text:
    STATE ex rel. Dennis M. SAWYER, Jr. v. STATE of Louisiana.
    No. 2010-KH-0340.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Sawyer Jr., Dennis M.; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. D, No. 405817; to the Court of Appeal, First Circuit, No. 2009 KW 2111.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Jacob BELL v. STATE of Louisiana.
    No. 2010-KH-0342.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Bell, Jacob; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. A, No. 3-07-0332; to the Court of Appeal, First Circuit, No. 2009 KA 1225.

Denied.


text:
    STATE ex rel. Michel DIXON v. STATE of Louisiana.
    No. 2010-KH-0344.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Dixon, Michel; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. M, No. 573,-072; to the Court of Appeal, First Circuit, No. 2009 CA 0876.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189.


text:
    STATE ex rel. Andre DAVIS v. STATE of Louisiana.
    No. 2010-KH-0354.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Davis, Andre; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 00-3423; to the Court of Appeal, Fifth Circuit, No. 09-KH-980.

Denied.


text:
    STATE ex rel. Ernest BILLIZONE, Sr. v. STATE of Louisiana.
    No. 2010-KH-0384.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Billizone Sr., Ernest; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. B, No. 06-6669; to the Court of Appeal, Fifth Circuit, No. 09-KH-1024.

Denied.


text:
    STATE ex rel. Abdullah Hakim EL-MUMIT v. STATE of Louisiana.
    No. 2010-KH-0400.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re El-Mumit, Abdullah Hakim; — Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Livingston, 21st Judicial District Court Div. C, No. 48,509.

Denied.


text:
    STATE ex rel. Leonard GASTON v. STATE of Louisiana.
    No. 2010-KH-0403.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Gaston, Leonard; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, Nos. 04-00-431, 11-00-0311; to the Court of Appeal, First Circuit, No. 2009 KW 2107.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE ex rel. Darryl STERLING v. STATE of Louisiana.
    No. 2010-KH-0410.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Sterling, Darryl; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Calcasieu, 14th Judicial District Court Div. G, No. 8571-91; to the Court of Appeal, Third Circuit, No. KH 09-01141.

Denied.


text:
    STATE of Louisiana v. M.L. Jr.
    No. 2010-K-1113.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re M.L. Jr.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. B, No. 07-K-0094-B; to the Court of Appeal, Third Circuit, No. 09-392.

Denied.


text:
    STATE of Louisiana v. Shermond ESTEEN.
    No. 2010-K-1360.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Esteen, Shermond; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. B, No. 347-615; to the Court of Appeal, Fourth Circuit, No. 2010-K-0635.

Denied.


text:
    STATE of Louisiana v. Walter James HICKS, Jr.
    No. 2010-KO-1548.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Hicks Jr., Walter James; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Jefferson Davis, 31st Judicial District Court Div. 0, No. CR-853-08; to the Court of Appeal, Third Circuit, No. 10-19.

Denied.


text:
    STATE of Louisiana v. Jason COOPER and Victor Mitchell.
    No. 2010-K-1821.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Cooper, Jason et al.; Mitchell, Victor; —Defendant(s); Applying For Writ of Certiorari and/or Review, Parish of Richland, 5th Judicial District Court Div. B, Nos. F200893, F2008107, F2008108; to the Court of Appeal, Second Circuit, Nos. 45,320-KA, 45,321-KA, 45,322-KA.

Denied.


text:
    STATE of Louisiana v. Lawrence E. BURTON.
    No. 2010-KO-1906.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Burton, Lawrence E.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 478-488; to the Court of Appeal, Fourth Circuit, No. 2009-KA-0826.

Denied.


text:
    STATE of Louisiana v. Allen BERRY.
    No. 2010-KO-1925.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Berry, Allen; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. E, No. 478-340; to the Court of Appeal, Fourth Circuit, No. 2009-KA-1567.

Denied.


text:
    STATE of Louisiana v. James JOHNSON.
    No. 2010-KO-2023.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Johnson, James; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Orleans, Criminal District Court Div. K, No. 480-547; to the Court of Appeal, Fourth Circuit, No. 2009-KA-1393.

Denied.


text:
    Michael HOWARD v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, et al.
    No. 2010-CI-2065.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Howard, Michael; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. I, No. 583,659; to the Court of Appeal, First Circuit, No. 2010 CW 1184.

Denied.


text:
    STATE of Louisiana v. Robert Gordon JONES.
    No. 2010-KO-2082.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Jones, Robert Gordon; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Ouachita, 4th Judicial District Court Div. D, No. 08F2455; to the Court of Appeal, Second Circuit, No. 45,450-KA.

Denied.


text:
    STATE of Louisiana v. James L. HALL.
    No. 2010-KO-2084.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Hall, James L.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. F, No. 254024; to the Court of Appeal, Second Circuit, No. 45,406-CA.

Denied.


text:
    STATE of Louisiana v. Lynette Gail BLOW.
    No. 2010-K-2093.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Blow, Lynette Gail; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 2, No. 269,708; to the Court of Appeal, Second Circuit, No. 45,-415-KA.

Denied.


text:
    STATE of Louisiana v. Corenza Kendell KELLY, Jr.
    No. 2010-K-2114.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Kelly Jr., Corenza Kendell; — Defendant; Applying For Writ of Certio-rari and/or Review, Parish of Caddo, 1st Judicial District Court Div. 3, No. 257,046; to the Court of Appeal, Second Circuit, No. 45,562-KA.

Denied.


text:
    STATE ex rel. Rodney HAMILTON v. STATE of Louisiana.
    No. 2010-KH-2507.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Hamilton, Rodney; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 75-351; to the Court of Appeal, Fifth Circuit, No. 10-KH-872.

Denied. Moot. The district court has acted.


text:
    Tiffany WILLIAMS as the Natural Tutrix of Gavin Williams, Minor Son of Henry L. White, III v. The BOARD OF SUPERVISORS OF the UNIVERSITY OF LOUISIANA SYSTEM, also known as The Louisiana Board of Trustees for State Colleges and Universities, and Grambling State University.
    No. 2010-CC-2548.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Grambling State University; State Colleges & Universities, Louisiana Board of; University of Louisiana System et al., Bd. of Supervisors; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. B, No. 539,174; to the Court of Appeal, Second Circuit, No. 46,-005-CW.

Denied.

VICTORY, WEIMER and GUIDRY, JJ., would grant.


text:
    Christopher J. SACCO v. Karyl PAXTON, et al.
    No. 2010-CC-2680.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Karyl Paxton Designs Inc.; Pax-ton, Karyl et al.; Pierce Paxton Design Studio LLC; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2004-0466; to the Court of Appeal, Fourth Circuit, No. 2010-C-1381.

Denied.


text:
    Colleen Comer MARCHAND, et al. v. ASBESTOS DEFENDANTS, et al.
    No. 2010-C-2732.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Bizette, Charmaine Marchand et al.; Kennedy, Rebecca Marchand; Mar-chand III, Dudley L.; Marchand, Bonnie A.; Marchand, Brett L.; Marchand, Colleen Comer et al.; Marchand, Collen; Marchand, Wayne M.; Picou, Patricia Marchand; Rome, Donald Francis; Rome, Elodie Granier; St. Pierre Jr., Wayne; — Plaintiff(s); Applying For Writ of Certio-rari and/or Review, Parish of Orleans, Civil District Court Divs. L, B, G, Nos. 2009-8475, 2009-9865, 2009-12001; to the Court of Appeal, Fourth Circuit, Nos. 2010-CA-0476, 2010-CA-0543, 2010-CA-0766.

Denied.

JOHNSON and KNOLL, JJ., would grant.


text:
    Ernest BUTLER, on Behalf of his Minor Children, Mya E. Butler and Destin T. Picket and Rhytm E. Gordon v. LOUISIANA TECHNICAL COLLEGE-GREATER CAPITAL AREA FOUNDATION, INC.
    No. 2010-CC-2783.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Board of Supervisors; Louisiana Community Technical College, et al.; — Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 574,880; to the Court of Appeal, First Circuit, No. 2010 CW1880.

Denied.


text:
    James GAUNT, et al. v. U-HAUL CO. OF GEORGIA, et al.
    No. 2010-CC-2793.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Citgo Snack and Pack; Kahn, Azhar M.; U-Haul Co. of Georgia, et al.; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. M, No. 06-5276; to the Court of Appeal, Fourth Circuit, No. 2010-C-0973.

Denied.


text:
    James Patrick McCLEARY and Barbara Naquin McCleary v. TERREBONNE PARISH CONSOLIDATED GOVERNMENT and Houma-Terrebonne Regional Planning Commission.
    No. 2010-C-2807.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Chauvin II, Charles David; — Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of Terrebonne, 32nd Judicial District Court Div. D, No. 106,172; to the Court of Appeal, First Circuit, No. 2009 CA 2208.

Denied.


text:
    STATE of Louisiana v. Joseph FOREST.
    No. 2010-KK-2810.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Forest, Joseph; —Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. L, No. 09-3577; to the Court of Appeal, Fifth Circuit, No. 10-K-933.

Denied.


text:
    STATE of Louisiana v. Keith E. ALEXANDER.
    No. 2010-KK-2815.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Alexander, Keith E.; —Defendant; Applying For Supervisory and/or Remedíal Writs, Parish of Livingston, 21st Judicial District Court Div. G, No. 24655; to the Court of Appeal, First Circuit, No. 2010 KW1972.

Denied.


text:
    DANOU & DANOU, LTD, Danou & Danou II, Ltd, Leith Danou and 2298 Sunset Blvd., L.L.C. v. The CITY OF SLIDELL.
    No. 2010-CC-2818.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re 2298 Sunset Blvd., L.L.C; Danou & Danou II, Ltd.; Danou & Danou, Ltd.; Danou, Leith; —Plaintiff(s); Applying For Supervisory and/or Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court Div. B, No. 2009-14062; to the Court of Appeal, First Circuit, No. 2010 CW 1204.

Denied.


text:
    Jason NAVARRE v. KOSTMAYER CONSTRUCTION COMPANY, INC.
    No. 2010-C-2820.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Kostmayer Construction Company Inc.; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of Plaquemines, 25th Judicial District Court Div. B, No. 55-961; to the Court of Appeal, Fourth Circuit, No. 2010-CA-0490.

Denied.


text:
    Scott G. WOLFE, Sr., et al. v. GALLODORO INSURANCE AGENCIES, et al.
    No. 2010-CC-2825.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Wolfe Sr., Scott G; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. D, No. 06-9149; to the Court of Appeal, Fourth Circuit, No. 2010-C-1531.

Denied.


text:
    FIRST BANK & TRUST v. Rebecca B. DUWELL a/k/a Rebecca A. Barnett.
    No. 2010-C-2826.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Jones, Donald G.; —Other; Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. B, No. 660-026; to the Court of Appeal, Fifth Circuit, No. 10-CA-481.

Denied.


text:
    Arthurine M. SIRMON v. RIP TIDE INVESTORS, INC, et al.
    No. 2010-CC-2830.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Sirmon, Arthurine M.; —Plaintiff; Applying For Supervisory and/or Remedíal Writs, Parish of Vermilion, 15th Judicial District Court Div. E, No. 92614-E; to the Court of Appeal, Third Circuit, No. CW 10-01361.

Denied.


text:
    A.M.E. DISASTER RECOVERY SERVICES, INC. v. ST. JOHN THE BAPTIST PARISH SCHOOL BOARD and Gerald J. Keller Phd.
    No. 2010-C-2831.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re A.M.E. Disaster Recovery Services Inc.; —Plaintiff; Applying for Writ of Mandamus and/or Writ of Prohibition, Parish of St. John, 40th Judicial District Court Div. B, No. 59269; to the Court of Appeal, Fifth Circuit, No. 10-CA-500.

Denied.


text:
    Elizabeth L. WEISS and John Weiss v. MAZDA MOTOR CORPORATION, Mazda Motor of America, Inc., Royal Oldsmobile/Mazda Company, Inc. and XYZ Insurance Company.
    No. 2010-C-2835.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Weiss, Elizabeth L. et al.; Weiss, John; —Plaintiff(s); Applying For Writ of Certiorari and/or Review, Parish of Jefferson, 24th Judicial District Court Div. A, No. 536-515; to the Court of Appeal, Fifth Circuit, No. 10-CA-608.

Denied.


text:
    Eneitra MICHAEL Individually and as Natural Tutrix of Savion Johnson v. Troas POCHE, Louisiana Farm Bureau Casualty Insurance Company and the State of Louisiana.
    No. 2010-C-2836.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Michael, Eneitra et al.; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of St. James, 23rd Judicial District Court Div. E, No. 32,388; to the Court of Appeal, Fifth Circuit, No. 10-CA-230.

Denied.


text:
    Malik A. IHSAAN v. BLUE RIBBON FOOD STORE OF BATON ROUGE and Commercial Union Insurance Companies.
    No. 2010-CP-2861.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Ihsaan, Malik A.; —Plaintiff; Applying For Writ of Certiorari and/or Review, Parish of E. Baton Rouge, 19th Judicial District-Court Div. I, No. 446,248; to the Court of Appeal, First Circuit, No. 2010-CA-0519.

Denied.


text:
    Sarah Calegon TROSCLAIR and Joseph Anthony Trosclair v. NORTHROP GRUMMAN SHIPBUILDING, INC., et al.
    No. 2010-CC-2870.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Trosclair, Joseph Anthony; Tros-clair, Sarah Calegon et al.; —Plaintiff!s); Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Civil District Court Div. C, No. 2010-6217; to the Court of Appeal, Fourth Circuit, No. 2010-C-1545.

Denied.


text:
    FIREFIGHTERS’ RETIREMENT SYSTEM v. REGIONS BANK, Morgan Asset Management, Inc., and Christopher Burke.
    No. 2010-CC-2875.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Burke, Christopher et al.; Morgan Asset Management Inc.; Morgan Keegan & Company Inc.; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. 0, No. 567874; to the Court of Appeal, First Circuit, No. 2010 CW 1468.

Denied.

VICTORY, J., would grant.


text:
    Candace Rae MARSALIS v. James Frank MARSALIS.
    No. 2011-CJ-0080.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Marsalis, James Frank; —Defendant; Applying For Writ of Certiorari and/or Review, Parish of St. Landry, 27th Judicial District Court Div. B, No. 09-C-4858-B; to the Court of Appeal, Third Circuit, No. 10-592.

Denied.


text:
    STATE ex rel. Benjamin BRUCE v. STATE of Louisiana.
    No. 2011-KH-0160.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Bruce, Benjamin; —Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court Div. M, No. 10-04584; to the Court of Appeal, Fifth Circuit, No. 10-K-1092.

Denied.


text:
    STATE of Louisiana v. Leonard B. STOKES.
    No. 2010-KP-1387.
    Supreme Court of Louisiana.
    Feb. 11, 2011.
   In re Stokes, a/k/a, Lenard B.; Stokes, Leonard B.; —Defendant(s); Applying For Supervisory and/or Remedial Writs, Parish of Ouachita, 4th Judicial District Court Div. E, No. 99-F1160; to the Court of Appeal, Second Circuit, No. 45548-KW.

Writ granted. Following a rape conviction in which the State’s case rested almost entirely on the victim’s identification, and in which relator presented an alibi defense at trial, the lower courts erred when they denied the application for post-conviction DNA testing based on the alleged failure to establish articulable doubt. La.Code Crim. Proc. art. 926.1(B) and (C). The district court is therefore directed to investigate the availability and integrity of the allegedly untested evidence and to order DNA testing in the event that it determines the results could tend to make relator’s guilt more or less probable. La.Code Crim. Proc. art. 926.1(C) and (D).

VICTORY and CLARK, JJ., would deny.


author: STEWART, J.

text:
    STATE of Louisiana in the Interest of JT, Plaintiff-Appellee v. J.M., Defendant-Appellant.
    No. 46,090-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 12, 2010.

      J. Brad Smitherman, for Defendant-Appellant J.M.
    Northwest Regional Dept, of Social Services by Audie Jones, for Plaintiff-Appel-lee State of Louisiana, DOSS.
    Randall R. Robinson, Bossier City, LA, for Plaintiff-Appellee JT.
    Before STEWART, PEATROSS and MOORE, JJ.
   STEWART, J.

12J.M., the biological father of J.T., appeals a judgment terminating his parental rights. Finding no merit to his assignments of error, we affirm.

FACTS

J.T., a girl born January 10, 2008, was placed in the custody of the Department of Social Services (“the department”) pursuant to an Instanter Removal Order dated May 28, 2007. The child was removed from the custody of her mother after the department investigated a report that the mother tested positive for cocaine and marijuana. Both the mother and J.T. tested positive for marijuana at the time of J.T.’s birth, and the department had provided services to the mother for substance abuse since February 1, 2008.

| ¾At the time of J.T.’s removal from parental custody, the mother was living in a trailer with J.T.’s biological father, J.M., and some of his friends. Though J.M. told the department that he wanted J.T. to stay with him, J.M. had a history with the department. His history included a valid report of physical abuse of a child, N.H., in March 2007; a valid report of death/neglect of the same child in July 2007, when he wandered away from his home and was killed on a highway; a valid report of dependency due to substance abuse which resulted in his daughter, M.H., being placed in foster care; and at the same time as the previous matter, a valid report involving lack of adequate supervision which resulted in the death of a four-month old baby.

J.T. was adjudicated a child in need of care and placed in a foster home. Though no father was listed on J.T.’s birth certificate, a DNA test positively identified J.M. as her biological father. J.M. attended the initial Family Team Conference on June 27, 2008, when a case plan with the goal of reunification was developed. The case plan identified drug abuse and the failure to provide a safe home as the barriers to J.M.’s reunification with J.T. The case plan goals required J.M. to recognize these barriers, acknowledge his substance abuse problems, maintain stable emotional health and well-being, and cooperate with the | department in working toward a permanent plan for J.T. To achieve these goals, J.M. was required to complete a substance abuse assessment and submit to random drug screens, remain alcohol and drug free, submit to a psychological evaluation, attend parenting classes, abstain from all criminal activity, support J.T. in her foster care placement and help contribute to the cost of J.T.’s care, bring age-appropriate activities to interact with her on family visits, keep the department informed of his whereabouts, and provide the names of relatives for possible placement in the event of no reunification between J.T. and either parent.

The record shows little to no attempt by J.M. to comply with his ease plan and achieve the goal of reunification. On December 12, 2008, the district court signed an order approving the hearing officer’s proposed case review judgment, which concluded that J.M. was not complying with the case plan and recommended that the new case plan goal of reunification/adoption for J.T. be approved. The goal of reunification/adoption was approved by judgment dated June 11, 2009, rendered in open court following the permanency hearing. J.M. did not appeal.

IfiOn August 7, 2009, the district court rendered an order approving the voluntary surrender of parental rights by J.T.’s mother. Thereafter, the trial court approved the permanent case plan goal of adoption for J.T. in a case review judgment rendered November 2, 2009, and a permanency judgment rendered in open court on April 26, 2010. No appeal was taken by J.M. from either judgment.

The petition for termination of J.M.’s parental rights was filed on May 5, 2010. The alleged grounds for termination included abandonment due to J.M.’s failure to provide significant support and maintain significant contact with J.T. for a period of six months, lack of substantial compliance with the case plan, and inability to care for a child due to incarceration along with failure to provide a reasonable plan of care other than foster care. La. Ch. C. art. 1015(4), (5), and (6).

Only Cammie Bargainer, J.T.’s foster care worker, testified at the termination hearing. In addressing J.M.’s failure to achieve his case plan goals, Bargainer related that J.M. did not submit to a substance abuse assessment that was scheduled for July 8, 2008. Though he took one random drug test, which was negative, he did not respond to further notices from the department. J.M. did not keep the department advised of his whereabouts. He had been in jail three months before Bargainer [(¡found out about his imprisonment from his wife, D.H. Bargainer also testified that prior to going to jail on September 30, 2008, J.M. attended only two out of 16 scheduled weekly visits with J.T. While in jail, he did not contact the department about J.T. Even upon his release in November 2009, he did not visit J.T. Though he met with Bargainer about his other child in foster care, he did not ask about J.T. He provided no gifts or money for J.T.

With regard to whether J.M. provided the department with a plan of care other than foster care, Bargainer testified that J.M. gave her the name of his brother as a possible placement for J.T. However, the placement was not suitable because J.M. and D.H. were living with him at the time. While in jail, J.M. identified only D.H. as a potential placement. Because D.H. and J.M. had a child together and that child was in foster care, placement with D.H. was unsuitable.

The department introduced the various judgments pertaining to J.T.’s removal from parental custody, child in need of care adjudication, case reviews, and permanency hearings, along with the approved case plans. Evidence also included certified bills of information and minutes establishing the following criminal history for J.M.:

1. A bill of information filed May 16, 2007, charging J.M. and D.H. |7with a violation of La. R.S. 14:93, cruelty to a juvenile, to which J.M. entered a guilty plea on February 26, 2008, and received a suspended sentence of two years at hard labor and was placed on two years’ active probation.
2. A bill of information filed January 29, 2008, charging J.M. with a violation of La. R.S. 40:967(C), possession of a Schedule II drug, to which J.M. entered a guilty plea on June 24, 2008, and received a sentence of four years at hard labor on September 30, 2008. His conviction and sentence were affirmed on appeal.
3. A bill - of information filed January 20, 2010, charging J.M. with a violation of La. R.S. 14:35.3, domestic abuse battery of D.H., to which J.M. entered a guilty plea to the reduced charge of simple battery on April 14, 2010, and received a suspended sentence of 6 months in jail with one year of active supervised probation.

Based on his arrest for domestic abuse battery, J.M.’s probation officer filed a motion to revoke probation stemming from J.M.’s conviction for cruelty to a juvenile. On June 15, 2010, the district court revoked J.M.’s probation and ordered him to serve the original sentence consecutive to any other sentence. Bargainer testified that J.M. was now serving six years in prison due to his probation revocation.

J.M. offered no evidence at the termination hearing. The trial court rendered judgment terminating J.M.’s parental rights based on all the ^grounds alleged by the department. The trial court found termination of parental rights to be in J.T.’s best interest and certified her for adoption. J.M. filed a devolutive appeal, which is now before us for review.

DISCUSSION

In his first assignment of error, J.M. argues that the trial court erred in terminating his parental rights under La. Ch. C. art. 1015(4) and (5) because the department did not prove its case by clear and convincing evidence.

While parents have a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with their children, the state has a legitimate interest in limiting or terminating parental rights under certain conditions. State in the Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995); State ex rel. S.C.M., 43,441 (La.App.2d Cir.6/4/08), 986 So.2d 875. To terminate parental rights, one of the grounds for termination set forth in La. Ch. C. art. 1015 must be established by clear and convincing evidence, and termination must be found to be in the child’s best interest. State ex rel. D.L.R., 2008-1541 (La.12/12/08), 998 So.2d 681; State ex rel. S.D.P. v. K.P., 44,165 (La.App.2d Cir.1/14/09), 1 So.3d 808.

|flThe state sought termination based on the grounds set forth in La. Ch. C. art. 1015(4)(b) and (c) and La. Ch. C. art. 1015(5), which state:

(4) Abandonment of the child by placing him in the physical' custody of a nonparent, or the department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

Lack of parental compliance with a case plan may be evidenced by one of the following factors: (1) failure to attend eourt-approved scheduled visitations; (2) failure to communicate with the child; (3) |infailure to keep the department apprised of his whereabouts and significant changes affecting his ability to comply with the case plan; (4) failure to contribute to the costs of the child’s foster care, if ordered by the court when approving the case plan; (5) failure to comply with the required program of treatment and rehabilitation services provided in the case plan; (6) lack of substantial improvement in redressing the problems preventing reunification; or (7) persistence of conditions that led to removal or similar potentially harmful conditions. La. Ch. C. art. 1036(C).

Moreover, lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be shown by a pattern of repeated incarceration that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time, or any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child for an extended period of time, based on expert opinion or an established pattern of behavior. La. Ch. C. art. 1036(D)(2) and (3).

The manifest error standard applies to appellate review of the trial court’s findings as to whether parental rights should be terminated. State ex rel. K.G., 2002-2886 (La.3/18/03), 841 So.2d 759. Whether a parent has complied with a case plan, the expected success of. rehabilitation, and the expectation of significant improvement in the parent’s condition or conduct are all questions of fact that may not be set aside in the absence of manifest error or unless clearly wrong. State ex rel. S.C.M., supra.

Our review of the record shows that the department proved the grounds for termination under La. Ch. C. art. 1015(4) and (5) by clear and convincing evidence. Bargainer’s undisputed testimony established J.M.’s failure, for a period of six consecutive months, to provide any contributions for J.T.’s care and support or to maintain significant contact with her. Moreover, Bargainer’s testimony, along with the evidence introduced into the record, established J.M.’s lack of substantial compliance with his case plan and the lack of any reasonable expectation of significant improvement in his conduct.

According to Bargainer, J.M. attended only two of sixteen visitations that were scheduled before he went to jail on September 30, 2008. The record does not show that J.M. made any effort after September 30, 2008, whether while in jail or during his short time out of jail in the latter part of 2009, to schedule a visit with J.T., to | ^communicate with her in any way, or to inquire about her welfare. Because the record shows that J.M. failed for a period of six consecutive months to maintain significant contact with J.T. by visiting or communicating with her, this alone suffices as a grounds for termination under La. Ch. C. art. 1015(4)(c).

Although neither the court nor J.M.’s case plan ordered him to provide specific support for J.T., the case plan did require him to support J.T. in her foster care placement and help contribute to the costs of her care. There is no evidence in the record that J.M. ever contributed anything toward the cost of J.T.’s care or even provided gifts, such as clothing or other baby items, for her care. Thus, termination is appropriate under La. Ch. C. art. 1015(4)(b).

Noting that he was incarcerated for various periods of time following adoption and approval of the case plan and citing State ex rel. J.W., 43,163 (La.App.2d Cir.2/13/08), 975 So.2d 841, J.M. complains that the department failed to show it made any effort to determine what, if any, services were available to him in prison, to assist him with the case plan such as by facilitating visitation between him and J.T., or to remove obstacles to reunification. J.M.’s reliance on State ex rel. J.W., supra, is misplaced. In that case, the department developed a case plan | TSfor a parent who was incarcerated in another state without having contacted the parent to find out about her situation, what led to the child being abandoned in Louisiana, or what services might be available to her in that state’s prison system.

Here, the record shows that J.M. attended the initial Family Team Conference when his case plan was developed. He knew what was required of him. Throughout the various hearings, including case plan review hearings and permanency hearings, J.M. never objected to or appealed the court’s approval of the case plan or the findings that he was not complying with the case plan. J.M.’s complaint that the department made no effort to assist him with the case plan while he was in prison is of no merit particularly considering the lack of effort and interest he exhibited in complying with the case plan during the time he was not behind bars.

Imprisonment is not an excuse to escape parental obligations. State ex rel. C.M.O., 2004-1780 (La.App. 4th Cir.4/13/05), 901 So.2d 1168. Incarceration is not a defense to failure to support or maintain contact with one’s children in a termination of parental rights case, particularly because incarceration results from one’s actions. State ex rel. M.H. v. K.W.H., 40,332 (La.App.2d Cir.9/23/05), 912 So.2d 88. J.M.’s conduct and actions led to his incarceration; thus, he cannot use his incarceration as an excuse for abandoning J.T. or failing to substantially comply with his case plan. The record shows that he did not attend scheduled visitations even when out of prison, did not communicate with J.T., and did not keep the department apprised of his whereabouts. He has not made any improvement in redressing the problems preventing reunification, particularly considering that he was again incarcerated at the time of the termination hearing. Considering these failings, the state clearly and convincingly proved J.M.’s lack of parental compliance with the case plan and that there is no reasonable expectation of significant improvement in J.M.’s conduct in the near future. Considering J.T.’s young age and her need for a safe, stable, and permanent home, termination was in her best interest and appropriate under La. Ch. C. art. 1015(5).

In his second assignment of error, J.M. argues that the department failed to make reasonable efforts to place J.T. in a relative’s home as required by La. Ch. C. art. 622 and that it failed to comply with La. Ch. C. art. 1036(D). He states that he gave the department the names of his brother and D.H., but that there is no evidence that the department conducted an assessment of either individual or notified him within 10 11sdays after completion of the assessment. By this assignment of error, J.M. is challenging the grounds for termination under La. Ch. C. art. 1015(6), which states:

(6) The child is in the custody of the department pursuant to a court order or placement by the parent; the parent has been convicted and sentenced to a period of incarceration of such duration that the parent will not be able to care for the child for an extended period of time, considering the child’s age and his need for a safe, stable, and permanent home; and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care.

The department need only establish one of the enumerated grounds for termination set forth in La. Ch. C. art. 1015. State ex rel. S.C.M., supra; State ex rel S.D.P. v. K.P., supra. As discussed, the department established the grounds for termination under La. Ch. C. art. 1015(4) and (5), so it is not necessary to address termination under La. Ch. C. art. 1015(6). Even so, we find no merit in the assignment of error.

Bargainer testified that in November 2009, when he was not in jail, J.M. gave her the name of his brother as a potential placement for J.T. Because J.M. and D.H. were living with him at the time, the brother could not be considered an appropriate placement for J.T. Bargainer also testified that J.M. identified D.H. as a caregiver for J.T. while he was in prison. Because D.H. and J.M. had a child in foster care, D.H. was not | ^considered a suitable caregiver. Bargainer further testified that J.M. was notified that D.H. was unsuitable and that he did not provide another name. Thus, the record establishes that J.M. did not provide a reasonable plan for the appropriate care of J.T. while he was in prison. For this reason and because J.M. will not be able to care for J.T. during an extended period of time while he is incarcerated, termination is appropriate under La. Ch. C. art. 1015(6).

CONCLUSION

Finding no merit to either of J.M.’s assignments of error and no manifest error by the trial court, we affirm the judgment terminating J.M.’s parental rights to J.T. Costs of this appeal are assessed against J.M.

AFFIRMED.


text:
    Thomas J. JONES, et al., Plaintiffs-Appellees v. Bertha J. JOHNSON, et al., Defendants-Appellants.
    No. 45,847-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.

      Briney & Foret, Lafayette, LA by Patrick J. Briney, Kathy L. Smith, for Defendant-Appellant Markel American Ins. Co.
    Shotwell, Brown & Sperry, Monroe, LA by C.A. Martin, III, George M. Wear, Jr., for Plaintiffs-Appellees Thomas J. Jones, Michael Jones and Tammy Williams.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   STEWART, J.

12Markel American Insurance Company (“Markel”) and Thomas J. Jones along with his adult children, Michael Jones and Tammy Williams (the “Jones family”), appeal a judgment ordering Markel to pay a penalty of $100,000 and attorney fees of $10,000 due to its bad faith and arbitrary and capricious failure to settle the undisputed amount of an uninsured / underin-sured (“UM”) claim. Markel asserts that the trial court erred in finding that it had received satisfactory proof of loss to trigger a tender and that its failure to deposit $200,000 into the registry of the court as of July 5, 2007, was arbitrary and capricious. The Jones family seeks an increase in the penalty and attorney fees awarded. Finding no manifest error or abuse of discretion, we affirm the trial court’s judgment and award an additional attorney fee to the Jones family for the appeal.

FACTS

lsOn June 24, 2006, Thomas Jones and his wife Mary were involved in a vehicular accident that occurred when a 1991 Mercury Sable driven by Bertha Johnson turned left in front of the motorcycle they were riding. Thomas sustained serious injuries, as did Mary, who died shortly after the accident. Johnson, who was intoxicated, was solely at fault in the accident.

On August 31, 2006, the Jones family filed a suit for damages against Johnson, Linda Barral, who owned the vehicle that was driven by Johnson, and Barral’s insurer, Universal Casualty Insurance Company (“Universal”). Answers by Barral and Universal asserted that coverage for the Mercury Sable had been deleted from the policy prior to when the accident occurred. Because there was no coverage, Universal was later dismissed from the suit by summary judgment.

On November 15, 2006, the plaintiffs amended their petition to name Markel, Thomas’s UM insurer for the motorcycle, as a defendant. Markel had previously been notified by counsel for the Jones family of a potential UM claim and that the value of Thomas’s own personal injury damages, as well as the survival and wrongful death damages, would exceed all available policy limits. Markel’s policy provided UM coverage in the amounts of $100,000 per person / $300,000 per accident. [4The parties disagreed as to the amount of coverage available. Markel asserted that coverage for the accident was limited to $200,000, whereas the Jones family asserted that the full $300,000 was available under the policy.

Another issue arose when the Jones family received notice of liens for the recovery of healthcare expenses related to Thomas and Mary’s treatment after the accident. Medfax Recovery, L.L.C. (“Medfax”), on behalf of St. Francis Medical Center, Inc. (“St.Francis”), where Thomas and Mary were treated following the accident, gave notice of the privilege under La. R.S. 9:4751 et seq., asserting the right to recover allegedly unpaid medical expenses from the insurance proceeds ahead of the Jones family. Under provisions of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C.A. § 1001, et seq., Ingenix Subrogation Services (“Ingenix”) on behalf of United Healthcare Services (hereafter “United”), the claim fiduciary for the El Paso Corporation Employee Health Benefit Plan, similarly sought to recover medical benefits paid on behalf of Thomas and Mary. Review of the record shows that the amounts claimed by Medfax and Ingenix kept changing.

|sBy the end of November 2006, Markel was prepared to tender $200,000 to the Jones family. However, an issue arose between Markel and the Jones family as to whether to include Ingenix, who had notified Markel of its ERISA lien, on any check tendered to the Jones family. By letter dated December 18, 2006, counsel for Markel asked that either Ingenix be included on the check or that counsel for the Jones family provide a letter stating that he and the Jones family would “satisfy all liens out of the unconditional tenders.” In a reply letter dated December 19, 2006, counsel for the Jones family made it clear that they did not want Ingenix included on the check and advised that Ingenix’s interest in the proceeds would be taken into consideration upon disbursement. Not satisfied with that assurance, Market’s counsel on January 9, 2007, requested a “stronger letter” to protect Markel from any claim by Ingenix.

Discussions between the parties continued until May 8, 2007, when counsel for the Jones family notified Markel that unless it made a “prompt unconditional tender into the registry of the court,” the petition would be amended to bring in the lienholders and to seek statutory penalties and attorney fees against Markel. The letter indicated that Markel had planned to deposit an unconditional tender into the registry |fiof the court and have the Jones family and lienholders assert their claims to the proceeds via a concursus proceeding. However, this had not been done.

On July 5, 2007, the Jones family amended the petition to name Medfax, St. Francis, Ingenix, and United as defendants and to assert a claim for penalties and attorney fees pursuant to La. R.S. 22:658, now La. R.S. 22:1892, for Markel’s failure to tender the policy limits.

Thereafter, the Jones family filed a motion for summary judgment on August 5, 2008, asserting that there existed no genuine issue of material fact as to the limits of liability under Markel’s policy, the fact that their damages exceeded the available policy limits, and their entitlement to penalties, attorney fees, and costs. In opposition to the motion, Markel argued that it did not have satisfactory proof of loss required to trigger an unconditional tender. It asserted that issues of fact existed as to how to apportion the proceeds among the members of the Jones family. Also, because of the lienholders’ claims, issues of fact existed as to who was entitled to recover the proceeds.

On December 9, 2008, the trial court denied summary judgment. The denial was based on the facts that St. Francis/Medfax had abandoned its claim to any of the insurance proceeds and a settlement |7had been reached by United/Ingenix, the Jones family, and Markel whereby Markel paid $100,000 to United/Ingenix and the remaining policy limits ($200,000) plus legal interest to the Jones family in the total amount of $259,022.10.

The Jones family then reasserted its motion for summary judgment as to its claim for penalties and attorney fees against Markel. The trial court denied the motion on June 17, 2009, upon finding that due to the competing claims of the Jones family and the lienholders, there was a dispute of fact as to whether Markel was given satisfactory proof of loss showing who was entitled to the proceeds and in what amounts prior to the settlement.

Finally, the matter proceeded to a trial based on stipulations by the parties and exhibits entered into the record, most of which had been offered in litigation of the motions for summary judgment. In a thorough and well-reasoned written ruling, the trial court found that when Markel received notice that the lienholders had been made defendants on July 5, 2007, there no longer existed any impediment to Markel provoking a concursus proceeding by depositing at least the undisputed part of the policy limits into the registry of the court. At that time, Markel had sufficient information to know that the claims exceeded the policy |sIimits. Depositing $200,000 plus accrued legal interest into the registry of the court would have protected Markel from any bad faith claim by the Jones family. The trial court concluded that Markel’s failure to make the deposit into the registry of the court was arbitrary and capricious thereby entitling the Jones family to penalties and attorney fees. Pursuant to La. R.S. 22:1892(B)(1), the trial court assessed a penalty of $100,000 against Markel, that amount being fifty percent of the undisputed $200,000 in coverage limits, and awarded $10,000 in attorney fees plus costs. Judgment in accordance with the court’s written reasons was rendered on April 22, 2010. Markel timely appealed, and the Jones family has answered the appeal.

MARKEL’S APPEAL

By assignments of error, Markel asserts that the trial court erred both in finding that it had satisfactory proof of loss necessary to trigger a tender prior to October 2008, when Medfax/St. Francis abandoned its lien claim and the settlement began to take shape, and in finding that Markel was arbitrary and capricious in failing to deposit $200,000 into the registry of the court as of July 5, 2007.

An insurer owes its insured a duty of good faith and fair dealing. As such, an insurer has an affirmative duty to adjust claims fairly and |3promptly and to make a reasonable effort to settle claims. La. R.S. 22:1973(A). Both La. R.S. 22:1892(B)(1) and La. R.S. 22:1973(B)(5) and (C) provide for penalties against an insurer whose failure to pay a claim after receiving satisfactory proof of loss is found to be arbitrary, capricious, or without probable cause. The primary difference between the two statutory provisions is the time periods allowed for payment. Reed v. State Farm Mut. Auto. Ins. Co., 2003-0107 (La.10/21/03), 857 So.2d 1012. Upon receipt of satisfactory proof of loss, La. R.S. 22:1892 requires payment within 30 days, whereas R.S. 22:1973(B)(5) requires payment within 60 days. Both statutes are penal in nature and must be strictly construed. Id.; Hart v. Allstate Ins. Co., 437 So.2d 823 (La.1983).

Here, penalties were awarded under La. R.S. 22:1892. Whoever claims entitlement to penalties and attorney fees bears the burden of proving that the insurer received satisfactory proof of loss as a predicate to showing that the insurer’s failure to pay was arbitrary, capricious, or without probable cause. Reed, supra; Hart, supra. As discussed in McDill v. Utica Mut. Ins. Co., 475 So.2d 1085 (La.1985), “satisfactory proof of loss” is that which suffices “to fully apprise the insurer of the |10insured’s claim.” Id., at 1089, citing Hart, supra. For a UM claim, the claimant provides satisfactory proof of loss when the insurer receives sufficient facts to fully apprise it of the following:

(1) the uninsured or underinsured status of the owner or operator of the other vehicle involved in the accident;
(2) the fault of the owner or operator of the other vehicle;
(3) the damages resulting from such fault; and
(4) the extent of those damages.

Id.; Delores M. v. Southern Farm Bureau Cas. Ins. Co., 44,883 (La.App.2d Cir.1/6/10), 29 So.3d 654.

Once the four criteria are met, the insurer cannot refuse to pay the claim on the basis that the insured is unable to prove the exact extent of the general damages, which are by their nature subjective. McDill, supra; Delores, supra. Once it is shown that the uninsured / underinsured driver was at fault and that damages resulted for which the UM insurer will be liable, the insurer must tender “the reasonable amount which is due,” meaning an amount over which reasonable minds could not differ. McDill, at 1091-1092. The insurer unconditionally tenders this amount to the claimant not in settlement of the case, but to l^show good faith and to comply with the duties imposed by the contract of insurance. Id.

In this matter, it is undisputed that Markel had sufficient information to fully apprise it that the vehicle involved in the accident and driven by Bertha Johnson was uninsured, that Johnson was solely at fault in causing the accident, and that the damages claimed by the Jones family resulted from Johnson’s fault. What Markel disputes is whether it had proof of the extent of damages. Markel asserts that it was not apprised of amounts over which reasonable minds could not disagree that were due to each individual plaintiff. Markel also asserts that the lienholders were aggressively pursuing their recovery to the exclusion of the Jones family and that the amounts the lienholders claimed were always in dispute and kept changing.

Though the trial court twice denied summary judgment on the issue of whether Markel should be assessed with penalties and attorney fees, the trial court determined after trial of the matter that by July 5, 2007, when the Jones family brought the lienholders into the suit, Markel had “all the information needed to show that the claims exceeded the policy limits.” We agree.

| ,2Even though the amounts claimed by the lienholders were not set, it was indisputable that Thomas and Mary had incurred substantial medical expenses. The reimbursements, though inexact, for medical expenses claimed by the lienholders in addition to the claims of the Jones family easily exceeded the policy limits, whether $200,000 as then claimed by Markel or $300,000 as claimed by the Jones family. Markel has no basis for arguing that it did not have sufficient proof that the total claims exceeded the policy limits. Moreover, the record shows that concern as to how to apportion the proceeds among the members of the Jones family for their individual claims was not an impediment to an unconditional tender as claimed by Markel on appeal. When the parties discussed a possible tender by Markel of $200,000 in November 2006, Markel asked counsel for the Jones family for “instructions as to whether or not Markel’s check should be one check for $200,000 payable to all of your clients or broken down in some other fashion.” This letter of November 27, 2006, indicates that Markel was willing to make payment as directed by the Jones family and was not prevented from tendering the undisputed portion of the policy limits by concern for how the money would be divided among the Jones family. Markel’s concern then and as matters progressed was in protecting itself from any | isclaim by the lienholders upon tender of policy proceeds to the Jones family. However, this concern could have been addressed by tendering the undisputed portion of the policy limits into the registry of the court thereby allowing the Jones family and the lienholders to assert their respective claims to the funds by a concursus proceeding.

Here, we reach Markel’s argument that the trial court erred both in finding its failure to deposit $200,000 into the registry of the court to be arbitrary and capricious and in awarding penalties and attorney fees. Markel asserts that it was not required to provoke a concursus and should not be found in bad faith for failing to do so. Markel also argues that provoking a concursus proceeding is not the same as making an unconditional tender.

For the court to assess penalties and attorney fees, it must be clearly shown that the insurer was in fact arbitrary, capricious, or without probable cause in refusing to pay. Delores, supra. This determination depends on the facts known to the insurer at the time of its action. Id.; Reed, supra. The phrase “arbitrary, capricious, or without probable cause” is synonymous with “vexatious” and means a refusal to pay that is unjustified and without a reasonable or probable cause or excuse. Reed, supra. An insurer’s actions are arbitrary, capricious, or _J_ywithout probable cause when its refusal of a claim is not based on a good faith defense. Id.; Wallace v. State Farm Mut. Auto. Ins. Co., 36,099 (La.App.2d Cir.6/14/02), 821 So.2d 704. The statutory sanctions should be imposed only where the facts negate probable cause for nonpayment. McDill, supra. Whether the insurer’s actions were arbitrary, capricious, or without probable cause such that sanctions should be imposed is a question of fact, and the trial court’s finding should not be disturbed absent manifest error. Delores, supra.

Here, the record shows that Markel’s refusal to pay was not based on any good faith defense to the UM claim. As stated, Markel had received satisfactory proof of loss by the time the Jones family amended their petition in July 2007 to add the lienholders as defendants. Pursuant to La. R.S. 22:1892, an insurer “shall pay” the amount of a claim due within 30 days after receiving satisfactory proof of loss. This is what the law requires of an insurer. Markel did not comply, and its failure to do so, which the record shows was primarily attributable to concerns about the lienholders, was arbitrary, capricious, and without probable cause.

As explained, a UM insurer is obligated to make an unconditional tender of the portion of the claim that cannot reasonably be disputed. McDill, supra; United Services Auto. Ass’n. v. Dugas, 593 So.2d 918 (La.App. 4th Cir.1992), writ denied, 596 So.2d 210 (La.1992). Moreover, by making an unconditional tender of the undisputed part of a claim, the insurer may thereby avoid statutory penalties and attorney fees. Clark v. State Farm Mut. Auto. Ins. Co., 2000-3010 (La.5/15/01), 785 So.2d 779. An unconditional tender does not finally or conclusively end litigation. Unconditional simply means that the insurer cannot place conditions on the tender, such as requiring a release or limiting the use of the funds. United Services, supra. The tender must be with “no strings attached” and cannot be a settlement offer. Clark, supra.

We are not persuaded by Markel’s argument that a tender made to the registry of the court is not an unconditional tender because the insured does not have unfettered access to the funds. Typically, the tender is unconditional in the sense that the insured can use it as his own. Id. However, jurisprudence recognizes that the insured may make an unconditional tender to the registry of the court and thereby avoid the imposition of penalties and attorney fees in cases where there are competing claimants for the policy proceeds.

In French v. Detroit Fire & Marine Ins. Co., 38 So.2d 165 (La.App. 2d Cir.1948), the insurer was assessed with penalties for failure to make an unconditional tender of

a property damage claim to the insured. | ^Instead, the insurer forwarded payment to its local agent who was also the insured’s creditor, being the mortgagee of the automobile for which the claim was made. The court observed that the insured should have deposited the policy proceeds and cited the contesting claimants to assert their respective claims. Because the insured failed to take this “precautionary procedure,” it could not.avoid the statutory penalty. Id., at 167. Earlier, in Hartford Fire Ins. Co. v. Landreneau, 19 La.App. 280, 284 140 So. 52, 55 (La.App. 1st Cir.1932), no penalty was warranted where the insurer when faced with two claimants demanding the proceeds “did all that it could reasonably have been required to do” by depositing the money in the registry of the court and asking for a concursus. Also, the dissenting judge in Combetta v. Ordoynef, 2004-2347 (La.App. 1st Cir.5/5/06), 934 So.2d 836, writ denied, 2006-1353 (La.9/22/06), 937 So.2d 389, observed that concursus proceedings in “insurance claims settings are commonplace, reasonable, and not arbitrary,” and have “traditionally been used in uninsured motorist coverage cases where there has been a question as to whom sums owed by an insurer should be paid.” Id., at dissent p. 3, 934 So.2d at 845, and cases cited therein.

|17The concursus proceeding was also utilized in Marquez v. Progressive Insurance Company, 2006-1024 (La.App. 3d Cir.12/6/06), 944 So.2d 876, under facts similar to those of this case. Both the liability insurer and the UM insurer deposited their policy limits into the registry of the court and instituted concursus proceedings when faced with the competing claims of the injured plaintiff and a lien-holder seeking recovery of medical expenses. The trial court awarded all of the funds to the lienholder and granted no recovery to the injured plaintiff. Judgement was affirmed on appeal. While the result for the injured party was harsh, the procedure utilized to resolve the competing claims was sound.

La. C.C.P. art. 4652, a provision governing concursus proceedings, states in part:

No person claiming damages for wrongful death or for physical injuries may be impleaded in a concursus proceeding, except by a casualty insurer which admits liability for the full amount of the insurance coverage, and has deposited this sum into the registry of the court.

Here, there was no question that Markel was liable for the full amount of the available coverage, whether that amount was $200,000 or $300,000. Thus, there was no impediment to Markel invoking the con-cursus by | ^depositing at least the undisputed sum of $200,000 into the registry of the court as an unconditional tender. Notably, Markel ultimately tendered $300,000, the full amount of the policy limits, to Ingenix / United and the Jones family. Markel’s decision precluded litigation of the issue of the amount of coverage afforded under the policy.

Markel cites Berthelot v. Silver Oak Cas., Inc., 96-1204 (La.App.3d Cir.3/5/97), 692 So.2d 578, writ denied, 97-0874 (La.5/9/97), 693 So.2d 758, as support for its argument that depositing the policy limits in the registry of the court to provoke a concursus proceeding does not constitute an unconditional tender because the insured does not have access to the funds. BeHhelot, citing Ridenour v. Wausau Ins. Co., 627 So.2d 141 (La.1993), held that the insurer did not make an unconditional tender by depositing into the registry of the court only the policy limits without including the accrued legal interest. The court explained that a UM insurer owes legal interest from date of judicial demand until an unconditional tender is made. Because the deposit did not include accrued interest, the full amount of the obligation was never tendered. Though the plaintiff argued that the deposit was not an unconditional tender because he was not allowed to withdraw the funds |lflat liberty, the court’s decision does not appear to have been based on this point.

Here, the record supports the trial court’s finding that Markel had received satisfactory proof of loss by July 5, 2007, when it was notified that the Jones family was amending its petition to add the lien-holders as defendants. By that time, Markel had all the information it needed to know that the claims exceeded the policy limits. Having no good faith defense to the Jones family’s claims, Markel’s failure to unconditionally tender the undisputed portion of the policy limits plus accrued legal interest was arbitrary, capricious, and without probable cause. Faced with the competing claims of the lienholders, Markel should have deposited the unconditional tender into the registry of the court thereby protecting itself from the imposition of penalties and attorney fees. Having failed to do so, we find no error in the trial court’s award of penalties and attorney fees against Markel.

THE JONES FAMILY’S ANSWER TO APPEAL

The Jones family asserts two assignments of error in answer to Markel’s appeal. First, the Jones family argues that the trial court erred in calculating the penalty based on $200,000, rather than the full policy limits of $300,000. La. R.S. 22:1892(B)(1) provides for a penalty “of 12i|fifty percent damages on the amount found to be due from the insurer to the insured, or $1,000, whichever is greater.” In the event of a partial payment or tender, the penalty is fifty percent of the difference between the amount paid or tendered and the amount found to be due. Id.

The record shows that the parties had initially discussed an unconditional tender of $200,000 in November 2006. Whether the policy limits were $200,000 or $800,000 was a disputed issue that, due to the settlement, was not judicially resolved. The trial court found that Markel had a “color-able argument” that its policy limits for the accident was $200,000, and that Markel should have at least made an unconditional tender of this amount when it had satisfactory proof of loss by July 5, 2007. Thus, the trial court applied the penalty to this amount ($200,000). We find no error in the trial court’s assessment of the fifty percent penalty on $200,000, the undisputed amount due when an unconditional tender should have been made.

Secondly, the Jones family asserts that the trial court erred in awarding only $10,000 in attorney fees and seeks to have the award based on its total recovery from Markel, inclusive of the penalty awarded and the final settlement.

hi La. R.S. 22:1892(B)(1) provides for an award of “reasonable attorney fees and costs” in addition to the penalty. In Lewis v. State Farm, 41,527 (La.App.2d Cir.12/27/06), 946 So.2d 708, this court addressed an award of reasonable attorney fees under this statute as follows:

In determining an award of attorney fees to be assessed under La. R.S. 22:658 [now R.S. 22:1892], a trial court should consider the services needed to effect recovery, the degree of professional skill and ability exercised, the volume of work performed, the time devoted to the case, the result obtained, the amount in controversy, the novelty and difficulty of the questions involved and the percentage fixed for attorney fees in a plaintiffs contract. The trial court must base its award of attorney fees on the attorney’s efforts expended for the prosecution and collection of the loss, that being the amount of any claim due the insured, rather than on the total recovery awarded. The trial court’s conclusion with respect to the assessment of penalties and attorney fees is, in part, a factual determination and should not be disturbed in the absence of a finding that it was manifestly erroneous.

[Citations omitted.] Id., 41,527 at p. 33, 946 So.2d at 729-730.

The Jones family amended its petition to claim the statutory penalties and attorney fees in July 2007. The issue was finally resolved by judgment rendered April 22, 2010, after the trial court twice denied summary judgment and then ruled in favor of the Jones family after a trial based on stipulations and essentially the same evidence that had ^previously been offered and considered on the motions for summary judgment. The trial court was in the best position to determine a reasonable attorney fee based on the effort required to litigate the Jones family’s entitlement to statutory penalties and attorney fees. We can find no abuse of discretion in its award of $10,000 in attorney fees as compensation for litigating entitlement to the statutory penalty.

The Jones family has requested additional attorney fees for defense against Markel’s appeal. We find the Jones family entitled to such an award and hereby award an additional attorney fee of $2,000.

CONCLUSION

For the reasons set forth in this opinion, we affirm the judgment of the trial court and award an additional $2,000 in attorney fees to the Jones family for appellate work. Considering that the major issues on appeal were those asserted by Markel, costs of appeal are assessed against Markel.

AFFIRMED.

      . La. R.S. 22:658 was redesignated as La. R.S. 22:1892 by Acts 2008, No. 415, § 1, effective January 1, 2009.

      . Judge Benjamin Jones denied the first motion for summary judgment on December 9, 2008, due to the settlement not yet being of record. Judge John R. Harrison, serving pro tempore, denied the second motion for summary judgment on June 16, 2009. Then, Judge Jones served as trial judge and rendered the judgment at issue on appeal.

      . La. R.S. 22:1973 was formerly designated La. R.S. 22:1220 prior to Acts 2008, No. 415, § 1, effective January 1, 2009.

      . This case involved the payment of injured claimants by the insurer on a first-come-first-served basis, and its holding approving the insurer’s actions is not directly relevant here.


author: BROWN, Chief Judge.

text:
    STATE of Louisiana, Appellee v. David Lee KESSLER, Appellant.
    No. 45,863-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.

      Edward K. Bauman, Louisiana Appellate Project, Lake Charles, LA, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, R. Randall Smith, Assistant District Attorneys, for Appellee.
    Before BROWN, PEATROSS, and DREW, JJ.
   BROWN, Chief Judge.

12Pefendant, David Lee Kessler, was convicted of armed robbery pursuant to a plea bargain and sentenced to 40 years imprisonment at hard labor without benefits. Defendant has appealed. We affirm.

Facts and procedural background

On July 28, 2009, defendant entered the parking garage at Boomtown Casino in Bossier Parish, Louisiana, approached the vehicle of Holly Lim, reached into her window, held a six-inch knife to her throat and demanded her purse. Once Ms. Lim handed over her purse to defendant, he fled. The robbery was captured on video surveillance, and defendant was apprehended by the Bossier City Police. At that time, defendant confessed.

On November 20, 2009, defendant was charged by bill of information with armed robbery in violation of La. R.S. 14:64. He pled guilty to the charge on January 12, 2010. The court ordered a pre-sentence investigation, and sentencing was set for March 16, 2010.

Is At the sentencing hearing, the court reviewed the PSI which contained a statement from the victim and outlined defendant’s criminal history. Defendant is a second felony offender with a previous conviction for attempted armed robbery in 2005. Furthermore, while defendant was out on bond on the instant charge, he was arrested for felony theft.

The court reviewed and considered the guidelines set forth in La.C.Cr.P. art. 894.1. The court observed that it was likely that defendant would commit another crime if given any type of probated sentence, noting that defendant had done just that while out on bond. The court also pointed out that it was not defendant’s first time to commit a crime against a person in which he threatened the physical safety or life of the victim. The court, finding that any lesser penalty would deprecate the seriousness of the offense, imposed a 40-year at hard labor term without benefits. Defendant filed a motion to reconsider sentence, alleging that his “sentence was excessive due to his drugged state at the time of the instant charge.” On March 23, 2010, the court denied the motion to reconsider.

Discussion

According to defendant, the trial court erred in denying his motion to reconsider sentence in that it failed to give adequate consideration to his age Land his “drugged state” at the time of the offense. In light of these factors, defendant argues that his 40-year sentence is excessive.

A trial court has broad discretion to sentence within the statutory limits. State v. Guzman, 99-1528, 99-1753 (La.05/16/00), 769 So.2d 1158; State v. Dunn, 30,767 (La.App.2d Cir.05/24/98), 715 So.2d 641. Absent a showing of manifest abuse of that discretion, the appellate court may not set aside a sentence as excessive. State v. Guzman, supra.

Defendant’s possible sentencing exposure for this offense was 10 to 99 years at hard labor without the benefit of parole, probation, or suspension of sentence. La. R.S. 14:64(B). The court, specifically taking cognizance of defendant’s age, imposed a sentence of less than half the possible maximum for this second felony offender. The court noted defendant’s criminal history and the fact that the offense of conviction was a crime of violence.

This 40-year sentence is neither grossly disproportionate to the severity of the offense of armed robbery nor shocking to the sense of justice. State v. Weaver, 01-0467 (La.01/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La.App.2d Cir.01/24/07), 948 So.2d 379. Furthermore, defendant entered his guilty plea without offering any evidence of his alleged “drugged state” at the time of the offense. The plea eliminates an intoxication defense and defendant’s |4addiction to drugs would not significantly mitigate his sentence under the facts of this case. We find no error in the trial court’s denial of defendant’s motion to reconsider sentence.

Conclusion

Defendant’s conviction and sentence are AFFIRMED.


author: PEATROSS, J.

text:
    STATE of Louisiana, Plaintiff-Appellee v. Jonathan Louis VOORHIES (In Re: Albert D. “Bodie” Little on Rule for Contempt), Defendant-Appellant.
    No. 45,864-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.

      Kelly & Townsend, LLC by T. Taylor Townsend, Natchitoches, LA, Usry, Weeks & Matthews by T. Allen Usry, Craig E. Frosch, New Orleans, LA, for Appellant, Albert D. “Bodie” Little.
    R. Christopher Nevils, District Attorney, Steven D. Crews, Assistant District Attorney, Natchitoches, LA, for Appellee.
    Before WILLIAMS, STEWART & PEATROSS, JJ.
   PEATROSS, J.

[ 2After a rule to show cause hearing, Appellant Albert D. “Bodie” Little (“Sheriff Little”), was found to be in contempt of court for his failure to enforce the entirety of a two-day sentence imposed on Defendant, Jonathon Voorhies. The trial judge did not impose fines or jail time on Sheriff Little, but, rather, admonished him on record and asked that his orders be followed exactly in the future unless he expressly authorized otherwise. Sheriff Little now appeals. For the reasons stated herein, we reverse the contempt ruling.

FACTS

On February 2, 2010, Jonathon Voorhies pled guilty to an amended charge of DWI first offense and speeding. In accordance with a plea agreement, the trial judge suspended Voorhies’ sentence pursuant to La. C. Cr. P. art. 894 and imposed 20 months of supervised probation with special conditions that he complete a substance abuse program and perform |,.¡community service. The trial judge further ordered Voorhies to serve two days in the Winn Parish jail during the week of February 12-18, 2010.

Voorhies went to the Winn Parish jail on February 16th in order to serve his two-day sentence, but was turned away due to overcrowding in the jail. Voorhies returned to the jail on February 17th and again was told that the jail was overcrowded, so he left. After obtaining the trial court minutes, Sheriff Little determined that Voorhies had to begin his two-day sentence that day because the end of the week was approaching, so he called Voor-hies and asked him to return to the jail. Voorhies complied with Sheriff Little’s request, returned to the jail and was admitted that day around 8:41 p.m. Sheriff Little then told Warden Daniel Alsup to release Voorhies the following day, taking into account a diminution of sentence of one day for good time served. Consequently, Voorhies was released around 8:00 a.m. the following day.

When the trial judge learned that Voor-hies had spent less than 24 hours in jail, he issued a rule to show cause why Sheriff Little should not be held in contempt of court for failing to impose the full sentence. As previously mentioned, at the rule to show cause hearing, the trial judge admonished Sheriff Little on the record. The trial judge acknowledged that Voor-hies would have been entitled to “good time” diminution of sentence Lunder the law, but clarified that a “day” meant 24 hours and no less, unless he (the trial judge) expressly authorized otherwise. According to the trial judge, therefore, Voorhies’ sentence, including diminution for “good time” served, should have been no less than 24 hours. At the end of the hearing, the trial judge ruled that Sheriff Little was in contempt as a result of his failure to require Voorhies to serve exactly 24 hours in jail. The trial judge chose not to impose fines or jail time on the sheriff.

Sheriff Little filed a writ application with this court on May 10, 2010, requesting supervisory review of the trial judge’s ruling holding him in contempt. Finding that a contempt judgment was only reviewable by this court in the form of an appeal, we remanded the matter to the district court for the perfection of the appeal. This appeal ensued.

DISCUSSION

Sheriff Little argues that the trial judge abused his discretion in finding him in contempt of court because there was no evidence that he was willfully disobedient of the trial judge’s order or that he intentionally or purposefully violated the order. We agree.

A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of | ¿the court or respect for its authority. La. C.C.P. art. 221. The two kinds of contempt of court are direct and constructive. La. C.C.P. art. 221. Direct contempt of court is one committed in the immediate view and presence of the court and of which it has personal knowledge or a contumacious failure to comply with a subpoena or summons. La. C.C.P. art. 222.

A constructive contempt of court is any contempt other than a direct one. La. C.C.P. art. 224. Willful neglect or violation of duty by a clerk, sheriff or other person elected, appointed or employed to assist the court in the administration of justice constitutes a constructive contempt of court. La. C.C.P. art. 224. To find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of the court intentionally, knowingly and purposely, without justification. Baker v. Baker, 42,182 (La.App.2d Cir.6/20/07), 960 So.2d 1264; Arrington v. Arrington, 41,012 (La.App.2d Cir.4/26/06), 930 So.2d 1068; In re S.L.G., 40,858 (La.App.2d Cir.1/25/06), 920 So.2d 368; Smith v. Smith, 35,378, 35,379 (La.App.2d Cir.9/26/01), 796 So.2d 726. Willful disobedience of a court order requires a consciousness of the duty to obey the order and an intent to disregard that duty. Swan v. Swan, 35,393 (La.App.2d Cir.12/7/01), 803 So.2d 372.

In a criminal contempt proceeding, the object is to punish a person for disobeying an order issued by the court. State in Interest of R.J.S., 493 So.2d 1199 (La.1986); Swan v. Swan, supra. The punishment is punitive and intended to vindicate the court’s authority. Swan v. Swan, supra. A contempt proceeding assumes the quality of a criminal or quasi-criminal proceeding only after a criminal sentence is imposed. Swan v. Swan, supra; Fontana v. Fontana, 426 So.2d 351 (La.App. 2d Cir.1983), writ denied, 433 So.2d 150 (La.1983). When a determinate sentence is rendered without setting conditions for the contemnor to avoid the sentence imposed or to purge himself of it, the punishment is criminal in nature. Swan v. Swan, supra.

The decision to hold a party in contempt of court for disobeying the court’s orders is within the trial court’s great discretion. Davis v. Davis, 43,490 (La.App.2d Cir.10/22/08), 997 So.2d 149. Only if the appellate court finds an abuse of that discretion will a trial court’s contempt ruling be reversed. Id. Proceedings for contempt are strictly construed, however, and extending their scope is not favored. Arrington v. Arrington, supra; Meek v. Meek, 36,467 (La.App.2d Cir.9/18/02), 827 So.2d 1191.

In the case sub judice, although the trial judge did not impose fines or jail time on Sheriff Little, the finding of contempt is, nevertheless, considered criminal or quasi-criminal in nature because the punishment of admonishing the sheriff on the record was punitive and intended to vindicate the court’s authority; and, additionally, there were no conditions set by the 17trial judge which would allow the sheriff to avoid the contempt finding or to purge himself of it. Swan v. Swan, supra; Fontana v. Fontana, supra.

It is undisputed that Sheriff Little was authorized to release Voorhies early upon his earning a diminution of sentence. La. R.S. 15:571.3. Diminution of sentence, known as “good time,” allows an inmate to receive a “day for a day,” ie., a diminution of one day is allowed for one day served. La. R.S. 15:571.3. Accordingly, the trial judge noted in his ruling that Sheriff Little was authorized to release Voorhies after one day for “good time” served of one day.

The issue before us, therefore, is whether Sheriff Little willfully violated the trial judge’s order sentencing Voorhies to two days in jail by not requiring Voorhies to serve exactly 24 hours in jail. As previously stated, Sheriff Little admitted Voorhies to the jail at 3:41 p.m. and authorized his release by Warden Alsup the following day. Warden Alsup released Voorhies around 8:00 a.m. the following day because, according to Sheriff Little, it is routine procedure that on the day parish prisoners are to be released, the release occurs shortly after the Warden arrives for the day at 8:00 a.m. Sheriff Little was not present at the jail on the day Voorhies was to be released because he was receiving radiation treatment at an oncology clinic in Shreveport.

17Based on these findings and the record before us, we cannot say that the evidence presented supports a finding that Sheriff Little willfully, purposefully or intentionally violated the order of the trial judge sentencing Voorhies to serve two days in the parish jail. Furthermore, it is clear that Sheriff Little attempted in good faith to interpret and execute the trial judge’s order by admitting Voorhies on February 17th and authorizing, his release by the Warden on the following day after diminution of sentence in accordance with La. R.S. 15:571.3. Consequently, the necessary elements of a contempt finding were not met. The trial judge, therefore, erred in finding Sheriff Little in contempt.

CONCLUSION

For the foregoing reasons, we reverse the ruling of the trial judge holding Albert D. “Bodie” Little in contempt.

REVERSED.

      . On receiving a request from this court to submit a brief in this matter, District Attorney for Winn Parish, R. Christopher Nevils, replied with a letter stating that the State of Louisiana did not participate in Sheriff Little's contempt hearing on April 6, 2010, and, thus, "takes no position in this matter." The State of Louisiana was, however, present at the contempt hearing and notes that “the trial court correctly considered the law and evidence before reprimanding the appellant.”


author: LOLLEY, J.

text:
    Lee SEBREN, Plaintiff-Appellee v. George Ray SEBREN, Jr., Defendant-Appellant.
    No. 46,076-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Rehearing Denied Jan. 20, 2011.
    Charles E. Herring, Jr., Layne M. Adams, Monroe, LA, Phillip M. Lester, Bastrop, LA, for Appellant.
    John T. Bentley, Scott E. McElroy, Rankin, Yeldell, Katz & Lowery by Scotty W. Lowery, Bastrop, LA, for Appellee.
    Before CARAWAY, PEATROSS and LOLLEY, JJ.
   LOLLEY, J.

12George Ray Sebren, Jr. (“Ray”) appeals the judgment by the Fourth Judicial District Court for the Parish of More-house, which awarded domiciliary custody of his minor child to the mother, Lee Se-bren Walters (“Lee”), and awarded Ray physical custody every other weekend, with specific custody arrangements on holidays and special occasions. For the following reasons, we affirm.

Facts

Lee and Ray were married in 1996. Ray adopted Lee’s daughter from a previous relationship who was born in 1993. In 1997, the couple’s son was born. The couple divorced in 2000. Thereafter, the parents maintained joint custody of the children, with Lee designated as the domiciliary parent. This custody plan was then changed by a consent decree of both parties. The new custody order gave sole custody of their daughter to Lee, while allowing |svisitation by Ray. The couple’s son remained in the joint custody of both parents with Lee designated as the domiciliary parent.

In 2008, Ray filed a rule to modify custody. Based on material changes in the circumstances Ray sought to be made the domiciliary parent of the son. He claimed Lee was neglecting their son, intensifying efforts to keep their son from having a relationship with him, permitting their son to engage in inappropriate behavior on the internet, and suffering from a mental disability that was causing instability. The couple was then ordered to go before a hearing officer on this matter. After a conference with a hearing officer in June 2008, the hearing officer recommended that the custody arrangement remain the same. Ray objected to this recommendation and moved for a hearing before a judge on the matter. Before the hearing occurred, however, the parents entered into a consent decree that they would have joint custody of their son, with Ray designated as the domiciliary parent and physical custody would rotate on a week to week basis. This plan was put into action by the trial court’s judgment in August 2008.

After implementation of this custody arrangement, however, both parents agreed that the arrangement was not in the best interest of the child. Subsequently, Ray filed a rule to modify custody, which Lee answered and filed a reconventional demand. Both parties sought domiciliary custody of |4the child and proposed the other parent be afforded visitation with the child every other weekend. In June 2009, the couple again attended a conference before a hearing officer. The hearing officer issued his recommendation: the parents have joint custody of their son, with Lee designated as domiciliary parent and Ray given physical custody every other weekend. Ray objected to the recommendation and requested a hearing before the court. This new custody arrangement was set into motion in the interim before a hearing occurred. Trial on this issue began in September 2009, and continued intermittently in February and May 2010. The trial court then issued a judgment in June, adopting the recommendation of the hearing officer by awarding joint custody to the parents with Lee designated as domiciliary parent and Ray having physical custody every other weekend. This appeal followed.

Law and Discussion

On appeal Ray argues the trial court erred in its judgment that Lee should be designated the domiciliary parent because an evaluation of the best interest of the child factors weighs in his favor and that the trial court, in error, based its judgment solely on the preference of the child. Namely, Ray claims he better serves his son by his dedication to his son’s education, parenting, attention to his son’s medical care, stability and family unit, |smental health, and facilitation of a close relationship between Lee and their son. Lee argues that the judgment is reasonable and should not be disturbed.

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 1997-0541 (La.02/06/98), 708 So.2d 731; Semmes v. Semmes, 45,006 (La.App.2d Cir.12/16/09), 27 So.3d 1024. The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134. The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in La. C.C. art. 134, but should decide each case on its own facts in light of those factors. Semmes, supra. These factors are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Semmes, supra.

To the extent feasible, and in the best interest of the child, physical custody of the child should be shared equally. La. R.S. 9:335(A)(2)(b). Yet, when the trial court finds that a decree of joint custody is in the best interest of the child, the statute does not necessarily require an equal sharing of physical custody. Semmes, supra. Substantial time, rather than strict equality of time, is mandated by the legislative scheme providing for joint custody of children. Pender v. Pender 38,649 (La.App.2d. Cir.05/12/04), 890 So.2d LI. Continuity and stability of environment are important factors to consider in determining what is in the best interest of the child. Id.

In the area of domestic relations, much discretion is vested in the trial judge, particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of credibility of witnesses. When findings of fact are based upon a decision regarding credibility of witnesses, respect should be given to those conclusions for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on understanding and believing what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The determination by the trial court regarding child custody is entitled to great weight and should not be disturbed on appeal absent a clear abuse of discretion. Pender, supra. An appellate court should be reluctant to interfere with custody plans implemented by the trial court in the exercise of its discretion. Pender, supra.

In the case sub judice the trial court stated in its judgment, “The [La. C.C. art.] 134 factors were found to be virtually equal in many respects. However, factor 9 served as the ultimate factor in this case. Judgment is rendered in favor of Lee Se-bren Walters.” Factor 9 of article 134 states, “The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.” The language in the judgment | ^indicates that while the trial court considered the child’s preference, it was not the sole determining factor. It is within the trial court’s discretion to evaluate the case under the factors and assign the appropriate amount of weight to each. The child was 11 years old when the trial began, and 12 years old when it concluded. It is completely reasonable that the preference of a child that age would be taken into consideration in determining with which parent the child should reside. Additionally, the case went before both a hearing officer and the trial court, and both drew the same conclusion. The record also indicates that not only did the attorneys in this case thoroughly question each witness about the considerations enumerated in the best interest of the child factors, but the trial court itself did as well. All of the assertions made on appeal were made before the trial court and thoroughly addressed at that level by the hearing officer, court, and attorneys. We find there to be no abuse of discretion by the trial court, therefore, the judgment is affirmed.

Conclusion

For the foregoing reasons, the judgment in favor of Lee Sebren Walters is affirmed, and all costs of this appeal are assessed to the appellant George Ray Sebren.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, GASKINS, CARAWAY, PEATROSS and LOLLEY, JJ.

Rehearing denied.


author: GASKINS, J.

text:
    Shirley BURKS, Plaintiff-Appellant v. Tyrone DICKENS, Defendant-Appellee.
    No. 45,910-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 15, 2010.
    Shirley Burks, In Proper Person.
    Tyrone Dickens, In Proper Person.
    Before GASKINS, CARAWAY and MOORE, JJ.
   GASKINS, J.

|2The plaintiff, Shirley Burks, appeals from a city court judgment denying her claim to recover the price paid for furniture that was destroyed in a fire at the home of relatives of the seller, Tyrone Dickens. For the following reasons, we affirm the trial court ruling.

FACTS

Ms. Burks’ house was damaged by a fire at some point in 2009. She began repairing the damage with insurance proceeds and set about purchasing furnishings to replace items lost in the fire. Her son knew that Mr. Dickens had some things at his mother-in-law’s house that he wished to sell. Ms. Burks went to the house and on September 22, 2009, purchased a bedroom suite from Mr. Dickens for $2,500. She gave him a check for that amount. She also purchased a stove, refrigerator, and a dinette set from Mr. Dickens using $250 she borrowed from her son, James Burks.

|sMs. Burks told Mr. Dickens that her house was not complete yet and that she could not remove the furniture and appliances from the premises. The furniture was placed on the carport of the house and wrapped up to protect it from the elements. After about a week, when Ms. Burks had not come to get her purchases, Mr. Dickens sent her a message to come and claim the items. Ms. Burks called Mr. Dickens and told him that her house was not ready yet and she asked for her money back. Mr. Dickens had used the money to pay a fee or fíne to his probation officer. He told Ms. Burks that she could have more time; no time limit was specified on how long the items could remain with Mr. Dickens’ relatives.

On October 7, 2009, an electrical fire destroyed the house where the items were stored. According to Mr. Dickens, his relatives filed a claim with their insurance; he indicated that the claim had been denied. Ms. Burks insisted on getting her money back. When Mr. Dickens refused to refund the money, Ms. Burks filed suit against him in city court.

A trial on this matter was held on April 12, 2010. The parties were not represented by counsel. Although there were some minor conflicts in the testimony offered by the parties, there was no dispute that Ms. Burks bought items from Mr. Dickens. The parties agreed that the items could remain at the house of Mr. Dickens’ relatives and no date was set for delivery. Mr. |4Pickens spent the money and the items were destroyed in a fire at the house where they were stored.

The trial court applied La. C.C. art. 2467, which provides in pertinent part:

The risk of loss of the thing sold owing to a fortuitous event is transferred from the seller to the buyer at the time of delivery.

The trial court found that on the date of the purchase, Ms. Burks’ people took steps to wrap the furniture and protect it. Therefore, she took possession of her purchases at that point. According to the trial court:

Mr. Dickens agrees to sell and Ms. Burks agrees to buy. That was Ms. Burks’ furniture at that instant. It became her property. I notice that at the minute it became her property, Ms. Burks’ agents began to do some things to protect that furniture. It was raining and they deliberately moved that furniture in under the carport and covered it up to protect it. It seems to me that Ms. Burks was in possession of the furniture in so far as acting on it. Now, she left it in your care ... to come and pick it up, but she owned it. She was to come pick it up at a date uncertain. There was not a specific date. I don’t find that there was a specific date determined. But that would put it in the realm of being a reasonable time.
The delivery took place out there under that carport. You could have carried it away. So, I find in favor of the defendant.

|sThe trial court found that the plaintiff left the items in Mr. Dickens’ care as a matter of accommodation and as an uncompensated bailment. The court stated that if there had been some insurance money covering the items, it would have been given to Ms. Burks. A judgment rejecting Ms. Burks’ claim was signed April 12, 2010.

Ms. Burks and Mr. Dickens represented themselves in the trial court. Ms. Burks appealed the trial court ruling in proper person. She disputes the trial court’s finding that the furniture was delivered to her. Mr. Dickens has not filed a brief in this matter.

LEGAL PRINCIPLES

The Louisiana Civil Code articles on sales were revised by Acts 1993, No. 841, § 1, and became effective January 1, 1995. According to La. C.C. art. 2456, ownership is transferred between the parties as soon as there is agreement on the thing and the price is fixed, even though the thing sold is not yet delivered nor the price paid. The comments to the article specify that the provision changes the law insofar as it confínes the effect of the parties’ consent to the transfer of ownership alone, excluding risk. La. C.C. art. 2467 provides that the risk of loss of the thing sold owing to a fortuitous event is transferred from the seller to the buyer at the time of delivery. The revision comments state that the article is new and changes the law insofar | nas it provides that the risk of loss is transferred to the buyer at the moment of delivery rather than upon consent. Prior to the revision, the buyer was burdened with the risk of loss of the thing sold from the moment of consent and even before delivery.

La. C.C. art. 2477 states that delivery of a movable takes place by handing it over to the buyer. If the parties so intend, delivery may take place in another manner, such as by the seller’s handing over to the buyer the key to the place where the thing is stored, or by negotiating to him a document of title to the thing, or even by the mere consent of the parties if the thing sold cannot be transported at the time of the sale or if the buyer already has the thing at the time. The revision comments to this provision state that the article presupposes that delivery is the transferring of the thing sold into the power and possession of the buyer or the making of the thing available to the buyer by the seller.

One of the obligations of the seller is to deliver the thing sold. See La. C.C. art. 2475. Delivery must be made at the place agreed upon by the parties or intended by them. In the absence of such agreement, delivery must be made at the place where the thing is located at the time of the sale. La. C.C. art. 2484. The seller must deliver the thing sold in the condition that, at |7the time of the sale, the parties expected, or should have expected, the thing to be in at the time of delivery, according to the nature. La. C.C. art. 2489.

The buyer is bound to pay the price and to take delivery of the thing. La. C.C. art. 2549. The comments to this article state that the provision changes the law by eliminating the buyer’s liability for expenditures made by the seller for the preservation of the thing before delivery. That elimination is consistent with the change effected by the revision in the allocation of risk of loss. While under the Louisiana Civil Code of 1870 risk was transferred upon perfection of the contract, under the revision, risk is transferred upon delivery.

DISCUSSION

In this matter, the ownership of the furniture and appliances was transferred to Ms. Burks at the time she and the Mr. Dickens agreed on the thing and the price. The risk of loss of the items due to a fortuitous event was not transferred until delivery. However, the trial court correctly found that, under the facts presented here, delivery occurred at the time of the sale because the items were available for Ms. Burks to claim at her discretion.

When movables remain in the possession of the seller, La. C.C. art. 2477 gives an example of delivery being perfected when the seller hands over to the buyer the key to the place where the thing is stored. The | ^comments to the article explain that delivery is accomplished by the seller making the thing available to the buyer. It is the buyer’s unlimited access to the movable that is determinative of delivery. The items purchased by Ms. Burks were available for her to pick up at any time. Therefore, under these facts, delivery occurred at the time of the sale and the risk of loss of the items due to a fortuitous event was transferred to Ms. Burks.

CONCLUSION

For the reasons stated above, we affirm the judgment of the city court. Costs in this court are assessed to the plaintiff, Shirley Burks.

AFFIRMED.