author: ROSEMARY LEDET, Judge.

text:
    STATE of Louisiana in the Interest of the Minor Child C.A.C.
    No. 2011-CA-1315.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 1, 2012.

      Tammy Marie Thompson, Special Designated Appellate Counsel, Loranger, LA, for Appellant.
    Sherry Watters, Department of Children and Family Services, T. Darlene Bewley, Southeast Louisiana Legal Services, New Orleans, LA, for Appellees.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge ROSEMARY LEDET).
   ROSEMARY LEDET, Judge.

| ,This is an involuntary termination of parental rights case. From a judgment terminating the parental rights of the biological father, John C, of a female child, CAC, based on abandonment under La. Ch.C. art. 1015(4), the father appeals. For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On October 7, 2007, CAC was born. Her birth certificate designated John C as her father and Christi P as her mother. During the first ten months of her life, CAC was cared for by both her parents, who never married. During this period, John C acknowledged that he was addicted to heroin.

In August 2008, John C was arrested on federal charges of possession of heroin and assault. Ultimately, he was sentenced on those charges to thirty-six months. Until he was sentenced, John C was incarcerated in New Orleans. When he was sentenced, he was moved to a federal prison in Beaumont, Texas. The record, however, is unclear as to exactly when he was moved to Beaumont. The | ¿record reflects that he was incarcerated in New Orleans at least until February 2010, when the case manager (Tory Dixon) attempted to visit him in jail to give him the statutorily required notice; and he was moved to Beaumont sometime before June 2010, when he wrote to the trial judge in this case.

In January 2011, John C was released from federal prison and moved to a halfway house in New Orleans. In March 2011, he was released from the halfway house and moved into his father’s (George C, Sr.’s) house. At the time of the trial in this matter, John C was still on federal probation.

During John C’s incarceration, the State of Louisiana, Department of Social Services, Office of Community Services, now called the Department of Children and Family Services (“DCFS”) received three complaints regarding the neglect of CAC. The primary basis for the complaints was the mother’s (Christi P’s) drug abuse and the father’s (John C’s) absence due to his incarceration, resulting in the lack of a caregiver for the child. Following the third complaint, the DCFS requested and was granted custody of CAC on January 26, 2010. CAC was placed in foster care with her paternal aunt and uncle (Heather C and George C, Jr.) with whom she was residing before the DCFS obtained custody. Indeed, Heather C and George C, Jr., cared for CAC for two prior periods: (i) in August 2009 for about three and a half weeks while Christi P was in drug treatment; and (ii) from November 2009, when Christi P overdosed, through January 2010, when CAC was officially placed in state custody.

|sAs noted above, in February 2010, Ms. Dixon attempted to visit John C in prison in New Orleans. The purpose of her visit was to deliver to him the notice the DCFS is required by La. Ch.C. art. 1036.2 to give an incarcerated parent of a child placed in state custody (foster care). After making two unsuccessful attempts to visit John C in jail, Ms. Dixon opted to give the notice to John C’s attorney in this case, Alan Bouterie, to give to John C.

In April 2010, an adjudication hearing was held; and CAC was found to be a child in need of care. Mr. Bouterie attended the hearing and represented that “he could not speak with his client (in jail)”; however, he reserved John C’s rights.

As noted above, in June 2010, the trial judge received a letter from John C, who was then incarcerated in Beaumont. In the letter, John C requested permission for one of his parents to bring CAC to visit him. He also informed the judge that |4the child protection case involving CAC was opened after he was incarcerated. He further informed the judge that he was told a lawyer was appointed for him in the case, but he was never contacted by one. He added that even when he was in jail in New Orleans waiting to be sentenced he was never contacted by a lawyer regarding the case. He also noted that he did not know what his rights were.

In July 2010, the trial judge forwarded John C’s letter to the indigent defense office. In his forwarding letter, the judge noted that Mr. Bouterie, the lawyer initially appointed to represent John C in this case, was no longer with the office. Also in July 2010, John C wrote the judge a second time. He again requested permission for CAC to visit him and again informed the judge that although he was supposed to have an appointed lawyer in the case he was never contacted by one.

In September 2010, Alyndra Stalbert, the case manager who took Ms. Dixon’s place while she was on maternity leave, mailed the Article 1036.2 notice to John C. Along with the notice, she included a copy of the case plan. Ms. Stalbert obtained John C’s address from his brother (George C, Jr.). Five days after receiving the notice and case plan, John C sent a reply letter to Ms. Stalbert. Included with his reply letter was the OCS Form TPR-2 Notice of Termination of Parental Right Law, which he signed and dated September 20, 2010. In his reply letter, John C noted that in reading the case plan he noticed it required him to pay twenty-five dollars a month in child support. He further noted that he was working in federal prison and earning seventeen dollars a month. He offered to send his monthly check and requested instructions on where he should send the money.

|sIn November 2010, a review hearing was held at which the court, following the ease plan, indicated that the goal for CAC was reunification with her parents. Also in November 2010, John C wrote a letter to Ms. Dixon, who had returned from maternity leave and was again the case manager, indicating that he had received a letter from her regarding the November 2010 hearing. He requested permission from her for CAC to visit him at least once during the upcoming holidays.

On January 13, 2011, another review hearing was held. At this hearing, the court approved the change of the goal for CAC from reunification to adoption.

On January 26, 2011, exactly one year after CAC was officially placed in state custody, the DCFS commenced this case against both parents, John C and Christi P, seeking to terminate their parental rights and to free CAC for adoption. In the petition, the DCFS alleged that termination was appropriate based on La. Ch.C. art. 1015(4), abandonment. In support, the DCFS alleged that as of the filing of the petition both parents had not provided significant support; and the | (¡father had failed to maintain significant contact for six consecutive months beginning on January 26, 2010. As to support, the petition alleged that John C did not pay any child support, did not pay for educational supplies, health insurance, or medical bills for the child; and did not provide food, clothing, or other necessities for the child. The petition averred that “the mother [Christi P] paid one payment of $25.00 in the year that the child has been in foster care.” As to contacts, the petition alleged that the father, John C, failed to maintain significant contact with the child; particularly, the DCFS averred that the father failed to send cards, letters, photographs, or gifts; failed to participate in planning for the child; and failed to maintain contact in person, by phone, or in writing.

In February 2011, Christi P voluntarily surrendered her parental rights to CAC. At a hearing in March 2011, the trial court recognized Christi P’s voluntary surrender of her parental rights. Thus, only the parental rights of the father, John C were tried and are at issue on appeal.

In June 2011, a one-day trial was held on the termination of John C’s parental rights. The following six witnesses testified at the trial: John C; John C’s father, George C, Sr.; John C’s sister-in-law, Heather C; John C’s brother, George C, Jr.; and the two case managers, Ms. Dixon and Ms. Stalbert. Following the trial, the court took the matter under advisement.

In July 2011, the trial court rendered judgment terminating John C’s parental rights based on abandonment due to nonsupport. This appeal followed.

\ .DISCUSSION

A trial court’s findings on factually-intense termination of parental rights issues are governed by the manifest error standard of review. State ex rel. SNW v. Mitchell, 01-2128, p. 10 (La.11/28/01), 800 So.2d 809, 816; State ex rel. K.G., 02-2886, p. 4 (La.3/18/03), 841 So.2d 759, 762. In an involuntarily termination of parental rights case, courts must balance the often competing interests of the natural parent and the child. Mitchell, 01-2128 at p. 8, 800 So.2d at 814-15. The child has an interest in terminating parental rights that preclude or delay adoption and inhibit establishing stable, long-term family relationships. State ex rel. G.J.L., 00-3278, p. 6 (La.6/29/01), 791 So.2d 80, 86. Natural parents have a fundamental liberty interest in the care, custody, and management of their child that ‘“does not evaporate simply because they have not been model parents.’ ” Mitchell, 01-2128 at p. 8, 800 So.2d at 814 (quoting Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394-95, 71 L.Ed.2d 599, 606 (1982)). Congruent with the parent’s interest, the State has an interest in terminating parental rights under certain circumstances. State in the Interest of A.C., 93-1125, pp. 9-10 (La.10/17/94), 643 So.2d 743, 748 (citing La. Ch.C. arts. 1004 and 1015).

The permanent termination of the parent-child legal relationship is one of the most drastic actions the State can take against its citizens. State ex rel. AT., 06-0501, p. 4 (La.7/6/06), 936 So.2d 79, 82. As noted above, natural parents have a fundamental liberty interest in maintaining their legal relationship with their child. When the State seeks to terminate the relationship, due process requires that a | ^fundamentally fair procedure be followed. In re State ex rel. D.C.P., 05-212, p. 7 (La.App. 5 Cir. 10/6/05), 916 So.2d 1206, 1209. For these reasons, the Louisiana Legislature has imposed strict procedural and evidentiary requirements that must be met before the relationship can be terminated. See SNW, supra.

Eight statutory grounds for the involuntary termination of parental rights are enumerated in La. Ch.C. art. 1015. Although the State need only establish one statutory ground, the trial court must also find that termination is in the child’s best interest. La. Ch.C. arts. 1015 and 1039. Moreover, given the draconian nature of an involuntary termination proceeding, the State is required to prove the statutory ground on which it relies by clear and convincing evidence. La. Ch.C. art. 1035 A; Mitchell, 01-2128 at p. 10, 800 So.2d at 816. To satisfy the onerous clear and convincing standard, the State must establish that the parent’s failure to comply with the statutory ground is highly probable. State in the Interest of Q.P., 94-609, p. 4 (La.App. 3 Cir. 11/2/94), 649 So.2d 512, 515.

Summarizing, involuntary termination of parental rights is a two-pronged inquiry. First, the State must prove by clear and convincing evidence the existence of at least one of the eight statutory grounds for termination under La. Ch.C. art. 1015. Second, but only after the ground for termination is found, the trial court must determine whether the termination is in the child’s best interest. La. Ch.C. art. 1039; State ex rel. L.B. v. G.B.B., 02-1715, pp. 5-6 (La.12/4/02), 831 So.2d 918, 922.

|flTurning to the instant case, John C contends on appeal that the trial court erred in three respects: (i) finding the State satisfied the onerous burden of proving a ground of termination by clear and convincing evidence; (ii) terminating his parental rights by considering only the best interest of the child; and (iii) terminating his parental rights despite the State’s failure to make timely and reasonable efforts to notify him of CAC’s placement in the state’s custody as required under La. Ch. C. art. 1036.2(B).

In terminating John C’s parental rights, the trial court relied solely on Article 1015(4)(b), abandonment based on six months of nonsupport. In its reasons for judgment, the trial court found that termination was in CAC’s best interest and that John C “has not supported his daughter.” The court reasoned that “what little assets he had (from the sale of a truck) while in jail could have been used to support the child, but were instead used on himself and given to other family members.” Labeling John C’s failure to direct the proceeds from the sale of the truck be used to support CAC as neglect, the trial court found the requirement for establishing abandonment based on six consecutive months of nonsupport was satisfied.

Factually, the trial court’s reasons are supported by the record. At trial, John C testified that when he was incarcerated he owned a truck, which was his sole asset. According to John C, he directed his father, George C, Sr., to sell the truck and to use the money for whatever John C needed for CAC. John C’s father, George C, Sr., testified that he sold the truck for $5,000 to his brother. (George C, Sr., was unclear as to exactly when during John C’s incarceration he sold the |intruck.) After he deducted about $1,000 for the costs of repairs, George C, Sr., gave some of the money to John C’s sister as John C directed. George C, Sr., used some of the money for his own needs, again as John C directed, and sent some of the money to John C for things he needed during the time that he was incarcerated. Although George C, Sr., acknowledged that George C, Jr., and Heather C took care of CAC’s needs, he did not use any of from the money from the sale of the truck to pay them regular support for CAC. Rather, George C, Sr., used some of the money to buy CAC dresses and other items for visits with her father, John C, when he was in jail in New Orleans. It is undisputed that John C made no other financial contributions to CAC’s support during his incarceration.

The jurisprudence has held that sporadic gift-giving — such as John C’s father made on his behalf — does not amount to significant support. See In re TMS, 08-810, p. 6 (La.App. 3 Cir. 11/5/08), 999 So.2d 21, 26 (collecting cases). Nonetheless, the trial court legally erred in terminating John C’s parental rights based on abandonment. The legal error stems from the determination of the date on which the abandonment period under La. Ch.C. art. 1015(4) commenced.

In finding John C abandoned CAC, the trial court apparently assumed that the period for determining abandonment under Article 1015(4) commenced on the date that CAC officially was placed in state custody (foster care), January 26, 2010. In its petition, the DCFS alleged that the abandonment period commenced on that date. However, the DCFS in its brief acknowledged that the abandonment period may have commenced at a later date; it stated: “[w]hen the child was no |nlonger placed with a parent and when [John C] knew or should have known that C.A.C. was in foster care, the time frame for Children’s Code Art. 1015(4) began.” The DCFS’s reliance on when John C should have known that CAC was in foster care is misplaced. To meet its onerous burden, the DCFS was required to establish the incarcerated parent had actual notice of his child’s placement in state custody (foster care) to commence the six month abandonment period.

A similar issue regarding the commencement of the six month period for calculating the abandonment period under La. Ch.C. art. 1015(4) was addressed in State ex rel. D.H.L., 08-89 (La.App. 3 Cir. 4/30/08), 981 So.2d 906. In that case, the trial court’s reasons for judgment indicated that the six month period that D.B. neither supported nor contacted D.H.L. was from April 2004 through December 2004. Although D.B. acknowledged that he did not begin to pay child support for D.H.L. until January 2005, the DNA test results proving that he was D.H.L.’s biological father were not received until October 2004. The appellate court found that the trial court legally erred in holding D.B. legally responsible for the support of D.H.L. before his paternity was established. The appellate court reasoned that “[t]he trial court’s reliance upon this six month period to conclude that the State had proven by clear and convincing evidence that D.B. had abandoned D.H.L. pursuant to La.Ch.Code art. 1015, sections (4) and (5) was legally incorrect.” D.H.L., 08-39 at p. 6, 981 So.2d at 910. The six month period thus could not commence until D.B.’s paternity was established.

| ^Likewise, we conclude that the six month period in this case could not commence until the DCFS established that John C had actual notice that CAC was placed in state custody. It is undisputed, as John C emphasizes, that the DCFS failed to comply with the requirement of Article 1036.2(B) that “[wjithin thirty days of notification that a parent of a child in foster care is incarcerated in this state, a representative of the department shall visit the incarcerated parent and give written notification to the incarcerated parent of his duty to provide a reasonable plan for the appropriate care of the child.” Although CAC officially was placed in foster care with her paternal aunt and uncle in January 2010, the DCFS did not give written notice to John C until nine months later, September 2010, when it was mailed to him.

The DCFS contends that the requirement of giving notice under La. Ch.C. art. 1036.2 is only relevant in an involuntary termination proceeding under La. Ch.C. art. 1015(B)(6), extended incarceration period. Since the instant case was brought under La. Ch.C. art. 1015(B)(4), abandonment, the DCFS contends that its failure to comply with the statutory requirement regarding given notice is irrelevant. We disagree. The DCFS’s failure to comply with the statutory requirement of giving notice to the incarcerated parent is relevant in this case in | ^determining the commencement of the six month abandonment period under Article 1015(4).

Ms. Dixon testified that in February 2010 she gave the Article 1036.2 notice to John C’s attorney, Mr. Bouterie. However, John C in his letters to the trial judge dated June and July 2010 stated that the attorney appointed to represent him in this case had not contacted him. At trial, John C was asked whether his father informed him when CAC was placed in foster care (state custody). He replied that he was “aware of some of the stuff, but my dad is in the middle of the situation here because my daughter was with my brother. So my dad is not going to tell me everything that’s going on.” John C’s further testified that he was not fully aware of the situation. The record thus does not support a finding that John C had actual notice that CAC was placed in state custody (foster care) until September 2010 when he received the Article 1036.2 notice and a copy of his case plan.

Although the obligation of a parent to support his child is distinct from a court ordered obligation to pay child support, the cases in which termination has been ordered based on a failure to support have involved “the parent’s failure to voluntarily pay support or make specified support payments called for in the case plan.” State ex rel. B.H. v. A.H., 42,864, pp. 10-11 (La.App. 2 Cir. 10/24/07), 968 So.2d 881, 888 (collecting cases). John C was not provided a copy of his case plan ordering him to pay twenty-five dollars a month in child support until September 2010, less than six months before the filing of the termination petition. It | ^therefore cannot be concluded that he failed to pay child support pursuant to the case plan for a consecutive six month period before the filing of the petition.

In summary, the trial court legally erred in relying on a six month period commencing before John C received actual notice of CAC’s placement in state custody (foster care) and before he was provided a copy of his case plan. It would be fundamentally unfair to find a failure to support based on a period during which John C was not notified that his child had been placed into state custody and that he had an obligation to pay child support. Accordingly, the trial court erred in finding the DCFS satisfied its onerous burden of proving abandonment under La. Ch.C. art. 1015(4)(b).

The trial court in its reasons for judgment did not address the issue of whether the DCFS established abandonment based on La. Ch.C. art. 1015(4)(c)— lack of contact. This ground would be subject to the same hurdle, discussed above, regarding the commencement of the six month period for abandonment. See D.H.L., supra. Regardless, the record would not support a finding of abandonment under La. Ch.C. art. 1015(4)(c) based on lack of contact during the time that John C was incarcerated — between August 2008 and January 2011. During that time, John C made the following significant efforts to keep in touch with CAC:

• When he was incarcerated in New Orleans, his father, George Clark, Sr., brought CAC to see him almost every week until January 2010. John C also talked to CAC on the phone.
| is* When he was incarcerated in Beaumont, John C talked to CAC on the phone through his father (George C, Sr.) or CAC’s mother (Christi P). He explained that he knew when the mother had visits with CAC, and he would call during that time. Also, he would call his father when his father was at his brother’s house.
• John C sent cards to his father for CAC; he did not send cards directly to his brother’s house because he was afraid that CAC would not receive them.
• John C wrote letters to the trial judge and the case manager requesting permission for CAC to visit him.
• On the day he was released from prison, John C called the case manager, Ms. Dixon, to find out what he needed to do to see CAC.

John C was released from prison the same month the termination petition was filed, January 2011. Since his release John C has attended visitation with the child. Thus, the record would not support a finding of abandonment based on John C’s lack of contact with CAC during his incarceration.

Accordingly, we reverse the trial court’s decision terminating John C’s parental rights. In the event John C fails to fulfill his parental obligations, the DCFS, in its discretion, may institute another proceeding to terminate his parental rights.

DECREE

For the forgoing reasons, the judgment of the trial court is reversed.

REVERSED

      . Because this is a juvenile matter, the initials of the last name of the parties are used in lieu of their full names to protect the privacy of the parties. Likewise, the initials of the minor child are used in accordance with Uniform Rules — Courts of Appeal, Rule 5-2. See also Uniform Rules — Courts of Appeal, Rule 5-1.

      . The mother, Christi P, had another younger child with another man. The other child also was removed from the home and separately placed. The other child is not at issue on this appeal.

      . Article 1036.2 provides as follows:
      A. An incarcerated parent of a child in the custody of the department shall provide a reasonable plan for the appropriate care of his child other than foster care. Failure by the incarcerated parent to provide an appropriate plan may result in an action to terminate his parental rights.
      B. Within thirty days of notification that a parent of a child in foster care is incarcerated in this state, a representative of the department shall visit the incarcerated parent and give written notification to the incarcerated parent of his duty to provide a reasonable plan for the appropriate care of the child. The department, at that time, shall obtain information regarding the plan, including the names, addresses, cellular numbers, telephone numbers, and other contact information of every potential suitable alternative caregiver.
      C. The incarcerated parent shall provide the department with the required information in writing within sixty days of receipt of the notification form. During that period, a parent may submit additional information or names of other caregivers using the form attached to the notice. The department shall provide the parent with a stamped, self-addressed envelope for this purpose. No additional caregiver names will be accepted after the expiration of the sixty-day period, as evidenced by a postmark.
      D. The department shall conduct an assessment of the persons named as caregivers by the incarcerated parent and shall notify the parent within ten days of completion of the assessment whether the persons named are willing and able to offer a wholesome and stable environment for the child.
      La. Ch.C. art. 1036.2. Subsection E of the article provides an example of the form that the notification must substantially follow.

      . Article 1015(4) provides that termination is appropriate based on a parent’s:
      (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.
      La. Ch.C. art. 1015(4).

      . Although the DCFS also alleged in the petition that termination was also appropriate based on La. Ch.C. art. 1015(5), failure to comply with the case plan, it did not pursue this ground at trial.

      . Article 1015(B)(6) provides:
      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.
      La. Ch.C. art. 1015(B)(6).

      . This is not a case in which an incarcerated parent sought to use his incarceration as an excuse for nonsupport. See State ex rel. C.M.O., 04-1780, p. 4 (La.App. 4 Cir. 4/13/05), 901 So.2d 1168, 1171 (holding that a parent’s responsibility to support his children is not suspended upon his incarceration and that imprisonment cannot be used as an excuse to escape parental obligations); see also State in the Interest of K.T., 02-2009 (La.App. 4 Cir. 2/21/03), 841 So.2d 67.


source: Caselaw Access Project

author: PAUL A. BONIN, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Perry LEWIS.
    No. 2011-KA-0889.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 1, 2012.

      Leon A. Cannizzaro, Jr., District Attorney, Scott G. Vincent, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Sherry Watters, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

|)The trial court accepted Perry Lewis’ guilty plea to the offense of simple possession of cocaine. Pleading under Crosby, Mr. Lewis reserved his right to appeal the trial court’s adverse pretrial ruling which had denied his motion to suppress the evidence of the cocaine. Mr. Lewis argued that the police officer’s seizure of a metallic black box and search of its contents violated his Fourth Amendment right and his Louisiana constitutional right against unreasonable searches because the officer lacked reasonable suspicion to conduct an investigatory stop as well as probable cause to search his property.

Because we conclude that Mr. Lewis discarded or abandoned the black box before he himself was seized by the police, and that he no longer had any reasonable expectation of privacy in the box or its contents, the trial judge did not abuse her discretion in denying the motion to suppress.

12Thus, we affirm his conviction and sentence. We explain our conclusions below.

I

In this Part we discuss the facts which were developed at the hearing on the motion to suppress. At the outset we emphasize that only one witness, Jaamane Roy, a New Orleans police officer testified. Mr. Lewis did not avail himself of the provisions of La.C.Cr.P. art. 703 E(l) and introduced no evidence to contradict Officer Roy’s testimony.

Officer Roy testified that he and a partner were on pro-active patrol during daylight on a New Orleans street on which there were numerous blighted and abandoned houses. Neighbors had been complaining to the police that illegal drug dealing was occurring in their neighborhood. The officers were in an unmarked car. They were not in their police uniforms but were wearing their badges around their necks.

As they turned onto the street they observed Mr. Lewis and another man sitting on the steps leading to the porch of one the abandoned houses. Officer Roy deduced that the house was abandoned because its windows were boarded up, there was no electrical meter, and there was an official sign declaring its impending governmental confiscation.

|sThe officers saw that Mr. Lewis had a black object in his hand into which his companion was looking. When Mr. Lewis and his companion noticed the officers, who were still in their car, they reacted nervously, and Mr. Lewis placed the black object on the step below him, under his legs. Officer Roy described the placement as a “throw-down.”

After this, the officers approached in their vehicle, exited the car, and told the two men to come to them. As Mr. Lewis and the other man got up to go to the officers, Mr. Lewis did not make any effort to retrieve the black object, but left it on the steps of the abandoned house.

At this point, Officer Roy seized the black object and saw that it was a black magnetic key box, the type of key box with which he is familiar from his four years of police service as something used in the illegal drug trade to transport and conceal illegal drugs. He opened the key box to inspect its contents and observed five individually wrapped rocks of cocaine.

Although Officer Roy testified that the two men were free to leave at the time the officers called to them, he later described their status as being detained while he was attending to the black object. Following his inspection of the key box’s contents, both men were arrested.

II

We turn in this Part to a consideration of the doctrines which govern the application of the exclusionary rule.

_kA

The Fourth Amendment to the U.S. Constitution, applicable to the states through the Fourteenth Amendment, protects the right of the people “against unreasonable searches and seizures.” U.S. Const. Amend. IV; see also Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Louisiana Constitution, too, protects “persons, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy.” La. Const. ART. 1, § 5. Indeed, the protection against unreasonable searches and seizures under the state constitution is in limited circumstances even greater than that under the federal constitution. See State v. Tucker, 626 So.2d 707 (La.1993) (see discussion in Part II-B, post).

“Reasonableness is always the touchstone in striking the balance between legitimate law enforcement concerns, such as officer safety, and protected individual privacy interests.” State v. Bell, 09-574, p. 14 (La.App. 4 Cir. 12/9/09), 28 So.3d 502, 512. Accordingly, any inquiry under the Fourth Amendment and Article 1, Section 5 always centers on reasonableness.

In order for a search or seizure of an item to be treasonable, it is not sufficient that an individual have a subjective expectation of privacy in that item; only when “society is prepared to accept that expectation as objectively reasonable” is the item entitled to Fourth Amendment protection. California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (noting, “society would not accept as reasonable respondents’ claim to an expectation of privacy in trash left for collection in an area accessible to the public”). This is so because “police cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.” Id. Hence, as a general rule, when an individual abandons or discards an item in public view, he no longer has an |,.¡expectation of privacy in that item which society is prepared to accept and reasonable, and, thus, the protection of the federal and state constitutions do not extend to that item. In such cases, there is “no seizure in the sense of the law when the officers examined the contents ... after it had been abandoned.” Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L.Ed. 898 (1924) (finding in the Prohibition-era case, “[t]he defendant’s own acts, and those of his associates, disclosed the jug, the jar and the bottle”).

This general rule concerning abandoned or discarded property, however, does have one exception. If the property is abandoned or otherwise disposed of as a result of any prior unlawful intrusion, it “cannot be legally seized by the police officers.” State v. Chopin, 372 So.2d 1222, 1224 (La.1979). And, of course, in order to enforce the mandates of the Fourth Amendment and La. Const. Art. 1, § 5, evidence recovered pursuant to an unconstitutional search or seizure is inadmissible. Mapp, 367 U.S. at 657, 81 S.Ct. 1684; State v. Hamilton, 2009-2205, p. 3 (La.5/11/10), 36 So.3d 209, 211.

But, as Chopin reminds us, if the property is abandoned “without any prior unlawful intrusion into a citizen’s right of freedom from governmental interference, then such property may be lawfully seized” because “[i]n such cases, there is no expectation of privacy and thus no violation of a person’s custodial rights.” Chopin, supra.

Thus, in determining whether the police are entitled to seize and search property abandoned by the defendant, the gateway inquiry is whether the abandonment of the property occurred before or after the governmental intrusion. Only if the abandonment occurred after the governmental intrusion is it necessary to determine whether the governmental intrusion was lawful or unlawful.

As a matter of law, the point at which the governmental intrusion occurs is different for the Fourth Amendment than for Article 1, Section 5.

The governmental intrusion required for triggering a Fourth Amendment inquiry includes the necessary (but not sufficient) component that “a person is ‘seized’ only when, by physical force or show of authority, his freedom of movement is restrained.” U.S. v. Mendenhall, 446 U.S. 544, 553, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (emphasis added); see also California v. Hodari D., 499 U.S. 621, 627-628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Thus, “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” Mendenhall, 446 U.S. at 554, 100 S.Ct. 1870. In the absence of restraint of the person imposed by physical force or show of authority there is no “foundation whatever for invoking constitutional safeguards.” Id. at 553, 100 S.Ct. 1870. “Mendenhall establishes that the test for existence of a show of authority’ is an objective one.” Hodari D., 499 U.S. at 628, 111 S.Ct. 1547. The test is “not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.” Id. And even “with respect to a show of authority as with respect to application of physical force” a “seizure” does not occur unless the subject yields. Id. at 626, 111 S.Ct. 1547.

Thus, when the Hodari D. defendant panicked when he saw the police car, took flight, and tossed away what appeared to be a small rock of cocaine as the police gave chase ordering him to stop, because he did not yield or comply until he was tackled, the abandoned cocaine was not the fruit of a seizure and was not thereby excluded from or suppressed for use in evidence. Id. at 623 and 629, 111 S.Ct. 1547.

17The governmental intrusion required for triggering an Article 1, Section 5 inquiry is, however, somewhat different. For the purposes of the Louisiana constitutional protection, Hodari D. only sets the limits for determining whether an actual stop has occurred. See Tucker, 626 So.2d at 712. The Hodari D. requirement that there must be an “actual stop” before property is abandoned or discarded in order to trigger any inquiry under the Fourth Amendment does not, however, fully dispose of the inquiry under Louisiana’s constitution. Id. Because citizens of Louisiana have “greater protections” than those provided by the Fourth Amendment, her citizens have “additional protections” from governmental intrusion, including protecting individuals not only from an “actual stop” but also from an “imminent actual stop.” Id. (emphasis in original), explicitly relying on State v. Belton, 441 So.2d 1195 (La.1983).

An imminent actual stop “is only when the police come upon an individual with such force that, regardless of the individual’s attempt to flee or elude the encounter, an actual stop of the individual is virtually certain.” Tucker, 626 So.2d at 712 (emphasis in original). Illustrative of the factors to be used in assessing whether the police force used was virtually certain to result in an actual stop include (1) the officers’ proximity to the individual at the outset of the encounter, (2) whether the individual is surrounded by officers, (3) whether the officers are approaching with weapons drawn, (4) the mobility of the police vis-a-vis the individual, (5) the location and characteristics of the area of the encounter, and (6) the numbers of officers involved in the encounter. Id. at 712-718.

Thus, for Louisiana constitutional purposes, it is necessary to determine whether the abandonment of the black key box by Mr. Lewis occurred before or after either an actual stop or an imminent actual stop. Only if the abandonment [ 8occurred after an actual stop or an imminent actual stop would it be necessary for us to consider the legality of the governmental intrusion.

Ill

The factual determination of when the abandonment took place is entrusted to the trial-court judge.

There is, of course, no factual question that the abandonment — as described by Officer Roy without contradiction — took place before Mr. Lewis was actually stopped by either physical force or his submission to a show of police authority. Not until after he had placed the key box on the step below him did the police approach and request compliance with any demand. Thus, the Fourth Amendment inquiry is at an end. Mr. Lewis has not shown that at the time Officer Roy searched the contents of the key box he had a reasonable expectation of privacy for Fourth Amendment purposes in the key box or its contents.

Because the Fourth Amendment “actual stop” requirement is co-extensive with and thus dispositive of Louisiana’s prong for an “actual stop” requirement, we turn then to a limited examination of the record facts to determine whether for Louisiana constitutional purposes the officers’ show of authority was virtually certain to result in an actual stop of him. Applying the illustrative factors, ante, a finding of fact that an actual stop was not virtually certain to occur at the point when Mr. Lewis discarded the key box is reasonable. The officers were out of uniform and in an unmarked car when Mr. Lewis became nervous upon seeing them and placed the key box on a lower step. Any “show of force” by the officers was negligible. While the record is not clear as to the distance between the officers’ car and Mr. Lewis on the steps, the evidence shows that at the time Mr. |9Lewis abandoned the key box he was not surrounded by the officers, and at no point does the record suggest that the officers had drawn weapons.

This factual situation is clearly distinguishable from that in Chopin, where the Louisiana Supreme Court found that the defendant’s discarding of a brown paper bag containing marijuana occurred after the police “swung the patrol car around into his path, switched on the bright lights, and braked not more than three or four feet in front of him.” Chopin, 372 So.2d at 1224-1125. The Chopin court concluded that “[s]uch an approach clearly indicated that some form of official detention was imminent.” Id. at 1225.

Mr. Lewis’ action is similar to that of the defendant in State v. Matthews, a case in which we decided that the defendant dropped the glass pipe before the officer intruded on his privacy interests. See State v. Matthews, 94-2112, p. 4 (La.App. 4 Cir. 4/26/95), 654 So.2d 868, 871. In Mat thews, the defendant was sitting on the stoop of a house when the officer in an unmarked (but obviously identifiable) police car observed him “stand up, place a clear glass tube on the step, and crush it.” Id. p. 2, at 869. There was nothing to suggest that an actual stop of the defendant was imminent. Moreover, an individual’s subjective nervous reaction to the presence or arrival of police near to him is not sufficient to conclude that an actual stop of him is reasonable. See State v. Vance, 633 So.2d 819 (La.App. 4 Cir. 2/25/94).

In our case, there is nothing in the officers’ actions as described by Officer Roy from which a reasonable fact-finder could conclude that they came upon Mr. Lewis with such force that any attempt by Mr. Lewis to flee them or elude an encounter with them was virtually certain to result in his arrest such that his abandonment of the key box resulted from such an imminent actual stop. Thus, the |inabandonment took place before, not after, any imminent actual stop, and Louisiana’s second-prong protection against “imminent actual stops” is not triggered on these facts.

Because any seizure of Mr. Lewis, whether lawful or unlawful, occurred after he had abandoned the key box, Officer Roy was free to retrieve the key box and its contents. See State v. Richardson, 09-0638, p. 6 (La.10/20/09), 23 So.3d 254, 258 (per curia m). Thus, Mr. Lewis’ abandonment of the key box containing the cocaine could not be “attributable to any prior illegality by the police.” Id. p. 3, at 256.

IV

Importantly, in order to obtain a hearing on a motion to suppress evidence, the defendant must allege facts that show he has a reasonable expectation of privacy in the item seized. See La.C.Cr.P. Art. 703 E(l) (“An evidentiary hearing on a motion to suppress shall be held only when the defendant alleges facts that would require the granting of relief.”); see also Chopin, 372 So.2d at 1224 (noting when a citizen abandons property without any prior unlawful governmental intrusion, “there is no expectation of privacy”). Then, at the suppression hearing, the prosecution bears the burden of proving the admissibility of evidence seized without a warrant. La. C.Cr.P. Art. 703 D. Typically, unless justified by narrowly drawn exceptions to the warrant requirement, searches and seizures conducted without warrants issued on probable cause are per se unreasonable. State v. Surtain, 2009-1835, p. 7 (La.3/16/10), 31 So.3d 1037, 1043, citing Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). But when the property is abandoned by the defendant before — not after — any governmental intrusion (whether actual stop or imminent actual stop) with the defendant’s | n privacy interests, the search or seizure is not unreasonable because the defendant had no reasonable expectation of privacy in the abandoned property.

In light of the uncontradicted testimony of Officer Roy, the trial-court judge denied his motion to suppress. An appellate court ultimately reviews a finding of reasonableness in the context of correctly applying the exclusionary rule under the de novo standard. See State v. Pham, 01-2199, p. 4 (La.App. 4 Cir. 1/22/03), 839 So.2d 214, 218. Aside from the ultimate determination of reasonableness, a trial court’s determination of a motion to suppress evidence is entitled to great weight and will not be set aside absent an abuse of discretion. See State v. Wells, 2008-2262, p. 5 (La.7/6/10), 45 So.3d 577, 581; see State v. Pham, supra.

Because the trial-court judge properly applied the legal doctrines governing the invocation of the exclusionary rule to un-contradicted facts, we conclude that she did not abuse her discretion by denying Mr. Lewis’ motion to suppress the evidence. Moreover, because the suppression ruling is correct, there is no impediment to Mr. Lewis’ guilty plea and resulting conviction.

DECREE

The conviction and sentence of Perry Lewis are affirmed.

AFFIRMED

BELSOME, J., concurs in the result.

      . See State v. Crosby, 338 So.2d 584 (La.1976). Mr. Lewis, it is noted, had previously applied for us to exercise our supervisory authority in connection with the pretrial ruling; we denied the application, noting that he had an adequate remedy on appeal in the event he was convicted. See State v. Lewis, 2010-1443 (La.App. 4 Cir. 10/13/10) (unpub.).

      . The trial judge sentenced Mr. Lewis to five years in the custody of DOC, which was suspended, placed him on active probation for a period of five years, and explicitly imposed the sentence under the provisions of La. C.Cr.P. art. 893. Notably, as we always do, we have reviewed the entire record for errors patent and have detected none. See La. C.Cr.P. art. 920(1).

      . La.C.Cr.P. art. 703 E(l) permits a defendant to testify at the hearing "without being subjected to cross-examination on other matters” and his testimony cannot be used by the prosecution “except for the purpose of attacking the credibility of the defendant's testimony at the trial on the merits.”


author: DECUIR, Judge.

text:
    STATE of Louisiana and the Vermilion Parish School Board v. The LOUISIANA LAND AND EXPLORATION COMPANY, et al. State of Louisiana v. Louisiana Land and Exploration, et al. State of Louisiana, et al. v. Louisiana Land and Exploration, et al.
    Nos. 10-1341, 11-843, 11-1016.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.
    Rehearing Denied March 21, 2012.

      Donald T. Carmouche, Victor L. Marcel-lo, John H. Carmouche, William R. Coe-nen, III, John St. DuPont, Brian T. Car-mouehe, Ross J. Donnes, D. Adele Owen, Talbot, Carmouche & Marcello, Baton Rouge, LA, Grady J. Abraham, Attorney at Law, Lafayette, LA, Calvin E. Wood-ruff, Jr., Attorney at Law, Abbeville, LA, for Plaintiffs/Appellants, State of Louisiana, Vermilion Parish School Board.
    L. Victor Gregoire, Michael R. Phillips, Linda S. Akchin, Alan J. Berteau, Kean Miller, LLP, Baton Rouge, LA, K. Wade Trahan, Ottinger Hebert, L.L.C., Lafayette, LA, Robert G. Meadows, Carol M. Wood, Shelby E. Wilson, King & Spalding, Houston, TX, for Defendants/Appellees, Chevron U.S.A., Inc., Carrollton Resources, LLC, Chevron Midcontinent, LP, Union Oil Company of California, Union Exploration Partners.
    Court composed of OSWALD A. DECUIR, BILLY HOWARD EZELL, and JAMES T. GENOVESE, Judges.
   DECUIR, Judge.

|Jn this environmental remediation case, the State of Louisiana and the Vermilion Parish School Board contest three adverse rulings by three separate courts. These three matters have been consolidated for this appeal.

FACTS

The State of Louisiana and the Vermilion Parish School Board (hereinafter collectively “School Board”) seek remediation of a polluted sixteenth section of property in Vermilion Parish owned by the State and managed by the Vermilion Parish School Board. The pollution is alleged to be extensive and to be a threat to the fish, wildlife, and the safety of the seafood supply in the White Lake area. The Defendants are: Union Oil Company of California and Union Exploration Partners (collectively “Unocal”), Carrollton Resources, LLC, Chevron U.S.A., Inc., and Chevron Midcontinent, L.P. A mineral lease was granted on the property in 1935, and oilfield operations commenced in 1940.

Unocal admitted that it was responsible for environmental damage on the property and filed a motion to refer the case to the Louisiana Department of Natural Resources (LDNR) as required by Act 312 of 2006. See La.R.S. 30:29(C). The School Board objected, arguing that such a referral could not take place until all of the Defendants admitted responsibility, and the private claims were tried to the jury. The trial court agreed with the School Board. Unocal sought writs in this court (CW10-666) and the supreme court (2010-CC-1796). These writ applications were denied. See Germany v. ConocoPhillips Co., 07-1145 (La.App. 3 Cir. 3/5/08), 980 So.2d 101, writ not considered, 08-1161 (La.9/19/08), 992 So.2d 960; Bernard v. BP Am. Prod. Co., 07-1249 (LaApp. 3 Cir. 4/2/08), 981 So.2d 73; Tensas Poppadoc, Inc. v. Chevron USA Inc., 07-927 (LaApp. 3 Cir. 5/21/08), 984 So.2d 223. (Holding that such a conclusion is in accord with this ^court’s prior holding that an oilfield remediation ease should be tried in its entirety before the case is referred to the LDNR).

Unocal then filed a motion for partial summary judgment limiting the School Board’s remediation damage claims to the amount needed to fund the “feasible plan” mandated by Act 312. Unocal argued that Act 312 acts as a substantive cap on remediation damages resulting from a tort or the implied restoration obligation of a mineral lease. The trial court agreed.

The School Board filed a writ application to this court which was denied (CW10-1310). While the writ application was under consideration, the School Board filed a motion in the trial court seeking to have Act 312 declared unconstitutional as applied. This motion was denied. The trial court’s rulings on the motion for partial summary judgment and the motion to have Act 312 declared unconstitutional were certified as final judgments. The School Board lodged an appeal (CA11-843).

In the second of the consolidated matters before us, the School Board filed a writ to this court (CW10-1341), alleging that the trial court erred in allowing Chevron U.S.A., Inc. to amend its answer to reverse its prior admission that it was a successor in interest to Unocal. Prior to this court acting on the writ, the trial court ordered a limited deposition concerning the relationship between Chevron U.S.A., Inc. and Unocal. After the deposition, the trial court granted Chevron U.S.A., Inc.’s motion for summary judgment and dismissed it from the suit. The School Board filed a suspensive appeal (CA11-1016) from the trial court’s judgment. This court granted the School Board’s writ application for the sole purpose of consolidating it with the School Board’s suspensive appeal of the trial court’s grant of summary judgment in favor of Chevron U.S.A., Inc., and both | .¡these matters were consolidated with the School Board’s appeal from the partial summary judgment in favor of Unocal.

GRANT OF PARTIAL SUMMARY JUDGMENT RELATING TO EXCESS REMEDIATION DAMAGES

The School Board contends that the trial court erred in granting partial summary judgment in favor of Unocal. Specifically, the School Board argues that the trial court erred in limiting remediation damages to the amount required to implement the “feasible plan” as determined under Act 312. We agree.

An appellate court reviews summary judgments de novo, applying the same criteria as the district court in determining whether summary judgment is appropriate. Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991). A motion for summary judgment is properly granted when the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

In this case, we are called upon to decide a dispute between the parties over the interpretation of Act 312 of 2006, specifically La.R.S. 30:29. We must decide whether Act 312 of 2006 limits the amount of Plaintiffs recoverable remediation damages to the cost of the “feasible plan” selected through application of La.R.S. 30:29.

The interpretation of a statutory provision starts with the language of the provision itself. Sabine Parish Police Jury v. Comm’r of Alcohol & Tobacco Control, 04-1833 (La.4/12/05), 898 So.2d 1244.

“When the language of the law is susceptible of different meanings, it must be interpreted as having the meaning that best conforms to the purpose of the law, “and the meaning of ambiguous words” must be sought by examining the context in which they occur and the text of the law as a whole.” La.Civ.Code arts. 10 and 12; 14Sabine, 898 So.2d at 1250. However, “[wjhen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written, and no further interpretation may be made in search of the intent of the legislature.”

La.Civ.Code art. 9; Sabine, 898 So.2d at 1250.

Louisiana Revised Statutes 30:29 provides in pertinent part (emphasis added):

§ 29. Remediation of oilfield sites and exploration and production sites
A. The legislature hereby finds and declares that Article IX, Section 1 of the Constitution of Louisiana mandates that the natural resources and the environment of the state, including ground water, are to be protected, conserved, and replenished insofar as possible and consistent with the health, safety, and welfare of the people and further mandates that the legislature enact laws to implement this policy. It is the duty of the legislature to set forth procedures to ensure that damage to the environment is remediated to a standard that protects the public interest. To this end, this Section provides the procedure for judicial resolution of claims for environmental damage to property arising from activities subject to the jurisdiction of the Department of Natural Resources, office of conservation. The provisions of this Section shall be implemented upon receipt of timely notice as required by Paragraph (B)(1) of this Section. The provisions of this Section shall not be construed to impede or limit provisions under private contracts imposing remediation obligations in excess of the requirements of the department or limit the right of a party to a private contract to enforce any contract provision in a court of proper jurisdiction.
(5) The court shall adopt the plan approved by the department, unless a party proves by a preponderance of the evidence that another plan is a more feasible plan to adequately protect the environment and the public health, safety, and welfare. The court shall enter a judgment adopting a plan with written reasons assigned. Upon adoption of a plan, the court shall order the party or parties admitting responsibility or the party or parties found legally responsible by the court to fund the implementation of the plan.
(6)(a) Any judgment adopting a plan of evaluation or remediation pursuant to this Section and ordering the party or parties admitting responsibility or the party or parties found legally responsible by the court to deposit funds for the implementation thereof into the registry of the court pursuant to this Section shall be considered a final judgment pursuant to the Code of Civil Procedure Article 2081 et seq., for purposes of appeal.
| s(b) Any appeal under this Section shall be a de novo review and shall be heard with preference and on an expedited basis.
(c) The appellate court may affirm the trial court’s adoption of a plan or may adopt a feasible plan in conformity with this Section and shall issue written reasons for its decision.
G. The provisions of this Section are intended to ensure evaluation or remediation of environmental damage. If the court finds that no environmental damage exists, the court may dismiss the department or attorney general from the litigation without prejudice.
H. This Section shall not preclude an owner of land from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section. Nor shall it preclude a judgment ordering damages for or implementation of additional remediation in excess of the requirements of the plan adopted by the court pursuant to this Section as may be required in accordance with the terms of an express contractual provision. Any award granted in connection with the judgment for additional remediation is not required to be paid into the registry of the court. This Section shall not be interpreted to create any cause of action or to impose additional implied obligations under the mineral code or arising out of a mineral lease.

The judgment of the trial court and arguments of Unocal notwithstanding, we find the language of the statute to be clear and unambiguous. On the issue of whether an owner of land may recover remediation damages in excess of those provided under the feasible plan, section H of La. R.S. 30:29 (emphasis added) provides the answer: “This section shall not preclude an owner of land from pursuing a judicial remedy or receiving a judicial award for private claims suffered as a result of environmental damage, except as otherwise provided in this Section.” The clear language of the statute contemplates the landowner receiving an award in addition to that provided by the feasible plan.

Unocal would have us focus on the next sentence of the section which refers to additional remediation damages available by express contractual agreement. Unocal argues that this is the only additional remediation damage which a |f,landowner may recover. This argument completely ignores the fact that the sentence starts with the phrase: “Nor shall it preclude.” Thus, the first provision guarantees the landowners’ right to seek a judicial remedy and protects the landowners’ right to recover for private claims. The second provision provides that the landowners’ rights to recover additional damage under the terms of a contract are protected. Accordingly, we reject Unocal’s argument and hold that La.R.S. 30:29, by its clear language, provides for a landowner to recover damages in excess of those determined in the feasible plan whether they be based on tort or contract law. The judgment of the trial court granting partial summary judgment in favor of Unocal is reversed.

Though we have found the language of the statute to be clear and unambiguous and need not determine legislative intent, we note that the statute is clear on its face in that regard as well. It specifically provides, “[i]t is the duty of the legislature to set forth procedures to ensure that damage to the environment is remediated to a standard that protects the public interest” and “[t]he provisions of this Section are intended to ensure evaluation or remedia^ tion of environmental damage.” La.R.S. 30:29(A) & (G). Arising from the supreme court’s clear language in Corbello v. Iowa Prod., 02-826 (La.2/25/03), 850 So.2d 686, regarding the lack of a legislative scheme to protect the public interest in the remediation of oilfield lands, Act 312 provides a vehicle for the State to intervene in private litigation. In so doing, the private interests of the landowner are juxtaposed against the public interest of the State in order to insure that remediation is actually carried out. However, the statute does not require the State to intervene, nor does it preclude the State from taking independent civil or administrative action regardless of the outcome of the private litigation. La.R.S. 30:29(B). We do not see, nor does Unocal demonstrate, how allowing landowners |7to recover excess remediation damages thwarts the express purpose of the statute. To the contrary, limiting the landowners’ damages would seem to remove some of the incentive for a landowner to engage in the costly and extended litigation necessary to resolve this type of claim.

Likewise, we find Unocal’s reliance on Marin v. Exxon Mobil Corp., 09-2368 (La.10/19/10), 48 So.3d 234, for the proposition that the School Board’s recovery of tort damages for restoration is limited to the regulatory standard in Act 312, is misplaced. In Marin, the court first found that the plaintiffs tort claims had prescribed. In this case, Unocal has not alleged prescription. Accordingly, the comments of the court in Marin regarding the possible damages available to the plaintiffs for restoration or remediation are inapplicable. The availability of such damages to the School Board 'will depend on the facts and circumstances of the case.

We need not address the School Board’s argument that Act 312 is unconstitutional as applied by the trial court because we have overturned the lower court’s judgment.

SUMMARY JUDGMENT IN FAVOR OF CHEVRON U.S.A.

The School Board next contends that the trial court erred in allowing Chevron U.S.A., Inc. to amend its pleadings and in granting summary judgment dismissing them from the case. We agree.

This suit was filed in September 2004, and Chevron U.S.A., Inc. was named as a defendant via amended petition in 2007. In October 2008, Chevron U.S.A., Inc. filed an answer stating that it is a successor in interest to Unocal. Chevron U.S.A., Inc. participated in the lawsuit until 2010 when it sought leave to amend its answer to state that it is not a successor in interest to Unocal. The trial court granted leave to amend and, after allowing the School Board a limited deposition 18on the issue of Chevron U.S.A., Inc.’s successor status, granted Chevron U.S.A., Inc.’s motion for summary judgment and dismissed them from the case.

We find that the trial court erred in granting summary judgment in this case. It seems, at the very least, that there is a genuine issue of material fact as to whether Chevron U.S.A., Inc. is a successor in interest to Unocal. It took Chevron U.S.A., Inc. three years to determine that it had erred in its initial declaration that it was a successor in interest to Unocal. In making its determination, Chevron U.S.A., Inc. relied, at least in part, on the contents of service agreements that it maintained with Unocal. The School Board has not had access to these agreements and was allowed only a very limited deposition regarding the successor status of Chevron U.S.A., Inc.

DECREE

For the foregoing reasons, the judgment of the trial court granting partial summary judgment on the issue of remediation damages is reversed. In addition, the judgment of the trial court granting summary judgment and dismissing Chevron U.S.A., Inc. from the case is reversed. The case is remanded for further proceedings in both instances. All costs of these proceedings are taxed equally among the Defendants.

REVERSED AND REMANDED.


text:
    Paula GRAY v. MARRIOTT RESIDENCE INN.
    No. 2011-CA-1068.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 1, 2012.

      Paula Gray, Smyrna, GA, In Proper Person/Appellant.
    Darcy E. Decker, Roger Anthony Javier, The Javier Law Firm, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge CHARLES R. JONES, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

11 Paula Gray appeals the judgment of the Office of Workers’ Compensation in favor of her employer, Marriott Residence Inn, which judgment denied her benefits. The OWC-judge concluded that Ms. Gray did not prove by a preponderance of the evidence that her injuries arose out of and in the course of her employment and that she had sustained an on-the-job accident.

We have reviewed the OWC-judge’s findings under the specific manifest error standard applicable to workers’ compensation matters and conclude that the judge’s factual findings are not clearly wrong and they are reasonable. Based upon that review, we affirm the judgment of the OWC denying Ms. Gray benefits and explain our decision below.

I

In this Part we set out the facts developed at the trial and the OWC-judge’s findings.

A

Ms. Gray filed a disputed claim for compensation on October 6, 2009, which alleged that she was injured in November 2008 while working at the Marriott. Ms. Gray sought wage-indemnity benefits and medical treatment. Marriott filed an 12answer which denied that an accident had taken place and that Ms. Gray was entitled to any workers’ compensation benefits.

The parties appeared for trial on January 10, 2011, wherein Ms. Gray represented herself. The parties stipulated that:

1. At the time of the alleged accident, Ms. Gray was an employee of Marriott.
2. At the time of the alleged accident, Ms. Gray earned $12.50 per hour.
3. Marriott did not pay any indemnity benefits to Ms. Gray.
4. Marriott was self-insured at the time of the alleged accident.

Ms. Gray testified that on a Sunday morning in November 2008, she was getting keys and clipboards ready for the start of the day. As she walked towards the exit, Kim, a fellow employee, asked a question. Ms. Gray stated that as she turned to answer, her right pant leg was caught by a screw and held her back. Ms. Gray explained that then, as she moved forward, the screw threw her. Ms. Gray stated that as she was bracing herself with her left arm, she fell to her right side. Her shoulder hit a laundry basket. Next, as she tried to brace herself with her left arm, she went down on her right side and her left shoulder caught the basket. Ms. Gray stated that Kim phoned Matthew Bracken, her supervisor, and that Mr. Bracken and a maintenance worker came to the scene of the alleged accident. Ms. Gray stated that Mr. Bracken had the maintenance worker fix the screw. After composing herself, Ms. Gray stated that she returned to work, waiting to hear back from Mr. Bracken about her accident report. Ms. Gray testified that she worked the rest of her scheduled days that week. Ms. Gray stated that after her scheduled days off, she returned to work and was informed that she had been dismissed.

13After her dismissal, Ms. Gray stated that she left Mr. Bracken several voice-mails regarding her accident and that she also contacted the claims department. Ms. Gray stated that the claims department had no knowledge of her accident. When questioned whether she requested workers’ compensation benefits in writing, Ms. Gray stated that her accident was mentioned during the unemployment benefits hearing. Ms. Gray further stated that she sent a letter directly to Mr. Bracken. Ms. Gray, however, could not produce a copy of any such letter.

Ms. Gray submitted several documents related to her claim for unemployment benefits made after her termination by the Marriott. Ms. Gray contended that the Marriott had notice of her accident as a result of the unemployment proceedings as the accident was mentioned during the unemployment proceedings.

Ms. Gray also explained that she had been in a motor vehicle accident on October 30, 2008. At the time of the alleged work-related fall, she was receiving treatment for injuries sustained in the motor vehicle accident. Ms. Gray stated that a truck backed into her left side. Ms. Gray received injuries to her left knee, her neck, and her left shoulder. Importantly, Ms. Gray admitted that she did not mention to the doctor that she sustained more injuries as the result of the alleged work-related fall. But Ms. Gray stated that she did inform the physical therapist of the injuries she sustained as a result of the work-related fall and that the physical therapist treated her for the injuries she sustained as a result of the alleged work-related fall.

14Mr. Bracken testified that he was employed as a supervisor by Marriott and that the first report by Ms. Gray of an injury received during her employment with Marriott was on September 23, 2009. Mr. Bracken described the corporate procedure once an injury on the premises is received. An accident report is filled out, and the corporate claims department receives notification. Once the corporate claims department is notified, that department issues a claims reference number. Mr. Bracken then identified the accident report dated September 23, 2009, that he prepared after receiving notice of Ms. Gray’s alleged accident and the claims reference number he received from the corporate claims department.

Mr. Bracken testified that Ms. Gray was suspended for failing to perform her job duties. Namely, Ms. Gray failed to insure that housekeeping keys were returned and to insure that data entered into the computer was correct. Mr. Bracken stated that the authority to terminate employees rests with the general manager. Ultimately, Ms. Gray was terminated on December 16, 2008.

To Ms. Gray’s assertion that Mr. Bracken was notified on the day of the accident, a Sunday, and had a maintenance man repair the screw she allegedly tripped over, Mr. Bracken responded that he had no knowledge of the accident until September 23, 2009. Further, Mr. Bracken testified that maintenance employees are not scheduled to be on the premises over the weekend.

B

The OWC-judge issued written reasons for her judgment. Therein, the judge noted that Ms. Gray did not call Kim, the coworker who witnessed the accident, to testify. The judge also noted that Mr. Bracken contradicted Ms. Gray’s testimony. The judge specifically found Mr. Bracken to be “very credible.” The judge also |fifound Mr. Bracken’s actions in reporting the accident on September 23, 2009, to the corporate claims department supported his version of the events and believed that had Mr. Bracken known of the alleged injury at an earlier time, he would have reported it at that time based on his actions of September 23, 2009.

The judge observed that Ms. Gray’s medical records did not corroborate her version of the alleged incident. While Ms. Gray claimed that she informed the physical therapist of the alleged work-related fall and that she received treatment on her right side for the injuries suffered from the fall, the record of the physical therapist indicates that Ms. Gray reported pain on her left side and that she received treatment on the left side of her body. Further, the records of the physical therapist do not note that Ms. Gray mentioned that she suffered a work-related injury.

Ms. Gray testified that she received medical treatment in Georgia from clinics and the emergency room, but she submitted no evidence that any treatment she received resulted from the work-related accident. The discharge report dated November 22, 2010, from the Well Star Emergency Center revealed that Ms. Gray was treated for hypertension and back pain. The paperwork submitted does not mention the cause of the back pain, and it does not relate the back pain to a work-related accident.

We now turn to the standard by which we review the OWC-judge’s findings.

II

The appropriate standard of review to be applied by the appellate court to the OWC-judge’s findings of fact is the “manifest error-clearly wrong” standard. Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117. Thus, lathe findings of the OWC-judge will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So.2d 706, 710. If the fact-finder’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the fact-finder, it would have weighed the evidence differently. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 8 (La.7/1/97), 696 So.2d 551, 556, quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990).

Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review even though the appellate court may feel that its own evaluations and inferences are more reasonable. Stobart v. State, through Dept. of Transp. & Development, 617 So.2d 880, 882 (La.1993). Deference is due to the fact-finder’s determinations regarding the credibility of witnesses “for only the fact-finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Unless “documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story,” we will defer to the trial judge’s credibility determination. Id. at 844-845.

The employee — in this case, Ms. Gray— bears the burden of proving “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031 A; Thibodeaux v. Sewerage & Water Bd. of New Orleans, 01—0713,7 p. 3 (La.App. 4 Cir. 3/6/02), 812 So.2d 843, 845. “Accident” is defined as “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).

“It is well-established that an allegedly injured employee’s testimony alone may be sufficient to discharge his burden of proof.” Duran v. Turner Industries Group, LLC, 11-0210, pp. 3-4 (La.App. 4 Cir. 7/20/11), 70 So.3d 1074, 1076. But two elements must be satisfied for the OWC-judge to accept the worker’s testimony by itself. Id. First, “no other evidence discredits or casts serious doubt upon the employee’s version of the incident” and, second, “the employee’s testimony is corroborated by the circumstances following the alleged incident.” Id.

Ill

Guided by our review standard, in this Part we explain why the entire record supports the OWC-judge’s reasonable findings that Ms. Gray’s injuries did not arise from an on-the-job accident.

The judge importantly and correctly noted that Ms. Gray’s testimony was not corroborated by any witness or documentary evidence. The supposed eyewitness co-worker, Kim, did not testify. The medical records lack any mention of a work-related accident. The medical records document only injuries sustained in the automobile accident. Dr. Alden’s reports dated December 10, 2008, and January 21, 2009, specifically contradict Ms. Gray’s claims when stating that “[tjhere are no new accidents or injuries to report.”

|sMs. Gray claimed that she left voice-mails for Mr. Bracken reporting the accident and that the Marriott did not provide any medical treatment. Ms. Gray claimed she did not mention the work-related accident to the doctor because he was treating her for the automobile accident. More telling, however, is that Ms. Gray’s claim that she received treatment on her right side for injuries resulting from the on-the-job accident finds no documentation, me-morialization, or even corroboration from the physical therapist’s records. The physical therapist noted complaints of pain on the left side of Ms. Gray’s body, and reasonably might be viewed as contradicting Ms. Gray’s claims of treatment on her right side.

Other inconsistencies or discrepancies between Ms. Gray’s testimony and the documentary evidence, or lack of it, do not support a finding that the OWC-judge’s findings were clearly wrong. For example, Ms. Gray testified that the Marriott should have known of the alleged work-related accident due to the course of proceedings in her claim for unemployment benefits. Ms. Gray submitted a copy of the letter she sent requesting an appeal of the denial of her claim for unemployment benefits. In the letter, Ms. Gray mentioned a work-related injury. There is, however, no proof in the record that the Marriott received a copy of this letter. Also, the disputed claim for compensation filled out by Ms. Gray states that she fell on her left knee during the alleged work-related accident. During her testimony at trial, however, Ms. Gray testified that she was trying to brace herself with her left arm and she fell to the right side and at no time during the trial testified that she received injuries to her left knee during the alleged work-related accident. These discrepancies support the OWC-judge’s findings of fact.

|9The factual findings of the OWC-judge are reasonable in light of the record in its entirety. The judge had the opportunity to view the witnesses as they testified and to observe changes in tone and demeanor. Based upon our review of the record, the workers’ compensation judge was reasonable in finding Mr. Bracken credible. His story is not contradicted by documentary or other objective evidence, and it is not internally inconsistent or implausible. The testimony and evidence received, as well as the documents filed in the record, cast serious doubt upon Ms. Gray’s version of an on-the-job accident, and her version was not corroborated by circumstances following the alleged work-related accident. Thus, we find the judge’s findings of fact are not clearly wrong and are reasonable.

DECREE

Accordingly, the judgment of the Office of Workers’ Compensation in favor of the Marriott Residence Inn, dismissing the claim of Paula Gray with prejudice is affirmed. All costs are taxed to Paula Gray. See La. C.C.P. art. 2164.

AFFIRMED.


author: GREMILLION, Judge. PETERS, J.,

text:
    Kimberly Crittenden DAIGLE v. MERRILL LYNCH, et al.
    No. CA 11-965.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 8, 2012.

      Gerald H. Schiff, Ashley S. Green, Daniel J. Finch, Gordon, Arata, McCollam, Duplantis & Eagan, LLC, Lafayette, LA, for Plaintiff/Appellee, Kimberly Crittenden Daigle.
    Charles G. Fitzgerald, Cox Fitzgerald, L.L.C., Lafayette, LA, for Defendant/Appellant, Kenneth Paul Daigle.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

[ |The defendant-appellant, Kenneth Paul Daigle (Daigle), appeals the judgment in favor of the plaintiff-appellee, Kimberly Crittenden Daigle (Crittenden), sustaining her exception of res judicata. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Daigle and Crittenden were married in April 1994. In October 2002, they jointly filed a Petition for Approval of Matrimonial Regime of Separation of Property and entered into a Partition of Community Property Agreement. In March 2005, Crittenden filed a petition for divorce from Daigle. On April 15, 2005, Daigle filed a Petition to Annul Partition of Community Property agreement on account of lesion. Crittenden responded by filing peremptory exceptions of res judicata, no cause of action, no right of action, and prescription. Following a June 17, 2005 hearing, the trial court sustained the peremptory exception of res judicata and dismissed Dai-gle’s petition to annul the partition agreement. Daigle appealed, and on appeal, in Daigle v. Daigle, 06-346 (La.App. 3 Cir. 9/27/06), 940 So.2d 891, writ denied, 06-2914 (La.2/16/07), 949 So.2d 418, we declined to partition the community property as being barred by res judicata. However, we excised a portion of the community property agreement that obligated Daigle to pay Crittenden for the rest of her natural life as being against public policy.

The litigation between the former spouses continued when, on June 1, 2005, Crit-tenden filed a “Petition for Monies Due, Damages, and for Physical Possession of Property” against Daigle, and his employer, Merrill Lynch, urging that Daigle had failed to pay her the $150,000 yearly sum he agreed to in the community property partition. Crittenden further argued that Merrill Lynch was cooperating | {¡with Dai-gle in failing to turn over certain items that belonged to her pursuant to the community property partition agreement.

Daigle filed a “Declinatory Exception Pleading Lis Pendens” arguing that Crit-tenden’s June 2005 petition arose out of the same transaction or occurrence that is the subject matter of his April 15, 2005 petition to annul community property. Merrill Lunch filed a “Motion to Stay and Exception of Vagueness.” The trial court overruled Daigle’s Exception pleading Lis Pendens. Daigle filed supervisory writs with this court regarding the trial court’s overruling of his exception pleading lis pendens, which were denied.

In November 2005, Daigle filed an “Answer, Affirmative Defenses and Recon-ventional Demand.” Crittenden filed exceptions of lis pendens and vagueness in response to Daigle’s reconventional demand.

On December 22, 2005, Daigle filed a Motion for Summary Judgment arguing that the matrimonial agreement was absolutely null requiring the dismissal of all causes of action asserted by Crittenden in her “Petition for Monies Due, Damages and for physical Possession of Property.” Crittenden filed a cross-motion for summary judgment in February 2006. In March 2006, the trial court granted Merrill Lynch’s motion for stay pending the outcome of mandatory arbitration between Crittenden and Merrill Lynch.

In February 2008, Daigle filed a “Motion for Leave of Court to File First Amending and Supplemental Answer, Affirmative Defenses and Reconventional Demand.” Crittenden opposed Daigle’s Motion urging that Daigle was trying to litigate issues that we had disposed of pursuant to the 2006 opinion. Crittenden requested sanctions. Various memoranda were filed back and forth pursuant to these motions.

|sIn July 2008, Crittenden filed a “Motion and Order Directing Merrill Lynch, Pierce, Fenner, & Smith, Incorporated to Transfer Funds Pursuant to Partition Agreement.”

Daigle filed “Combined Motion for Continuance and Dilatory Exceptions” in July 2008. Crittenden filed an opposition. In September 2008, Crittenden filed a “First Supplemental and Amended Petition for Relief, Damages and Attorneys fees and Return of Funds Held by Defendants illegally and in Violation of Partition Agreement.” Daigle filed a rule to show cause in October 2008. In November 2008, Crit-tenden filed a motion to produce. In December 2008, Crittenden filed a “Petition for Sanctions as against Kenneth Paul Dai-gle and for Injunctive Relief Including a Mandatory Injunction.”

In December 2008, Crittenden filed a “Petition to make Judgment Executory and for Garnishment.” In January 2009, Daigle filed dilatory and peremptory exceptions arguing that Crittenden’s Petition to make Judgment Executory represented the unauthorized use of executory proceedings, was premature, and was, otherwise, barred by res judicata and failed to sufficiently plead a cause of action. Shortly thereafter, Crittenden filed a “Motion for Appropriate Hearing.”

A January 2009 judgment next appears in the record making executory the Partition of Community Property Agreement executed in October 2002, including a $300,000 payment to Crittenden and $150,000 per year in accordance with the Partition of Community Property Agreement. Crittenden filed a motion to examine judgment debtor, motion for garnishment, and request for writ of fieri facias in February 2009.

In the meantime, Daigle filed for Chapter 13 Bankruptcy Protection. Crittenden thereafter withdrew the garnishment proceedings in accordance with bankruptcy law. In September 2010, Crittenden filed a petition for garnishment of [4wages against LPL Financial Corporation. In October 2008, she filed a petition for garnishment of wages against Ahrens Investment Partners, LLC.

In November 2010, Daigle filed a “Petition for Declaratory Judgment, Combined with Ex Parte Nullity Actions, Motion for Entry Upon Land to Appraise Movables, and Request for Status Conference.” In December 2010, Crittenden filed “Peremptory Exceptions of No Cause of Actions and Res Judicata and Declinatory Exception of Improper Venue.

Following a December 13, 2010, hearing on Daigle’s November 2010 motion and Crittenden’s December 2010 motions, the trial court rendered judgment:

[T]he Judgment rendered and signed in the above-entitled and numbered proceeding on January 12, 2009, be and is hereby annulled for want of jurisdiction and improper substantive amendments. Accordingly, Kenneth Paul Daigle’s motion for said relief is hereby granted, and the exception of no cause of action filed by Kimberly Crittenden Daigle in opposition thereof is denied.
[A]ny and all garnishment order and/or writs of fieri facias relating to and originating from the Judgment dated January 12, 2009, be and are hereby revoked, recalled, and otherwise rendered without legal effect. Kenneth Paul Daigle’s motion for said relief is hereby granted, and the exception of no cause of action filed by Kimberly Crittenden Daigle in opposition thereof is denied.
Kimberly Crittenden Daigle’s exception of res judicata is hereby sustained, and the Declaratory Action Concerning the Nature of the Installment Payments filed by Kenneth Paul Daigle is dismissed as a consequence thereof.
[T]he exception of res judicata is also sustained as it relates to any and all actions and/or defenses concerning the nature of the installment payments as either spousal support (La. Civ.Code arts. 111, 112) or an equalization payment (La.R.S. 9:2801(A)(4)(d)) are hereby dismissed, including, without limitation, the causes of action and/or defenses asserted by Kenneth Paul Daigle pursuant to Articles 112, 1759, and 2003 of the Louisiana Civil Code.
| ¡/Daigle appeals and assigns as error:
1. The Trial Court erred in sustaining Kimberly Crittenden Daigle’s Exception of Res Judicata as it relates to Kenneth Paul Daigle’s Declaratory Action Concerning the Nature of Installment Payments as either spousal support or an equalization payment.
2. The trial court erred in sustaining Kimberly Crittenden Daigle’s Exception of Res Judicata as it relates to the cause of action asserted by Kenneth Paul Daigle pursuant to La.Civ.Code art. 112(C).
3. The trial court erred in sustaining Kimberly Crittenden Daigle’s Exception of Res Judicata as it relates to the defense asserted by Daigle pursuant to La.Civ.Code arts. 1759 and 2003.

Subsequent to the motion for appeal, Crittenden filed a motion for leave to amend her petition. Her supplemental and amending petition sought enforcement of the contract for separation of property and partition agreement, qualified domestic relations order, legal interest, and attorney’s fees. Daigle filed an opposition to that motion and, alternatively, he filed a “Motion to Quash Absolutely Null Order and Declinatory Exception Pleading Lack of Subject Matter Jurisdiction.” Critten-den filed a reply. In February 2011, she filed a motion for entry of order, and in March 2011, she filed a motion for transfer of funds.

Although a Notice of Signing of Judgment appears in the record indicating that judgment was rendered and signed on May 2, 2011, there is no copy of this judgment in the record.

DISCUSSION

Res Judicata

Louisiana Revised Statute 13:4231 states:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the | (¡subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

We review the trial court’s grant of res judicata under the manifest error standard if raised prior to the case being submitted and evidence is submitted by both parties. Steckler v. Lafayette Consol. Gov’t, 11-427 (La.App. 3 Cir. 11/2/11), 76 So.3d 161. Res judicata bars the relitigation of issues when there is a valid and final judgment and certain factors exist: (1) the parties are the same as in the original suit, (2) the cause(s) of action in the second suit existed at the time the judgment in the first suit was rendered, and (3) the same relief is demanded in the second suit as was in the first suit. Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049; In re Succession of Carlton, 11-288 (La.App. 3 Cir. 10/5/11), 77 So.3d 989. The burden rests with the mover. Steckler, 76 So.3d 161.

Daigle’s argument is that the issues presented in his November 2010 declaratory judgment action were not in existence at the time of the October 22, 2002 or August 24, 2005 judgments. We disagree and find no manifest error in the trial court’s ruling granting Crittenden’s exceptions of res judicata.

Daigle argues that the declaratory judgment sought to clarify whether certain provisions were spousal support or an equalizing sum, whereas in the original action he sought recision of the entire partition agreement because of lesion. He claims that his declaratory judgment arose out of our ruling in Daigle v. Daigle, |706—346 (La.App. 3 Cir. 9/27/06), 940 So.2d 891, writ denied, 06-2914 (La.2/16/07), 949 So.2d 418, and not out of the 2005 nullity action.

Daigle’s second assignment of error is essentially an extension of the first in that it requires that his declaratory judgment be litigated in order to determine that the installment provisions are null and void under the plain language of La.Civ.Code art. 112(c). He again argues that the cause of action was not in existence because at the time of hearing on the original exception, he was employed earning far more than he now does.

Finally, Daigle argues that he has various defenses to assert, i.e., Crittenden’s own bad faith, that would preclude him from performing. He urges that the defense did not exist in June 2005, at the hearing because it arose after his involuntary termination from Merrill Lynch when his income drastically plummeted, which he alleges was a direct result of Critten-den’s actions.

Our 2006 judgment specifically affirmed the trial court’s grant of res judicata in favor of Crittenden regarding the separation of property agreement and the partition of community property agreement, save for an excised provision in contravention of public policy that obligated Daigle to pay Crittenden for the rest of her life. Daigle’s assignments of error one and two are merely reiterations of his former argument, all of which arise out his desire to avoid, or at the very least, delay payment to Crittenden. As we said before (emphasis added):

The partition was not an extrajudicial partition, but one approved by the trial court in October 2002. Therefore, the consent judgment was final. See Thibodeaux v. Thibodeaux, 511 So.2d 102 (La.App. 3 Cir.1987); Allen v. Allen, 01-0213 (La.App. 3 Cir. 6/6/01), 787 So.2d 1226. At that time, Daigle had option available to him to seek reversal of the judgment. Those options have prescribed and no longer exist.

Daigle, 940 So.2d at 894.

| «If Daigle wanted the nature of his payments clarified, he should have done so long ago. Our 2006 judgment had no bearing whatsoever on the provisions that Daigle now requests be clarified. Similarly, Daigle’s claim that a reduction of his income warrants a modification of the $150,000 installment payments under the partition agreement is without merit. The consent judgment was final. Daigle cannot now claim that the payments are actually spousal support — rather than an equalizing sum — in order to avoid paying the contractual amount. Moreover, he cannot assert defenses to the partition agreement. However Daigle phrases the issue, his various arguments are merely attempts to annul the original agreement — an attempt that has been made before and failed. These claims are all subject to res judicata and are without merit.

Additionally, Daigle’s claim in his reconventional demand that he should not have to perform under the partition contract because of Crittenden’s bad faith pursuant to La.Civ.Code arts. 1759 and 2003 also fails. Daigle cites no authority for applying these principles to a 2002 partition agreement, and we find no validity to this argument. Moreover, La.Civ. Code art. 2003 provides in part that “[a]n obligee may not recover damages when his own bad faith has caused the obligor’s failure to perform.” (Emphasis added.) Crittenden is not trying to recover damages, but payment from the original 2002 judgment. Daigle ignores the fact that he failed to perform his obligations under the partition agreement well before his discharge from Merrill Lynch on August 28, 2005. Accordingly, we find no manifest error in the trial court’s ruling granting Crittenden’s exceptions of res judicata.

| CONCLUSION

The judgment of the trial court in favor of the plaintiff-appellee, Kimberly Critten-den Daigle, is affirmed. All costs of this appeal are assessed against the defendant-appellant, Kenneth Paul Daigle.

AFFIRMED.

PETERS, J., concurred in part and dissented in part, and assigned reasons.

PETERS, J.,

concurring in part and dissenting in part.

_jjl agree with the majority’s disposition of the first two assignments of error. However, I dissent from the majority’s finding that Mr. Daigle’s complaints regarding Mrs. Daigle’s bad faith actions in suing his employers and preventing his compliance with the terms of the partition of community property agreement are res judicata. Mr. Daigle’s claims concerning Mrs. Daigle’s interfering with his employment did not arise until after the initial judgment between the parties became final. Thus, those claims did not arise out of transaction and occurrence that was the subject matter of the first litigation. Accordingly, res judicata was inappropriate in that regard, and I would reverse that portion of the judgment.