author: GAIDRY, J.

text:
    Leigh VAN HOOSE, Jr. and Leigh Van Hoose, Jr. Insurance Agency, Inc. v. Grant P. GRAVOIS, Grant P. Gravois Insurance Agency, Inc., Robert A. England, State Farm Mutual Automobile Insurance Company, State Farm Life Insurance Company, State Farm Fire and Casualty Company, and State Farm General Insurance Company.
    No. 2011 CA 0976.
    Court of Appeal of Louisiana, First Circuit.
    July 7, 2011.

      Adrianne L. Baumgartner, Darrin M. O’Connor, Covington, LA, for Defendants/Appellants Grant P. Gravois and Grant P. Gravois Insurance Agency, Inc.
    Mark N. Mallery, Paul S. Balanon, Thomas L. Watson, II, New Orleans, LA, for Defendants/Appellants State Farm Mutual Automobile Insurance Company, State Farm Life Insurance Company, State Farm Fire and Casualty Company, State Farm General Insurance Company, and Robert A. England.
    Joseph R. Ward, Jr., Lisa A. Condrey, Covington, LA, Stacy R. Palowsky, Madi-sonville, LA, for Plaintiffs/Appellees, Leigh Van Hoose, Jr. and Leigh Van Hoose, Jr. Insurance Agency Inc.
    Before WHIPPLE, GUIDRY, and GAIDRY, JJ.
   GAIDRY, J.

LThis appeal involves an action by an insurance agent and his agency seeking damages for breach of contract, unfair trade practices, antitrust violations, and interference with contractual relations. The defendants-appellants, Grant P. Gra-vois (“Gravois”) and Grant P. Gravois Insurance Agency, Inc. (“Gravois Agency”), State Farm Mutual Automobile Insurance Company, State Farm Life Insurance Company, State Farm Fire and Casualty Company, State Farm General Insurance Company (collectively, “State Farm”), and Robert A. England (“England”), seek reversal of the trial court’s judgment denying their peremptory exceptions of no cause of action in favor of the plaintiffs-appellees, Leigh Van Hoose, Jr. (“Van Hoose”) and Leigh Van Hoose, Jr. Insurance Agency Inc. (“Van Hoose Agency”). We reverse the trial court’s judgment for the following reasons and remand the case in order to allow plaintiffs to amend their petition pursuant to La.Code Civ. P. art. 934.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Van Hoose entered into a “State Farm Agent’s Agreement” with State Farm, effective November 1, 1980, which provided that Van Hoose would be an independent contractor and the Van Hoose Agency would only sell State Farm insurance. The Van Hoose Agency is located in Sli-dell, Louisiana. Curtis Martin was another State Farm agent located in Slidell. Martin and Van Hoose were close friends, and when Martin developed cancer and his death became imminent, he requested that Van Hoose consider hiring his most valued employee, Fanny Pichón. Soon after Martin’s passing, Van Hoose hired Pichón with an effective employment |4date of July 1, 2009. Sometime after July 1, 2009, Gra-vois began operating the Gravois Agency in Slidell.

Van Hoose filed a petition for damages on January 5, 2011, in which he claims that one week after hiring Pichón he received a call from England, an agency field executive for State Farm, who stated that “he better not see any policyholder transfers from the Curtis [Martin] Agency to the Van Hoose Agency.” Van Hoose stated that he told England that neither he nor Pichón had solicited or would solicit any business from the former Curtis Martin Agency. Plaintiffs allege that Gravois, a former State Farm employee, was promised and expected to have all the policyholders from the former Curtis Martin Agency. The petition further alleges that several policyholders decided to transfer from the Curtis Martin Agency to the Van Hoose Agency of their own volition. Subsequently, England again contacted Van Hoose and stated that he had the power to shut down the Van Hoose Agency if more policyholders requested transfers. In the fall of 2009, England and State Farm allowed some policyholders to transfer agencies at their request, but Gravois contacted several policyholders in an attempt to convince them not to switch. Plaintiffs claim that on January 7, 2010, Gravois stated in an email to Van Hoose, copying England and others, that as of that date he would not allow any more policyholders to transfer to the Van Hoose Agency. Since that time, any transfer requests from policyholders have been blocked by England.

Plaintiffs’ petition seeks to allege causes of action for (1) breach of contract; (2) unfair trade practices in violation of the Louisiana Unfair Trade Practices Act (“LUTPA”), La. R.S. 51:1401, et seq.; (3) restraint of trade in violation of the Louisiana antitrust statute, La. R.S. 51:122; and (4) interference with contractual relations. Defendants filed exceptions of no [5cause of action with respect to the unfair trade practices and antitrust claims. The trial court held a hearing on the exceptions on May 11, 2011, and subsequently signed a judgment on May 23, 2011, denying the exceptions of no cause of action. This appeal followed.

ASSIGNMENTS OF ERROR AND ISSUES PRESENTED

Defendants-appellants contend that the trial court erred in denying their exceptions of no cause of action. State Farm and England frame the issues presented for our review as follows:

1. Whether a plaintiff meets his burden of pleading an antitrust claim under Louisiana law where the allegations of his petition plead only a reduction in intrabrand competition and not interbrand competition, and injury to himself with no corresponding antitrust injury or injury to competition?
2. If there is a contract, combination, or conspiracy, which State Farm and England dispute, does Louisiana antitrust law recognize a per se horizontal restraint of trade under La. R.S. 51:122 where a plaintiff pleads only one same-level competitor?
3. In a case where plaintiffs have only nominally pleaded a vertical restraint of trade (wherein they are required to plead with material facts a relevant product and geographic market), does a petition that states only that the relevant geographic market is the “greater Slidell area” and the relevant product market is “State Farm approved and authorized products” satisfy the fact-pleading standard to advance a State antitrust claim?
4. Where a plaintiff pleads a LUTPA claim that is premised entirely on the existence of an antitrust claim, and the antitrust claim is insufficiently pleaded, must the LUTPA claim be dismissed?

Gravois and Gravois Agency’s issues for review are similar:

1. Whether the trial court incorrectly found that plaintiffs properly pled a claim under La. R.S. 51:122?
2. Whether plaintiffs have alleged a vertical restraint of trade?
3. Whether plaintiffs faded to show there is an unreasonable restraint on competition?
4. Whether plaintiffs failed to plead a relevant market?
5. Whether plaintiffs have also failed to allege a cause of action under the LUTPA?

[ r,APPELLATE REVIEW OF JUDGMENT DENYING PEREMPTORY EXCEPTION OF NO CAUSE OF ACTION

The objection that a petition fails to state a cause of action is properly raised by the peremptory exception. La. C.C.P. art. 927(A)(5). The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition, in terms of whether the law extends a remedy to anyone under the petition’s factual allegations. Stroscher v. Stroscher, 2001-2769 (La.App. 1st Cir.2/14/03), 845 So.2d 518, 523. For purposes of determining the issues raised by a peremptory exception of no cause of action, the well-pleaded facts in the petition must be accepted as true, and the court must determine if the law affords the plaintiff a remedy under those facts. Id. Any doubts are resolved in favor of the sufficiency of the petition. Id.

Appellate review of the denial of a peremptory exception of no cause of action is de novo because an exception of no cause of action presents a question of law and the trial court’s decision is based only on the sufficiency of the petition. City of Denham Springs v. Perkins, 2008-1937 (La.App. 1st Cir.3/27/09), 10 So.3d 311, 321-22, writ denied, 2009-0871 (La.5/13/09), 8 So.3d 568. Though the denial of an exception of no cause of action is normally not appealable, La. R.S. 51:134 and 135 provide for an immediate appeal of such an interlocutory judgment related to antitrust claims. Plaquemine Marine, Inc. v. Mercury Marine, 2003-1036 (La. App. 1st Cir.7/25/03), 859 So.2d 110, 114, n. 3. While there is no specific statutory-provision providing for an immediate appeal of an interlocutory judgment related to LUTPA claims, courts have addressed LUTPA claims along with antitrust claims on appeals authorized by R.S. 51:134 and 135. See Southern Tool & Supply, Inc. v. Beerman Precision, Inc., 2003-0960 (La.App. 4th_L7Cir.11/26/03), 862 So.2d 271, writs denied, 2003-3481, 2003-3518, & 2003-3536 (La.3/12/04), 869 So.2d 821, 825, & 826; see also Jefferson v. Chevron U.S.A. Inc., 97-2436, 98-0254 (La.App. 4th Cir.5/20/98), 713 So.2d 785, writ denied, 98-1681 (La.10/16/98), 727 So.2d 441. Regardless, in the event that the Court does not have appellate jurisdiction over the LUTPA claim, we choose to exercise our supervisory jurisdiction pursuant to Article V, Section 10(A) of the Louisiana Constitution of 1974.

DISCUSSION

A. Antitrust claim under La. R.S. 51:122

The Louisiana antitrust statute provides that “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce in this state is illegal.” La. R.S. 51:122(A). The federal and state antitrust laws were intended to be sweeping in breadth, encompassing every conspiracy, contract, or combination that restrains trade. Louisiana Power & Light Co. v. United Gas Pipe Line Co., 493 So.2d 1149, 1154-55 & n. 12 (La.1986). Not every business arrangement that restrains trade in some manner is illegal, however. The first step in analyzing an agreement to restrain trade is to determine whether it should be categorized as horizontal or vertical. A horizontal conspiracy is an agreement between competitors that restrains trade at the same level of distribution, and such agreements are generally considered “per se” violations of antitrust law. Plaquemine Marine, Inc., 859 So.2d at 117; Southern Tool & Supply, Inc., 862 So.2d at 280. A vertical restraint is imposed by persons at different levels of distribution, usually by one higher up in the distribution chain than the party restrained. When a vertical conspiracy is alleged, plaintiffs must show that the restraint of trade violates the “rule of reason.” Plaquemine Marine, Inc., 859 So.2d at 118.

[sThe rule of reason analysis under both federal and Louisiana law requires proof of three elements: that the defendants (1) engaged in a conspiracy (2) that restrained trade or injured competition (3) in a particular market. Abraham v. Richland Parish Hosp. Service Dist. 1-B, 41,141 (La.App.2d Cir.8/23/06), 938 So.2d 1163, 1172, writ denied, 2006-2534 (La.1/8/07), 948 So.2d 124. Where the alleged restrictions are vertical, and not directed at fixing prices, their legality is governed by' the rule of reason, and in order to prevail under the rule of reason, a plaintiff must show that the defendants’ conduct has an adverse effect on competition. Red Diamond Supply, Inc. v. Liquid Carbonic Corp., 637 F.2d 1001, 1005 (5th Cir.), cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981).

In this case, plaintiffs-appellees argue that a horizontal conspiracy is alleged, which implicates the per se rule. However, jurisprudence is clear that horizontal combinations are agreements between competitors at the same level of distribution. See Plaquemine Marine, Inc., 859 So.2d at 117; see also Southern Tool & Supply, Inc. 862 So.2d at 280. The agreement alleged here is among Gravois, the Gravois Agency, and England. While it is not entirely clear under Louisiana law and the facts of this case whether Gravois could conspire with the Gravois Agency, even assuming that he could, there is no allegation that Gravois, the Gravois Agency, and England compete with each other. Therefore, under the facts alleged thus far, there could not be a horizontal conspiracy since the alleged agreement is not “between competitors.” The agreement alleged is properly categorized as a vertical conspiracy, triggering the rule of reason analysis.

Under the rule of reason, and in order to state an antitrust claim under La. R.S. 51:122, a plaintiff must adequately allege injury to competition. Plaquemine Marine, Inc., 859 So.2d at 118. This requirement cannot be met 19by broad allegations of harm to the “market” as an abstract entity. Id. Even an act of pure malice by one business competitor against another does not, without more, state an antitrust claim. Id. at 119. Since Louisiana is a fact-pleading state, a plaintiff must set forth “material facts” that form the basis for the asserted cause of action. Id. at 118. A mere conclusion unsupported by material facts does not set forth a cause of action; therefore, conclusory statements of fact or formulaic recitations of the elements of an antitrust violation are insufficient to state a claim. Tuban Petroleum, LLC v. SIARC, Inc., 2009-0302 (La.App. 4th Cir.4/15/09), 11 So.3d 519, 522-23, writ denied, 2009-0945 (La.6/5/09), 9 So.3d 877.

In this case, plaintiffs allege in their petition that the conspiracy to restrain trade “prevented] or discourage[d] State Farm policyholders from moving their State Farm policies from the Gravois Agency to the Van Hoose Agency,” which “injured competition in the market by denying policyholders a free choice to select the State Farm agency they wished to have their business placed with.” Plaintiffs further allege that the defendants’ conspiracy “significantly injured competition among the remaining agencies.” These allegations are broad and conclusory claims of harm to the market. The material facts underlying these allegations assert that the alleged agreement prevented State Farm policyholders from switching from the Gravois Agency to the Van Hoose Agency. While the petition contains an allegation regarding injury to “competition among the remaining agencies,” there are no material facts plead to support such an allegation. There are no allegations that the State Farm policyholders in question were not allowed to transfer their policies to any other State Farm agency or any other insurance company. Therefore, the allegations of injury 110to competition in the petition are insufficient to state a valid antitrust claim under La. R.S. 51:122.

Since we find that plaintiffs-appellees have not adequately alleged injury to competition to support their antitrust claim and reverse the trial court’s judgment on this basis, it is unnecessary to address the other issues related to the antitrust claim raised by appellants.

B. Unfair Trade Practices claim under LUTPA

The Louisiana Unfair Trade Practices Act, La. R.S. 51:1401, et seq., does not enumerate those instances of conduct that constitute unfair trade practices, but La. R.S. 51:1405(A) provides that “[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” This Court has noted that the LUTPA is patterned after the Federal Trade Commission Act and prohibits the same type of deceptive and anti-competitive conduct as prohibited by the Federal Trade Commission Act. Capitol House Preservation Co., LLC v. Perryman Consultants, Inc., 2008-0367 (La.App. 1st Cir.8/28/09), 47 So.3d 408, 417, writ denied, 2009-2638 (La.2/12/10), 27 So.3d 856, cert. denied, — U.S.-, 131 S.Ct. 104, 178 L.Ed.2d 30 (2010). Therefore, in interpreting Louisiana’s statute, a court must consider how the Federal Trade Commission and the federal courts have applied the Federal Trade Commission Act to various types of conduct. Id. Under the Federal Trade Commission Act, vertical territorial and customer restrictions are not prohibited absent a showing of injury to competition. Red Diamond Supply, Inc., 637 F.2d at 1008. In addition, the U.S. Fifth Circuit has noted that “the real thrust of the LUTPA, modeled after the Federal Trade Commission Act, ... is to deter injury to competition.” Reingold v. Swiftships, Inc. 126 F.3d 645, 652 (5th Cir.1997) (quoting Omnitech |11International, Inc. v. Clorox Company, 11 F.3d 1316, 1331 (5th Cir.), cert. denied, 513 U.S. 815, 115 S.Ct. 71, 130 L.Ed.2d 26 (1994)). As discussed above regarding the antitrust claim, plaintiffs-appellees have failed to adequately allege injury to competition in this case. Therefore, plaintiffs-appellees have similarly failed to state a claim for unfair trade practices under the LUTPA.

DECREE

The judgment of the trial court denying the peremptory exceptions of no cause of action is reversed, and the case is remanded in order to allow plaintiffs to amend their petition pursuant to La. C.C.P. art. 934. Costs of this appeal shall be split equally between the parties.

REVERSED AND REMANDED.

      . Gravois and Gravois Agency filed a separate exception from State Farm and England. However, the substance of the exceptions and the arguments made in this appeal are substantially similar.


source: Caselaw Access Project

author: BROWN, Chief Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Winfred V. CAMPBELL, Appellant.
    No. 46,427-KA.
    Court of Appeal of Louisiana, Second Circuit.
    July 13, 2011.

      Elton B. Richey, Jr., Christopher Hatch, Shreveport, LA, for Appellant.
    Richard Z. Johnson, District Attorney, Ron Christopher Stamps, Assistant District Attorney, for Appellee.
    Before BROWN, PEATROSS, and DREW, JJ.
   BROWN, Chief Judge.

|1On October 19, 2007, defendant, Winfred V. Campbell, shot and killed his estranged wife, Sandra Vanzant Campbell, in the front yard of her mother’s house. He also shot and wounded his pregnant stepdaughter, Jamia Vanzant. Defendant drove to the DeSoto Parish Sheriffs Office, turned himself in and confessed to the shootings. On November 28, 2007, defendant was charged by bill of indictment with one count of first degree murder (Sandra Vanzant Campbell) and two counts of attempted first degree murder (Jamia Vanzant and her then seven-month-old fetus). An amended bill of indictment was later returned charging defendant with one count of second degree murder and two counts of attempted second degree murder.

A jury trial was held July 28-29, 2010. The jury’s verdict was as follows: (1) count one-guilty of the second degree murder of Sandra Vanzant Campbell; (2) count two-guilty of the responsive verdict of aggravated battery of Jamia Vanzant; (3) count three-not guilty. A presentence investigation report was ordered, and on October 14, 2010, a sentencing hearing was held. The trial court, after considering the PSI and the facts and circumstances of the case, sentenced defendant to life imprisonment without benefits on the second degree murder conviction and a concurrent ten-year hard labor sentence on the aggravated battery conviction.

Defendant has appealed his second degree murder conviction, urging insufficiency of the evidence. Finding no error, we affirm defendant’s convictions |2and sentences.

Discussion

According to defendant, the conflicting witness testimony and physical evidence, as well as the facts and circumstances surrounding the shooting of Sandra Van-zant Campbell, support a guilty verdict of manslaughter and not second degree murder. Specifically, defendant contends that the physical evidence of the wound on his wife’s hand being at close range was inconsistent with the witness testimony that she was running away from defendant when she was shot. Further, defendant argues that he did not storm in and threaten his wife, but rather only shot her after an argument ensued and he had reached his “boiling point.” Lastly, defendant argues that since he promptly drove to the sheriff s office, turned himself in and confessed to the shootings, these actions demonstrate that he was not a “cold-blooded killer,” but rather a person who reacted in “sudden passion” and “heat of blood.” Therefore, this is not a case of second degree murder, but rather one of manslaughter.

The state argues that the evidence established that defendant had the specific intent to kill his wife, Sandra Vanzant Campbell. The evidence demonstrated that ^defendant methodically planned the events which occurred on October 19, 2007; he armed himself with a gun; he drove to his mother-in-law’s home to ask his wife to return home; and, based upon her response, he took the action he thought about, which was to shoot his wife if she refused to go home with him.

The standard of appellate review for a sufficiency of the evidence claim 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 proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir.01/09/08), 974 So.2d 181, writ denied, 08-0499 (La.11/14/08), 996 So.2d 1086. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 05-0477 (La.02/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir.01/14/09), 1 So.3d 833, writ denied, 09-0310 (La.11/06/09), 21 So.3d 297.

La. R.S. 14:30.1(A)(1) defines second degree murder as the killing of a human being when the offender has the specific intent to kill or inflict great bodily harm.

LSpecific intent is that state of mind that exists when the circumstances indicate the offender actively desired the proscribed criminal consequences to follow his act or failure to act. La. R.S. 14:10(1); State v. Lindsey, 543 So.2d 886 (La.1989), cert. denied, 494 U.S. 1074, 110 S.Ct. 1796, 108 L.Ed.2d 798 (1990); State v. Logan, 45,136 (La.App.2d Cir.04/14/10), 34 So.3d 528, writ denied, 10-1099 (La.11/05/10), 50 So.3d 812; State v. Davies, 35,783 (La. App.2d Cir.04/05/02), 813 So.2d 1262, writ denied, 02-1564 (La.05/09/03), 843 So.2d 389.

Specific intent may be inferred from the circumstances surrounding the offense and the conduct of the defendant. La. R.S. 14:10(1); State v. Draughn, 05-1825 (La.01/17/07), 950 So.2d 583, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007). See also, State v. Allen, 41,548 (La.App.2d Cir.11/15/06), 942 So.2d 1244, writ denied, 07-0530 (La.12/07/07), 969 So.2d 619.

Manslaughter is defined as a homicide which would be first or second degree murder, but the offense is committed in sudden passion or heat of blood immediately caused by provocation sufficient to deprive an average person of his self control and cool reflection. La. R.S. 14:31(A)(1); State v. Logan, supra. “Sudden passion” or “heat of blood” are mitigating factors in the nature of a defense to the charge of murder. Since “sudden passion” and “heat of blood” are not elements of the crime, the state does not bear the burden of proving them. Neither is Iftthere a requirement in our law that these factors be affirmatively established by the defendant. Instead, the jury is free to infer these mitigatory factors from the evidence. Furthermore, a manslaughter verdict is responsive to a second degree murder indictment even though the record contains no evidence of “sudden passion” or “heat of blood.” State v. Tompkins, 403 So.2d 644 (La.1981); State v. Peterson, 290 So.2d 307 (La.1974).

The evidence presented at trial was sufficient for the jury to find this defendant guilty of second degree murder. The most compelling evidence of defendant’s specific intent to kill and/or inflict great bodily harm on his wife, Sandra Vanzant Campbell, is found in his own taped statement. In that statement, made only hours after he shot both his wife and stepdaughter, defendant stated that he armed himself with a gun and went to the house where his wife was living at the time, with the intent of bringing her back to their matrimonial domicile. Defendant stated that if his wife had done what he asked, she would not have even seen the gun. However, Mrs. Campbell refused to go back home with defendant. It was then that defendant carried out his intended plan— he shot and killed his wife.

The jury’s rejection of defendant’s argument that this is a clear case of manslaughter was reasonable as there was no evidence of “sudden passion,” “heat of blood,” or “provocation” such that an average person would have reacted in such |fia violent manner. This assignment of error lacks merit.

Conclusion

For the reasons set forth above, defendant’s conviction and sentence are affirmed. AFFIRMED.


author: GUIDRY, J.

text:
    Cynthia AMACKER v. WASHINGTON CORRECTIONAL INSTITUTE.
    No. 2010 CA 2316.
    Court of Appeal of Louisiana, First Circuit.
    July 14, 2011.
    Rehearing Denied Aug. 4, 2011.

      Cynthia Amacker, Poplarville, MS, Plaintiff/Appellant/Appellee In Proper Person.
    James D. “Buddy” Caldwell, Attorney General, through Henry S. Provosty, Lena D. Giangrosso, Special Assistant Attorneys General, New Orleans, LA, for Defendant/Appellee/Appellant State of Louisiana, Department of Public Safety and Corrections, Washington Correctional Institute and the Office of Risk Management.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   GUIDRY, J.

12In this workers’ compensation proceeding, the claimant appeals a judgment of the Workers’ Compensation Administration, dismissing her claim for indemnity benefits and further barring the claimant from receiving future compensation benefits, based on a finding that the claimant violated the provisions of La. R.S. 23:1208. The employer also filed an appeal, seeking further remedies pursuant to La. R.S. 23:1208. Having thoroughly reviewed the record and considering the arguments of the parties, we deny both the appeal and the cross-appeal and affirm the judgment of the Workers’ Compensation Administration.

FACTS AND PROCEDURAL HISTORY

On January 27, 2009, Cynthia Amacker, claimant, filed a “Disputed Claim For Compensation,” form 1008, with the Office of Workers’ Compensation for injuries sustained in a workplace incident that occurred on August 4, 2003, when a co-employee attacked her. In the disputed claim, she sought medical treatment, statutory penalties, and attorney fees. The Louisiana Department of Public Safety and Corrections, Washington Correctional Institute and the Office of Risk Management (collectively “employer”) were named in the claim as employer and insurer, respectively.

In response to the claim, the employer filed an answer wherein it admitted that the claimant had sustained cervical injuries, that she was “temporarily disabled” as a result of the workplace incident, and that indemnity benefits had been paid from August 4, 2003, “until present,” for a total of $122,304. However, the employer disputed “that the alleged pain management and psychiatric care [sought by the claimant] are related to the work-related incident and the disability resulting therefrom.”

In the course of preparing for the hearing, the employer requested an independent medical exam (IME) to determine if an anterior cervical discectomy |3and fusion surgery recommended by claimant’s treating orthopedist, Dr. John Logan, was medically necessary and to determine whether the claimant had reached maximum medical improvement to return to work. On advice of counsel, the claimant refused to submit to the IME scheduled by the employer for May 12, 2009, and as a consequence, the employer filed a motion to suspend her benefits pursuant to La. R.S. 23:1124. Following a hearing, the workers’ compensation judge (WCJ) granted the motion and suspended the claimant’s benefits from June 19, 2009, until the date she attended the re-scheduled IME. The orthopedist who later conducted the IME, Dr. J. Monroe Laborde, concluded that the claimant was not a good candidate for surgery and opined that he basically agreed with the medical conclusions of Dr. Paul van Deventer, the employer’s physician who had provided a second opinion as to whether there was a need for surgery. A second IME was then scheduled for the claimant to be evaluated by psychiatrist Dr. Harold Ginzberg, who concurred with the opinions of Drs. van Deventer and Laborde.

Shortly thereafter, the claimant discharged her attorney and retained new counsel, who then filed an amended claim on her behalf. In the amended claim, the claimant supplemented her original request to assert that the employer had failed to investigate and authorize treatment and medication for her shingles condition, which had been diagnosed by her treating orthopedist. The doctor related the condition to the workplace incident. The claimant further objected to the employer’s failure to authorize additional diagnostic testing, surgery, and | ¿medications recommended by her treating physician. Less than a month later, claimant’s new counsel filed a motion to withdraw as counsel of record, “due to the fact that undersigned counsel has been unable to communicate with [the claimant] in addition to the fact that counsel and client/claimant have differentiating opinions as to the goals which can be reasonably obtained and how to obtain them.” The motion to withdraw was granted, despite claimant’s opposition, and new counsel was obtained.

Following further discovery and pre-trial litigation, a hearing in this matter was finally set for October 20, 2010. Shortly before the scheduled hearing date, on October 11, 2010, the employer filed a motion for leave to file an amended answer. In the motion, the employer averred that it had just received the claimant’s discovery responses in June, and only since receiving those responses was it able to attempt to find additional witnesses and obtain additional information. The employer further averred that it had recently located and contacted the claimant’s ex-husband, who revealed that claimant was involved in a pending lawsuit in Mississippi relative to the distribution of marital property. The employer averred that the claimant had not disclosed the lawsuit in her response to discovery. The employer also averred that pleadings from the claimant’s divorce proceedings revealed that she “has treated with physicians who were not disclosed in discovery,” and that it had “located six (6) facilities and/or physicians with whom Claimant has treated and one (1) additional pharmacy where she filled prescriptions from November 2005 through the present.” As a consequence of these discoveries, the employer requested leave to add a fraud defense to its answer. The motion was granted, and the employer amended its answer accordingly.

On October 18, 2010, two days before the scheduled hearing, the claimant’s current counsel filed a motion to withdraw as counsel of record. Counsel also | Bsubmitted a letter from him to the claimant dated October 14, 2010, wherein he acknowledged a prior phone conversation with the claimant on October 11, 2010. In the letter, counsel informed the claimant that he would be “withdrawing as your attorney and will not assist you at the trial in this matter due to the conflict of interest which has arisen.” Counsel also informed the claimant that a telephone conference with the WCJ had been held on that date, and that the WCJ had advised that the scheduled hearing would proceed, whether or not the claimant was represented by counsel, due to the numerous continuances that had been granted prolonging the case. Further in the letter, counsel stated that he had attempted to contact the claimant by phone on October 14, 2010, but discovered that the claimant’s phone had been disconnected. Documentation attached to the letter revealed that it was sent by overnight express mail and delivered to the claimant’s residence by 1:44 p.m. the following day. The motion to withdraw was granted by the WCJ.

On October 20, 2010, the hearing was held as scheduled, with claimant appearing pro se in the proceeding. At the hearing, extensive documentary evidence was submitted into the record by the employer, and the claimant presented two fact witnesses to testify on her behalf. On considering the evidence presented, the WCJ ruled from the bench. The WCJ observed that the claimant had been through three attorneys, and with her last attorney, the WCJ had hoped the claimant “would kind of see the handwriting on the wall and would try to resolve this with the state.” The WCJ further observed:

And all of this late discovered evidence about your prior treatment, you know, the reason it came in late is because you were frankly just dishonest with these people the whole time. You gave a recorded statement right after the accident_ You specifically denied ever having any back problems. She didn’t ask injury. You know, she | (¡specifically asked about prior back problems. Cervical, thoracic, or lumbar. And as a nurse, I assume you know what all that means. And you answered, No, ma’am.
In your deposition, you know, you didn’t disclose any of this treatment at Southeast Alliance that you’re getting in Lafayette. It seems to me pretty obvious that you were going out of your way to hide Southeast Alliance and the treatment that they’re giving you from [the employer] for the specific purpose of you wanted to keep them separate. You didn’t want anybody to know that you had extensive severe chronic preexisting back pain from a motor vehicle accident so that every time someone asked [you that] pointed question, you just denied it.
I find that you’ve been very dishonest as far as your medical treatment with your own treating doctors. It’s just inconceivable to me that you would treat — and I showed you the stack of records they were able to obtain from the Southeast clinics — whatever they call themselves — Exhibit 40, I just find it incredible that you would get this much treatment and that much medication from them and not tell anybody else. And conversely that you wouldn’t tell these people that you’ve treated with so extensively at Southeast about your incident that supposedly happened at the correctional institute. I think you have a severe credibility problem.

Consequently, in a written judgment signed the date of the hearing, the WCJ denied the claimant’s request for indemnity and medical benefits, found that claimant had violated La. R.S. 23:1208, ordered the claimant’s forfeiture of future benefits pursuant to La. R.S. 23:1208(E), and further ordered the claimant to pay a civil penalty of $500 to the Kids Chance Scholarship Fund, Louisiana Bar Foundation, pursuant to La. R.S. 23:1208(D). It is from this judgment that the claimant appeals, pro se. The employer filed a cross appeal, seeking reversal of the WCJ’s refusal to order the assessment of restitution or criminal penalties.

DISCUSSION

As in the proceedings below, the claimant is pursuing the subject appeal in proper person. In her brief to this court, claimant asserts several “issues” for consideration. While we find no merit in any of the issues raised for consideration, and moreover find that the record amply supports the WCJ finding that the claimant violated La. R.S. 28:1208, we will limit our discussion herein to the |7claimant’s contentions regarding the WCJ’s rulings to allow claimant’s counsel to withdraw his representation two days before the hearing and for failing to continue the hearing on the merits. The claimant does not offer any argument in support of the contentions raised in these issues; however, in light of the due process concerns implicated by these issues, we find it prudent to address these two issues.

Louisiana Revised Statute 23:1317(A) provides that the WCJ “shall not be bound by technical rules of evidence or procedure other than as herein provided.” As provided in Section 1310.1(C) of Title 23, authority is granted the director of the Office of Workers’ Compensation Administration “to adopt reasonable rules and regulations, including the rules of procedure” for matters pending before WCJs. Pursuant to that authority, LAC 40:1.5547 was promulgated, which allows counsel representing a party in a workers’ compensation proceeding to withdraw by ex parte order of the WCJ. Paragraph A of that regulation provides:

When an attorney seeks to obtain an ex parte order to withdraw as counsel for a party, he shall include in his application the last known address of the claimant along with a statement that he has given written notice to the party he was previously representing that he is no longer of counsel to him and of the status of the case on the court’s docket. The attorney shall certify to the court that he has given notice to all counsel of record at the same time and in the same manner as notification to the court. A copy of such written notice and certification shall be attached to the application for the ex parte order for withdrawal. An attorney who has been permitted by ex parte order to withdraw shall give notice of same to all parties.

The record before us shows that counsel for the claimant complied with the requirements outlined in LAC 40:I.5547(A).

IsOn October 18, 2010, two days before the scheduled hearing, claimant’s then current counsel filed a motion to withdraw as counsel of record. In the motion, counsel stated that “a copy of this motion has been forwarded to the claimant and all opposing parties.” Also submitted was a letter from counsel to the claimant dated October 14, 2010, wherein he informed the claimant that he would be withdrawing as her attorney. Counsel also informed the claimant that the WCJ would hold the hearing scheduled for October 20, 2010, whether or not the claimant was represented by counsel. Considering this evidence, we cannot say that the WCJ erred in granting the motion to withdraw two days before the scheduled hearing.

Furthermore, generally, a litigant whose lawyer withdraws at or near trial may be entitled to a continuance to employ another attorney. However, because a defendant’s desire to have the case against him tried is also a factor, the plaintiff is not entitled to indefinite continuances simply because he is unable to secure counsel. Connor v. Scroggs, 35,521, p. 16 (La.App.2d Cir.6/12/02), 821 So.2d 542, 553. Fairness to both parties and the need for orderly administration of justice are proper considerations in deciding whether to grant or deny a continuance. Connor, 35,521 at 17, 821 So.2d at 554.

In the matter before us, the record shows that the claimant was advised prior to the hearing that the matter would be heard on the scheduled hearing date, whether or not the claimant was represented by counsel, because the matter had been pending for a long time. And although the WCJ observed that the claimant had been represented by a succession of attorneys, she could not possibly predict when or if the claimant would be able to secure another attorney to represent her. As the claimant appears in these proceedings pro se, it does not appear that the claimant would have been successful in securing new counsel even if the WCJ had |9granted a continuance. Moreover, as expressed by the WCJ, who was “extraordinarily” amazed at how much time, money, and effort had been expended on the claimant’s case, it is clear that the WCJ believed that to further delay the proceedings would be even more costly to the employer and imprudent in light of the overwhelming evidence of fraud that was presented. Consequently, we cannot say that the WCJ abused her discretion in proceeding with a hearing on the merits. See Connor, 35,521 at 18, 821 So.2d at 554.

The employer has filed a cross-appeal in this case, seeking reversal of the WCJ’s decision to deny an award of restitution and for failing to impose criminal sanctions against the claimant for violating La. R.S. 23:1208. We observe that the legislature left the decision to order restitution of benefits claimed or payment obtained to the discretion of the WCJ. See La. R.S. 23:1208(D). The WCJ did not explain why she refused to grant an order of restitution, but the record reveals that the claimant had filed for bankruptcy, which, according to the claimant’s testimony at the hearing, she filed to prevent foreclosure on her home. So, in light of this evidence, we cannot say that the WCJ abused her discretion in failing to order restitution pursuant to La. R.S. 23:1208(D).

As for the WCJ’s refusal to assess the claimant with a criminal penalty pursuant to La. R.S. 23:1208(C), we likewise reject the employer’s assertion that the WCJ erred in her refusal. As observed by the court in Rivera v. West Jefferson Medical Center, 96-152, pp. 17-18 (La.App. 5th Cir.7/30/96), 678 So.2d 602, 611:

Under the Louisiana Constitution, the district court is vested with original jurisdiction over criminal prosecutions. La. Const. 1974 Art. 5 Sec. 16. In exercising its criminal jurisdiction, the district court is bound by the provisions of the Louisiana Code of Criminal Procedure. C.Cr.P. art. 15. There is a fundamental difference between criminal and civil matters. See Bd. of Commissioners of Orleans Levee v. Connick, 94-3161 (La.3/9/95), 654 So.2d 1073. Criminal prosecutions put the defendant at risk of losing basic personal freedoms which are protected by both the United States and the Louisiana Constitutions. As such, criminal prosecutions must be conducted within the strict confines of the criminal justice system. There is no provision in the Worker’s Compensation Chapter which authorizes a hearing officer to convict a claimant of criminal activity and sentence him accordingly.
While civil penalties may be imposed in the form of a fine, those penalties are discretional with the director. The hearing officer’s authority for imposing a penalty under R.S. 23:1208 is restricted to section E....

See also Farm Fresh Food Supplier, Inc. v. Davis, 04-0856, p. 6 (La.App. 1st Cir.5/6/05), 915 So.2d 887, 891. Hence, we reject the employer’s allegations of error.

CONCLUSION

For the foregoing reasons, we affirm the judgment. All costs of this appeal are assessed to the claimant, Cynthia Amacker.

AFFIRMED.

      . Subsection A of La. R.S. 23:1124 provides:
      If the employee refuses to submit himself to a medical examination at the behest of the employer or an examination conducted pursuant to R.S. 23:1123, or in anywise obstructs the same, his right to compensation and to take or prosecute any further proceedings under this Chapter shall be suspended until the examination takes place. The employee shall receive at least fourteen days written notice prior to the examination. When a right to compensation is suspended no compensation shall be payable in respect to the period of suspension.

      . The record reveals that the employer had proffered a settlement offer of $5,000, which the claimant did not accept. Moreover, in her opposition to the withdrawal of the second attorney she obtained to represent her, it was noted that counsel had urged her to settle the claim, but claimant believed it would not be in her best interest to do so.

      . In the other issues raised by the claimant, she asserted that the WCJ erred: in admitting all the employer's exhibits without them being properly submitted, in not allowing a witness to testify about his personal knowledge of the claimant’s condition, and in not allowing the claimant to defend herself. Our review of the record reveals that all of the employer’s exhibits were properly admitted; that the witness was allowed to testify as to his personal observations, but not as to statements made by the claimant's treating doctors; and that the refusal to allow the claimant to speak as the WCJ was orally rendering judgment was proper. During the course of the hearing the claimant was allowed to present evidence and to testify, and the WCJ rendered her ruling after the presentation of evidence had concluded. Finally, as the record on appeal clearly supports the finding of fraud and the forfeiture of benefits, the claimant's objection to her benefits not being reinstated pending this appeal are rendered moot. See also La. R.S. 23:1208(E).

      . The record does not show that a formal request for a continuance was made.


author: WHIPPLE, J.

text:
    JEFFERSON ISLAND STORAGE & HUB, LLC v. LOUISIANA TAX COMMISSION, Iberia Parish Council, Rickey J. Huval, Jr., Iberia Parish Assessor.
    No. 2011 CA 0882.
    Court of Appeal of Louisiana, First Circuit.
    July 15, 2011.

      Michael B. Donald, Joshua A. Norris, Nicole M. Duarte, Houston, TX, for Plaintiff/Appellant Jefferson Island Storage & Hub, L.L.C.
    Leon J. Minvielle, III, New Iberia, LA, for Defendants/Appellees Rickey J. Huval, Sr. and Iberia Parish Assessor.
    Before WHIPPLE, GUIDRY and GAIDRY, JJ.
   WHIPPLE, J.

12This matter is before us on appeal by Jefferson Island Storage and Hub, L.L.C. (Jefferson Island), from a decision rendered by the Nineteenth Judicial District Court in an appeal taken to that court from a ruling of the Louisiana Tax Commission (LTC). The matter before us involves challenges to ad valorem tax assessments on property of Jefferson Island assessed for tax years 2006 to 2010. On appeal, Jefferson Island contends that the district court erred in refusing to address and/or render judgment on the correctness of all aspects of the contested tax assessments, thereby “splitting the appeal” and denying Jefferson Island the ability to recover the full amount of overpaid taxes in a single proceeding. Jefferson Island also contends that the district court erred as a matter of law in failing to address and affirm the merits of the LTC’s resolution of all other issues in addition to the pad gas issue and in failing to accordingly order a refund of all overpaid taxes arising out of the 2006-2010 assessments.

Finding no error by the district court, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Jefferson Island is a foreign limited liability company that operates a natural gas salt dome storage facility in Iberia Parish on and/or under property leased from the State of Louisiana. The facility consists of salt caverns located beneath Lake Peign-eur, as well as various facilities, including flow lines, wells, and wellheads.

After Jefferson Island received notice of the 2006 ad valorem assessment of its property by the Iberia Parish Assessor (Assessor), Rickey J. Huval, Sr., it filed a timely protest, first with the Assessor and then with the Iberia Parish Board of Review, which upheld the assessment. Jefferson Island timely paid the ad valorem taxes under protest, and then filed an appeal of the assessment to the LTC.

laUpon receiving its 2007 ad valorem assessment, Jefferson Island again protested on the same grounds it had urged in objecting to the 2006 assessment. Once again, Jefferson Island filed unsuccessful protests of the assessment with the Assessor and the Iberia Parish Board of Review. Jefferson Island paid the taxes under protest and appealed the 2007 assessment to the LTC, where the appeal was consolidated with the pending appeal of the 2006 assessment.

In addition to these administrative appeals, Jefferson Island also filed a direct suit in the Nineteenth Judicial District Court on January 25, 2008, seeking recovery of the 2006 and 2007 taxes it had paid under protest. The suit was based on the same grounds raised by Jefferson Island in its LTC appeals, namely:

(1) the Assessor applied an incorrect methodology in reaching its valuations by using a weighed valuation assessment that included the income, cost, and market approaches;
(2) the Assessor erred in refusing to recognize that the salt caverns are exempt from ad valorem property taxation because they are owned by the State of Louisiana and are being used in the public interest and for a public purpose pursuant to La. Const, art. VII, § 21(A);
(3) the Assessor incorrectly re-classified the “injection wells” at the facility to “cavern wells” and imposed an arbitrary methodology to reach a valuation of the wells;
|4(4) the Assessor applied an incorrect discount rate to pad gas.

Subsequently, Jefferson Island also protested its 2008 ad valorem assessment on these same grounds. Jefferson Island paid the 2008 tax assessment under protest and took an appeal to the LTC. By stipulation of the parties, that appeal was consolidated with the pending appeals before the LTC of the 2006 and 2007 assessments.

On June 2, 2009, the LTC rendered a decision on Jefferson Island’s appeals regarding the 2006-2008 tax assessments. The LTC agreed with Jefferson Island and ruled that the Assessor had utilized an incorrect methodology in making the assessments, that the salt caverns were exempt from taxation, and that Jefferson Island’s wells should be classified as injection wells. However, the LTC ruled against Jefferson Island on the pad gas issue, finding that the Assessor had applied the correct discount rate in assessing the pad gas.

On June 26, 2009, the Assessor took an appeal to the Sixteenth Judicial District Court, where the property is located, seeking review of the LTC’s rulings adverse to him, which related to the methodology utilized in the assessments, the salt cavern exemptions, and the classification of Jefferson Island’s wells. Shortly thereafter, on June 30, 2009, Jefferson Island filed an amended petition in its pending suit in the Nineteenth Judicial District Court, seeking to appeal from the LTC’s ruling on the pad gas issue, and therein sought a refund of all taxes paid under protest.

| ¡¡Thereafter, pursuant to an unopposed motion filed by Jefferson Island, the LTC entered a judgment on August 24, 2010, ordering that its June 2, 2009 ruling also be made applicable to the 2009 tax assessment. Jefferson Island then filed a second amending petition in the Nineteenth Judicial District Court, seeking to include its challenge to the 2009 and 2010 tax assessments in the proceedings pending before the Nineteenth Judicial District Court, since Jefferson Island’s protests of the 2006 through 2010 assessments were all based on the same grounds.

In response, the Assessor filed an exception of lis pendens, seeking dismissal of Jefferson Island’s appeal in the Nineteenth Judicial District Court on the basis that the Assessor’s appeal to the Sixteenth Judicial District Court was the first filed. However, the exception was never set for hearing and ultimately was dismissed, without prejudice.

Likewise, Jefferson Island filed an exception of lis pendens in the Sixteenth Judicial District Court, seeking dismissal of the Assessor’s appeal. Jefferson Island argued therein that its “appeal,” raised in the pending Nineteenth Judicial District Court suit for recovery of taxes paid under protest, was the first one filed, because its first amending petition, seeking an appeal of the LTC decision, should be viewed as relating back to the original 2008 filing date of its suit in the Nineteenth Judicial District Court. Thus, it asserted, the Assessor’s appeal in the Sixteenth Judicial District Court should be dismissed, since the two appeals involved the same transactions or occurrences, between the same parties, in the same capacity.

16In the pending appeal before the Sixteenth Judicial District Court, the district court overruled Jefferson Island’s exception of lis pendens. In rejecting Jefferson Island’s argument that its amending petition related back to the original 2008 filing of the Nineteenth Judicial District Court suit, the court reasoned that: (1) Jefferson Island’s original suit in the Nineteenth Judicial District Court was a separate proceeding from the appeal it took from the 2009 LTC decision; and (2) the filing of Jefferson Island’s appeal could not be interpreted to relate back to a date before the decision that was the subject of the appeal was rendered. Accordingly, the Sixteenth Judicial District Court concluded that the Assessor’s appeal was the first appeal filed. The court further held that its decision on the specific issues raised in the Assessor’s appeal relating to methodology, salt cavern exemptions, and classification of wells would not preclude the Nineteenth Judicial District Court from deciding the remaining issue actually raised in Jefferson Island’s appeal, ie., the pad gas issue.

Jefferson Island filed a writ application from the Sixteenth Judicial District Court’s denial of its exception of lis pen-dens. The Third Circuit Court of Appeal denied the writ, stating “[w]e find no error in the trial court’s ruling.” Huval v. Jefferson Island Storage & Hub, L.L.C., 2009-01213 (La.App. 3d Cir.2/25/10) (unpublished). Jefferson Island then filed an application for supervisory writs of certio-rari and review to the Louisiana Supreme Court, which were also denied. Huval v. Jefferson Island Storage & Hub, L.L.C. 2010-1700 (La.10/8/10), 46 So.3d 1275.

On March 9, 2011, the judge in the Nineteenth Judicial District Court rendered a decision on Jefferson Island’s pending appeal in the Nineteenth Judicial District Court. Ruling in favor of Jefferson Island, the court concluded that the |7LTC erred in finding that the Assessor had applied the correct pad gas discount rate, and reversed the LTC’s decision on that issue. However, in response to Jefferson Island’s contention that the court should also consider and affirm the remainder of the LTC decision, the court held that Jefferson Island lacked standing and the Nineteenth Judicial District Court was without authority to review the remaining three issues ruled upon by the LTC. Jefferson Island then filed the instant appeal to this Court, challenging the Nineteenth Judicial District Court’s refusal to address the entirety of the LTC’s decision.

DISCUSSION

On appeal, Jefferson Island does not assign error to or complain of any substantive ruling by the Nineteenth Judicial District Court, since Jefferson Island undisputedly received a favorable ruling on the only issue considered on the merits by that court. Rather, Jefferson Island complains that the judge in the Nineteenth Judicial District Court erred in refusing to affirm the LTC decision on the remaining three issues ruled upon by the LTC. Jefferson Island contends that the judge should have reviewed these additional rulings, which it argues would entitle it to an immediate refund of all taxes paid under protest, not just those taxes paid with respect to the pad gas. Jefferson Island further contends that the judge’s decision results in a splitting of appeals, thereby allowing different issues in a single case to be appealed to two different district courts.

Jefferson Island maintains that since it was a “dissatisfied” party with respect to the LTC’s ruling on the pad gas issue, it clearly had standing to take the instant appeal to the Nineteenth Judicial District Court on that issue. It further contends that, under the principles of res judicata and compulsory reconventional demands, the Assessor was required to raise any issues he had with respect to the | sLTC’s decision in the proceedings before the Nineteenth Judicial District Court and in the instant appeal arising therefrom. Otherwise, Jefferson Island argues, the Assessor’s failure to raise these issues in the Nineteenth Judicial District Court and the instant appeal bar him from doing so in another proceeding. In essence, Jefferson Island argues that the principles of res judicata and compulsory reconventional demands define the scope of the appeal before the Nineteenth Judicial District Court and should thereby force the Assessor to raise his appeal of the LTC’s adverse rulings in the forum chosen by Jefferson Island, ie., the Nineteenth Judicial District Court. After careful review, we find no merit to Jefferson Island’s procedural arguments.

In reaching the conclusion that the pad gas issue was the only issue actually before the district court on appeal, the judge for the Nineteenth Judicial District Court gave extensive written reasons for judgment, as follows:

This Court must first address the threshold issue of what portions of Jefferson Island’s appeal are properly before this Court. La. R.S. U7:1998, which vests the district courts with the authority to conduct judicial reviews of ad valo-rem tax assessments, states, in pertinent part:
A. (1)(a) Any taxpayer or bona fide representative of an affected tax — recipient body in the state dissatisfied with the final determination of the Louisiana Tax Commission under the provisions of R.S. 47:1989 shall have the right to institute suit within thirty days of the entry of any final decision of the Louisiana Tax Commission in the district court for the parish where the Louisiana Tax Commission is domiciled or the district court of the parish where the property is located contesting the correctness of assessment, (emphasis added)
Accordingly, to have standing to raise an issue on appeal, the Petitioner must be the dissatisfied party. Jefferson Island asks that this Court affirm the first three rulings of the Tax Commission and overturn the fourth ruling. Since Jefferson Island prevailed on the first three issues, it does not have the right to file suit on those points, since it is not “dissatisfied” with those rulings within the meaning of La. R.S. 47:1998(A)(1)(a).
| ¡¡The Court agrees with the ruling of Judge Leonard of the Sixteenth Judicial District Court in denying the Exception of Lis Pendens filed in that proceeding by Jefferson Island. Therein, Judge Leonard held that the Judicial Review pending before the Nineteenth and Sixteenth Judicial District Courts did not involve the same issues. Specifically, in the Sixteenth Judicial District Court, Mr. Huval (for Iberia Parish) appealed 1) the correct methodology used to assess the value of the property; 2) the tax-exempt status of the salt caverns; and 3) whether the wells should be classified as injection wells or cavern wells. Conversely, the only issue before the Court in the Nineteenth Judicial District Court was the discount rate to be applied to the pad gas. Therefore, it is the opinion of this Court that Jefferson Island does not have standing to raise the other three issues upon which it prevailed, and those matters are properly before the court in the Sixteenth Judicial District Court.
Accordingly, only the Tax Commissioner’s ruling relating to the categorization of the pad gas will be addressed by this Court.

On review, we find no error in the determination of the Nineteenth Judicial District Court that the pad gas issue was the only issue Jefferson Island had standing to properly bring before the court on appeal. We are unpersuaded by Jefferson Island’s contention that the scope of its appeal to the Nineteenth Judicial District Court is governed by principals of res judicata and lis pendens. Rather, as noted by the district court, LSA-R.S. 47:1998(A)(l)(a) permits a party “dissatisfied” with the LTC’s determination to appeal to the district court. Louisiana Code of Civil Procedure article 2082 provides that an “[ajppeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court.” Thus, the object of an appeal is to give an aggrieved party recourse to a superior tribunal for the correction of a judgment. See Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594, 599 (La.1963); ANR Pipeline Company v. Louisiana Tax Commission, |102008-1148 (La.App. 1st Cir.10/17/08), 997 So.2d 92, 101, writ denied, 2009-0027 (La.3/6/09), 3 So.3d 484.

Further, standing exists only if a party has a sufficient interest at stake in the litigation that can be legally protected. Moreover, and contrary to Jefferson Island’s contentions, in addition to legal capacity to appear in court, standing is also gauged by the specific statutory or constitutional claims the party presents and his relationship to those claims. Therefore, a determination of standing requires a careful examination of whether a particular party is entitled to an adjudication of the particular claims he has asserted. In Re Matter Under Investigation, 2007-1853 (La.7/1/09), 15 So.3d 972, 981. As a result, standing may exist for a portion of a party’s claim, but be lacking for a different portion of the same claim. In re Melancon, 2005-1702 (La.7/10/06), 935 So.2d 661, 668.

Applying these principles to the particular facts of this case, we agree that, while Jefferson Island had standing to appeal the adverse ruling on the pad gas issue, it lacked standing to seek review of the LTC’s rulings on the remaining issues, which clearly were decided in its favor. Since the rulings on these issues clearly were adverse to the Assessor, he was the party entitled to challenge and appeal the rulings under LSA-R.S. 47:1998(A)(l)(a). Venue for appeals from final determinations of the LTC are proper either in the district court for the parish where the Louisiana Tax Commission is domiciled or the district court of the parish where the assessed property is located. See LSA-R.S. 47:1998(A)(l)(a). In the instant case, the Assessor properly chose to file an appeal in the Sixteenth Judicial District Court, which includes the parish where Jefferson Island’s property is located. Moreover, contrary to Jefferson Island’s contention, the Assessor’s |1tappeal was the first appeal filed from the LTC decision. Under the circumstances, the Assessor’s appeal of the three adverse rulings of the LTC to the Sixteenth Judicial District Court was proper and the judgment of the Nineteenth Judicial District Court was correct.

CONCLUSION

On review, we find no error in the district court’s ruling that the scope of the appeal before it was limited to the single issue regarding the correct discount rate to be applied to pad gas, which was the only issue decided adversely to Jefferson Island in the LTC’s decision. Because the remaining rulings contained in the LTC decision were in Jefferson Island’s favor, it lacked standing to appeal those rulings. Further, because the district court’s ruling on the sole substantive issue properly before it for review was in favor of Jefferson Island, the instant appeal to this Court presents nothing further for review. Accordingly, the March 9, 2011 judgment of the district court is affirmed at the cost of appellant, Jefferson Island Storage and Hub, L.L.C.

AFFIRMED.

GUIDRY, J., concurs.

      . Louisiana law provides a two-track system for challenging property tax assessments under which different procedures must be followed depending upon whether the claim raised by the taxpayer is a correctness or a legality challenge. Gisclair v. Louisiana Tax Commission, 2009-0007 (La.6/26/09), 16 So.3d 1132, 1135-36. “[C]orrectness challenges are directed at issues of regularity or correctness of the assessment, such as overvaluation and misdescription, while legality challenges are directed at issues involving claims that the assessment is void for radical defects that bring into question the existence of any valid assessment.” Gisclair, 16 So.3d at 1136 (citing Morgan's Louisiana & T.R. & S.S. Co. v. Pecot, 50 La. Ann. 737, 742-13, 23 So. 948, 950-51 (1898)). Any challenge that seeks to correct some aspect of the assessment, but not to annul the assessment in its entirety, is a correctness challenge. Gisclair, 16 So.3d at 1136-1137. The procedure for correctness challenges is governed by La. Const. Art. VII, § 18(E), which provides that the correctness of assessments are reviewable first by the parish governing authority, then by the LTC, and finally by the courts. Thus, the courts are granted only appellate jurisdiction in correctness challenges. In contrast, pursuant to La. Const. Art. VII, § 3(A) and LSA-R.S. 47:2134, legality challenges can be filed directly in district court, which exercises original jurisdiction over such claims. See Gisclair, 16 So.3d at 1136.

      . "Pad gas” is natural gas that is injected into and left inside a reservoir, such as a salt cavern, to provide sufficient pressure to allow other gas stored inside the reservoir to be extracted.

      . Although the August 24, 2010 order of the LTC specifically referred only to the 2009 assessment, the parties apparently stipulated that any final ruling would also apply to the 2010 tax assessment.

      . We also note that a party’s lack of standing (no right of action) may be noticed by an appellate court on its own motion. See Chrysler First Financial Services Corp. v. ZIA Corporation, 542 So.2d 87, 89 (La.App. 1st Cir.1989).

      . Although Jefferson Island asserted its appeal via an amending petition filed in its previously existing direct suit in the Nineteenth Judicial District Court, the appeal actually was part of Jefferson Island’s correctness challenge to the amounts paid pursuant to the property assessments, which was a separate proceeding procedurally. As such, the Nineteenth Judicial District Court sat as an appellate court in reviewing the LTC's determination, whereas it would sit as a court of original jurisdiction in the direct suit. The proceedings being distinct, we agree with the Assessor and the judge in the Nineteenth Judicial District Court that the filing of the appeal of a decision (rendered subsequent to the institution of a direct suit to recover amounts overpaid) cannot relate back to the original filing of the petition in the direct suit. In any event, we agree with the express conclusion of the Sixteenth Judicial District Court that the filing of the appeal cannot relate back to a date before the appealed decision was ever rendered.

      . We note the Assessor’s contention in brief that Jefferson Island's amending petition asserting an appeal should have been filed in the Sixteenth Judicial District Court, where the actual first appeal from the LTC's decision was filed and pending. However, because the Assessor chose not to pursue the exception of lis pendens filed in the Nineteenth Judicial District Court (and has not otherwise challenged the correctness of the Nineteenth Judicial District Court’s ruling), we pretermit discussion of this issue.


author: CARAWAY, J.

text:
    STATE of Louisiana in the Interest of A.N.
    No. 46,597-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    July 20, 2011.

      Bobby L. Stromile, Public Defender Office, Benton, LA, for the mother.
    W. Allen Hayes, for the father.
    Jessica R. Green, Legal Services of North Louisiana, for the child.
    J. Schuyler Marvin, District Attorney, Graydon K. Kitchens, Jr., Assistant District Attorney, for State, DOSS.
    Before CARAWAY, PEATROSS and LOLLEY, JJ.
   CARAWAY, J.

[]The mother of an infant contests the trial court’s adjudication of the child as a child in need of care and the judgment of disposition setting forth a goal of reunification/guardianship with authorization for placement in foster care. For the reasons that follow, we affirm.

Facts

On November 24, 2010, seven-month-old A.N. was temporarily removed by Instanter Removal Order from the custody of her mother, B.N., to the custody of the Webster Parish, Louisiana Department of Children and Family Services (“DCFS”), on the grounds of abuse and/or neglect and a substantial risk of immediate danger or harm to the child. The child was placed with the nonrelative caretakers who would eventually become her foster parents.

The affidavit in support of the instanter order showed that A.N. was admitted to Springhill Medical Center on November 21, 2010, with a urinary tract infection. The child was brought to the hospital by Melissa Parsons, the child’s godmother. Parsons informed investigators that she had obtained physical custody of A.N. three weeks earlier when she received information raising concerns about B.N.’s home situation. Evidence showed that Parsons received custody of A.N. from B.N.’s mother (“the grandmother”). Parsons informed investigators that she learned that A.N.’s four-year-old sister had recently been removed from B.N.’s home due to sexual abuse by a 19-year-old male. Parsons knew only that B.N. was located in the Baton Rouge vicinity; the location of A.N.’s father, G.C., was |2unknown by Parsons. At the time the hospital was able to release A.N., the child needed follow-up care and antibiotics. A.N. had no medical insurance or Medicaid. Because A.N. had no legal caretaker to whom she could be released, the state was notified.

After the state obtained custody, a continued custody hearing was held on November 29, 2010. At the hearing, B.N. raised exceptions to venue and jurisdiction. The trial court signed a judgment continuing A.N. in the custody of DCFS on November 29, 2010. The court also issued an order to transfer venue to East Baton Rouge Parish on November 30, 2010. When East Baton Rouge Parish denied venue in a status conference held on December 16, 2010, the case was returned to Webster Parish.

On January 7, 2011, DCFS petitioned the court to declare A.N. a child in need of care on the grounds that the minor child was the victim of abuse and/or neglect and was substantially at risk of harm from her parent/earetaker. In addition to the facts given in support of the instanter removal order, the petition also alleged that the grandmother who had custody of A.N. pri- or to her hospitalization was homeless.

An adjudication hearing was held on February 14, 2011. B.N. was present for the proceedings but G.C. did not appear. At the hearing, only DCFS investigator, Tasha Duty, testified. At the time of the hearing A.N. was ten months old. Duty testified that she made no contact with G.C. who was possibly in Mexico.

laDuty testified that her agency received a report on A.N. in November of 2010. A.N. was diagnosed with a urinary tract infection for which she was kept in the hospital three days. The child required follow-up visits with a urologist and additional antibiotics. A.N. child had no medical insurance and no legal guardian to pick her up upon her discharge from the hospital. Accordingly, DCFS was notified. Duty testified that Parsons did not give her the phone number of the grandmother; Duty did not try to contact the grandmother although she knew her name. She was unable to contact A.N.’s mother or father. Because she made no contact with any legal guardian for the child, she was required to take the child into state custody.

On cross-examination, Duty admitted that her supervisor received a phone call from B.N. later in the day after the child left the hospital. Duty testified that B.N. had a four-year-old child who had been removed from her custody.

After Duty’s testimony, B.N. moved for involuntary dismissal on the grounds that a legal caretaker was available for the child. The court denied counsel’s request and adjudicated A.N. a child in need of care on the grounds of lack of basic support and supervision and neglect and abuse. The judgment placed A.N. in the custody of DCFS with authorization for foster care placement.

DCFS submitted a case plan to the court on February 18, 2011, recommending reunification/guardianship to a relative. B.N. had requested |4that A.N. be placed in the foster care of Jessica Adams who had custody of B.N.’s other child. DCFS of Ascension Parish conducted a home study of the Adams home and rejected placement with Adams due to lack of a support system in the home. The case plan also rejected the Adams home as a possibility for foster care for A.N.

The disposition hearing occurred on February 28, 2011. B.N. and Jessica Adams, the caregiver of B.N.’s other child, appeared for the hearing, but C.G. was not present. The record showed that at the time of this hearing, B.N. was incarcerated. The caregiver/foster parents of A.N. were also present for the proceedings. B.N. objected to the contents of the case plan. The home study of Jessica and Darrell Adams was introduced into evidence.

The first witness to testify for the state was Angela Moody, the case plan worker. Her report was submitted into evidence. Moody testified that after a home study, DCFS rejected the Adams home as a possibility for placement of A.N. Moody testified that she discussed the problems with Jessica Adams including her taking the child to work with her. Other problems with the home study included Adams’ failure to submit fingerprints and the fact that Mr. Adams did not provide any support for his family. Moody agreed that if these problems were solved, the case would be in a posture for restaffing in Ascension and Webster Parishes. Moody did not discuss whether Jessica Adams would be willing to put the child in | ^daycare. Moody was aware that DCFS had placed B.N.’s other child with Jessica Adams. Moody testified that the agency was unable to find a relative for placement. Moody agreed that if B.N. were not incarcerated, the agency would be seeking to return custody of the child to her pending her compliance with the case plan. Moody testified that the agency’s main concern for B.N. was substance abuse.

Moody testified that A.N. did not receive Medicaid until after she was placed in foster care. Before B.N.’s incarceration, the agency arranged for B.N. and the grandmother to visit A.N. in Webster Parish once a month. Moody agreed it would be feasible for A.N. to be in Ascension Parish for visitation but noted that the Baton Rouge court had declined jurisdiction. She testified that the agency had authority to transfer the case if B.N. requested transfer.

Jessica Adams testified for B.N. and stated she lives in White Castle, Louisiana, in Iberville Parish. Adams testified that she now had an operable car although at the time of the home study, she did not. Her cousin took her to work. She is employed at Majestic Home Care and has one patient who is her grandmother. Adams testified that she works Monday through Sunday from 3:00 to 7:00 p.m. On Wednesday and Mondays she stays until 8:00 p.m. She has no other job, although she worked at a fast food chain at the time of the home study. Adams testified that she takes the children with her when she works at her grandmother’s. She stated that she has taken care of children since she was 11 years old. Adams never had a child removed from her care and was never investigated by child protection. She prepared |fia room for A.N. Her children get WIC and she receives food stamps. Adams testified that she was willing to get fingerprinted.

The trial court entered a Judgment of Disposition finding that the best interest of A.N. was served by her remaining in the custody of DCFS as a child in need of care. The court approved and made a part of the judgment the case plan submitted by DCFS, thus denying Adams as an option for foster care of A.N. and placing her in the foster care of the unrelated caregivers.

Discussion

On appeal, B.N. urges error in the trial court’s adjudication of B.N. as a child in need of care. She contends that at the adjudication hearing on February 14, the state failed to meet its burden of proof through the hearsay testimony of Duty. B.N. also argues urges error in the Judgment of Disposition which she contends did not provide for the least restrictive placement for A.N. because placement with Jessica Adams would have kept the family unit intact.

Before a juvenile court may adjudicate a child in need of care under Title VI of the Louisiana’s Children’s Code, the State must allege and prove by a preponderance of the evidence one or more of the statutorily expressed allegations in La. Ch.C. art. 606(A). State ex rel. J.A., 99-2905 (La.1/12/00), 752 So.2d 806. Specifically, Article 606(A) provides as follows:

Allegations that a child is in need of care must assert one or more of the following grounds:
(1)The child is the victim of abuse perpetrated, aided, or tolerated by the parent or caretaker, by a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or by |7a person living in the same residence with the parent or caretaker as a spouse whether married or not, and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.
(2) The child is a victim of neglect.
(3) The child is without necessary food, clothing, shelter, medical care, or supervision because of the disappearance or prolonged absence of his parent or when, for any other reason, the child is placed at substantial risk of imminent harm because of the continuing absence of the parent.
(4) As a result of a criminal prosecution, the parent has been convicted of a crime against the child who is the subject of this proceeding, or against another child of the parent, and the parent is now unable to retain custody or control or the child’s welfare is otherwise endangered if left within the parent’s custody or control.
(5) The conduct of the parent, either as principal or accessory, constitutes a crime against the child or against any other child of that parent.

This statute makes clear that all of the grounds listed as required showings are based on either abuse or neglect, criminal and noncriminal. Thus, before a child may be adjudicated a child in need of care, the court must first make a predicate finding of abuse or neglect. Id.

One of the statutory grounds provided for in Article 606 is that the “child is a victim of neglect.” La. Ch.C. art. 606. “Neglect” means the refusal or willful failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the child, as a result of which the child’s physical, mental, or emotional health is substantially threatened or impaired. Id. The Legislature defined a “neglected” child in broad terms precisely because foreseeing all the possible factual situations that may arise is impossible. The broad definition enables experienced juvenile courts to | sapply their training and experience to the unique facts and circumstances of each case. Id.

Abuse is defined in La. Ch.C. art. 603(1) as any one of the following acts which seriously endanger the physical, mental or emotional health of the child:

(l)(a) The infliction, attempted infliction, or as a result of inadequate supervision, the allowance of the infliction or attempted infliction of physical or mental injury upon the child by a parent or any other person.
(b) The exploitation or overwork of a child by a parent or any other person.
(c) The involvement of the child in any sexual act with a parent or any other person, or the aiding or toleration by the parent or the caretaker of the child’s sexual involvement with any other person or of the child’s involvement in pornographic displays, or any other involvement of a child in sexual activity constituting a crime under the laws of this state.

Adjudication of a child in need of care is warranted when a parent shows a repeated pattern of placing a child at risk and exposing a child to a lack of adequate shelter. State ex rel. L.M., 46,078 (La. App.2d Cir.1/26/11), 57 So.3d 518; State ex rel. A.R., 99-0813 (La.App. 1st Cir.9/24/99), 754 So.2d 1073. At the adjudication hearing, the state bears the burden of proving by a preponderance of the evidence that the child is a child in need of care. La. Ch.C. art. 665; State ex rel. L.B., 08-1539 (La.7/17/08), 986 So.2d 62; State ex rel. L.M., supra. It is not the duty of the state to prove its case beyond a reasonable doubt, by clear and convincing evidence, or to disprove every hypothesis of innocence. State ex rel. L.B., supra; State ex rel. L.M., supra.

It is well settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those |9findings are clearly wrong. In re A.J.F., 00-0948 (La.6/30/00), 764 So.2d 47; State ex rel. L.M., supra. In a manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. In re A.J.F., supra; State ex rel. L.M., supra. Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the juvenile court. In re A.J.F., supra; State ex rel. L.M., supra. If the juvenile court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. In re A.J.F., supra; State ex rel. L.M., supra.

The trial court’s award of custody at a dispositional hearing is entitled to great deference and will not be reversed on review except in the clearest case of abuse of that great discretion. State ex rel C.N. v. Harte, 42,977 (La.App.2d Cir.1/9/08), 974 So.2d 143; State ex rel. C.N. v. Hawkinberry, 42,085 (La.App.2d Cir.2/28/07), 953 So.2d 870.

Child in Need of Care Adjudication

B.N. first contends that it was error for the trial court to adjudicate A.N. as a child in need of care based upon the hearsay testimony of Duty received into evidence over B.N.’s objections at the February 14 hearing. La. C.C. art. 662 provides in pertinent part that “the adjudication hearing | mshall be conducted according to the rules of evidence applicable to civil proceedings.”

From our review of the record, any information obtained by Duty from other individuals, including Parsons and her supervisor, should not have been admitted into evidence through Duty’s testimony of that hearsay. Nevertheless, we find Duty’s personal knowledge and observations adequate to meet the state’s burden of showing that A.N. was the victim of neglect. Duty’s testimony established that no legal guardian was present at the time of A.N.’s release from the hospital even though the child had been admitted to the hospital three days earlier. The locations of the child’s parents were unknown to Duty, and she received no further information about their whereabouts from Parsons. From those facts, Duty could have reasonably concluded that A.N. was the victim of neglect and lack of basic support and supervision.

Moreover, B.N. failed to contest the February 14 adjudication through emergency supervisory review under La. Ch.C. art. 338 thus allowing the case to proceed to the disposition hearing two weeks later. At those proceedings it was established that B.N. was incarcerated and unavailable to care for her children. Obviously, the fact of B.N.’s imprisonment is sufficient to satisfy the state’s burden of establishing that A.N. was a child in need of care. La. Ch.C. art. 606(A)(3). Thus, when viewed in their entirety, the facts of record are sufficient to affirm the trial court’s adjudication judgment.

| n Judgment of Disposition

B.N. also contests the Judgment of Disposition resulting from the February 28 hearing. She argues that the least restrictive placement and best interest of the child required that the court place A.N. in the custody of Jessica Adams, rather than unrelated foster parents. We find no abuse of discretion in the trial court’s placement. Testimony established that after a home study, DCFS rejected the Adams home as a possibility for placement of A.N. partly because of Adams’s noncompliance and lack of financial support for the family. Evidence also established that no family member was available for placement of the child, as the grandmother was not a viable option for placement. From this evidence, the trial court could have reasonably concluded that the placement of A.N. into foster care served the child’s best interests and was the least restrictive placement for her. Because this appeal involves an initial case plan, the possibility of modification of the plan and reunification remains for B.N. upon her compliance with requirements of DCFS and the case plan.

Conclusion

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to B.N.

AFFIRMED.

      . At an answer hearing on January 13, 2011, it was revealed that B.N. was not present because she was incarcerated in a south Louisiana prison.

      . The court rendered oral judgment on February 14, 2011. A signed judgment followed on March 22, 2011.

      . The case plan noted that B.N. was pregnant and wanted to give the unborn child up for adoption. On January 10, 2011, B.N. was arrested for possession of drug paraphernalia, possession of a Schedule I drug and a meth lab.

      . C.G.'s brother and a brother-in-law appeared for the hearing but were removed from the courtroom because they were not parties to the proceedings. C.G.’s brother informed the court that A.N.'s father was in Mexico and unable to appear at the proceedings.


author: WILLIAMS, J.

text:
    Jacqueline YOUNG, individually and on behalf of her minor children, Don’tiquae Young and Jai’Queshia Young, Plaintiff-Appellee v. Aretha Ann McGRAW, Vernon Washington, and USAgencies Casualty Insurance Company, Inc., Defendant-Appellant.
    No. 46,389-CA.
    Court of Appeal of Louisiana, Second Circuit.
    July 20, 2011.

      Mark J. Neal, Monroe, LA, for Appellant, USAgencies Casualty Insurance Company and Vernon Washington.
    Eddie M. Clark, for Appellee, Jacqueline Young and her minor children, Don’tiquae Young and Jai’Queshia Young.
    Aretha Ann McGraw, Appellee, In Proper Person.
    Before BROWN, WILLIAMS and MOORE, JJ.
   WILLIAMS, J.

| defendant, USAgencies Casualty Insurance Company, Inc. (“USAgencies”), appeals a city court judgment, finding it liable to plaintiff for damages arising out of an automobile accident involving its insured’s vehicle. For the reasons that follow, we reverse.

FACTS

On December 29, 2007, defendant, Vernon Washington, applied with USAgencies for automobile liability insurance on two vehicles, a 1990 Buick Century and a 1985 Oldsmobile Cutlass. USAgencies issued a policy with effective dates of January 1, 2008, through July 2, 2008. During the application process, Washington signed an excluded driver endorsement, expressly excluding Aretha A. McGraw and her children, Christopher McGraw and Tiffany McGraw, as insured vehicle operators under the policy. The endorsement page reflects policy limits of $10,000/$20,000 for each of the two vehicles and lists the driver as Vernon Washington. Aretha A. McGraw, Christopher McGraw and Tiffany McGraw were listed as excluded drivers on the endorsement page.

On February 11, 2008, defendant, Are-tha McGraw, was involved in a two-vehicle automobile accident while operating the Buick Century owned by Washington and insured under the USAgencies policy. The driver of the other vehicle was 16-year-old Don’tiquae Young; Jai’Queshia Young, her sister, was a passenger in the vehicle. The vehicle was owned by their mother, Jacqueline Young, who subsequently filed a lawsuit on behalf of her minor children. Young named McGraw, Washington and USAgencies as defendants, and alleged, inter alia, that the automobile McGraw was ^driving was insured by USAgencies.

In response to the petition, defendant, USAgencies, filed a motion for summary judgment, alleging that McGraw was an excluded driver under the policy; therefore, no coverage existed for her fault in causing the accident. The trial court denied the motion, and the matter proceeded to trial.

The issue of insurance coverage was hotly contested during the trial. USAgencies presented evidence that Washington expressly excluded McGraw as a driver at the time he entered into the insurance contract. However, plaintiffs maintained that the named-driver exclusion provision did not apply to McGraw because Washington and McGraw were not residents of the same household at the time Washington obtained the policy.

The evidence adduced at trial by the insurer established that Washington resided at 1996 Joe G. Drive, Monroe, Louisiana. Both Washington and McGraw testified that McGraw resided at that residence with Washington at the time the policy was issued. However, plaintiffs produced evidence that the address listed on McGraw’s expired driver’s license was 812 Tanglewood Drive, Monroe, Louisiana (the address where McGraw’s mother resides). Also, evidence was introduced that on the day of the accident, McGraw had informed the police officer investigating the accident that she lived at the Tanglewood address. Additionally, McGraw’s disability checks were mailed to the Tanglewood address.

|sThe trial court concluded that the evidence presented failed to establish that Washington and McGraw were residents of the same household when the policy was issued. Therefore, the court concluded that McGraw could not legally be considered an excluded driver and USAgencies was liable to plaintiffs for the damages arising out of the accident. The court awarded plaintiffs personal injury damages in the amount of $5,750 and $50 in property damages.

USAgencies filed a motion for new trial, alleging that the trial court’s ruling was “clearly contrary to the law and evidence.” The trial court denied the motion. USA-gencies appeals.

DISCUSSION

USAgencies contends the trial court’s finding that McGraw and Washington were not residents of the same household when the insurance policy was written was manifestly erroneous. It argues that the court ignored the testimony of both McGraw and Washington as to McGraw’s residence at the time that the policy was issued, and erroneously relied on the address listed on McGraw’s expired driver’s license and disability checks as the most competent evidence of her actual residence.

An insurance policy is an agreement between the parties and should be interpreted using ordinary contract principles. Smith v. Matthews, 611 So.2d 1377 (La.1993); National Automotive Ins. Co. v. Castleman, 42,518 (La.App.2d Cir.10/24/07), 968 So.2d 819. Insurance companies have the right to limit coverage in any manner they desire, as long as the limitations |4do not conflict with statutory provisions or public policy. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180; Castleman, supra. However, the insurer has the burden of proving that a loss falls within a policy exclusion. Castleman, supra; Fields v. American Cent. Ins. Co., 40,738 (La.App.2d Cir.3/8/06), 923 So.2d 967.

At all times relevant to the instant case, LSA-R.S. 32:900(L) provided, in pertinent part:

(1) [A]n insurer and an insured may by written agreement exclude from coverage the named insured and the spouse of the named insured. The insurer and an insured may also exclude from coverage any other named person who is a resident of the same household as the named insured at the time that the written agreement is entered into, and the exclusion shall be effective, regardless of whether the excluded person continues to remain a resident of the same household subsequent to the execution of the written agreement. It shall not be necessary for the person being excluded from coverage to execute or be a party to the written agreement. For the purposes of this Subsection, the term ‘named insured’ means the applicant for the policy of insurance issued by the insurer.

In sum, Section 900(L)(1) grants the automobile insurer and the insured the statutory authority to contract to exclude a resident of the insured’s household from coverage under the automobile policy. The purpose of Section 900(L) is to allow the named insured the option of paying a reduced premium in exchange for obtaining an insurance policy that affords no coverage for an accident while a covered vehicle is being operated by an excluded driver. Bryant v. United Servs. Auto. Ass’n, 2003-3491 (La.9/9/04), 881 So.2d 1214; Joseph v. Dickerson, 99-1046 (La.1/19/00), 754 So.2d 912.

| -The issue of whether the excluded driver and the named insured were members of the same household at the time that the automobile liability policy was written is a factual determination. Joseph, supra. A factual finding cannot be set aside on appellate review unless the reviewing court concludes that the finding was clearly wrong. Id.; Rosell v. ESCO, 549 So.2d 840 (La.1989).

In the instant case, the insurance policy was issued on December 29, 2007, and listed Washington’s address as 1996 Joe G Drive, Monroe, LA, 71202. Contemporaneous with the application for automobile liability insurance, Washington executed three separate documents in which he listed McGraw as a resident of his household and expressly excluded her from coverage under the policy. The “Named Driver Exclusion Endorsement” in question reads as follows:

In consideration of the premium charged, it is hereby agreed that any person identified in the list below is a Named Excluded Operator as defined by the Policy to which this form is endorsed and made a part thereof.
Aretha A. Mc[G]raw
Christopher M. Mc[G]raw
Tiffany Mc[G]raw
The undersigned named insured warrants that each person listed above resides in the same household as the named insured as of the date of signing this agreement. This agreement will remain in effect as to each of the above persons regardless of whether any or all of the above listed persons stop residing in the same household of the named insured at a later date.
IMPORTANT NOTICE: By signing this endorsement, the undersigned applicant agrees that no insurance coverage is provided under any part of the policy for the operation of any auto by the listed person.

| fi(Emphasis in original). The application for insurance also contained a “Disclosure and Classification of ALL Persons Living in the Named Insured’s Household” which contained the following statement:

⅜ ⅝ s¡:
2) Excluded Persons: persons that live in my household and I request in writing to exclude these persons from any benefit of this policy!.] USAgencies Casualty Insurance Company will not be responsible for any damage caused by an excluded person or non-listed household resident not found on this application.
* * *

“Aretha A. Mc[G]raw, Christopher M. Me[G]raw [and] Tiffany Mc[G]raw” were listed as “Excluded Persons.” Also, the declarations page of the policy listed McGraw and her children as “operators excluded from this policy.”

During the trial, McGraw testified that she and her children have lived with Washington at 1996 Joe G. Drive since 2003. She also testified that she and her children lived with Washington at 814 Tanglewood Drive from approximately 1998 to 2003, stating that she and Washington had lived together continuously since 1998. McGraw further testified that prior to moving in with Washington, she lived with her mother and stepfather at 812 Tangle-wood Drive. McGraw admitted that immediately following the accident, she told the investigating police officer that she lived at 812 Tanglewood Drive-her parents’ address. McGraw stated, “I didn’t think it was a big deal. [M]ost of my mail goes to my mother’s address and at that time, I didn’t think nothing of it.” McGraw testified that it had never occurred to her to change her mailing address because she goes to her mother’s house every day, and it was easy to pick up her mail from there.

Washington testified at trial that he and McGraw had lived together at |71996 Joe G. Drive for approximately seven years. He also testified that prior to moving to the residence on Joe G. Drive, he and McGraw had lived together at 814 Tangle-wood Drive for approximately “two to five” years. Washington stated that at the time he obtained the automobile insurance policy, he informed USAgencies that McGraw was a member of his household. He also testified that he intentionally excluded McGraw from coverage under the policy because of financial constraints.

Our review of the record convinces us that the lower court’s finding that McGraw and Washington were not residents of the same household at the time the automobile liability policy was issued is clearly wrong. As stated above, the insurance documents executed by Washington listed McGraw as a resident of Washington’s household. Additionally, Washington testified that he and McGraw had lived together at the Joe G. Drive address continuously for more than seven years. Moreover, McGraw testified that she has resided with Washington at sequential addresses, 814 Tanglewood Drive, and later, 1996 Joe G. Drive, the address where McGraw and Washington both resided at the time the policy was written and on the date of the accident.

Based on the above testimony, it is immaterial that McGraw’s expired driver’s license listed 812 Tanglewood Drive as her address or that McGraw received her disability checks and “most of [her] mail” at her mother’s address. Therefore, we find that the record does not contain a reasonable factual basis for the trial court’s conclusion that McGraw and Washington were not residents of the same household when the policy exclusions were ^executed. Consequently, the trial court was manifestly erroneous in concluding that the policy endorsement excluding Aretha McGraw as a driver of the vehicles covered under the policy was inapplicable and that the defendant, McGraw, was a covered operator of the vehicle at the time of the automobile accident.

CONCLUSION

For the reasons set forth herein, the judgment of the city court finding USA-gencies liable for plaintiffs’ damages is hereby reversed. Costs of this appeal are assessed to plaintiff, Jacqueline Young.

REVERSED.

      . On September 25, 2009, the trial court confirmed a judgment of default against McGraw.

      . McGraw’s driver’s license was issued on February 6, 2002, and expired on January 20, 2006. The record also reveals that McGraw’s driver's license had been suspended prior to the accident.

      . Plaintiffs did not file an answer to the appeal or a brief in this court.