author: PAUL A. BONIN, Judge. LOMBARD, J.,

text:
    STATE of Louisiana in the Interest of D.R.
    No. 2010-CA-0405.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 13, 2010.

      Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, D.R.
    Leon Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

| |D.R. was adjudicated a delinquent child for a violation of La. R.S. 40:966 E(l), first offense simple possession of marijuana. The juvenile judge in the judgment of disposition committed D.R. to the custody of the Department of Public Safety and Corrections for two years two months, credit for time served. D.R. appeals his adjudication as a delinquent child on the grounds that the evidence is insufficient to sustain the adjudication and that the juvenile judge improperly interrogated him while he was on the witness stand; he also appeals the disposition committing him for a period exceeding the maximum period allowed by law. See La. Ch.C. arts. 330 B and 331 A.

Because we conclude that the juvenile judge was not clearly wrong in finding beyond a reasonable doubt that D.R. was in possession of marijuana, and because we find no other reversible error, we affirm his adjudication as a delinquent child. But because we determine that the juvenile judge erred as a matter of law in the disposition committing D.R. to an excessive custodial period Lon this charge, we vacate the judgment of disposition, and remand the matter with instructions for a new disposition by the juvenile court consistent with our holding.

We explain our decision in the following Parts below. In Part I we consider D.R.’s assignment of error regarding the juvenile judge’s examination or interrogation of him during the trial. In Part II we discuss the proper standard of review for sufficiency of evidence in a juvenile adjudication. In Part III we consider the facts developed at trial and the law applicable to the offense for which D.R. was adjudicated, and apply the standard of review to the facts. In Part IV we review the law governing the disposition and period of commitment and set forth our remand instructions.

I

The juvenile judge first questioned D.R. during the direct examination by his attorney; there was no objection to that short series of questions. At the conclusion of D.R.’s very brief cross-examination by the prosecutor, the juvenile judge again began to question D.R. and an objection to this examination was lodged. Counsel for D.R. objected on the grounds that the juvenile judge was asking D.R. “to possibly incriminate himself.” The judge replied that D.R. “possibly incriminated himself by getting on the stand.” See Brown v. United States, 356 U.S. 148, 154, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958) (a witness who voluntarily testifies cannot claim a Fifth Amendment “immunity from cross examination on the matters that he himself has put in dispute.”). D.R.’s counsel then objected on the grounds of relevancy. The judge overruled the objection to his own line of questions, stating “I’m going to ask the questions, because you put him on the stand.”

[sAt the outset, we note that on appeal D.R. argues a different basis for objection. Now D.R. argues that the juvenile judge stepped outside his role as a neutral and impartial factfinder and stepped into the role of adversary and advocate, which role of course is prohibited to the judge. But, “[ejrror may not be predicated upon a ruling which admits ... evidence unless a substantial right of the party is affected, and ... a timely objection ... appears of record, stating the specific ground of objection”. La. C.E. art. 103 A(l); see also La.C.Cr.P. art. 841 C. La.C.Cr.P. art. 841 A, which is applicable through La. Ch.C. art. 104(1), provides:

An irregularity or error cannot be availed of after verdict unless it was objected to at the time of the occurrence. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take, or of his objections to the action of the court, and the grounds therefor, (emphasis added)

“It is well settled that [a] defendant must state the basis for his objection when he makes it so that the trial judge has an opportunity to rule on it and prevent or cure an error.” State v. Dupar, 353 So.2d 272, 273 (La.1977). Additionally, “a new ground for objection cannot be presented for the first time on appeal.” State v. Harris, 414 So.2d 325, 327 (La.1982).

In support of this new argument, D.R. relies on authorities treating the judge’s role in jury trials. In jury trials, the judge is prohibited from commenting upon the evidence in the presence of the jury. See La.C.Cr.P. art. 772. The purpose of this rule is to safeguard the role of the jury as the sole judge of the facts. State v. Grainer, 02-0703, p. 16 (La.App. 4 Cir. 12/4/02), 834 So.2d 555, 565. Thus, where a trial judge’s extensive questioning of a witness in a jury trial was deemed to be an improper comment upon the facts, the Supreme Court has Lreversed the conviction. State v. Williams, 375 So.2d 1379, 1385 (La.1979). Of course, there is no jury present in delinquency proceedings. See La. Ch.C. art. 882; In re State ex rel A.J., 09-0477 (La.12/1/09), 27 So.3d 247. The “no comment” rule of Article 772 is, therefore, not applicable to cases in which the judge, and not a jury,,, is the trier of fact. In State v. Layssard, 310 So.2d 107, 108 (La.1975), the Supreme Court noted:

Where the judge is the trier of fact he has the right to question the witness to clarify the evidence in his mind. Unless his participation in the trial is to such an extent and of such a nature that it deprives the defendant of a fair trial, there is no error.

Nevertheless, we have reviewed the juvenile judge’s interrogation of D.R., which was clearly more aggressive and extensive than the prosecutor’s cross-examination of D.R. A trial judge may question witnesses. See La. C.E. art. 614 B. Some of the judge’s questions could have been asked by the prosecutor, such as whether D.R. had “any other convictions [sic]” or had previously used marijuana. Others of the questions sought information that a juvenile judge might want to know post-adjudication at a disposition hearing, such as whether D.R. had previously sold drugs, how long he had been smoking marijuana, and his school performance. Still others, such as “... so where do you get your drugs when you smoke marijuana?” or “Yeah, but if you found drugs you were going to take them, right?” suggest that the judge was morphing into the role of an adversarial advocate. The second circuit observed in Midyett v. Midyett, 32, 208 (La.App. 2 Cir. 9/22/99), 744 So.2d 669, 675, that

Comment (c) to La.Code Evid. Art. 614 states, however, that “the power of the court to question witnesses, moreover, does not authorize a court to exercise that power in the same manner as adversary counsel.” In other words, the trial judge, while asking a witness ^questions from the bench, must remain impartial and must not become an “advocate” for one side or the other.

While these questions do seem to go beyond merely clarifying evidence and approach developing evidence adverse to the child’s interest, they were generally relevant to the offense charged (possession with intent to distribute marijuana) and, based upon D.R.’s transcribed responses to the judge’s questions, he does not seem to have been intimidated, frightened, or cowered by the interrogation. Thus, even if we were to consider D.R.’s objection first raised on appeal, we discern no basis to conclude that the judge’s participation in this trial is to such an extent and of such a nature that it deprived D.R. of a fair trial.

II

In this Part we consider the proper standard by which we review D.R.’s adjudication as a delinquent. While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature. In re C.B., 97-2783, p. 17 (La.3/4/98), 708 So.2d 391, 400 (“The hallmark of special juvenile procedures is their non-criminal nature.”). Because delinquency proceedings are not criminal proceedings, the scope of review in Louisiana extends to both law and facts. La. Const, art. V, § 10(B) provides in pertinent part:

Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts ... In criminal cases its appellate jurisdiction extends only to questions of law.

1 r,The Louisiana Supreme Court in State in the Interest of Batiste, 367 So.2d 784, 788 (La.1979), specifically decided that

Except as otherwise provided by the constitution, this Court’s jurisdiction in civil cases extends to both law and facts; in criminal matters, its criminal jurisdiction extends only to questions of law. La. Const.1974, art. 5, s 5(C). Juvenile delinquency proceedings do not fall within the category of criminal prosecutions, as is evident from long established jurisprudence ..., and the special juvenile provisions within the judiciary article of the constitution. La. Const.1974, art. 5, ss 10, 18 and 19. Accordingly, since the constitution does not provide otherwise, the scope of review of this court in juvenile delinquency proceedings extends to both the law and the facts, (ellipsis indicates citations omitted; emphasis added).

The Batiste court then evaluated the facts of that case and applied the manifest error standard of review:

... [A] side from the inference which possibly could be drawn from Batiste’s possession, there was no evidence tending to prove that he took or misappropriated the bicycle. In opposition to the mere basis for possible inference provided by the state’s evidence, Batiste presented unrefuted testimony from sworn witnesses that Batiste had not taken or misappropriated the bicycle, but that he had obtained the movable lawfully. From this evidence we conclude that the juvenile court was clearly in error in finding beyond a reasonable doubt that Batiste committed unauthorized use of the bicycle.

Batiste, 367 So.2d at 789 (all emphasis added). See also State ex rel. D.F., 08-0812, p. 3 (La.App. 1 Cir. 6/6/08), 991 So.2d 1082, 1084-1085; State in the Interest of Cason, 438 So.2d 1130, 1131 (La.App. 2nd Cir.1983); State ex rel. T.W., 09-0532, p. 2 (La.App. 3 Cir. 10/7/09), 21 So.3d 465, 467-468; State in the Interest of S.S., 557 So.2d 407, 408 (La.App. 4th Cir.1990); State in the Interest of J.L., Jr., 592 So.2d 435, 438 (La.App. 5th Cir.1991).

This “clearly wrong” or “manifestly erroneous” standard of review is the same as the one applied in other civil cases. The standard of review for sufficiency of evidence for juvenile adjudications is the same as the one set out in Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989):

Although the meaning of these phrases [“manifest error” and “clearly wrong”] is not immediately apparent, certain general principles governing the exercise of the appellate court’s power to reverse findings of a trial court or jury may be derived from the cases.
It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973) .... [citations omitted] A. Tate, “Manifest Error” Further observations on appellate review of facts in Louisiana civil cases, 22 La. L.Rev. 605, 611 (1962). The appellate review of fact is not completed by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court, but if the trial court or jury findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Arceneaux, supra at 1333, Watson v. State Farm Fire & Casualty Ins. Co. 469 So.2d 967 (La.1985). In applying the manifestly erroneous-clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo. See, F. Maraist, The Work of the Louisiana Appellate Courts for the 1978-1979 Term-A Faculty Symposium, Civil Procedure, 40 La. L.Rev. 761, 764 (1980); Comment, Appellate Review of Facts in | ^Louisiana Civil Cases, 21 La. L.Rev. 402, 412 (1961); Cf. Anderson v. City of Bessemer City, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985); Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969).
When findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; 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. Canter, supra at 724 .... [citations omitted]. Where 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, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. ... Cf. State v. Mussall, 523 So.2d 1305 (La.1988); Anderson v. City of Bessemer City, 470 U.S. 564, 105 S. Ct. 1504, 84 L.Ed.2d 518 (1985); U.S. v. U.S. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948). But where such factors are not present, and a fact-finder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong.

Just as was done in Batiste, we apply this civil standard of review of facts and law to determine whether there is sufficient evidence of proof beyond a reasonable doubt to adjudicate a child a delinquent. The United States Supreme Court held in In re Winship that “the constitutional safeguard of proof beyond a reasonable doubt is ... required during the adjudicatory stage of a delinquency proceeding”. In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Court noted:

It is true, of course, that the juvenile may be engaging in a general course of conduct inimical to his welfare that calls for judicial intervention. But that intervention cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law and to the possibility of institutional confinement on proof insufficient to convict him were he an adult.

Id. at 367, 90 S.Ct. 1068. The Supreme Court’s holding had been grounded in its earlier decision that the Fourteenth Amendment’s Due Process Clause requires application of “the essentials of due process and fair treatment” during the adjudicatory hearing. Id. at 359, 90 S.Ct. 1068, citing In re Gault, 387 U.S. 1, 13 and 30, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Thus, D.R., and other Louisiana children, when charged with a “delinquent act” enjoy the federal constitutional protection that the state must prove the delinquent act beyond a reasonable doubt. Moreover, D.R. enjoys state statutory protection to the same effect: “In order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.” La. Ch.C. art. 883.

To sum up, then, we apply the “clearly wrong” standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.

B

Before actually applying this standard of review, it is helpful to acknowledge that there are decisions of this court, other intermediate appellate courts, and even the Louisiana Supreme Court which occasionally identify the standard of review for sufficiency of evidence in juvenile adjudications as the constitutional rule announced in the United States Supreme Court decided Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

| inBased in large measure upon its Win-ship holding, the Supreme Court in Jackson v. Virginia announced a federal constitutional rule, or standard of review, to guarantee that a factfinder had applied the correct standard of proof. The constitutionally required standard of proof (as distinguished from the standard of review) for a criminal conviction was defined in Jackson:

In short, Winship presupposes as an essential of the due process guaranteed by the Fourteenth Amendment that no person shall be made to suffer the onus of a criminal conviction except upon sufficient proof — defined as evidence necessary to convince a trier of fact beyond a reasonable doubt of the existence of every element of the offense.

Jackson, 443 U.S. at 316, 99 S.Ct. 2781. The Supreme Court further explained that

The Winship doctrine requires more than simply a trial ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the factfinder will rationally apply that standard to the facts in evidence. A “reasonable doubt,” at a minimum, is one based upon “reason.” Yet a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt, and the same may be said of a trial judge sitting as a jury. In a federal trial, such an occurrence has traditionally been deemed to require reversal of the conviction. ... Under Winship, which established proof beyond a reasonable doubt as an essential of Fourteenth Amendment due process, it follows that when such a conviction occurs in a state trial, it cannot constitutionally stand.

Jackson, 443 U.S. at 316-318, 99 S.Ct. 2781 (emphasis added; ellipsis indicates citations omitted).

The standard of review for sufficiency of evidence applicable to criminal convictions in state courts is set out in Jackson:

In After Winship the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt. But this inquiry does not require a court to “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” ... Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Johnson v. Louisiana, 406 U.S., at 362, 92 S.Ct., at 1624-1625.

Jackson, 443 U.S. at 318-319, 99 S.Ct. 2781 (bold emphasis, except in italics, in original; all italicized emphasis added; ellipsis indicate citations omitted).

The Supreme Court went on to explain that this standard of review for sufficiency of evidence is highly deferential to the factfinder:

This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon “jury” discretion only to the extent necessary to guarantee the fundamental protection of due process of law.

Jackson, 443 U.S. at 319, 99 S.Ct. 2781 (emphasis in original).

Jackson v. Virginia self-consciously and explicitly establishes and requires constitutional minimum standard of review which must be satisfied in order for either an adult conviction or a juvenile adjudication to satisfy the Due Process requirement of the Fourteenth Amendment. See Jackson, 443 U.S. at 319, n. 12, 99 S.Ct. 2781. Indeed, this federal “familiar standard” displaced the “no evidence” standard of 112review as it “is simply inadequate to protect against misapplications of the constitutional standard of reasonable doubt.” Jackson, 443 U.S. at 320, 99 S.Ct. 2781.

Historically, based upon Louisiana’s constitution, a Louisiana court reviewing an adult conviction for the sufficiency of evidence was restricted to the “no evidence” standard. See, e.g., State v. Washington, 292 So.2d 234, 237 (La.1974) (“The sufficiency of the evidence is not reviewable on appeal; it is only where there is no evidence to support an essential element necessary to the conviction that the court will review the record on appeal.”). The Louisiana Supreme Court immediately characterized the Jackson v. Virginia standard of review as “broader” or “slightly broader” than the “no evidence” standard and noted that due process would be offended on direct appellate review of a conviction if a standard “lesser” than the one of Jackson v. Virginia were applied. State v. Mathews, 375 So.2d 1165, 1168 (La.1979). That Due Process minimum standard is still in use today in reviewing adult criminal convictions. See, e.g., State v. Robinson, 09-0409, p. 6 (La.App. 4 Cir. 8/19/09), 19 So.3d 520, 523.

But with respect to juvenile adjudications in Louisiana, Batiste was already applying a standard of review which exceeded the minimum standard required by Jackson v. Virginia Thus, where the Louisiana constitutional prohibition or preclusion of factual review of adult criminal convictions had to yield or give way to the Jackson v. Virginia standard (but no further), no such modification of the standard for juvenile adjudications recognized in Batiste was required by Jackson v. Virginia.

11sSo, it is true that a juvenile adjudicated a delinquent would be entitled to a Jackson v. Virginia review but for Louisiana’s provision that a less deferential, or a broader, standard is available to the juvenile. As with any federal constitutional protection, states are free to afford their citizens protections which are greater than the minimum protection. See, e.g., Prune-Yard Shopping Center v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980) (with respect to First Amendment free speech rights); Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (with respect to the Sixth Amendment speedy trial right); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (with respect to standards on search and seizure under the Fourth Amendment); See also William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U.L.Rev. 535, 548 (1986) (“As is well known, federal preservation of civil liberties is a minimum, which the states may surpass so long as there is no clash with federal law.”), Lee Hargrave, Declaration of Rights of Louisiana Constitution of 1971, 35 La. L.Rev. 1, 22 (1974) (“In fact, the last sentence of this section [La. Const, art. I, § 5] giving standing to persons who heretofore have been denied it in federal cases is an implicit recognition of the broadening of the right to suppress evidence obtained in violation of constitutional guarantees.”), and Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation (Carolina Academic Press, 2008), p. 20 n. 75 (“States can afford more protection to individuals than the Fourth Amendment does but if the state constitution is construed to offer less, the Fourth Amendment serves as a floor.”).

While considerable deference is accorded the factfinder, the courts of appeal nonetheless have a constitutional duty to review facts. See Ambrose v. New Orleans Police Department Ambulance Service, 639 So.2d 216, 221 (La.7/5/94); see also Franklin Southland Printing Co. v. New Orleans Aviation Board, 99-60, p. |146 (La.App. 5 Cir. 7/27/99), 739 So.2d 977, 981. And a child adjudicated a delinquent in Louisiana is entitled to a broader scope and standard of review than the minimum required by the Due Process clause. The Jackson v. Virginia standard requires the bare review of facts through the prism of one of the parties, the prosecution. All facts which may have been theoretically proved by the prosecution are accepted; the review is not limited to those facts which the factfinder actually found, perhaps discarding or disregarding some but not all prosecutorial “facts” or prosecutorial inferences. Moreover, while Jackson v. Virginia requires only that any rational trier of fact be convinced beyond a reasonable doubt, the Batiste standard looks to this particular trier of fact and whether his or her decision that there was proof beyond a reasonable doubt is not clearly wrong and is reasonable. (Indeed, in this case, the juvenile judge shared on the record facts and inferences which he accepted and, in some instances, rejected.) Consequently, review of the law and facts under the juvenile standard is “a somewhat broader scope of appellate review than that mandated by the Jackson v. Virginia standard.” State in the Interest of Cason, 438 So.2d at 1131. Although the Batiste standard of review is somewhat broader than the Jackson v. Virginia minimum standard, the Batiste standard remains highly deferential to the function and findings of the trier of fact, the juvenile judge.

|1fiWith the proper standard of review in mind, we turn now to a review of the facts in this case.

Ill

In this Part we consider the facts of this case, the applicable law for the offense for which he was adjudicated, and apply the proper standard of review.

A

On June 16, 2009, Detectives Dan Malo and Michael Lorio were driving on Monroe Street in a marked police vehicle when they observed D.R. walk from the corner store on Belfast and Monroe, cross the street, and walk to the side of a house on the opposite corner. As D.R. crossed the street, he looked back at the police cruiser, causing the detectives to become suspicious. They followed D.R. a short distance, losing sight of him for a few seconds as he passed to the far side of the corner house, and observed him in a crouched position on the side of the house. Then D.R. stood up and walked back toward the corner store. Detective Malo called D.R. over to the vehicle while Detective Lorio investigated the area where D.R. had been observed crouching by the house. From that area Detective Lorio recovered a clear bag of six smaller bags containing marijuana. Detective Malo arrested D.R. for possession of marijuana, and as he was being transported to the juvenile division, D.R. told the detectives that he had “just found the weed” and that he “couldn’t go back to jail.” Detective Malo observed during the arrest that D.R. had on his ankle an electronic monitoring bracelet of the type ordered by a court.

At the adjudication hearing, after both officers testified, D.R. testified on his own behalf. He stated that on the date of his arrest, he was planning to stop by the corner store on his way to visit his sister when he saw the police car. He crossed 116the street and saw someone who was near the house put something under it. Believing that the person had put drugs beneath the house, D.R. went to that spot to see what it was. He did not know what it was and “couldn’t even much touch it.” Then D.R. looked up and saw the police car; he went to the vehicle, where he was arrested thereafter for possession with intent to distribute marijuana. D.R. admitted that, if what was under the house had turned out to be marijuana, he would have taken possession of it, but he denied ever having that opportunity. In response to a question by the juvenile judge, D.R. admitted to being a marijuana smoker. The trial judge thereafter adjudicated D.R. delinquent for the offense of possession of marijuana, which is responsive to the offense charged. See La. R.S. 40:966 E(l) and La.C.Cr.P. art. 814 A(49).

B

D.R. argues that the prosecution has failed to prove that he was in possession of marijuana. Possession may be proven by actual physical possession or by constructive possession. State v. Trahan, 425 So.2d 1222, 1226 (La.1983). When the prosecution is unable to prove actual possession of contraband drugs, proof of constructive possession is sufficient to support the conviction. State v. Perron, 01-0214, p. 6 (La.App. 4 Cir. 1/16/02), 806 So.2d 924, 928. To prove constructive possession, the prosecution must establish that the accused had “dominion and control over the contraband.” State v. Harris, 647 So.2d 337, 338-39 (La.1994). Factors to be considered in determining whether a defendant exercised dominion and control over drugs are: the defendant’s knowledge that illegal drugs were present in the area, the defendant’s relation with the person in actual possession, the defendant’s access to the area where the drugs were found, evidence of recent drug use, the defendant’s proximity to the drugs, and evidence that the area was |17being frequented by drug users. State v. Walker, 99-1957, p. 3 (La.App. 4 Cir. 5/17/00), 764 So.2d 1130, 1133. However, mere presence in an area where drugs are located does not constitute constructive possession. State v. Toups, 01-1875, p. 4 (La.10/15/02), 833 So.2d 910, 913. Each case turns on its particular facts. Harris, 647 So.2d at 339.

C

Applying the relevant standard of review, we conclude that the juvenile judge was not clearly wrong in finding beyond a reasonable doubt that D.R. was in possession of marijuana. The detectives and D.R. observed each other, and then D.R. crossed the street in front of the police and looked back at their police unit. D.R. then disappeared around the side of the house, and the detectives pulled up to see him crouched there. Furthermore, Detective Lorio found a bag of marijuana under the house where D.R. had been crouching down. Although there is no evidence that D.R. was in actual possession of marijuana, we agree that the juvenile judge could reasonably find that D.R. was in constructive possession. D.R. acknowledged during the juvenile judge’s examination that this was a corner known for the sale of illegal drugs. D.R. had access to the spot under the abandoned house where the marijuana was recovered. He was discovered in close proximity thereto. Once inside the police car, D.R. told the detectives that the drugs were not his and claimed to have seen someone put something underneath the house — which he assumed to be drugs. On review of these facts and the reasonable inferences that may be made therefrom, we do find no clear error in the juvenile judge’s finding D.R. in possession of marijuana, and conclude that it is reasonable for the juvenile judge to find beyond a reasonable doubt that D.R. is | ^delinquent. We, therefore, conclude that there is sufficient evidence to affirm the finding of delinquency.

IV

In this Part we turn to a review of the disposition. La. Ch.C. art. 804(8) provides

“Misdemeanor-grade delinquent act” means any offense which if committed by an adult is other than a felony and includes the violation of an ordinance providing a penal sanction.

A felony “is any crime for which an offender may be sentenced to death or imprisonment at hard labor.” La. R.S. 14:2 A(4). On a first conviction for possession of marijuana, the violation of which the juvenile judge adjudicated D.R., “the offender shall be fined not more than five hundred dollars, imprisoned in the parish jail for not more than six months, or both.” La. R.S. 40:966 E(l) (emphasis supplied). Because an adult offender could not be sentenced to hard labor upon conviction of simple possession of marijuana, it is a misdemeanor-grade delinquent act. The judgment of disposition which committed D.R. to the corrections department for a period of two years two months exceeded the maximum term and must be vacated and a proper judgment of disposition rendered. See La. Ch.C. arts. 104(1) and 803 (providing that when the Children’s Code does not provide the procedure, a court should proceed according to the Code of Criminal Procedure). When the delinquent child has not been placed on probation, “[n]o judgment of disposition shall remain for a period exceeding the ^maximum term of the offense which forms the basis for the adjudication ...” La. Ch.C. art. 900 A.

“If the appellate court finds that a sentence must be set aside on any ground, the court shall remand for resentence by the trial court. The appellate court may give direction to the trial court concerning the proper sentence to impose.” La.C.Cr.P. arts. 881.4 A; see also La.C.Cr.P. art. 882 A (“An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review”) Accordingly, the judgment of disposition in these proceedings is vacated.

REMAND INSTRUCTIONS

We remand this matter to the juvenile court to conduct a new disposition hearing at which the court shall render a judgment within the limits of La. Ch.C. art. 900 A and, in due course, notify the Department of Public Safety and Corrections of the revised disposition.

DECREE

The adjudication of D.R. as a delinquent child for a violation of simple possession of marijuana is affirmed. We vacate the disposition committing D.R. to custody for up to twenty-six months and remand for a new disposition hearing consistent with this opinion.

ADJUDICATION AFFIRMED;DISPOSITION VACATED AND REMANDED

LOMBARD, J., concurs in the result.

LOMBARD, J.,

concurs,

hi concur in the results.

      . See La. Ch.C. art. 804(1) and (3).

      . The commitment was to run "concurrent” with two others. The periods of time served pre-disposition judgment are July 27, 2009 through August 5, 2009 and October 14, 2009 through January 6, 2010.

      . La. Ch.C. art. 804(3) defines the term:
      "Delinquent act” means an act committed by a child of ten years of age or older which if committed by an adult is designated an offense under the statutes or ordinances of this state, or of another state if the act occurred in another state, or under federal law, except traffic violations. It includes a direct contempt of court by a child.

      . See State ex rel. R.T., 00-0205, p. 2 (La.3/30/01), 781 So.2d 1239, 1241; State in the Interest of Pigott, 413 So.2d 659, 661 (La.App. 1st Cir. 1982); State ex rel, P.R.R., Jr., 45,405, pp. 5-6 (La.App. 2 Cir. 5/19/10), 36 So.3d 1138, 1141; State ex rel. J.L., 09-0792, pp. 4-5 (La.App. 4 Cir. 10/14/09), 23 So.3d 993, 995; see also State ex rel. S.O., 10-0551, pp. 3-4 (La.App. 4 Cir. 9/3/10), 49 So.3d 1 (Bonin, J., concurring), and State ex rel. K.M., 10-0649 (La.App. 4 Cir. 9/29/10), 49 So.3d 460 (Bonin, J., concurring).

      . Jaclcson was decided shortly after Batiste. Batiste was decided January 29, 1979 and Jackson was decided June 28, 1979.

      . But also see Frank L. Maraist, 1 La. Civ. L. Treatise, Civil Procedure § 14:14, n. 2 ("Contrary to some statements in appellate opinions, there is no constitutional duty to review facts, but an appellate court has the constitutional power to do so.”) (emphasis in original)

      . See, e.g., Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.2004).

      . Compare pro-party standards in evaluating civil motions such as directed verdict, La. C.C.P. art. 1810, Yount v. Lafayette Insurance Co., 08-0380, p. 8 (La.App. 4 Cir. 1/28/09), 4 So.3d 162, 168 ("The question to be asked by the court is not whether mover proved its case by a preponderance of the evidence, but rather, upon viewing the evidence submitted, the court could conclude that reasonable persons could not have reached a verdict in favor of mover’s opponent.”), or JNOV, La. C.C.P. art. 1811, Anderson v. New Orleans Public Service, Inc., 583 So.2d 829, 832 (La.1991) ("A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict.”).

      . There are exceptions to the penalty when the amount of marijuana possessed is sixty pounds or more. See La. R.S. 40:966 E(l) and F.


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Louis FLANIGAN, Plaintiff-Appellee v. CITY OF SHREVEPORT, Defendant-Appellant.
    No. 45,459-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 27, 2010.

      Law Offices of Ronald F. Lattier, LLC, by Ronald F. Lattier, Curtis Ray Joseph, Jr., for Appellant.
    Walter Orie Hunter, Jr., for Appellee.
    Before PEATROSS, DREW and MOORE, JJ.
   DREW, J.

Lin this workers’ compensation action, the City of Shreveport (“Shreveport”) appeals a judgment denying its exception of res judicata; ordering it to pay past, present, and future benefits, including temporary and total disability (“TTD”) benefits; finding that the claimant, Louis Flanigan, aggravated a hernia injury in a work-related accident; and ordering Shreveport to pay a penalty and attorney fees.

We reverse the judgment insofar as it deemed the hernia to be a work-related injury, awarded attorney fees, and assessed a penalty. In all other respects, the judgment is affirmed.

FACTS

Louis Flanigan, who was born in 1940, was employed as a recreation supervisor by Shreveport. In December of 2003, Flanigan injured his lower back when the Shreveport vehicle that he was driving was rear-ended (“2003 accident”).

Flanigan returned to work in the summer of 2005. He was taken off work again because of colon surgery in November of 2005. Following his recovery from the colon surgery, he returned to work again in April or May of 2006.

Flanigan filed a tort claim for his injuries arising out of the 2003 accident. He also received workers’ compensation benefits for the injuries that he sustained in that accident. Shreveport sought to recover those benefits. In June of 2006, Flani-gan and Shreveport reached a settlement in which Shreveport agreed to waive its lien for the workers’ compensation benefits it had paid to or on behalf of Flanigan. In return, Flanigan released | ^Shreveport from any and all liability for workers’ compensation benefits that might be payable because of the December 2003 accident.

On August 3, 2006, Flanigan was involved in an auto accident while driving to a work-related event. He received no injuries in the accident. The next day, Flan-igan’s supervisor arrived at the recreational center where Flanigan worked in order to take him to Willis-Knighton Work Rare for a drug test. Flanigan, who was cleaning a center bathroom at the time, needed to move two five-gallon containers of cleaning fluid before he could leave with his supervisor. Ordinarily, Flanigan would have dragged the containers back to their storage location, but because he felt that he was in a rush, he picked up the containers and allegedly hurt his lower back and sustained a hernia (“2006 accident”).

Flanigan filed a disputed claim for compensation. Shreveport contended that his claim for benefits relating to his back injury was res judicata because of the earlier settlement.

Following a trial on the merits, the WCJ concluded that although Flanigan had a prior injury, the injury he sustained in the 2006 accident was “a new injury that either aggravated or caused the new injury[.]” The WCJ reasoned that Flanigan’s claim was not barred by res judicata because his current condition did not exist during the prior settlement. The WCJ further found that the aggravation of Flan-igan’s hernia was work-related.

Judgment was rendered ordering Shreveport to pay weekly TTD benefits from the date of the accident; assessing a penalty of $2,000 against Shreveport for its arbitrary and capricious failure to pay TTD benefits; | ^ordering Shreveport to pay $2,500 in attorney fees for its failure to initiate wage benefits; and ordering Shreveport to reimburse all medical expenses and to pay all past, present, and future medical expenses.

Shreveport has appealed. Flanigan has appealed seeking additional attorney fees for work performed on this appeal.

RES JUDICATA

Shreveport contends that the WCJ was clearly wrong in denying the exception of res judicata. The law on res judicata is set forth in La. R.S. 13:4231, which provides:

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.

Under La. R.S. 13:4231, a second action is precluded by res judicata when all of the following are satisfied: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second |4suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 2002-1385 (La.2/25/03), 843 So.2d 1049.

While the doctrine of res judicata is ordinarily premised on a final judgment on the merits, it also applies where the opposing parties have entered into a compromise or settlement of a disputed matter. See Ortego v. State, Dept. of Transp. & Dev., 96-1322 (La.2/25/97), 689 So.2d 1358. Thus, compromises have the legal efficacy of the thing adjudged. Ortego, supra.

The doctrine of res judicata is stricti juris, and any doubt concerning application of the principle of res judicata must be resolved against its application. Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210.

The standard of review of a ruling on an exception of res judicata is manifest error when the exception is raised before the case is submitted and evidence is received from both sides. Floyd v. City of Bossier City, 38,187 (La.App.2d Cir.3/5/04), 867 So.2d 993; Medicus v. Scott, 32,326 (La.App.2d Cir.9/22/99), 744 So.2d 192.

Medical treatment following the 2003 accident

The record is bare regarding the medical treatment received by Flanigan in the year after the 2003 accident. Dr. Michael Aura, an internal medicine physician, treated Flanigan on February 3, 2005. Flanigan reported that he still had an occasional back twinge. Dr. Aura noted that Flanigan had decreased his medication on his own. Although Flanigan had minimal tenderness in his back, Dr. Aura thought that overall, Flanigan’s 1 ficondition was much improved. Dr. Aura thought that Flanigan could return to work without restrictions in about two weeks.

Flanigan complained to Dr. Aura the next month about experiencing occasional back pain that occasionally radiated down his left leg, and occasional neck pain.

Flanigan reported to Dr. Aura on April 19, 2005, that he had only occasional back pain, and it occurred mostly at night. Dr. Aura thought that Flanigan would do just as well if he did not take Neurontin and Methadone, which had been prescribed by another physician. Dr. Aura gave him samples of Ultram, a nonsedating drug.

Flanigan had not yet returned to work in April of 2005 because he was awaiting cognitive testing as a result of the medications he had been prescribed. Dr. Aura could not think of any reason why Flani-gan could not return to work or that he needed to wait until he first underwent cognitive testing.

Dr. Aura examined Flanigan on June 14, 2005, for a yearly physical exam. Flani-gan’s history included chronic back pain. Flanigan told Dr. Aura that his back pain and leg pain were fairly well controlled, and he estimated his pain as being a 2 or a 3 on a 10-point scale. Dr. Aura’s report referred to an MRI from August 20, 2004, that showed moderate disc protrusion.

Flanigan complained to Dr. Aura the next month that he had lost the use of his left hand for one day, and that his left thumb was numb. The left thumb pain and numbness had disappeared when Flanigan saw Dr. Aura on | October 10, 2005. Flanigan still had some back pain, but he seemed to Dr. Aura to be doing better.

Flanigan underwent colon surgery in November of 2005. Dr. Aura did the preoperative examination, and among his impressions was chronic back pain. A preoperative report from pulmonologist Dr. Calvin Alexander on November 28, 2005, reflected that Flanigan reported having chronic low back pain.

Dr. Sudar Tanga, who specialized in pain management and anesthesiology, treated Flanigan on March 27, 2006. Dr. Tanga noted that he examined Flanigan for chronic severe back, left hip, and left lower extremity pain. He also noted that Flanigan was doing significantly better with some weight loss and Neurontin, which he was currently taking. Dr. Tan-ga’s assessment was lumbar radiculopathy with low back pain secondary to degenerative disc disease following acute lumbar strain.

Medical treatment following the 2006 accident

When Flanigan was brought to Willis-Knighton Work Rare on the date he lifted the containers, he complained to Dr. Raymond Dennie about low back pain, numbness in his left arm and left hand, and pain in his left leg. Flanigan reported that he believed he hurt his back again after picking up the containers. Dr. Dennie remarked that he thought Flanigan’s pain behavior was markedly exaggerated. His diagnosis was low back pain, etiology unclear.

Dr. Carl Goodman, an orthopedic surgeon, first examined Flanigan on August 8, 2006. Flanigan’s main complaint was low back pain, with some 17left hip and leg pain secondary. An X-ray of Flanigan’s lower back showed mild spondylosis of the lumbar spine. Dr. Goodman’s impression was lumbar strain and sprain with mild spon-dylosis of the lumbar spine. Dr. Goodman ordered physical therapy and told Flani-gan that he could not go back to work at that time.

Flanigan returned to Dr. Goodman on August 18, 2006. His back pain had worsened, he still had left hip and leg pain, and he now complained of right hip pain and numbness in his left arm. There was no change in Dr. Goodman’s impression or recommendations. Physical therapy three times a week for four weeks was approved later that month.

Flanigan returned to Dr. Goodman on September 18, 2006. Flanigan’s lower back, hip, and leg pain was essentially the same. Flanigan said his neck was stiff and sore, and his left arm still felt numb. The only changes on examination were a slightly positive straight-leg raise on the left and numbness in all toes.

An MRI of the lumbar spine was done on October 3, 2006. It showed degenerative disc disease at L4-5 with asymmetric disc bulging on the right causing moderate foraminal stenosis.

Dr. Goodman next examined Flanigan on October 5, 2006. His complaints were essentially the same, although a new complaint was a possible abdominal hernia. If Flanigan had not been awaiting hernia surgery at the time, Dr. Goodman would have released him to light-duty work. Flanigan’s condition remained roughly the same when Dr. Goodman saw Flanigan later that month. It was noted that Flani-gan had indicated that | ^physical therapy had been helping him, but that physical therapy had since been denied.

Flanigan reported that he was still having back trouble when seen by Dr. Goodman on February 6, 2007. Examination of the lumbar and cervical areas was essentially negative, and Flanigan was shown to have nothing more than a little tenderness and some limited movements. Dr. Goodman would have probably returned Flani-gan to light-duty work at that time if he had had a release from his hernia repair.

Flanigan complained of mild low back pain to Dr. Goodman on March 20, 2007. The only abnormality was some tenderness in the lower back, which was a subjective complaint. Dr. Goodman saw Flanigan for the last time on May 7, 2007. There were no changes from the March visit, and Dr. Goodman placed Flanigan at maximum medical improvement. His symptoms and exams were fairly normal, and there were no objective findings.

On July 26, 2007, Dr. Goodman wrote to an adjuster that Flanigan continued having low back pain from degenerative lumbar disc disease and his recent lumbar sprain and strain. Dr. Goodman noted that Flan-igan said he was unable to work because of back pain, which was based purely on subjective complaints of pain and X-ray evidence of degenerative disease. Dr. Goodman also wrote that he felt Flanigan was at maximum medical improvement.

|9The Settlement

The WCJ approved the settlement in June of 2006. Although Flanigan had an attorney representing him on his tort claim, he was without counsel for that workers’ compensation proceeding. The order of approval stated that Flanigan released Shreveport from any and all liability for workers’ compensation benefits or any benefits of any nature and kind, which might otherwise be payable under Louisiana’s workers compensation laws, arising out of the 2003 accident. The order further stated that Shreveport was released from any and all past, present, and future claims, demands for compensation, and any and all causes and rights of action that Flanigan may be entitled to under Louisiana’s workers’ compensation laws resulting from the 2003 accident when he sustained injuries to “his back, neck, right hip and right leg.”

Did Flanigan suffer a new injury?

Dr. Karl Bilderback examined Flanigan for a second medical opinion on September 13, 2006. Flanigan told Dr. Bilderback that he instantly felt back pain after lifting the containers, and that his back pain increased significantly when entering the van that was to take him to Work Kare. Flanigan also told Dr. Bilder-back that at the time of the 2006 accident, he had completely recovered from his 2003 back injury and had been back to work for 18 months.

|10Dr. Bilderback’s assessment was a lumbar strain/sprain type of injury. Dr. Bilderback thought Flanigan could work in a light-duty position.

Dr. Bilderback believed that Flanigan’s problems were an extension of his 2003 injury, and that the 2003 injury was most likely the trigger for his current problems. Dr. Bilderback added that the lifting of the cleaning fluid containers most likely caused an exacerbation of his injury. Dr. Bilderback thought that Flanigan would reach maximum medical improvement in three months.

Dr. Goodman wrote on September 28, 2006, that he agreed with Dr. Bilderback’s findings. Dr. Goodman added that Flani-gan needed an MRI to rule out more significant pathology, but that he should improve and recover over the next three months.

Dr. Goodman testified in his deposition that he disagreed with Dr. Bilderback’s finding that the lumbar sprain/strain was an extension of the prior injury. Dr. Goodman thought that Flanigan had some underlying back problems, but believed he was asymptomatic for 18 months prior to his 2006 injury. Dr. Goodman thought that Flanigan recovered from his 2003 injury, was working, and then had a new injury. Dr. Goodman’s opinion on this was based solely on Flanigan’s representations, and he explained that he did not have much history about the 2003 accident and his understanding from Flanigan was that Flanigan had recovered from it. Dr. Goodman agreed the current lumbar sprain/strain was in the same location as the 2003 injury.

| nWhen it was pointed out to Dr. Goodman that Dr. Aura noted that Flanigan had chronic back pain in November of 2005, Dr. Goodman agreed that this showed Flanigan was not pain-free from the time he returned to work until the 2006 accident. Dr. Goodman agreed that the back pain recorded in November of 2005 tended to make it more probable than not that Flanigan continued to have problems with his low back even after he returned to work following the 2003 accident. Dr. Goodman also agreed that if other records showed that Flanigan continued to complain of back pain after he returned to work, it would make it more probable that the 2006 injury was an extension of the prior injury.

In his reasons for judgment, the WCJ stated:

The Court notes that res judicata does not apply because a new accident and injury was suffered and the new claim did not exist at the time of the 2003 accident. Legally, Mr. Flanigan and the City admitted and agreed in the previous litigation that [Flanigan] had returned to full duty at his regular job without restrictions and that [Flanigan] has reached maximum medical improvement. Practically, Mr. Flanigan continued to have a back condition, but was not under continuous treatment by a physician and was back at work with no restrictions until he lifted the two five-gallon containers. The records reflect that Mr. Flanigan was seen by physicians on February 15, 2005, and April 12, 2005, and then the medical records reveal a thirteen month gap in treatment until a visit on March 27, 2006. It is significant to the Court that Mr. Flan-igan was not restricted from working on the March 27, 2006, visit and that Mr. Flanigan continued to work until the August 4, 2006, accident. After carefully listening to Mr. Flanigan’s testimony and watching his demeanor and then reviewing the medical records, the Court finds that Mr. Flanigan was truthful in his testimony when he summarized his pre-August 2006 medical condition to the Court.
Also significant to the Court, was that the lifting of the buckets on the job was a new accident that caused a new injury- Mr. Flanigan returned to work and suffered a new injury, and as such it is compensable and not barred by res judicata. | ^Conversely, if Mr. Flanigan was making a new claim based on symptoms related to the 2003 injury with no intervening on the job accident, then it would be barred by res judicata.

Although the WCJ was not exactly correct about the gap in medical treatment, he understood what the medical records revealed about Flanigan’s condition. Flan-igan reported only occasional back pain to Dr. Aura in April of 2005. Flanigan told Dr. Aura in June of 2005 that his back pain and leg pain were fairly well controlled, and he estimated that his pain was low on a 10-point scale. Flanigan still had some back pain in October of 2005, but he seemed to Dr. Aura to be doing better. Chronic low back pain was noted in November of 2005. When Flanigan was examined in March of 2006, Dr. Tanga noted he was seeing Flanigan for chronic severe back, left hip, and left lower extremity pain, but he also recorded that Flanigan was doing significantly better with some weight loss and Neurontin.

Flanigan was confronted at trial about his representations to an adjuster and to Dr. Bilderback that he had completely recovered from his 2003 injuries at the time of the 2006 accident. Flanigan’s medical records show that he had symptoms of back pain as recently as five months prior to his 2006 accident. He was also confronted by a representation to Dr. Bilder-back that he had returned to work 18 months prior to his 2006 injury.

Flanigan returned to work in the summer of 2005, was off work again because of his colon surgery, returned to work again in April or May of | iS2006, then was taken off work following his 2006 accident. Flanigan stated that from the time he returned to work following colon surgery until August 4, he did not have any back problems or complaints about his back. He also stated that he may have had sporadic back pain from his 2003 injury, but it did not keep him from working. We note that when an adjuster asked Flanigan if he had fully recovered from his 2003 injury, he replied affirmatively and added that he had no problems working. Flanigan denied missing work because of his back once he returned to work in 2005 until his 2006 accident.

Flanigan testified that he felt a strain and that his back hurt the moment that he picked up the containers. He asserted that he told his supervisor about his condition when he entered the van to go to Work Rare. When his supervisor drove him back to the recreational center, he told her that he was unable to work.

At trial, Flanigan denied ever taking Neurontin. However, the March 27, 2006, record from Dr. Tanga stated that he was currently taking Neurontin and Dr. Tan-ga’s plan was to continue the Neurontin for chronic pain. Flanigan also testified at his February 2006 deposition that he was taking Neurontin. Flanigan explained at trial that he had been confused at the deposition about exactly which medication was Neurontin. In any event, the WCJ clearly stated that Flanigan provided truthful testimony about his medical condition prior to August of 2006.

| uMindful that the doctrine of res judi-cata is stricti juris, and that any doubt concerning application of the principle of res judicata must be resolved against its application, we cannot conclude that the WCJ was clearly wrong in finding that there was a new injury that was not covered under the 2006 settlement, and, thus, the exception of res judicata was properly denied.

HERNIA

Shreveport contends that the WCJ was clearly wrong in finding that Flani-gan’s abdominal hernia was causally related to his employment. La. R.S. 23:1221(4)(r)(i) states:

In all claims for inguinal hernia, it must be established by a preponderance of the evidence that the hernia resulted from injury by accident arising out of and in the course and scope of employment, that the accident was reported promptly to the employer, and that the employee was attended by a licensed physician within thirty days thereafter.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551. To reverse a factfinder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993). Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a | ^reasonable one. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id.

Dr. Andrew Werner is a colon and rectal surgeon. He first saw Flanigan on November 21, 2005, on a referral from a gastroenterologist for colon polyps. Surgery was performed on Flanigan’s colon on November 29, 2005. Flanigan had no complaints and was completely healed and without any identifiable hernias on March 16, 2006. His next scheduled visit with Dr. Werner was in six months.

Dr. Werner saw Flanigan on August 9,' 2006, for a followup visit. Flanigan complained of a little bit of abdominal pain in the area where he had the surgery. There was no evidence of hernia, but Dr. Werner testified that because Flanigan was overweight, it would have been difficult to entirely rule out a hernia. Flanigan claimed he told Dr. Werner at that time about the accident and how it caused his abdominal pain, but the record from that visit does not reflect why Flanigan complained about abdominal pain to Dr. Werner. Dr. Wer-ner stated in the report that he thought Flanigan might have just recently strained a muscle.

Flanigan reported his hernia to a physical therapist on August 23, 2006. The therapist wrote that Flanigan had an increase in hernia to his abdominal incision in the past few weeks.

Flanigan claimed he told Dr. Goodman on August 8, 2006, that his stomach was hurting, and Dr. Goodman responded that he could not treat 116him for that. However, this is not reflected in Dr. Goodman’s medical records. The hernia was not mentioned when Dr. Goodman examined Flani-gan again that month or in September. It was not until the October 5 visit that Flan-igan complained to Dr. Goodman about a possible abdominal hernia.

Dr. Werner saw Flanigan on October 4, 2006, for evaluation of pain at his incision. Flanigan said he had been having the pain for a couple of months. Dr. Werner thought the pain might be related to an incisional hernia, and ordered a CT scan. A CT scan on October 9 showed a hernia, with only intra-abdominal fat protruding through muscle.

Dr. Werner met with Flanigan on October 18, 2006, to discuss the CT scan. Dr. Werner told Flanigan that he had an inci-sional hernia and needed surgery to repair it. Flanigan told Dr. Werner that the hernia happened after he lifted something heavy at work. The hernia repair surgery was performed on October 31, 2006.

Flanigan asserted that from the time of the colon surgery until August 4, 2006, he did not have problems or pains in the location of the surgery. Flanigan added that he did not start feeling abdominal pain until a few days after the accident.

The WCJ stated that he found that Flanigan met his burden, through Dr. Werner’s records, that the aggravation of the hernia injury occurred only after he lifted the two containers on August 4, 2006.

Dr. Goodman testified that he did not think the hernia was from the August 2006 accident, and he thought that Flanigan had the hernia prior to |17that accident. Although Dr. Goodman would defer to Dr. Werner about the hernia, Dr. Goodman felt that Flanigan should have told him about the hernia in August if he had sustained it at that time.

Dr. Werner thought it was possible that the hernia was caused by lifting the containers. When asked if it was more probable than not that the hernia was caused by the lifting if no other circumstance could have caused it, Dr. Werner replied that it was hard to say one way or the other without knowing what else had happened. When asked if he could say it was more probable than not that the hernia was caused by the lifting if Flanigan had no complaints of pain prior to the accident, Dr. Werner replied that it was possible but that there was no way to know for certain. In sum, Dr. Werner never used the magic words that it was more probable than not that lifting the containers caused Flani-gan’s incisional hernia.

While Flanigan mentioned having a hernia to a physical therapist, Flanigan did not mention the hernia to Dr. Dennie at Work Kare, and he did not initially report the hernia to Drs. Goodman and Werner. He complained of abdominal pain to Dr. Werner a few days after the accident, but he did not mention the accident. We note that visit was a followup visit for the colon surgery. Dr. Goodman did not become aware of the hernia until October.

Based upon Flanigan’s delay in reporting the hernia to his physicians, as well as Dr. Werner stating that there was only a possibility that the 2006 accident caused the hernia, we conclude that the WCJ was clearly wrong in finding that the hernia was aggravated by the lifting of the containers.

| ^PENALTIES & ATTORNEY FEES

Shreveport argues that the WCJ abused his discretion in assessing a penalty and awarding attorney fees. The WCJ found that Shreveport was arbitrary and capricious in failing to initiate wage benefits.

La. R.S. 28:1201(F) provides, in part:

Failure to provide payment in accordance with this Section or failure to consent to the employee’s request to select a treating physician or change physicians when such consent is required by R.S. 23:1121 shall result in the assessment of a penalty in an amount up to the greater of twelve percent of any unpaid compensation or medical benefits, or fifty dollars per calendar day for each day in which any and all compensation or medical benefits remain unpaid or such consent is withheld, together with reasonable attorney fees for each disputed claim; however, the fifty dollars per calendar day penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim. The maximum amount of penalties which may be imposed at a hearing on the merits regardless of the number of penalties which might be imposed under this Section is eight thousand dollars. An award of penalties and attorney fees at any hearing on the merits shall be res judicata as to any and all claims for which penalties may be imposed under this Section which precedes the date of the hearing. Penalties shall be assessed in the following manner:
(1) Such penalty and attorney fees shall be assessed against either the employer or the insurer, depending upon fault. No workers’ compensation insurance policy shall provide that these sums shall be paid by the insurer if the workers’ compensation judge determines that the penalty and attorney fees are to be paid by the employer rather than the insurer.
(2) This Subsection shall not apply if the claim is reasonably controverted or if such nonpayment results from conditions over which the employer or insurer had no control.

In order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base the denial of benefits. Koenig v. Christus Schumpert Health System, 44,244 (La.App.2d Cir.5/13/09), 12 So.3d 1037; Howard v. Holyfield Construction, Inc., 38,728 (La.App.2d Cir.7/14/04), 878 So.2d 875, writ denied, 2004-2303 (La. 1/7/05), 891 So.2d 684.

A WCJ has great discretion in awarding or denying penalties and attorney fees. Nowlin v. Breck Const. Co., 30,622 (La.App.2d Cir.6/24/98), 715 So.2d 112.

Shreveport reasonably controverted the claim. Flanigan basically suffered a similar injury in the same location as the 2003 injury that was the subject of the settlement. Although Flanigan maintained that the 2003 injury had resolved enough to return to work, he continued to receive medical treatment for that injury five months before the 2006 accident. Furthermore, Dr. Bilderback had concluded that the 2006 injury was more likely than not a continuation of the 2003 injury. Under these circumstances, the WCJ abused his great discretion in assessing a penalty and awarding attorney fees.

CONCLUSION

We reverse the judgment insofar as it deemed the hernia to be a work-related injury, awarded attorney fees, and assessed a penalty. In all other respects, the judgment is affirmed.

With Louis Flanigan to bear his own costs, and the City of Shreveport to pay its costs of $146.50, the judgment is REVERSED IN PART AND AFFIRMED IN PART. '

      . We note that the joint petition for settlement approval states that Flanigan had been initially diagnosed with lumbar and cervical muscle strain and severe degenerative joint disease of the knee. It also reflects that Flanigan additionally complained of neck pain radiating down both arms as well as left hip pain.

      . As noted earlier, an MRI of the lumbar spine was done on October 3, 2006.

      . Flanigan did not indicate to Dr. Goodman on August 8, 2006, that he had low back problems after returning to work following the 2003 accident, although the record shows that Flanigan told Goodman that he was rear-ended in December of 2003 and returned to work after about 9 months and did well.

      . Flanigan regarded his relationship with his supervisor as "hostile.”

      . Shreveport contends that this denial, other trial testimony by Flanigan, and what Flani-gan told the adjuster and Dr. Bilderback about the extent of his recovery, amounted to fraud.

      . The WCJ found that Shreveport was not arbitrary and capricious in failing to approve physical therapy or in failing to pay for treatment by Dr. Werner for the hernia issues.


author: KUHN, J.

text:
    Vanessa Y. SCHULTZ, Independent Administratrix of the Succession of Boyd White v. Brenda Jean WHITE.
    No. 2010 CA 0488.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      John Swanner, Baton Rouge, Louisiana, for Plaintiff-Appellant, Vanessa Y. Schultz.
    Roy H. Maughan, Jr., Baton Rouge, Louisiana, for Defendant-Appellee, Brenda Jean White.
    Before KUHN, PETTIGREW, and KLINE, JJ.

      . The Honorable William F. Kline, Jr. is serving pro tempore by special appointment of the Louisiana Supreme Court.

      . See La. R.S. 11:444 A, addressing the computation of a member’s "maximum retirement allowance equal to two and one-half percent of average compensation ... for every year of creditable service, plus three hundred dollars.” See also La. R.S. 11:446, addressing the various alternative options pursuant to which a member may elect to receive his or her retirement benefit. By exercising the maximum option, Ms. White elected to receive her retirement benefit in an allowance payable to her throughout the remainder of her life.

   KUHN, J.

1 ¡Vanessa Y. Schultz, in her capacity as independent administratrix of the Succession of Boyd White, filed suit seeking a judgment that required defendant, Brenda Jean White, to name Schultz, in her representative capacity, as 50 percent beneficiary of Ms. White’s Louisiana State Employees’ Retirement System (“LASERS”) benefits. After a hearing on the pai'ties’ cross motions for summary judgment, the trial court signed a judgment denying Schultz’s motion for summary judgment, granting Ms. White’s motion for summary judgment, and dismissing Schultz’s claims with prejudice. We affirm.

I.PROCEDURAL AND FACTUAL BACKGROUND

The following facts are undisputed. Mr. and Ms. White were married from October 28, 1984, until August 23, 2005, during which time Ms. White was an active and contributing member of LASERS. On September 11, 2007, the Whites executed a community property settlement, which provided as follows, in pertinent part:

II.FULL SETTLEMENT
The parties desire to settle and liquidate the community that formerly existed between them, and have agreed to do so as set forth in this agreement. Each party ... makes this settlement and exchange agreeing that the properties and rights exchanged, transferred and relinquished are an equal and proportionate division of the property....
III.NO ENCUMBRANCES CREATED
The parties do not wish nor intend to create any mortgages, stipulations pour autri, privileges, liens, encumbrances, servitudes, or |3resolutory conditions on any of the property transferred by this agreement except as otherwise provided.
IV.TRANSFER TO FIRST PARTY
1. One (1) certain lot or parcel of ground, together with all the buildings and improvements thereon, situated in ... RANDOLPH HEIGHTS SUBDIVISION, and ... said lot fronting ... on Dancy Ave.
2. All movable property in the residence located at 9512 Dancy Avenue, Baton Rouge, Louisiana 70814.
3. All of appearers right, title, and/or interest in the retirement benefits that may be owed and payable to [Ms. White] by LASERS, be it an interest in a refund of contributions, a regular retirement benefit, a deferred retirement option, an initial benefit option, any survivors’ rights or any other benefit that he may have otherwise had an interest in.
V.TRANSFER TO SECOND PARTY
[Ms. White] transfers ... unto [Mr. White] ... the following described property:
1. The sum of THIRTY-THREE THOUSAND DOLLARS ($33,000).
2. All of the movable property currently in the possession of [Mr. White].
VI.DEBTS AND OTHER OBLIGATIONS
[Ms. White] agrees to pay, and to hold [Mr. White] free and harmless from the following obligations:
1. The home mortgage ... in the approximate amount of TWENTY-NINE THOUSAND FOURTEEN DOLLARS ($29,014).
2. The IRS debt in the amount of One Thousand Six Hundred Thirty-Six and 83/100 ($1,636.83) Dollars.
Additionally, [Ms. White] agrees to designate [Mr. White] 50% beneficiary of her [LASERS] Benefits.
[JX. SUCCESSORS
All of the agreements and stipulations contained in this settlement shall inure to the benefit of and be binding on the heirs, successors, and assigns of the parties.
XIV. RETIREMENT/PENSION PLAN BENEFITS
The parties agree to sign all necessary papers and take such actions to have a Qualified Domestic Relation Order (QDRO) drafted and approved by a Court of competent jurisdiction.

On December 9, 2007, Mr. White died. As of that date, Ms. White had not designated Mr. White as a beneficiary, and she has not designated him as such since his death. According to a November 21, 2008 affidavit of Kristi Folse, an Administrative Program Director 2 in the Member Services Division for LASERS, Ms. White had accrued $38,082.83 in contributions to LASERS from October 28,1984 to August 23, 2005. According to a September 14, 2009 affidavit of Ms. Folse, Ms. White first became eligible to retire and to draw a monthly benefit on April 1, 2009, and she joined the deferred retirement option plan [DROP] on that date. She chose the “Maximum option,” and “Multiple beneficiaries were chosen for her monthly retirement benefit and for her DROP account.”

In support of her own motion for summary judgment that sought the dismissal of Schultz’s claims, Ms. White filed an affidavit wherein she attested that “[tjhrough the beneficiary designation [in the community property settlement], |5it was intended that [Mr. White] would receive 50% of any unpaid retirement benefits payable upon my death, in the event I predeceased [Mr. White].” Mrs. White further attested, “It was never my intention for the contract provisions to extend to [Mr. White’s] children in the event he predeceased me.”

After a hearing on the cross-motions for summary judgment, the trial court rendered judgment in Ms. White’s favor, reasoning, in pertinent part, “Title to the retirement account could not and did not transfer prior to [Mr. White’s] death, irrespective of whether [Ms. White] had [complied with] her obligation to name him.... There [was] no transfer of assets to his estate; therefore, the children have no claim.” In conformity with these oral reasons, the trial court signed a written judgment that granted Ms. White’s motion for summary judgment, denied Schultz’s motion for summary judgment, and dismissed Schultz’s claims with prejudice.

Schultz has appealed, urging that the trial court erred in ruling that upon Mr. White’s death, Ms. White had no obligation to designate either Mr. White or Schultz, in her representative capacity, as a beneficiary. Schultz maintains that the provisions of the community property settlement were violated by Ms. White’s failure to name Mr. White as a beneficiary of the LASERS retirement benefit. Schultz submits that Ms. White’s obligation to name Mr. White as a beneficiary is now owed to his succession, and that Ms. White is obliged to name Schultz in her representative capacity as 50 percent beneficiary of Ms. White’s LASERS’s benefit.

Conversely, Ms. White contends that if she had named Mr. White as a beneficiary before his death, any rights he would have had to a portion of her |fiLASERS benefits terminated upon his death. Thus, she asserts that any claim that Mr. White once had with respect to the LASERS benefits is not heritable by his heirs.

II. ANALYSIS

A motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Summary judgment is favored and shall be construed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

The initial burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La. C.C.P. art. 966(C)(2). Once the movant has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. See Id.; Samaha v. Rau, 07-1726, p. 5 (La.2/26/08), 977 So.2d 880, 883. The non-moving party may not rest on mere allegations or denials but must set forth specific facts that show that a genuine issue of material fact remains. If the nonmoving party fails to meet this burden, there is no genuine issue of material fact, and the movant is entitled to summary judgment as a matter of law. Berry v. Paul Revere Life Ins. Co., 08-0945, p. 6 (La.App. 1st Cir.7/9/09), 21 So.3d 385, 388, writs denied, 09-2220 & 09-2241 (La.12/18/09), 23 So.3d 942 & 945; see |7La. C.C.P. art. 966(C)(2). An appellate court reviews a district court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Lafayette Elec. & Marine Supply, Inc. v. Abdon Callais Offshore, L.L.C., 09-2277, p. 1 (La.App. 1st Cir.7/29/2010), 44 So.3d 890.

Under Louisiana’s community property law, a pension right derived from a spouse’s employment during the existence of the marriage is a community asset subject to division upon dissolution of the community. La. C.C. art. 2338; Hare v. Hodgins, 586 So.2d 118, 122 (La.1991). On appeal, however, the parties do not dispute that under the terms of the community property settlement, Mr. White expressly transferred his community interest in the LASERS contributions and any ownership interest in the LASERS retirement benefit to Ms. White. Schultz claims that under the settlement terms, in exchange for giving up this community asset, Mr. White was entitled to be designated as a 50 percent beneficiary of Ms. White’s LASERS benefits. While Ms. White contends that she intended that Mr. White would receive a benefit only upon her death, Schultz contends that Mr. White was entitled to receive a monthly benefit upon Ms. White’s retirement, and upon Mr. White’s death, the right to receive such a benefit was transmitted to his estate.

In Louisiana State Employees’ Retirement System (LASERS) v. McWilliams, 06-2191, pp. 7-8 (La.12/2/08), 996 So.2d 1036, 1041-1042, the ^supreme court set forth the following general discussion of LASERS, which is also pertinent to the present case:

LASERS is a comprehensive qualified defined benefit pension and retirement plan under Section 401(a) of the Internal Revenue code, and its provisions and regulations are outlined in La. R.S. 11:401, et seq. The statute provides that each person who becomes an employee in the state service, except those specifically excluded, shall become a member of the system as a condition of employment. La. R.S. 11:411(1). Under LASERS, any member hired on or before Juñe 30, 2006, shall be eligible for retirement if he has thirty years or more of service at any age, twenty-five years or more of service at age fifty-five or thereafter, or ten years or more of service at age sixty or thereafter. La. R.S. ll:441(A)(l)(a)-(c). (footnote addressing another ground for retirement eligibility omitted).
LASERS retirement benefits are computed as follows: “[a] member who retires effective on or after July 1, 1973, shall receive a maximum retirement allowance equal to two and one-half percent of average compensation, as determined under R.S. 11:231, for every year of creditable service, plus three hundred dollars.” La. R.S. 11:444(A). The member will receive this retirement benefit throughout his lifetime, unless he elects some other option pursuant to La. R.S. 11:446, whereby he receives a reduced retirement benefit and benefits are paid to another person he nominates.... LASERS also provides for optional enrollment in [DROP], in lieu of terminating employment and accepting a retirement allowance. La. R.S. 11:447-451.4. (footnote omitted)

“Retirement” means the “termination of active service, with a retirement allowance granted under the provisions of [Chapter 1, addressing LASERS].” La. R.S. 11:403(24). Upon retirement, “[t]he retirement allowance, annuity or benefit shall be paid in equal monthly installments for life....” La. R.S. 11:445 A. “Retirement allowance or benefit” means an annuity for life paid in equal monthly installments. La. R.S. 11:403(25). A “beneficiary” means “any person designated by the member or legally entitled to receive a retirement allowance, an annuity, or other benefit.” La. R.S. 11:403(7).

| ¡iLouisiana Revised Statutes 11:446 allows a retiree to receive his benefit in a retirement allowance payable throughout his life or he may elect one of the options set forth therein and receive the actuarial equivalent of his retirement allowance in a reduced retirement allowance payable throughout life. Options 1, 2-A, 2B, and 3 provide for payments to be made to someone other than the member/retiree (i.e., a person nominated by written designation duly acknowledged and filed with the board of trustees) upon the member/retiree’s death. Option 4 provides, “Some other benefit or benefits shall be paid either to the member or to the person or persons he nominated, provided the other benefit or benefits, together with the reduced retirement allowance, shall be certified by the actuary to be of equivalent actuarial value to his retirement allowance and shall be approved by the board.” Option 5 provides an option whereby the member may receive an initial benefit, plus a reduced monthly retirement allowance.

According to the terms of the community property settlement executed by the Whites, the agreements contained in the settlement inured to the benefit of the “heirs, successors, and assigns of the parties.” Generally, an action to enforce an obligation is the property of the obligee, which on his death is transmitted with his estate to his heirs, universal legatees, or legatees under a universal title, except as otherwise provided by law. La. C.C.P. art. 426. But not all obligations are heritable. Louisiana Civil Code article 1765 provides, “An obligation is heritable when its performance may be enforced by a successor of the obligee or against a successor of the obligor.... A heritable obligation is also transferable between living persons.” Louisiana Civil Code article 1766 further provides, in pertinent part, “An obligation is strictly personal when its performance can be enforced only | inby the obligee, or only against the obligor.... When the performance is intended for the benefit of the obligee exclusively, the obligation is strictly personal on the part of that obli-gee.”

Addressing the facts of the present case, the obligation of Ms. White to name Mr. White as a beneficiary is not a heritable obligation. If Ms. White had named Mr. White as a beneficiary of her LASERS benefits before his death, Mr. White could not have transferred his beneficiary status to another party. A beneficiary can only be nominated by the LASERS member in a written designation duly acknowledged. La. R.S. 11:446. Since Mr. White could not have transferred his purported right to be named as a beneficiary to another person during his lifetime, Ms. White’s obligation to name him as a beneficiary was not transmitted to his heirs or legatees upon his death. Because the LASERS statutory provisions do not provide that a benefit is payable to the estate of a named beneficiary upon his death, we conclude that Ms. White’s performance of the obligation to specify Mr. White as a beneficiary was a performance that was intended for the exclusive benefit of Mr. White. Thus, it was a strictly personal obligation with respect to Mr. White. La. C.C. art. 1766. If Mr. White had been living when Ms. White entered the DROP program, and if Ms. Wfiiite had further elected any one of the reduced retirement allowance options in La. R.S. 11:446 Inand had designated Mr. White as a beneficiary, upon his death, her reduced benefit would have changed to the maximum benefit afforded by La. R.S. 11:444. See La. R.S. 11:446 D, which provides, in pertinent part:

If the beneficiary dies at any time before the death of the retiree, the benefits payable to the retiree shall be increased to the amount the retiree would have received had the retiree selected the maximum benefit, and the retiree’s reduced benefit shall change to the maximum benefit effective on the first day of the next month following the death of the designated beneficiary.

Upon Mr. White’s death, by operation of law, Ms. White would have received the maximum benefit, which is the option Ms. White ultimately chose when she entered the DROP program after Mr. White’s death. Thus, we conclude Schultz, as the independent administratrix of the Succession of Boyd White, did not establish that she is entitled to be designated as 50 percent beneficiary of Ms. White’s LASERS benefits.

For these reasons, we conclude that Schultz, as mover, did not establish that she was entitled to judgment as a matter of law. The trial court properly denied her motion for summary judgment.

III. CONCLUSION

For these reasons, we affirm the trial court’s judgment. Appeal costs are assessed against plaintiff-appellant, Vanessa Y. Schultz.

AFFIRMED.

      . Alternatively, Schultz prayed for a judgment ordering Ms. White to pay the sum of $19,041.42 to reimburse Mr. White’s succession for these community property benefits.

      . On appeal, Schultz does not advance her claim for reimbursement of 50 percent of Ms. White’s LASERS contributions during the marriage. Rather, she seeks to enforce the terms of the community property settlement.

      . Louisiana Revised Statutes 11:403(17) defines a "member'' as a person included in the membership of the system.

      . To allow substitutions of beneficiaries would operate contrary to the principles of actuarial soundness that are crucial to our state’s retirement systems. See La. Const. Art. 10, § 29(E).

      . Moreover, the evidence did not establish that Mr. White contemplated his rights were greater than those set forth in the applicable LASERS provisions. Schultz did not submit any evidence purporting to establish that Mr. White contemplated that his interest would be transmitted to his estate or that such an intent was made known to Ms. White. Additionally, Schultz has not sought to set aside the community property settlement based on error. See La. C.C. art. 1949.

      . Further, Schultz’s petition did not pray for Mr. White to be designated as a named beneficiary. In any case, such a designation would have had no effect under the applicable laws. No retirement benefits were payable before his death because Ms. White was at that time an active, contributing member of LASERS and had not yet retired. See La. R.S. 11:291 G, which states, "A state ... retirement system shall not pay any funds to any persons until such funds normally become payable as provided by the laws governing the retirement system.” And after Mr. White’s death, La. R.S. 11:446 D mandates that Ms. White shall receive the maximum retirement benefit. Accordingly, this court will not order a vain and useless act.


author: CARTER, C.J.

text:
    STATE of Louisiana ex rel. USED MOTOR VEHICLE COMMISSION v. SUNDANCE BOATS, INC.
    No. 2010 CA 0479.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.
    Robert W. Hallack, Baton Rouge, LA, for Plaintiff/Appellant, Louisiana Used Motor Vehicle Commission.
    Stephanie B. Laborde, Angela W. Adolph, Christina M. Soileau, Herschel C. Adcock, Sr., Baton Rouge, LA, for Defendant/Appellee, Sundance Boats, Inc.
    Before CARTER, C.J., GAIDRY and WELCH, JJ.
   CARTER, C.J.

|2The Louisiana Used Motor Vehicle Commission (“LUMVC”) appeals a judgment of the trial court sustaining a peremptory exception raising the objection of no right of action and dismissing its petition to make executory administrative adjudications of the Louisiana Recreational and Used Motor Vehicle Commission (“LRUMVC”).

FACTS AND PROCEDURAL HISTORY

Prior to Acts 2009, No. 403 (Act 403), the jurisdiction and authority to license and regulate all recreational vehicles, including boats, were vested in the LRUMVC. By Act 403, the Legislature re-named the LRUMVC the LUMVC (by deleting “Recreational and” from the agency’s title) and transferred jurisdiction over new recreational vehicles to the Louisiana Motor Vehicle Commission (“LMVC”). Thus, the LUMVC now has authority over the used vehicle (including used boats) industry and the LMVC now has authority over the new vehicle (including new boats) industry. See LSA-R.S. 32:784, LSA-R.S. 32:1254.

After the effective date of Act 403, the LUMVC instituted suit against Sundance Boats, Inc., seeking to make executory certain adjudications of the LRUMVC, entered prior to the effective date of Act 403, ordered Sundance to repurchase certain boats from a Louisiana dealer, and assessed various monetary penalties and costs. Sundance excepted to the petition, arguing that the LUMVC has no right of action to make the orders of the LRUMVC executory. The trial court agreed, sustained the peremptory exception raising the objection of no right of action, and dismissed the LUMVC’s petition. The LUMVC now appeals.

^DISCUSSION

The function of the peremptory exception raising the objection of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted. LSA-C.C.P. art. 927 A(6); Louisiana Bar Ass’n v. Carr and Associates, Inc., 08-2114 (La.App. 1 Cir. 5/8/09), 15 So.3d 158, 165, writ denied, 09-1627 (La.10/30/09), 21 So.3d 292. To prevail on the exception, the defendant must show that the plaintiff does not have an interest in the subject matter of the suit or legal capacity to proceed with the suit. Teague v. St. Paul Fire and Marine Ins. Co., 06-1266 (La.App. 1 Cir. 4/7/09), 10 So.3d 806, 847, writ denied, 09-1030 (La.6/17/09), 10 So.3d 722.

Sundance premises its argument on Act 403’s transfer of authority over new boat dealers to the LMVC. However, the orders seeking to be made executory specifically order payments to the LRUMVC. The LRUMVC was not abolished by Act 403. Rather, the LRUMVC’s name was changed to the LUMVC. Sundance is correct that jurisdiction over new boat dealers is presently vested in the LMVC. However, the orders at issue were validly entered by the LRUMVC and were not appealed. Thus, we find that the LUMVC, as the successor of the LRUMVC, has the right of action to seek enforcement of orders that order payment of funds to the LRUMVC.

CONCLUSION

For the foregoing reasons, the judgment of the trial court sustaining the peremptory exception raising the objection of no right of action and dismissing the LUMVC’s petition is reversed. Costs of this appeal are ^assessed to Sundance Boats, Inc. This matter is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.