text:
    Dalton D. BROUSSARD, et ux. v. PROGRESSIVE SECURITY INSURANCE COMPANY, et al.
    No. 11-1585.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      Richard J. Petre, Jr., Onebane Law Firm, Lafayette, LA, for Defendants/Appellants, Gateway Dirtworks, LLC, QBE Specialty Insurance Company.
    John J. Erny, III, Casler, Bordelon & McGinty, Metairie, LA, for Defendant/Ap-pellee, Progressive Paloverde Insurance Company.
    Gretchen Heider Mayard, Katherine P. Martin, Martin Mayard, LLC, Lafayette, LA, for Defendant/Appellee, State Farm Mutual Auto Insurance Company.
    Scott A. Dartez, Perrin, Landry, deLau-nay, Dartez & Ouellet, Lafayette, LA, for Plaintiffs/Appellees, Dalton D. Broussard, Mary S. Broussard.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

|, The plaintiffs pursued damages following an automobile accident in which their vehicle was struck by a truck involved in transporting material for another dirt works business. The plaintiffs sought damages from, among others, the hiring dirt works business and its insurer. The trial court ultimately entered summary judgment in favor of the plaintiffs, finding that the hiring business’s insurance policy provided coverage to the driver insofar as he was driving a hired and/or nonowned automobile. The dirt works business and its insurer appeal. For the following reasons, we reverse.

Factual and Procedural Background

This insurance coverage matter arose when the vehicle of Dalton Broussard and Mary Broussard was involved in an inter-sectional collision with a dump truck driven by Charles Belvin in Maurice, Louisiana. Deposition testimony indicated that the truck was used for the business purposes of C.K. Paul Trucking, a business venture of Mr. Belvin and his girlfriend, Yolanda Lumar. According to her deposition testimony, Yolanda created C.K. Paul to haul materials such as dirt, gravel, and asphalt. The dump truck was registered in the name of Latoya Lumar, Yolanda’s sister.

On the day of the accident, Mr. Belvin was engaged in transporting material from Maurice to a construction area near Interstate 49 pursuant to an arrangement between C.K. Paul and Gateway Dirtworks, LLC. Gateway owner Robert Connolly explained that Gateway performed work for businesses who required dump truck service for the delivery of sand, gravel and asphalt for road work or construction. According to Mr. Connolly’s deposition, Gateway owned three dump trucks for its business purposes. He explained that C.K. Paul had contacted Gateway’s dispatcher, Barbara Ruiz, inquiring about work availability. He stated |2that Ms. Ruiz handled the arrangements and that “[t]he arrangement with C.K. Paul or any other truck” would- be that the truck would get ninety percent of the rate paid by the customer and Gateway would retain ten percent.

. Following the accident, Mr. and Mrs. Broussard filed this suit seeking general and special damages. They filed suit against C.K. Paul, Mr. Belvin, Latoya Lu-mar and the subject truck’s insurer Progressive Paloverde Insurance Company. The suit also named Gateway and its insurer, QBE Specialty Insurance Company, as defendants insofar as the plaintiffs asserted that Mr. Belvin was operating the dump truck under the control and direction of Gateway at the time of the accident.

QBE filed an initial motion for summary judgment, asserting that its policy issued to Gateway was inapplicable since Gateway was not Mr. Belvin’s employer. Gateway joined in QBE’s memorandum in support of the motion for summary judgment, asserting also that it was not Mr. Belvin’s employer. The trial court denied the motion at that time.

Thereafter, the plaintiffs sought summary judgment and asserted that there was no genuine issue of material fact as to whether Mr. Belvin was an insured under the QBE policy or to whether the truck operated by him was qualified as a “non-owned auto” under that policy. Progressive and Mr. Belvin filed a similar motion for summary judgment. Gateway also filed its own motion for summary judgment, asserting that based on its evidence, including the affidavit of its dispatcher, Barbara Ruiz, that it was not Mr. Belvin’s employer.

Following a hearing, the trial court granted summary judgment in favor of the plaintiffs and Progressive, determining that the QBE policy provided insurance coverage for Mr. Belvin. The trial court denied the motion for summary judgment |ofiled by Gateway and QBE. It also denied Gateway’s and QBE’s motion for reconsideration or, alternatively, a new trial. Ultimately, the matter was designated as a final judgment for the purpose of an immediate appeal pursuant to La.Code Civ.P. art. 1915.

Gateway and QBE appeal, , assigning the following as error: . ,

(1) The trial court erred in finding that a truck used by a subcontractor in doing work for a general contractor becomes the general contractor’s “hired auto” under the general contractor’s automobile liability policy even though there was no lease agreement for the vehicle; thus, the trial court erred in granting the summary judgment motions on coverage filed by plaintiffs and Progressive.
(2) The trial court erred in granting summary judgment despite several genuine issues of material fact including (a) the factual issue of whether a vehicle driver was the general contractor’s employee or subcontractor, an issue that the trial court cited in denying the general contractor’s summary judgment motion that the driver was not an employee, and (b) the factual issue of whether driver Belvin was the owner of the truck that he was driving.

Discussion

Burden of Proof

A trial court must grant a motion for summary judgment “if the pleadings, de-' positions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). While the burden of proof remains with the mover to demonstrate that genuine issues of material fact do not exist, a moving party who will not bear the burden of proof at trial is not required to negate all essential elements of the adverse party’s claim. La.Code Civ.P. art. 966(C)(2). Instead, the moving party must point out that “there is an absence of factual support for one or more elements essential to [4the adverse party’s claim, action, or defense.” Id. Once the moving party has met this initial burden of proof, the burden shifts to the non-moving party to “produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial[J” Id.

On review, an appellate court conducts a de novo review of motions for summary judgment, making the same inquiries as the trial court in determining the appropriateness of summary judgment. Champagne v. Ward, 03-8211 (La.1/19/05), 893 So.2d 773.

QBE Insurance Policy

The QBE. policy issued to Gateway provides that the following are insureds:

a. You for any covered “auto”.
b. Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(1) The owner or anyone else from whom you hire or borrow a covered “auto”. This exception does not apply if the covered “auto” is a “trailer” connected to a covered “auto” you own.
(2) Your “employee” if the covered “auto” is owned by that “employee” or a member of his or her household.
(3) Someone using a covered “auto” while he or she is working in a business of selling, servicing, repairing, parking or storing “autos” unless that business is yours.
(4) Anyone other than your “employees”, partners (if you are a partnership), members (if you are a limited liability company), or a lessee or borrower or any of their “employees”, while moving property to or from a covered “auto”.
(5) A partner (if you are a partnership), or a member (if you are a limited liability company) for a covered “auto” owned by him or her or a member of his or her household.
c.Anyone liable for the conduct of an “insured” described above but only to the extent of that liability.
| ^Further, in its “schedule of coverages and covered autos” section, the policy includes, among the covered autos, “nonowned ‘autos’ only.” The policy defines “nonowned autos” as:
Only those “autos” you do not own, lease, hire, rent or borrow that are used in connection with your business. This includes “autos” owned by your “employees”, partners (if you are a partnership), members (if you are a limited liability company), or members of their households but only while used in your business or your personal affairs.

The trial court séemingly found coverage in light of several aspects of the above policy language. In reasons for ruling, the trial court explained:

The owner of Gateway Dirt testified that Gateway hired Belvin to help with hauling dirt. Gateway informed Belvin about the work to be done, the pay he would receive and what needed to be done on Gateway job sites. Further, the evidence is uncontroverted that the truck driven by Belvin was not owned by Gateway but by his girlfriend’s sister Latoya Lumar. The Court finds that there is no genuine issue of material fact that Belvin was hired by Gateway and that the truck he was driving qualifies as a non-owned auto.
Further, the Court agrees with Brous-sard and Progressive that Belvin is an insured under the policy. Section b of the policy provides that “an insured is anyone using with your permission a covered auto you own, hire, or borrow.” There is no genuine issue of material fact that Belvin became an insured because he was on a mission for Gateway and in furtherance of Gateway’s business at the time of the accident. Therefore, under the terms of the policy, Bel-vin was an “insured” because he was driving a “covered auto” with the permission of Gateway and which Gateway hired to do their dirt hauling work.

Gateway and QBE question the trial court’s determinations that the QBE policy afforded Mr. Belvin coverage due to its finding that the dump truck involved in the accident was a “hired” auto under the terms of the policy and, furthermore, that it afforded Mr. Belvin coverage insofar as the truck qualified as a “nonowned auto.”

| ¿Sired, Auto

Gateway and QBE first contest whether coverage was afforded by Subsection l.b; in other words, whether Mr. Belvin was insured as a permissive user of an auto Gateway hired. The policy defines a “hired auto” as:

Only those “autos” you lease, hire, rent or borrow. This does not include any “auto” you lease, hire, rent, or borrow from any of your “employees”, partners (if you are a partnership), members (if you are a limited liability company) or members of their households.

Although the trial court determined that Gateway had hired the subject truck, review of the parties’ submissions indicates that genuine issues of material fact remain in this regard. We note that the trial court’s ruling and the arguments in support of the motion for summary judgment assert that Gateway hired Mr. Belvin and that it hired the dump truck as well. However, the record lacks evidence permitting this definitive and specific ruling.

Instead, the depositions of Mr. Belvin, Yolanda Lumar, along with the affidavit of Barbara Ruiz, reference Gateway engaging C.K. Paul, generally, to provide services to Gateway’s projects. No evidence referenced solely the truck being hired. Even the load tickets invoicing each load made by Mr. Belvin for Gateway are entitled C.K. Paul, and include the details of the daily load. Only one of those tickets indicates “Driver. Charles. Truck # ckp[sic] # 1”. Otherwise, the tickets reveal the date and the amount of the load. The accompanying checks from Gateway, list ‘Yolanda Lumar” as the payee. Neither does the record contain a contract referencing the hiring or leasing of this truck.

At a minimum, these facts constitute genuine issues of material fact as to whether Gateway “hired” this particular dump truck. The facts could arguably be construed so as indicate that Gateway and C.K. Paul entered into a straightforward | ysubcontracting arrangement for the totality of C.K. Paul’s services rather than a particular contract to hire the subject truck.

The plaintiffs suggest that Taylor v. United States Fidelity & Guaranty Insurance Co., 630 So.2d 237 (La.1993), is persuasive with regard to the “hired” auto issue. In Taylor, the supreme court considered whether a plaintiff was injured in an automobile accident which involved an owner-operated truck, pulling a trailer owned by another individual. The trailer was loaded with lumber owned by a lumber company. The supreme court remarked summarily that the owner-operator of the truck at issue in that case was driving an auto “hired” by the lumber company under the terms of the lumber company’s policy.

Importantly, however, Taylor, 630 So.2d 237, did not focus on analysis of the “hired” auto issue. Instead, the court included only a footnote indicating the lumber company president testified that his company owned no trailers and it hired tractors and trailers for transportation. Rather, the issue considered- in Taylor involved whether joint tortfeasors were entitled to a credit against a plaintiffs damages for the amount received in a pre-trial compromise. Accordingly, we do not consider Taylor as applicable here as it is not on point with the, issue now before this court.

We observe here too that with regard to the “hired” auto issue, Subparagraph l.b(l) excludes from coverage “[t]he owner or anyone else from whom you hire or borrow a covered ‘auto.’ ” Certainly, the ownership of the truck is left unresolved by the submissions. While evidence indicated that the truck was registered to Yolanda’s sister, other evidence placed the ownership of the truck into question. Particularly, portions of the testimony of both Mr. Belvin and Yolanda support a view that these two own the truck or that they own the truck along with Yolanda’s Issister. This testimony raises the issue of whether Subparagraph l.b(l) would exclude coverage as a “hired” auto due to the issue of ownership.

Further, Subparagraph l.b(2) excludes coverage for “[y]our ‘employee’ if the covered ‘auto’ is owned by that ‘employee’ or a member of his or her household.” Recall that the trial court determined that Mr. Belvin was working as |9an employee of Gateway. This determination, alone, in light of the question raised regarding Mr. Belvin’s and/or Yolanda’s ownership of the truck would have precluded summary judgment finding coverage as a “hired” auto. However, much like the ownership issue, the question of whether Mr. Belvin could be considered an employee of Gateway is not resolved by the parties’ evidence. Rather, competing evidence reflected that no contract of employment was extended to Mr. Belvin, he worked when a Gateway project was available for C.K. Paul, and C.K. Paul paid Mr. Belvin after it was paid by Gateway. However, Gateway, through its dispatcher, offered some type of guidance regarding Mr. Belvin’s performance on the job in that at least some type of directions were given regarding his route to the job site and his time of arrival at the site.

In light of the existence of genuine issues of material fact, entry of summary judgment finding that the QBE policy afforded Mr. Belvin coverage as a permissive user of the truck, as a “hired” auto, was in error.

Nonowned Auto

Gateway and QBE also question the trial court’s determination that the QBE policy afforded Mr. Belvin coverage insofar as the truck was a “nonowned auto.” While Gateway and QBE concede that the truck was a “nonowned auto” under the terms of the policy, they argue that the policy affords coverage for “nonowned autos” only to the named insured, Gateway, and not to Mr. Belvin.

Reference to the policy reflects merit in the appellants’ position. Specifically, the QBE policy lists three types of “covered autos”: “specifically described ‘autos’ “hired ‘autos’ only”; and “nonowned ‘autos’ only”. Thereafter, in describing who is an insured, the policy lists:

|)na. You for any covered “auto”, b. Anyone else while using with your permission a covered “auto” you own, hire or borrow[.]

Thus, the policy insures the named insured, Gateway, for any covered auto, including a “nonowned auto” and anyone else, including Mr. Belvin, only if he or she is permissively using a covered auto which Gateway owns, hires, or borrows. As explained above, genuine issues of material fact remain with regard to whether Gateway hired the truck at issue.

The plaintiffs point to two cases addressing nonowned autos, Huddleston v. Luther, 04-1420 (La.App. 3 Cir. 3/9/05), 897 So.2d 887, writ denied, 05-0895 (La.6/17/05), 904 So.2d 703, and Perkins v. Guaranty National Insurance Co., 95-229 (La.App. 3 Cir. 11/2/95), 667 So.2d 559, writ denied, 96-0759 (La.5/31/96), 673 So.2d 1033. Progressive cites the latter case as well. They contend that these support the trial court’s determination that Mr. Belvin was insured in light of the “nonowned auto” status of the truck. However, neither Huddleston nor Perkins is applicable in this situation.

Instead, Huddleston, 897 So.2d 887, generally addressed whether a vehicle was a “nonowned auto” under the pertinent policy and not, particularly, whether “anyone else,” such as Mr. Belvin, was insured as the operator of a “nonowned auto.” Also, Perkins, 667 So.2d 559, addressed the question of whether an employee, driving an admitted “nonowned auto,” was used in pursuit of the insured’s business affairs and whether UM coverage was therefore afforded to the employee under that policy. Perkins did not involve a question of whether a driver, who was not established to be an employee, was covered for the permissive use of a “nonowned auto” as in the present case.

|T1We note, again, that Gateway and QBE concede that the truck was a “non-owned auto.” They simply dispute whether Mr. Belvin is insured as an operator of such a vehicle. Under the terms of the policy, we conclude that the trial court inappropriately entered summary judgment, declaring Mr. Belvin to be an insured under the QBE policy. Accordingly, we reverse that ruling below.

DECREE

For the foregoing reasons, the judgments entering summary judgment in favor of the plaintiffs, Dalton D. Broussard and Mary D. Broussard, and the defendant, Progressive Paloverde Insurance Company, are reversed. All costs of this proceeding are assessed equally to the plaintiffs-appellees, Mr. Broussard and Mrs. Broussard, and the defendant-appel-lee, Progressive.

REVERSED.

      . Gateway and QBE do not question the denial of their motion in this appeal.

      . Mr. Belvin testified as follows with regard to the ownership of the truck when C.K. Paul was formed:
      A Well, I started driving trucks for myself. I had got laid off from over there because the work was kind of slow.
      Q So you were laid off, and then you began driving a truck for yourself?
      A Yes, sir.
      Q Did you own your own truck?
      A Well, we owned the truck. Yes, sir.
      Q Who is "we”?
      A Me and Yolanda Lumar. Or you can say Yolanda.
      Q You all owned it together?
      A Well, she owned the truck. I drove the truck.
      Q What truck was that?
      A A Mack truck. It was a 1989 Mack. He later testified that:
      A So we started a trucking business. The truck became — Like I said, we saw a truck. And we decided to buy the truck. We went out and bought the truck. And then, we went to do the paperwork on the truck. At that particular time, when we went [to] do the paperwork on the truck, Yolanda's license at that particular time, it was — she had a flag or something on her license. I'm not exactly sure about that. So the sister was with us. So we asked her if she could just go ahead and put the truck in her name until we get the stuff straight.

      Q Yolanda had a flag on her license?
      A I think it was a flag or something on her license. Yes.
      Q Right. And because she had a flag on her license, when you all went to purchase the truck, Yolanda's sister, Latoya, volunteered to the truck in her name?
      A Yes.
      Q Am I understanding that correctly?
      A Yes.
      Q So tell me what happens. This agreement between Yolanda and Latoya, did this happen when you all purchased the vehicle?
      A Yes.
      Yolanda’s responses to questioning also touched on the ownership issue:
      Q Your boyfriend, Mr. Charles Belvin, has testified earlier that you, Mr. Belvin, and your sister—
      A ■ Latoya.
      Q — Latoya, purchased a vehicle?
      A Yes.

      . Mr. Belvin explained that he and Yolanda lived at the same residence, thus raising the question of whether the truck was owned by a member of his household in light of Subpara-graph l.b(2).


source: Caselaw Access Project

author: EZELL, Judge.

license: Public Domain

text:
    Philip FONTENOT v. LOUISIANA WORKERS’ COMPENSATION CORP., et al.
    No. WCA 11-1589.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.
    David Keith Johnson, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendants/Appellees, Louisiana Workers’ Compensation Corporation, Moreno Energy, Inc.
    Christopher Richard Philipp, Lafayette, LA, for Plaintiff/Appellant, Philip Fonte-not.

      Court composed of JOHN D. SAUNDERS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

|, Phillip Fontenot appeals the decision of the workers’ compensation judge below finding that an injury to his neck was not caused by a work-related accident. For the following reasons, we hereby affirm the decision of the workers’ compensation judge.

On July 8, 2009, Mr. Fontenot was in the course and scope of his employment when he was a passenger in a vehicle which collided with a bear. The next day, he saw his doctor for treatment for neck pain. He was diagnosed with a left cervical and upper trapezius strain. He returned on July 15, presented as completely pain free, and was released to work. He returned to work on July 20 and worked until a separate accident resulted in a separate injury on an offshore platform in August of 2009. In October, after three months without complaint of cervical discomfort, he presented to Dr. George Williams again complaining of neck pain. Dr. Williams recommended surgery to repair disc herniations at C3-C6. Mr. Fon-tenot filed the current workers’ compensation claim to have his employer, Moreno Energy, and its insurer, Louisiana Workers’ Compensation Corporation, pay for the surgery and related medical expenses.

After trial on the matter, the workers’ compensation judge ruled that there was no causal connection between the accident and Mr. Fontenot’s injury. From that decision, Mr. Fontenot appeals.

On appeal, Mr. Fontenot asserts four assignments of error. He claims that the workers’ compensation judge erred in finding he was not entitled to the surgery recommended; that the workers’ compensation judge erred in ruling he was not entitled to reimbursement for prescriptions he paid for related to the injury; that the workers’ compensation judge erred in failing to order reimbursement for other outHof-pocketg medical expenses related to the injury; and that the workers’ compensation judge erred in failing to award penalties and attorney fees for failure to pay his claims. We disagree.

The standard for reviewing a workers’ compensation judge’s decision was discussed by this court in Butterfield v. Turner Industries, 06-1098, pp. 3-4 (La.App. 3 Cir. 2/7/07), 951 So.2d 476, 479, writ denied, 07-507 (La.4/27/07), 955 So.2d 692:

In Dean v. Southmark Const, 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117, the supreme court stated:

In workers’ compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s findings of fact is the “manifest error-clearly wrong” standard. Brown v. Coastal Construction & Engineering, Inc., 96-2705 (La.App. 1 Cir. 11/7/97), 704 So.2d 8, 10, (citing Alexander v. Pellerin Marble & Granite, 93-1698, pp. 5-6 (La.1/14/94), 630 So.2d 706, 710). Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander, 630 So.2d at 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently....

This court, in Monceaux v. R & R Const., Inc., 05-533, p. 6 (La.App. 3 Cir. 12/30/05), 919 So.2d 795, 799-800, writs denied, 06-585 (La.5/5/06), 927 So.2d 325, 06-636 (La.5/5/06), 927 So.2d 317, noted the following:

In determining whether the worker has discharged his or her burden of proof, the trial court should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent “circumstances casting suspicion on the reliability of this testimony.” West, 371 So.2d at 1147; Holiday v. Borden Chemical, 508 So.2d 1381, 1383 (La.1987). The trial court’s determinations as to whether the workers’ testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error. Gonzales v. Babco Farm, Inc., 535 So.2d 822, 824 (La.App. 2d Cir.), writ denied, 536 So.2d 1200 (La.1988) (collecting cases).

In this matter, the workers’ compensation judge found no causal relationship between the work-related accident and Mr. Fontenot’s neck injury. The record contains ample evidence to support this finding. Both Dr. Paul Fenn, who examined Mr. Fontenot for his second opinion, and Dr. John Budden, who performed the independent medical examination, had serious reservations about any link between the accident and the injury at issue here. Both noted that Mr. Fontenot was seen one week after the accident and reported himself as being “totally asymptomatic” and “able to move without any pain.” Mr. Fontenot was fully released to return to work at that time. His medical records reflect that he did not seek any additional treatment for his neck for three months. He proceeded to work, lifting forty to sixty pound buckets of debris over his head, roughly a thousand times-according to his own testimony-without any pain. He continued to work until he was injured in a separate accident which required surgery to alleviate back pain. Both doctors felt that it was highly unlikely Mr. Fontenot could go from complete resolution of his symptoms on July 15, 2009, to needing surgery without some intervening activity. The fact that Mr. Fontenot was able to perform heavy lifting over his head bolstered Dr. Budden’s belief that there was no injury caused by the accident which could have been aggravated with time. In light of these facts, we cannot say that the workers’ compensation judge erred in finding that there was no causal connection between the accident and Mr. Fontenot’s injury.

^Because we find there is no error concerning causation of this injury, we need not address Mr. Fontenot’s additional assignments of error, which all rely on the same issue of causation.

For the above reasons, the decision of the workers’ compensation judge is hereby affirmed. Costs of this appeal are assessed against Mr. Fontenot.

AFFIRMED.


author: DECUIR, Judge.

text:
    INTERDICTION OF Theodule Pierre NOEL, Sr.
    No. 12-6.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.
    R. Chadwick Edwards, Jr., Edwards & Bellaire, L.L.C., Abbeville, LA, for Appel-lee, Theodule Pierre Noel, Sr.
    Thomas J. Gayle, Gayle Law Firm, LLC, Lake Charles, LA, for Appellants, Theodule P. Noel, Jr., Christine Noel De-venport, Catherine A. Noel.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

1, Siblings Theodule P. Noel, Jr., Christine Noel Devenport, and Catherine A. Noel filed a petition seeking the full interdiction of their father, 83-year-old Theo-dule P. Noel, Sr. (Mr. Noel). Summary judgment was rendered in favor of Mr. Noel, and his children have appealed the dismissal of their claim. Mr. Noel answered the appeal, seeking attorney fees and sanctions. For the following reasons, we affirm.

Mr. Noel and his wife, Joyce, had four children: the three petitioners and another son, Samuel Noel. The petitioners originally sought the interdiction of their mother, as well as their father, but their mother died during the pendency of these proceedings. According to the facts alleged in the record, Mr. Noel had open heart surgery several years ago, and, during the course of a difficult recovery, he suffered a stroke in 2002. After extensive therapy and hospitalizations, he recovered and was once again able to conduct his farming operations, drive a car, socialize with friends, and the like. Mrs. Noel then suffered a stroke in 2005. She did not recover as well and required full-time assistance until her death in 2012.

At the time of their mother’s stroke, all four Noel children were involved in their parents’ lives. Three live in Abbeville near their parents and one lives in Houston. In 2005, all four of the children were designated as agents, to make unanimous decisions, in a medical power of attorney granted by Mr. Noel. There is no indication of family tension preceding the decline of Mrs. Noel’s health in 2005. From that time forward, however, the petitioners allege that Mr. Noel began to act differently towards them. Mr. Noel began to rely on Samuel to the exclusion of the other siblings. He showed some personality changes. He granted an exclusive general power of attorney to Samuel. He decided to Usell some of his properties to a friend and to Samuel. He acquiesced in Mrs. Noel’s sale of her separate property to Samuel and his wife. The essence of the petitioners’ claim is stated in the following sentence from the petition: “If the savings and resources of [Mr. Noel] have been diminished so that the sale of property is necessary, it has to be the result of mismanagement and incapacity, psychological manipulation and financial exploitation.”

Mr. Noel answered the petition and moved for summary judgment. In support thereof, he filed eight affidavits from friends and physicians, all of whom attested to his mental capacity and lack of dementia. Mr. Noel asserts that he simply changed his mind in recent years as to how he wanted to dispose of his property, and three of his children disagree with those decisions. He also has become “disappointed, frustrated, and angry” with those three children. Mr. Noel contends summary judgment is appropriate at this early stage in the proceedings because the petitioners will not be able to meet their fourfold burden of proof for a successful interdiction proceeding: infirmity, inability to care for one’s person, inability to care for one’s property, and necessity. La.Civ. Code art. 389. He seeks attorney fees under La.Code Civ.P. art. 4550, which may be awarded “as the court may consider fair.”

The petitioners asked for a continuance of the summary judgment hearing in order to conduct discovery. The motion was denied.

The petitioners’ cause of action is based on the following Civil Code provision:

Art. 389. Full interdiction
A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate | .¡those decisions, and whose interests cannot be protected by less restrictive means.

Article 4548 of the Louisiana Code of Civil Procedure states that “[t]he petitioner in an interdiction proceeding bears the burden of proof by clear and convincing evidence.” In the procedurally similar case of In re Clement, 45,454 (La.App. 2 Cir. 8/11/10), 46 So.3d 804, 808-809, the second circuit reiterated Louisiana’s well-established summary judgment rules and reached the conclusion that the interdiction sought was not factually supported; therefore, the petitioner would not be able to meet her “clear and convincing” burden of proof at trial, and summary judgment was appropriate:

Appellate review of the granting of a motion for summary judgment is de novo, using the identical criteria that govern the trial court’s consideration of whether summary judgment is appropriate. King v. Illinois National Insurance Company, 2008-1491 (La.4/3/09), 9 So.3d 780. A motion for summary judgment is a procedural device used when there is no genuine issue of material fact. King v. Illinois National Insurance Company, supra. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action allowed by law. La. C.C.P. art. 966(A)(2). A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).
On the motion for summary judgment, the' burden of proof is on the mover. La. C.C.P. art. 966. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, then the mover may merely point out to the court the absence of factual support for one or more elements essential to plaintiffs claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material facts remain. La. C.C.P. art. 966(C)(2); Fletcher v. Wendelta, Inc., 43,866 (La.App.2d Cir.1/14/09), 999 So.2d 1223, writ denied, 2009-0387 (La.4/13/09), 5 So.3d 164. If the plaintiff fails to meet this burden, there is no genuine issue of material fact and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Fletcher, supra.
|4In his motion for summary judgment, Mr. Clement sought dismissal of his daughter’s petition to interdict him. In support of his motion, among other evidence, he submitted the affidavits of two board-certified psychiatrists who opined that he was able to consistently make reasoned decisions regarding the care of his person and property. At this point, Mr. Clement had shown a lack of factual support for the interdiction and demonstrated that Ms. Brown would be unable to satisfy her evidentiary burden of proof at trial. Pursuant to the interdiction law of this state, she was obliged to prove by clear and convincing evidence that Mr. Clement was unable to care for his person or property. Nothing in the affidavits submitted by Ms. Brown contradicted the medical evidence given by Dr. Blanche and Dr. Gullapalli, both of whom unequivocally stated that, based upon their recent examinations of Mr. Clement, he did not require interdiction. In particular, Dr. Blanche described how most of Mr. Clement’s symptoms were resolved by the administration of the proper medications after his condition was reevaluated.
Like the trial court, we are compelled to conclude that summary judgment is appropriate in the instant case. Accordingly, we affirm the granting of summary judgment in favor of Mr. Clement and the dismissal of Ms. Brown’s interdiction petition with prejudice. [Footnotes omitted.]

In deciding the motion for summary judgment in the instant case, the trial court noted the petitioners’ concerns and recognized that Mr. Noel’s actions raised red flags. Nevertheless, the court found no “concrete facts” to support the interdiction and was “very influenced by the affidavits from the treating physicians.” The court suggested the petitioners have other legal remedies to address the allegations raised herein.

We find no error in the conclusions reached by the trial court. The petitioners have other options through which they can reopen the lines of communication with their father and brother. Without the need for formal discovery, the petitioners have access to the public records and to neighbors and friends who may be able to shed some light on the activities of their father. Under La.Code Civ.P. art. 4545, the petitioners could have sought the appointment of an examiner, but they chose not to do so. Upon de novo review, |fiwe find the petitioners have not put forth evidence sufficient to demonstrate the existence of a genuine issue of material fact as to whether the restrictions inherent in a full interdiction are necessary. They have made allegations but have presented no evidence of Mr. Noel’s infirmity or inability to care for himself or his property.

The petitioners contend in this appeal that had the trial court granted a continuance for purposes of discovery, they could have produced evidence sufficient to defeat summary judgment. The trial court disagreed, pointing the petitioners toward “other legal remedies.” We find no abuse of discretion in the denial of a continuance. The petitioners have not shown “good cause” for a continuance as articulated in La.Code Civ.P. art. 966(B).

However, the trial court did find that the petitioners had genuine concerns regarding the apparent self-dealing and “unusual things” going on. Therefore, Mr. Noel’s request for costs and attorney fees was denied. We find no manifest error in this conclusion.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.


author: PETERS, J.

text:
    J.P. v. C.E.
    No. 12-20.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      J.P., Breaux Bridge, LA, Plaintiff/Appellant, In Proper Person.
    Kenneth R. Martinez, State of Louisiana, Department of Children and Family Services, Ville Platte, LA, for Defendant/Appellee, State of Louisiana, Department of Social Services.
    Bridgette A. Soileau Gaudin, Attorney at Law, Opelousas, LA, for Defendant/Appel-lee, Curator for N.P.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   PETERS, J.

hJ.P. initially brought this action seeking paternity testing and named C.E., the biological mother of the child in question, as the sole defendant. The State of Louisiana, Department of Social Services, Support Enforcement Services (the state), intervened in the suit. J.P. now appeals from a trial court judgment sustaining a peremptory exception of prescription in favor of the state. For the following reasons, we reverse the trial court judgment and remand this matter to the trial court for further proceedings.

DISCUSSION OF THE RECORD

The minor child at issue in this litigation, N.P., was born in Lafayette, Louisiana, on November 8,1999. His birthmother was C.E., and soon after N.P.’s birth, J.P. executed an affidavit certifying that he was N.P.’s biological father. N.P.’s Certificate of Live Birth lists J.P. as the biological father.

On September 22, 2009, J.P. filed a Petition for Paternity Testing, naming C.E. as defendant. In the petition, J.P. alleged the following concerning his right to paternity testing:

3.
Plaintiff shows that in accordance with La[.] C.C. art. 198 that the Defendant, [C.E.] did in bad faith deceive the Plaintiff into believing that he was the biological farther [sic] of her child, [N.P.]
4.
Further, after learning that the Defendant practices black magic, spells and curses, the Plaintiff discovered that the Defendant was working black magic in their relationship through her religious practice of witchcraft.
_k5.
The Plaintiff shows that he was warned by other men that the Defendant would produce an authentic looking document that claimed she was to inherit the sum of $5 million dollars. She would use this document to entice men into a long term relationship.
6.
The Plaintiff shows that as a result of years of deceitful practices in the form of witchcraft by the Defendant that he has suffered damages in the form of paying child support, financial distress and ridicule by his peers for being suckered into believing that [N.P.] was the Plaintiff’s biological son.

Based on these allegations, J.P. requested that C.E. be ordered to submit N.P. for paternity testing in order to determine whether he was N.P.’s biological father.

The state, rather than C.E., responded to the petition by filing an intervention naming both J.P. and C.E. as defendants in intervention. In its intervention, the state asserted that it was a necessary and indispensible party to this action as it had obtained a prior judgment of child support in favor of N.P. and against J.P., effective September 15, 2001. The trial court granted the state’s right to intervene by an order dated October 30, 2009. On the same day it filed the intervention, the state answered J.P.’s petition.

After a number of other pleadings were filed addressing discovery issues and service issues on C.E., J.P. amended his petition by a pleading filed December 21, 2010. Among other changes, the amendment replaced the original Paragraphs 3 through' 6 with the following:

3.
Defendant, [C.E.], and petitioner, [J.P.], are not married and have never been married.
4.
This court has jurisdiction over the status in question based on La.Code Civ. Proc. art. 10(A)(8). This court may exercise personal | ¿jurisdiction over the defendant, [C.E.], pursuant to La. R.S. 13:3201(A)(7).
5.
Service of process of the original Petition for Paternity Testing was made on the non-resident defendant by as required by La. R.S. 13:8204(A), as evidence [sic] by the documents attached hereto as Exhibit A, in globo.
Alternatively, if the court finds that service of process cannot be made on the non-resident defendant by registered or certified mail or by actual delivery, then petitioner requests that the court appoint an attorney at law to represent the defendant pursuant to La.Code Civ. Proc. art. 5091 and that service of process be made on the attorney so appointed.
6.
Pursuant to La.Code of Civ. Proc. art. 5091.1, petitioner requests that the court appoint an attorney to represent the child whose status is at issue.

The deletion and replacement of the original paragraphs had the effect of eliminating the original reasons for J.P.’s request for paternity testing.

On January 6, 2010, J.P. filed a Motion for Hearing to Close Case. J.P. alleged in his motion that C.E. was served with notice of his petition by the St. Landry Clerk of Court’s reissue of its long arm service via the United State Postal Service (USPS). The petition was mailed to C.E.’s address in Houston, Texas. The USPS’s track and confirm showed that the document was unclaimed in Houston on July 12, 2010, but that it was delivered on July 17, 2010, in Breaux Bridge, Louisiana. However, after a hearing on the motion, the trial court denied J.P.’s request to close the paternity case.

After more proceedings directed toward service on C.E., on May 2, 2011, the state filed exceptions of non-joinder of a necessary and indispensible party, prescription, no cause of action, prematurity, vagueness, and lack of service of process on C.E. J.P. responded to this filing by again amending his petition. This |4amendment, which was filed on May 27, 2011, again replaced previous paragraphs, including Paragraphs 6 and 7 which relate directly to the issue of knowledge. These paragraphs now read as follows:

6.
Pursuant to La.Code of Civ. Proc. art. 2004, a fraudulent judgment, the petitioner request [sic] that DNA testing be administered in this matter in order to further substantiate fraudulent allegations that [C.E.] knowingly and fraudulently deceived [J.P.] into signing the acknowledgement and birth certificate of her minor child by having [J.P.] believe that he was the father.
7.
Plaintiff has interviewed ex co-workers and personal associates of [C.E.] on or about September 2009 who made [J.P.] aware that the minor child was not his child and that [C.E.] did not know who was the father of her child due to the numerous sexual relationships that she had at the time of conception of the ■ minor child in question.

The state’s exceptions were tried on October 31, 2011. At the end of that hearing, the trial court granted judgment maintaining the state’s peremptory exception of prescription. The judgment ultimately executed by the trial court on November 14, 2011, constituted a form judgment apparently used by the state in support cases, which gave the trial court a number of paragraphs to choose from and complete. In this case, the trial court marked a box under the title “OTHER:” and inserted the following language:

Exceptions dismissing petition is granted on the exception of prescription and petitioner failed to establish a substantial likelihood [of non-parentage] due to duress, fraud, or otherwise pursuant to R.S. 9:406.

J.P. appeals from this judgment, raising three assignments of error:

1. Whether the court can allow the state’s attorney and intervener [sic] seemingly represents the defendant-appellee in litigation, proceed to litigate the case with the defendant-appellee absent from the hearing by having the case dismissed on exceptions and[;]
|s2. Whether the trial court erred by not acknowledging the 2nd Amended Petition for Paternity Testing And Annulment Of Acknowledgment which cured deficiencies raised by the intervener’s [sic] exceptions and[;]
3. Whether the trial court erred in holding a default confirmation plead- ' ing for over 45 days without ruling on the matter at the hearing because the judge kept the pleading on his desk[.]

OPINION

Assignment of Error Number One

In his first assignment of error, J.P. argues that the trial court erred in allowing the state, as an intervenor, to litigate this matter in lieu of the absent C.E. Specifically, he asserts that the state should not have been allowed to raise exceptions in his proceedings against C.E. We find no merit in this argument.

Louisiana Revised Statutes 9:406(B) provides that the “office of children and family services, support enforcement services of the Department of Children and Family Services” is a necessary party to an action for the revocation of an authentic act of acknowledgment. In this instance, the state had obtained a prior child support order against J.P. in another proceeding and, thus, is a necessary party to this present matter. Further, as the state’s involvement in this matter is a demand incidental to the principal demand, it is entitled to plead any exception available to the defendant in the principal action. La. Code Civ.P. art. 1034. Accordingly, we find no error by the trial court in this instance.

Assignment of Error Number Two

In this assignment of error, J.P. asserts that the trial court erred in not acknowledging his second amending petition which, he asserts, cured all of the issues raised by the state’s exceptions. We construe this argument to suggest that the trial court erred in granting the exception of prescription and dismissing his suit.

| f,Louisiana Revised Statutes 9:405 provides, “In child support, custody, and visitation cases, the acknowledgement of paternity by authentic act is deemed to be a legal finding of paternity and is sufficient to establish an obligation to support the child and to establish visitation without the necessity of obtaining a judgment of paternity.” A person who acknowledges paternity of a child by authentic act may revoke that acknowledgement for any reason if the revocation takes place within sixty days of the acknowledgement. La.R.S. 9:406(A). Otherwise, a revocation may only be obtained upon petitioning the trial court pursuant to La.R.S. 9:406(B). That statute currently provides, in part:

(1) If the notarial act of acknowledgment has not been revoked within sixty days in accordance with the provisions of Subsection A of this Section, a person who executed an authentic act of acknowledgment may petition the court to revoke such acknowledgment only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact or error, or that the person is not the biological parent of the child.
(2) The mover shall institute the proceeding by ordinary process, within a two-year period commencing with the execution of the authentic act of acknowledgment of paternity, in a court of competent jurisdiction upon notice to the other party who executed the notarial act of acknowledgment and other necessary parties including the office of children and family services, support enforcement services of the Department of Children and Family Services. If the court finds based upon the evidence presented at the hearing that there is substantial likelihood that fraud, duress, material mistake of fact or error existed in the execution of the act or that the person who executed the authentic act of acknowledgment is not the biological father, then, and only then, the court shall order genetic tests pursuant to R.S. 9:396. Nothing herein shall preclude the mover from presenting any other evidence as a substitute for the genetic tests if it is not possible to conduct such tests.

However, La.R.S. 9:406 was amended by Acts 2008, No. 533 § 1, effective August 15, 2008. Prior to that amendment, La. R.S. 9:406(B), which was added by Acts 2006, No. 344 § 4, effective June 13, 2006, provided:

At any time, a person who executed an authentic act of acknowledgment may petition the court to rescind such 17acknowledgment only upon proof, by clear and convincing evidence, that such act was induced by fraud, duress, material mistake of fact or error, or that the person is not the biological parent of the child.

Thus, between June 13, 2006 and August 15, 2008, a person seeking to revoke an acknowledgment of paternity, created by authentic act, could do so at any time. In State ex. rel. AC v. MD, 10-1799 (La.App. 1 Cir. 6/17/11), 70 So.3d 159, the first circuit held that the provisions of La.R.S. 9:406(B), as amended in 2008, could only have prospective application. We agree with that holding. Thus, the provisions of La.R.S. 9:406(B), providing a two-year prescriptive period for the commencement of an action to revoke an authentic act of acknowledgment only applies prospectively from August 15, 2008.

In this instance, J.P. filed his original petition requesting paternity testing on September 22, 2009. Although he did not formally request revocation of his prior acknowledgment of N.P. in his petition, the effect of his petition is the same. It was not until he amended his petition for the second time on May 27, 2011, that J.P. first requested that the prior acknowledgment be nullified. However, La.Code Civ.P. art. 1153 provides that “[w]hen the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleadings, the amendment relates back to the date of filing the original pleading.” Furthermore, “[ejvery pleading shall be so construed as to do substantial justice.” La.Code Civ.P. art. 865. Because J.P.’s May 27, 2011 petition relates back to September 22, 2009, we find that J.P.’s request to annul his prior authentic act of acknowledgment was timely filed within the two years of the amendment of La.R.S. 9:406(B). Accordingly, we find that the trial court incorrectly sustained the state’s peremptory exception of prescription.

Is We also find that the trial court erred in its finding that J.P. had failed to “establish a substantial likelihood [of non-parentage] due to duress, fraud, or otherwise pursuant to R.S. 9:406.” The various exceptions filed by the state were the only issues before the trial court on October 31, 2011.

Assignment of Error Number Three

In his last assignment of error, J.P. argues that the trial court erred by not taking up his default confirmation during the hearing on the exceptions. For the same reason that the trial court erred in making factual findings concerning J.P.’s ability to be successful at trial, we find that the trial court did not err in not proceeding with the default confirmation. The only issue before the trial court at this hearing was the state’s exceptions. We find no merit in this assignment of error.

DISPOSITION

For the foregoing reasons, we reverse the trial court judgment rendered in favor of the State of Louisiana, Department of Social Services, Support Enforcement Services, and against J.P. dismissing his suit. We remand the matter to the trial court for further proceedings. We assess the costs of this appeal equally between J.P. and the State of Louisiana, Department of Social Services, Support Enforcement Services, with the amount to the state in the amount of $892.25, as required by La.R.S. 13:5112.

REVERSED AND REMANDED.

      . The initials of the child and her parents are used to protect the identity of the minor child. Uniform Rules-Courts of Appeal, Rules 5-1, 5-2.


author: GENOVESE, Judge.

text:
    Kelli M. DUHON v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY and Mary K. Foley.
    No. 12-41.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.

      Blake R. David, Jerome H. Moroux, Broussard & David, LLC, Lafayette, LA, for Plaintiff/Appellant, Kelli M. Duhon.
    Gretchen Heider Mayard, Katherine Payne Martin, Martin Mayard, L.L.C., Lafayette, LA, for Appellees/Defendants, Mary K. Foley and State Farm Mutual Automobile Insurance Company.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

11 This is a property damage case arising out of a parking lot auto accident. Plaintiff, Kelli M. Duhon, filed suit against Defendants, Mary K. Foley and her liability insurer, State Farm Mutual Automobile Insurance Company (State Farm), seeking compensation for her deductible, rental car fees, and diminution of value of her vehicle as a result of said accident. Following a bench trial, the trial court found Ms. Du-hon one hundred percent at fault in causing the accident and rejected all demands made by her. For the following reasons, we amend the trial court’s allocation of fault and render judgment accordingly.

FACTUAL AND PROCEDURAL BACKGROUND

The record indicates that on November 20, 2009, Duhon was driving her 2009 Lincoln MKX in the parking lot on property bearing the municipal address of 3809 Ambassador Caffery Parkway in Lafayette, Louisiana, when a 2006 Toyota Sequoia driven by Ms. Foley entered the parking lot from Ambassador Caffery Parkway and the vehicles collided. As a result of this auto accident, Ms. Duhon filed suit against Ms. Foley and her insurer, State Farm, seeking recovery for: (1) the out-of-pocket deductible she paid for repairs to her vehicle; (2) the out-of-pocket rental expenses she paid; and, (3) the diminution in value of her vehicle as a result of this auto accident.

A bench trial was held on August 5, 2011. In its oral reasons for judgment, the trial court stated (emphasis added):

I’m going to rule in favor of the defense, though. I find that she was already in the parking lot. I believe[,] by looking at the photos[,] they’re both roughly going the same speed because they were both pushed in opposite directions, roughly the same amount. I think everybody’s being honest here. I just think it’s a question of both parties have to enter the intersection with due caution. And[,] for whatever reason, neither party entered with enough caution to avoid the accident.
12And so I find no fault on the part of [Ms. Foley].
[Tjhere’s nothing to direct traffic here. If I could find fault with anybody here, I’d find with whoever designed the parking lot personally. I mean, to have an intersection that no one is controlled in seems absurd to me, personally. But I don’t think — I don’t believe it’s fifty/fifty (50/50) fault is what you get. I don’t believe she’s responsible for fifty percent (50%). I believe they ran into each other. That’s all I can say.
I understand the misfortune of the whole thing, but I don’t believe it was her [ (Ms. Foley’s) ] fault. Period. And you [ (Ms. Duhon) ] have to prove your case by a feather[,J and I don’t find you did that.”

The trial court ruled in favor of Ms. Foley, finding Ms. Duhon one hundred percent at fault in causing the collision between her and Ms. Foley. Ms. Duhon appeals.

LAW AND DISCUSSION

Ms. Duhon asserts the trial court erred in finding her at fault and denying her recovery of the property damages she allegedly sustained in the collision. For the reasons that follow, we find the trial court’s assessment of fault solely against Ms. Duhon to be manifestly erroneous and amend that assessment to allocate fifty percent fault to Ms. Foley.

Whether the trial court erred in assessing one hundred percent of the fault in the accident to Ms. Duhon is a factual determination by the trial court requiring that we apply the manifest error standard of review. In Ashley v. Strong, 09-336, pp. 2-3 (La.App. 3 Cir. 10/07/09), 19 So.3d 1260, 1261-62 (quoting Poole v. Poole, 08-1325, pp. 4-5 (La.App. 3 Cir. 4/1/09), 7 So.3d 806, 810), this court set forth the applicable standard of review as follows:

[A] factual determination of the trial court ... is subject to the manifest error/clearly wrong standard of review. Stobart v. State, Through Dep’t. of Transp. & Dev., 617 So.2d 880 (La.1993).
| sIn order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and meet the following two-part test: (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Id. Where there is conflict in the testimony presented at trial, the trial court’s reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, 549 So.2d 840 (La.1989). A trial court’s credibility determinations are subject to the strictest deference, and the manifest error or clearly -wrong standard demands great deference for the trial court’s findings. Theriot v. Lasseigne, 93-2661 (La.7/5/94), 640 So.2d 1305. “[TJhe issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.” Stobart, 617 So.2d at 882. Thus, if the trial court’s decision is reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though the appellate court would have weighed the evidence differently. Rosell, 549 So.2d 840.

In this case, Ms. Duhon told one version of the accident, while Ms. Foley told another. According to Ms. Duhon, she was traveling five to ten miles per hour in the parking lot, preparing to exit the parking lot. She slowed to approximately one mile per hour as she approached the parking lot’s intersection and looked in all directions before proceeding through the parking lot’s intersection. Ms. Duhon got past one of two lanes of travel in the intersection and was crossing the second lane when she claims that Ms. Foley’s vehicle broadsided her from the right. Ms. Duhon testified that she was halfway through the intersection when the impact occurred. She further alleges that Ms. Foley was traveling fast enough to push her vehicle into another lane.

According to Ms. Foley, prior to entering the parking lot, she was traveling on Ambassador Caffery . Parkway. She slowed down to make a right turn to enter the parking lot. Ms. Foley alleges that as she completed her right turn into the parking lot, and before crossing the first lane of travel in the parking lot, Ms. Du-hon came from the left and hit her vehicle. Ms. Foley denied being in a Rhurry or speeding. Immediately after'the accident, Ms. Foley departed from the scene of the accident and walked to her scheduled hair appointment at a salon located adjacent to the parking lot. Ms. Foley returned to the accident scene when a police officer arrived to document the accident.

The photographs of the area surrounding the accident scene were introduced into evidence. The photographs depict a collision consistent with Ms. Duhon’s rendition of how the accident occurred. Ms. Foley’s vehicle suffered damage to the front left. Ms. Duhon’s vehicle suffered damage to the right side. The point of impact was halfway through the intersection, consistent with the version offered by Ms. Duhon.

Louisiana Civil Code Article 2315(A), under which negligence actions arise, provides that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” To prove her negligence claim, Ms. Duhon was required to prove that: (1) Ms. Foley had a duty to conform her conduct to the appropriate standard of care; (2) Ms. Foley failed to conform to the appropriate standard; (3) Ms. Foley’s substandard conduct was a cause-in-fact of the Ms. Duhon’s damages; (4) Ms. Foley’s substandard conduct was a legal cause of Ms. Duhon’s damages; and (5) the actual damages. See Davis v. Witt, 02-3102, 02-3110 (La.7/2/03), 851 So.2d 1119.

As set forth by this court in Gatheright v. State Farm Mutual Automobile Insurance Co., 352 So.2d 428, 431 (La.App. 3 Cir.1977), when a vehicular collision occurs “in [a] parking lot and not on a public thoroughfare, the general tort law of our state is applicable. The Highway Regulatory Act (La.R.S. 32:1 et seq.) is not controlling.”

A motorist traveling in a parking lot is required to exercise a duty of “due caution.” The motorist can breach their [sic] duty of “due 15caution” if they [sic] travel at a fast pace in a parking lot with other traffic present and with their [sic] vision obstructed by parked cars and other objects.

Chenevert v. Wal-Mart Stores, Inc., 02-1075, p. 4 (La.App. 3 Cir. 2/5/03), 838 So.2d 922, 924.

After reviewing the record in its entirety, we find that a reasonable factual basis does not exist for the trial court’s findings and that the trial court’s determination of negligence exclusively on the part of Ms. Duhon is manifest error. Not only did Ms. Foley’s testimony conflict with Ms. Duhon’s, but it was not corroborated by the physical evidence. Even the trial court intimated comparative fault of the drivers when it stated in its oral reasons for judgment that “neither party entered with enough caution to avoid the accident.” Thus, the trial court erred in assessing no fault to Ms. Foley for this accident.

Having found that the trial court erred in allocating all fault to Ms. Duhon for this accident, we must adjust the allocation of fault giving deference to the trial court’s allocation of fault. Clement v. Frey, 95-1119, 95-1163 (La.1/16/96), 666 So.2d 607. In an action for injury or loss, the trier of fact shall determine the degree or percentage of fault of all persons found to have contributed or caused that injury or loss. La.Civ.Code art. 2323.

Considering the evidence in the record and the findings stated above, we conclude that both parties were at fault in then-respective inadvertence and failure to exercise due caution in traversing the parking lot as required by law. The trial court erred in assessing all fault of this accident to Ms. Duhon. It was manifestly erroneous and clearly wrong in not finding that Ms. Foley was also negligent. Therefore, we find the lowest reasonable amount of fault that could be assessed to Ms. Foley to be fifty percent.

1 Jn her appeal, Ms. Duhon also asserts that as a result of this accident, her vehicle sustained property damage in the amount of $9,577.64 (paid by Ms. Duhon’s insurer, State Farm, and not at issue herein) and that her vehicle incurred significant diminution in value. She paid her $250.00 deductible to have her vehicle repaired and $204.09 for rental expenses. The only figure in dispute at trial was the diminished value of Ms. Duhon’s 2009 Lincoln MKX. At trial, both Ms. Duhon and State Farm submitted estimates of the diminished value for the trial court’s consideration.

Ms. Duhon testified that she determined the diminished value by using online websites. According to Ms. Duhon, she paid $43,500.00 for her vehicle in May 2009, six months before this accident. Based upon her online research, Ms. Duhon used the make, model, amount of property damage, mileage at the timé of the accident, and ten percent less than the manufacturer’s suggested retail price from which she determined the diminished value of her vehicle to be $6,730.76.

State Farm offered a diminished value assessment prepared by Crawford & Associates. Based on the determination of the actual cash value of the vehicle at the time of the accident, and a visual inspection of the vehicle following the repairs, Crawford & Associates determined that the diminished value of Ms. Duhon’s vehicle was $2,179.54.

The record does not indicate or establish that Ms. Duhon has any experience or expertise relative to the estimation of the diminished value of vehicles. Thus, we do not accept her self-serving, non-authoritative valuation. We accept the valuation offered by State Farm. Accordingly, we amend the trial court’s judgment to reflect an award of fifty percent of $454.09 (the total amount paid by 17Ms. Duhon for her deductible and rental expenses), and fifty percent of $2,179.54 for the diminution in the value of Ms. Duhon’s vehicle.

DECREE

For the foregoing reasons, we amend the judgment of the trial court to allocate fifty percent fault to Ms. Foley and fifty percent fault to Ms. Duhon. We further amend the trial court’s judgment to reflect an award of fifty percent of $454.09 (the total amount paid by Mr. Duhon for her deductible and rental expenses), and fifty percent of $2,179.54 for the diminution in the value of Ms. Duhon’s vehicle. Costs of this appeal are assessed equally to Plaintiff/Appellant, Kelli M. Duhon, and Defendants/Appellees, Mary K. Foley and State Farm Mutual Automobile Insurance Company.

AMENDED AND RENDERED.


text:
    ESTATE OF Jennifer HERRING, et al. v. MICROTEL INN & SUITES FRANCHISING, et al.
    No. 12-40.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.
    Kenneth O. Privat, Privat & Privat, Crowley, LA, for Plaintiffs/Appellants, Carla Richard Pommier, Administrator of the Estate of Jennifer Herring, Blake Herring, Jon Plowden, as Tutor of the Minor, Jonte Plowden.
    Ian A. MacDonald, Jones Walker, Lafayette, LA, for Defendant/Appellee, Pelican Hotel, L.L.C.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

h Heirs of shooting victim, Jennifer Herring (Herring), appeal a judgment of involuntary dismissal in favor of her employer, Pelican Hotels, L.L.C. (Pelican).

FACTS

At 8:00 a.m. on March 2, 2005, Herring arrived at the Microtel Inn & Suites, where she was employed as a front desk manager. While there, Herring received threatening phone calls from her boyfriend, Francis Vallery, Jr. (Vallery). Valery’s father also called Herring and advised her to leave work because Vallery was going to kill her.

Herring notified the Lafayette Police of the threats, and they made two separate visits to the hotel property. Vallery never threatened to come to the hotel. Nevertheless, Herring was encouraged to leave during both visits but declined to do so despite offers of relief from two separate employees. In light of Herring’s decision to stay, the hotel perimeter doors were locked.

Ultimately, Vallery came to the hotel and shot and killed Herring. Herring’s heirs initiated this claim for damages against Pelican, the hotel owner, because it did not prevent Herring’s murder. After the close of the heirs’ ease, Pelican moved for involuntary dismissal. The trial court granted the motion. The heirs lodged this appeal.

DISCUSSION

Herring’s heirs allege the trial court erred as a matter of law in granting Pelican’s motion. We disagree.

In Kite v. Carter, 03-378, p. 5 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271, 1274, this court said:

li/The trial court is accorded much discretion in the granting of an involuntary dismissal. Guillory v. Int’l Harvester Co., 99-593 (La.App. 3 Cir. 10/13/99), 745 So.2d 733, writ denied, 99-3237 (La.1/14/00), 753 So.2d 220. It is required to weigh and evaluate all of the evidence presented by the plaintiff and grant the dismissal if the evidence is sufficient to establish that the plaintiff has not proven his claim by a preponderance of the evidence. Id. The grant of an involuntary dismissal is subject to the manifest error standard of review. Id.

In Rodriguez v. New Orleans Public Service, Inc., 400 So.2d 884, 887-888 (La.1981) the court explained (footnote omitted):

Owners of businesses who permit the public to enter their establishments have a duty to exercise reasonable care to protect those who do enter. Ferrington v. McDaniel, 336 So.2d 796 (La.1976); Kavlich v. Kramer, 315 So.2d 282 (La.1975); Rigney v. Howard Bros. Discount Stores, Inc., 387 So.2d 38 (La. App. 3rd Cir.1980); Martel v. South Farm Bureau Cas. Ins. Co., 368 So.2d 1192 (La.App. 3rd Cir.1979). This duty extends to keeping the premises safe from unreasonable risks of harm or warning persons of known dangers. Williams v. Winn Dixie of La., Inc., 393 So.2d 680 (La.1981). When the independent, intentional tortious or criminal acts of a third person constitute the unreasonable risk, this duty does not require the proprietor to risk physical injury or civil or criminal liability by physical intervention. Rather, the duty can be discharged by the summoning of those entrusted by law with the power of immediately maintaining the peace, the police, at the time the proprietor knows or should reasonably know of the third person’s intention and apparent ability to execute the intended acts. See Guidry v. Toups, 351 So.2d 1280 (La.App. 1st Cir.1977), writ den., 353 So.2d 1036 (La.1978); Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir.1976); Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir.1973); Rodney v. Mansur, 219 So.2d 305 (La.App. 1st Cir.1969). In addition, the proprietor would have to, as far as is practicable under the circumstances, warn others of the danger prior to the arrival of the police so that they might take actions to avoid the danger. Anderson v. Clements, supra; see also Williams v. Winn Dixie of La., supra.

In this case, the heirs argue that Pelican owed a higher duty because Herring was a guest. The trial court found that Herring was not a guest but an employee who was in the hotel while off duty. Moreover, the trial court found that the hotel had not offered or guaranteed her safety. To the contrary, management, her coworkers and the police all suggested that she leave. Only when she refused, did the hotel have all the exterior doors locked. The trial court also noted that the hotel | shad twice called a locksmith about an allegedly defective door and, even if that were not the case, there was no evidence to establish that Vallery entered through that door. Ultimately, the trial court found that Herring’s heirs failed to prove that Pelican had breached any duty owed to Herring. After careful review of the record, we find no manifest error in the trial court’s factual determinations or application of the law to those facts.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of these proceedings are taxed to the appellants.

AFFIRMED.


text:
    STATE of Louisiana in the Interest of B.S., K.S., L.S., B.S., Jr., and J.S.
    No. 12-81.
    Court of Appeal of Louisiana, Third Circuit.
    May 2, 2012.
    N.S., Lake Charles, LA, In Proper Person.
    J. Wade Smith, Lake Charles, LA, for Appellant, N.S.
    B.S., Sr., Lake Charles, LA, In Proper Person.
    Douglas K. Hall, Lake Charles, LA, for Appellant, B.S., Sr.
    Richard B. Scandrett, III, Children’s Advocacy Program, Lake Charles, LA, for the Minor Children, B.S., K.S., L.S., B.S., Jr., and J.S.

      Nicholas Pizzolatto, Jr., Stephen A. Berniard, Jr., Lake Charles, LA, for Ap-pellee, State of Louisiana, Department of Children and Family Services.
    John F. DeRosier, District Attorney, 14th Judicial District, Ronald A. Rossitto, Assistant District Attorney, 14th Judicial District, Lake Charles, LA, for Appellee, State of Louisiana.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.
   GENOVESE, Judge.

Lin this children in need of care (CINC) case, N.S. and B.S., Sr., the biological parents of B.S., K.S., L.S., B.S., Jr., and J.S., appeal the trial court judgment declaring their children to be in need of care. On appeal, the parents have filed a Peremptory Exception of No Cause of Action, and the State of Louisiana, Department of Children and Family Services (DCFS), has filed a Peremptory Exception of Lack of Jurisdiction and a Motion to Dismiss the Appeal. For the following reasons, we grant DCFS’s exception and motion and are without legal authority to consider the parents’ exception.

FACTS AND PROCEDURAL HISTORY

On May 31, 2011, the trial court signed an instanter order placing the minor children, B.S., K.S., L.S., B.S., Jr. and J.S., in the custody of DCFS. Following a continued custody hearing that was attended by both parents and their attorneys on June 3, 2001, the children remained in DCFS’s custody. On August 11-12, 2011, the trial court held an adjudication hearing which was also attended by both parents and their attorneys. At the adjudication hearing, N.S. and B.S., Sr., through their respective attorneys, indicated in open court that an agreement had been reached, and each admitted that their children were in need of care. Each parent likewise, in open court, verbally confirmed their understanding of the admission. Accordingly, the trial court signed a CINC adjudication judgment on August 12, 2011, expressly stating that the parents “stipulate that the children are in need of care without admitting to the allegations of the petition.” A Letter Notice of Judgment was sent to each of the attorneys representing the parents on August 16, 2011. Neither N.S. nor B.S., Sr. filed a motion for new trial. N.S. and B.S., Sr. filed a Motion for Appeal from the August 12, 2011 judgment on November 22, 2011.

\ 9LAW AND DISCUSSION

In this case, the trial court signed the CINC adjudication judgment on August 12, 2011, and it is undisputed that a Letter Notice of Judgment was sent by the clerk of court to the respective attorneys of N.S. and B.S., Sr., on August 16, 2011. Therefore, since the parents did not file a motion for new trial, the deadline for their filing of a motion for appeal was August 31, 2011, fifteen days from the mailing of notice of the judgment as per La.Ch.Code art. 332. The parents did not Ispursue a new trial, and their Motion for Appeal was not filed until November 22, 2011; accordingly, it was untimely. Given their failure to timely seek appellate relief, this court is without jurisdiction to consider the merits of the parents’ appeal; therefore, DCFS’s Peremptory Exception of Lack of Jurisdiction is sustained.

Additionally, we find merit in DCFS’s Motion to Dismiss the Appeal. The trial court’s August 12, 2011 CINC adjudication judgment contains a stipulation of the parents, through their respective attorneys, that the children were in need of care. This judgment is a consent judgment from which an appeal may not be taken. La.Code Civ.P. art. 2085. Therefore, because this court lacks jurisdiction to consider an untimely appeal, and because this matter presents an attempt to appeal a non-appealable judgment, the Motion to Dismiss the Appeal is granted.

DECREE

For the reasons assigned, the Peremptory Exception of Lack of Jurisdiction filed by the State of Louisiana, Department of Children and Family Services, is sustained, and its Motion to Dismiss the Appeal is granted. Costs of this appeal are assessed to N.S. and B.S., Sr.

EXCEPTION OF LACK OF JURISDICTION SUSTAINED.

EXCEPTION OF NO CAUSE OF ACTION NOT CONSIDERED.

MOTION TO DISMISS APPEAL GRANTED.

      . Pursuant to Uniform Rules — -Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties are used to protect and maintain the privacy of the minor children involved in this proceeding.

      . Louisiana Children’s Code Article 332 provides:
      A. Except as otherwise provided within a particular Title of this Code, appeals shall be taken within fifteen days from the mailing of notice of the judgment. However, if a timely application for a new trial is made pursuant to Paragraph C, the delay for appeal commences to run from the date of the mailing of notice of denial of the new trial motion.
      B. Notice of judgment, including notice of orders or judgments taken under advisement, shall be as provided in Code of Civil Procedure Article 1913.
      C. After judgment is signed, a party may make a written request for a motion for new trial on any ground provided by law. The delay for applying for a new trial is three days, exclusive of holidays, and shall commence to run from the mailing of notice of judgment. A motion for new trial shall be decided expeditiously and within seven days from the date of submission for decision.
      Louisiana Code of Civil Procedure Article 1913 provides:
      A. Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.
      B. Notice of the signing of a default judgment against a defendant on whom citation was not served personally, or on whom citation was served through the secretary of state, and who filed no exceptions or answer, shall be served on the defendant by the sheriff, by either personal or domiciliary service, or in the case of a defendant originally served through the secretary of state, by service on the secretary of state.
      C. Notice of the signing of a default judgment against a defendant on whom citation was served personally, and who filed no exceptions or answer, shall be mailed by the clerk of court to the defendant at the address where personal service was obtained or to the last known address of the defendant.
      D. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed.
      E. Repealed by Acts 2008, No. 824, § 5, eff. Jan. 1, 2009.

      . Parish of Jefferson v. McGee, 11-76 (La.App. 5 Cir. 5/24/11), 67 So.3d 640.

      . Because this court is without jurisdiction, it is likewise without legal authority to consider the merits of the Peremptory Exception of No Cause of Action filed by N.S. and B.S., Sr. on appeal.

      . Louisiana Code of Civil Procedure Article 2085 provides:
      An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him. Confession of or acquiescence in part of a divisible judgment or in a favorable part of an indivisible judgment does not preclude an appeal as to other parts of such judgment.