. | ^Defendant now appeals from this ruling.

On appeal, defendant does not dispute that Garden Lakes is entitled to reasonable attorney’s fees, but argues that the fees awarded here are greater than the main demand and are excessive. Defendant also contends that this case involves no complicated facts or law, and only required a brief court appearance.

In this Court’s decision in Peyton Place, Condominium Associates, Inc. v. Guastella, 08-365 (La.App. 5 Cir. 5/29/09), 18 So.3d 132, 146-47, we stated as follows:

It is manifest in Louisiana jurisprudence that attorney’s fees are not recoverable unless authorized by contract or statute. Attorney’s fees are not awarded to make the injured party whole, but rather to discourage a particular activity or activities on the part of the other party. The trial court is vested with much discretion in determining the amount of attorney’s fees, and the amount should not be disturbed on appeal absent an abuse of discretion. Factors which are to be taken into consideration in determining the reasonableness of attorney’s fees include the ultimate result obtained, the extent and character of work performed, the responsibility incurred, the number of court appearances made, intricacies of the facts involved, the importance of the litigation, legal knowledge and skill of the attorneys, and the diligence and skill of the attorneys.
(Citations omitted.)

In support of its claim for attorney’s fees, Garden Lakes relies on the provisions of the Louisiana Condominium Act, specifically, La. R.S. 9:1123.115 which provides in part as follows:

The association shall have a privilege on a condominium parcel for all unpaid or accelerated sums assessed by the association and interest thereon at the rate provided in the condominium declaration or, in the absence thereof, at the legal interest rate. This privilege shall also secure reasonable attorney fees incurred by the association incident to the collection of the assessment or enforcement of the privilege.
(Emphasis ours.)

|4An appellate court applies the manifest error standard of review for an award of attorney fees. Chrysler Financial Co., L.L.C. v. Gene Ducote Automotive, L.L.C., 05-217 (La.App. 5 Cir. 10/6/05), 916 So.2d 1187, 1189. Thus, we must decide whether the award in this case is reasonable.

The record in this case contains more than ample evidence to support a finding that the attorney’s fees awarded in this case were reasonable. During the proceedings on defendant’s rule to tax costs, counsel for Garden Lakes submitted copies of invoices generated in pursuing the claim for unpaid assessments and fees against Mr. Perrier. In December of 2008, counsel began receiving information on the unpaid amounts and prepared demand letters to Mr. Perrier. The invoices also indicate that counsel unsuccessfully attempted to set up a payment plan with Mr. Perrier which required approval of the association board. Counsel then prepared the lien documents and subsequently prepared and filed the petition to enforce the liens. According to the record, repeated service attempts on Mr. Perrier was necessary, and during this time, counsel for Garden Lakes corresponded with the association board. Once ownership of the property was transferred, counsel worked with the title company regarding the status of the liens. Finally, counsel defended defendant’s rule to tax costs and attempted to compromise on the amount of attorney’s fees. The final invoice was dated April 2, 2010, over 16 months after the first invoice was generated.

The record also contains an affidavit executed by Regina Wedig, counsel for Garden Lakes, who stated that she billed Garden Lakes the amount of $6,867.31 for attorney’s fees and that the court costs in the matter amounted to $472.50. While we take note that the amount of attorney’s fees generated in this case exceeded the amount of the main demand, we also find that the amount of time and effort to collect the amounts due from • defendant warranted the amount. Although | ^.defendant contends that the fee should be limited to 25% of the main demand, we find no such provision in the statute authorizing the fee. The statute allows for reasonable attorney’s fees, and our review of the record in this case indicates that the fees awarded were reasonable and within the discretion of the trial court.

For the reasons stated herein, we find no manifest error in the trial court’s award of attorney’s fees and costs in this case. The judgment is therefore affirmed. Defendant is to bear all costs of this appeal.

AFFIRMED

      . The record indicates that the suit was being defended by Jack Bryant, the developer and mortgage holder on the property, after execution of a dation en paiement by Kenneth Perrier.


author: SUSAN M. CHEHARDY, Judge.

text:
    Albert J. RUSCHEL, Jr. v. Mary Ann ST. AMANT and Edgar J. St. Amant, Jr. and American National Property & Casualty Company.
    No. 11-CA-78.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Irl R. Silverstein, David A. Silverstein, Attorneys at Law, Gretna, LA, for Plaintiff/Appellant, Albert J. Ruschel, Jr.
    James R. Nieset, Jr., Michael Madere, Ralph Aucoin, Jr., Porteous, Hainkel & Johnson, Attorneys at Law, New Orleans, LA, for Defendant/Appellee, American National Property & Casualty Company.
    Panel composed of Judges SUSAN M. CHEHARDY, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

12Albert Ruschel appeals a summary judgment dismissing his personal injury suit. We affirm.

FACTS

Ruschel, a licensed electrician, was working at the residence of Mary Ann St. Amant and Edgar St. Amant in Crown Point, Louisiana, on March 7, 2009. He needed to access the electrical facilities on the outside of the residence, but to do so he had to climb over a barge hatch cover that was lying flat on the ground outside the house. In attempting to climb over the barge hatch cover he slipped and fell, striking the ground and sustaining injuries to his back.

Ruschel filed suit against the St. Amants and their insurer, American National Property & Casualty Company (ANPAC). The defendants brought a motion for summary judgment, on the ground that the plaintiffs causes of action for negligence and/or premises liability against the St. Amants lack any factual support.

In their Statement of Uncontested Material Facts, the defendants asserted that the plaintiff testified in his deposition as follows: He had been working at the St. Amants’ residence for several days before the day of the accident. The barge | ¡¡hatch cover had been in the same place outside the house during that time. He had walked across the barge hatch cover a number of times while working in the area. On the morning of March 7, 2009, he slipped on the barge hatch cover. The barge hatch cover was obvious, was not hidden, and the plaintiff was able to see it. It was slippery with dew when he arrived, so he threw sand.on it. The dew had been a factor all morning and he had been working for two hours before he fell. He had slipped more than once on the barge hatch cover prior to his fall, but caught himself.

The defendants argued that the plaintiff was aware of the position of the barge hatch cover, which was obvious and not hidden; he had attempted to use sand to help his footing; and he had nearly slipped on it a number of times before he fell. The defendants contended that the barge hatch cover, as a matter of law, did not pose an unreasonable risk of harm to the plaintiff, and that the plaintiff cannot not impute any fault to the St. Amants by way of direct or premises liability. They argued the claims must be dismissed because the plaintiff cannot carry his burden of proof to impose any liability on the defendants.

In opposition to the motion for summary judgment, the plaintiff asserted he would be able to satisfy the elements of proof for premises liability. Specifically, he cited the deposition testimony of Mr. St. Amant, who testified he placed the barge hatch cover there to cover the area as a walkway from the house to the shed. He also said there was some etching on the fiberglass hatch cover, but acknowledged it was probably worn down because the hatch cover was old. The plaintiff contends this testimony satisfies the burden of proof that the damage could have been prevented by the exercise of reasonable care, and that the defendant failed to exercise such care.

|4In his affidavit in opposition to the motion for summary judgment, the plaintiff stated that electrical work to be performed was exterior work on the side of the residence; that the only access to the work area was over the fiberglass barge hatch cover, which had been placed on the ground by defendant Edgar St. Amant; that the defendants provided neither alternative access nor offered to remove the hatch cover; and that when he determined the hatch cover’s fiberglass surface was wet with dew, he took preventive measures by placing sand on the surface to provide additional traction.

After a hearing, the trial judge granted the motion for summary judgment without giving either oral or written reasons for judgment. The plaintiff appeals.

On appeal the plaintiff asserts the trial court erred in granting summary judgment in favor of the defendants by finding that the movers were entitled to judgment as a matter of law.

LAW AND ANALYSIS

Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2).

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The initial burden of proof remains with the mover to show that no genuine issue of material fact exists. La. C.C.P. art. 966(C)(2). If the mover has made a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue | firemains. Id. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Underwood v. Best Western Westbank, Inc., 04-243, p. 5 (La.App. 5 Cir. 8/31/04), 881 So.2d 1271, 1274.

On appeal summary judgments are reviewed de novo. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. An appellate court asks the same questions as the district court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id.

A “genuine issue” is a “triable issue.” More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.”
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. [Citations omitted.]

Smith, 93-2512 at 27, 639 So.2d at 751.

La. C.C. art. 2317.1 provides:

The 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 Rhave been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

This article effectively turns strict liability into negligence claims. Leonard v. Parish of Jefferson, 05-32, p. 4 (La.App. 5 Cir. 4/26/05), 902 So.2d 502, 504. In addition, La. C.C. art. 2317.1 actions require proof that the defendant had custody of the thing causing the injury, that the thing contained a defect — that is, a condition creating an unreasonable risk of harm, and that the defective condition caused plaintiffs injury. Id.

Not every defect gives rise to liability. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. The single fact that a pedestrian falls does not automatically elevate the condition of a sidewalk to that of an unreasonably dangerous defect. Several factors may be considered in determining whether a hazard presents an unreasonable risk of harm. The degree to which the danger is evident to the plaintiff is one factor in determining whether the condition is unreasonably dangerous.
Generally a defendant has no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained of condition should be obvious to all, the condition may not be unreasonably dangerous and the defendant may owe no duty to the plaintiff. Specifically, in a trip and fall case, the duty is not solely with the landowner. A pedestrian has a duty to see that which should be seen and is bound to observe whether the pathway is clear. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care or which was as obvious to a visitor as it was to the landowner.
We acknowledge that whether a defect presents an unreasonable risk of harm “is a disputed issue of mixed fact and law or policy that is peculiarly a question for the Injury or trier of the facts.” Further, causation is a question of fact. Nevertheless, to overrule a grant of summary judgment we must find a material fact still at issue. A material fact is one whose existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. [Citations and footnotes omitted.]

Jeansonne v. South Cent. Bell Telephone Co., 08-568, pp. 8-10 (La.App. 5 Cir. 1/13/09), 8 So.3d 613, 619-20.

In this case Mr. St. Amant had deliberately placed the hatch cover to serve as a walkway next to his house. The plaintiff knew it was there because he had to cross it to access the area on which he was working. He was aware it was slippery from dew on that day; he even poured sand over it to try to make it less slippery. He almost slipped several times before the time when he fell and was injured.

The plaintiff asserts that despite his knowledge that the hatch cover was slippery, there was no other way to access his work area. He argues that his knowledge of the condition is not a total bar to recovery. He contends that the St. Amants had a duty to either warn of the condition’s existence or to correct it.

Under the circumstances here, we find the trial court did not err in granting summary judgment. The plaintiff clearly was aware of the slippery condition and took measures himself to deal with it, by pouring sand on the surface of the hatch cover. Although the hatch cover lay over the area the plaintiff had to use to access the house for his electrical work and he knew the surface was slippery, he made no effort to demand the hatch cover be removed. Under these circumstances, we find the barge hatch cover did not pose an unreasonable risk of harm. See Stone v. Hebert, 99-1394 (La.App. 5 Cir. 5/17/00), 762 So.2d 220.

Accordingly, the trial court did not err in granting summary judgment.

IsDECREE

For the foregoing reasons, the judgment is affirmed. Costs of this appeal are assessed against the plaintiff.

AFFIRMED


text:
    Michael BENNETT v. RYDER TRUCK RENTAL, INC.
    No. 10-CA-1049.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 24, 2011.

      Guy D. Perrier, Rodney J. Lacoste, Jr., Michael J. Gautier, Jr., Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Jay Russell Sever, Katie A. Whitman, Attorneys at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges MARION F. EDWARDS, WALTER J. ROTHSCHILD, and HILLARY J. CRAIN, Pro Tempore.
   WALTER J. ROTHSCHILD, Judge.

bThis is an appeal by third party defendant, Sentry Insurance Company, from a summary judgment rendered in favor of Ryder Truck Rental, Inc. on the issue of insurance defense and indemnification. For the reasons stated herein, we affirm.

On July 28, 2004, Michael Bennett filed this Petition for Damages against Ryder Truck Rental, Inc. alleging that on July 24, 2003, he was operating a Ryder Truck in the course and scope of his employment with Big Shot Beverage, Inc. While he was emptying the truck, the side truck door broke and slid down onto plaintiffs neck, causing him injury. Plaintiff alleged that Ryder was liable for negligence in failing to inspect and to maintain them vehicles and for breach of the contract between the parties. Plaintiff further alleged that the truck was unreasonably dangerous and that |sRyder was also liable as manufacturer of the truck pursuant to Louisiana Product Liability Law.

Ryder answered the petition denying the allegations, and asserted that the cause of the accident was the negligence of plaintiff. Ryder also brought a Third Party Demand against Sentry Insurance Company (“Sentry”) which issued a commercial general liability policy to National Beverage Corporation. Ryder alleged that Big Shot Beverage, Inc./Winnsboro Beverage Packers, Inc./National Beverage Corporation/Shasta Beverages, Inc. are related/associated corporations. Ryder alleged that it was an additional insured on this policy with respect to all vehicles leased to Sentry’s insured. Ryder also alleged that at the time of the accident, there was a Truck Lease and Service Agreement (“TLSA”) for the subject vehicle between Ryder and Shasta Beverages, Inc. in which Shasta agreed to defend and indemnify Ryder for any claims made against it.

Sentry refused to provide Ryder with a defense or indemnity, on the basis that plaintiffs product liability claims are excluded from coverage under the policy. Sentry further alleged that Ryder failed to-produce a signed contract wherein Sentry agreed to defend and indemnify Ryder.

Thereafter, Ryder moved for summary judgment on the issue of whether Sentry Insurance owes a defense and indemnification to Ryder based on plaintiffs allegations in its petition. Sentry Insurance opposed the motion and also brought a Cross Motion for Summary Judgment on this issue.

This matter was heard by the trial court on August 5, 2010, and the court rendered judgment granting summary judgment and ordering that Sentry Insurance Company provide Ryder Truck Rental, Inc. with defense 14and indemnification regarding the underlying claims of plaintiff Michael Bennett. The trial court denied Sentry’s cross-motion on the same issue. The trial court also stated that this is a final judgment. Sentry now appeals from this judgment on the basis of two assignments of error.

Sentry first contends that the trial court erred in ruling that Ryder was an additional insured under the policy Sentry issued to National Beverage Corporation. Sentry also contends that the trial court erred in failing to apply the workers’ compensation exclusion in the subject policy.

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The summary judgment procedure is favored in Louisiana and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910. Thus, appellate courts must ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Hood v. Cotter, 08-0215 (La.12/2/08), 5 So.3d 819, 824.

In support of its motion, Ryder submitted the Commercial Auto Declarations page of an insurance policy issued by Sentry to National Beverage Corporation as first named insured. The coverage period includes the date of plaintiffs accident. An additional named insured under the | .¡policy was Winnsboro Beverage Packers Inc., the predecessor corporation to Big Shot Beverage, Inc., plaintiffs employer. Ryder also submitted a copy of a document from the Louisiana Secretary of State, Commercial Division, indicating that Winnsboro Beverage Packers, Inc. changed its name to Big Shot Beverages, Inc. in March of 2003.

The insurance policy in the record also contains a Blanket Additional Insured Endorsement which provides in part as follows:

It is agreed that the policy shall include as an insured any person, organization, state or other political subdivision, trustee or estate for whom a named insured is obligated by virtue of a written contract or agreement to provide insurance of the type afforded by this policy.

In order to meet its burden of proving that Big Shot was obligated by contract to provide Ryder with liability insurance, Ryder also submitted a copy of a “Ryder Truck Rental Truck Lease and Service Agreement,” referred to in the record as “TLSA.” This agreement was executed on January 7, 1998 between Ryder and the Customer, Shasta Beverages, Inc. In this agreement, Ryder required Customer to maintain automobile liability insurance covering both Ryder and Customer as insureds. Ryder agreed to file evidence of automobile liability insurance with governmental authorities. However, the agreement also provided that:

Customer agrees to indemnify, defend and hold harmless from all claims, causes of action, suits and damages arising out of filing such documents for vehicles ...

According to the agreement, the lease specifically covered vehicles listed on a document attached to the TLSA. The document, entitled “Schedule A” was dated May 26, 1998 and stated it applied to the agreement between Ryder Truck Rental, Inc. and Big Shot Beverage, Inc. There is no |Bdispute that the vehicle operated by plaintiff on the day of the accident was listed on and included in this document.

Ryder also submitted an affidavit from one of its employees, Trip Janney, who stated that the date on Schedule A attached to the January 7, 1998 TLSA contained a typographical error. It should have been dated January 7, 1998 rather than May 26,1998.

In its opposition to Ryder’s motion, Sentry submitted a copy of its entire commercial general liability policy listing National Beverage Corporation as well as Shasta Beverages Inc. and Winnsboro Beverage Packers Inc. as named insureds.

A review of the documentation in the record in this case indicates that Ryder entered into an agreement with Shasta Beverages, Inc. on January 7, 1998 to provide vehicles. This agreement obligated Shasta to maintain automobile liability insurance covering both Ryder and Shasta as insureds for the ownership, mainte-nanee, and operation of certain vehicles listed on an attachment to the agreement, “Schedule A.” This attachment lists as covered the vehicle being operated by plaintiff on the date of the accident. Although “Schedule A” bears a different date than the primary agreement, evidence in the record indicates this was a typographical error and that the “Schedule A” attached to the agreement should have borne the same date, January 7, 1998. Sentry did not submit countervailing evidence regarding the existence of the agreement or the attachments thereto.

Sentry argues on appeal that the trial court erred in granting summary judgment in this case as Ryder was not listed as an insured on the policy issued to National Beverage Corporation and its subsidiaries. Sentry contends that the policy’s blanket additional insured endorsement does not |7apply because the written agreement (the “TLSA”) submitted by Ryder does not make Ryder an additional insured.

The insurer’s duty to defend suits brought against its insured is determined by the allegations of the plaintiffs petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. Elliott v. Continental Cas. Co., 06-1505, p. 5 (La.2/22/07), 949 So.2d 1247, 1250. Accordingly, the insurer’s obligation to defend suits against its insured is generally broader than its obligation to provide coverage for damage claims. Id. If, assuming all of the allegations of the petition to be true, there would be both coverage under the policy and liability of the insured to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Elliott, 06-1505 at p. 5, 949 So.2d at 1250. Thus, unlike an indemnity agreement, an insured’s duty to defend arises whenever the pleadings against the insured disclose even a possibility of liability under the policy. Alwell v. Meadowcrest Hosp., Inc., 07-376 (La.App. 5 Cir. 10/30/07), 971 So.2d 411, 414.

The insurance policy in this case contains a blanket additional insured endorsement which provides that the policy will include as an insured an organization that has a written agreement with a named insured to provide coverage. The policy also provided that National Beverage Corporation, Shasta, and the predecessor corporation of Big Shot Beverages, Inc. are all named insureds.

The record also shows that at all pertinent times hereto, a written agreement existed between Shasta and Big Shot Beverages and Ryder by which Ryder was to be maintained as an insured on the policy. Although there is a discrepancy between the dates on the agreement and on the | ¡^attachments thereto, we fail to find that this invalidates the agreement to list Ryder as an insured. We find that the affidavit submitted by Ryder is sufficient to explain the discrepancy.

In addition, the agreement clearly provides that Big Shot Beverages, Inc., as Ryder’s customer, agreed to provide a defense and indemnification to Ryder for any claims brought against it. Accordingly, we find that Ryder met its burden of proof on its motion for summary judgment that it is entitled to a defense and indemnification pursuant to the agreement for the claims filed against Ryder by Bennett. We also note, however, that the agreement does not require indemnification in the event of a determination of Ryder’s own negligence.

Sentry next argues that the trial court erred in failing to apply the workers’ compensation exclusion contained in the policy. The accident sustained by plaintiff was clearly work-related. Sentry contends that plaintiff had been paid workers’ compensation benefits based on a separate policy issued by Sentry to plaintiff’s employer, Big Shot Beverages, Inc.

In support of its argument, Sentry cites to Quick v. Ronald Adams Contractor, Inc., 03-751 (La.App. 5 Cir. 11/25/03), 861 So.2d 278, in which a panel of this Court upheld the application of workers’ compensation exclusion. In that case, an injured employee sued his employer in tort after having obtained workers’ compensation benefits. At the time of the injury, the employer held both a workers’ compensation policy and a general liability policy issued by the same insurer, and the liability policy contained a workers’ compensation exclusion. This Court determined that there could 19be no coverage under the liability policy because the injury was sustained in the course and scope of his employment. However, this Court found that the insurer nevertheless had a duty to defend plaintiffs employer.

In the present ease, Bennett made a claim against his employer for workers’ compensation benefits, but filed the tort suit against a third-party defendant. This Court’s decision in Quick is therefore distinguishable, although we note that a duty to defend was found even under the facts of that case.

La. R.S. 23:1101 governs suits against third persons by employees and employers and provides in pertinent part:

When an injury or compensable sickness or disease for which compensation is payable under this Chapter has occurred under circumstances creating in some person (in this Section referred to as “third person”) other than those persons against whom the said employee’s rights and remedies are limited in R.S. 23:1032, a legal liability to pay damages in respect thereto, the aforesaid employee or his dependents may claim compensation under this Chapter and the payment or award of compensation hereunder shall not affect the claim or right of action of the said employee or his dependents, relations, or personal representatives against such third person, nor be regarded as establishing a measure of damages for the claim; and such employee or his dependents, relations, or personal representatives may obtain damages from or proceed at law against such third person to recover damages for the injury, or compensable sickness or disease.

Pursuant to Louisiana law, an injured plaintiff may proceed to recover damages in a tort action against a tortfeasor and still maintain a workers’ compensation action against his employer. La. C.C. Art. 2315; Jones v. LeDay, 373 So.2d 787, 789 (La.App. 3 Cir.1979). The fact that the injured person is an employee of another does not affect the duties and obligations linof a third person who through his own fault injures another to respond to the injuries of that person in damages.

Plaintiff filed the present tort suit against a third party, Ryder, and this suit therefore does not fall within the exclusivity of the workers’ compensation statute nor is coverage under Sentry’s policy excluded based on the fact that this was a work-related accident. As stated in this Court’s opinion in Quick, the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. The insurer is obligated to pay the insured’s expenses in defending an action, where the pleadings allege coverage, even though in fact there is no coverage. American Home Assurance Company v. Czarniecki, 255 La. 251, 230 So.2d 253 (La.1969).

After a review of the record in this case and all applicable law, we find no error in the trial court’s judgment finding that Sentry is obligated as a matter of law to defend Ryder in the tort suit filed by Bennett. The issue of indemnity will be determined once the merits of Bennett’s claims are determined. In any event, we find that Ryder has met its burden of proving it is an insured under the Sentry insurance contract by virtue of an agreement between Ryder and Sentry’s named insured. Further, we find that the workers’ compensation exclusion in the policy does not apply to the third-party tort claims asserted by plaintiff in this action. For these reasons, the judgment of the trial court is affirmed. Sentry Insurance Company shall bear all costs of this appeal.

AFFIRMED

      . Defendant initially brought an exception of prescription which was granted by the trial court. However, on appeal of this ruling, a panel of this Court reversed, finding that the pleading had been timely filed by facsimile to the Clerk’s office on July 24, 2004.

      . Although the January 7, 1998 lease agreement lists the corporate name of Shasta as Ryder’s customer, Schedule A lists the customer as Big Shot Beverages, Inc. and these corporations were related and were listed in the Sentry policy as named insureds.