author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Patricia Rearick PETRIE, Joanne Rearick Belflower and Linda Rearick Tillman v. Dixie Rearick MICHETTI.
    No. 10-CA-122.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 11, 2011.

      Mark W. Needham, Attorney at Law, Metairie, LA, for Plaintiff/Appellant.
    Joaquin Shepherd, Attorney at Law, New Orleans, LA, for Defendant/Appellee.

      Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   FREDERICKA HOMBERG WICKER, Judge.

[ 2This is a civil matter. Plaintiff/appellant Maxine Rearick appeals a judgment of the trial court finding that an act of donation of immovable property Ms. Rear-ick executed in favor of her daughter Dixie Michetti was valid. Ms. Rearick contends that the act of donation was made under duress. Alternatively, ■ Ms. Rearick contends that the act of donation should be nullified because Ms. Michetti was guilty of cruel treatment towards her. For the reasons that follow, we affirm the judgment of the trial court.

PROCEDURAL HISTORY

Ms. Rearick filed a Petition for Recognition as Owner of Immovable Property, for Injunction, and for Revocation of Donation for Ingratitude on March 9, 2009 alleging the following: (1) in December 2007, she was the sole owner of immovable property bearing municipal address 729 Cedar Avenue, Metairie, LA, (2) on December 19, 2007, Ms. Rearick’s daughter Ms. Michetti coerced her to | ¡¡donate the Cedar Avenue property, (3) Ms. Rearick agreed to donate the property to Ms. Michetti because Ms. Michetti threatened to place her in a nursing home, (4) the donation was made under duress and is therefore absolutely null, (5) alternatively, Ms. Rearick is entitled to revoke the donation pursuant to La. C.C. art. 1556 because Ms. Michetti was guilty of cruel treatment towards her.

That same day, the trial court issued a preliminary injunction restraining Ms. Mi-chetti from “verbally and physically abusing, harassing, injuring plaintiff, secreting [sic] plaintiffs medication, and interfering with plaintiffs freedom of movement.”

Trial in this matter was held on March 18, 2009. By judgment dated October 23, 2009, the trial court dismissed Ms. Rear-ick’s petition with prejudice. The trial court also ruled that the December 19, 2007 act of donation transferring ownership of the Cedar Avenue property to Ms. Michetti was valid. This appeal followed.

FACTS

The following facts were elicited from testimony at trial:

Ms. Michetti testified that she moved into the Cedar Avenue property with Ms. Rearick in August 2000. Before that time, she had been living with one of her daughters in a condominium. Ms. Michetti was her mother’s primary caregiver until 2005.

Ms. Michetti recalled an incident in 2005 when she got into a disagreement with her sister Patricia Petrie over their mother’s care. Ms. Michetti testified that Ms. Pe-trie invited a sick, elderly relative of Ms. Rearick’s to stay in the Cedar Avenue property. After the invitation, Ms. Mi-chetti told Patricia to not invite people to stay at the Cedar Avenue property. Ms. Petrie and Ms. Rearick became upset. Ms. Michetti also became upset and left the Cedar Avenue home. Ms. RMichetti testified that when she returned home one or two days later, she got into a physical altercation with Ms. Petrie and her other two sisters. Ms. Michetti further testified that one of her sisters was trying to hit her. Ms. Michetti called the police. When the police arrived, officers ordered Ms. Michetti to leave the Cedar Avenue property.

Ms. Michetti eventually returned to the Cedar Avenue home, over the protestations of her sisters. Ms. Michetti testified that she agreed to resume her duties as her mother’s caregiver approximately one month after the altercation with her sisters. According to Ms. Michetti, she told her mother that she would move out of the Cedar Avenue property if her mother did not donate the property to her because she could not afford to be a caregiver without assurances that she would not be forced to leave. Ms. Michetti denied telling her mother that she would place her in a nursing home if her mother did not donate the property to her.

According to Ms. Michetti, her mother has problems eating, swallowing, drinking, and taking medication. Ms. Michetti indicated that she never controlled her mother’s medication, nor did she ever keep her sisters from visiting her mother. She did admit that she locked up her mother’s medication on the advice of her mother’s home health nurse because she was worried that her mother would take elevated doses of her medication. Ms. Michetti testified that her mother eventually asked her to leave the Cedar Avenue property after this suit was filed. Ms. Michetti testified that she never sought any consideration or money for the caregiver services she provided, that she never restricted her mother’s movements, and that she always properly administered her mother’s medicine. She further testified that she never prevented her mother from using her walker, that she never kicked a footstool out from underneath her mother’s legs, and that she never berated, abused, or yelled at her mother. Ms. Michetti admitted that she frequently |fi“spoke loudly” to Ms. Rearick but insisted that was necessary because Ms. Rearick is hard of hearing.

Ms. Rearick testified that Ms. Michetti moved in with her when Ms. Michetti came back from Oregon, even though she had initially denied her daughter’s request to move in. Ms. Rearick additionally testified that at the time Ms. Michetti moved into the Cedar Avenue property, she did not need caregiver assistance. According to Ms. Rearick, she donated the Cedar Avenue property to Ms. Michetti because she “felt sorry for her.” Ms. Rearick testified that her daughter was guilty of “cruel treatment” towards her. Ms. Rearick recalled that her daughter would kick a stool out from underneath her feet when her feet were propped up on the stool. Ms. Rearick additionally indicated that her daughter would place a blood pressure monitor on her stomach against her wishes. Ms. Rearick also recalled that Ms. Michetti yelled at her frequently and restricted her visitors, including her other daughters. Ms. Rearick testified that she was forced to move in with one of her daughters for a short period of time. Ms. Rearick indicated that Ms. Michetti told her that she would put her in a nursing home if she did not donate the Cedar Avenue property. Ms. Rearick testified that her daughter’s actions were offensive to her.

Ms. Rearick testified that she recalled being in an attorney’s office and that she recalled signing the act of donation in the attorney’s and Ms. Michetti’s presence. She also recalled that the attorney and Ms. Michetti signed the document. Ms. Mi-chetti testified that the two witnesses whose signatures also appear on the act of donation were not present when she signed the act of donation. Ms'. Rearick did not tell her other daughters that she had donated the property to Ms. Michetti until she was admitted to the hospital for high blood pressure. Ms. |sRearick recalled meeting with an elder protective services case worker on March 2, 2009. She did not know who called elder protective services.

On cross-examination, Ms. Rearick admitted that from 2000 to 2005, her daughter applied for and picked up all her medicines, was a constant companion, sometimes cooked meals, bought groceries, helped her getting dressed, performed various household tasks, and took her to all of her hospital and doctor appointments.

Joanne Belflower, another of Ms. Rear-ick’s daughters, testified about an incident when Ms. Rearick asked her to spend a day at the Cedar Avenue house. Ms. Bel-flower agreed, but when she learned that Ms. Michetti would be present as well, she refused to spend any time with her mother and left. That evening, Ms. Rearick was admitted to the emergency room. Whilst in the hospital, Ms. Rearick told Ms. Bel-flower that she had donated the Cedar Avenue property to Ms. Michetti.

Ms. Belflower testified that she visited her mother frequently. She and Ms. Mi-chetti gradually reached an arrangement where they would not be in the Cedar Avenue house at the same time. Ms. Bel-flower indicated that she heard Ms. Mi-chetti yell at their mother over the phone and that Ms. Michetti had failed to feed their mother occasionally.

On cross-examination, Ms. Belflower testified she had called elder protective services regarding her mother’s care approximately 40 times. She was able to review an incident report that an elder protective services case worker created following a visit on March 2, 2009. Ms. Belflower testified that there were inaccuracies in the case worker’s report. The case worker ultimately concluded in the report that the report of abuse was unsubstantiated.

17Patricia Petrie testified .that she moved from Mission, Texas to Kenner to care for her mother after Ms.'Michetti moved out. According to Ms. Petrie, before moving to Kenner, she asked Ms. Rearick if she was a “prisoner” in her own home, to which Ms. Rearick replied ‘Tes.” She confirmed that she and Ms. Michetti had gotten into a fight in 2005 when she invited their mother’s sister to visit from Pennsylvania.

At the time of trial, Ms. Petrie was the primary caregiver for her mother. Ms. Petrie testified that her mother was able to make simple meals but that she could not use the stove. Her mother walks with the aid of a walker and dresses herself. On cross-examination, Ms. Petrie admitted that she had never seen Ms. Michetti mistreat her mother. She also admitted that she had been angry at her mother after she learned of the donation and admitted to leaving an angry phone message played at trial.

Valerie Oxner, the attorney who prepared the act of donation, testified that she had known Ms. Rearick for several years before Ms. Rearick donated the property to Ms. Michetti. According to Ms. Oxner, she and Ms. Rearick had discussed donating the Cedar Avenue property to Ms. Michetti on several occasions over a two or three-year period before Ms. Rearick executed the act of donation. These discussions took place at Ms. Oxner’s office and over the telephone. Ms. Oxner testified that, during these conversations, Ms. Rear-ick told her that she wanted to donate the Cedar Avenue property to Ms. Michetti because Ms. Michetti had taken care of her for many years. Ms. Rearick was concerned about losing all her rights in the Cedar Avenue property. Ms. Oxner and Ms. Rearick thereafter discussed the possibility of Ms. Rearick retaining a usufruct in the property.

IsMs. Oxner testified that Ms. Rearick finally decided to donate the property to Ms. Michetti in 2007. Before executing the act of donation, Ms. Rearick and Ms. Michetti had a meeting at Ms. Oxner’s office. Ms. Oxner testified that during the 2007 meeting, there was nothing that led her to believe that Ms. Rearick was under duress. Ms. Oxner also indicated that, during the execution of the act of donation, both of the witnesses who signed the document were present in the room. Ms. Ox-ner asked Ms. Rearick if she had read the act of donation. Ms. Rearick thereafter indicated to Ms. Oxner that she had read the act of donation and that she understood it.

Dr. Robert Ryan, Ms. Rearick’s primary care physician for the past twenty-five years, testified that Ms. Rearick suffers from Parkinson’s disease, hypertension, arthritis, and mild dementia. Dr.. Ryan further testified that he had discussed Ms. Rearick’s family situation with Ms. Rear-ick on several occasions. According to. Dr. Ryan, Ms. Rearick’s family situation over the last several years has been “strained.” Dr. Ryan testified that he had seen no evidence that Ms. Michetti mistreated Ms. Rearick.

A letter signed by Dr. Ryan was introduced into the record. In the letter, Dr. Ryan indicated that he could not recall an occasion on which he noted any evidence of physical or emotional abuse of Ms. Rear-ick, The letter further indicates that Dr. Ryan had “seen only care and concern for [Ms. Rearnick’s] well being and comfort” on Ms. Michetti’s part.

Ashley Oglesby, Ms. Michetti’s son-in-law, testified that he had observed Ms. Michetti and Ms. Rearick together on many occasions. He never saw any evidence of abuse towards Ms. Rearick. In Mr. Oglesby’s opinion, Ms. Michetti did a good job of providing for Ms. Rearick.

IflSTANDARD OF REVIEW/FIRST SPECIFICATION OF ERROR

Ordinarily, in civil cases, the appropriate standard for appellate review of factual determinations is the manifest error/clearly wrong standard, which precludes the setting aside of a district court’s finding of fact unless, that finding is clearly wrong in light of the record reviewed in its entirety. The reviewing court should affirm the district court where the district court judgment is not clearly wrong or manifestly erroneous. One of the basic tenets of the manifest error standard of review is that “reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the court of appeal is convinced that had it been the trier of fact, it would have weighed the evidence differently.” Rando v. Anco Insulations Inc., 08-1163 (La.5/22/09), 16 So.3d 1065, 1087 (citing Parish Nat. Bank v. Ott, 02-1562 (La.2/25/03), 841 So.2d 749, 753).

However, in her first. specification of error, Ms. Rearick contends that, when ruling on her claim that the act of donation was executed under duress, the trial court committed legal error by applying the law and elements of proof applicable to the legal concept of nullification due to undue influence rather than the law and elements of proof applicable to the legal concept of nullification due to duress, which she pleaded in her petition.

La. C.C. art. 1479 provides:

A donation inter vivos or mortis causa shall be declared null upon proof that it is the product of influence by the do-nee or another person that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor, (emphasis added)
La. C.C. art. 1959 pertinently provides: .Consent is vitiated when it has been obtained by duress of such a nature as to cause -a reasonable fear of unjust and considerable injury to a party’s person, property, or reputation, (emphasis added)

|10In ruling in favor of Ms. Michetti, the trial court stated in her oral reasons for judgment:

In this case plaintiffs have alleged three bases in which they have asked this court to consider in revoking donation of immovable property that was donated inter vivos by authentic act.
The first basis is that the donation was signed under conditions of duress. And a donation that is signed under duress should be declared null upon proof of duress.
In this case the plaintiff had to prove by clear and convincing evidence that the proof — I’m sorry — had to prove by clear and convincing evidence that the influence over the donor was such that it would have impaired the volition of the donor and to substitute the volition of the donee for the other person, or of the other person.
⅜ * *
I find that [Ms. Miehetti’s ultimatum] does not reach the level of duress as contemplated by 1479.” (emphasis added)

We agree that in her oral reasons for judgment, the trial court stated the law and elements of proof applicable to nullification due to undue influence rather than the law and elements of proof applicable to nullification due to duress. Moreover, the trial court referred to La. C.C. art. 1479, which is the codal article stating the law and elements of proof applicable to undue influence.

La. C.C. art. 1483 states that the person challenging a donation on the basis of fraud, duress, or undue influence, must prove his case by “clear and convincing evidence.” Concerning the type of undue influence that would result in the invalidity of a donation, Comment (b) to La. C.C. art. 1479 provides in pertinent part:

[E]veryone is more or less swayed by associations with other persons, so this Article attempts to describe the kind of influence that would cause the invalidity of a gift or disposition. Physical coercion and duress clearly fall within the proscription of the previous Article. The more subtle influences, Insuch as creating resentment toward a natural object of a testator’s bounty by false statements, may constitute the kind of influence that is reprobated by this Article, but will still call for evaluation by the trier of fact. Since the ways of influencing another person are infinite, the definition given in this Article is used in an attempt to place a limit on the kind of influence that is deemed offensive. Mere advice, or persuasion, or kindness and assistance, should not constitute influence that would destroy the free agency of a donor and substitute someone else’s volition for his own. (emphasis added)

On the other hand, Black’s Law Dictionary defines duress as a “threat of harm made to compel a person to do something against his or her will or judgment; esp., a wrongful threat made by one person to compel a manifestation of seeming assent by another person to a transaction without real volition.” Black’s Law Dictionary (8th ed.2004).

It is well-settled that a Court of Appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 735 (citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989)). However, where one or more trial court legal errors interdict the fact finding process, the manifest error standard is no longer applicable, and if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine whether the plaintiff has borne his or her burden of proof. Evans, 708 So.2d at 785. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Id. (citing Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993)). Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Id.

In this case, the trial court committed a legal error. In her oral reasons for judgment, the trial court stated Ms. Rearick failed to prove by clear and convincing evidence “that the influence over the donor was such that it would have impaired the volition of the donor and to substitute the volition of the donee.” Thus, the trial 11 ¡.court applied the legal standard applicable to undue influence rather than duress to Ms. Rearick’s claims. Duress and undue influence are related concepts. However, as the comment to La. C.C. art. 1479 and the definition of “duress” in Black’s Law Dictionary illustrate, undue influence is a slow process wherein the donee overcomes the free agency of the donor and substitutes someone else’s volition while duress is an immediate threat of harm intended to compel the donee to act against his own volition. Accordingly, we find that the trial court’s legal error may have interdicted the fact finding process. See by analogy Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731, 786 (holding that legal error interdicted the trial court’s fact-finding process when trial court’s reasons for judgment applied previous version of Civil Code article to custody dispute).

We agree that the trial court erred in its application of legal principles regarding duress, thus, we will review the question of nullification due to duress in Ms. Rearick’s second specification of error de novo.

SECOND SPECIFICATION OF ERROR

In her second specification of error, Ms. Rearick contends that the trial court erred in failing to find that Ms. Michetti obtained her consent to sign the act of donation by duress. Ms. Rearick further contends that the act of donation is null because it was the product of duress.

A donation inter vivos shall be declared null upon proof that it is the product of fraud or duress. La. C.C. art. 1478. Consent is vitiated when it has been obtained by duress of such a nature as to cause a reasonable fear of unjust and considerable injury to a party’s person, property, or reputation. La. C.C. art.1959. Duress vitiates consent also when the threatened injury is directed against the spouse, an ascendant, or descendant of the contracting party. La. C.C. art. 1960. Duress is to be considered in light of subjective characteristics of the person whose 11sconsent is in question; however, duress must be of such a nature as to cause a reasonable fear of unjust and considerable injury to a party’s property in order to constitute legal duress. See, e.g., Monterrey Center, LLC v. Education Partners, Inc., 08-0734 (La.App. 1 Cir. 12/23/08), 5 So.3d 225, 230.

In order to prove duress one:

[m]ust prove it by clear and convincing evidence. However, if, at the time the donation was made or the testament executed, a relationship of confidence existed between the donor and the wrongdoer and the wrongdoer was not then related to the donor by affinity, consanguinity or adoption, the person who challenges the donation need only prove the fraud, duress, or undue influence by a preponderance of the evidence.

La. C.C. art. 1483 (emphasis added).

The “clear and convincing” standard requires a party to prove the existence of a contested fact is highly probable, or much more probable than its non-existence. Talbot v. Talbot, 2003-0814 (La.12/12/03), 864 So.2d 590, 598.

After a de novo review of the record, we find that Ms. Rearick has not demonstrated by clear and convincing evidence that she signed the act of donation under duress. Ms. Rearick relies heavily on her testimony to the effect that Ms. Michetti threatened to place her in a nursing home if she did not donate the property to her daughter. However, earlier in her testimony, Ms. Rearick testified that she donated the property to her daughter because she “felt sorry for her.” Counsel for Ms. Rearick thereafter asked Ms. Rearick if there was “any other reason” why she donated the property to Ms. Michetti. Ms. Rearick replied “No.” In addition, although Ms. Rearick testified that her daughter threatened to place her in a nursing home, there was no testimony indicating that Ms. Michetti’s purported threat influenced Ms. Reariek’s decision to donate the Cedar Avenue property.

Furthermore, Ms. .Oxner testified that she and Ms. Rearick had discussed the possibility of donating the Cedar Avenue house to Ms. Michetti several times over |ua considerable period of time before Ms. Rearick executed the act of donation. Ms. Oxner also testified that Ms. Rearick asked her pertinent questions when they met and that Ms. Rearick asked her to include a usufruct clause in the act of donation. Ms. Oxner further testified that she at no time saw evidence that Ms. Michetti mistreated Ms. Rearick or subjected her to duress.

Ms. Michetti testified that she cared for her mother over a period of approximately five years. On cross-examination, Ms. Rearick testified that her daughter picked up all her medicines, cooked meals, bought groceries, helped her getting dressed, performed various household tasks, and generally acted as a good caregiver. • Ms. Mi-chetti also denied telling her mother that she would place her in a nursing home if her mother did not donate the property to her.

Ms. Michetti admitted that she told her mother that she would move out of the Cedar Avenue property if her mother did not donate the property because she needed assurances that she would not be forced to leave by her mother or sisters. We find that this admission is insufficient to prove that Ms. Rearick signed the act of donation under duress by clear and convincing evidence. The case with the closest facts to this one is Guerin v. Guerin, 449 So.2d 1053 (La.App. 1 Cir.1984), unit denied, 450 So.2d 960 (La.1984). In Guerin, a man transferred immovable property to his son prior to his death. After his death, his widow and her other children brought an action to set aside the transfer. The widow contended she never consented to transfer the property and was forced to sign the act of sale against her will because her husband told her that he would leave her if she did not sign the transfer papers. Id, at 1058. On appeal, the First Circuit stated that this was “patently insufficient” to show that the transfer was obtained as a result of fraud or duress. Id. Ms. Michetti’s threat is similarly insufficient.

In addition, La. C.C. art. 1962 provides: |1{iA threat of doing a lawful act or a threat of exercising a right does not constitute duress.
A threat of doing an act that is lawful in appearance only may constitute duress.

Ms. Michetti contends that her ultimatum to her mother was a “lawful act or a threat of exercising a right” and that the ultimatum cannot constitute duress. Ms. Rearick contends that the ultimatum was merely “lawful in appearance” and that it “only may constitute duress.” In her brief, Ms. Rearick argues that “threatening to withhold nursing care and abandon her mother may be lawful but that does not make it right.” Implicit in the argument, therefore, is that an act that is not “right” is “lawful in appearance only.” That, however, is not the correct standard,

In Wolf v. Louisiana State Racing Com’n, 545 So.2d 976, 980 (La.1989), the Louisiana Supreme Court interpreted the phrase “lawful in appearance only” to apply to acts that are “unlawful, even though clothed with the appearance of legality.” Wolf involved an agreement whereby the Fair Grounds race track agreed to pay worker’s compensation benefits to an injured jockey in exchange for the jockey’s waiver of the right to sue the track for its negligence. Id. at 976-77. Several jockeys signed the agreement under protest and filed suit against the Fair Grounds and the Louisiana State Racing Commission seeking a declaratory judgment to have the agreement invalidated. The Louisiana Supreme Court determined that the Fair Grounds had no authority to enter into such agreements with jockeys, such authority being vested in the stewards and the Louisiana State Racing Commission. Id. at 980. The Fair Grounds’ actions were “lawful in appearance only” because Fair Grounds officials represented that they had the legal authority to enter into the agreement with the jockeys when, in fact, the officials had no legal authority to do so.

|1fiIn this case, even if we were to assume that Ms. Michetti threatened to place her mother in a nursing home, that threat would be a “lawful act” incapable of rendering the act of donation void for duress. Ms. Rearick admits this in her brief. The threat would not be “lawful in appearance only” merely because it violates Ms. Rear-ick’s preconceived surmise of what is right and wrong.

Finally, we note that, although Ms. Rearick did not plead undue influence in her petition, there is no evidence in the record that Ms. Michetti exerted undue influence over Ms. Rearick. In her brief to this court, Ms. Rearick admitted that she “was not attempting to prove' that she had lost her volition to [Ms. Michetti], but rather that she was indeed aware at the time of the donation that she was being coerced into the action.”

Accordingly, this specification of error has no merit.

THIRD SPECIFICATION OF ERROR

In her final specification of error, Ms. Rearick contends that the trial court erred in failing to determine that her daughter was guilty, of “cruel treatment” towards her. In her brief, Ms. Rearick contends that “specific incidents of cruelty may seem individually minor, but they accumulated to the point that Mrs. Rearick feared that she was being held a prisoner in her own home.” Ms. .Rearick concludes that because her daughter was guilty of cruel treatment towards her, she should be permitted to revoke the act of donation wherein she donated the Cedar Avenue property to her daughter.

Standard of Review

Although we reviewed Ms. Rear-ick’s duress claim de novo, Ms. Rearick is not entitled to a de novo review of the record with respect to her revocation claim. Our standard of review on this specification of error is whether the trial court committed manifest error or was clearly wrong in determining whether Ms. 117Michetti committed a “grevious injury” upon Ms. Rearick. A trial' court’s determination as to whether a donee has committed a “grievous injury” upon a donor is a factual determination which depends heavily on the facts and circumstances specific to the case. Erikson v. Feller, 04-1088 (La.App. 3 Cir. 12/8/04), 889 So.2d 430, 434. A court of. appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, through Dept. of Trans, and Development, 92-1328 (La.4/12/93), 617 So.2d 880, 882. When reviewing findings of fact, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the conclusion was a reasonable one. Adams v. Rhodia, Inc., 07-2110 (La.5/21/08), 983 So.2d 798, 806.

Analysis

Donations inter vivos are generally irrevocable. Busse v. Lambert, 00-1032 (La.App. 5 Cir. 10/31/00), 773 So.2d 182, 183, writ denied, 00-3224 (La.1/26/01), 782 So.2d 633. See also La. C.C. art. 1468 (“[a] donation inter vivos is a contract by which a person, called the donor, gratuitously divests himself, at present and irrevocably, of the thing given in favor of another.”). However, the Louisiana Civil Code does allow for the revocation of an inter vivos donation for four express causes, one of which is the “ingratitude of the donee.” La. C.C. art. 1556. Revocation on account of ingratitude can only take place if the donee has “attempted to take the life of the donor” or if the donee “has been guilty towards [the donor] of cruel treatment, crimes, or grievous injuries.” La. C.C. art. 1557.

As we noted in Salassi v. Salassi, 08-510 (La.App. 5 Cir. 5/12/09) 13 So.3d 670, 673, “there is a considerable paucity of Louisiana cases that have addressed what constitutes ‘cruel treatment, crimes, or grievous injuries.’ ” In Perry v. Perry, 507 So.2d 881, 883 (La.App. 4 Cir.1987), writ denied, 512 So.2d 465, (La.1987), the Fourth Circuit Court of Appeal noted that:

“[injuries’’ include any act naturally offensive to the donor. It may be the adultery of one of the spouses.... The act may consist of slanderous charges; of a seizure levied by the donee against the donor of whom he is creditor; or, in a proper case, even of the refusal to consent to the revocation.

(citing 4 C. Aubry & C. Rau, Cours de ÜROit Civil Francais, §■ 708 (La. State Law Institute Trans. Yol. 3, 1965)) (emphasis added).

In this case, the trial court concluded that Ms. Michetti’s actions did not rise to the level of cruel treatment and grievous injury under La. C.C. art. 1557. At trial, Ms. Rearick described several of 'Ms.'Mi-chetti’s actions that were “naturally offensive” to her. Ms. Rearick indicated that Ms. Michetti “yelled” at her, placed a blood pressure monitor on her stomach, and kicked a stool from underneath her feet on several occasions. Ms. Rearick also testified that Ms. Michetti controlled her medication and restricted her visitors.

None of these purported actions could be independently confirmed at trial. Ms. Michetti indicated that she had to speak loudly to Ms. Rearick because Ms. Rearick is hard of hearing. Ms. Michetti denied kicking a stool from underneath her mother’s feet or placing a blood pressure monitor on her mother’s stomach. She also denied that she restricted Ms. Rearick’s visitors. She explained that she controlled her mother’s medication at the suggestion of both Dr. Ryan and the home health nurse. Dr. Ryan opined that Ms. Rearick suffers from dementia, therefore, this action is reasonable. None of Ms. Michetti’s sisters could verify Ms. Rearick’s accusations. In addition, we note that elder protective services visited Ms. Rearick’s home and concluded that reports of abuse were “unsubstantiated” and that Dr. Ryan’s letter indicates that he could not recall an occasion on which he noted any evidence of physical or emotional abuse of Ms. Rear-ick.

11!)Even if we were to assume that Ms. Rearick’s accusations are true, a review of reported jurisprudence reveals that Ms. Michetti’s actions do not rise to the level of “cruel treatment, crimes or grievous injuries,” as required by La. C.C. art. 1560. See, e.g., Whitman v. Whitman, 31,814 (La.App. 2 Cir. 3/31/99) 730 So.2d 1048 (finding no error in trial court’s ruling that donor’s adulterous affair constituted cruel treatment when donee was his wife), Erikson v. Feller, supra, (holding that grandson’s conduct in attempting to evict grandfather from property and. making veiled allegations that grandfather had molested grandson’s child constituted cruel treatment and grievous injury); Perry v. Perry, supra (finding no error in trial court’s ruling that son’s having directed the sheriff to seize personal property of his parents constituted cruel treatment and grievous injury).

We do not find that the trial court’s conclusion on this issue was unreasonable or manifestly erroneous. Based on the foregoing, this specification of error is without merit.

FRIVOLOUS APPEAL

Ms. Michetti has requested this Court to award attorneys fees for a frivolous appeal. However, Ms. Michetti failed to cross-appeal or to answer the appeal. As such, we are precluded from considering Ms. Michetti’s request for attorneys fees. La. C.C.P. arts. 2082 and 2133; Vicknair v. St. James Parish School Bd., 06-381 (La.App. 5 Cir. 10/31/06), 945 So.2d 116, 119.

CONCLUSION AND DECREE

For the foregoing reasons, the trial court’s judgment is affirmed.

AFFIRMED

      . Maxine Rearick died on May 21, 2010, during the course of the litigation. On August - 26, 2010, Patricia Rearick Petrie, Joanne Rearick Belflower, and Linda Rearick Tillman, Ms. Rearick's daughters, were substituted as parties appellants in the litigation.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jimmy WELCH State of Louisiana v. Jimmy Welch.
    Nos. 2010-KA-0422, 2010-KA-0423.
    Court of Appeal of Louisiana, . Fourth Circuit.
    Feb. 2, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    Clare Jupiter, Bryan & Jupiter, APLC, New Orleans, LA, for Appellant, Jimmy Welch.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

hOn 19 February 2009, in separate cases arising out of the same arrest, the defendant, Jimmy Welch (“Welch”), was charged with possession of 3,4-Methylene-dioxymethamphetamine (MDMA/ Ecstacyx), a felony, and with possession of marijuana, a misdemeanor. Welch pled not guilty at his arraignment.

On 26 May 2009, after receiving evidence on the defense’s motions, the trial court found probable cause, denied the motion to suppress evidence, and denied the motion to suppress statement.

At the 11 August 2009 trial, Welch elected trial by judge in his felony matter and the two cases were tried together. At the conclusion of the trial, and before closing arguments, the defendant re-urged his previously filed motions. The trial court declined to revisit its rulings, noting that based on the testimony offered at trial, its ruling was correct. After hearing closing arguments, the trial court found Welch guilty as charged in both matters. Welch waived all legal delays and announced readiness for sentencing. As to the charge of possession of Ecstasy, he was sentenced to five years in the custody of the department of corrections. As to the charge of possession of marijuana, he was sentenced to a concurrent term of six | ^months in parish prison. The state then filed a multiple bill of information alleging Welch to be a quadruple offender.

On 16 September 2009, Welch admitted the allegations of the multiple bill and was sentenced to twenty years in the custody of the defendant of corrections without benefit of probation or suspension of sentence. He filed notices of appeal in both cases, which the trial court granted. On 18 May 2010, this court consolidated the two appeals.

Testimony offered at the motion hearing and at trial reflects that on 6 January 2008, Detective Jason Germann of the New Orleans Police Department (“NOPD”), Sixth District Narcotics Unit, along with Detective Kyle Hinrichs and Sergeant Ryan Lobrano, were engaged in a narcotics-based surveillance of the intersection of Willow Street and Jackson Avenue in New Orleans.

Detective Germann related that he had been a member of the NOPD for twelve years and that he had been a detective in the Sixth District Narcotics Unit for seven years. He added that he is a federally commissioned Task Force Agent with the DEA.

As nightfall approached, Detective Ger-mann observed the defendant, who was not the target of the initial investigation, after he appeared on the downtown side of Jackson Avenue near the front of a retail establishment called King’s Fashions. Welch was observed anxiously looking up and down the block, which is what drew Detective Germanris attention. Detective Ger-mann related that Welch appeared nervous, that his body posture was stiff, and that he appeared to be “looking for something that would scare him.”

Welch then walked to what appeared to be an abandoned house adjacent to King’s Fashions. He reached under the front steps and withdrew a white plastic |sbag which appeared to contain a large object. While still nervously looking in all directions, Welch then stuffed the bag and contents underneath his sweatshirt.

Detective Germann believed Welch was retrieving some sort of contraband from underneath the house. More particularly, from his experience, Detective Germann believed it possibly to be a weapon. At the motion hearing, Detective Hinrichs related that firearms are often concealed in areas right underneath a house where they can be maintained in close proximity to an individual but not directly on his person.

After retrieving the item, Welch started looking around and walked off in a fast pace, “as if he had somewhere to be immediately.” He walked towards Willow Street and turned right in an uptown direction. Detective Germann then contacted Detective Hinrichs and Sergeant Lo-brano, informed them of his observations, and advised them to complete an investigatory stop.

Detective Hinrichs testified that he was contacted by Detective Germann who relayed that due to his observations, he believed the defendant may have been armed with a weapon, and that they should perform a stop. Detective Hinrichs and Sergeant Lobrano were in separate vehicles. Traveling in the same direction as Welch, they proceeded up Willow Street and then stopped their vehicles adjacent to the defendant. Detective Hinrichs exited his vehicle, upholstered his weapon, and ordered Welch to the ground for safety reasons. Welch complied. Detective Hinrichs re-holstered his weapon and placed Welch in handcuffs, again for safety reasons.

Detective Hinrichs testified that he immediately began a pat down for weapons and that as he began his pat down, Sergeant Lobrano reached under Welch’s sweatshirt and retrieved the plastic shopping bag.

14While patting him down, Detective Hinrichs detected what he immediately believed to be marijuana packaging in Welch’s right front pants pocket. Even though he recognized it, Detective Hin-richs ignored the object so as to complete his pat down. While Officer Hinrichs was completing his pat down, Sergeant Lobra-no advised him that the bag contained a purse and that there was no gun. At that point, Welch stated something to the effect of “Gun, man, I ain’t got no gun man. All I got is some weed and some pills.”

Once Detective Hinrichs completed his pat down, he immediately retrieved the bag from Welch’s pants pocket- and confirmed that it was a tied plastic bag containing vegetable matter.

Detective Hinrichs placed Welch under arrest for • possession of marijuana and searched him. During his search, he recovered five red pills tied in a plastic bag in Welch’s left pocket that subsequently tested positive for Ecstasy. ■ -

ERRORS PATENT

Review of the record for errors patent reveals none.

DISCUSSION

THE APPEAL IN N0.2010-0423

Welch’s misdemeanor conviction for possession of marijuana appeal is not properly before this court. An appeal of a misdemeanor conviction in Orleans Parish Criminal District Court properly goes to the appellate division of Criminal [^District Court for the Parish of Orleans. La. R.S. 13:1337; State v. Morel, 95-0926 (La.App. 4 Cir. 5/1/96), 673 So.2d 1291. Accordingly, we transfer Welch’s appeal in the appeal bearing-docket number 2010-CA-0423 to the appellate division of the Criminal District Court for the Parish of Orleans for disposition in due course.

ASSIGNMENT OF ERROR NUMBER 1

Welch contends that the trial court erred in denying his motion to suppress the evidence, alleging three separate grounds as the basis for therefor. Per State v. Boyer, 07-0476, p. 7 (La.10/16/07), 967 So.2d 458, 464: “The Fourth Amendment, applicable to the states through the Fourteenth Amendment, protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.... ’ U.S. Const, amend. IV. ‘The Fourth Amendment is not a guarantee against all searches and | (¡seizures, only those that are unreasonable.’ ” And it is the reasonableness of the intrusion that is the touchstone of any Fourth Amendment analysis, “balancing the need of law enforcement officials against the burden on the affected citizens and considering the relation of the policeman’s actions to his reason for stopping the suspect.” Id., p. 19, 967 So.2d at 470.

Initially, Welch contends that the police lacked reasonable suspicion to conduct an investigatory stop. He asserts that from the facts and circumstances an insufficient basis existed to conclude that he was committing or had committed a crime.

In State v. Temple, 02-1895, pp. 4-5 (La.9/9/03),.854 So.2d 856, 859-860, the Court set forth the standard for determining whether ah officer can lawfully detain a defendant:

Although La.C.Cr.P. art. 215.1 permits an officer to stop a citizen in a public place and question him, the right to make such an investigatory stop must be based upon reasonable suspicion that the individual has committed, or is about to commit, an offense. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Andrishok, 434 So.2d 389, 391 (La.1988). If an officer stops a person pursuant to art. 215.1, the officer may conduct a limited pat down frisk for weapons if he reasonably believes that he is in danger or that the suspect is armed. La.C.Cr.P. art. 215.1(B). Determining whether “reasonable, articulable suspicion” existed requires weighing all of the circumstances known to the police at the time the stop was made. State v. Williams, 421 So.2d 874, 875 (La.1982).
In making a brief investigatory stop on less than probable cause to arrest, the police “‘must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” State v. Kalie, 96-2650, p. 3 (La.9/19/97), 699 So.2d 879, 881 (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)). The police must therefore “articulate something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. at 27, 88 S.Ct. at 1883). This level of suspicion, however, need not rise to the probable cause required for a lawful arrest.
In determining whether the police possessed the requisite “ ‘minimal level of objective justification’ ” for an investigatory stop based on reasonable suspicion of criminal activity, Sokolow, 490 U.S. at 7, 109 S.Ct. at 1585 (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 1763, 80 L.Ed.2d 247 (1984)), reviewing courts “must look at the ‘totality of the circumstances’ of each case,” a process which “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002)(quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)); see also State v. Huntley, 97-0965, p. 1 (La.3/13/98), 708 So.2d 1048.

Welch contends that his actions were equally consistent with innocent activity and that the officers’ decision to stop him was not adequately supported by reasonable objective inferences drawn from the particularized facts of the situation. At trial, Welch offered the explanation that the he had recently purchased the purse at the adjacent commercial establishment and was simply retrieving the item which he had secured under the steps of the adjacent house.

We disagree with the defendant’s assessment of the facts. From an objective standpoint, Welch’s actions were inconsistent with innocent behavior, and the officers’ decision to conduct a Terry stop was supported by reasonable inferences drawn from his actions. From an objective standpoint, Welch’s. actions of nervously looking up and down the street before retrieving the bag from underneath the steps of an abandoned house, only to immediately conceal his ^possession of the bag by placing it underneath his clothing, was highly suspicious behavior and clearly indicative of possible criminal behavior.

Retrieval of the bag from underneath the steps by itself may have appeared unusual; however, coupling that activity with Welch’s nervous glances to determine whether he was being watched as well as his immediate concealment of the bag was sufficient to raise his conduct from the level of simply unusual behavior to possibly criminal behavior.

Assuming arguendo that the police had reasonable suspicion to conduct a Terry stop, defendant contends that when the officers handcuffed him they exceeded the permissible scope of an investigatory stop, and his detention constituted a full blown arrest for which the officers lacked probable cause. Indeed, an officer’s use of handcuffs poses a separate question from the reasonableness of the initial stop, “as a search or seizure ‘reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.’ Terry [v. Ohio], 392 U.S.[1] at 18, 88 S.Ct. at 1878, 20 L.Ed.2d 889.” State v. Porche, 06-0312, p. 7 (La.11/29/06), 943 So.2d 335, 339.

We note that few Louisiana cases discuss the use of handcuffs during an otherwise .legal Terry stop; however, in Porche, the Court discussed the topic as follows:

Inherent in the right of the police to conduct a brief investigatory detention is also the right to use reasonable force to effectuate the .detention. [Muehler u] Mena, 544 U.S. [93] at 99, 125 S.Ct. [1465] at 1470, 161 L.Ed.2d 299 (“ ‘Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.’ ”) (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 1871-72,104 L.Ed.2d 443 (1989)); United States v. Perdue, 8 F.3d 1455, 1462 (10th Cir.l993)(“Since police 19officers should not be required to take unnecessary risks in performing their duties, they are ‘authorized to take such steps as [are] reasonably necessary to protect their personal safety and to maintain the status quo during the course of [a Terry] stop.’ ”) (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 683-84, 83 L.Ed.2d 604 (1985)).
Nevertheless, the use of handcuffs incrementally increases the degree of force used in detaining an individual. Mena, 544 U.S. at 99, 125 S.Ct. at 1470 (“The imposition of correctly applied handcuffs on Mena, who was already being lawfully detained during a search of the house, was undoubtedly a separate intrusion in addition to detention in the converted garage.”); State v. Broussard, 00-3230, p. 4 (La.5/24/02), 816 So.2d 1284, 1287 (“ ‘There is no question that the use of handcuffs, being one of the most recognizable indicia of a traditional arrest, substantially aggravates the intrusiveness of a putative Terry stop.’ ”) (quoting United States v. Acosta-Colon, 157 F.3d 9, 18 (1st Cir.l998)(internal quotation marks omitted)). Thus, because the police conducting an investigatory stop “may not ... seek to verify their suspicions by means that approach the conditions of arrest,” Florida v. Royer, 460 U.S. 491, 499, 103 S.Ct. 1319, 1325, 75 L.Ed.2d 229 (1983), the use of handcuffs must appear objectively reasonable “in light of the facts and circumstances confronting [the police],” taking into account “the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 397, 109 S.Ct. at 1872; Broussard, 00-3230 at 4, 816 So.2d at 1287 (‘“Thus, when the government seeks to prove that an investigatory detention involving the use of handcuffs did not exceed the limits of a Terry stop, it must be able to point to some specific fact or circumstance that could have supported a reasonable belief that the use of such restraints was necessary to carry out the legitimate purpose of the stop without exposing law enforcement officers, the public, or the suspect himself to an undue risk of harm.’ ”) (quoting Acosta-Colon, 157 F.3d at 18-19). If the added intrusion is not warranted under particular circumstances, a Terry stop may escalate into a de facto arrest requiring probable | incause to render it valid. United States v. Melendez-Garcia, 28 F.3d 1046, 1053 (10th Cir.1994).

Porche, pp. 7-8, 943 So.2d 339-340.

In Porche, the defendant/visitor arrived at the door of a residence where police were conducting a fast-paced investigation in which the ostensible victim/resident had turned into a suspect in a narcotics investigation. Upon arrival, Mr. Porche seemed very surprised (visibly shaken) to see the police presence at the apartment. He then expressed uncertainty over whether he was at the right apartment, which further aroused the officer’s suspicion. When the defendant was asked if he had any identification, he indicated that his was in his apartment, which was located in the same complex.

At this point, the investigating officer decided to detain the suspect and placed him in handcuffs. The officer then asked the defendant if he would accompany him to his apartment to obtain his identification, and the defendant agreed. Inside the apartment, the officer observed contraband, which provided probable cause for the defendant’s arrest.

After first examining the reasonableness of the officer’s decision to detain Mr. Porche and concluding that his decision was supported by the facts, the Court examined whether the officer’s use of handcuffs had elevated the detention beyond Terry’s permissible intrusion.

| n Initially, the Court noted that that nothing in the officer’s testimony suggested that he was concerned that Mr. Porche was armed or violent. Indeed, the testimony did not suggest that Mr. Porche was even patted down for weapons. The Court noted the contrast in the severity of the situation to that in Muehler v. Mena, and concluded that although the inherent danger of the situation did not compare to that in Muehler, neither did the length of Mr. Porche’s detention in handcuffs prior to his being placed under arrest. In finding that the use of handcuffs was not unreasonable, the Court stated:

Despite some concerns about the objective reasonableness of the police conduct, given the brevity of respondent’s detention in handcuffs before he was lawfully arrested, and the changing nature of the police investigation which had begun to focus on a possible link of respondent and Young to narcotics trafficking, and giving due deference to the decisions made in the field by police officers under the press of “tense, uncertain, and rapidly evolving” circumstances, Graham [v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)], 490 U.S. at 397, 109 S.Ct. at 1872, we cannot say that Lieutenant Hoefeld’s conduct in securing relator’s hands to minimize any risk entailed by entering his apartment for his identification escalated the Terry stop into a de facto arrest unsupported by probable cause.

Porche, pp. 10-11, 943 So.2d at 341.

The circumstances of this case present a sharp contrast to those in Porche, where the police did not express any apparent concern over whether the subject was armed. Here, the detaining officers expressed a strong safety interest stemming from the defendant’s removal and concealment on his person of what they believed could have been a gun.

In State v. Boyer, supra, the Louisiana Supreme Court sanctioned a pat down for weapons following a similar restraint of the defendant, who was forced to the ground and placed in handcuffs while the officer frisked him for weapons. In | KBoyer, the police were executing a search warrant at a mobile home for narcotics. The defendant was observed to be approximately twenty feet from the mobile home when the police arrived. He was holding a cell phone up to his ear and appeared to be talking. When the defendant observed the police, he lowered his phone and began frantically digging in his pocket. The officer ran towards the defendant yelling “police” and ordering the defendant to get to the ground and to remove his hand from his pocket; however, the defendant did not immediately comply, which caused the officer to take action. The officer testified that he believed the defendant may have had a small weapon in his pocket, noting that weapons are usually involved with drugs.

Although the Court did not directly assess the reasonableness of the detention, the court sanctioned the stop and frisk noting that execution of a warrant may give rise to sudden violence or frantic efforts to conceal or destroy drugs. Citing Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), the Court noted that when executing a search warrant the. “risk of harm to the police and to citizens is minimized if the officers routinely exercise unquestioned command of the situation.” Boyer, p. 18, 967 So.2d 470. Given the totality of the circumstances and based on the officer’s experience and training, the Court found the stop was proper. Further, the Court found that the officer’s search for weapons was justified stating:

We find that a suspect’s hand in his pocket, under the circumstances a presented, supports a reasonable belief the suspect might have a weapon and Officer Guillot’s experience and training that searches of drugs often correlate with weapons provide a reasonable and objective basis to frisk this defendant.

Boyer, p. 21, 967 So.2d at 472.

| ^Factors affecting the reasonableness of Detective Hinrichs and Sergeant Lobra-no’s actions in handcuffing Welch and ordering him to the ground included their belief that he might have been armed. As in Boyer, the officers were involved in a narcotics investigation when their focus was directed towards the defendant’s actions. Also, as in Boyer, the officers were faced with a situation in which the defendant was engaged in the active concealment of an item, possibly a weapon. Because the stop took place on the street, public safety was also a central concern. Although the restraint of Welch was more significant than in Porche, there was a strong safety concern not present in Porche. Certainly, by briefly taking unquestioned command of the situation, Sergeant Lobrano and Detective Hinrichs were able to greatly reduce most if not all of the potential for danger.

Taking into account that Welch was hastily leaving the area and that the officers were forced to make an immediate judgment on how best to effect a stop, and considering the inherent uncertainty of stopping an unknown subject believed to be armed, while giving due deference to the officers whose decisions were made under these circumstances, we find that the duration and level of force utilized is objectively reasonable under the circumstances and did not raise the Terry stop into a de facto arrest unsupported by probable cause.

„ Finally, Welch argues that the trial court erred in denying his motion to suppress the evidence on the basis that the officer’s pat down for weapons after he had been handcuffed was unnecessary. He argues that once his arms were handcuffed behind his back, the officers had no reason to fear for their safety, which rendered their pat down for weapons unsupportable under Terry.

We disagree. Welch was handcuffed so that it could safely be determined if he was armed and not simply to impair his ability to reach for or use a weapon, if 114he was armed. Under the circumstances, the use of handcuffs was objectively reasonable for that purpose. Under the scenario suggested by the defendant, the police would have been required to complete their investigation with the defendant in handcuffs only to then release a potentially armed and dangerous subject. This process would do nothing to protect the safety of the officers involved, and therefore it cannot be sanctioned.

In sum, we find that the police officers’ conduct in this instance was objectively reasonable and that Welch’s- Fourth Amendment right to be free from unreasonable searches and seizures was not violated. The trial court correctly denied the motion to suppress the evidence.

ASSIGNMENT OF ERROR NUMBER 2

In Welch’s second assignment of error, he argues that his inculpatory statement — “All I got is some weed and some pills” — should have been suppressed as the product of a warrantless arrest without probable cause. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), holding, that any confession obtained as the result of an illegal seizure must be suppressed. Because we have already approved the legality of Welch’s detention, the argument that the statement should have been suppressed as the result of an illegal seizure under the Fourth Amendment lacks merit.

Welch suggests further that because he was not advised of his right to remain to silent before making the statement, his inculpatory statement was taken in violation of Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and should have |lsbeen suppressed on that basis. In Miranda, the Court held that the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during “custodial interrogation” without a prior warning. Id. at 436, 86 S.Ct. 1602. Custodial interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of freedom in any significant way.” Id. at 444, 86 S.Ct. 1602.

However, it is well settled that “[s]pontaneous and voluntary statements, not given as a result of police interrogation or compelling influence, are admissible in evidence without Miranda warnings even where a defendant is in custody.” State v. Castillo, 389 So.2d 1307, 1310 (La.1980); see also State v. Smith, 00-1838 (La.5/25/01), 785 So.2d 815.

Under the present circumstances, Welch’s remark regarding his possession of “weed and pills” did not come as a result of police questioning. Rather, the testimony establishes that this was a case of a spontaneous statement, voluntarily offered by the defendant. We find no indication that Sergeant Lobrano’s statement to Officer Hinrichs regarding his findings upon on examining the contents of the plastic ' shopping bag was offered in an attempt to elicit some type of response by Welch. Accordingly, because the statement was voluntary and. not given as a result of police interrogation or compelling influence, the trial court properly denied the motion to suppress the statement. The assignment of error lacks merit.

CONCLUSION

| ]fiFor the foregoing reasons, we affirm the defendant’s conviction and sentence in case bearing docket number 2010-CA-0422 and transfer the appeal of case bearing number 2010-CA-0423 to the Criminal District Court for the Parish of Orleans for disposition.

APPEAL IN N0.2010-CA-0422 AFFIRMED; APPEAL IN NO.2010-CA-0423 TRANSFERRED TO CRIMINAL DISTRICT COURT FOR THE PARISH OF ORLEANS.

      . The white plastic bag proved to be a "Target” shopping bag. At the motion hearing, Detective Hinrichs described the purse as a medium sized lady’s purse, approximately ten or twelve inches in size. After being arrested, Welch stated that he worked at King's Fashions, and that he had purchased the bag there earlier in the day.

      . La. R.S. 13:1337 states:
      A. The Criminal District Court for the Parish of Orleans shall have appellate jurisdiction of all cases tried before the Municipal Court of New Orleans and the Traffic Court of New Orleans. Appeals from the municipal and traffic courts shall be on the law and the facts and shall be tried upon the records made and the evidence offered in said courts by the judge to whom the appeal shall be allotted. In all cases tried before the judges of the criminal district court in which an appeal does not lie to the supreme court, an appeal shall lie on questions of law and fact to two or more of the judges of the criminal district court, as prescribed by said court. The criminal district court shall adopt rules regulating the manner of taking and hearing and deciding such appeals.
      B. The Criminal District Court for the Parish of Orleans shall have general supervisory jurisdiction over the municipal and traffic courts of New Orleans and shall have authority to issue writs of habeas corpus in criminal cases, as well as such other writs and orders as are necessary in aid of the jurisdiction of the court. [Emphasis supplied.]

      . In Muehler v. Mena, 544 U.S. 93, 125 S.Ct. 1465, 161 L.Ed.2d 299 (2005), the Court reviewed the reasonableness of a two to three hour detention of a woman in handcuffs while police officers conducted a search at a gang house for weapons and a wanted gang member pursuant to a warrant. Examining the circumstances surrounding the detention, the Court concluded that the officers’ use of handcuffs for the duration of the search was reasonable, "because the governmental interests outweigh[ed] the marginal intrusion.” Id. at 99, 125 S.Ct. 1465. Chief Justice Rehnquist explained that the length of a detention in handcuffs, even though somewhat lengthy, must be balanced against "the government’s continuing safety interest.” Id. at 100, 125 S.Ct. 1465.

      . We note Detective Hinrichs' testimony to the effect that he had seen some "miraculous maneuvers," even by people whose arms were handcuffed behind them, which amplifies the fact that handcuffs alone do render a potentially dangerous subject completely safe.

      . Furthermore, under Miranda, "interrogation” refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); State v. Abadie, 612 So.2d 1 (La.1993).


author: GAIDRY, J.

text:
    In the Matter of Johnny R. DAVIS Praying for Monition.
    No. 2010 CA 1435.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2011.
    Milton Osborne, Jr., Baron M. Roberson, Baton Rouge, LA, for Appellant Johnny R. Davis.
    D. Brian Cohn, Baton Rouge, LA, for Appellees Ruth D. Lloyd, as Administra-trix of the Succession of Lubertha D. Brantley and Ceatrice O. Kitchen.
    Judson G. Banks, Baton Rouge, LA, for Appellee Sid J. Gauthreaux, III, Sheriff of East Baton Rouge Parish.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

|2This case involves the annulment of a tax sale and of the subsequent judgment confirming and homologating the tax sale. Because we find that there is no final, appealable judgment, we dismiss the appeal and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

The property that is the subject of this litigation consists of four lots located in East Baton Rouge Parish. Prior to the tax sale at issue herein, the property was owned by George and Beatrice Adams and Lubertha Dyer Brantley. The taxes on the property became delinquent in 1998, and a tax sale was ultimately held. Johnny R. Davis purchased the property at a tax sale on June 30, 1998. Davis’s purchase was recorded in the conveyance records. On July 30, 2003, Davis filed a petition for monition, asking the court for judgment confirming and homologating the sale of the property. Public notice of the petition for monition was made by publication in The Advocate, a Baton Rouge, Louisiana, daily newspaper, on August 1 and 11, 2003. No opposition was made to the monition. A judgment was rendered by the court granting the monition and confirming and homologating the sale on September 9, 2003.

On February 5, 2009, a petition was filed by Ruth Lloyd, the succession administra-trix of Lubertha Brantley, and Ceatrice Oleen Kitchen, heir of George and Beatrice Adams, seeking to nullify both the monition judgment and the tax sale. The lawsuit also sought a writ of mandamus to compel the sheriff to accept payment of the unpaid taxes from Lloyd and Kitchen and to prepare and record a redemption deed reflecting redemption of the property by Lloyd and Kitchen. In this petition, Lloyd and Kitchen alleged that they did not receive any notice of delinquent taxes in 1997 or inRany year thereafter, that the sheriff was aware that the tax notices were not delivered to them, and that their whereabouts were determinable by simple investigation. Further, they alleged that the sheriff failed to give them reasonable notice of the tax delinquency or the tax sale, although their location was easily identifiable from the public records.

Lloyd and Kitchen filed a motion for summary judgment, and after a hearing on the motion, the trial court granted summary judgment declaring the tax sale a nullity, declaring the judgment confirming and homologating the sale a nullity, ordering the sheriff to calculate the costs due under the law and allow the prior owners to redeem the property, and ordering the sheriff to record the cancellation of the tax sale in the public records. This appeal by Davis followed.

DISCUSSION

Louisiana Revised Statutes 47:2291, which sets forth the procedure for nullity tax sales, provides:

A.A nullity action shall be an ordinary proceeding governed by the Louisiana Code of Civil Procedure. Upon conclusion of the action for nullity, the court shall either:
(1) Issue a preliminary order that the tax sale, an acquisition of full ownership by a political subdivision, or a sale or donation of adjudicated property, as applicable, will be declared a nullity.
(2) Render judgment dismissing the action with prejudice which shall be a final judgment for purposes of appeal.
B. (1) The tax sale purchaser, the political subdivision, or the purchaser or do-nee from a political subdivision shall be presumed to be a good faith possessor of the property.
(2) Costs pursuant to Article VII, Section 25 of the Louisiana Constitution and R.S. 47:2290 shall include costs of sending notice, costs of publication, and costs of determining tax sale parties. Costs shall also include amounts set' forth in Civil Code Articles 496 and 497, if applicable.
(3) Within fifteen days after the rendering of the order under Paragraph (A)(1) of this Section, the party claiming costs shall |4submit proof of costs. Proof of costs may be made by affidavit or other competent evidence and may be contest.ed by the party claiming the nullity. A contest of costs shall be filed within fifteen days after the filing of the proof of costs, and the contest shall be heard within forty-five days after the filing of the proof of costs.
(4) Within sixty days after the issuance of the order pursuant to Paragraph (A)(1) of this Section, the court shall render a judgment of nullity, and the judgment shall fix the costs allowed. This judgment shall be a final judgment subject to appeal.
C. After a judgment under Subsection B of this Section has been rendered, the governmental liens, other than statutory impositions paid if the nullity has been rendered on the basis of prior payment, and costs, shall be paid within one year from the date of the judgment. This one-year period shall be suspended while an appeal is pending. If the payment is not made within the period allowed, the judgment of nullity shall be vacated and the case dismissed with prejudice at the request of the person against whom the judgment of nullity was rendered.
D. After payment has been made, the party in whose favor judgment has been rendered may apply for an ex parte order stating that the required payments have been made. The application shall be verified and shall state, or an affidavit accompanying the application shall state, the amount and method of payment, that the payment was made to the party against whom the judgment has been rendered, and that a request for dismissal under Subsection C of this Section has not been filed.

(Emphasis added.)

The judgment appealed from in this case is only a preliminary order, as referred to in subsection (A)(1). Subsection (B)(4) states that the judgment of nullity shall fix the costs allowed. There is no proof of costs in the record, and the judgment appealed from does not fix the costs allowed. As such, this is not a final appealable judgment, and Davis’s appeal must be dismissed.

DECREE

The summary judgment in this case declaring the tax sale a nullity, declaring the judgment confirming and homologating the sale a nullity, | ¡¡ordering the Sheriff to allow the prior owners to redeem the property, and ordering the Sheriff to record the cancellation of the tax sale in the public records is not a final appealable judgment and this appeal must be dismissed. This matter is remanded to the trial court for compliance with the provisions of La. R.S. 47:2291(B). Costs of this appeal are to be borne by appellant, Johnny Davis.

APPEAL DISMISSED AND REMANDED FOR FURTHER PROCEEDINGS.


text:
    Dustin MACALUSO, and his wife, Mindy L. Macaluso, Individually and on Behalf of their Minor Children, Drake Macaluso and Mallory Macaluso v. TRAVELERS CASUALTY AND SURETY COMPANY, USAA General Indemnity Company, ARC Industries, LLC d/b/a and/or a/k/a Moreno Energy and Arthur L. Oncale.
    No. 2010 CA 1478.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 23, 2011.

      R. Scott Ramsey, Jr., Morgan City, LA, for Plaintiffs/Appellants Dustin Macaluso and Mindy L. Macaluso.
    Ian A. MacDonald, Lafayette, LA, for Defendants/Appellees Charter Oak Fire and Casualty Insurance Company and ARC Industries, L.L.C.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   GAIDRY, J.

[¡/This is an appeal of a summary judgment dismissing the plaintiffs’ claims against an automobile driver’s employer and its insurer on the grounds that the employer was not vicariously liable for the driver’s negligence. We affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Dustin Macaluso, was employed as a tool inspector by Ray’s Radiators, Inc. (Ray’s) in Morgan City, Louisiana. Ray’s was engaged in the business of installation and repair of radiators, coolers, and heat exchangers. Mr. Macaluso’s duties included the pressure testing and repair of radiators but did not include sales or customer solicitation. Arc Industries, L.L.C. (Arc) was an offshore equipment rental company with an office and shop in Morgan City, and was a customer of Ray’s.

On July 11, 2008, a crawfish boil was held at Ray’s. Mr. Macaluso had initially proposed the crawfish boil for employees of Ray’s and other compánies with which it did business, and he personally supplied and boiled the crawfish. He was considered off work and was not paid his hourly wage during the time spent preparing and participating in the crawfish boil.

The defendant, Arthur Oncale, was employed as a service technician or mechanic by Arc, earning an hourly wage. His assigned duties included changing oil, replacing fuel filters, and other work on diesel-powered welding machines. Prior to the date at issue, Mr. Oncale was not personally acquainted "with any employee of Ray’s.

On the date at issue, July 11, 2008, Richard Lasseigne, Arc’s service manager, received a telephone call from an employee of Ray’s, inviting him and the other employees of Arc to the crawfish boil. Mr. Lasseigne relayed the invitation to the employees under his supervision, advising them that if | ¡¡any of them wished to attend the crawfish boil they could do so, provided they “punched out” , of the employee time clock, did not consume alcoholic beverages at the crawfish boil, and returned to work after eating. The Arc employees who wished to attend were advised to do so on a rotating basis, and Mr. Oncale and another employee accepted the offer to attend the crawfish boil during the same time period.

Mr. Oncale and the other Arc employee were instructed to “punch out” or “clock out” on the office’s computer time clock, but because the computer was in the process of being backed up at the time, they could not do so then. Instead, their checkout time of 8:30 p.m. was manually recorded by a clerical employee, and “time clock adjustment request” forms were later used to verify and enter the time they took off work to attend the crawfish boil. The undisputed facts in the record are that Mr. Oncale was considered- by Arc to be on his personal time while attending the crawfish boil and that he was not paid by Arc for his time after leaving his workplace that day.

Mr. Oncale left his .workplace around 3:40 p.m. in his personal vehicle, a 2002 Dodge Neon SRT-4 automobile that he had personally customized. While at the crawfish boil, Mr. Oncale met Mr. Macalu-so. Mr. Oncale declined the offer of a beer from Mr. Macaluso, stating that he was “on the clock” and had to return to work at Arc after eating. In his deposition, he claimed that he made that inaccurate statement simply to make it easier to resist “peer pressure” to consume alcoholic beverages at the informal social gathering.

In the course of conversation between Mr. Oncale and Mr. Macaluso, the subject of Mr. Oncale’s automobile came up. Mr. Macaluso expressed interest in Mr. On-cale’s automobile and the custom work on its engine. Mr. [4Oncale offered to take him for a ride to demonstrate the automobile’s qualities, and Mr. Macaluso accepted the offer, emphasizing that the ride should be short because of his- duties in boiling the crawfish.

Mr. Oncale and Mr. Macaluso left the crawfish boil in the automobile. The accident occurred less than a mile from the premises of Ray’s and at approximately 4:15 p.m., less than 15 minutes after they left. After turning onto Railroad Avenue in Morgan City, Mr. Oncale drove his automobile a distance, turned around on the adjacent levee, and shortly after re-entering the roadway accelerated his automobile to at least 60 and possibly as fast as 103 miles per hour. The posted speed limit was 35 miles per hour. As the automobile traveled over a hill or rise, another vehicle was partially in its lane of travel. Mr. Oncale took evasive action but lost control of his automobile, which struck a telephone pole. Mr. Oncale was charged with, and later pleaded guilty to, reckless operation of a motor vehicle. Mr. Macaluso claimed to have sustained personal injuries as a result of the accident.

On October 3, 2008, Mr. Macaluso and his wife, Mindy L. Macaluso, initiated this action seeking damages for themselves and on behalf of their minor children. Named as defendants were Mr. Oncale, USAA General Indemnity Company (Mr. Oncale’s personal automobile liability insurer), Arc, and Charter Oak Fire and Casualty Insurance Company (Arc’s commercial liability insurer, hereafter referred to as Charter Oak). The plaintiffs subsequently compromised their claims against Mr. Oncale and USAA General Indemnity Company, reserving their rights against Arc and Charter Oak.

|sOn January 4, 2010, Arc and Charter Oak filed a motion for summary judgment, seeking the dismissal of the plaintiffs’ claims against them on the grounds that Mr. Oncale was not acting in the course and scope of his employment at the time of the accident. The motion was heard on April 1, 2010, and the trial court ruled that it would grant the motion. The trial court’s judgment granting the motion and dismissing the plaintiffs’ claims against Arc and Charter Oak with prejudice was signed on April 13, 2010.

On April 26, 2010, the plaintiffs filed a motion for new trial. The trial court dé-nied the motion without hearing on May 18, 2010. The plaintiffs appeal, contending that genuine issues of material fact exist on the dispositive legal issue of whether the accident occurred in the course and scope of Mr. Oncale’s employment with Arc.

STANDARD OF REVIEW

Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court’s determination of the issues. Berard v. L-3 Communications Vertex Aerospace, LLC, 09-1202, p. 5 (La.App. 1st Cir.2/12/10), 35 So.3d 334, 339-40, writ denied, 10-0715 (La.6/4/10), 38 So.3d 302. The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record 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).

DISCUSSION

In Louisiana, the vicarious liability of employers, also known as the doctrine of respondeat superior, is based upon La. C.C. art. 2320, which |fiprovides that employers are answerable for the damage occasioned by their employees in the exercise of the functions in which they are employed. Henly v. Phillips Abita Lumber Co., 06-1856, pp. 10-11 (La.App. 1st Cir.10/3/07), 971 So.2d 1104, 1112-13. Specifically, an employer is liable for its employee’s torts committed if, at the time, the employee was acting within the course and scope of his employment. Timmons v. Silman, 99-3264, p. 4 (La.5/16/00), 761 So.2d 507, 510. The proper test in determining an employer’s vicarious liability thus consists of two elements: (1) course of employment, which refers to time and place; and (2) scope of employment, which examines the employment-related risk of injury. Richard v. Hall, 03-1488, pp. 5-6 (La.4/23/04), 874 So.2d 131, Í38.

An employee is acting within the course-and scope of his employment when the employee’s action is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to serve his employer. Timmons, 99-3264 at p. 4, 761 So.2d at 510, citing Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224, 226-27. The inquiry requires the trier of fact to determine whether the employee’s tortious conduct was so closely connected in time, place, and causation to his employment duties- as to be regarded a risk oí harm fairly attributable to the employer’s business, as compared to conduct motivated by purely personal considerations entirely extraneous to the employer’s interests. Richard, 03-1488 at p. 6, 874 So.2d at 138.

While the rules for determining an employer’s "vicarious liability for the conduct of both high-ranking and lower-echelon employees are the same, the application of the rules may differ due to the employees’ different duties and responsibilities. See Ermert v. Hartford Ins. Co., 559 So.2d 467, 476 (La.1990). The scope of risks attributable to an employer, increases with the] 7amount of authority and freedom of action granted to the employee in performing his assigned tasks. Id. at 477. The mission and authority that a corporate employer must be presumed to have given its chief executive officer are certainly much broader than that generally given by an employer to lower-echelon employees. Miller v. Keating, 349 So.2d 265, 269 (La.1977). On the other hand, narrower considerations such as whether the tort occurred on employer premises and during regular working hours are more relevant when assessing the conduct of a subordinate employee. Id.

In Ermert, the negligent employee was the president and chief executive officer of the employer corporation. He accidentally shot the plaintiff while at a hunting camp to build duck blinds for the upcoming duck hunting season. The evidence showed that while the executive employee used the camp partially for his own personal recreation, he repeatedly and consistently used it for business purposes, including the entertainment of preferred customers and employees. The evidence further showed that a major part of his employment duties was the development of new business and that the purpose of serving his business by participating in the hunting camp actuated the employee to an appreciable extent. The supreme court agreed with the trial court’s finding that the corporate employer essentially made the risks associated with duck hunting part of its business, in order to obtain direct and referral business,- justifying imposition of vicarious liability on the employer. Id. at 478-79..

An employee may be within the course and scope of his employment, yet deviate from it while engaging in a personal mission. See Timmons-, 99-3264 at p. 4, 761 So.2d at 510. But the mere fact that an employed is performing a personal mission while on an employment-related mission does not automatically -compel the conclusion that the deviation removes him | jjfrom the course and scope of employment. Id., 99-3264 at pp. 4-5, 761 So.2d at 510-11. If the purpose of serving the employer’s business actuates the employee to any appreciable extent, the employer is subject to liability if the act is otherwise within the service -of the business. Ermert, 559 So.2d at 477. Most cases that discuss the issue of deviation involve an employee taking a side trip while in the course of a business trip or errand. In such a case, it is generally held that when the employee deviates from the business route by taking a clearly identifiable personal side trip, the employee is unquestionably beyond the course of employment while going away from the business route and toward the personal objective. Timmons, 99-3264 at pp. 5-6, 761 So.2d at 511. But the issue of deviation cannot always be resolved by application of such a clear-cut general rule, given the variety in factual circumstances.

In order to remove the employee from the course and scope of employment, a deviation must be identifiable as such by its personal, nonbusiness purpose and must be substantial. There is no bright-line rule in determining what is a substantial or insubstantial deviation. This determination is a fact-driven inquiry made on a case-by-case basis. Timmons, 99-3264 at p. 7, 761 So.2d at 512. In making the determination, a court should examine all the facts and circumstances of the deviation, including such illustrative and non-exhaustive factors as: (1) when and where the deviation on a personal errand occurs relative to the employment-related errand; (2) the temporal and spacial boundaries of the deviation, (3) the nature of the employee’s work; (4) the additional risks created by the deviation; and (5) the surrounding circumstances. Id., 99-3264 at p. 5, 761 So.2d at 511. The court should also consider whether there was a “linking relationship” between the employment-related errand and the deviation; that |flis, whether the deviation was the result of or related to the employment or instead only incidental to it. Id., 99-3264 at p. 6, 761 So.2d at 511. Finally, the reasonableness of a deviation can have some bearing upon the determination of its substantiality, but reasonableness is not the conclusive factor. The focus of the court is the determination of whether the deviation is substantial or insubstantial rather than whether it is reasonable. Id., 99-3264 at p. 9, 761 So.2d at 513. .

The mere fact that a deviation is of short duration and does not extend a great distance beyond the geographic bounds of the employment mission does not make it insubstantial for purposes of determining whether it remained within the employee’s course and scope of employment. See Timmons, 99-3264 at .pp. 6-7, 761 So.2d at 511-12. An insubstantial deviation in terms of time and space may nevertheless involve a substantial deviation in purpose, justifying a finding that the deviation was outside the course and scope of employment. Thus, a court must consider not'only the extent of deviation in route or location but also the extent of deviation in purpose in determining the connexity “in time, place, and causation” between the employee’s tort and his employment duties. See Richard, 03-1488 at p. 6, 874 So.2d at 138.

If the incidents or factual elements of the deviation itself are operative in producing the accident, that factor in itself weighs heavily against a finding that the deviation is within the course and scope of employment. Timmons, 99-3264 at pp. 8-9, 761 So.2d at 512-13. That is, if the deviation creates additional risks beyond those inherent in the employment errand and substantially increases the risk of the employer’s exposure to vicarious liability without corresponding possibility of benefit to the employer, the [ 10deviation will generally fall outside the course and scope of employment. See Timmons, 99-3264 at pp. 8-10, 761 So.2d at 512-13.

Although the accident at issue occurred during Mr. Oncale’s regular work hours, he had “punched out” for purposes of his hourly compensation and was not being paid as an employee of Arc at that time. The accident occurred off Arc’s work premises and off the premises of Ray’s, the location where the crawfish boil was held and where Arc had authorized Mr. Oncale to be. While not necessarily conclusive, these temporal and spacial circumstances weigh against a finding that he was in the course of his employment at the time of the accident and in favor of the finding that he was engaged in a deviation from any employment-related mission.

Unlike the executive employee in Er-mert, Mr. Oncale was a lower-echelon employee, and his regular job duties with Arc did not include the entertainment of business colleagues or promotion of company business. There is no evidence that Mr. Oncale repeatedly and consistently attended intercompany social functions, and in fact, his visit to Ray’s on the accident date was his first and .only visit to that business during his employment at Arc. Mr. Maca-luso, to whom the automobile’s qualities were being showcased, was himself a subordinate or lower-echelon employee of Ray’s. These circumstances weigh against a finding that Mr. Oncale was in the scope of his employment.

In determining whether a particular accident may be associated with the employer’s business enterprise, the court must essentially decide whether the particular accident is a part of the more or less inevitable toll of a lawful enterprise. Richard, 03-1488 at p. 5, 874 So.2d at 137-38, citing Ermert, 559 So.2d at 476. When the tort becomes uncharacteristic of the business, vicarious liability is not imposed on the employer. Richard, 03-1488 at p. 1 nil, 874 So.2d at 141. There was no showing or evidence that the particular tort committed by Mr. Oncale was either characteristic of Arc’s business or arose from Mr. Oncale’s employment duties. The evidence shows that intercompany social gatherings motivated at least in part for business promotion were not uncommon in the industry sphere of Ray’s and Arc. However, the evidence does not suggest that simply allowing its rank-and-file employees to attend crawfish boils, hosted by other companies, on their own time, was characteristic of Arc’s business of leasing equipment. At best, Mr. Oncale’s attendance at the crawfish boil was only tangentially connected to his employment duties and Arc’s business interest, and the demonstration drive of his personal automobile was unquestionably further removed from the scope of his employment.

Arguably, there may be some genuine dispute on the issue of whether Mr. On-cale’s attendance at the crawfish bod hosted by Ray’s was in the general course arid scope of his employment with Arc. But there is no genuine issue of material fact relating to the general activity in which he was engaged at the time of the accident: the drive to demonstrate his automobile’s qualities. There is no evidence that Arc allowed him to attend the crawfish boil with the understanding that he was to use his personal automobile to promote good intercompany relations. ■ Mr. Oncale was not in any way seeking to advance his employer’s interests during the demonstration drive. He unilaterally decided to undertake the demonstration drive in his personal automobile, and that decision was, at most, merely incidental and not reasonably related to his purpose for being there. That activity was sufficiently removed both in purpose and location from the crawfish boil to constitute a substantial deviation from any employmentjrelated^ service, and it was the incidents inherent in that personal deviation that created additional risks and operated to produce the accident.

In short, we conclude on our de novo review that the additional risks of harm created by. the demonstration drive, particularly the excessive acceleration to demonstrate the automobile’s capabilities, were not inherent in Mr. Oncale’s employment and are not fairly attributable to Arc’s business. Accordingly, as Mr. Oncale was not in the course and scope of his employment, Arc cannot be held vicariously liable for his conduct and the trial court correctly concluded that Arc and Charter Oak were entitled to summary judgment.

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiffs-appellants, Dustin Macaluso and Mindy L. Macaluso.

AFFIRMED.

      . The plaintiffs' petition erroneously identified Arc’s liability insurer as Travelers Casualty and Surety Company.

      . The plaintiffs originally alleged that Mr. On-cale was an insured under both his own personal policy and that issued by Charter Oak to Arc, but did not oppose the granting of summary judgment in favor of Charter Oak on the grounds that genuine dispute existed on the issue of whether Mr. Oncale was its insured. Similarly, they have not assigned any .error on the part of the trial court in that regard in this appeal. Because the plaintiffs did not raise that coverage issue in the trial court or in this court, we decline in our discretion to consider it.