author: KEATY, Judge.

text:
    John VITAL v. STINE, INC.
    No. 11-1088.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 8, 2012.

      Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff/Appellee, John Vital.
    James R. Morris, Morris Law Firm, Lake Charles, LA, for Defendant/Appellant, Stine, Inc.
    Court composed of SYLVIA R. COOKS, ELIZABETH A. PICKETT, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

|TIn this workers’ compensation case, the employer appeals from a judgment denying its motion to modify the weekly compensation due its former employee. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

John Vital injured his back and left leg on September 14, 1998, in the course and scope of his employment with Stine, Inc., when he slipped and fell while carrying a box of roofing shingles. Dr. Clark Gun-derson, a board certified orthopedic surgeon, performed a laminectomy from L3 to L5 with a decompression and lumbar fusion on Vital in July of 2003. Vital filed a 1008 Disputed Claim for Compensation (1008) in April of 2006, alleging that Stine was paying him an incorrect compensation rate, that Stine was not providing him with vocational rehabilitation, and that Stine had either made late payments or underpaid his weekly compensation benefits. The 1008 included a claim for penalties and attorney fees.

Following an April 24, 2008 trial, Stine stipulated that Vital had been injured in a work-related accident and that he was entitled to temporarily total disability benefits (TTDs) in the amount of $213.11 per week. On February 21, 2011, Stine filed a motion to modify seeking to have the workers’ compensation judge (WCJ) declare that Vital was no longer temporarily totally nor permanently totally disabled. The motion was tried on April 4, 2011. After the presentation of evidence, counsel for Vital agreed that if Vital was no longer permanently or temporarily totally disabled, he would no longer be entitled to supplemental | ¡.earnings benefits (SEBs) because he had already received in excess of the maximum 520 weeks of benefits.

In oral reasons for judgment rendered on May 2, 2011, the WCJ stated that Stine had failed to meet its burden of proving that Vital was no longer disabled. Written judgment was signed on May 24, 2011, denying Stine’s motion to modify. Stine now appeals, asserting in its sole assignment of error that the WCJ erred in finding Vital “to still be temporarily, totally disabled” and in denying its motion to modify.

DISCUSSION

In Odom v. Kinder Nursing Home, 06-1442, p. 5 (La.App. 3 Cir. 4/25/07), 956 So.2d 128, 132, we noted:

“The issue of disability within the framework of the workers’ compensation law is a legal rather than a purely medical determination. LeBlanc [v. Grand Isle Shipyard, Inc., 95-2452 (La.App. 1 Cir. 6/28/96)], 676 So.2d [1157,] 1161. The issue of disability is determined with reference to the totality of the evidence, including both lay and medical testimony. LeBlanc, 676 So.2d at 1161.” Walker v. High Tech Refractory Servs., Inc., 03-1621, p. 4 (La.App. 1 Cir. 6/25/04), 885 So.2d 1185, 1188.

See also Rideaux v. Kohl’s Dep’t Stores, Inc., 11-914 (La.App. 3 Cir. 12/7/11), 80 So.3d 703, and Green v. Nat’l Oilwell Varco, 10-1041 (La.App. 3 Cir. 4/27/11), 63 So.3d 354.

Pursuant to La.R.S. 23:1310.8(B), a party may re-open a workers’ compensation case and the workers’ compensation judge may modify an award on the grounds of a change in condition. “A party who seeks a modification of a worker’s compensation judgment must prove by a preponderance of the evidence that the worker’s disability has increased or diminished.” Lormand v. Rossclaire Constr., 01-515, p. 2 (La.App. 3 Cir. 12/12/01), 801 So.2d 675, 676.... The factual finding of a workers’ compensation judge that [a party] has demonstrated a change in condition is entitled to great weight and will not be disturbed unless clearly wrong. Lormand, 801 So.2d 675.

\ ¡Hardee v. City of Jennings, 07-242, pp. 2-3 (La.App. 3 Cir. 5/30/07), 961 So.2d 531, 533, writs denied, 07-1779, 07-1799 (La.11/9/07), 967 So.2d 505, 509.

In oral reasons for judgment, the WCJ stated:

A comprehensive reading and balanced evaluation of all the medical reports, opinions, and documents indicate Mr. Vital is as severely disabled today as he was years ago when he had the accident. In all likelihood his condition has deteriorated. It has certainly not improved, and the employment prospects for this 66-year-old man with very limited education and serious medical problems appear[s] to [have] no merit.

Several months after his July 2003 back surgery, Vital told Dr. Gunderson that he was “a whole lot better than prior to surgery.” In July of 2004, Dr. Gunder-son recommended that Vital undergo a functional capacity evaluation (FCE). After examining Vital and reviewing the results of the FCE, Dr. Gunderson released Vital to modified duty on August 31, 2004, with the following restrictions: he was to alternate sitting and standing and perform no continual bending, stooping, climbing, or lifting over twenty pounds.

Vital returned to Dr. Gunderson on November 20, 2007, complaining of increased back pain going down both legs to his knees that was aggravated by activity. He told Dr. Gunderson that he had not returned to work after his 2003 back surgery. At that time, Dr. Gunderson believed that Vital was disabled given the fact that he was sixty-three years old and his physical condition was not going to change. Dr. Gunderson wrote Vital a prescription for Darvocet to control his pain. In August of 2009, Dr. Gunderson requested, and Stine gave approval for, Vital to have a lumbar MRI and an electromyogra-phy (EMG) of his left lower extremity. The MRI revealed that Vital had post-surgical scarring at L4-5 and L5-S1 and a disc bulge at L3-4 with moderate to severe articular facet degeneration resulting in mild central canal stenosis and bilateral neural foraminal narrowing. The EMG showed “[e]vidence of chronic denervations in [Vital’s] left tibialis ^anterior, peroneus longus, and vastus lateralis muscles” which, to the evaluating neurologist, Dr. Fayez Shamieh, suggested the presence of chronic L4 root irriation on the left side. After reviewing the results of the MRI and EMG, Dr. Gunderson recommended that Vital undergo a second back surgery, a decompressive lumbar laminectomy at the L3 — 4 level.

Stine arranged for Vital to be examined by Dr. Michael Holland for a second opinion. In his February 11, 2009 report, Dr. Holland opined that Vital was not totally disabled and that he could return to the workplace at a light-duty level, noting that Vital had an excellent outcome from his 2003 surgery.

Given the diverging opinions of Drs. Gunderson and Holland, the WCJ appointed Dr. Lynn Foret, a board certified orthopedic surgeon, to conduct an independent medical exam of Vital. Dr. Foret examined Vital on March 2, 2010. He stated that the MRI showed that Vital had an abundance of scar tissue which should give Vital “a lot of ... back pain and spasm,” and will only worsen with time. Dr. Foret believed that surgery would stir up the scar tissue again. He found Vital to be very motivated and thought that he should be able to do some type of sedentary mild work that did not involve lifting or prolonged sitting. Nevertheless, when asked to assume that Vital had good days, where he could walk and help with chores such as cooking and doing laundry, and bad days, where he could hardly do anything, Dr. Foret acknowledged that Vital would be unable to hold down any type of job.

At trial, Vital testified that his condition had gradually worsened, especially in the past month. He stated that while the 2003 surgery initially relieved his pain, his pain returned after about one year post surgery. According to Vital, in the interim between his August 2004 and November 2007 visits with Dr. Gunderson, he received Hydrocodone for back and leg pain from a Dr. Clawson who was 15treating him for bladder infections. Vital explained that he has good and bad days, but that the bad days outnumber the good, and that he has to remain in bed on those bad days. He stated that he would like to work if able and that he would have the second surgery recommended by Dr. Gunderson if it would relieve his pain.

Stine assigns great significance to the fact that there was a three-year period after his surgery when Vital did not seek the care of Dr. Gunderson, his treating orthopedist. However, Vital testified that he received medication for his back and leg pain during that time from a physician that he was seeing for an unrelated condition. Stine also insists that Dr. Foret believed that Vital was not totally disabled and was capable of performing some type of light-duty sedentary work, while completely overlooking the fact that Dr. Foret agreed that Vital would be unable to work at any type of job if he were to regularly have bad days. Given the totality of the evidence and testimony, we cannot say that the WCJ was clearly wrong in making the legal determination that Stine failed to meet its burden of proving that Vital is no longer disabled.

DECREE

For the foregoing reasons, the judgment of the WCJ denying Stine, Inc.’s, motion to modify John Vital’s benefits from temporarily totally disability benefits to supplemental earnings benefits is affirmed. All costs of this appeal are assessed against Stine, Inc.

AFFIRMED.

      . See La.R.S. 23:1221 (3)(d)(ii).


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Chad Michael COURVILLIER.
    No. 11-1476.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 8, 2012.
    Jennifer Reasoner, District Attorney, 16th JDC, New Iberia, LA, for Appellee, State of Louisiana.
    Annette Roach, Louisiana Appellate Project, Lake Charles, LA, for Appellant, Chad Michael Courvillier.

      Court composed of OSWALD A. DECUIR, BILLY H. EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

_JjThe Defendant was charged by bill of information with driving while intoxicated (DWI), third offense, a violation of La.R.S. 14:98, and careless operation of a motor vehicle, a violation of La.R.S. 32.58. The Defendant pled guilty to the charges on April 27, 2010. Sentencing was deferred; he was placed on five years of supervised probation. Following a revocation hearing held on July 27, 2011, the Defendant’s probation was revoked, and he was sentenced to five years at labor for DWI, third offense, and thirty days in the parish jail for careless operation of a motor vehicle, to run concurrently with his DWI sentence.

An appeal in this matter was lodged in this court on November 80, 2011. A rule to show cause was issued on December 5, 2011, ordering the Defendant to show cause, on or before December 27, 2011, why the appeal should be not dismissed as the judgment at issue, probation revocation, is not an appealable judgment.

A response brief filed on behalf of the Defendant was received in this court on December 22, 2011. In his brief, the Defendant concedes that a probation revocation is not an appealable judgment. The Defendant then refers this court to its recent decision, State v. Scarborough, an unpublished opinion bearing docket number 11-973 (La.App. 3 Cir. 12/7/11), 2011 WL 6076527, wherein the defendant pled guilty, was sentenced to five years at hard labor, suspended, and was placed on five years of supervised probation. Following his probation revocation, the defendant filed a motion for appeal which was subsequently construed as a notice of intent to seek a supervisory writ, and he was permitted to file a supervisory writ within thirty days from the date of the decision. Likewise, to the extent the Defendant’s appeal seeks review of his probation revocation in the instant case, he requests that his motion for an appeal be considered as a notice of his intent to seek writs and he be given thirty days within which to file a writ of review.

| ¡Additionally, with regard to appellate review of his sentences, the Defendant maintains his case is distinguishable from Scarborough in that the imposition of his sentences was deferred pursuant to La. Code Crim.P. arts. 893 and 894; he was sentenced for the first time after his probation was revoked. See State v. Johnson, 390 So.2d 895 (La.1980). As such the Defendant asserts that appellate review of his sentences is proper.

A review of the record reflects that on April 27, 2010, following the Defendant’s guilty plea to DWI, third offense, and to careless operation of a motor vehicle, the trial court deferred sentencing in accordance with La.Code Crim.P. arts. 893 and 894 and placed him on five years of supervised probation. Following the revocation of his probation on July 27, 2011, the Defendant was sentenced to five years at hard labor for DWI, third offense, and to thirty days in the parish jail for careless operation of a motor vehicle, to run concurrently with his DWI sentence. He was also given credit for time served and for all sanctions. Considering same, we find that the Defendant’s sentence for DWI, third offense, is reviewable on appeal. However, the proper mode of review for his sentence for careless operation of a motor vehicle is supervisory writ application.

The minutes in the record reflect, however, that on August 29, 2011, the Defendant orally motioned the lower court to appeal his revocation hearing only. He made no mention of his sentences. Accordingly, we find that the Defendant did not seek appellate review of his sentences; however, the Defendant is entitled to supervisory review of his probation revocation. If Defendant seeks to appeal his sentence for DWI, third offense, he may seek reinstatement of his right to appeal by filing an application for post-conviction relief requesting an out-of-time appeal. La.Code Crim.P. art. 930.8.

Further, appellate counsel’s motion to withdraw as counsel of record for the purpose of the probation revocation writ of review is moot.

IsDECREE

The Defendant’s appeal of his probation revocation is dismissed. The Defendant’s motion for an appeal, however, is construed as notice of his intent to seek supervisory review as to the probation revocation, and he is permitted to file same within thirty days from the date of this decision. Further, appellate counsel’s motion to withdraw as counsel of record for the purpose of the probation revocation writ of review is denied as moot.


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

text:
    Daniel FRIEL and Kathryn Friel, et al. v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION.
    No. 2011-CA-1032.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 2012.

      Scott R. Bickford, Lawrence J. Centola, III, Martzell & Bickford, A.P.C., New Orleans, LA, for Appellants, Daniel & Kathryn Friel, William Callihan and Courtney Gustella.
    Scott T. Winstead, Jessica B. Cozart, Sutterfield & Webb, LLC, New Orleans, LA, for Defendant/Appellee, Now Construction.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, and Judge ROSEMARY LEDET).
   DENNIS R. BAGNERIS, SR., Judge.

hThe appellants, Daniel and Kathryn Friel, et al., appeal the judgment of the district court granting the appellee’s, NOW Construction’s (hereinafter “NOW’), peremptory exception of no cause of action and alternatively peremptory exception of prescription. The district court ruled that the appellants cannot maintain a negligence claim or redhibition claim against NOW. For the reasons that follow, we reverse and remand.

Facts/Procedural History

The appellants are homeowners of properties in the Lakeview area of New Orleans. The properties are located at 6511 and 6577 General Diaz Street. On December 4, 2007, Scott McIntyre sold 6577 to William Callihan; an appellant herein. On March 14, 2008, Mr. McIntyre sold 6511 to Daniel and Kathryn Friel. The appellants purchased the properties after Mr. McIntyre renovated the homes due to damage from hurricane Katrina. Mr. McIntyre used NOW construction for the remodeling of the homes.

| Jn March of 2010, the Friels discovered that their home was renovated with what they allege to be toxic Chinese Drywall. Subsequently in April 2010, the Callihans also discovered that their home was constructed with Chinese Drywall. According to the appellants, the Chinese Drywall “emitted sulfur compounds that corroded metals and caused health problems for the residents of the homes”; a problem that has become all too familiar to New Orleans homeowners subsequent to Hurricane Katrina.

On April 13, 2010, the appellants filed suit in Civil District Court for the Parish of Orleans against Louisiana Citizens Property Insurance Corporation (hereinafter “Louisiana Citizens”). On June 8, 2010, the appellants filed their First Amended and Supplemental Petition for Damages and Petition for Declaratory Judgment naming NOW, Scott McIntyre, and Louisiana Citizens as defendants. On March 1, 2011, NOW filed a Peremptory Exception of No Cause of Action and in the Alternative, Peremptory Exception of Prescription.

The district court granted NOW’s exceptions on April 28, 2011, ruling that NOW did not owe a duty to the appellants, that the appellants did not maintain a claim for redhibition and that amending the Petition for Damages would not cure the defects. It is from this judgment that the appellants take the instant appeal.

The appellants failed to brief this Court with any specific assignments of errors or issues for review. We reference the May 19, 2011 judgment wherein the appellee’s exceptions were granted and the district court reasoned that “NOW Construction, does not owe a duty to plaintiffs. Therefore, plaintiffs cannot maintain a negligence cause of action against NOW Construction”. For appellate purposes we begin by reviewing the record and the briefs to determine whether ^prescription has run. From there we direct our opinion to whether the appellants’ claims are sufficiently pled to withstand the preemp-tory exception of no cause of action

Prescription

Standard of Review

In reviewing a peremptory exception of prescription, an appellate court will review the entire record to determine whether the trial court’s finding of fact was manifestly erroneous. Katz v. Allstate Ins. Co., 2004-1133, p. 2 (La.App. 4 Cir. 2/2/05), 917 So.2d 443, 444. When evidence is received on the trial of the exception, the factual conclusions of the trial court are reviewed by the appellate court under the manifest error-clearly wrong standard. Id. Louisiana law provides no prescriptive period specifically applicable to a declaratory judgment action. Instead, courts must look to the cause of action that forms the underlying basis of the request in determining which prescriptive period applies, dela Vergne v. dela Vergne, 99-0364, p. 8 (La.App. 4 Cir. 11/17/99), 745 So.2d 1271, 1275.

Brown v. Schreiner, 81 So.3d 705 (La.App. 4 Cir.2011).

The appellants brief that the applicable prescription period is provided in La. Civ. Code Art. 2534(B) and that NOW is incorrect in its argument that the appellants’ claims have prescribed. La. Civ.Code Art. 2534(B) states, “[t]he action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.”

NOW maintains that the appellants improperly rely on La. Civ.Code Art. 2534(B) when the proper prescriptive period is provided in La. Civ.Code Art. 2534(A)(2) which states, “... when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of [¿the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.”

Both of these arguments fail. The appellants openly withdrew their claim for redhibition, therefore any argument under La. Civ.Code Art. 2534 is moot because the statute applies to redhibition claims.

In NOWs supplemental argument, it maintains that La. Civ.Code Art. 3492 provides the prescriptive period for the appellants’ claims arguing that their claims are delictual actions and are subject to libera-tive prescription of one year which would have commenced when the drywall was installed; approximately a year and a half before appellants filed their petition.

The record is void of any argument as to prescription under La. Civ.Code Art. 3492, nor did the district court address prescription in detail at the hearing on the exceptions. Although appellate review of prescription is a de novo review, this Court will not and cannot offer an argument as to prescription on behalf of the parties; therefore, we find the issue of prescription unarguable at this time.

Cause of Action

Standard of Review

The function of the peremptory exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Fink v. Bryant, 01-0987, p. 3 (La.11/29/01), 801 So.2d 346, 348. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Id., pp. 348-349. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. Id. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Id. Because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition, the appellate court reviewing the judgment should subject the case to a de novo review. Id.

\ 5Becnel v. Grodner, 2007-1041 (La.App. 4 Cir. 4/2/08), 982 So.2d 891, 894.

The appellants’ First Amended Petition for Damages alleges that NOW is liable under La. Civil Code Art. 2315 and for redhibition. The appellants argue on appeal that their petition contains well pled facts and clearly states a claim for negligence. The appellants further maintain that their well pled allegations in their petition should be accepted as true. Specifically, that NOW, as a named defendant under liability, knew or should have known that the Chinese Drywall installed in the homes did not meet the applicable standards; that the Chinese drywall was markedly different from domestic drywall; that NOW should have known that the Chinese drywall failed to meet the applicable code requirements; and that NOW chose to install the drywall despite the apparent defects.

NOW argues that the appellants fail to state a claim for negligence in their petition and that the only reference to NOW, as a named defendant, is in redhibition; once again, a legal theory withdrawn by the appellants.

NOW is listed in paragraph 1 of the amended petition which alleges that its remediation of the homes with Chinese drywall caused the “plaintiffs” unsafe, unsanitary and otherwise unlivable conditions. The petition further alleges that the “defendants” are liable under La. Civil code Art. 2315. We can determine from the pleading that NOW was intended to be a named defendant under both La. Civil Code Art. 2315 and redhibition. The district court ruled on the theory of negligence and it is our duty to review that ruling. NOWs argument is without merit.

[fiIn Bowser v. Premier Automotive Group, 2007-0324 (La.App. 4 Cir. 11/14/07), 971 So.2d 426, this Court reversed and remanded the district court’s granting of an exception of no cause of action and alternatively summary judgment. The plaintiffs in Bowser filed suit alleging that the defendants failed to properly install a handicap ramp causing the plaintiffs “aggravation, anguish, annoyance, anxiety, depression and inconvenience”, however the defendants responded by arguing that insufficient facts were pled to support the recovery of damages. This Court relied on the Louisiana Supreme court case Industrial Co., Inc. v. Durbin, 2002-0665, (La.1/28/03), 837 So.2d 1207, 1213, wherein it reasoned:

[t]he function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading. The exception is triable on the face of the petition and, for purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a district court’s ruling sustaining an exception of no cause of action, the appellate court and this court should conduct a de novo review because the exception raises a question of law and the district court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial.
Additionally, the district court shall order an amendment to the petition when the grounds of the objection may be removed by amendment, (citations omitted).

Our de novo review of the record reveals that the district court concluded that NOW did not have a duty to the appellants under La. Civ.Code Art. 2315. 17Although the district court made such a finding, it was done in error. A district court hearing on an exception is not the proper procedural tool to determine fact based findings or to make a judgment on the merits. At this juncture of the case, it is not the duty of the district court to determine whether the party can prevail and if so, against whom. The district court was not obligated to determine whether NOW owed the appellants a duty. The district court specifically acknowledged that the matter before it “is not a summary judgment”; an appropriate time to determine negligence after a de novo review of the pleadings, depositions, answers to interrogatories ... show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La.Code of Civ. Pro Art. 966(B).

Looking at the four corners of the appellants’ petition, we find that a cause of action is stated and well pled. The appellants allege that their action for damages arise out of NOW’s installation of the defective drywall and that the appellants incurred breathing problems and other personal injuries as a result; enough to sustain a cause of action. “All well pleaded allegations of the petition and any annexed documents must be accepted as true, and any doubt resolved in favor of the petition”. Reis v. Fenasci & Smith, 93-1785 (La.App. 4 Cir. 4/14/94), 635 So.2d 1319, 1321; Leaming v. Century Vina, Inc., 2004-1599 (La.App. 4 Cir. 5/1/05), 908 So.2d 21, 24.

Whether the appellants will prevail is not the query at this point, only whether they stated a cause of action that warrants a remedy. We find that they did.

Decree

For the reasons stated herein, we reverse the judgment of the district court granting the exception of no cause of action and in the alternative prescription in 1 sfavor of NOW, and remand this matter to the district court for further proceedings consistent with this opinion.

REVERSED AND REMANDED

LOVE J., concurs and assigns reasons.

LOVE J.,

concurs and assigns reasons.

_jjl respectfully concur with the majority. However, I write separately to emphasize the minimal standards required to surpass an exception of no cause of action. “The exception of no cause of action determines whether, based on the facts alleged in the four corners of the petition, the law affords the plaintiff a remedy.” Jenkins v. Gray Ins. Co., 11-0035, p. 3 (La.App. 4 Cir. 7/06/11), 67 So.3d 707, 709. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiffs behalf, the petition states any valid cause of action for relief. State, Div. of Admin., Office of Facility Planning and Control v. Infinity Sur. Agency, L.L.C., 10-2264, p. 9 (La.5/10/11), 63 So.3d 940, 946. “The mover has the burden of demonstrating the petition states no cause of action.” Id. “Appellate courts review a trial court’s decision sustaining peremptory exceptions of no cause of action ... using a de novo standard.” Mendonca v. Tidewater, Inc., 11-0318, p. 3 (La.App. 4 Cir. 9/07/11), 73 So.3d 407, 410.

“[Ljegal responsibility in tort claims is determined under a duty-risk analysis, which requires the plaintiff to prove four distinct elements: (1) duty, (2) breach, (3) cause in fact and (4) actual damages.” Becnel v. Grodner, 07-1041, p. 3 (La.App. 4 Cir. 4/2/08), 982 So.2d 891, 894. I find that the allegation set forth Rin the petition, considered in the light most favorable to the appellants and, if accepted as true, sets forth a cause of action.

      . At oral argument the appellants voluntarily withdrew any claim and appellate argument as it relates to redhibition.

      . The petition erroneously lists liability under La. Civil Code Art. 2415, however it is undisputed by the parties that this was a mere error in citation.

      . Finding that a cause of action exists does not equate with this Court finding that the appellants would prevail on a motion for summary judgment or at trial.


author: MAX N. TOBIAS, JR., Judge.

text:
    Blake ROBERTSON v. LAFAYETTE INSURANCE COMPANY.
    No. 2011-CA-0975.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 2012.

      Ann B. Steinhardt, New Orleans, LA, for Plaintiff/Appellant.
    Alexander R. Saunders, Pelleteri & Wie-dorn, L.L.C., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

h Blake Robertson (“Blake”), the plaintiff, appeals the involuntary dismissal of his lawsuit with prejudice against his father, Arthur Robertson (“Mr. Robertson”), and Lafayette Insurance Company (“Lafayette”). After reviewing the record and applicable law, we affirm the lower court’s judgment.

This matter arose after Blake fell off the roof of a house owned by his parents, Mr. Robertson and Mrs. Linda Robertson, sustaining injuries. Suit was originally filed on 9 January 2008 against Lafayette only and was properly served upon it. Lafayette filed an exception of no cause of action that was set for hearing on 23 May 2008. Neither Blake nor his counsel appeared for that hearing and his claims were dismissed without prejudice in a judgment dated 5 June 2008. Blake requested, and was granted, a new trial on the exception.

On 20 October 2008, Blake filed a supplemental and amending petition that added some new allegations against Lafayette and named Mr. and Mrs. Robertson as parties defendants. Service of the supplemental and amending petition was made on Lafayette, but the plaintiff requested that service on the Mr. and Mrs. Robertson |2be withheld. Lafayette filed a motion for summary judgment that was opposed by Blake; the motion was ultimately denied. Discovery occurred as reflected by Blake’s deposition of 28 July 2009 and Blake’s responses to interrogatories and requests for production, both of which were attached to the motion for summary judgment.

On 7 July 2010, Lafayette moved the trial court to conduct a status conference, which was scheduled to occur telephonically on 5 August 2010, and to provide the parties with discovery deadlines and a trial date. The district court, as a result of a scheduling conference, issued a trial order on 5 August 2010 that in pertinent part states that “counsel certifies that all potential parties had been served, and answered.” The order required the parties to file witness lists on specific dates, 10 November 2010 for the plaintiff and 24 November 2010 for the defendants. Although the order is not signed by the parties or their counsel, it is presumed that both counselors participated in its confection as no allegation has been made to the contrary in this appeal. The order reflects that it was mailed, apparently to counsel.

Blake neither caused Mr. and Mrs. Robertson to be served with citation following the status conference nor filed a witness list. On 15 November 2010, [3Lafayette moved the trial court to strike all of Blake’s witnesses once the deadline for his filing a witness list had expired. That motion was set for hearing on 17 December 2010. Blake’s counsel failed to appear for that hearing at which time the district court granted the motion. Blake sought no supervisory review of that interlocutory judgment and never filed a witness list.

Trial was scheduled to commence on Tuesday, 15 February 2011. Lafayette and its counsel appeared for trial; however, neither Blake nor his counsel was present. It was discovered that plaintiffs counsel had left voicemail messages for Lafayette’s counsel as well as for the trial court at some time between 8:30 and 9:00 a.m. on the morning of trial, stating that she was ill, thereby requesting a continuance. The defendants moved for, and were granted, an involuntary dismissal with prejudice of Blake’s lawsuit. See La. C.C.P. art. 1672. It is unclear whether either defendants’ counsel or the trial court was aware of Blake’s counsel’s telephone calls before the trial court dismissed the suit.

Blake filed a motion for new trial, arguing that his counsel had been very ill and that should have been a valid excuse to fail to appear for trial, although counsel failed to advise the court or the defendants of such on Monday, the day Rbefore the trial. During the discussion of the motion, Blake’s counsel recalled that no answer was filed on behalf of Mr. and Mrs. Robertson and that they had never been served with the supplemental and amended petition. The trial court recessed for the weekend, allowing counsel to prepare to argue the meaning of this development. The plaintiffs counsel then filed into the record a waiver of service signed by Mr. Robertson on 20 October 2008, obtained by her but not previously filed into the record. Although Mr. and Mrs. Robertson were never served, Lafayette’s counsel waived Mr. Robertson’s objection to personal jurisdiction for lack of service on the morning of trial. At the close of the hearing, the trial court denied the motion for new trial and this appeal followed.

Blake alleges that the trial court erred by (1) setting the matter for trial when Mr. and Mrs. Robertson had not filed an answer, (2) striking all of the plaintiffs witnesses, including the plaintiff himself, (3)failing to grant the plaintiffs verbal motion for a continuance on the morning of trial due to his counsel’s illness, and (4) denying the motion for new trial to set aside the involuntary dismissal.

The issue of Mr. and Mrs. Robertson’s failure to file an answer is moot as Lafayette’s counsel made an appearance for Mr. Robertson appeared at trial, thereby waiving service and jurisdiction. We find the failure of Mr. Robertson to file an answer has no bearing on this case.

[fiWe next address the striking of the plaintiffs witnesses for failure to file a witness list. Our courts have long held that the theory inherent in pre-trial civil procedure is to avoid surprise and to permit an orderly disposition of the case. Eanes v. McKnight, 262 La. 915, 931-32, 265 So.2d 220, 226-27 (1972); Brooks v. Sewerage and Water Bd. of New Orleans, 02-2246, p. 5 (La.App. 4 Cir. 4/30/03), 847 So.2d 639, 643. It is also well-recognized that the trial court has wide discretion to implement a pretrial order and insure that its terms are enforced. Id.

La. C.C.P. art. 1551 states:

A. In any civil action in a district court the court may in its discretion direct the attorneys for the parties to appear before it for conferences to consider any of the following:
(1) The simplification of the issues, including the elimination of frivolous claims or defenses.
(2) The necessity or desirability of amendments to the pleadings.
(3) What material facts and issues exist without substantial controversy, and what material facts and issues are actually and in good faith controverted.
(4) Proof, stipulations regarding the authenticity of documents, and advance rulings from the court on the admissibility of evidence.
(5) Limitations or restrictions on or regulation of the use of expert testimony under Louisiana Code of Evidence Article 702.
(6) The control and scheduling of discovery including any issues relating to disclosure or discovery of electronically stored information, and the form or forms in which it should be produced.
(7) Any issues' relating to claims of privilege or protection of trial preparation material, and whether the court should include agreements between counsel relating to such issues in an order.
|fi(8) The identification of witnesses, documents, and exhibits.
(9) The presentation of testimony or other evidence by electronic devices.
(10) Such other matters as may aid in the disposition of the action.
B. The court shall render an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel. Such order controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.
C. If a party’s attorney fails to obey a pretrial order, or to appear at the pretrial and scheduling conference, or is substantially unprepared to participate in the conference or fails to participate in good faith, the court, on its own motion or on the motion of a party, after hearing, may make such orders as are just, including orders provided in Article 1471(2), (3), and (4). In lieu of or in addition to any other sanction, the court may require the party or the attorney representing the party or both to pay the reasonable expenses incurred by noncompliance with this Paragraph, including attorney fees.

While a harsh remedy, we cannot say that the trial court abused its discretion by striking Blake’s witnesses for the failure of his counsel to file a witness list. Blake never sought to modify the pretrial order to obtain more time in which to file the list. Further, he had sufficient time before the scheduled trial date to correct the deficiency.

The motion to strike witnesses was filed by Lafayette on 15 November 2010 and set for hearing on 17 December 2010. The rule to show cause was personally served on Blake, through his counsel, on 3 December 2010. The plaintiff could 17have filed a witness list before the hearing and requested the court to dismiss the motion; he did not. Additionally, the plaintiff, through his counsel, did not appear at the hearing. The judgment on the motion was not signed until 4 January 2011 and the notice of judgment was mailed to the following day. Again, with a trial date of 15 February 2011, the plaintiff still had time to take some action in an attempt to remedy the situation, but did not. Therefore, we cannot find an abuse of discretion by the trial court.

An involuntary dismissal for failure to appear is addressed in La. C.C.P. art. 1672, which states in pertinent part:

A. (1) A judgment dismissing an action shall be rendered upon application of any party, when the plaintiff fails to appear on the day set for trial. In such case, the court shall determine whether the judgment of dismissal shall be with or without prejudice.

The standard of review of an involuntary dismissal is abuse of discretion. In O’Rourke v. Nora’s Creole Café, 03-0810, p. 3 (La.App. 4 Cir. 8/13/03), 854 So.2d 976, 978, we stated:

A trial judge’s knowledge of the condition of the court’s docket, fairness not only to both parties but also to other litigants in the court, and the need for an orderly and prompt administration of justice provides the trial judge with superior ability to determine the terms of the dismissal. Keyes v. Johnson, 542 So.2d 209 (La.App. 3 Cir.1989); Malter v. McKinney, 310 So.2d 696, 698 (La.App. 1 Cir.1975). The trial court’s dismissal of a cause of action based upon plaintiffs failure to appear for trial will not be reversed absent a showing that the trial court abused its discretion. Keyes, supra.

We also stated in Hebert v. C.F. Bean Corp., 00-1029, p. 3 (La.App. 4 Cir. 4/25/01), 785 So.2d 1029, 1031:

IsPropriety of a trial court’s grant of a motion for involuntary dismissal for failure to appear for trial is subject to the manifest error standard of review.

No inconsistency exists between O’Rourke and Hebert. If a trial court is manifestly erroneous or clearly wrong in granting an involuntary dismissal, it would simultaneously abuse its discretion in granting the dismissal.

The trial court also has wide discretion when deciding whether to grant a new trial. La. C.C.P. art. 1973. Therefore, we review the denial of a new trial by applying the abuse of discretion standard. Dowl v. Redi Home Health Care Assn., 04-1182, p. 7 (La.App. 4 Cir. 12/22/04), 917 So.2d 434, 440.

After reviewing the record and the repeated failure by the plaintiffs counsel to prosecute this case, we cannot say that the trial court abused its discretion or was manifestly erroneous by granting the motion for involuntary dismissal and denying the motion for new trial. The trial court gave the plaintiffs counsel every opportunity to correct previous mistakes and move this matter forward.

The trial court stated at the hearing on 8 April 2011:

I guess, I’m going to be very honest with you, Ma’am, part of your problem with your motion for new trial is that your track record precedes you and in your track record you have been historically a no show and no response, in this case specifically where we’ve tried to contact you, no response from you, even in this particular case there was just as the Court puts it, pretrial order together with required production of a list of witnesses you failed to even submit witnesses on behalf of your client. I am not clear how you even intended to try to proceed with trial given the fact that you had no witnesses that you would be able to call. I understand but your track record in this case, I feel obligated at this point, defense counsel had been here on more than one occasion by himself dealing with this case and dealing with issues in this case. I’ll tell you, and I probably frustrated the heck out of him because I bent over backwards, Ma’am, to try and not do things that would prejudice your client’s case but the reality become [sic] |flthat when the rubber met the road on the day of the trial and we had not until that morning heard from you, and I’m not suggesting that you were not telling the truth about being sick but it’s very difficult for the Court to work with you when you don’t even seem to be working with me or with opposing counsel on this case, I’m going to be very honest with you, that’s the reality.

We understand that a dismissal with prejudice is highly prejudicial to the plaintiff himself, however, as remarked by the court, this was not the first time the plaintiffs counsel did not appear in court or do something which counsel was required or ordered to do. The trial court was within its discretion to grant the involuntary dismissal and deny the motion for new trial.

Based on the foregoing, we affirm the judgment of the trial court.

AFFIRMED.

      . Although the answers to interrogatories and requests for admissions disclosed the name of a doctor and health care facility, it is not a witness list.

      . The trial order is signed only by the minute clerk of Division "I” of Civil District Court. We know of no law that allows a minute clerk to sign a trial order. La. C.C.P. art. 1551 B directs that the court, i.e., the judge, sign such an order, not a minute clerk. Theoretically, a minute clerk could sign such an order if directed by the judge and the order affirmatively reflects that it was signed by a deputy clerk of court (of which a minute clerk is one) at the court’s direction; however, the trial order in the record before us contains no such notation. See La. C.C.P. art. 256; La. R.S. 13:1. Nevertheless, Blake has not raised the issue on appeal.

      . Our law does now allow a trial court to strike a party as a witness, but may strike all other witnesses under appropriate circumstances. In the case before us, because Blake sustained physical injuries to his person as a result of his fall, it would be incumbent upon him to call a physician to explain his injuries and treatment. Thus, in the case at bar, it was an absolute necessity for Blake to list witnesses because the answers to interrogatories were not a substitute for a witness list. The plaintiff contends that even he would not have been allowed to testify at trial. The judgment states that the plaintiff's witnesses could not testify; the plaintiff is not a witness but a party to the lawsuit. We find nothing in the law or jurisprudence that would prevent a party from testifying at trial. See n. 1, supra; see also Lawless v. Employers Mut. Fire Ins. Co., 263 So.2d 79, 80 (La.App. 1st Cir.1972).

      . See Carter v. Rhea, 01-0234 (La.App. 4 Cir. 4/25/01), 785 So.2d 1022.

      . As reflected in the record, counsel suffers from severe asthma and had been sick for approximately a month before trial. Although she was feeling better the week before trial, she worsened over the weekend.

      . Lafayette's counsel never made an appearance for Mrs. Robertson who did not sign the waiver presented to Mr. Robertson in October 2008 by Blake’s counsel.

      . The appealed trial court judgment dismisses only Lafayette and Mr. Robertson; it is silent with respect to Blake’s claims against his mother. We do not address whether Blake’s claims against Mrs. Robertson are still viable.

      . See n. 3, supra.

      . Ibid.


author: TERRI F. LOVE, Judge.

text:
    STATE of Louisiana in the Interest of L.A.
    No. 2011-CA-1138.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 8, 2012.
    Ali Pearson, Juvenile Regional Services, New Orleans, LA, for L.A./Appellant.
    Leon A. Cannizzaro, Jr., District Attorney, New Orleans, LA, Felicity Strachan, Assistant District Attorney, New Orleans, LA, for the State of Louisiana/Appellee.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge DANIEL L. DYSART).
   TERRI F. LOVE, Judge.

h L.A. appeals the Orleans Parish Juvenile Court judgment that adjudicated him delinquent for battery of a school teacher relative to La. R.S. 14:38.2. We find that the petition for adjudication gave the juvenile adequate notice of the charged offense so as to not deprive him of due process and that the evidence was sufficient to support the adjudication. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

L.A. was charged by delinquency petition with one count of assault on a school teacher, a violation of La. R.S. 14:38.2. He denied the charge and the matter proceeded to trial on June 23, 2011.

At the delinquency hearing, Kayla August, a teacher’s assistant at Sci-Tech Academy, the school L.A. attended at the time of this incident, testified that she and another teacher’s assistant, Katie Crisona, saw L.A. chase a female student into the school building. Ms. August and Ms. Cri-sona told L.A. that he could not enter the building. The women locked arms to prevent him from entering; |2however, L.A. pushed through their arms in an effort to get to the female student. At this point, Mizell Fisher, the victim/teacher, intervened. Ms. August stated that Mr. Fisher held L.A. down. She observed that L.A. tried to fight back because he did not want anyone to hold him down. Eventually, Mr. Fisher was able to get L.A. out of the annex. Ms. August said she heard L.A. mumble something when he was walking away, but she could not make out what was said.

The other teacher’s assistant, Ms. Criso-na, verified that Ms. August and she told L.A. to leave the building several times. He ignored them. L.A. then grabbed Ms. Crisona’s arm to get through them. Ultimately, Mr. Fisher came in and pulled L.A. out of the building. Ms. Crisona said that words were exchanged on both sides, but she does not remember what was said. She thinks L.A. and Mr. Fisher may have used profanities.

Officer Johnnie Harper, Jr. said he investigated a disturbance at the school. He spoke with the gym teacher who actually filed the complaint. Based on his investigation, L.A. was arrested for disturbing the peace by verbal threats. Officer Harper recalled that threats were made against the gym teacher. Officer Harper testified that the two female teacher-trainees corroborated what he learned from the gym teacher. However, he admitted on cross-examination that his written report did not contain corroboration from the female teacher-trainees about threats.

Mizell Fisher, the teacher/victim, worked as the physical education teacher at the school. He testified that he witnessed L.A. chase another female student into a school building, screaming profanities at her. He saw L.A. attempt to bull-dozejjhis way through the female teacher assistants in order to get into the building. He stepped in and asked L.A. to come away from the door. L.A. did not leave and instead, yelled profanities at Mr. Fisher. Mr. Fisher said that L.A. told him to leave him alone and to not put his f.. .king hands on him. Mr. Fisher explained that school protocol allows teachers to physically remove a student if the student is perceived as a threat to others or himself. Because L.A. would not leave the building, Mr. Fisher grabbed his arm to escort him out of the building. He denied that he hit L.A. After he removed L.A. from the building, L.A. said he was going to get Mr. Fisher. Mr. Fisher testified that L.A. threatened to shoot him and to kill him. Mr. Fisher asserted that he feared that L.A. would follow through on these threats.

At the conclusion of the adjudication hearing, the juvenile court judge found L.A. delinquent and sentenced him to six months at the Department of Safety and Corrections. The court suspended the sentence and placed L.A. on active probation for one year. This appeal followed.

DISCUSSION

ASSIGNMENT OF ERROR NO. 1

L.A.’s first assignment argues that the juvenile court erred when it adjudicated L.A. delinquent of assault on a school teacher based upon finding that L.A. made statements threatening harm to a school teacher when the charging ^petition did not allege those grounds. In support, L.A. cites the state’s petition that charged L.A. was a delinquent child in that he violated:

Count 01: La. R.S. 14:38.2 relative to Assault on a School Teacher, to wit: an attempt to commit a battery upon a school teacher, Mizell Fisher, or the intentional placing of another in reasonable apprehension of receiving [sic] a battery, when the offender had reasonable grounds to believe the victim was a school teacher acting in the performance of his duties on March 1, 2011 at approx. 1:44 pm at 820 Jackson Street.

However, L.A. points out that R.S. 14:38.2 also defines assault on a school teacher as making statements threatening physical harm to a school teacher and that this “making threatening statements” definition was not directly referenced in his charging petition. He alleges that the trial court specifically adjudicated him a delinquent for making threatening statements. L.A. reasons that because the petition did not give him notice that he was accused of violating R.S. 14:38.2 by making statements threatening physical harm, the juvenile court violated his right under due process of law to be informed of the nature and cause of the accusation against him. He claims his defense was prejudiced by this lack of notice. Therefore, his adjudication was in error.

The statutory requirements for a charging document as outlined in La. C. Cr. P. art. 464 states:

The indictment shall be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It shall state for each count the official or customary citation of the statute which the defendant is alleged to have violated. Error in the citation or its omission shall not be ground for dismissal of the indictment or for reversal of a conviction if the error or omission did not mislead the defendant to his prejudice.

| sLa. Ch.C. art. 845(A)(3)(4) provides in part that the contents of the petition shall include facts which show the child is delinquent and the statute or ordinance which the child is alleged to have violated.

In the present matter, we conclude that the charging petition met the statutory requirements of La.C.Cr.P. art. 464 and La. Ch.C. art. 854(A)(3)(4). It cited the statute violated and provided L.A. with sufficient facts of the underlying offense. The petition notified L.A. that he was charged with violation of La. R.S. 14:38.2, relative to assault of a school teacher, Mr. Fisher, and advised L.A. of the date, time, and place of the alleged offense.

Even if this court accepts L.A.’s contention that the charging petition was defective because it did not notify him that the assault violation was premised on making statements threatening physical harm, we find this was harmless error. The assignment of error fails because L.A. does not demonstrate that he was prejudiced by this alleged lack of notice. He presents no evidence to show how his defense was adversely affected or would have been substantially different had the “making threats” language been included in the charging petition. To the contrary, the record establishes that L.A. defended against claims that he assaulted the teacher by threatening physical harm. It shows that his counsel cross-examined witnesses as to whether L.A. made verbal threats. L.A.’s brief also acknowledges that the trial court considered his defenses that any alleged threatening statements were protected free speech and that the statements did not rise to the level to constitute a threat of receiving a battery. The record suggests that counsel knew to raise these defenses because L.A.’s initial arrest was for Disturbing the Peace by making threats. Therefore, it is somewhat disingenuous for L.A. to argue that he | r,lacked notice that his statements to the teacher may have constituted a part of the assault charge.

We also do not accept L.A.’s underlying claim that the juvenile court judge based her adjudication solely on the “making threats” portion of the statute and that he was thereby prejudiced. This claim is not supported by the record. Instead, the record reveals that the trial judge read the entire provisions of La. R.S. 14:38.2 into the record and said “[b]ased on the testimony that I have heard this morning, and the evidence, I find that [L.A.] is, in fact guilty of assault of a school teacher.” This finding establishes that the trial court based L.A.’s assault adjudication upon a violation of La. R.S. 14:38.2, the named statute cited in the charging petition, not a portion of the statute as argued by L.A. Therefore, the charging petition did not mislead L.A. He was convicted of the offense for which he was charged in the petition. The petition gave him ample opportunity to defend the charges and afforded him due process under the law. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 2

L.A.’s second assignment of error maintains that the evidence did not support an adjudication for assault on a school teacher. L.A. argues that the testimony of the teacher aides support that, if anything, the victim committed a battery on L.A. by grabbing him and holding him against a wall and that the aides did not hear any threatening statements. He also contends that even if the victim’s testimony about the threatening statements is to be believed, the State offered no evidence that the victim was in reasonable apprehension of receiving a battery.

“The State’s burden of proof in a juvenile delinquency proceeding, just as in a criminal proceeding against an adult, is to prove every element of the offense 17alleged beyond a reasonable doubt.” State in the Interest of K.M., 10-0649, p. 4 (La.App. 4 Cir. 9/29/10), 49 So.3d 460, 463.

In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). The Louisiana Supreme Court held that the Jackson standard is the clear standard of review for Louisiana appellate courts. State v. Brown, 03-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. This standard of review is applicable to juvenile delinquency cases. State in the Interest of T.E., 00-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417.

“Appellate review of juvenile cases extends to law and fact.” State in the Interest of T.T., 09-1201, p. 2 (La.App. 4 Cir. 1/13/10), 30 So.3d 220, 221. “Nevertheless, we recognize that the juvenile judge observes the conduct and demeanor of the witnesses and is thus in a far better position to determine credibility and weigh the evidence.” State in the Interest of D.L., 30,878, p. 3 (La.App. 2 Cir. 6/24/98), 715 So.2d 623, 626. Thus, we afford great deference to the judge’s findings of fact and to his determination of credibility of the witnesses and the weight to be given to their testimony. State in the Interest of J.N., 07-1229-1306, p. 8 (La.App. 4 Cir. 5/7/08), 984 So.2d 910, 915. Therefore, in light of the record in its entirety, the court of appeal may not reverse the findings of the trial court unless manifestly erroneous or clearly wrong. See State in the Interest of D.R., 10-0405, p. 8 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 931.

In applying this standard of review to the case at bar, we affirm the adjudication. Mr. Fisher, the victim, testified that L.A. threatened to “get,” |s“shoot,” and “kill” him. He also testified that he believed L.A. could follow through on these threats and that he was afraid. With this testimony, a rational trier of fact could determine that L.A.’s actions met the statutory elements to constitute an assault against a school teacher. The trial court specifically found L.A. guilty of assault because it believed the testimony of the victim. Therefore, viewing the evidence in the light most favorable to the prosecution, we cannot say that the trial court’s findings were manifestly erroneous or clearly wrong.

DECREE

For the foregoing reasons, the judgment of the trial court adjudicating L.A. guilty of assault is affirmed.

AFFIRMED

      . As L.A. is a juvenile, he will be referred to by his initials. La. C. Ch. Art. 412.


author: SAUNDERS, Judge.

text:
    OPELOUSAS TRUST AUTHORITY d/b/a Opelousas General Health System, et al. v. CLECO CORPORATION and Cleco Power, LLC. Deborah Mayo, et al. v. Cleco Corporation and Cleco Power, LLC.
    Nos. 11-348, 11-391, 11-392, 11-349.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 15, 2012.

      Richard Joseph Arsenault, John Randall Whaley, Neblett, Beard & Arsenault, Robert Lawrence Beck, Jr., Attorney at Law, Alexandria, LA, Jeffrey Michael Bassett, Patrick Craig Morrow, Sr., James P. Ryan, Morrow & Morrow, Pride Justin Doran, Quincy L. Cawthorne, Doran Law Firm, Opelousas, LA, for Plaintiffs/Respondents, Opelousas Trust Authority, et al.
    Richard Charles Stanley, W. Raley Alford, III, Stanley, Flanagan & Reuter, Alison N. deClouet, Stanley, Reuter, Ross, New Orleans, LA, Mark Douglas Pearce, Julia Elizabeth Callis, Attorneys at Law, Pineville, LA, for Defendants/Applicants, Cleco Power, LLC, Cleco Corporation.
    Dennis Coleman Weber, Attorney at Law, Amanda H. Smith, La. Public Service Commission, Baton Rouge, LA, for Inter-venor/Respondent, Louisiana Public Service Commission.
    Kenneth Boagni, Dianne Marie Mayo, Anna Wise Cunningham Simmons, Attorneys at Law, Opelousas, LA, for Plaintiffs/Respondents, Deborah Mayo, et al.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JOHN D. SAUNDERS, Judges.
   SAUNDERS, Judge.

|! This case involves the consolidation of four writs into a single writ opinion. Two of the writs, numbers 11-348 and 11-349, were filed by Cleco Corporation and Cleco Power, LLC (“Cleco”). The other two writs, numbers 11-391 and 11-392, were filed by the Louisiana Public Service Commissioner (“the LPSC”), as intervenor in two separate class action suits which have been filed against Cleco by a putative class of utility ratepayers (“Ratepayers”) in the City of Opelousas. Ratepayers seek reimbursement for alleged overcharges for electricity for a period of nearly twenty years.

In response to both lawsuits, Cleco filed exceptions of lack of subject matter jurisdiction, prematurity, and improper venue. Following a hearing, the trial court denied Cleco’s exceptions. We find no error by the trial court and, thus, deny these writs.

FACTS AND PROCEDURAL HISTORY:

At this time, four separate writ applications have been filed whereby Cleco and the LPSC seek to have this court review the trial court’s ruling that denied Cleco’s exceptions of lack of subject matter jurisdiction, prematurity, and improper venue. In the lawsuit entitled “Opelousas Trust Authority d/b/a General Health System, et al. v. Cleco Corporation and Cleco Power, L.L.C.,” Cleco’s writ application challenging the trial court’s ruling has been assigned to this court under docket number 11-348. One of the LPSC’s writ applications has been assigned to this court under docket number 11-392. In the lawsuit entitled “Deborah Mayo, et al. v. Cleco Corporation and Cleco Power, L.L.C.,” Cleco’s writ application challenging the trial court’s ruling has been assigned to this court under docket number 11-349, and, finally, the LPSC’s other writ application has been assigned to this court under docket number 11-391. Since the issues raised in these writ 12applications are nearly identical, we consolidate the four writs and address them in a single writ opinion.

DISCUSSION OF THE MERITS:

This court has stated, “[t]he exercise of supervisory jurisdiction by appellate courts is within their plenary power. La. Const, art. 5, § 10. Appellate courts generally will not exercise such jurisdiction unless an error in the trial court’s ruling will cause the petitioner irreparable injury or an ordinary appeal does not afford an adequate remedy. Stevens v. Patterson Menhaden Corp., 191 So.2d 692 (La.App. 1 Cir.1966), writ denied, 250 La. 5, 193 So.2d 524 (1967).” Borrel's, Inc. v. City of Marksville, 05-48, p. 1 (La.App. 3 Cir. 6/1/05), 904 So.2d 938, 939.

EXCEPTION OF LACK OF SUBJECT MATTER JURISDICTION:

In its opposition to the writ applications, Ratepayers assert that the trial court properly concluded that it has subject matter jurisdiction over their claims against Cleco. Ratepayers contend that although Cleco provided electrical services to them and they seek to recover as a result of being overcharged, these are not rate-making cases. As such, Ratepayers argue that a district court, and not the LPSC, has the constitutional and statutory authority to determine the merits of their claims. They maintain that their situation is unique because the City of Opelousas owns its own distribution system. Ratepayers note that, in 1991, the city entered into a Franchise Agreement whereby Cle-co was allowed to use the city’s distribution system to provide electrical service to the City of Opelousas’ residents. Ratepayers point out that, pursuant to that contract, Cleco agreed to charge the City of Opelousas’ residents the present or modified rates as approved by the LPSC. Ratepayers also point out that, pursuant to the Franchise Agreement, the city is obligated to compensate Cleco for their distribution expenses at the conclusion of the terms of the agreement, and Cleco is obligated to maintain liability insurance | ¡¡for the city’s distribution system. Ratepayers maintain that, rather than simply being bystanders to the agreement, residents of the city of Opelousas voted to approve the terms of the Franchise Agreement and were clearly intended to be beneficiaries of the agreement.

Ratepayers contend that, despite the provisions set forth in the Franchise Agreement, Cleco did not give any special consideration to City of Opelousas’ residents. In fact, Ratepayers accuse Cleco of simply charging residents of Opelousas expenses and storm restoration adjustment costs (as compensation for damage to the distribution system which was caused by Hurricanes Katrina and Rita) as though no franchise agreement existed. Noting that the electricity charges at issue include embedded distribution costs, Ratepayers claim that they should not be charged for such costs because the City of Opelousas owns the distribution system used for providing its residents’ electricity services. Also, Ratepayers contend that such charges are inappropriate for them because the Franchise Agreement provides that, at the conclusion of the agreement, the City of Opelousas will be required to pay Cleco for any distribution costs which it incurs during the term of the agreement. Additionally, Ratepayers allege that it is inappropriate for Cleco to charge City of Opelousas residents for storm restoration damages since Cleco is contractually obligated (under the Franchise Agreement) to insure the city’s distribution system against the very losses for which Cleco seeks to have reimbursed.

Despite these factors, Ratepayers assert that Cleco never asked the LPSC to review the Franchise Agreement and consider or approve a special rate for Opelousas residents. Rather, Ratepayers contend that Cleco simply obtained the LPSC’s approval for general rates and for storm restoration costs. Ratepayers maintain that the fact that the LPSC approved the general rates, without knowledge |4of the specific facts and contractual terms involving the City of Opelousas, does not serve to shield Cleco from having to answer for their alleged contractual breaches and tor-tious actions. According to Ratepayers, since Cleco’s rights and obligations flow directly from the Franchise Agreement, resolution of Ratepayers’ claims will necessarily require judicial interpretation of the contract and consideration of the pertinent facts. In that regard, Ratepayers contend that the determination of responsibilities and obligations that flow from contractual provisions is a function which district courts perform every day in accordance with the original jurisdiction vested in district courts by La. Const, art. 5, § 16.

Ratepayers note that La. Const, art. 4, § 21(B) grants the LPSC the power to regulate public utilities. However, Ratepayers assert that the LPSC’s power is limited by La. Const, art. 4, § 21(C) which provides that the LPSC’s regulation power does not extend to any public utility owned, operated, or regulated by a municipality. Ratepayers contend that La.R.S. 45:1164(B) also provides that the LPSC’s powers do not apply when a public utility is owned or operated by a municipality. Ratepayers argue that, in order for the LPSC’s jurisdiction to be defeated under La. Const, art. 4, § 21(C), the only thing that needs to be proven is that the City of Opelousas owns, operates, or regulates its utility system. Ratepayers assert that the city does all three of those things. In that regard, Ratepayers maintain that the City of Opelousas still owns its distribution system and that the distribution system is regulated and operated through the terms of the Franchise Agreement. It is Ratepayers’ position that the city’s ownership, regulation, and operation of its utility system through the Franchise Agreement takes Ratepayers’ cases outside the exclusive jurisdiction of the LPSC.

In support of their position that the trial court, and not the LPSC, has subject matter jurisdiction, Ratepayers cites Central Louisiana Elec. Co., Inc. v. Louisiana | 5Public Service Com’n, 601 So.2d 1383 (La.1992). In that case, the utility company entered into a contractual agreement with the City of Franklin for operating that city’s electric distribution system and furnishing electrical services to the citizens of Franklin. The utility company filed suit, alleging that the City of Franklin had violated an exclusivity provision in its franchise agreement with it when the city permitted another electric company to supply electric power to a newly annexed area of the city. In concluding that the district court, and not the LPSC, had subject matter jurisdiction over that case, the Louisiana Supreme Court found that, although La. Const, art. 4, § 21(B) grants the LPSC the power to “regulate all ... public utilities” and “such other regulating authority as provided by law,” the Legislature has not passed any law authorizing the LPSC to exercise jurisdiction over any tort actions and contract disputes in which the LPSC may be involved.

Ratepayers in the instant cases assert that their cases are similar to the Central case because they involve a matter of contract interpretation which is not within the jurisdiction of the LPSC. While Ratepayers acknowledge that the City of Opelou-sas, which entered into the Franchise Agreement with Cleco, is not a party in the instant cases, Ratepayers maintain that Cleco breached contractual obligations owed to them. In that regard, Ratepayers specifically allege in their petitions that the Franchise Agreement contains stipulations pour autrui in favor of them.

Ratepayers contend that while the LPSC has jurisdiction over the matters involving utility rate calculations, their cases involve an issue of rate component applicability, not rate component calculation. Ratepayers maintain that, under the provisions of the Franchise Agreement, the distribution component and the storm recovery surcharges should not have been charged to them at all. In that regard, Ratepayers argue that, since the Franchise Agreement provides that Cleco can IfiCollect distribution costs from the City of Opelousas at the end of the term of the contract, Cleco should not be allowed to collect the distribution costs from them as well. Also, Ratepayers contend that it is improper for Cleco to collect storm recovery fees from them since the Franchise Agreement not only allows Cleco to get reimbursement for storm damage from the city at the termination of the contract, but it also requires Cleco to purchase insurance to cover such storm-related damages to the City of Opelousas’ distribution system. According to Ratepayers, a determination of whether they had charges for distribution applied to them can only be resolved by the taking of evidence and the interpretation of the Franchise Agreement, both of which are judicial functions.

In support of their writ applications, Cleco and the LPSC argue that the trial court erred when it denied Cleco’s exception of lack of subject matter jurisdiction. Cleco contends that, under La. Const, art. 4, § 21(B), the LPSC has exclusive jurisdiction over rates charged by a public utility company. In that regard, Cleco points out that Section 21(B) provides as follows:

(B) Powers and Duties. The commission shall regulate all common carriers and public utilities and have such other regulatory authority as provided by law. It shall adopt and enforce reasonable rules, regulations, and procedures necessary for the discharge of its duties, and shall have other powers and perform other duties as provided by law.

In the instant cases, Cleco argues that since Ratepayers’ petitions characterize its suits as arising from Cleco’s having allegedly overcharged the City of Opelousas’ residents for electricity and since Ratepayers seek reparation for overcharges, Ratepayers’ cases are rate eases that are subject to the exclusive jurisdiction of the LPSC. Cleco acknowledges that La. Const, art. 4, § 21(C) provides as follows:

17(C) Limitation. The commission shall have no power to regulate any common carrier or public utility owned, operated, or regulated on the effective date of this constitution by the governing authority of one or more political subdivisions, except by the approval of a majority of the electors voting in an election held for that purpose; however, a political subdivision may reinvest itself with such regulatory power in the manner in which it was surrendered. This Paragraph shall not apply to safety regulations pertaining to the operation of such utilities.

However, Cleco argues that, although Section 21(C) provides that the LPSC does not have authority to regulate a “public utility” owned, operated, or regulated by a political subdivision, this statute is not called into play simply because the City of Opelousas owns the distribution system. In that regard, Cleco asserts that the trial court erroneously concluded that a distribution system is the same thing as a public utility. According to Cleco, owning wires, poles, or other pieces of a distribution system does not amount to owning or operating a “public utility.” Rather, Cleco contends that, pursuant to various statutes, including La.R.S. 45:121, an electric public utility is a person or entity that furnishes electricity to customers. Cleco maintains that it is Cleco, and not the City of Opelousas, that provides electricity to customers. As such, Cleco asserts that the only electric public utility in Opelousas is Cleco, which is not owned, operated, or regulated by the City of Opelousas. Thus, Cleco argues that because there is no public utility owned, operated, or regulated by the City of Opelousas, the provision in La. Const, art. 4, § 21(C), which limits the jurisdiction of the LPSC, does not apply to this case.

In support of its position that this case is a rate case that is subject to the exclusive jurisdiction of the LPSC, Cleco relies on the Louisiana Supreme Court’s ruling in Daily Advertiser v. Trans-La, 612 So.2d 7 (La.1993). In that ease, the plaintiffs, who were residential and commercial customers of a LPSC-regulated gas utility, filed a class action suit alleging several state law causes of action in connection with alleged overcharges by the utility company. The court concluded Lthat the plaintiffs’ rate computation claims seeking reparation of overcharges were within the LPSC’s exclusive jurisdiction and should be dismissed on an exception of lack of subject matter jurisdiction. However, the Court concluded that the remainder of the plaintiffs’ claims seeking damages other than overcharges did not need to be dismissed. Instead, the supreme court concluded that, based on the doctrine of primary jurisdiction, the district court’s adjudication of the plaintiffs’ remaining claims should be deferred until after the LPSC had completed its proceedings regarding the claims for overcharges.

In the instant cases, Cleco asserts that, because Daily Advertiser, 612 So.2d 7, requires the courts to apply a substance-over-form analysis to determine whether a case is a rate case, Ratepayers cannot be allowed to avoid the LPSC’s exclusive jurisdiction by claiming that their complaints are standard contract or tort claims. Cle-co argues that since Ratepayers only seeks damages for overcharges, whether based on rate components or otherwise, all of Ratepayers’ claims fall within the exclusive jurisdiction of the LPSC. According to Cleco, the trial court cannot review components of an LPSC-approved rate, such as the distribution costs, without encroaching on the LPSC’s exclusive jurisdiction.

Furthermore, Cleco maintains that there is no authority which prevents the LPSC from considering the Franchise Agreement in- making a determination whether the rates charged to Ratepayers were proper. Citing Conoco, Inc. v. Louisiana Public Service Com’n, 520 So.2d 404 (La.1988), Cleco asserts that contracts regarding the fees and rates which public utilities will charge are subject to supervision and adjustment by the LPSC.

We find that the claims raised by Ratepayers in the instant cases are different from the standard rate cases wherein consumers are simply arguing that the LPSC has set the wrong electricity rates. Ratepayers’ claims arise out of the fact that | ;|Cleco went to the LPSC and requested that distribution rates and hurricane recovery costs be set for all consumers, including those residents of the City of Opel-ousas, without giving any consideration for the fact that the Franchise Agreement requires Cleco to maintain insurance to cover hurricane costs incurred in Opelousas and that the Franchise Agreement provides that the City of Opelousas will reimburse Cleco for distribution costs at the termination of the contract.

While Cleco points out that Ratepayers were not a party to the Franchise Agreement, Ratepayers have identified various factors, including the election wherein the residents of the City of Opelousas approved the Franchise Agreement. This indicates that Ratepayers were intended to be third-party beneficiaries of the Franchise Agreement.

Moreover, Ratepayers alleged that Cle-co engaged in tortious conduct when it required them to pay for distribution costs for which the city had obligated itself to pay and for hurricane losses for which Cleco has obligated itself to provide insurance coverage. Thus, Ratepayers, at minimum, have alleged a valid claim for unjust enrichment by Cleco. As such, these are not purely rate cases subject to the exclusive jurisdiction of the LPSC.

Accordingly, while the LPSC has exclusive subject matter jurisdiction over matters that involve the right to fix and regulate the rates which public utilities charge their customers, such exclusive jurisdiction does not extend to tort and contract actions in which public utility companies may be involved. See Central Louisiana Elec. Co., Inc. v. Louisiana Public Service Com’n, 601 So.2d 1383 (La.1992). Since Ratepayers raised tort and/or contract claims against Cleco, the exclusive jurisdiction of the LPSC is not invoked. Contract interpretation and the assessment of Cle-co’s conduct are judicial functions. As such, the trial court properly found that it had subject matter jurisdiction over these cases.

| ,«EXCEPTION OF PREMATURITY:

Cleco’s sole argument on this exception is that Ratepayers’ suits in the district court are premature because Ratepayers did not exhaust its administrative remedies by first filing its suits with the LPSC. Since we concluded that the trial court has subject matter jurisdiction over these cases, there is necessarily no error in the trial court’s ruling which denied Cleco’s exception of prematurity.

EXCEPTION OF IMPROPER VENUE:

In opposition to the instant writ applications, Ratepayers take the position that the trial court properly denied Cleco’s exception of improper venue. Ratepayers contend that since they are raising tort and contract claims, venue is proper in St. Landry Parish. In support of this contention, Ratepayers cite La.Code Civ.P. art. 74, which provides that tort actions may be brought in the parish where the wrongful conduct occurred or where the damages were sustained, and La.Code Civ.P. art. 76.1, which provides that a contract action may be brought in the parish where the contract was executed or where work or service was to be performed under the contract.

Ratepayers acknowledge that contracts with municipal corporations are generally for the public benefit and do not necessarily include stipulations pour autrui in favor of the individual inhabitants of the municipality. However, Ratepayers argue that, under the facts of the instant cases, the contractual provisions of the Franchise Agreement are specifically intended for the benefit of the individual residents who receive individual bills from Cleco and who individually have the right to require specific performance by Cleco. Further, Ratepayers point out that the individual residents voted for the Franchise Agreement.

Inin their writ applications, Cleco and the LPSC argue that venue is not proper in St. Landry Parish because the venue provisions on which Ratepayers rely do not apply to the instant cases. First, Cleco contends that the tort venue provision in La.Code Civ.P. art. 74 does not apply because Ratepayers’ claims concerning alleged overcharges for electricity do not involve “an offense or quasi offense” against them. In that regard, Cleco argues that Ratepayers cannot turn alleged wrongs committed against the City of Opelousas into Ratepayers’ own tort claims. Second, Cleco contends that the venue provision found in La.Code Civ.P. art. 76.1 does not apply to the instant cases because the Franchise Agreement is between the City of Opelousas and Cleco, not Ratepayers and Cleco. According to Cleco, Ratepayers have no right to pursue a breach of contract action against Cleco because a franchise agreement between a service provider and a city does not give rise to a third-party beneficiary status in favor of that city’s residents.

Cleco notes that the Louisiana Supreme Court has held that “[t]he only jurisdiction courts have over the fixing of utility rates is to review the LPSC’s orders on appeal.” Daily Advertiser, 612 So.2d at 17 (citation omitted). Citing La. Const. art. 4, § 21 and La.R.S. 45:1192, Cleco contends that venue for a challenge to orders by the LPSC is proper only in East Baton Rouge Parish, which is the domicile of the LPSC. In the instant cases, Cleco argues that since Ratepayers are challenging LPSC-approved rates, venue is proper in East Baton Rouge Parish. Alternatively, Cleco asserts that, pursuant to La.Code Civ.P. art. 42(2), venue would be proper in Rap-ides Parish because Cleco has their registered offices there.

While Cleco is correct in their assertion that, pursuant to La.R.S. 45:1192, venue is proper in East Baton Rouge Parish for suits challenging decisions made by the LPSC, the LPSC has not made a decision with regard to the issue of Cleco’s 112alleged tortious attempt to have Ratepayers assessed with distribution and hurricane recovery costs in spite of the provisions found in the Franchise Agreement. Since the instant cases do not involve a direct appeal from any decision that the LPSC has made with regard to Ratepayers’ claims, the venue provision found in La.R.S. 45:1192 does not apply. Rather, pursuant to La.Code Civ.P. art. 74, venue would be proper in St. Landry Parish because Ratepayers sustained damages there.

Further, given that Ratepayers have alleged breach of contract claims, venue would be proper in St. Landry Parish pursuant to La.Code Civ.P. art. 76.1, because at least part of the contract was to be performed there. Accordingly, we find that the trial court did not err when it denied Cleco’s exception of improper venue.

DISPOSITION:

For the foregoing reasons, we find no error in the trial court’s rulings. As such, we deny these writ applications. All costs of these proceedings are assessed to Cleco Corporation and Cleco Power, LLC.

WRITS DENIED.