text:
    STATE of Louisiana v. Kerry Jerrod SANDERS.
    No. 11-160.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      James C. Downs, District Attorney, Thomas R. Willson, Alexandria, LA, for Appellee, State of Louisiana.
    Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Kerry Jerrod Sanders.
    Kerry Jerrod Sanders, Louisiana State Penitentiary, Angola, LA.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

| ,A jury convicted Kerry Sanders of second degree murder in the shooting death of Jarvis Brown. The trial court imposed a sentence of life imprisonment without the possibility of parole, probation, or suspension of sentence. On appeal, the defendant questions the sufficiency of the evidence and advances several assignments of error regarding the jury. For the following reasons, we affirm.

Factual and Procedural Background

This appeal involves the October 31, 2008 shooting death of Jarvis Brown on the front porch of an Alexandria, Louisiana residence. At the time of his death, Mr. Brown was having his hair cut by Adrian Williams. According to Adrian’s testimony, the defendant, Kerry Sanders, approached the porch and inquired as to Mr. Brown’s identity. Adrian testified that he and his brother, Marc Williams, who was also in front of the house, identified Mr. Brown to the defendant. Mr. Brown eventually identified himself to the defendant by his nickname, “G-money.” Adrian testified that he thereafter returned to his conversation and that within “maybe twenty seconds,” a gun was fired. The record indicates that Mr. Brown was killed by a gunshot wound to the head. Adrian also sustained a gunshot injury to his hand. While Adrian testified that he did not see the defendant “pull the trigger,” he “actually seen [sic], heard his voice, and glanced at [h]im that night.”

Thereafter, both Adrian and Marc ran into the house, where their nephew allegedly telephoned for assistance. Adrian and Marc testified that they thereafter left the area. Testimony indicates that Adrian’s vehicle was later stopped by a police officer, who called for an ambulance due to the gunshot wound to Adrian’s hand. Questioning by the investigating officers revealed the defendant as the suspected perpetrator.

| thereafter, a grand jury charged the defendant with second degree murder, and a petit jury later convicted the defendant as charged. Although the defendant questioned aspects of the jury’s verdict, as will be discussed below, the trial court ultimately denied the defendant’s motion for new trial. The trial court imposed the mandatory life sentence of La.R.S. 14:30.1(B).

The defendant’s counsel presents the following issues for review:

1. Does the jury verdict of Second Degree Murder meet the legal standard of sufficiency of the evidence?
2. Was Kerry Sanders denied his right to a fair and impartial jury of twelve persons?
3. Did [the] trial court err in denying the Motion for New Trial?
4. Was a full evidentiary hearing required to determine if Kerry Sanders was denied his right to a fair and impartial jury of twelve persons and whether one juror was improperly deprived of her right to participate in the jury in this case, after being selected to serve?
5. Does a non-unanimous verdict violate the United States and Louisiana Constitutions in this case?

The defendant also filed a pro se brief, advancing a number of arguments. He questions whether the audio tapes of the 911 calls related to the crime should have been played, and whether the State failed to disclose 911 calls which may have been exculpatory. He also questions whether he was provided with adequate discovery materials and whether further exculpatory evidence exists. Finally, he contends that the prosecutor acted improperly in having uniformed officers available to testify, but not calling them to the stand.

Discussion

Envrs Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for errors patent on the face of the record. We find no such errors.

13Sufficiency of the Evidence

The defendant questions the sufficiency of the evidence to support the conviction. Namely, the defendant contends that no physical evidence established that he was the perpetrator and that the witness testimony on which the conviction was based was “uncorroborated” and “inconsistent.” He asserts that the position of the victim’s body was contrary to the description of events by Adrian and Marc Williams.

The Supreme Court of Louisiana has explained that:

In evaluating the sufficiency of the evidence to support a conviction, a reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984).

State v. Leger, 05-11, p. 91 (La.7/10/06), 936 So.2d 108,170.

The defendant was convicted of second degree murder. For this offense, La.R.S. 14:30.1(A)(1) provides that: “[s]econd degree murder is the killing of a human being ... [w]hen the offender has a specific intent to kill or to inflict great bodily harm[.]” With regard to specific criminal intent, La.R.S. 14:10(1) defines the term as “that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.” In State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18, cert. denied, 547 U.S. 1022, 126 S.Ct. 1569, 164 L.Ed.2d 305 (2006), the supreme court stated:

Specific intent need not be proven as a fact, but may be inferred from the defendant’s actions and the circumstances of the transaction. State v. Maxie, 93-2158, (La.4/10/95), 653 So.2d 526, 532. Deliberately pointing and firing a deadly weapon at close range are circumstances which will support a finding of specific intent to kill. State v. Seals, 684 So.2d 368, 373 (La.1996) (citing State v. Williams, 383 So.2d 369 (La.1980); State v. Procell, 365 So.2d 484 (La.1978)).

14After consideration of the elements of La.R.S. 14:30.1(A), and in light of the sufficiency of the evidence standard of review, we find no support for the defendant’s argument. Instead, eyewitness accounts identified the defendant as the perpetrator.

Both Adrian and Marc testified that they were in front of the house with Mr. Brown prior to the events at issue. They explained that he was seated in a chair while having his hair cut by Adrian. They both stated that the defendant, whom they identified as their cousin, approached the home’s porch and inquired as to Mr. Brown’s identity. Each testified that, within a short period of time, the defendant moved toward Mr. Brown and that Mr. Brown was shot at close range. Although the brothers did not see the gun, each was certain as to the defendant’s identity as the perpetrator.

According to the forensic pathologist who performed the autopsy, the gunshot to the head sustained by Mr. Brown was consistent with “somebody sitting in a chair and a shooter standing.” He explained that the muzzle of the weapon used could have been “two to three inches from the skin.” The report, introduced into evidence, lists “[g]unshot wound to the head” as the cause of death and the “interval” as “[m]inutes[.]”

Gordon Brower also testified that he was present at the scene. At trial, and like the Williams brothers, Mr. Brower stated that the defendant approached the group and inquired as to who was having his hair cut. According to Mr. Brower, the defendant turned and walked to a gate before returning. The defendant then pulled out a gun, fired a shot, and left the scene. Mr. Brower stated that he saw the defendant “every now and then” and that he was certain as to his identity.

Betty Williams, who owned the home and was inside at the time of the shooting, testified that, after she heard a shot fired, her sons, Adrian and Marc, ran | finside. She stated that Adrian was bleeding and that Marc reported that: “Mama, Kerry just shot Gundy[] on the porch.” She acknowledged at trial that when the police arrived at her home and asked what had happened, she told them that she did not know.

As noted by the defendant, certain weaknesses in the State’s evidence existed, such as conflicting evidence as to the direction in which the victim was facing when shot and the timeliness by which the defendant was named as the suspect. Further, the defense presented two witnesses who testified that they had seen the defendant elsewhere during the time frame of the shooting.

Also, Opal Parker, a neighbor of Ms. Williams, testified at trial that she was standing in front of her house when she heard the shot fired. She explained that there had previously been arguing from the direction of Ms. Williams’ house and that, in addition to Adrian, Marc, and Mr. Brower being in the yard, Kenneth Williams was with the group as well. Ms. Parker denied that the defendant was there. She reported that Kenneth jumped the fence and asked her what had happened. Ms. Parker stated that she also heard Marc loudly state: “You got what you deserved.”

However, and although the defendant relies on Ms. Parker’s testimony to discount the testimony of the State’s witnesses, rebuttal witness Corporal Doug Alford of the Alexandria Police Department explained that, when he spoke with Ms. Parker at the scene, she did not relate that she was outside of her house at the Intime of the shooting, that she heard argument before the shooting, or that she saw anyone jump over the fence. Corporal Alford also denied that Ms. Parker told him that she heard someone state: “ ‘He got what he deserved.’ ”

Corporal Gary Mouliere, who was present for Ms. Parker’s interview, explained that Ms. Parker “[sjaid that she had been inside her house, heard the gunshots, and came outside. When she came outside she saw a black male running from the area in front of 71 Eastwood.” Corporal Mouliere also denied that Ms. Parker reported seeing someone jump a fence or make any statements.

Notwithstanding the testimony cited by the defendant, the jury heard from several eyewitnesses to the events who identified the defendant as the perpetrator. It is within the fact-finding role of the jury to assess the credibility of the witnesses. State v. Bórdenme, 95-2328 (La.4/26/96), 678 So.2d 19. That role will not be impinged upon by a reviewing court unless necessary to ensure due process of law. Id. The record in this case presents no basis for re-evaluation of the jury’s decision to credit the testimony of the State’s witnesses. Instead, when the evidence is viewed in the light most favorable to the prosecution, as the standard of review requires, it supports the view that the defendant killed the victim by deliberately placing the barrel of a gun within a few inches of his head and firing a fatal shot. Thus, a rational trier of fact could have found the essential elements of La.R.S. 14:30.1 proven beyond a reasonable doubt. To the extent the defendant cites inconsistencies in witness accounts of the event at issue, the jury |7was made aware of the chaos existing at the scene and could have factored this evidence into its credibility determinations.

This assignment lacks merit.

Jury Composition

Next, the defendant contends that he was denied a twelve-person jury and that this denial resulted in a violation of due process. In particular, the defendant states that: “one juror was excused from final deliberation and voting by the jury foreman, effectively depriving the defendant of his statutorily and constitutionally mandated twelve jurors.” He contends that the trial court further erred in denying his motion for new trial in which he questioned this aspect of the proceeding.

Louisiana Constitution Article 1, § 17(A) provides, in pertinent part, that: “A case in which the punishment is necessarily confinement at hard labor shall be tried before a jury of twelve persons, ten of whom must concur to render a verdict.” Further, La.Code Crim.P. art. 782(A) provides that: “Cases in which punishment is necessarily confinement at hard labor shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict.” Accordingly, as the defendant was tried for second degree murder, which is necessarily punished by confinement at hard labor, he was entitled to a twelve-person jury. In order to be convicted, at least ten of those jurors must have voted “guilty” of second degree murder.

The record reflects that the defendant’s jury was comprised of twelve jurors and two alternates. Before deliberation, the trial court dismissed the alternates. After the jury returned with a guilty verdict, the jury was polled. The transcript vindicates that each of the twelve jurors responded “Yes” when asked if this was their verdict.

However, the record reflects that after-wards, one of the jurors, Ruth Wilson, informed the trial court that this was not her verdict. Acting upon a related motion to correct the record, the trial court conducted a hearing on Ms. Wilson’s statement. At that hearing, the trial court inquired how she had voted. Ms. Wilson responded: “I didn’t.” However, she acknowledged that she had responded affirmatively when she was asked: “ ‘was this your verdict?’ ” Ms. Wilson explained that: “I hesitated but answered yes, because I thought you were asking if it was our unanimous vote as a jury.” She added: “And it was.” Ms. Wilson responded ‘Yes” when the trial court inquired whether she was confused by the question.

Review of this post-trial hearing, contained in the appellate record, indicates that the matter was, in fact, submitted to a twelve-member jury. Even ignoring Ms. Wilson’s acknowledgement during polling that she voted “guilty,” greater than ten jurors returned a guilty verdict. Accordingly, the defendant was not denied his right to a twelve-member jury pursuant to La.Code Crim.P. art. 782(A). Further, the number of jurors voting “guilty” exceeded the Article’s mandate that ten members must concur in order to render a verdict.

This assignment lacks merit.

Juror’s Rights

In a related assignment, the defendant contends the trial court erred in failing to hold a full evidentiary hearing in order to assess whether Ms. Wilson “was improperly deprived of her right to participate in the jury in this ease[.]”

IflHowever, as previously explained, the trial court conducted an evidentiary hearing regarding Ms. Wilson’s vote. Ms. Wilson’s testimony from that hearing indicates that she did, in fact, enter into deliberations with the jury but that she did not enter her vote. The reason for that failure is alluded to in discussion between the attorneys and the trial court, but no evidence on this point was entered into the record. The defendant’s further contention that this juror voted “not guilty” is also contrary to all evidence contained in the record.

Accordingly, the defendant’s assignment in this regard is without merit.

Nowr-Unanimous Verdict

In light of the above testimony elicited at the post-trial hearing, the defendant contends that “he was convicted by a non-unanimous verdict in violation of the United States and Louisiana Constitutions.” He again contends that Ms. Wilson was “precluded from participation.”

As stated above, the record contains no evidence indicating that Ms. Wilson was precluded from participation as a juror. Additionally, both the United States Supreme Court and the Supreme Court of Louisiana have rejected the argument now advanced by the defendant that a non-unanimous verdict is unconstitutional. See, e.g., Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972); State v. Bertrand, 08-2215 (La.3/17/09), 6 So.3d 738. See also Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); State v. Edwards, 420 So.2d 663 (La.1982); State v. Simmons, 414 So.2d 705 (La.1982); State v. Green, 390 So.2d 1253 (La.1980); State v. Jones, 381 So.2d 416 (La.1980); State v. Hodges, 349 So.2d 250 (La.1977), cert. denied, 434 U.S. 1074, 98 S.Ct. 1262, 55 L.Ed.2d 779 (1978).

Given the consistency and certainty of the controlling jurisprudence in this area, as well as the state of the evidence in the record, we reject the defendant’s contention that the issue should be reconsidered.

This assignment lacks merit.

Evidence Disclosed

In several components of his pro se brief, the defendant contends that the audio tapes of 911 telephone calls related to the event should have been admitted into evidence. He further contends that the State failed to adequately disclose those recordings that were exculpatory in nature. He asks this court to permit him to inspect and copy the State’s files for further determination as to whether exculpatory evidence was withheld.

We note that defense counsel and the State filed a joint stipulation wherein, among other things, the defendant stipulated that the State had provided a copy of its entire file and that any motion for discovery and inspection was satisfied. In addition to this stipulation, the record contains no factual basis to support the 11, defendant’s contention that evidence, exculpatory or not, was -withheld from the defense.

These arguments lack merit.

Calling of Witnesses

Finally, the defendant contends that the State “tamper[ed]” with witnesses by issuing subpoenas for certain uniformed officers and 911 callers, but not calling them to testify. He asserts that all of the officers involved in the investigation should have been called to testify. Despite the defendant’s argument, neither law nor jurisprudence supports his allegation that the State acted impermissibly in the method by which it presented its witnesses.

This assignment lacks merit.

DECREE

For the foregoing reasons, the defendant’s conviction for second degree murder is affirmed.

AFFIRMED.

      . The record indicates that the victim was referred to as “Jarvis,” "G-Money,” and "Gundy.”

      . The Williams brothers testified that the victim was facing the street, yet they were questioned about photographs indicating that the victim's chair was turned toward the side of the house.

      .Sergeant Lee Leach of the Alexandria Police Department testified that Adrian identified the defendant as the perpetrator the morning following the shooting. However, when Adrian was stopped by a police officer immediately after the events, and before he was taken to the hospital, he did not identify the defendant.

      . Corporal Alford read the report of his interview into the record. The report stated:
      I began to canvas the scene for witnesses and anyone who had seen the incident. I was able to find only one witness to the shooting, Opal Parker. Parker stated she was inside her residence at 75 Eastwood when she heard an argument and called her old man who had just left. She stated she heard two gunshots and saw an unidentified black male running towards Hynson Street. She said it looked like he had a heavy coat on and was dressed in all black. That was the only description I was able to obtain.

      . Louisiana Code of Criminal Procedure Article 812 provides, in pertinent part, that: "The court shall order the clerk to poll the jury if requested by the state or the defendant. It shall be within the discretion of the court whether such poll shall be conducted orally or in writingf.]”

      . The trial court explained that: "after the ... trial when I was visiting with the jury in the back, one of the jurors did indicate that it was not her verdict, so it was an eleven to one decision.” The trial court noted that the statement in this regard was "not evidence” and, therefore, it held a hearing on the motion to correct record.

      . In a related motion for new trial filed below, the defendant alleged that:
      [A]t least one of the twelve mandatory jurors in the case, was excused from final deliberation and voting by the jury foreman, because the foreman determined that he already had the requisite number of votes to render a “guilty” verdict, and did not require that 12th juror's participation, effectively depriving defendant of the statutory and constitutionally mandated twelve jurorsf.]

      . The stipulation, filed February 12, 2009, provides:
      Defendant herein, through counsel, reserving the right to file timely additional motions as provided by law, together with counsel for the State of Louisiana, stipulate that the undersigned Assistant District Attorney has provided a copy of the entire file in this matter to the defendant. The State agrees to provide to the defense any additional file material subsequently obtained. The defense stipulates that receipt of this file serves as notice of the State’s intention to introduce all evidence (including defendant’s statements) included therein. The production of the file constitutes full satisfaction of the Motion for Discovery and Inspection, Motion for Bill of Particulars, Motion for Preliminary Exam and any request for Public Records pursuant to Louisiana Revised Statute 44:1, et seq. The defendant and the State further stipulate that receipt of this file obligates the defense to timely disclose to the State all material discoverable by the State pursuant to Louisiana Code of Criminal Procedure, Articles, 724-28, including, but not limited to, notice of defense based on mental condition and notice of alibi.


source: Caselaw Access Project

author: PETERS, J.

license: Public Domain

text:
    Brenna DAVIS v. WOMEN AND CHILDREN’S HOSPITAL LAKE CHARLES.
    No. 11-0318.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      R. Scott lies, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Brenna Davis.
    Kurt S. Blankenship, Christopher Otten, Perrey S. Lee, Blue Williams L.L.P., Me-tairie, LA, for Defendant/Appellee, Women and Children’s Hospital Lake Charles.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   PETERS, J.

| Nlie plaintiff, Brenna Davis, originally brought this medical malpractice action against Dr. Richard Shimer and the Women and Children’s Hospital Lake Charles (hereafter sometimes referred to as the Hospital) to recover damages sustained as a result of a sponge that was left in her body following a lap band surgery. However, the matter went to trial against the Hospital only. The trial court awarded Ms. Davis $50,000.00 in damages and apportioned fault equally between Dr. Shim-er and the Hospital. In her appeal, Ms. Davis asserts that the trial court erred in its apportionment of fault. For the following reasons, we affirm the trial court judgment in all respects.

REVIEW OF THE RECORD

The underlying facts that gave rise to this litigation are not in dispute. In 2008, Ms. Davis was almost twenty-eight years old and suffered from an excessive weight problem. In an effort to control her weight problem, she contacted Dr. Shimer, a Lake Charles, Louisiana general surgeon who performs weight reduction surgeries. After discussing options with Dr. Shimer, Ms. Davis decided to have a lap band procedure.

Dr. Shimer laparoscopically performed Ms. Davis’ lap band surgery on June 2, 2008. The surgical procedure is minimally invasive as Dr. Shimer simply makes a number of very small incisions. Cameras and surgical instruments are inserted in these incisions and the lap band is connected. During the procedure, Ms. Davis li»was under general anesthesia. Two Hospital employees, Sheena LeBoeuf and Anthony Williams, assisted Dr. Shimer in the surgery.

The record establishes without dispute that a three-part procedure exists during surgery to keep an accurate count of the sponges used. The first count occurs at the beginning of an operation, even before the patient enters the operating theater. In the first count, the surgical technician and the circulating nurse count all the sponges using a consistent procedure. Specifically, the surgical technician counts out loud while touching each of the individual sponges as the nurse looks over his shoulder. When the surgical technician completes the oral count, the circulating nurse enters the specific number of sponges on a white board so that the surgeon is able to see that a count has been performed.

The second count occurs after the lapa-roscopic instruments are removed from the patient, but before the incisions are closed. The surgical technician performs this count in the same manner as the first count by orally counting each sponge while the nurse observes the count for accuracy. The final count occurs after the incisions are closed but before the surgeon leaves the operating theater. Again the surgical technician states the count aloud while being observed by the nurse.

In Ms. Davis’ case, the final sponge count was inaccurate. When Ms. Davis began to experience an unexplained post-surgical discharge at an incision site, Dr. Shimer caused her to undergo a CAT scan. The CAT scan revealed haziness at the wound site and, on June 19, 2008, Dr. Shimer performed a laparoscopic exploratory procedure at the Hospital and discovered a crumpled sponge inside Ms. Davis’ body, underneath the skin and exactly where Dr. Shimer had placed the | sport for the lap band. Dr. Shimer removed the sponge during the procedure and Ms. Davis subsequently fully recovered from the procedure.

After Ms. Davis filed suit against Dr. Shimer and the Hospital, the parties waived the requirement that the matter be referred to a medical review panel. See La.R.S. 40:1299.47(B)(l)(c). Additionally, Ms. Davis stipulated that her claim did not equal or exceed $50,000.00, thereby precluding the availability of a jury trial. La. Code Civ.P. art. 1732(A)(1).

The November 24, 2010 bench trial resulted in a judgment wherein the trial court awarded Ms. Davis $50,000.00 in damages and assessed fault equally between the Hospital and Dr. Shimer. In her one assignment of error, Ms. Davis asserts that the trial court erred in assigning any fault to Dr. Shimer.

OPINION

Because the Hospital neither appealed the trial court’s judgment nor answered Ms. Davis’ appeal, the sole issue before us is whether the trial court abused its discretion in not assigning all of the fault for Ms. Davis’ damages to the Hospital. Under La.Civ.Code art. 2323, when there are multiple tortfeasors the trier of fact must allocate fault so that each tort-feasor pays only for that portion of the damages it has caused. However, before fault can be allocated, there must be a finding that there are multiple tortfeasors. To put the inquiry another way, we must determine whether the trial court erred in finding that Dr. Shimer bore any fault in causing Ms. Davis’ damages.

With regard to a medical malpractice claim against a physician the party claiming negligence on the part of the physician must prove:

|4(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.

La.R.S. 9:2794(A)(l-3).

In this case, the only evidence of the standard of care applicable to Dr. Shimer is his testimony. He specifically testified that the standard of care applicable to him as a surgeon does not require him to stand over the surgical technician’s shoulder and count the sponges along with him. In other words, his task is to perform the surgery, inserting and removing the sponges when necessary. During most of the laparoscopic surgery, Dr. Shimer is looking through a camera into the field of surgery, and he relies on the other personnel to keep track of the sponges as he inserts and removes them. He suggested that the only obligation he has toward seeing that nothing remains in the patient before closing is that he palpates around the incisions to see if he feels anything before closing them. In this case, he felt nothing that would cause him to believe a sponge remained in the patient and relied on the correctness of the counts by the surgical technician and the circulating nurse.

Mr. Williams testified that his duties were to set up a sterile field before an operation, to have the instruments ready for the surgeon, and to keep everything sterile during the operation. Although he had little memory of Ms. Davis’ first | .^operation, he did acknowledge that the medical records from that procedure reflected that he and Ms. LeBoeuf had accounted for all the instruments and supplies used in the surgery, including the sponges. He testified that in the critical third count of the sponges, he would normally ask the nurse whether she was comfortable with the count. If she answered in the affirmative, they would inform the surgeon that the counts were correct and the surgeon would be able to leave the operating theater. According to Mr. Williams, a discrepancy in any count would be reported to the surgeon and everyone, including the surgeon, would begin looking for the missing item. Mr. Williams emphasized that the surgeon does not participate in counting the sponges, and that the surgeon relies on the surgical technician and the nurse to count them correctly.

Ms. LeBoeuf explained that her role was to prepare and position the patient. She acknowledged the counting process previously described and stated that she made the appropriate entries on the medical chart reflecting that all sponges were accounted for in all three counts. Neither she nor Mr. Williams could account for the error in Ms. Davis’ procedure.

In rendering its decision to assess Dr. Shimer with fifty percent of the fault in failing to remove the sponge, the trial court first recognized that the plaintiff was not obligated to present expert evidence to establish a standard of care different from that testified to by Dr. Shimer because expert testimony was not necessary to establish that Dr. Shimer was negligent in leaving a sponge in his patient’s body. See Pfiffner v. Correa, 94-924 (La. 10/17/94), 648 So.2d 1228 and Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La.1986). Additionally, the trial court relied on jurisprudence holding that a physician cannot delegate his obligation to count the sponges used in a surgical procedure in finding Dr. Shimer partially at fault in this matter. See Grant v. Touro Infirmary, 254 La. 204, 223 So.2d 148 (1969), overruled on other grounds by Garlington v. Kingsley, 289 So.2d 88 (La.1974); McLin v. Breaux, 05-1911 (LaApp. 1 Cir. 11/3/06), 950 So.2d 711, writ denied, 06-2822 (La.1/26/07), 948 So.2d 177; Romero v. Bellina, 01-274 (LaApp. 5 Cir. 9/25/01), 798 So.2d 279, writ denied, 01-2852 (La.1/11/02), 807 So.2d 237; Johnston v. Sw. La. Ass’n, 96-1457 (La.App. 3 Cir. 4/2/97), 693 So.2d 1195; Seals v. Gosey, 565 So.2d 1003 (La.App. 1 Cir.), writ denied, 569 So.2d 983 (La.1990); Kelly v. Riverside Med. Ctr., 499 So.2d 1135 (La. App. 1 Cir.1986); Guilbeau v. St. Paul Fire and Marine Ins. Co., 325 So.2d 395 (La.App. 3 Cir.1975), writ denied, 329 So.2d 454 (La.1976); Chappetta v. Ciarav-ella, 311 So.2d 563 (La.App. 4 Cir.), unit denied, 313 So.2d 841 (La.1975).

We find ourselves obligated to follow the well-established jurisprudence on this issue and, in doing so, must affirm the trial court judgment in all respects.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment in all respects. We assess all costs of this appeal to Brenna Davis.

AFFIRMED.

      . While the record before us is not clear as to the specific dates, it is not disputed that Ms. Davis settled her claim against Dr. Shimer before the trial on the merits.

      . At the time, Ms. Davis weighed over 200 pounds.

      . A lap band surgical procedure entails inserting an adjustable belt around the top portion of the stomach immediately below the point where the esophagus connects to the stomach. The presence of the belt is intended to cause an individual to stop eating sooner because of a full feeling caused by the restrictive belt. Thus, the individual ingests fewer calories, causing a weight loss.

      .Ms. LeBoeuf is a registered nurse, and Mr. Williams is a surgical technician.

      . The circulating nurse, who is not sterile, does not touch the sponges for that reason.

      . One of Ms. Davis' complaints is that the second procedure increased the size of the scar caused by the initial procedure.

      .It is well established that under the doctrine of respondeat superior a hospital can be liable for the negligence of its employees. Odom v. State Dep't of Health and Hosps., 98-1590 (La.App. 3 Cir. 3/24/99), 733 So.2d 91; Little v. Pou, 42,872 (La.App. 2 Cir. 1/30/08), 975 So.2d 666, writ denied, 08-806 (La.6/6/08), 983 So.2d 920.

      . According to Dr. Shimer, the three and one-half by four inch sponge that remained in Ms. Davis would become the size of a small egg yolk when saturated with blood.


author: COOKS, Judge.

text:
    Brenda WILLIAMS v. STATE of Louisiana, through the DEPARTMENT OF SOCIAL SERVICES.
    No. 11-319.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Eugene A. Ledet, Jr., Dalrymple & Le-det, LLC, Alexandria, LA, for Claimant/Appellee, Brenda Williams.
    James D. “Buddy” Caldwell, Attorney General, Victoria R. Murray, Assistant Attorney General, Alexandria, LA, for Defendant/Appellant, State of Louisiana, Department of Social Services.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   COOKS, Judge.

Lin the summer of 2005, the plaintiff, Brenda Williams, was employed by the State of Louisiana, Department of Social Services. Her duties involved driving clients to various locations for medical appointments. Experiencing an influx of evacuees in the central Louisiana area in September of 2005 as a result of Hurricane Katrina, the State restricted Plaintiff to driving clients who needed various services.

As a result of the constant driving, Plaintiff, who was a type II diabetic, developed a callous on the bottom of her right foot. The callous eventually ruptured, requiring medical treatment. Plaintiff continued working while undergoing treatment. In July of 2006, Plaintiffs problems forced her to undergo an amputation of one of the toes on her right foot. Due to vascular damage caused by her diabetic condition, she remained unhealed at the situs of the amputation and suffered severe pain as a consequence.

Following the amputation, she was not able to return to work and began receiving indemnity benefits. She was eventually released to return to work on October 6, 2006 with a notation in her medical record that the wound had healed. Plaintiff maintained she continued to have problems associated with her right foot and also developed a blister under her left big toe. Ultimately, Plaintiffs injuries and subsequent infections resulted in the amputation of her left forefoot on November 20, 2009. Plaintiff contended the problems with her left foot were caused by the original right foot injury which occurred in September of 2005. Specifically she asserted the left foot injuries resulted from changes in weight distribution which were necessitated by her right foot injuries.

Indemnity benefits were paid through October 6, 2006. Dr. Paul Sunderhaus, her treating physician, limited Plaintiff to sedentary duty as a result of the problems with both feet. Plaintiff maintained she was unable to return to work 12due to the medical problems and resulting treatment associated primarily with her left foot.

On June 11, 2008, Plaintiff filed a claim with the Office of Workers’ Compensation seeking payment for indemnity benefits and reimbursement for antibiotic medications prescribed by Dr. Sunderhaus. Penalties and attorney fees were also requested for the Defendant’s arbitrary refusal to pay benefits and reimburse medical expenses. The listed area of injury on the claim was Plaintiffs right foot. On April 3, 2009, Plaintiff filed a motion to amend her claim, asserting she was owed benefits and medical expenses associated with the amputation of a portion of her left foot with continuing chronic infection of lesions to the left foot caused by her job-related efforts of driving and unloading patients from her vehicle.

The employer contended Plaintiff was fully recovered from the right foot condition, and that the left foot condition was not causally related to any job incident or any complications from the job incident. The employer also alleged Plaintiffs right foot claim was prescribed within the one year period provided in La.R.S. 23:1209 for filing a claim for temporary total disability benefits. Finding the claim fell within an exception to the one-year prescriptive period, in this case where the claim was filed within three years from the last payment of benefits, the OWC denied the exception of prescription. The OWC also found Plaintiff established by a preponderance of the evidence that she was entitled to receive supplemental earnings benefits (SEB) as the State presented no showing that there was a job available within her physical restrictions. We also note the prescriptive period for filing a claim for SEB is three years. The OWC also found Plaintiff established through the deposition of Dr. Sunderhaus that she was entitled to have the State pay for the continuing prescriptions of antibiotic medications. Lastly, the OWC awarded Plaintiff a $2,000.00 penalty for the failure to reinstate indemnity | ¡¡benefits, a $2,000.00 penalty for the failure to pay for the antibiotic medications, and $6,500.00 in attorney fees.

The State appealed the judgment, contending the OWC erred in awarding supplemental earnings benefits, denying the exception of prescription, and in awarding penalties and attorney fees to Plaintiff. For the following reasons, we affirm.

I. Standard of Review.

In workers’ compensation cases, the factual findings of the trial court are subject to the manifest error standard of review. Smith v. Louisiana Dep’t of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Lebert v. McNeese State Univ., 05-856 (La.App. 3 Cir. 2/1/06), 932 So.2d 678. In applying that standard, we must determine not whether the trier of fact’s conclusion was right or wrong, but whether it was reasonable. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733; Stobart v. State, 617 So.2d 880 (La.1993). “Where there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous.” Stobart, 617 So.2d at 882.

A. Award of SEB.

Supplemental earnings benefits are awarded when a work-related injury prevents the injured worker from earning ninety percent of his pre-injury wages. La.R.S. 23:1221(3). According to our supreme court, “[t]he purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident.” Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840, p. 8 (La.7/1/97), 696 So.2d 551, 556 (quoting Pinkins v. Cardinal Wholesale Supply, Inc., 619 So.2d 52, 55 (La.1993)).

In this assignment of error, the State argues in brief that the award of SEB was improper because Plaintiff had not been released to work and that Dr. Sunderhaus was of the opinion she was permanently and totally disabled. This |4argument is completely in opposition to the position advanced by the State below. The State did not argue that Plaintiff was permanently and totally disabled, but instead referenced Dr. Sunderhaus’ deposition testimony that she was capable of sedentary employment. The State argued the following in its post-trial memorandum:

Finally, [Dr. Sunderhaus] testified that Ms. Williams is unable to engage in anything but sedentary employment because of the need that she not put pressure on her feet and that the limitation stems from her underlying diabetic and Charcot-degeneration symptoms that would occur even though she has not worked in over a year.
Ms. Williams has failed to meet her burden of proof that she is entitled to continued medical benefits in this case; her claim for indemnity benefits has prescribed or alternatively, she has failed to prove that she is disabled from working as a result of any work-related injury. (Emphasis added.)

Despite its argument below that Plaintiff failed to prove she was disabled from working, the State now, in an apparent change in position to avoid the OWC’s award of SEB, now argues Plaintiff is permanently and totally disabled.

The testimony of Dr. Sunderhaus clearly establishes that Plaintiff was not declared permanently and totally disabled, but was restricted to sedentary duty. When asked whether Plaintiff was permanently and totally disabled, Dr. Sunderhaus stated “[r]eally, she can do sedentary employment.” In conjunction with the State’s failure to produce any evidence of an available job within her physical restrictions, the OWC did not err in finding Plaintiff was entitled to SEB.

B. Exception of Prescription.

The State claimed that Plaintiff was employed at the time of the filing of her 1008 claim, suggesting that no indemnity payments were owed. As Plaintiff pointed out below, the State did not file an Exception of Prematurity, nor did its answer contain an objection of prematurity. The record establishes that Plaintiff received indemnity benefits for a period stretching from July, 2006 through September 29, 2006.

[sLa.R.S. 23:1209(A) sets out the applicable prescriptive period, as follows:

In case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed as provided in Subsection B of this Section and in this Chapter. Where such payments have been made in any case, the limitation shall not take effect until the expiration of one year from the time of making the last payment, except that in cases of benefits payable pursuant to R.S. 23:1221(3) this limitation shall not take effect until three years from the time of making the last payment of benefits pursuant to R.S. 23:1221(1), (2), (3), or (Ip). Also, when the injury does not result at the time of, or develop immediately after the accident, the limitation shall not take effect until expiration of one year from the time the injury develops, but in all such cases the claim for payment shall be forever barred unless the proceedings have been begun within two years from the date of the accident. (Emphasis added.)

Under the above exception in La.R.S. 23:1209, Plaintiffs claim was not barred until three years from the date of the last payment of benefits (September 29, 2006). Both the original claim, filed on June 11, 2008, and the amended claim, filed on April 3, 2009, are well within the three year period set forth in La.R.S. 23:1209. Further, the OWC found Plaintiff was entitled to SEB rather than TTD benefits. The prescriptive period applicable to a claim for supplemental earnings benefits is three years. The OWC properly denied the State’s Exception of Prescription.

C. Penalties and Attorney Fees.

Lastly, the State contends the OWC erred in awarding penalties and attorney fees to Plaintiff. Pursuant to La. R.S. 23:1201(F), an employer who fails to commence payment of indemnity benefits or to pay medical benefits timely shall be subject to penalties and attorney fees unless the employer reasonably controverts the employee’s claim. LeJeune v. Bell Tower Corp., 09-1222 (La.App. 3 Cir. 4/7/10), 34 So.3d 464. The determination of whether an employer should be cast with penalties and attorney fees is a question of fact. Accordingly, the OWC’s award of penalties and attorney fees will not be reversed absent manifest |fierror. Maddox v. Texas Gas Transmission Corp., 07-906 (La.App. 3 Cir. 12/05/07), 971 So.2d 541, writ denied, 08-64 (La.3/7/08), 977 So.2d 911.

In this case, the OWC, specifically noting the employer’s continuing duty to gather all pertinent medical information during its investigation of a claim, found any doubt as to Plaintiffs entitlement to benefits and medical care was cleared up by Dr. Sunderhaus’ May 12, 2010 deposition. The OWC stated as follows:

Dr. Sunderhaus cleared up the confusion in the letters addressed to Mr. Dalrym-ple and the letters addressed that — received by the State with respect to the right foot condition, that it should have been clear to the State that Ms. Williams had an ongoing disability problem associated with — her right foot, and the incident occurred in September of 2005, such that the State should have re-instituted the payment of indemnity benefits to Ms. Williams, as well as paying for outstanding medical expenses associated with any antibiotic medications prescribed by Dr. Sunderhaus....

Thus, we find no manifest error in the OWC’s imposition of penalties and attorney’s fees and affirm the ruling in that respect.

DECREE

For the foregoing reasons, the judgment of the Office of Workers’ Compensation is affirmed. All costs of this appeal-are assessed to appellant, the State of Louisiana, through the Department of Social Services.

AFFIRMED.


author: PAINTER, Judge.

text:
    C.D.J. and B.M.A.J. Applying for Intra-Family Adoption of P.L.A. and D.T.A. v. B.C.A.
    No. 11-378.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    W. Mitchell Redd, Attorney at Law, Lake Charles, LA, for Defendant/Appellee, B.C.A.
    Emily Wagner, Attorney at Law, West-lake, LA, for Plaintiffs/Appellants, C.D.J. & B.M.A.J.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

hThe stepfather and biological mother of two minor children petitioned for intra-family adoption. The trial court dismissed the petition on the father’s exceptions because there was no custody order in effect and. litigation as to custody was on-going at the time the petition came for hearing. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

B.M.A.J., is the biological mother of the minor children, P.L.A. and D.T.A. Defendant, B.C.A., married B.M.A.J. on March 10, 2005. B.C.A. adopted P.L.A. and is the biological father of D.T.A. (who was born during the marriage between B.M.A.J. and B.C.A.). B.C.A. and B.M.A.J. were divorced on December 5, 2008. Petitioner, C.D.J., is currently married to B.M.A.J. and is the stepfather of P.L.A. and D.T.A.

When B.M.A.J. and B.C.A. were divorced, B.C.A. was ordered to pay child support, but there was no order as to custody. On May 7, 2010, B.M.A.J. and her new husband, C.D.J., filed a petition for intra-family adoption of P.L.A. and D.T.A. Therein, they alleged that B.C.A.’s consent to the adoption was not required under La.Ch.Code art. 1245(C)(1) because B.C.A. had failed to pay child support as ordered by the court for longer than six months. B.C.A. objected to the adoption, and a hearing was held on November 12, 2010. At the hearing, B.C.A. submitted exceptions of no cause of action and prematurity based on the fact that there was no custody order in effect. The trial court granted the exceptions and dismissed the petition for intra-family adoption. Also on that date, the trial court signed a stipulated judgment as to custody. Joint custody of the minor children 12was awarded to B.M.A.J. and B.C.A., with B.M.A.J. being designated as the domiciliary parent. This appeal of the dismissal of the petition for intra-family adoption followed. The award of joint custody is not at issue herein.

DISCUSSION

“The party petitioning the court for adoption carries the burden of proving a parent’s consent is not required under the law.” In re Mulvihill, 10-826, p. 4 (La.App. 4 Cir. 1/19/11), 56 So.3d 418, 421 (citing In re Fleming, 01-1405 (La.App. 5 Cir. 4/30/02), 817 So.2d 371). In this case, B.M.A.J. and C.D.J. allege that B.C.A.’s consent to the adoption is not necessary under La.Ch.Code art. 1245 because B.M.A.J. was “otherwise lawfully exercising actual custody” and because B.C.A. failed to pay child support for a period longer than six months.

The peremptory exception of no cause of action poses a question of law and is reviewed de novo. Washington Mut. Bank v. Monticello, 07-1018 (La.App. 3 Cir. 2/6/08), 976 So.2d 251, writ denied, 08-530 (La.4/25/08), 978 So.2d 369; see also Indus. Cos., Inc. v. Durbin, 02-665 (La.1/28/03), 837 So.2d 1207.

Louisiana Children’s Code Article 1245 reads:

A. The consent of the parent as required by Article 1193 may be dispensed with upon proof by clear and convincing evidence of the required elements of either Paragraph B or C of this Article at the hearing on the opposition and petition.
B. When a petitioner authorized by Article 1243 has been granted custody of the child by a court of competent jurisdiction and any one of the following conditions exists:
(1) The parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.
C. When the spouse of a stepparent petitioner has been granted sole or joint custody of the child by a court of competent jurisdiction | sor is otherwise exercising lawful custody of the child and any one of the following conditions exists:
(1) The other parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The other parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

B.M.A.J. and C.D.J. assert that In re Landry, 97-867 (La.App. 3 Cir. 10/29/97), 702 So.2d 1092, defines “otherwise exercising lawful custody” to mean “the parent who has actual, physical custody of the child where no custody decree exists.” Id. at 1096. While we agree with Landry that there was no prior jurisprudence interpreting the language “lawfully exercising actual custody,” we find that it is distinguishable from the case at bar. Thus, we do not find that the Landry decision is dispositive of the issue at hand. The Landry case dealt with a situation in which there was no marriage between the mother and father such that the child at issue was illegitimate. There was no on-going custody dispute as is present here. We agree with the trial court that it was not the intent of the law for the provisions of this article to apply to the case where there is on-going litigation relating to custody.

Thus, our de novo review leads us to the determination that the trial court was legally correct in dismissing the petition for intra-family adoption filed by B.M.A.J. and C.D.J. on B.C.A.’s exception of no cause of action because there was on-going litigation as to custody. Since we find that the trial court correctly dismissed the petition on procedural grounds, we do not address the assertion that the trial court erred in not holding an adequate hearing.

|4DECREE

For all of the foregoing reasons, we affirm the trial court’s judgment dismissing the petition for intra-family adoption filed by B.M.A.J. and C.D.J. Costs of this appeal are assessed to Plaintiffs/Appellants.

AFFIRMED.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules-Courts of Appeal, we use the ini-tíais of the parties involved to protect the identities of the minor children.


author: DECUIR, Judge.

text:
    Carlton MAXEY v. UNIVERSAL CASUALTY COMPANY.
    No. 11-339.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      Joe Payne Williams, Williams Family Law Firm, L.L.C., Natchitoches, LA, for Plaintiff/Appellant, Barbara Renee Maxey, as Representative of Estate.
    Charles K. Charrier, Attorney at Law, Alexandria, LA, for PlaintiffiAppellant, Barbara Renee Maxey, as Representative of Estate.
    R. Todd Musgrave, Musgrave, McLach-lan & Penn, L.L.C., New Orleans, LA, for Defendant/Appellee, Universal Casualty Company.
    Amanda H. Aucoin, Musgrave, McLach-lan & Penn, L.L.C., New Orleans, LA, for Defendant/Appellee, Universal Casualty Company.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   DECUIR, Judge.

| garitón Maxey filed suit against his automobile insurer, Universal Casualty Company, seeking payment under the comprehensive coverage provision of his policy after his vehicle was stolen and destroyed by fire. After prevailing on the coverage question, Maxey sought penalties and attorney fees which were denied by summary judgment. Maxey’s succession representative, Barbara Maxey, perfected this appeal. For the following reasons, we affirm.

Sometime between 9:00 a.m. and 1:00 p.m. on July 24, 2008, Maxey’s 2006 Nissan Altima was stolen from the driveway of his home in Derry, Louisiana. The car was unlocked, and a spare key was hidden under the floor mat. Maxey was away from home during those hours; when he returned shortly after 1:00 p.m., he noticed the car was gone. He immediately reported the car stolen, and it was located by police later that day elsewhere in the parish. The car had been set on fire and was a total loss.

Universal does not deny that it had in full force and effect a policy of insurance in favor of Carlton Maxey providing comprehensive coverage for loss due to both theft and fire. However, the policy contains a specific exclusion for theft under certain circumstances: specifically, under Part IV, Exclusion (o) of the policy, coverage does not apply “to loss due to theft under coverage (a) of this part if evidence exists that forcible entry was not required to gain access to the automobile.” Based on this exclusion, and Maxey’s admissions that the car was unlocked and a key was inside at the time it was stolen, Universal denied coverage. Universal then filed a motion for summary judgment on the issue of coverage.

Maxey responded by filing a cross motion for summary judgment, arguing that his loss was the result of a fire, not theft. The trial court agreed and granted Max-ey’s motion. Universal unsuccessfully took up writs to this court and the Louisiana Supreme Court. Universal then immediately tendered to Maxey the full amount of his | Joss plus interest. However, Maxey sought statutory penalties and attorney fees for Universal’s delay in paying the claim. Maxey specifically alleged that Universal’s delay in tendering payment was based upon a misinterpretation of its own policy, and Maxey asserts that when an insurer misinterprets its policy, “it does so at its own risk, not at the risk of the insured.”

The trial court described the case as presenting a unique factual situation and determined that Universal had a reasonable basis to defend the claim. The court found Universal acted in good faith reliance on its defense of a theft exclusion. Penalties and attorney fees were denied via summary judgment, and Maxey appealed.

In this appeal, Maxey relies on the case of Louisiana Bag Co. v. Audubon Indemnity Co., 08-453, pp. 19-20 (La.12/2/08), 999 So.2d 1104, 1117, which held:

This court has found that an insurer “must take the risk of misinterpreting its policy provisions,” and that, if an insurer “errs in interpreting its own insurance contract, such error will not be considered as a reasonable ground for delaying payment of benefits, and it will not relieve the insurer of the payment of penalties and attorney’s fees.” Id. (citing Albert v. Cuna Mut. Ins. Soc’y, 255 So.2d 170 (La.App. 3 Cir.1971)). “In other words, insurers should not have their policy provisions interpreted at the expense of the insured, especially when they are charged with knowledge of their policy’s contents.” Id. In short, Audubon’s potential error in the interpretation of its insurance contract was not a reasonable ground for refusing timely payment. Therefore, Audubon could not avoid the payment of penalties for its delay in tendering payment within the statutorily mandated time period by reason of its interpretation of the coverage afforded by its policy.

We find Maxey’s reliance on the Louisiana Bag language to be misplaced. The coverage in the present case does not rest on the interpretation of the policy. Rather, the issue confronting the trial court was simply a question of whether Maxey’s damages were due to fire or theft. If the damages were due to theft, then the undisputed “forced entry” terms of the policy would exclude coverage. If the damages were due to fire, then the undisputed fire terms of the policy would provide coverage. The trial court considered the facts and determined the damages were due to fire.

lain Louisiana Bag, the disputed coverage question was based on a legal issue, the resolution of which would affect only the extent of coverage. The insurer had knowledge of the undisputed portion of the claim and refused to pay even that amount while it waited for a legal opinion from its retained counsel on the full extent of the claim. In the present case, the insurer sought judicial resolution of a factual question: whether Maxey’s damages were the result of fire or theft. The trial court found this coverage question to be reasonably disputed by the insurer, even though the court ultimately ruled against the company. We agree with the trial court’s rationale. We do not believe Universal acted unreasonably in contesting coverage in this particular case.

Accordingly, we find no error in the decision reached by the trial court. Universal’s motion for summary judgment was properly granted, with the dismissal of all remaining claims asserted by Maxey. For these reasons, the judgment appealed from is affirmed. Costs of the appeal are assessed to Barbara Maxey.

AFFIRMED.


author: GENOVESE, Judge.

text:
    Melissa Alston PORTER v. Jeff D. PORTER.
    No. 11-460.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Angelo J. Piazza, III, Marksville, LA, for Defendant/Appellant, Jeff D. Porter.
    Michael H. Davis, Alexandria, LA, for Plaintiff/Appellee, Melissa Alston Porter.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this domestic case, the trial court awarded the parents joint custody of their two children and designated the mother as the domiciliary parent. The father has appealed that portion of the judgment designating the mother as the domiciliary parent of their two children. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Jeff D. Porter (Jeff) and Melissa Alston Porter (Melissa) entered into a covenant marriage on April 21, 2001, and physically separated on May 21, 2010. On June 9, 2010, Melissa filed a Petition for Separation from Bed and Board in a Covenant Marriage seeking, along with other relief, joint custody of the two children born during the marriage, Madison Brook Porter (born October 22, 2001) and John Scott Porter (born August 10, 2006), with her being named the domiciliary parent and with Jeff having reasonable visitation privileges. Jeff responded to the petition with a reconventional demand on June 24, 2010, wherein he sought, along with other relief, to have the trial court award the couple shared custody of the children. On August 5, 2010, Jeff filed an Amending and Supplemental Petition asserting that “it is in the children’s best interest that he be designated as primary custodian[.]”

Following a two-day hearing, the trial court rendered judgment on several issues, including custody. In its judgment, the trial court awarded joint custody of the children to Jeff and Melissa but named Melissa as the domiciliary parent. From this judgment, Jeff appeals, asserting the following assignment of error.

ASSIGNMENT OF ERROR

Jeff asserts that “[t]he trial court erred by not granting primary custody to [him] and/or alternatively 50/50 shared custody in contravention of the established and existing 50/50 arrangement of custody.”

CLAW AND DISCUSSION

An appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. Each child custody case must be reviewed in light of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the child. Barberousse v. Barberousse, 556 So.2d 930 (La.App. 3 Cir.1990). The best interest evaluation is fact-intensive and requires the weighing and balancing of factors favoring or opposing custody of the competing parties on the basis of the evidence presented in each case. Romanowski v. Romanowski, 03-124 (La.App. 1 Cir. 2/23/04), 873 So.2d 656. The trial court is vested with broad discretion in deciding child custody cases, and its decision will not be disturbed absent a clear abuse of discretion. Bagents v. Bagents, 419 So.2d 460 (La.1982); Stevens v. Stephens, 02-402 (La.App. 1 Cir. 6/21/02), 822 So.2d 770. However, as recognized by our supreme court, “[a]n award of custody is not a tool to regulate human behavior.” Everett v. Everett, 433 So.2d 705, 708 (La.1983). In this case, we find no manifest error in the trial court’s factual findings, nor do we find the trial court abused its discretion in effectuating its joint custody judgment wherein Melissa was designated as the domiciliary parent.

Louisiana Civil Code Article 131 provides that “[i]n a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child.” In its Written Reasons for Judgment, the trial court properly cited the law to be applied in considering a child custody dispute. The |strial court was making an initial determination of child custody pursuant to La.Civ.Code art. 132, which provides:

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

Thus, La.Civ.Code art. 132 establishes a presumption of joint custody of the children. Louisiana Revised Statutes 9:335(B)(1) provides that “[i]n a decree of joint custody the court shall designate a domiciliary parent except when there is an implementation order to the contrary or for other good cause shown.” On review, we find that the record supports the trial court’s award of joint custody with Melissa being designated as the domiciliary parent.

In designating the domiciliary parent for purposes of a joint custody determination, consideration must be given to the statutory factors set forth in La.Civ.Code art. 134 in order to determine what is in the best interest of the children. The factors of La.Civ.Code art. 134 to be considered are as follows:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of the environment.
|4(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

In considering those factors, the trial court stated in its Written Reasons for Judgment that neither party was favored as to factors (1), (4), (5), (7), (8), (10), and (11); however, the trial court did find that factors (2), (3), (6), and (12) weighed in favor of Melissa. No weight was given by the trial court to factor (9). While Jeff alleged at trial and again on appeal that Melissa’s decision to end the marriage was a result of her extra-marital relationships which he contends have adversely affected the children, the trial court found no evidence substantiating these allegations. Instead, the trial court did find that Jeff exhibited behavior which could adversely affect the children. In regards to factor (6), the trial court stated:

As to the moral fitness of [Jeff], he admitted to watching pornography. He also testified as to a particular incident when Madison inadvertently viewed the pornographic material that he was watching.
As for [Melissa’s] moral fitness, [Jeff] alleges that [Melissa] has a background of pre-marital affairs and has “interloped into an alternative lifestyle of gay lesbians[.]” | ¡¿Melissa] admitted that she has lesbian friends, but there was no evidence that [her] association with these friends had any detrimental effect on the children. In fact, [Melissa] testified that the children have not been exposed to these friends or their lifestyle. Further, the court does not find any credible evidence that [Melissa’s] alleged adulterous behavior had any detrimental effect on the children.
Both parents admitted that they drink alcohol occasionally, but they do not do so around the children.
While the [c]ourt is not of the opinion that either parent is without error, [Melissa’s] moral fitness does not appear to have any detrimental effect on the children. Thus, this factor weighs in favor of [Melissa].

Based on our thorough review of the record, we find no manifest error in the trial court’s factual determinations. Applying the trial court’s factual findings to the factors set out in La.Civ.Code art. 134, we agree with the trial court that the factors weigh in favor of Melissa.

We acknowledge Jeffs assertion that La.R.S. 9:335(A)(2)(b) provides that to the extent it is feasible and in the best interest of the children, physical custody of the children should be shared equally between the parties. Jeff contends that the trial court erred in not awarding shared custody since the parties had voluntarily followed an equal custody arrangement since their physical separation in May of 2010; however, we note that the parties physically separated immediately after the school year ended. Further, Melissa did not consent to a continuation of this arrangement, particularly with the structure and schedule the children were accustomed to during the school year. The trial court, likewise, did not consider such an arrangement feasible and in the best interest of the children. Therefore, we find Jeffs argument lacks merit.

Considering the evidence in the record, we find that the trial court did not abuse its discretion in designating Melissa as the domiciliary parent of the two | ¡¡children. Accordingly, we conclude that the trial court did not manifestly err or abuse its discretion in finding that it was in the best interest of the children to grant Jeff and Melissa joint custody with the designation of Melissa as the domiciliary parent, subject to the specific visitation privileges in favor of Jeff.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in all respects. The costs of this appeal are assessed to Defendant/Appellant, Jeff D. Porter.

AFFIRMED.


text:
    Brandon JAGNEAUX v. Ronald R. FROHN, J & J Exterminating Company of Lafayette, Inc., and Old Republic Insurance Company.
    No. 11-461.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.
    Lance S. Ostendorf, John G. Alsobrook, Ostendorf, Tate, Barnett & Tagtmeyer, L.L.P., New Orleans, LA, for Defendants/Appellants, Ronald R. Frohn, J & J Exterminating Company of Lafayette, Inc., and Old Republic Insurance Company.
    James E. Diaz, Jr., John E. Ortego & Associates, Lafayette, LA, for Defendant/Appellee, Tad King and Sandra Kling.
    Victor Versaggi, Domengeaux Wright Roy & Edwards, Lafayette, LA, for Plaintiff/Appellee, Brandon Jagneaux.
    Court composed of JOHN D. SAUNDERS, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| defendants, Ronald R. Frohn, J & J Exterminating Company of Lafayette, Inc., and Old Republic Insurance Company, appeal the trial court’s grant of a Motion for Partial Summary Judgment on Liability in favor of Defendants, Tad Kling and Sandra Kling. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

The instant litigation arises out of a motor vehicle accident that occurred on September 21, 2009, in Lafayette, Louisiana. At the time of the accident, Defendant, Ronald R. Frohn, was driving a vehicle owned by his employer, J & J Exterminating Company of Lafayette, Inc., with his co-employee, Scott Sonnier, riding as a guest passenger. Mr. Frohn was proceeding southbound on Bendel Road following a white sports utility vehicle (SUV). Mr. Frohn avers that the SUV slowed down rapidly causing him to move into the center turn lane; however, the SUV also moved into the center turn lane directly in front of his vehicle. In an effort to avoid an accident with the SUV, Mr. Frohn then re-entered the southbound lane. When Mr. Frohn returned to the southbound lane, he did so in front of the vehicle being driven by Plaintiff, Brandon Jagneaux. To avoid a collision with Mr. Frohn, Mr. Jagneaux applied his brakes, veered to the right of the roadway, and struck a fence. Following the incident, Mr. Frohn obtained what he believed to be the license plate number of the white SUV that he had encountered. It was later learned that the owners of the SUV matching that license plate number were Defendants, Tad and Sandra Kling.

Mr. Jagneaux filed suit against Defendants, Ronald R. Frohn, J & J Exterminating Company of Lafayette, Inc., and Old Republic Insurance Company (collectively J & J). He later amended his petition to also name the Klings as Defendants. The Klings filed a Motion for Partial Summary Judgment |2on Liability. Following a hearing on same, the trial court granted the motion in favor of the Klings. It is from this judgment that J & J appeals.

ASSIGNMENT OF ERROR

J & J contends that the trial court was manifestly erroneous in granting the Motion for Partial Summary Judgment on Liability in favor of the Klings given the existence of genuine issues of material fact.

LAW AND DISCUSSION

Our Louisiana Supreme Court has instructed us on the standard of review relative to a motion for summary judgment as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. Duncan v. U.S.A.A. Ins. Co., [06-363 (La.11/29/06) ], 950 So.2d 544, [see La.Code Civ.P.] art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; ie. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Wright v. Louisiana Power & Light, [06-1181 (La.3/9/07) ], 951 So.2d 1058[ ]; King v. Parish National Bank, [04-337 (La.10/19/04) ], 885 So.2d 540, 545; Jones v. Estate of Santiago, [03-1424 (La.4/14/04) ], 870 So.2d 1002[.]

Samaha v. Rau, 07-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83 (footnote omitted). Louisiana Code of Civil Procedure Article 966(C)(2) provides:

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his ^evidentiary burden of proof at trial, there is no genuine issue of material fact.

Gabriel v. Louisiana Organ Procurement Agency, 10-251, p. 5 (La.App. 3 Cir. 10/6/10), 48 So.3d 1192, 1195, writ denied, 10-2515 (La. 1/7/11), 52 So.3d 887.

Our supreme court has further instructed us as follows:

A “genuine issue” is a “triable issue.” Toups v. Hawkins, 518 So.2d 1077, 1079 (La.App. 5th Cir.1987) (citing Brown [v. B & G Crane Service, Inc., 172 So.2d 708, 710 (La.App. 4 Cir.1965) ]). More precisely, “[a]n issue is genuine if reasonable persons could disagree. If on the state of the evidence, reasonable persons could reach only one conclusion, there is no need for a trial on that issue. Summary judgment is the means for disposing of such meretricious disputes.” W. Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F.R.D. 465, 481 (1983). In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788, 791 (La.App. 3d Cir.), writs denied, 525 So.2d 1048, 1049 (La.1988); Pace v. Zilka, 484 So.2d 771 (La.App. 1st Cir.), writ denied, 488 So.2d 691 (La.1986); Mecom v. Mobil Oil Corp., 299 So.2d 380, 386 (La.App. 3d Cir.), writ denied, 302 So.2d 308 (La.1974). “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.” Brown, 172 So.2d at 710; Sally Beauty Co. v. Barney, 442 So.2d 820, 822 (La.App. 4th Cir.1983).
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Penalber v. Blount, 550 So.2d 577, 583 (La.1989). “[Fjacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” South Louisiana Bank v. Williams, 591 So.2d 375, 377 (La.App. 3d Cir.1991), units denied, 596 So.2d 211 (La.1992). Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. Sassone v. Elder, 626 So.2d 345, 352 (La.1993); Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Co., 427 So.2d 1152, 1153-54 (La.1983) (collecting cases); McCoy v. Physicians & Surgeons Hospital, Inc., 452 So.2d 308, 310 (La.App. 2d Cir.), writ denied, 457 So.2d 1194 (La.1984) (noting that “[sjummary judgment may not be used as a substitute for trial”).

Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751.

|4The Klings, in their Motion for Partial Summary Judgment on Liability, assert:

The indisputable facts of this case include that TAD KLING was a co-owner of the vehicle driven by his wife and took no part in any material way in the circumstances of this accident, and that SANDRA KLING, likewise, was uninvolved in the subject accident as, at all times pertinent to the facts of this accident, she was completing a visit to her doctor’s office, and by the time she left that office the subject accident had already occurred.

The Klings maintain that Mr. Frohn got the license plate number of the wrong white SUV. Although he thought the Kling vehicle was the same vehicle that precipitated the accident, he was mistaken.

In her deposition, Mrs. Kling admitted that she was the primary driver of a white 2009 GMC Yukon. She testified that she was driving this vehicle on the morning of this accident and that she arrived at her doctor’s office on Bendel Road at 9:15 a.m. When her appointment was completed, at approximately 9:50 a.m., she stated that she was leaving the parking lot preparing to turn left onto Bendel Road, when she looked to her right and “saw the accident had already happened.” She testified that she saw the truck that had struck the fence and that there were people standing around the vehicles.

J & J relies on the deposition testimony of Mr. Frohn to place Mrs. Kling behind the wheel of the white SUV that allegedly caused the subject accident. Mr. Frohn testified that, shortly before the accident occurred, he saw the white SUV which he had attempted to avoid make a left-hand turn into a parking lot. He then began to accelerate and had traveled “three to four car lengths” when he heard the screeching of brakes. In his rear-view mirror, he saw Mr. Jagneaux roll and “come to rest on the fence.” Mr. Jagneaux then turned around to return “back to that parking lot that [he] saw the lady in the white SUV turning into[.]” Mr. Frohn testified that he turned into the adjacent parking lot, parked his vehicle, walked to |Bthe entrance of the parking lot that the white SUV had entered, and waited. It was his testimony that he “tried to stop her from leaving and wrote down her license plate number and the vehicle as she proceeded to leave the parking area[.]”

In opposition to the motion, J & J also relies on the affidavit of Mr. Sonnier, wherein he states that while riding as a passenger with Mr. Frohn, he saw the white SUV ahead of them. Mr. Sonnier provides his version of the events prior to Mr. Jagneaux striking the fence. Moreover, Mr. Sonnier attests that “along with Mr. Frohn, [he] continued to watch the white SUV cross the northbound lane of Bendel Road, enter a parking lot and, then, turn around and leave the parking lot.” According to Mr. Sonnier, “the white SUV which Mr. Frohn and [he] saw come out of the parking lot, and which Mr. Frohn obtained the license plate number from, was the same vehicle” that they had attempted to avoid.

Mr. Jagneaux was also deposed but was unable to attest to whether or not the white SUV being driven by Mrs. Kling was the same white SUV that he saw in front of the vehicle driven by Mr. Frohn. It was Mr. Jagneaux’s testimony that he did not see the white SUV again after he struck the fence. Mr. Frohn told Mr. Jagneaux that he had taken down the license plate number of the SUV.

In granting the Motion for Partial Summary Judgment on Liability, the trial court stated “that the basis of it is not the identification of the SUV but the fact of whether or not this lady was in the doctor’s office at the time [the accident occurred.]” The trial court reasoned that it was incumbent upon J & J to refute her attestations, which they failed to do. While we agree that there was no evidence that Mrs. Kling did not have an appointment or did not attend her appointment, such evidence was not necessary to defeat the motion. The evidence introduced establishes that a genuine issue of material fact remains as to whether Mrs. Kling | ¿was the driver of the particular white SUV which allegedly caused, at least in part, the subject accident.

As mover, initially, the burden was upon Mrs. Kling to exonerate herself from liability. Her deposition testimony was sufficient to meet this burden as she testified that she, in fact, saw the accident after its occurrence. The burden then shifted to J & J. J & J relies on the testimony of Mr. Frohn and the affidavit of Mr. Sonnier to prove that Mrs. Kling was, in fact, the driver of the white SUV. The result is a “swearing match” and a conflict of testimony between the parties.

In determining whether summary-judgment is appropriate, our jurisprudence cautions that:

[I]t is not the function of the trial court to determine or inquire into the merits of issues raised, and the trial court may not weigh the conflicting evidence on a material fact. If evidence presented is subject to conflicting interpretations, summary judgment is not proper.
Further,
Summary judgment may not be granted when supporting and opposing documents reveal conflicting versions of the facts which may only be resolved by weighing contradicting testimony and assessing witness credibility.
Johnson v. Gov’t Employees Ins. Co., 05-176, pp. 5-6 (La.App. 3 Cir. 11/2/05), 916 So.2d 451, 454 (quoting Federated Rural Electric Ins. Corp. v. Gulf South Cable Inc., 02-852, pp. 4-5 (La.App. 3 Cir. 12/11/02), 833 So.2d 544, 546-47 (footnotes omitted)). “If in evaluating the evidence, the court considered the merits, made credibility determinations, evaluated testimony, or weighed evidence, summary judgment must be reversed.” Strickland v. Doyle, 05-11, p. 4 (La.App. 3 Cir. 4/6/05), 899 So.2d 849, 852, writ denied, 05-1001 (La.6/3/05), 903 So.2d 466.
Portie v. Flavin [Realty] Inc., 09-436, p. 4 (La.App. 3 Cir. 11/4/09), 22 So.3d 1143, 1146.

Harry v. Diamond B Marine Servs., 09-1271, pp. 5-6 (La.App. 3 Cir. 4/7/10), 34 So.3d 1023, 1027-28, writ denied, 10-1002 (La.6/25/10), 38 So.3d 347. Based upon our de novo review of the record, we find that there is conflicting evidence creating a genuine issue of a material fact, i.e., the identity of the driver of the white SUV against whom negligence has been asserted. Accordingly, based on the facts set forth in the record of this summary judgment, we find that the trial court erred in granting the Motion for Partial Summary Judgment on Liability in favor of the Klings.

DECREE

For the foregoing reasons, we reverse the trial court’s grant of the Motion for Partial Summary Judgment on Liability. Costs of this appeal are assessed against Appellees, Tad and Sandra Kling.

REVERSED.

      . The trial court also heard and granted an Exception of No Cause of Action filed on behalf of the Kings, dismissing a third party demand on behalf of J & J; however, the grant of that exception was not appealed.


text:
    Derek PAGE v. H. Cookie BENSON, et al.
    No. CA 11-936.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 5, 2011.

      John Paul Charbonnet, The Glenn Ar-mentor Law Corp., Lafayette, LA, for Plaintiff/Appellant, Derek Page.
    Kevin Wade Trahan, Valerie Guidry Ot-tinger, Hebert, etc., Lafayette, LA, for Defendants/Appellees, Sterling Grove Housing Development, Inc., C.S. Management, Inc., Bobby Benson, H. Cookie Benson, Monica Roger, Sterling Grove Housing Development, Inc. d/b/a Ed Washington Place Apartments.
    Court composed of OSWALD A. DECUIR, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   DECUIR, Judge.

| jUpon the lodging of the record in this appeal, this court issued a rule to show cause, on its own motion, ordering the plaintiff-appellant, Derek Page, to show cause why this appeal should not be dismissed as having been taken from a partial judgment which has not been designated as immediately appealable for express reasons as required by La. Code Civ.P. art. 1915(B). The plaintiff filed a response to this court’s rule. After considering the brief filed on behalf of the plaintiff and the record in this appeal, we dismiss the appeal and remand this case to the trial court for reformation of the judgment.

The instant litigation arises out of a landlord-tenant relationship. The plaintiff was a tenant in the Ed Washington Place Apartments. The defendants have ownership interests in the complex or have management or employment responsibilities with the complex. The named defendants are H. Cookie Benson, Bobby Benson, Monica Benson, Sterling Grove Housing Development, Inc. d/b/a Ed Washington Place Apartments, and C.S. Management, Inc.

In the course of litigating this suit, the defendants filed a motion for summary judgment. The motion singled out only six theories of recovery or causes of action which the plaintiffs petition set forth. In part, the motion states, “Defendants request that this Honorable Court set a Rule to Show Cause Hearing ordering the Plaintiff to show cause, why a summary judgment should not be granted, dismissing, with prejudice, several of the causes of action(s) asserted against the Defendants, with prejudice, and at Plaintiffs costs.”

After conducting a contradictory hearing on the motion for summary judgment, the trial court entered a judgment which read, in pertinent part, “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendants’ Motion for Partial Summary Judgment is hereby GRANTED.” The plaintiff filed a motion for a devolutive appeal from this ruling. As stated above, upon the lodging of the record in |2this case, this court issued its rule for the plaintiff to show cause why the appeal should not be dismissed since the trial court’s judgment states that it is a partial judgment, but the judgment is not designated as immediately appealable pursuant to La.Code Civ.P. art. 1915(B).

In the brief filed in response to the rule to show cause, the plaintiff explains that at the hearing on the motion for summary judgment, the trial court granted summary judgment as prayed for by the defendants. Plaintiff states that the trial court’s ruling dismissed all claims against all parties, except for the assault and battery claim against one defendant, Bobby Benson. Thus, the essence of the trial court’s ruling was to dismiss the suit against four of the defendants in full and to dismiss all claims against the last remaining defendant, Bobby Benson, except for the intentional tort claim. However, the trial court’s written judgment is not this clear and precise. To the contrary, as quoted above, the trial court’s written judgment simply states that the defendants’ motion for partial summary judgment is granted. The judgment does not order the dismissal of any particular party.

In Jenkins v. Recovery Technology Investors, 2002-1788 (La.App. 1 Cir. 6/27/03), 858 So.2d 598, the Office of Workers’ Compensation (OWC) court had entered judgment in favor of the injured employee against Recovery Technologists, Inc., ordering weekly benefits and medical expenses be paid. However, subsequent to entry of this judgment, the employer’s compensation insurer, Louisiana Workers’ Compensation Corporation (LWCC), changed the payments into supplemental earnings benefits, then later unilaterally discontinued the payments. The issue of whether these benefits were wrongfully terminated came before the OWC. The OWC court entered judgment reinstating compensation benefits for the employee. However, the OWC court also entered judgment assessing penalties against LWCC, as well as other assessments.

In dismissing the appeal and remanding the case, the appeals court stated:

|SA valid judgment must be precise, definite and certain. Laird v. St. Tammany Parish Safe Harbor, 2002-0045, p. 3 (La.App. 1st Cir.12/20/02), 836 So.2d 364, 365; Davis v. Farm Fresh Food Supplier, 2002-1401, p. 4 (La.App. 1st Cir.3/28/03), 844 So.2d 352, 353. A final appealable judgment must contain de-cretal language, and it must name the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied. See Carter v. Williamson Eye Center, 2001-2016 (La.App. 1st Cir.11/27/02), 837 So.2d 43.
In the present case the employer is identified in the caption of the judgment as “Recovery Technology Investors,” although its proper name may be “Recovery Technologists, Inc.,” as shown in the original judgment of June 19, 1997. While the April 18, 2002 judgment, which is presently before us, mentions the failure of LWCC to pay benefits, LWCC was not mentioned in the June 19, 1997 judgment. It is not clear from the 2002 judgment whether penalties and attorney fees are cast against LWCC or against the defendant named in the caption of the case, or any defendant at all. It merely recites that the plaintiff is entitled thereto. Thus, the judgment in this case is not a final ap-pealable judgment.
Since this court lacks jurisdiction in the absence of a final appealable judgment, the appeal is dismissed and the matter is remanded for reformation of the judgment.

2002-1788, pp. 3^4, 858 So.2d at 600.

Similarly, in the instant case, we find that the trial court’s judgment is fatally defective. In order to know what the trial court’s written judgment means, reference must be made to multiple documents. For instance, the trial court’s judgment states that the defendants’ motion for partial summary judgment is granted; however, the motion for summary judgment filed into the record does not indicate that it is a motion for partial summary judgment. More problematic is the prayer for relief in the motion for summary judgment, assuming that that is the motion referenced by the trial court’s written judgment. The prayer does not indicate that any individual defendant should be dismissed in full; rather, the prayer asks that the trial court dismiss “several of the causes of action(s) asserted by Plaintiff’. Though the motion for summary judgment lists six causes of action allegedly set forth in the plaintiffs petition, the motion is ambiguous as to which of these the defendants, if any, are dismissed as a result of the granting of this motion. Even if this court were to overlook these deficiencies and |4assume that the motion was seeking dismissal of all these claims, reference must still be made to the plaintiffs petition to know whether this ruling results in the dismissal of any party in full.

This latter fact renders this case particularly difficult since, according to the plaintiff, the trial court’s judgment results in the complete dismissal of several party defendants, which would render the judgment immediately appealable as to those defendants pursuant to La.Code Civ.P. art. 1915(A)(1). However, insofar as the judgment only results in dismissal of some of the claims against Bobby Benson, the judgment would require certification pursuant to La.Code Civ.P. art. 1915(B), in order to be immediately appealable as to Bobby Benson.

Therefore, as the first circuit ordered in Jenkins, we hereby dismiss the instant appeal and remand this case to the trial court for reformation of the judgment so that it is precise, definite, and certain.

APPEAL DISMISSED AND REMANDED.