text:
    Robert A. TAYLOR, Appellant, v. DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, DIVISION OF LICENSING, Appellee.
    No. 1D11-4363.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    J. Patrick Buckley, III, of the Law Offices of J. Patrick Buckley, III, Fort Myers, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The notice of appeal failed to timely invoke this Court’s jurisdiction. See Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998). Accordingly, the appeal is dismissed.

DISMISSED.

. DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ramon PICHARDO, M.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D11-3701.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Ramon Pichardo, M.D., pro se, Appellant.
    Nicholas W. Romanello, General Counsel, and Wings S. Benton, Assistant General Counsel, Department of Health, Tallahassee, for Appellee.
   PER CURIAM.

Appellee’s motion to relinquish jurisdiction or quash final order and remand for formal hearing is treated by the court as a concession that there was an error in procedure when the administrative complaint was not referred to the Division of Administrative Hearings for a hearing involving disputed issues of material fact. In accordance therewith, the final order being appealed herein is quashed and the matter is remanded with directions to refer the administrative complaint to DOAH for proceedings pursuant to section 120.57(1), Florida Statutes.

VAN NORTWICK, RAY, and SWANSON, JJ., concur.


text:
    Joshua MARKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3588.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Glenn M. Swiatek, Shalimar, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the order rendered on or about November 4, 2010, denying petitioner’s motion for postconviction relief in Okaloosa County Circuit Court case numbers 08-88-CFA and 08-320-CFA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

BENTON, C.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    Deantonio D. MITCHELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3565.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Deantonio D. Mitchell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on October 1, 2010, in Escambia County Circuit Court case number 2008-CF-000486-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

BENTON, G.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    Michael Edward KRESSLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2946.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Michael Edward Kressler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on May 29, 2009, in Escambia County Circuit Court case numbers 2008-CF-000969-A, 2008-CF-004288-A, and 2008-CF-004925-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

BENTON, C.J., VAN NORTWICK and SWANSON, JJ., concur.


text:
    Travis A. McKINNEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0205.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2011.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Office of the Public Defender, Tallahassee; Daren L. Shippy, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Ralph F. Guerra, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Travis A. McKinney challenges the trial court’s order revoking his community control and probation. We affirm the revocation but remand for entry of a written order conforming to the court’s oral pronouncement. See, e.g., Agar v. State, 833 So.2d 881 (Fla. 1st DCA 2003).

DAVIS, PADOVANO, and ROWE, JJ., concur.


text:
    Christopher NEWTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0061.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2011.
    David M. Robbins and Susan Z. Cohen of Epstein & Robbins, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Joshua R. Heller, Assistant Attorney General, Dixie Daimwood, Assistant Attorney General, and Donna Gerace, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Edenfield v. State, 45 So.3d 26 (Fla. 1st DCA 2010).

BENTON, C.J., VAN NORTWICK, and SWANSON, JJ., concur. .


text:
    Kevin Jeron WOODARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6748.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2011.
    Nancy A. Daniels, Public Defender, and Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Brockman, 827 So.2d 299, 303 (Fla. 1st DCA 2002).

BENTON, C.J., HAWKES, and ROWE, JJ., concur.


author: MICHAEL E. KIRBY, Judge.

text:
    STATE of Louisiana v. Wayland K. HARVESTON.
    No. 2010-KA-1402.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 11, 2011.
    Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for Appellee.
    Christopher A. Aberle, Louisiana Appellate Project, Mandeville, LA, for Defendant/Appellant.
    (Court composed of Judge JAMES F. McKAY, III, Judge MICHAEL E. KIRBY, Judge DANIEL L. DYSART).
   MICHAEL E. KIRBY, Judge.

| STATEMENT OF CASE

The State charged Wayland K. Harve-ston with two counts of resisting a police officer with force or violence. Harveston pled not guilty at his arraignment; following a bench trial, the court found him guilty as charged on both counts and sentenced him to serve eighteen months at hard labor. The court denied his motion to reconsider the sentence.

STATEMENT OF FACT

Officer Mark Vasquez testified that on the evening of December 16, 2009, he and Officer Payne responded to a call of suspicious people carrying knives in Wolden-berg Park. Both officers were dressed in full police uniforms and Woldenberg Park was closed when they responded. Off. Vasquez testified that when they approached the park area, they saw roughly fifteen people with “dagger like objects ... participating in some kind of pagan wedding ritual” on a musical stage in the park. They ordered everyone to drop their knives, large sticks, and ^anything else that could have been used as a weapon, and then escorted those who appeared to be intoxicated, consuming alcohol, or in possession of objects that looked like weapons, to Toulouse St. for interviews. Off. Vasquez estimated that they escorted four or five people, including the defendant, to Toulouse St. where their car was parked. Harveston was intoxicated and holding an open container of alcohol. All of the individuals, including Harveston, were advised of their Miranda rights prior to being escorted to the car.

When Offs. Vasquez and Payne relocated the subjects to Toulouse St., Offs. Crowley and Fuqua arrived on the scene. After the subjects were relocated, the officers began doing background checks on them. Off. Vasquez was at the front of the car, while Off. Payne sat in the front seat and entered the names into the computer. Harveston was sitting on the street curb, roughly two or three feet away from the officers. Off. Vasquez testified that it was difficult to ascertain Harveston’s true identify because he gave the officers three different names and birthdates, and was not carrying any identification.

The first subjects’ names came back clear, and the officers released them. Harveston’s name was the last one the officers attempted to search. Because Harveston had given the officers three different names and birthdates, they knew he was not being truthful with them. They planned on arresting him for trespassing in the park and for public intoxication, and asked him to stand up. Harveston stood up and screamed: “I’m not going back to OPP.” When Harveston started screaming, Off. Payne stepped out of the police car and approached the other officers. Harveston started running, and as he was running, he swung at Off. Payne, hitting her on the shoulder or chin. Next, Harve-ston elbowed Off. Crowley. The officers pursued him and were able to detain him several feet away. Off. |sFuqua tasered Harveston to get him to stop resisting. Once Harveston stopped resisting, they placed him in handcuffs and ordered an EMS unit to check out his injuries. Off. Vasquez learned Harveston’s true identity when he arrived at the hospital, and this led to the discovery that Harveston had an outstanding warrant for a probation violation.

On cross examination, Off. Vasquez testified that all fifteen people were trespassing at Woldenberg Park, but none were cited for trespassing. Upon his arrival at the park Off. Vasquez saw two individuals, one of whom was holding a knife, tied to each other with rope, but did not see anyone who appeared to be injured. He further testified that when he arrived at the park, Harveston was holding a large stick.

Off. Vasquez testified that of the people escorted to Toulouse St., two different members had pending arrest warrants, and one had four municipal attachments. When the members were initially escorted to Toulouse St., Off. Vasquez did not know that Harveston had outstanding arrest warrants. Harveston was being escorted to Toulouse St. for trespassing and public intoxication. The officers attempted to arrest him after he gave them two incorrect names, both of which were researched and came back as “not on file,” as his name.

Off. Jennifer Samuels Payne testified that she was working with Off. Vasquez when a call came out that several white males and white females with knives were situated around the stage area at the riverfront. Offs. Payne and Vasquez took the call and headed over to the riverfront. As they approached the stage area, they witnessed several white males and females engaging in “some kind of ritual.” They were wearing cloaks, and some carried sticks and daggers. Two ^people were tied together with either rope or animal hair. Because she saw knives, Off. Payne drew her gun and told everyone to put their hands up and drop their knives, which they did. The officers ordered everyone away from the stage area so that they could pick up the knives. An Audubon Institute security guard helped the officers retrieve the weapons which were very realistic looking. Off. Payne asked the security guard to stay with Off. Vasquez so that she could start the process of running the names of the individuals in the computer of the police car.

Off. Payne relocated to the police car; none of the subjects came with her. A few minutes after reaching the car, she radioed Off. Vasquez that searching all the subjects’ names by radio communication was too difficult, and she asked him to bring the subjects over to the police car. All of the subjects were taken to the police car, stood on the sidewalk, and one by one were asked to walk up to the police unit to give her their name. Harveston was the third person to come to the unit. Off. Payne noticed that the name Harveston gave her was different than that written on Off. Vasquez’ paper identifying him. Off. Payne asked Harveston to take a seat until he could remember his name. Harveston complied and Off. Payne ran two or three more subjects before asking Harveston to come up again to give his name. Harveston walked back to the vehicle and again gave Off. Payne a false name. At that point, Off. Payne asked Off. Vasquez to handcuff the defendant. Right then, Harveston “started throwing punches saying he’s not going back to jail.” Off. Payne exited the vehicle and was approaching Harveston when he struck her in the shoulder/neck area. Harveston was fighting fiercely with all of the officers at the scene (Offs. Payne, Vasquez, Fuqua, and Crowley). Off. Payne pulled out her ASP and gave him a few blows to his upper thigh whereupon Harveston flipped her over his shoulder, causing her to fall and injure her hand. | ¿After Off. Payne hit the ground, she saw Harveston begin to run. Two officers were trying to control him, when Off. Payne heard Off. Fu-qua tell the others to clear so that he could tase Harveston. After Harveston was detained, he was handcuffed. Off. Payne’s hand was swelling and in great pain, so after Harveston was detained, Off. Vasquez took her to the hospital.

On cross examination, Off. Payne testified that when the subjects were taken from the stage area to Toulouse St., they were not free to leave the area.

Off. Patrick Crowley testified that on the evening of December 16, 2009, he approached the scene at Toulouse and the river, where the officers were running the names of the subjects, dressed in his police uniform. He went there to assist the other officers because of the safety issue presented by fifteen subjects with only three officers. Off. Crowley did not conduct any interviews.

Off. Crowley witnessed Off. Payne sitting in the police vehicle running the names of the subjects. Off. Vasquez was standing outside of the vehicle and asked Harveston to stand up so that he could put him in handcuffs. Off. Crowley began to approach Harveston, when Harveston screamed that he was not going back to OPP. Off. Crowley testified that Off. Payne got out of the vehicle to assist Off. Vasquez in handcuffing the subject, and Harveston then hit Off. Payne. After Harveston hit Off. Payne, he came back with his elbow and struck Off. Crowley. Offs. Crowley, Payne, and Vasquez began struggling with Harveston to get his hands behind his back, when Off. Fuqua pulled out his taser, told the other officers to step aside, and he tased Harveston. Off. Crowley’s hand was injured during the struggle with Harveston.

On cross examination, Off. Crowley testified that there were about eight to ten subjects standing in a group. He remembered originally hearing that fifteen 1 (^subjects were at the scene when he first heard the radio call, but by the time he got there, there were only eight to ten people there.

Mr. Garrit Shafer testified that he has been friends with Harveston for ten years. Mr. Shafer was with Harveston on the evening of December 16, 2009, when they were witnessing a wedding ritual at Wol-denberg Park. The ritual involved a couple getting married by having their hands tied together while a priest used a dagger to perform the ceremony. The ceremony had just concluded when the officers arrived at the area. The officers seemed calm, asked “polite” questions, and ordered everyone to drop their knives. Mr. Shafer did not witness the struggle between Harveston and the officers.

ERRORS PATENT

The record reveals no patent errors.

DISCUSSION

ASSIGNMENT OF ERROR NUMBER 1

In his sole assignment of error, defendant contends that the arresting police officers had no probable cause to arrest him for trespassing, public intoxication, or possession of an open container, and therefore, he had the right to resist the officers’ attempts to arrest him.

Defendant’s argument is incorrect.

Although Off. Vasquez testified he was attempting to arrest the defendant for trespassing, public intoxication, and possessing an open container, Off. Payne testified that she ordered Off. Vasquez to arrest him for intentionally providing her | ywith false identification. Offs. Vasquez and Payne both testified that the defendant provided them with false names three different times.

La. C. Cr. P. art. 215.1(A) codifies the U.S. Supreme Court’s authorization of stops based on reasonable suspicion set forth in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and provides:

A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.

“Reasonable suspicion” to stop is something less than probable cause required for an arrest, and the reviewing court must look to the facts and circumstances of each case to determine whether a detaining officer had sufficient facts within his or her knowledge to justify an infringement of the suspect’s rights. State v. Jones, 99-0861, p. 10 (La.App. 4 Cir. 6/21/00), 769 So.2d 28, 36-37.

Both officers testified that they received a call about several people in Woldenberg Park with knives. When they arrived they saw fifteen people, some with knives, daggers, and large sticks, and two were tied together. Considering these facts and circumstances, the officers had reasonable suspicion to stop the fifteen subjects, including Harveston, to order them to drop their weapons and determine who they were and what they were doing.

After stopping the people, the officers began to process each one. Rather than giving the officers his correct name, Harveston provided three different names to the officers. Both officers testified that they believed Harveston was providing them with false names, as none of the names checked out in their computer. Off. Payne testified that the name Harveston gave to her was different than the name written down by Off. Vasquez. Off. Payne therefore asked Harveston to sit down 18to try to remember his proper name, and she continued processing other subjects. Off. Payne then asked Harveston whether he remembered his name, and he gave her a third name. At that point Off. Payne ordered Off. Vasquez to arrest Harveston.

Regardless of whether the officers had probable cause to arrest Harveston for trespassing, public intoxication, or possessing an open container, pursuant to La. R.S. 14:108(B)(l)(c), Harveston’s refusal to provide the officers with his proper name, was an arrestable offense.

La. R.S. 14:108 provides, in pertinent part:

A. Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.
B. (1) The phrase ‘obstruction of as used herein shall, in addition to its common meaning, signification, and connotation mean the following:
* * * ⅜ ⅜ ⅝
(c) Refusal by the arrested or detained party to give his name and make his identity known to the arresting or detaining officer or providing false information regarding the identity of such party to the officer. [Emphasis added]

La.C.Cr.P. art. 213 provides, in pertinent part:

A peace officer may, without a warrant, arrest a person when:
(1) The person to be arrested has committed an offense in his presence; and if the arrest is for a misdemeanor, it must be made immediately or in close pursuit;

IsAt the time he proposes to effect an arrest, a police officer does not need to know that the particular crime has definitely been committed; it is sufficient under the totality of the known circumstances that it is reasonably probable that the crime has been committed. State v. Simms, 571 So.2d 145, 149 (La.1990). An arresting officer need only have a reasonable basis for believing that his information and conclusions are correct. State v. Pham, 2001-2199, p. 6 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218.

Since providing a false name to an officer is a violation of La. R.S. 14:108, and Offs. Payne and Vasquez both testified that Harveston gave them three different names which they reasonably believed were false, the officers had probable cause to arrest Harveston for providing them a false name. Defendant’s reliance on State v. Hoye, 635 So.2d 1289, 1290 (La.App. 4 Cir. 4/14/94), is misguided. Hoye involved a previous version of La. R.S. 14:108, which made the crime of resisting an arrest only applicable to those situations where the defendant had lawfully been arrested, and not simply lawfully detained. La. R.S. 14:108 was amended by Acts 2006, No. 132, § 1, to provide that one can also resist a lawful detention by a police officer. Considering the statute has changed since Hoye was decided, and considering this Court’s ruling in Hoye regarding La. R.S. 14:108 would not be sound today due to these legislative changes, Hoye is wholly inapplicable to the subject matter.

This assignment has no merit.

CONCLUSION

For the reasons expressed above we affirm the defendant’s conviction and sentence.

AFFIRMED.

      . Woldenberg Park is private property, owned by the Audubon Institute, and is situated along the Riverfront section of New Orleans.

      . Off. Vasquez testified that Harveston fell and injured his head after the taser was deployed.


author: JAMES F. McKAY III, Judge.

text:
    Lou Ann DEROCHE and Desiree Guillott v. Louis LATOUR, Jr., the City of New Orleans and Liberty Lloyds Insurance Company.
    No. 2010-CA-1758.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 18, 2011.
    Darleen M. Jacobs, Al A. Sarrat, René D. Lovelace, Jacobs Sarrat & Lovelace, New Orleans, LA, for Plaintiffs/Appellees.

      Nannette V. Jolivette-Brown, City Attorney of Orleans Parish, Darryl M. Phillips, Chief Deputy City Attorney of Orleans Parish, Robert J. Ellis, Jr., Deputy City Attorney of Orleans Parish, New Orleans, LA, for Defendant/Appellant, City of New Orleans.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   JAMES F. McKAY III, Judge.

Lin this auto tort case, the defendant, City of New Orleans, appeals the amount of damages awarded to the plaintiffs, Lou Ann Deroche and Desiree Guillott. We affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 2:45 P.M. on March 25, 1991, Lou Ann Deroche was driving a 1987 Oldsmobile and Desiree Guillott was her guest passenger. While stopped at the intersection of 1-610 and Elysian Fields, her vehicle was rear ended by a pickup truck driven by Louis LaTour and owned by the City of New Orleans. The City stipulated that it was liable.

At the time of the accident, Ms. Deroche was already under the care of Dr. John Olsen for severe neck and bilateral shoulder pain and back pain into the buttocks she had from an accident on November 7, 1990. An MRI after that accident showed herniated discs at L4-5 and L5-S 1 and bulging discs at C3-4, C4-5, C5-6 and C6-7. An EMG showed evidence of bilateral L5 nerve root involvement.

| ¡.On April 3, 1991, Ms. Deroche was admitted to Humana Hospital with muscular and nerve pain beginning in her lower back and spreading to both legs. She complained of locking in her back and the inability to move her legs because of pain. She also had pain in her right trapezius and tingling in her right arm with a pulling sensation in the fingers of her right hand. She was in constant discomfort aggravated by standing, sitting, driving, walking, prone lying, bending and squatting. Sometimes her pain would last all day and on a scale of 1 to 10, she rated her pain at an 8. She was in the hospital for three weeks and eventually attended therapy for her neck, back and leg pain. Dr. Daniel Seltzer, who treated her during her hospitalization, believed that she suffered from chondromalacia patellae.

On August 20, 1991, Ms. Deroche saw Dr. Olsen because of back pain radiating into both legs and intermittent neck pain. On November 25, 1991, she was admitted to Methodist Hospital with complaints of headache, cervical pain, numbness of both hands, lumbar pain radiating into both legs, numbness and tingling in both feet, and cramping of her feet. Her discharge diagnosis was symptomatic L4-5 disc rupture with bilateral neuralgia, abnormal EMG’s, chronic back pain and leg pain, and cervical disc syndrome. She stayed in the hospital for nearly two weeks.

On January 3, 1992, Ms. Deroche saw Dr. Raeburn Llewellyn for headaches, cervical pain radiating into both hips and both legs, numbness and tingling in both feet, and a burning sensation in both hips. On exam, he found severe back spasm. |sMs. Deroche saw Dr. Llewellyn again on April 22,1992 with similar symptoms. On exam, he again found back spasm. He also found that the straight leg raise was productive of pain at 40 degrees on the right.

On April 10, 1992, Ms. Deroche saw Dr. Essam Elmorshidy for back pain into her legs, neck pain, pain and crepitus in both knees, and painful clicking in her right knee. Dr. Elmorshidy found spasm in her neck and back. On June 19, 1992, Ms. Deroche saw Dr. Hugo Vietz for continued back pain.

Desiree Guillott sought medical attention from Dr. Mark Sanders. On exam, he found paraspinal spasm and a resolving ecchymosis under her right eye. His impression was that she had sustained soft tissue injuries to her neck and back. He prescribed Parafon Forte and therapy and asked that Ms. Guillott return in six weeks.

Ms. Deroche and Ms. Guillott filed suit against the City and Mr. LaTour for the damages they sustained as a result of the accident. At trial, the plaintiffs introduced as exhibits the deposition of Dr. Seltzer concerning his treatment of Ms. Deroche. They also introduced medical records from Dr. Olsen, Lakeland Medical Center/Humana Hospital, New Orleans MRI Limited, Dr. Seltzer, Pendleton Memorial Methodist Hospital, Dr. Llewellyn, Dr. Elmorshidy, Dr. Vietz and prescriptions concerning Ms. Deroche. The plaintiffs also introduced the medical records of Dr. Mark Sanders concerning Ms. Guillott. In addition, the plaintiffs introduced as an exhibit a document entitled Plaintiffs’ Bench Book which itemized the plaintiffs’ medical expenses and lost wages.

|/The trial court entered judgment in favor of the plaintiffs and against the defendants. The trial court awarded Ms. Deroche $265,000.00 in general damages plus medical expenses of $25,171.90 together with legal interest from the date of judicial demand until paid plus costs. The trial court awarded Ms. Guillott $10,000.00 in general damages, $500.00 in medical expenses, plus lost wages of $128.00 together with legal interest from the date of judicial demand until paid plus costs. It is from this judgment that the City now appeals.

DISCUSSION

On appeal, the City raises the following assignments of error: 1) the trial court abused its discretion in awarding damages to both plaintiffs pursuant to the Louisiana Supreme Court’s holding in Youn v. Maritime Overseas Corp. and erred in finding that all of Lou Ann Deroche’s medical expenses were attributable to the March 25, 1991 accident; and 2) the district court erred in not granting the City’s motion for involuntary dismissal against Desiree Guil-lott for failure to appear at trial in direct contravention of Louisiana Code of Civil Procedure article 1672.

The standard of review for general damage awards was laid out by the Louisiana Supreme Court in Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993). That case states:

The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless, the theme that | ñemerges from Gaspard v. LeMaire, 245 La. 239, 158 So.2d 149 (1963) through Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), and through Reck [v. Stevens, 373 So.2d 498 (La.1979)] to the present case is that the discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

Youn at 1261.

In the instant case, the .trial court evaluated the evidence, including.medical records, before it and awarded $265,000.00 to Ms. Deroche in general damages and awarded $10,000.00 in general damages to Ms. Guillott. Based on Ms. Deroche’s complaints and the medical records before it, the trial court related her injuries or aggravation of her injuries to the accident which occurred on March 25, 1991 in a general damage award of $265,000.00. The trial court did the same thing when it awarded Ms. Guillott $10,000.00 in general damages. Based on the record before this court, we cannot find the trial court’s awards of general damages to these particular plaintiffs for their particular injuries in this particular circumstance was unreasonable.

With regards to the City’s second assignment of error, we find no abuse of discretion on the part of the trial court. A trial court has much discretion in determining whether to grant a motion for involuntary dismissal. Lopez v. State, Louisiana Health Care Authority/University Medical Center, 98-577 (La.App. 8 Cir. 10/28/98), 721 So.2d 518. The trial judge must weigh and evaluate all evidence presented in determining whether to grant a motion for dismissal. Locke v. Sheriff, Parish of Jeffferson, 94-652, 94-658 (La.App. 5 Cir. 12/28/94), 694 So.2d 257.

In the instant case, liability was not at issue. The accident giving rise to the case happened a very long time ago. The plaintiffs were allowed to introduce an exhibit entitled Plaintiffs’ Bench Book, which outlined medical records as well as documented Ms. Guillott’s very small claim for lost wages. Based on the facts of this case, we find no abuse of discretion in the trial court’s refusal to grant the City’s motion for involuntary dismissal.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED


author: STEWART, J.

text:
    Robert WRIGHT, Plaintiff-Appellant v. TOWN OF OIL CITY, Defendant-Appellee.
    No. 46,247-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      Fischer and Associates, Shreveport, LA, by Mark K. Manno, for Appellant.
    Stamey & Miller, LLC, Natchitoches, LA, by Joseph B. Stamey, for Appellee.
    Before STEWART, GASKINS and LOLLEY, JJ.
   STEWART, J.

|, This is an appeal from the Office of Worker’s Compensation, District 1 W, Caddo Parish, the Honorable Carey Holli-day presiding. Plaintiff-Appellant, Robert Wright, is appealing a judgment rendered in favor of Defendant-Appellee, Town of Oil City (hereinafter referred to as “Oil City”). For the reasons that follow, we affirm the judgment.

FACTS

On December 9, 1998, Wright was injured in the course of his employment with Oil City as a laborer, when the vehicle he was traveling in was struck by a train. Wright was 50 years old at the time of the accident. He received medical attention after the accident at a local hospital and was discharged.

Wright, who has not worked since the accident, has been receiving worker’s compensation benefits and social security disability benefits since the accident.

Approximately six months after the accident, Wright sought treatment from Dr. Kerry Tarvins, a chiropractor in Shreveport, who diagnosed him with an “acute mild to moderate lumbar sprain/strain with associated lumbalgia.” Dr. Tarvins then referred Wright to Dr. Karl Bilderback, an orthopedist, who determined that Wright had a pre-existing degenerative disc disease and scoliosis. In his report on June 30, 1999, Dr. Bilderback noted that Wright suffered from “persistent lumbar pain secondary to an acute injury superimposed on a significant amount of degenerative disease in his lumbar spine.”

|2On October 6, 1999, Wright submitted to a functional capacity evaluation (“FCE”). The FCE report indicated that Wright was not cooperative with the physical therapist. The examiner noted that since Wright refused to complete the examination “secondary to inappropriate illness behaviors,” he was limited in his ability to evaluate Wright’s true work capacity. He believed that Wright gave inappropriate effort and magnified his symptoms. The examiner did find that Wright was capable of “light duty.”

Wright had a three-year hiatus of any medical treatment from October 6, 1999, the date that the FCE evaluation took place, until November 11, 2002, when Dr. Austin Gleason first examined him.

Dr. Gleason, a board-certified orthopedic spine surgeon, began treating Wright on November 11, 2002. Wright, informed Dr. Gleason that he was experiencing pain in his lower thoracic and lumbar spine region, and that he was symptom-free prior to the accident. During this appointment, Dr. Gleason conducted a lumbar spine x-ray, which revealed levortary scoliosis and spondylosis. He noted that levortary scoliosis, which is defined as a curvature of the spine, is generally a congenital condition. Dr. Gleason also recognized spondy-losis as degenerative changes in the spine.

On January 24, 2003, Dr. Gleason recommended that Wright receive a lumbar MRI. This lumbar MRI, which was performed on February 19, 2003, revealed that Wright had severe degenerative scoliosis and foraminal stenosis, a narrowing of the spaces in the vertebrae where the nerve roots exit the spinal canal. He also noticed bulging discs at the L3^4 and L4-5 | ¡¡levels. A x-ray performed on that same day yielded the same results. Additionally, an EMG study performed by Dr. David Abrams yielded normal results. More importantly, the EMG study resulted in a negative finding, which meant no nerve damage was present.

On April 18, 2003, Wright underwent a CT myelogram, which showed multilevel degenerative changes in the spine.

Dr. Gleason noted that Wright could not perform heavy labor and that he was a possible surgical candidate. He also continuously prescribed pain medication for Wright. Dr. Gleason remarked in his deposition that there was a “reasonable medical probability that the degenerative scoliosis preexisted the accident.”

On July 11, 2003, Dr. Gleason referred Wright to his partner, Dr. Pierce Nunley, for a surgical evaluation. Even though Dr. Nunley recommended a laminectomy and a fusion, Wright opted not to have the surgery.

Oil City hired Dr. Gordon Mead to provide a second medical opinion. In his deposition, Dr. Mead opined that Wright’s inability to return to his previous occupation was due to his preexisting conditions, as opposed to the lumbar strain that occurred as a result of the accident:

Q. Doctor, what was your assessment or impression of Mr. Wright’s conditions as of that initial examination?
A. I felt that he most likely sustained a lumbar injury at the time of the injury. I was unable to explain the persistence of the pain despite good conservative treatment. My opinion is that he should be able to return to his previous occupation at that time. If he was unable to do so, I felt it would be due to his preexisting degenerative lumbar disease as opposed to soft tissue injuries occurring at the time of the accident.

l4Pr. Mead disagreed with Dr. Nunley’s recommendation for surgery. Wright was then referred to Dr. John Sandifer for an independent medical exam. Dr. Sandifer also disagreed with the surgery recommendation.

Wright filed this suit in order to be declared permanently and totally disabled. In his pretrial brief, Wright ádmitted to pre-existing degenerative problems throughout his spine, but denied having any “back symptoms” prior to the accident. In turn, Oil City asserted that Wright’s current disability was caused solely by a severe preexisting condition. It further asserted that if Wright currently has limitations, the limitations are related to degenerative disc disease, and are not the result of any lumbar strain or any other condition caused by the motor vehicle accident on December 9,1998.

This matter was tried on February 23, 2010. The Worker’s Compensation Judge (“WCJ”) found that Wright failed to prove by a preponderance of evidence that the work accident aggravated his pre-existing condition and dismissed the case with prejudice. The WCJ noted that Wright reached full recovery for the injuries he sustained in the December 9, 1998, accident at some point after October of 1999. He also questioned the truthfulness of Wright’s testimony. The WCJ further noted that since Wright recovered from the injuries caused by the work-related accident, his current problems must stem exclusively from his congenital scoliosis and his severe degenerative back disease. For these reasons, the WCJ dismissed Wright’s claim with prejudice.

Wright filed- this appeal, asserting two assignments of error.

LAW AND DISCUSSION

| ^Preexisting Conditions/Causation

In his first assignment of error, Wright asserts that the WCJ erred in determining that he failed to meet his burden of proof that the December 9,1998, accident caused his injuries or aggravated his preexisting condition. Similarly, in his second assignment of error, Wright alleges that the WCJ erred in failing to apply the presumption of causation. Since these two assignments of error are interrelated, we will discuss them together.

Factual findings in worker’s compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing, 96-2840 (La.7/1/97), 696 So.2d 551; Grambling State University v. Walker, 44,995 (La.App. 2 Cir. 3/3/10), 31 So.3d 1189. Whether the claimant has carried his burden of proof and whether testimony is credible are questions of fact to be determined by the hearing officer. Harris v. Casino Magic, 38,137 (La.App.2d Cir.1/28/04), 865 So.2d 301. In applying the manifest error-clearly wrong standard, the appellate court does not determine whether the trier of fact was right or wrong, but determines whether the factfin-der’s conclusion was a reasonable one. Banks, supra. Unless shown to be clearly wrong, the trial court’s factual findings of work-related disability will not be disturbed where there is evidence which, upon the trier of fact’s reasonable evaluation of credibility, furnishes a reasonable, factual basis for those findings. Id. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences Rare as reasonable. Blanson v. GM Inland Fisher Guide, 33,-498 (La.App. 2 Cir. 6/23/00), 764 So.2d 307.

An employee is entitled to worker’s compensation benefits if he receives a personal injury by accident arising out of and in the course of his employment. La. R.S. 23:1031; McLin v. Industrial Specialty Contractors, Inc., 2002-1539 (La.7/2/03), 851 So.2d 1135; Scott v. Super 1 Foods, 45,636 (La.App. 2 Cir. 9/29/10), 48 So.3d 1133. An employment-related accident is an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration. La. R.S. 23:1021(1). Although the worker’s compensation law is liberally construed in favor of coverage, the claimant’s burden of proving an accident is not relaxed; he must prove by a preponderance of the evidence that an accident occurred and the resulting disability is related to an on-the-job injury. McLin, supra; Hofler v. J.P. Morgan Chase Bank, N.A. 46,047 (La.App. 2 Cir. 1/26/11), 57 So.3d 1128. Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Key v. Insurance Company of North America, 605 So.2d 675 (La.App. 2 Cir.1992).

An employee’s preexisting disease or infirmity does not disqualify his worker’s compensation claim, if the work-related injury either aggravated or combined with the disease or infirmity to produce the disability for which compensation is claimed. Poland v. Kroger, No. 404, 82,576 (La.App. Cir. 12/8/99), 747 So.2d 711, writ denied, 2000-0583 (La.4/7/00), 759 So.2d 764. The causal connection between the disability and the on-the-job injury can be established when the employee proves that before the accident he was in good health, but commencing with the accident, symptoms of the disabling condition appeared, and there is sufficient medical evidence to show a reasonable possibility of causal connection between the accident and the disabling condition. Scott, supra.

To obtain the benefit of this presumption of causation, the plaintiff must show (1) that he was in good health prior to the accident at issue, (2) that subsequent to the accident, symptoms of the alleged injury appeared and continuously manifested themselves afterward, and (3) through evidence, either medical, circumstantial, or common knowledge, a reasonable possibility of causation between the accident and the claimed injury. Id.

When a claimant proves that before the accident he had not exhibited disabling symptoms, but that commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and that there is either medical or circumstantial evidence indicating a reasonable possibility of causal connection between the accident and the activation of the disabling condition, a claimant’s work injury is presumed to have aggravated, accelerated or combined with any preexisting disease or infirmity to produce his disability. Kendrick v. Solo Cup, 44,303 (La.App. 2 Cir. 6/3/09), 15 So.3d 295; Lubom v. L.J. Earnest, Inc., 579 So.2d 1174 (La.App. 2 Cir.1991). If the evidence is evenly balanced, or shows only | ssome possibility that a work-related event produced the disability or leaves the question open to speculation, then the claimant fails to carry his burden of proof. Lubom, supra.

A claimant’s testimony alone may be sufficient to establish an accident provided that “(1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Bruno v. Harbert Intern., Inc., 593 So.2d 357 (La.1992); Hofler, supra. In determining whether the Bruno elements are satisfied, the commentators have articulated six pertinent factors the courts have considered: (1) late report, (2) supervisor and coworker testimony, (3) family and friends’ testimony, (4) medical evidence, (5) continuing to work, and (6) prior injuries. Hofler, supra; Bruno, supra.

In this opinion, we must determine whether Wright’s back condition is related to the December 9, 1998, accident pursuant to the Louisiana worker’s compensation statutes. In the event that his injury is found to be a result of a unrelated injury or ailment, Wright will not be entitled to compensation benefits.

Wright denied having any problems in his lumbar region prior to the accident. To the contrary, both Dr. Tarvin and Dr. Bilderback recognized that Wright suffered from a back injury as a result of the accident, and that injury was superimposed upon a severe congenital back condition that resulted from degenerative disc disease and scoliosis.

|flDr. Gleason, who treated Wright from November 14, 2002, to December 12, 2009, addressed Wright’s initial presentation as follows:

Q. What was your impression of his condition when you first saw him?
A. Chronic back syndrome, degenerative scoliosis and spondylosis.
Q. The degenerative scoliosis and spondylosis, these are conditions which are degenerative in nature; do you agree?
A. Yes, the scoliosis is congenital; the spondylosis is a wear-and-tear process.

Dr. Gleason opined that Wright’s current ailments are a result of his scoliosis and spondylosis, and not the work-related accident.

The WCJ considered the medical records and weighed the credibility of the sole witness in this case, Wright. In his reasons for judgment, the WCJ noted his concerns with Wright’s demeanor in court, along with his refusal to cooperate during the October 25,1999, FCE:

[Wright] provided less than maximum voluntary effort and inappropriate pain behavior during the FCE.... [Wright] reported inapproriate pain levels of 9 and 10 during the evaluation. [Wright] was instructed that a level 10 requires immediate medical attention. [Wright] produced 4 out of 5 applicable Waddell signs, where 3 out of 5 positive signs are considered to be indicative of symptom exaggeration.

Additionally, the WCJ was concerned about Wright’s three-year hiatus in treatment following this FCE. For those reasons, the WCJ found that Wright reached full recovery for the injuries he sustained in the accident at some point after the October 5, 2009, FCE.

After reviewing the record before us, we find the WCJ was not erroneous in determining that Wright failed to bear the burden of proof that |inhis current condition was aggravated by the work-related accident. Further, there is insufficient medical evidence to establish a reasonable possibility of causal connection between Wright’s current disability and his work-related accident. It is clear that Wright had underlying health conditions prior to the accident. Therefore, these two assignments are without merit.

CONCLUSION

For the reasons discussed above, we affirm the WCJ’s judgment. All costs of this appeal are assessed to claimant, Robert Wright.

AFFIRMED.


author: DENNIS R. BAGNERIS, SR., Judge.

text:
    GREATER ROSE HILL BAPTIST CHURCH v. Elder Joseph ROBERTS, Regional Neighborhood Community Development Corporation, Ra'Shaud Haines, Liberty Bank and Trust Company, Jerome "Popagee" Johnson, Urban Development Group, LLC, New Orleans Music Hall of Fame and XYZ Board Members.
    No. 2010-CA-1594.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 1, 2011.

      David Band, New Orleans, LA, for Greater Rose Hill Baptist Church.
    Wayne E. Garrett, Wayne E. Garrett, A.P.L.C., New Orleans, LA, for New Orleans Music Hall of Fame, Jerome “Popa-gee” Johnson and Urban Development Group, LLC.
    Joseph Roberts, Regional Neighborhood Community Development Corporation, Harvey, LA, In Proper Person and for Regional Neighborhood Community Development Corporation.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS, SR., and Judge PAUL A. BONIN).
   DENNIS R. BAGNERIS, SR., Judge.

| ]Defendants/appellants, Elder Joseph Roberts (“Roberts”) and Regional Neighborhood Community Development Corporation (“RNCDC”), appeal two judgments of the trial court: (1) a judgment granting Plaintiff Greater Rose Hill Baptist Church’s (“Greater Rose Hill”) partial motion for summary judgment against Roberts and RNCDC for four hundred thousand dollars; and (2) a judgment granting summary judgment in favor of defendants New Orleans Music Hall of Fame (“NOMHF”), Jerome “Popagee” Johnson (“Johnson”), and Urban Development Group, LLC (“Urban Development”), and dismissing Greater Rose Hill’s claims against them with prejudice. For the following reasons, we hereby affirm the trial court’s judgment granting partial summary judgment in favor of Greater Rose Hill and against Roberts and RNCDC for four hundred thousand dollars, but because we find that there is no right of appeal for Roberts and RNCDC to appeal the dismissal of Greater Rose Hill’s action against defendants NOMHF, Johnson, and Urban Development, we hereby grant the motion to strike that portion of the appeal.

| .FACTS AND PROCEDURAL HISTORY

In May of 2007, Greater Rose Hill filed a petition for breach of promissory obligation, breach of fiduciary duties, and damages for fraud against Roberts, RNCDC, Ra’Shaud Haines, Liberty Bank and Trust Company, Johnson, NOMHF and Urban Development seeking the return of $400,000.00. According to Greater Rose Hill, it agreed to pledge a $400,000.00 Certificate of Deposit to secure the principal obligation of the Urban Development. However, Liberty Bank loaned the money to RNCDC and when RNCDC defaulted, the bank converted Greater Rose Hill’s pledged Certificate of Deposit.

In June 2010, Greater Rose Hill filed a motion for summary judgment against the defendants alleging that it never authorized the transaction for which Liberty Bank accepted the pledge and that it is entitled to summary judgment against: (1) Liberty Bank for the full amount of $400,000.00 because Liberty Bank and/or Ra’Shaud Haines as its agent, was required to protect the parties’ interest by preparing its legal loan documents naming the correct parties to the loan agreement; (2) Elder Roberts and RNCDC, in the full amount of $400,000.00 because the church stands in the shoes of Liberty Bank when the underlying obligation defaulted and Liberty took the Church’s $400,000.00; and (3) NOMHF, Johnson, Urban Development in the amount of $160,000.00 because Johnson admitted he accepted funds in that amount from the collateral CD pledged by the Church. In support of its motion for summary judgment, Greater Rose Hill attached: (1) Roberts’ economic development plan for RNCDC; (2) a letter signed by Aaron Harold as President of Greater Rose Hill to Ra’Shaud Haines, of Liberty Bank, indicating that the “loan is expected to serve as sufficient collateral for a loan extension in the amount of $400,000.00 by Liberty National Bank to Urban ^Development Group, LLC;” (3) the Executive Summary for the NOMHF; (4) Greater Rose Hill’s corporate resolution to borrow, signed on August 15, 2005, whereby the church authorized its President, Dr. Aaron Harold, to enter into a collateral loan for $400,000.00 to the Urban Development for a period of 90 days; (5) Roberts and RNCDC’s responses to Greater Rose Hill’s interrogatories; (6) the articles of organization for Urban Development; (7) the articles of organization for The National Jazz Music Hall of Fame, Inc.; (8) the articles of organization for The New Orleans Black Music Hall of Fame, Inc.; (9) the articles of organization for The South Rampart Street Jazz and Neighborhood Renaissance, Inc.; (10) the articles of organization for Hip Hop/Rap Music Hall of Fame, LLC; (11) the August 26, 2005 promissory note between RNCDC and Liberty Bank for $400,000.00, signed by Roberts; (12) a commercial guaranty in which Roberts assumed personal liability for the debts of RNCDC; (13) an assignment of deposit account, allegedly signed by Roberts on behalf of RNCDC and Pastor Harold; and (14) an October 31, 2006 letter, sent by Liberty Bank to Greater Rose Hill, advising it that it was liquidating the CD to pay the $400,000.00 loan to RNCDC.

On July 15, 2010, the day before the scheduled hearing, Roberts and RNCDC filed an opposition to Greater Rose Hill’s motion for summary judgment arguing that Roberts cannot be personally liable, that Pastor Harold exceeded his authority, and that Roberts “dispersed the $242,900 funds at the request of Mr. Jerome “PO-PAGEE” Johnson, and Urban Development Group, LLC for the New Orleans Music Hall of Fame development project

Although Liberty Bank was granted a continuance from the July 16, 2010 hearing, the trial court ruled on the motions and granted Greater Rose Hill’s partial motion for summary judgment against Roberts and RNCDC for four hundred | thousand dollars. It further granted the summary judgment in favor of defendants NOMHF, Johnson, and Urban Development, which dismissed Greater Rose Hill’s claims against them with prejudice. Defendants Roberts and RNCDC appeal these two rulings, alleging the following assignment of error:

1. The trial court erred in permitting Defendants Johnson, Urban Development and NOMHF to be dismissed on summary judgment when Defendants Roberts and RNCDC were not properly served with Defendants’ Motion.
2. The trial court erred in finding there was “no evidence” that Plaintiffs pledge benefited NOMHF, Urban Development, or Johnson.
3. The trial court erred in dismissing Defendants Johnson, Urban Development, and NOMHF when said Defendants admitted to receiving and directing RNCDC to distribute at least $139,000 of funds from the loan.
4. The trial court erred in granting summary judgment to Plaintiff and against Defendants Roberts and RNCDC when genuine issues of material fact remain.

This Court, on April 18, 2011 ordered the parties to show cause in writing why the two summary judgments, dated July 22, 2010, are final and appealable since there are claims still pending against defendants Liberty Bank and Ra’Shaud Haines. Roberts and RNCDC filed a supplemental brief requesting the appeal to proceed because no further claims exist against NOMHF, Johnson, and Urban Development and because Roberts and RNCDC have been cast in judgment in the full amount sought by Plaintiff. After reviewing the matter, we find that the partial summary judgment dismissing with prejudice NOMHF, Johnson, and Urban Development is a final judgment under La. C.C.P. art. 1915 A(l) because it “dismisses the suit as to less than all of the ... defendants.” The partial summary judgment in favor of Greater Rose Hill and against Roberts and RNCDC for $400,000.00 is also a final judgment under La. C.C.P. art. 1915 A(3) because it | .^“grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).”

STANDARD OF REVIEW

Our standard of review on the grant of a motion for summary judgment is de novo. We must examine the record to determine whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La. C.C.P art. 966. Pursuant to the 1996 amendments to this article, summary judgments are now favored, and the rules regarding such are to be liberally applied. The burden of proof remains with the mov-ant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).

DISCUSSION

The first issue we will address is the motion to strike appeal filed by NOMHF, Johnson, and Urban Development whereby they argue that appellants/defendants, Roberts and RNCDC, have no right to appeal the trial court judgment granting their motion for summary judgment and dismissing Greater Rose Hill’s claims against them with prejudice. NOMHF, Johnson, and Urban Development argue that an action can be brought only by a person having a real and actual interest which he asserts, and that Roberts and RNCDC have no actual |fiinterest in appealing a judgment between Plaintiff Greater Rose Hill, and defendants NOMHF, Johnson, and Urban Development.

An exception of no right of action is an appropriate procedural pleading to .raise the question of whether Roberts and Regional have any interest in judicially enforcing a right. Greenbriar Nursing Home, Inc. v. Pilley, 637 So.2d 429, 434 (La.1994). The exception of no right of action is peremptory and can be brought at any time, including an appeal. La. C.C.P. arts. 927, 928, and 2163. A party who has no interest in changing the judgment of the lower court cannot exercise the right of appeal. Conrad v. Swiss Chalet Picnic Grounds & Catering Service, 96-606, p. 5 (La.App. 5 Cir. 12/30/96), 686 So.2d 1055, 1058.

Although Appellants Roberts and RNCDC argue that they have the right to appeal the granting of NOMHF, Johnson, and Urban Development’s motion for summary judgment, we find this argument to be without merit. Roberts and RNCDC have had ample time and opportunity to file an incidental demand against NOMHF, Johnson, and Urban Development, and they have chosen not to do so. Greater Rose Hill has opted to not appeal the trial court’s granting of the summary judgment, which dismissed its claims against NOMHF, Johnson, and Urban Development. Therefore, we find that Roberts and RNCDC have no interest or right in appealing the trial court’s judgment granting NOMHF, Johnson, and Urban Development’s motion for summary judgment because they are not an aggrieved party to this judgment and cannot benefit by any change in the judgment dismissing NOMHF, Johnson, and Urban Development. For these reasons, we hereby grant defendants NOMHF, Johnson, and Urban Development’s motion to |7strike the portion of the appeal addressing the summary judgment granted in favor of NOMHF, Johnson, and Urban Development and dismissing Greater Rose Hill’s claims against them with prejudice.

The second issue to address is whether the trial court erred in granting Greater Rose Hill’s motion for summary judgment against Roberts and RNCDC. The motion for summary judgment filed by Greater Rose Hill contains Liberty Bank’s closing documents, which evidenced that the loan was in favor of RNCDC, that Roberts signed as a guarantor on the loan from Liberty to RNCDC, and that Roberts withdrew the full amount of the authorized loan. Given the motion and the supporting attachments, and considering the law on this issue, we cannot say the trial court erred in granting the motion for summary judgment in favor of Greater Rose Hill.

For these reasons, we hereby grant the motion to strike appeal as to the summary judgment granted in favor of defendants NOMHF, Johnson, and Urban Development, which dismissed Greater Rose Hill’s claims against them, and we affirm the partial summary judgment granted in favor of Greater Rose Hill and against defendants Roberts and RNCDC.

MOTION TO STRIKE APPEAL GRANTED; JUDGMENT AFFIRMED

      . According to La. C.C.P. art. 1031, "[¡Incidental demands are reconvention, cross-claims, intervention, and the demand against third parties.”


author: MARION F. EDWARDS, Judge.

text:
    LODGE AT SONTERRA, LTD., The Hills Ltd., Enfield Courts Ltd., Timber Creek, Ltd., Windsor House, Ltd., Rain Forest, Ltd., The Trails, Ltd., Regents Cove, Ltd., Ashley House, Ltd., Carlyle Crossing, Ltd., Stone Lake, Ltd., Oaks of Ashford, Ltd., Cornerstone Ranch, Ltd., Crescent Oaks, Ltd., Inwood Oaks, Ltd., The Belvedere, Ltd., Red Oak Place, Ltd., The Chancellor, Ltd., Oaks of Ashford, II, Ltd., The Falls, Ltd., Hunt Garden, Ltd., Willow Tree, Ltd., Forest Cove, Ltd., all Texas Domestic Limited Partnerships with Headquarters in Metairie, Louisiana, Edwin A. White on Behalf of the Putative Investors in the Yellowstone Ranch Investment, and Edwin A. White, Individually v. The PNC FINANCIAL SERVICES GROUP, INC., a Pennsylvania Corporation, PNC Bank National Association, a Member of the PNC Financial Services Group, Inc., Midland Loan Services, Inc., a Delaware Corporation, Michael B. Smuck, Individually, ING Clarion Partners, L.L.C., a New York Limited Liability Company and ING Clarion Capital, L.L.C., a New York Limited Liability Company.
    No. 10-CA-745.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.
    David C. Leob, Robert E. Couhig, III, Couhig Partners, LLP, Arthur A. Lemann, III, Arthur A. Lemann, IV, Arthur A. Lemann, III & Associates, Inc., New Orleans, LA, for Plaintiffs/Appellants.
    Richard A. Aguilar, B. Franklin Martin, III, Gabriel A. Crowson, McGlinchy Stafford, PLLC, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges MARION F. EDWARDS, MARC E. JOHNSON, and HILLARY J. CRAIN, Pro Tempore.
   MARION F. EDWARDS, Judge.

[3On appeal is a judgment of the district court granting an Exception of Lack of Procedural Capacity. For the reasons to follow, the appeal is dismissed.

Plaintiffs, Lodge at Sonterra, Ltd.; Ashley House, Ltd.; Cornerstone Ranch, Ltd.; Windsor House, Ltd.; Stone Lake Ltd. (The Class “A” Properties); The Hills, Ltd.; Enfield Courts, Ltd.; Timber Creek, Ltd.; Rain Forest Ltd.; The Trails, Ltd.; Regents Cove Ltd.; Carlyle Crossing Ltd.; Oaks of Ashford, Ltd.; Crescent Oaks, Ltd.; Inwood Oaks, Ltd.; The Belvedere, Ltd.; Red Oak Place, Ltd.; The Chancellor, Ltd.; Oaks of Ashford II, Ltd.; The Falls, Ltd.; Hunt Garden, Ltd.; Willow Tree, Ltd.; Forest Cove Ltd. (The Class “B” Properties); Edwin A. White, on behalf of the putative investors in the Yellowstone Ranch Investment; and Edwin A. White (“White”), individually, filed suit in the Twenty-Fourth Judicial District Court against defendants, The PNC Financial Services Group, Inc. and PNC Bank National Association; Midland Loan Services, Inc. (“Midland”); Michael B. Smuck (“Smuck”); ING Clarion Partners, L.L.C.; and ING |4Clarion Capital, L.L.C. (“ING”). The plaintiffs are Texas domestic limited partnerships which were created to act as borrowers for the purchase of apartment complexes located in Texas. The properties were managed by defendant Smuck through MBS Managerial Services. White and Smuck were co-general partners in MBS and reside in Jefferson Parish.

The petition generally alleges that each plaintiffs structure and management was required and approved by PNC Bank, a part of the PNC Financial Services Group, and that PNC loaned the money to plaintiffs to purchase the apartment complexes. As managing general partner, Smuck executed deeds of trust and promissory notes in favor of PNC, as well as indemnity agreements (the “Loan Documents”). When the Loan Documents were executed, PNC assigned its rights to Midland, a wholly owned subsidiary of PNC. Midland was responsible for servicing the loans and verifying the complexes were run in compliance with the loan documents. The petition further alleged that the complexes deteriorated under Smuck’s management, repairs were not made, rent and insurance proceeds were misappropriated, and the market value of the properties dropped dramatically. It was averred that Midland became aware of the deterioration and improper management, but it did not exercise its rights under the Loan Documents to preserve the properties. Midland also became aware that Smuck was submitting falsified work orders so as to draw on repair reserves but at no time did it inform White of the difficulties. Smuck created false documents to hide the true financial status from White. After becoming aware of these problems, PNC continued to enter into loan agreements and to require White to sign indemnity agreements. It was alleged that PNC and Midland wanted to protect Smuck, one of its largest borrowers. Because the true financial situation was concealed, White and other investors agreed to acquire Yellowstone Ranch apartments with Smuck. The | .^Yellowstone Funds were misappropriated by Smuck. It was urged that ING assumed the duty of Special Servicer over the Stone Lake Apartments after the note on that property was defaulted and that plaintiffs were charged certain legal fees.

According to the petition, White was first made aware of the problems when he was informed that many of the loans were in default. The managing membership of the Class “A” plaintiffs was transferred to him.

A Supplemental and Amending Petition was subsequently filed re-stating the allegations as to the individual defendants. The defendants filed various answers and defenses. In November 2009, the trial court granted summary judgment in favor of the ING defendants, dismissing plaintiffs’ claims with prejudice.

Also in November 2009, the trial court granted an Exception of Lack of Procedural Capacity filed by the PNC defendants, ordering plaintiffs to file an amended petition affirmatively demonstrating that the partnership plaintiffs appear through a duly authorized partner. They were also ordered to name the individuals identified as the “Yellowstone Ranch Investors” and affirmatively demonstrate White’s authority to bring an action on their behalf.

A Second Supplemental and Amending Petition was filed. PNC filed another Exception of Lack of Procedural Capacity, alleging the second petition failed to comply with the court’s order. Following a hearing, the court partially granted the exception, dismissing the claims of the Class “B” partnerships against PNC without prejudice. The court specifically did not dismiss the claims of the Class “B” partnerships “against any other defendants herein.” Further, the exception was denied as to Lodge at Sonterra, Ltd.; Windsor House, Ltd.; Ashley House, Ltd.; Stone Lake, Ltd.; Cornerstone Ranch, Ltd.; and the “putative investors in the Yellowstone Ranch Investment Partnership,” who were | f,subsequently named in the judgment. It is from this judgment that the Class “B” partnership plaintiffs appeal.

We note a jurisdictional defect. Specifically, the judgment on appeal is a partial summary judgment that is not a final judgment as defined in La. C.C.P. art. 1915. That article, in part, states:

A.A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.
B.(1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, recon-ventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

The judgment on appeal dismissed the Class “B” partnership claims against the PNC group; the Class “B” action remains against Smuck. Further, the Class “A” partnerships, the Yellowstone Ranch Investment Partnership, and White, individually, still have causes of action against PNC. In addition, the trial court did not designate the judgment as a final judgment and did not make the required express determination, pursuant to La. C.C.P. art. 1915(B)(2), that there is no just reason for delay.

17Accordingly, the judgment is an interlocutory judgment not subject to immediate appeal, and we have no jurisdiction over it. The correct course of action for appellate review is to file an application for supervisory writ.

Therefore, the present appeal is dismissed. The matter is remanded to the trial court, and appellants are given thirty days from the date of this opinion within which to file an application for a supervisory writ.

APPEAL DISMISSED; REMANDED

      . See, e.g., Nolan v. High Grass, LLC, 07-80 (La.App. 5 Cir. 5/29/07), 960 So.2d 1103.


author: MARC E. JOHNSON, Judge.

text:
    Alana STIRGUS Individually and as The Tutrix of Armand Stirgus v. ST. JOHN THE BAPTIST PARISH SCHOOL BOARD, Larry Dauterive, Ronald Barrilloux, Children's Hospital, Dr. Carmen Begue and ABC Insurance Companies.
    No. 11-CA-47.
    Court of Appeal of Louisiana, Fifth Circuit.
    June 14, 2011.

      Michael T. Beckers, Brent P. Frederick, H. Price Mounger, III, Attorneys at Law, Baton Rouge, LA, for Plaintiff/Appellant.
    Daniel E. Becnel, Jr., Kevin P. Klibert, Attorneys at Law, Reserve, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, JUDE G. GRAVOIS, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| j>This is an appeal from the granting of a motion for summary judgment in favor of defendants, St. John the Baptist Parish School Board (“the School Board”), Larry Dauterive, and Ronald Barrilloux. For the reasons that follow, we reverse.

FACTS & PROCEDURAL HISTORY

Plaintiffs, Alana Stirgus and Armand Stirgus, filed a petition for damages against the above-named defendants for injuries Armand suffered when he slipped |sand fell on the gym floor at East St. John High School during an indoor football practice on January 22, 2007. In their petition, plaintiffs alleged that as a result of the fall Armand fractured and dislocated his right hip, which required surgery. Plaintiffs asserted the School Board was liable for the negligent acts of its employees, Larry Dauterive, the Athletic Director for East St. John High School, and Ronald Barrilloux, the football coach who ran practice on the day of the incident, under the doctrine of respondeat superior. Plaintiffs contended the indoor football practice was inherently dangerous and that the danger was compounded by a gym floor that was wet because the players had been practicing outside in the rain prior to being moved inside by their coaches. Plaintiffs alleged defendants breached their duty of care owed to the students by failing to provide adequate supervision to the football players to keep them free from unreasonable risks of harm.

Defendants filed a motion for summary judgment asserting there were no genuine issues of material fact and that they were entitled to judgment as a matter of law under both the theory of premise liability and negligence. Defendants maintained that plaintiffs could not prove there was water on the gym floor or that there was a sufficient amount of water on the floor that created an unreasonably dangerous condition. They further argued plaintiffs could not prove defendants had constructive notice of the alleged defect, i.e., water on the floor. Defendants also asserted plaintiffs could not prove they breached any type of duty to provide safety equipment and to adequately train the players.

After a hearing, the trial court granted defendants’ motion for summary judgment. The trial court concluded that holding football practice inside a gym |4when some players were still wearing wet clothing and tennis shoes did not create an unreasonable risk of harm. The trial court further noted that there was no showing that there was a significant amount of water on the floor so as to create an unreasonably dangerous situation. Plaintiffs appeal the trial court’s granting of defendants’ motion for summary judgment, which effectively dismissed their lawsuit.

ISSUE

On appeal, plaintiffs contend the trial court erred in granting defendants’ motion for summary judgment. Plaintiffs argue that the trial court erred in finding that allowing football players in wet clothes and shoes to run drills at full speed inside a gym was not unreasonably dangerous as a matter of law. Plaintiffs also allege the trial court erred in weighing testimony in its factual determination that there was an insufficient amount of water on the gym floor to create an unreasonably dangerous condition.

LAW & ANALYSIS

A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The initial burden of proof is with the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must only point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The non-moving party must then produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the non-moving party fails to do so, there is no genuine issue of material fact and summary judgment |Bshould be granted. La. C.C.P. art. 966(C)(2); Callis v. Jefferson Parish Hosp. Service, Dist. # 1, 07-580, pp. 4-5 (La.App. 5 Cir. 12/27/07), 975 So.2d 641, 643.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and is favored in the law. La. C.C.P. art. 966(A)(2); Robinson v. Jefferson Parish School Bd., 08-1224, p. 13 (La.App. 5 Cir. 4/7/09), 9 So.3d 1035, 1043, writ denied, 09-1187 (La.9/18/09), 17 So.3d 975. Even though the summary judgment procedure is favored, it is not a substitute for trial on the merits. S.J. v. Lafayette Parish School Bd., 06-2862, p. 5 (La.6/29/07), 959 So.2d 884, 887 (per curiam).

A material fact is one that potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the lawsuit. Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765 (per curiam). A genuine issue is a “triable issue.” Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. If reasonable persons could disagree after considering the evidence, a genuine issue exists. However, if reasonable persons could reach only one conclusion on the state of the evidence, there is no need for a trial on that issue and summary judgment is appropriate. Id.; Alwell v. Meadowcrest Hosp., Inc., 07-376, p. 4 (La.App. 5 Cir. 10/30/07), 971 So.2d 411, 414. “In determining whether an issue is ‘genuine,’ courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence.” Smith, 93-2512 at 27; 639 So.2d at 751.

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Specifically, appellate courts must ask the same questions as the district court: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Matthews v. Banner, 08-339, p. 3 (La.App. 5 Cir. 10/28/08), 996 So.2d 1161, 1163.

In their petition for damages, plaintiffs claimed the School Board was liable for the negligence of the coaches in failing to provide adequate supervision of the football players and failing to provide a safe environment for the players to practice. A school board, through its agents and teachers, owes a duty of reasonable supervision over students. Robinson v. Jefferson Parish School Board, 9 So.3d at 1046. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. This duty does not make the school board the insurer of the safety of the children. Id.

To establish a claim against a school board for failure to adequately supervise the safety of its students, a plaintiff must prove: (1) negligence on the part of the school board, its agents, or teachers in providing supervision; (2) a causal connection between the lack of supervision and the accident; and (3) that the risk of unreasonable injury was foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. Robinson, 9 So.3d at 1047.

Negligence is based on the existence of a duty and the breach thereof that causes damages. La. C.C. arts. 2315 and 2316. A duty is an obligation recognized by law to conform to a particular standard of conduct toward another. Green v. Orleans Parish School Bd., 00-106 (La.App. 4 Cir. 2/7/01), 780 So.2d 1082, 1085, citing St. Hill v. Tabor, 542 So.2d 499, 502 (La.1989). The standard of care for school teachers and administrators is that of a reasonable person in such a position acting under similar circumstances. “Reasonable care includes protecting against unreasonable risk of injury from dangerous or hazardous objects in the school buildings and on the grounds.” Green, supra. Under a theory of negligence, the ^relationship between the risk and the reasonableness of the measures taken to eliminate the risk must be considered. Id.

In their motion for summary judgment, defendants asserted plaintiffs could not prove they breached a duty or that defendants failed to protect the players from an unreasonable risk of injury. To support their position, defendants offered partial deposition transcripts of Armand, Coach Barrilloux, and Coach Dauterive. Plaintiffs used the same partial deposition transcripts to oppose the summary judgment. A review of the portions of the depositions contained in the appellate record reveals the following.

Coach Dauterive testified that football practice moved from outside to inside the gym after it started raining. The players went to their lockers to towel off and change from cleats to tennis shoes and into dry clothes if they had them. Coach Dau-terive stated the students were on their own to change and to report to the gym. He stated there was no requirement the players change their clothes and there was no inspection of the players when they reported to the gym.

Coach Barrilloux explained the players were wet but not “soaking wet.” He stated the players changed into dry clothes but admitted no one checked to make sure the players had changed. Coach Barril-loux admitted there was a chance some player remained wet when they entered the gym. Armand testified that some players did not change into dry shoes and clothes before going into the gym.

Both coaches stated the gym floor was made of tile and could be slick, especially with moisture. Coach Dauterive explained that the gym floor sweats and becomes slick during basketball games if the air conditioning is not set right. He stated that if he saw water on the gym floor, he would use towels to wipe it up. | sHe explained that every coach and assistant coach monitors the floor and wipes it if water or moisture is observed. Coach Barrilloux testified that on the day of the incident no one was specifically assigned to monitor the gym surface for moisture; but, he indicated a coach would notice moisture.

The practice inside the gym consisted of football throwing drills. Ten to fifteen minutes into the drills, Armand fell while running a “32 slant.” Armand testified that before he fell, he heard a lot of squeaking. When asked what that meant to him, Armand replied it meant to watch your step because it was slippery. He stated he looked around on his side of the line to see if there was any water on the floor, but he did not see any. He further stated he did not hear anyone complaining about water on the floor. Armand stated that the first time he saw water on the floor was after he fell. But, Armand testified that one other person, a “new guy” trying out for the team, had fallen that day. There were no follow-up questions during the deposition as to why the other player fell. In an affidavit submitted at the motion for summary judgment hearing, Armand stated that the other player had slipped and fell on what appeared to be water. Coach Barrilloux testified that he did not see any water on the gym floor, but stated he did not check for water and did not remember that far back.

Plaintiff offered the additional deposition testimony of Dr. Gerald George, who testified the coaches fell below the standard of care in ensuring a reasonably safe environment for the football conditioning program. Because only portions of Dr. George’s deposition were submitted into evidence, we have no knowledge of Dr. George’s purported field of expertise. Dr. George testified the “squeaking” sounds Armand heard prior to his fall were indicative of a potentially wet floor. He stated that any amount of wetness on the gym floor from wet clothes and rain is lfltoo much. He explained that “32 slants” involve quick turning and pivoting, which lends itself to a higher potential of slipping.

In our de novo review of the record, we find there are genuine issues of material fact that preclude summary judgment. The record shows Armand slipped and fell in the gym while executing a “32 slant” football drill. Football practice had started outside but was moved inside the gym by the coaches after it started raining and the players became wet. Some players changed into dry shoes and clothes and some did not. Everyone agreed the gym floor can be slippery with moisture.

Although not an insurer of the players’ safety, defendants had a legal duty to adequately and reasonably supervise the safety of the football players during practice. The reasonableness of the coaches’ actions in continuing football practice inside the gym under the circumstances where some players’ shoes and clothes remained wet and one player had already slipped and fell, is an issue upon which reasonable minds can differ based on the evidence in the record, thus precluding summary judgment.

Additionally, we find an issue of fact as to whether defendants should have known there was moisture on the floor in light of the circumstances. Although the coaches testified they monitored the floor for moisture and saw none prior to Armand’s fall, the question is whether they should have known there was moisture on the floor based on the squeaking shoes, which according to plaintiffs’ expert indicates the probability of a wet gym floor, the fact another player fell during the indoor practice prior to Armand’s fall, and the fact not all players changed out of wet shoes and clothes. This determination requires the weighing of evidence and the credibility of witnesses which are improper considerations in a motion for summary judgment.

11ftAccordingly, we find the granting of a motion for summary judgment inappropriate in this case.

DECREE

Based on the record before this Court, we reverse the trial court’s granting of defendants’ motion for summary judgment. Defendants/appellees are to bear the costs of this appeal.

REVERSED

      . The lawsuit was originally filed by Alana Stirgus, individually and as tutrix of her minor child, Armand Stirgus. During the proceedings, Armand reached the age of majority and the lawsuit was amended to name Armand as a petitioner. Although Armand asked to be the sole petitioner and asked that the caption of the lawsuit be so amended, his mother’s name remained in the caption and both Armand and his mother, as plaintiffs, filed a motion for appeal.
      We further note that plaintiff’s name is spelled both "Armand” and "Armaud” throughout the record. The initial Petition for Damages, supplemental petitions, and the initial court caption, lists plaintiff's name as Armand. At some point during the trial court proceedings, the caption changed and referred to plaintiff as "Armaud.” In fact, the judgment at issue in this appeal lists plaintiff as "Armaud.” Plaintiff signed two separate affidavits that were filed into the record: one refers to him as "Armand” and the other refers to him as "Armaud.” We cannot determine from his signature whether he spells his name "Armand” or "Armaud.” For purposes of this opinion, we will use the spelling "Armand” as used in the original petition and court caption.

      . Plaintiffs named several additional defendants, including Children’s Hospital and two doctors who treated Armand after his injury. These defendants were dismissed on an unrelated motion for summary judgment, which forms no basis for the instant appeal.

      . There is a discrepancy in the record regarding the spelling of Coach Barrilloux's name. For purposes of this opinion, we will use the captioned spelling of "Barrilloux” as opposed to the deposition spelling of "Barrilleaux.”