author: PICKETT, Judge.

text:
    Sonya Reeder SEAMAN v. Charles W. SEAMAN.
    No. 10-1295.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 15, 2010.

      Robert Charles Owsley, Murchison & Murchison, Natchitoches, LA, for Defendant/Appellee, Charles W. Seaman.
    Sonya Reeder Seaman, Edwards, CO, In Proper Person.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

11 This court, on its own motion, issued a rule for the plaintiff-appellant, Sonya Reeder Seaman, to show cause, by brief only, why this appeal should not be dismissed as untimely pursuant to La.Code Civ.P. arts. 3942 and 3943 or as taken from a non-appealable, interlocutory order or both. The plaintiff filed a brief in response to this rule. For the reasons discussed in this opinion, we dismiss the appeal.

The plaintiff, through counsel, initiated this suit with the filing of a petition seeking divorce and ancillary relief. Since the parties had minor children from the marriage, custody, visitation, and child support were among the ancillary matters. A judgment pertaining to custody and child support was entered by the trial court which gave both parties shared custody of the children. Later, a judgment of divorce was granted.

Subsequently, the defendant-appellee, Charles W. Seaman, filed a motion seeking a change in the custodial arrangement and raising other matters relating to the children. The change of custody and other related issues came for hearing before the trial court on April 29, 2010. At the outset of the hearing, the trial court stated for the record that the plaintiff had been contacted by the court and indicated that she would not be attending the hearing nor would she have any attorney present. Thereafter, the trial court proceeded to hear the matter.

A written judgment changing the custody arrangement from shared custody to sole custody with the defendant was signed by the trial court on May 6, 2010. This written judgment provides:

IT IS ORDERED, ADJUDGED AND DECREED that the Judgment previously rendered is hereby modified and amended to award Charles W. Seaman the sole custody of the minor children, ..., subject to the visitation by Son[y]a Reeder Seaman, detailed as follows:
|2a) Sonya Reeder Seaman may visit the minor children with advance notice to Mr. Seaman, in the State of Louisiana.
b) The minor children are not to be in the presence of Walter B. Atkinson at any time in accordance with the Protective Order issued in the suit enti-tied “Charles W. Seaman v. Walter B. Atkinson”, Suit No. 81,999, Division A, Tenth Judicial District Court, Natchitoches Parish, Louisiana; as well as the evidence in testimony presented to this Court regarding Walter B. Atkinson.
c) Sonya Reeder Seaman shall keep Charles W. Seaman notified as to the location where she shall be exercising visitation with the children, and phone access to the minor children while they are in her physical custody.
d) Sonya Reeder Seaman shall not remove the minor children from the State of Louisiana.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Robin Miley, who is presently counseling the minor children, shall present the Court a recommendation on Sonya Reeder Seaman, having visitation with the minor children, outside the State of Louisiana. After said recommendation, the Court will make a determination as to the extent of any out-of-state visitation.

Notice of the foregoing judgment was mailed to the plaintiff by the district court’s clerk’s office on May 7, 2010. The plaintiff filed a motion for a devolutive appeal on July 12, 2010. The order granting the appeal was signed the following day. Following the lodging of the record in this appeal with this court, we issued the instant rule to show cause.

Louisiana Code of Civil Procedure Article 3943 reads, “An appeal from a judgment awarding custody, visitation, or support of a person can be taken only within the delay provided in Article 3942. Such an appeal shall not suspend execution of the judgment insofar as the judgment relates to custody, visitation, or support.”

Louisiana Code of Civil Procedure Article 3942(A) states, “An appeal from a judgment granting or refusing an annulment of marriage or a divorce can be taken |3only within thirty days from the applicable date provided in Article 2087(A)(l)-(3).” Therefore, with respect to the portion of the appealed judgment which modified custody and visitation, the motion for appeal had to be filed within thirty days of the expiration of the time for filing a motion for new trial pursuant to La.Code Civ.P. arts. 1974 and 2087, unless this portion of the judgment was not immediately appealable pursuant to La.Code Civ.P. art. 1915(B), which issue will be discussed later in this opinion.

As this court previously stated, notice of the signing of the appealed judgment was sent by the district court’s clerk’s office on May 7, 2010. Therefore, the delay for filing a motion for new trial expired on May 18, 2010. The thirty day time period for filing a motion for appeal, then, expired on June 17, 2010. Thus, if any portion of the appealed judgment was immediately appealable, the motion for appeal was untimely.

However, the judgment appealed readily reflects that not all issues in this case were decided by that judgment. Even within that judgment itself, the trial court indicates that a ruling regarding visitation will be forthcoming once the court had received the recommendations of the counselor. Moreover, the record forwarded to this court contains such pleadings as a motion filed by the defendant seeking a modification in the child support award which, at the time of the record’s compilation, had not yet been adjudicated. Accordingly, the judgment appealed clearly did not decide all matters pending in this case. Therefore, in order to decide whether this appeal is untimely, this court must determine whether a judgment modifying custody and visitation, but leaving other matters to be decided in the litigation, is subject to the requirement of a designation of finality and appealability pursuant to La.Code Civ.P. art. 1915(B).

^Louisiana Code of Civil Procedure Article 1915(B) reads:

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

Article 1915 does not provide for any exception to its applicability as to any particular case. Regardless, the jurisprudence has held that not all provisions in this statute are applicable in every instance. For example, in Rhodes v. Lewis, 2001-1989 (La.5/14/02), 817 So.2d 64, 69, the court wrote:

The purpose of the Workers’ Compensation Act is to set up a court-administrated system to aid injured workmen by relatively informal and flexible proceedings that are to be interpreted liberally in favor of the workmen. Falgout v. Dealers Truck Equipment Co., 98-3150 (La.10/19/99), 748 So.2d 899; Landreneau v. Liberty Mut. Ins. Co., 309 So.2d 283 (La.1975). The Louisiana Constitution and the Workers’ Compensation Act were amended, and district courts were divested of jurisdiction over claims arising out of the Workers’ Compensation Act. The OWC was empowered to resolve disputes and issue orders regarding workers’ compensation claims. The purpose of the changes were to provide a speedy resolution to workers’ compensation claims and a swift recourse for injured workers. See Kelly v. CNA Insurance Co., 98-0454 (La.3/12/99), 729 So.2d 1033.
With that in mind, we hold that an appeal from a determination of a workers’ compensation hearing officer is impermissible under LSA-C.C.P. art. 1915(A)(1). To hold otherwise would render meaningless the goals the Workers’ Compensation Act. This is especially true in the instant prolonged action, in which the claimant was injured in 1992 and filed his claim for workers’ compensation in 1993. It would be a great injustice to force this claimant to await the final adjudication of the appeal on the issue of liability, then go back to the hearing officer for a determination of disability and compensation, only 15to be faced with the possibility of yet another protracted appellate process on those issues. Such a result would certainly go counter to our workers’ compensation procedures.

Turning to the instant case, we find an even more persuasive reason for holding that La.Code Civ.P. art. 1915(B) should not apply to the judgment appealed. As a general rule of statutory construction, where harmonization of statutes dealing with the same subject matter is not possible, the more specific provision prevails over the more general. See LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226. Unlike the Workers’ Compensation Act which has no unique provision pertaining to the delay for seeking an appeal, Louisiana does have specific statutes dictating the delay for seeking an appeal from a judgment as to custody or visitation. Thus, as quoted above, La.Code Civ.P. arts. 3942 and 8943 impose the shortened thirty day time period for appealing custody, visitation, and support matters, rather than permitting a party to take up to sixty days to take a devolutive appeal as provided in the more general statute of La.Code Civ.P. art. 2087.

Moreover, unlike the reasoning in Rhodes, 817 So.2d 64, wherein the court was concerned with the delays that could result from permitting piecemeal appeals, we find that in child custody and visitation cases, piecemeal appeals can be appropriate. Thus, we find no logical reason for postponing an immediate appeal of a judgment of custody simply because the parties may have outstanding issues pertaining to support or visitation matters. Therefore, we hold that the appealed judgment in the instant case did not have to have a designation by the trial court as to its finality and appealability before the plaintiff could have filed her motion and order for appeal.

Since we now hold that this judgment did not need to be designated appeal-able pursuant to Article 1915(B) in order to be immediately appealable, we are constrained to find that the instant appeal must be dismissed as untimely insofar as the judgment | (¡relates to custody and visitation matters. In the brief in response to this court’s rule to show cause, the plaintiff raises the fact that she is not a lawyer and is attempting to represent herself. Therefore, she asks that even if this court finds that the appeal is untimely, we nevertheless permit her to pursue the appeal.

While this court is not unmindful of the possible disadvantages facing a non-attorney attempting self-representation, especially in child custody matters, the jurisprudence is clear that even if the parties to the action do not oppose the untimely appeal, neither the trial court nor the appellate court has the authority to extend the delays for seeking an appeal since the timeliness of an appeal is a jurisdictional issue. See State in the Interest of E.A., 2002-996 (La.App. 3 Cir. 10/2/02), 827 So.2d 594 (appeal dismissed even though the state, as appellee, did not oppose the court maintaining the appeal of the mother whose parental rights had been terminated). Accordingly, we cannot extend the delay that the plaintiff had to perfect her appeal in this matter.

This court also notes that some portions of the judgment appealed are clearly interlocutory. For instance, the trial court ordered the counselor working with the children to provide the court with a report which is to be used in deciding issues surrounding the exercise of visitation by the plaintiff outside the State of Louisiana. Review of any interlocutory portions of the judgment, though, is not permitted through an ordinary appeal. See La.Code Civ.P. art. 2083. Furthermore, as discussed above, the plaintiff failed to file the motion for appeal within thirty days of the mailing of the notice of judgment. Therefore, this court cannot construe the motion for appeal as a timely request for the setting of a return date for the filing of a writ application with this court because such a motion must also be made within thirty days of the ruling. See Uniform Rules of Court—Courts of Appeal, Rule 4-3. Thus, 17for all of the above-discussed reasons, this court must dismiss this appeal at plaintiffs cost.

APPEAL DISMISSED.

COOKS, J., dissents and would maintain the appeal.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Philip L. FORTUNE.
    No. 2010-KA-0599.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 22, 2010.
    Rehearing Denied Jan. 14, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Brad Scott, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Mary Constance Hanes, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD).
   EDWIN A. LOMBARD, Judge.

|, The defendant appeals his conviction for two counts of rape and his adjudication as a third felony offender. After review of the record in light of the arguments of the parties and applicable law, we affirm the defendant’s conviction on two counts of rape and his adjudication of a third felony offender. An error patent review reveals that the district court failed to rule on the defendant’s motion to reconsider sentence and, accordingly, we remand the matter for a ruling on that motion.

Relevant Facts and Procedural History

On the evening of March 18, 2008, Jonathan Wang was in bed when he heard someone crying, yelling, and beating on his back door. Opening his door, he found his neighbor with torn clothes and a battered face and neck. She told him that she had been raped and needed help. Accordingly, he called 911 and his mother stayed outside with the victim until the police arrived.

On July 28, 2008, Philip L. Fortune, an electrical contractor, was charged by a bill of information with three counts of forcible rape and one count of second degree kidnapping. In August 2009, he was tried on the rape counts and, after a | gtwo-day trial, found guilty on two counts. After waiving delays, the defendant was sentenced to serve concurrent twenty years sentences at hard labor. After the State filed a multiple bill, however, the defendant was adjudicated a third felony offender and the previous sentences were vacated. Pursuant to La.Rev.Stat. 15:529.1, the defendant was sentenced as a third offender to concurrent thirty year sentences at hard labor.

Discussion

The defendant challenges the sufficiency of the evidence supporting his conviction on two counts of rape and as third felony offender. At trial, the State presented the testimony of Mr. Wang, the victim, the police officer who responded to the 911 call, and the nurse who examined the victim immediately after the incident. The defendant testified on his own behalf and presented two friends as witnesses.

The following evidence was adduced at trial. The rape occurred on March 18, 2008. The defendant, an electrical subcontractor, worked on a house across the street from the victim’s residence. The defendant and the victim met at some point prior to March 18, 2008, and the extent of that relationship is disputed. On March 18, 2008, the defendant knocked on the victim’s door and she invited him inside. According to the victim, the defendant came up behind her while she was standing by the kitchen sink and wrapped an electrical cord around her neck. He forced her to consume crack cocaine, began strangling her, and shoved her into the dining room and onto the floor. During the struggle, the dining room table fell over. The defendant began beating the victim while continuing to strangle her; she stated that she could hardly breathe. When she attempted to grab at his left eye, the defendant struck her in the face and told her that he was going to kill her. He then forced her |ointo the bedroom and tried to remove her clothing while continuing to beat and strangle her. In an attempt to stop him from beating her, the victim agreed to remove the rest of her clothing. The defendant then repeatedly had oral, vaginal, and anal sex with her using lotion found in her room. She also stated that the defendant beat her with an extension cord on her legs because she did not participate during the sex. After he was done, the defendant instructed her to get dressed and they went back into the kitchen. At that point, the victim made her escape, running to her neighbor’s house.

Detective Neely of the New Orleans Police Department (NOPD) interviewed the victim at the scene, observing ligature marks on her neck, the overturned dining room table, and the bedroom in complete disarray with sheets covered in a brown material that was either fecal matter or blood, and a an electrical cord and lotion on the bed. He found drug paraphernalia (two glass pipes inside a black pouch) on the kitchen table. The victim was distraught as she recounted the details of the incident, periodically crying uncontrollably. She informed the officer of the defendant’s name and that he had only one leg. She told him that she had not used drugs since having brain surgery in 1997 and that the drug paraphernalia belonged to the defendant. She told the detective that the defendant never lived in her house. The detective subsequently presented the victim with a photographic lineup, and she chose the defendant.

Sheri Pellagalle, a specialist in sexual assault examination, testified that she examined the victim at the hospital. Both parties stipulated that Ms. Pellagalle was an expert in forensic nursing. According to Ms. Pellagalle, the victim was visibly upset during the interview and examination. The examination revealed that she had abrasions to her shoulder, a whip mark on her leg, strangulation marks on her |4neck, and bruising to her left eye with swelling. Fecal matter was found inside her vagina, verifying her story that the defendant went back and forth between her vagina and rectum. The victim had tears in the skin between her vagina and rectum and there were multiple tears on her rectum. Ms. Pellagalle testified that in her opinion, the victim had been raped. The victim also tested positive for cocaine.

The defendant verified that he is an electrician and home builder and that he lost his leg in April of 2001. He explained that because he uses a prosthetic leg, he is unable to do any heavy lifting and cannot drive and therefore usually works in a supervisory capacity and is driven to and from jobs by Juan Matthews and Jimmie Walters. He met the victim when he was working at a job across the street from her house and the following Sunday, they had dinner together and afterwards they had sex. According to the defendant, he subsequently moved in with her and lived there for three months. The defendant stated that he frequently gave the victim money, a fact that she denied during her testimony, and that the relationship ended on March 17, 2008, the day before the rape, when he discovered that she was doing drugs again. The defendant stated that he stopped using drugs approximately five months before he met the victim and denied raping or beating the victim. He did admit to prior convictions.

Jimmie Walters testified that he owns a construction company and that he often subcontracted electrical work to the defendant, whom he has known for fifteen years. He stated that for approximately three months, he would often pick the defendant up from the victim’s house and drive him to and from jobs. Mr. Walters indicated that the victim frequently called the defendant while he was working. One day, the defendant stopped going to the victim’s house. Mr. Walters admitted having prior convictions.

|fiJuan Matthews was the last to testify, also admitting to prior convictions. He stated that he has known the defendant for at least eighteen years and that the defendant was dating the victim. Mr. Matthews stated that although he often gave the defendant rides, the defendant had no trouble driving and often borrowed his truck. Mr. Matthews also stated that appellant was using cocaine during his relationship with the victim.

Assignment of Error 1

By his first assignment of error, the defendant argues that the evidence is insufficient to support his convictions for the forcible rape of the victim because the evidence presented at trial does not prove he was the perpetrator of the offense. Specifically, the defendant argues that the evidence is insufficient because the victim failed to tell Detective Neely that she was on crack when he arrived on the scene and that, contrary to the victim’s testimony, he lived with her for three months prior to the incident, as corroborated by the testimony of his friends. He also points to the absence of physical evidence (fingerprints or DNA) connecting him to the crime.

La.Rev.Stat. 14:42.1 A(2) provides in pertinent part that forcible rape is “anal, oral, or vaginal sexual intercourse” ... “deemed to be without the lawful consent of the victim” “[w]hen the victim is incapable of resisting or of understanding the nature of the act by reason of stupor or abnormal condition of the mind produced by a narcotic or anesthetic agent or other controlled dangerous substance administered by the offender and without the knowledge of the victim.” We review the sufficiency of the evidence to support a conviction under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560(1979). State v. Brown, 2003-0897, p. 22 (La.4/12/05), 907 So.2d 1, 18. Accordingly, we “must | ^determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” Id. (citations omitted). When circumstantial evidence is used to prove the commission of the offense, La.Rev.Stat. 15:438 requires that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” Id. (citation omitted).

In this case, although the defendant seeks to undermine the credibility of the victim’s testimony and provided witnesses who corroborated his own version of events, the testimony of the victim alone is sufficient to establish the elements of the offense of forcible rape, even where the State does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. See State v. Lewis, 97-2854 (La.App. 4 Cir. 5/19/99), 736 So.2d 1004, 1023; State v. Carter, 97-1096 (La.App. 4 Cir. 5/20/98), 713 So.2d 796. In addition, a factfinder’s credibility decision will not be disturbed unless it is clearly contrary to the evidence. See State v. Huckabay, 2000-1082 (La.App. 4 Cir. 2/6/02), 809 So.2d 1093; State v. Harris, 99-3147 (La.App. 4 Cir. 5/31/00), 765 So.2d 432.

The examining nurse, Ms. Pellagalle, testified in detail as to the injuries sustained by the victim during the sexual attack, including injuries to her face, neck, shoulder, leg, genitalia, and anus. Although the versions of the incident testified to by Detective Neely and Ms. Pel-lagalle as to what the victim told them differed a little from her testimony, all three testimonies established that the victim was strangled and beaten during the rapes. Ms. Pellagalle testified that the victim told her the defendant shoved something down her throat. Although the victim’s |7testimony differed somewhat from what she told the detective and Ms. Pellagalle, these differences are not so great as to render her testimony incredible. Moreover, the defendant’s credibility is clearly questionable based upon the testimony of his own witness, Juan Matthews, contradicting the defendant’s assertions that he no longer used drugs and could not drive. Also, the veracity of Matthews and Walters was undermined by the fact that they were the defendant’s long term friends and had questionable pasts.

The jury was aware of the lack of physical evidence against the defendant and the differences in the testimony of the witnesses but found the victim’s testimony credible. The jury’s finding is not contrary to the evidence. Accordingly, viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence for the jury to find beyond a reasonable doubt that the appellant forcibly raped the victim. This assignment of error is without merit.

Assignment of Error 2

By his second assignment of error, the defendant argues that the trial court abused its discretion in overruling defense counsel’s objection to the State’s improper remark during its rebuttal argument and in failing to admonish the jury to disregard the remark.

During the prosecutor’s rebuttal, the following colloquy occurred:

By Ms. Cannizzaro: If the defense thought the DNA would test anybody other than the defendant, why didn’t they test it themselves?
By Mr. Duffy: Objection, Judge. It’s not our burden to prove the case. It’s the State’s burden to prove the case.
By Ms. Cannizzaro: Your honor, the Defense presented a case.
By the Court: It’s argument. I’ll note your objection for the record. Overruled.

| RLa.Code Crim. Proc. art. 774 provides that (1) the scope of closing argument “shall be confined to evidence admitted, to the lack of evidence, to conclusions of fact that the state or defendant may draw therefrom, and to the law applicable to the case;” (2) the argument “shall not appeal to prejudice; and (3) the state’s rebuttal shall be confined to answering the argument of the defendant.” Although prosecutors have wide latitude in framing the closing argument, they “may not resort to personal experience or turn argument into a plebiscite on crime.” State v. Clark, 2001-2087, p. 15 (La.App. 4 Cir. 9/25/02), 828 So.2d 1173, 1183 (citations omitted). The trial judge has broad discretion in controlling the scope of closing arguments and even if the prosecutor exceeds the bounds of proper argument, this court may not reverse a conviction unless “thoroughly convinced” that the argument influenced the jury and contributed to the verdict. Id. (citations omitted). Moreover, “even where the prosecutor’s statements are improper, credit should be accorded to the good sense and fairmindedness of the jurors who have heard the evidence.” Id. (citations omitted).

In this case, defense counsel emphasized throughout the trial that no DNA testing was performed on either the rape kit or other substances found at the scene of the crime. This was particularly true during the cross-examination of Detective Neely and Ms. Pellagalle. These same issues were argued by counsel at the end of trial. Accordingly, although the State’s comment questioning why the defense never tested for DNA was improper, we find the error to be harmless. Because the jury was privy to the lack of any DNA evidence and in light of the victim’s testimony, consistent with what she told the police, nurse examiner, and her neighbor, as well as her unquestionable identification of appellant, it does not |9appear that the prosecutor’s comment influenced or contributed to the jury’s verdict. Accordingly, this assignment of error is without merit.

Supplemental Assignment of Error

By this assignment of error, the defendant asserts that the evidence presented at the multiple offender hearing was insufficient to prove that he was a third offender.

In the multiple bill of information, the State charged appellant as a third felony offender based upon his 2003 guilty plea to three counts of forgery in ease number 424-518 A, and his 1994 guilty plea to unauthorized entry into an inhabited dwelling in case number 371-986 J. He specifically argues that the state failed to prove his identity as the person convicted of forgery in case number 424-518 A and that the state failed to prove that his guilty plea was knowingly and voluntarily made in case number 372-986 J. With respect to the identity, appellant points out that the certified package of documents from case number 424-518 A contained no fingerprints and that the state’s attempt to prove his identity by using a fingerprint card made at the time he was booked on unrelated charges was insufficient.

To obtain an adjudication as a multiple offender, the State is required to establish both the prior felony conviction and that the defendant is the same person convicted of that felony. State v. Henry, 96-1280 p. 7 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, 325 (citations omitted). The defendant’s identity as the same person convicted of the prior felony offense may be proved by testimony of witnesses, expert opinion as to the fingerprints of the accused when compared with those of the person previously convicted, photographs contained in a duly authenticated record, or evidence of identical driver’s license number, sex, race and | indate of birth. Id. (citation omitted). The fact that defendant on trial and the person previously convicted have the same name does not constitute sufficient evidence of identity. See State v. Westbrook, 392 So.2d 1043 (1980) (in addition to defendant’s name, other evidence such as driver’s license number, sex, race, and date of birth should be introduced to sustain State’s burden of proving that defendant is same person previously convicted of another felony); see also State v. Cosey, 2004-2220 (La.App. 4 Cir. 7/13/05), 913 So.2d 150 (matching a defendant’s fingerprints to an arrest register which then was matched to other documents concerning the prior offense found sufficient to establish identity).

In this case, the following evidence was introduced in support of the charge that the defendant was the same person previously convicted of forgery in 2003: his fingerprints taken in court on the day of the multiple bill hearing; a certified copy of a fingerprint card taken at the time of his booking for aggravated burglary; and a certified package of documents from case number 424-518 A. Though the certified package of documents contained no fingerprints, the expert, Officer Jackson, explained that at the time the defendant was being booked for aggravated burglary, it was learned that he had outstanding warrants for forgery. He further testified that both charges were included under the same folder number and that only one fingerprint card was made for the two charges. These exhibits were also linked together by name, social security number, and state identification number. Accordingly, the arrest register containing the prints matching those of the defendant was linked by the expert to the court documents from the prior conviction and the State adequately proved the defendant’s identity as the person who pleaded guilty to forgery in 2003.

|nWith respect to whether the defendant’s guilty plea was knowingly and voluntarily made in case number 372-986 J, he points out that the documentation presented by the State fails to show that he was personally addressed by the court concerning the rights that he was waiving.

The Louisiana Supreme Court set forth the burdens of proof in multiple bill proceedings State v. Shelton, 621 So.2d 769, 779-780 (La.1993) as follows:

If the defendant denies the allegations of the bill of information, the burden is on the State to prove the existence of the prior guilty pleas and that defendant was represented by counsel when they were taken. If the State meets this burden, the defendant has the burden to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea, [footnote omitted] If the defendant is able to do this, then the burden of proving the constitutionality of the plea shifts to the State. The State will meet its burden of proof if it introduces a “perfect” transcript of the taking of the guilty plea, one which reflects a colloquy between judge and defendant wherein the defendant was informed of and specifically waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers. If the State introduces anything less than a “perfect” transcript, for example, a guilty plea form, a minute entry, an “imperfect” transcript, or any combination thereof, the judge then must weigh the evidence submitted by the defendant and by the State to determine whether the State has met its burden of proving that defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin v. Alabama, [395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)] rights.

Here, with respect to the defendant’s 1994 guilty plea, the State introduced the bill of information which contained fingerprints on the back, the docket master, and the plea of guilty waiver of rights form. The docket master entry of the guilty plea and the plea form both indicate that the defendant was present and represented by counsel when he pleaded guilty. Thus, the State met its initial burden under | ^Shelton. Moreover, although the docket master entry does not list the rights to which the trial court advised appellant pri- or to taking his plea, the plea form fully delineates the rights that he was waiving by pleading guilty, including his Boykin rights. The defense offered nothing to refute the State’s evidence. Thus, the State adequately proved that the defendant’s 1994 guilty plea was voluntarily and knowingly given. This claim has no merit.

Errors Patent

A review of the record for errors patent reveals that the district court failed to restrict parole eligibility on at least two years of the defendant’s sentence as required by La.Rev.Stat. 14:42.1. As such, the sentence is illegally lenient. However, pursuant to La.Rev.Stat. 15:301.1 A and State v. Williams, 2000-1725 (La.11/28/01), 800 So.2d 790, the sentence is deemed to have been imposed with these restrictions of benefits, even in the absence of the trial court’s failure to delineate them. Thus, there is no need for this court to correct the sentence.

However, the record also shows that a motion to reconsider sentence was filed on August 28, 2009, but was never ruled upon by the district court. This is clear error. However, because the defendant does not seek review of his sentence, review of his conviction is not precluded by the district court’s failure to rule on the motion. See State v. Hailey, 2002-1738 (La.App. 4 Cir. 9/17/03), 863 So.2d 564; State v. Foster, 2002-0256, p. 3 (La.App. 4 Cir. 9/11/02), 828 So.2d 72, 74 (expressly declining to follow State v. Roberts, 2001-0283 (La.App. 4 Cir. 1/23/02), 807 So.2d 1072, where this Court stated that without a final sentence a conviction is not appeal-able); see also State v. Ferrand, 2003-1746 (La.App. 4 Cir. 1/14/04), 866 So.2d 322 (conviction affirmed, remanded for ruling on motion to reconsider); State v. Davis, 2000-0275 (La.App. 4 Cir. 2/14/01), 781 So.2d 633 (conviction affirmed, remanded for ruling on motion to reconsider); State v. Allen, 99-2579 (La.App. 4 Cir. 1/24/01), 781 So.2d 88 (conviction affirmed, remanded for ruling on motion to reconsider). Accordingly, we remand this matter only for a ruling on the motion to reconsider sentence.

Conclusion

We affirm the defendant’s conviction on two counts of rape, as well as his adjudication as a third felony offender, but remand the matter back to the district court for a ruling on the defendant’s motion to reconsider sentence.

CONVICTION AFFIRMED; ADJUDICATION AFFIRMED; REMANDED.

      . A 911 call was played for the jury. Officer Roussell with the Communications Division of the police department verified the authenticity of the 911 tape.


author: ROLAND L. BELSOME, Judge.

text:
    Dejoyce BRUMFIELD, Sandra K. Bridges and Linda Magee v. Michael G. LIND, United States Fire Insurance Company, John Doe, and State Farm Mutual Automobile Insurance Company.
    No. 2010-CA-1011.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 22, 2010.
    Rehearing Denied Jan. 7, 2011.

      Ford T. Hardy, Jr., Amber E. Welch, New Orleans, LA, for Plaintiffs/Appellants, Dejoyce Brumfield and Sandra K. Bridges.
    Sidney J. Angelle, Peyton C. Lambert, Lobman Carnahan Batt Angelle & Nader, New Orleans, LA, for Defendants/Appel-lees, Michael G. Lind and North River Insurance Company.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

11 This is an appeal from the granting of summary judgment in favor of Michael Lind and North River Insurance Company. The lawsuit arises from a motor vehicle accident which occurred on Interstate 10 in Acadia parish. DeJoyce Brumfield was driving a vehicle in the left lane with passengers Sandra Bridges and Linda Ma-gee. Michael Lind was driving a truck in the right lane of Interstate in the same general location. A white pick-up truck merged into Mr. Lind’s lane without yielding and quickly moved into Ms. Brum-field’s lane causing her to lose control of her vehicle. Ms. Brumfield’s vehicle left the highway briefly and in an attempt to reenter her lane of traffic her vehicle proceeded into the right lane of traffic in a perpendicular position. Mr. Lind’s truck, which was still traveling in the right lane of traffic struck Ms. Brumfield’s vehicle.

Ms. Brumfield and her passengers filed suit against Mr. Lind and his insurer alleging that his negligence was a contributing factor in causing the accident. Mr. Lind and his insurer filed a motion for summary judgment which was granted and the plaintiffs’ claims were dismissed. For the reasons that follow we affirm.

| ^Appellate courts review the grant or denial of a motion for summary judgment de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. A summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751. A fact is material when its existence or nonexistence may be essential to the plaintiffs cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Hardy v. Bowie, 98-2821, p. 6 (La.09/08/99), 744 So.2d 606, 610.

A duty-risk analysis is employed when determining whether to impose liability under the general negligence principles of Louisiana Civil Code article 2315. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217, p. 6 (La.4/3/02), 816 So.2d 270, 275-76. There are five factors that must be proven in order for liability for damages to attach under the duty-risk analysis: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant’s substandard conduct was a cause in fact of the plaintiffs injuries; (4) the defendant’s substandard conduct was a legal cause of the plaintiffs injuries; and (5) actual damages. Id.

|sThe inquiry into whether a duty exists is a question of law. Id. (citing Peterson v. Gibraltar Savings & Loan, 98-1601, 1609, p. 7 (La.5/18/99), 733 So.2d 1198, 1204; Faucheaux v. Terrebonne Consolidated Government, 615 So.2d 289, 292). “Generally, there is an almost universal legal duty on the part of a defendant in a negligence case to conform to the standard of conduct of a reasonable person in like circumstances.” Davis v. Witt, 02-3102 (La.7/2/03) 851 So.2d 1119 (citing Joseph v. Dickerson, 99-1046 (La.1/19/00), 754 So.2d 912, 916; Boykin v. Louisiana Transit Co., 96-1932 (La.3/4/98), 707 So.2d 1225, 1231). It is well established that a motorist’s duty of reasonable care includes the duty to keep his vehicle under control and to maintain a proper lookout for hazards, which by the use of ordinary care and observation he should be able to see in time to avoid a collision. Updegraff v. State ex rel Dept. of Transp. and Development, 2001-1048, p. 8 (La.App. 4 Cir. 10/02/02), 828 So.2d 693, 700.

Relying on Dick v. Phillips, 253 La. 366, 218 So.2d 299 (1969), the plaintiffs argue that Mr. Lind breached his duty by failing to maintain a proper look out or failing to slow down and yield to merging traffic. We disagree.

In Dick, Dick’s vehicle was trailing Phillips’ vehicle near a service road entrance to the highway. Id. Dick moved to the left lane to pass Phillips. About the time the Dick vehicle was gaining on Phillips’ vehicle, a car merged from the service road into Phillips’ lane of traffic. Id. To avoid a collision with the merging vehicle, Phillips quickly changed to the left lane, sideswiping Dick’s vehicle. Id. The car that merged was never identified. Id. Dick filed suit against Phillips. Id.

The Supreme Court, with three justices dissenting, found that both drivers were negligent in causing the accident. Id. First, Phillips was negligent for not maintaining a proper look out and ultimately creating a sudden emergency which |4he had to avoid by switching lanes. Id. Secondly, the Court found that Dick was negligent for not being aware of the sign indicating merging traffic ahead and for attempting to pass Phillips at a location where traffic was merging. Id.

The only similarity in Dick and the instant case is the presence of an unidentified merging vehicle that set things into motion. In all other respects this case is distinguishable. Mr. Lind did not leave his lane of travel to avoid the merging vehicle, but rather slowed his vehicle and avoided contact with the pick-up truck. It was Ms. Brumfield who was unable to maintain control once the pick-up truck entered her lane. The record is void of any evidence indicating that Mr. Lind caused the pick-up truck to enter Ms. Brumfield’s lane. Furthermore, there is nothing to prove his actions were anything other than reasonable under the circumstances.

Accordingly, we affirm the trial court’s ruling dismissing Ms. Brumfield’s and Ms. Bridges’ claims against Mr. Lind and North River Insurance Company.

AFFIRMED.


author: PETTIGREW, J.

text:
    Jake LANDRY v. TOWN OF LIVINGSTON POLICE DEPARTMENT.
    No. 2010 CA 0673.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2010.

      Jasper S. Brock, IV, Livingston, LA, for Plaintiff-Appellant Jake Landry.
    Michael W. Lee, Livingston, LA, for Defendant-Appellee Town of Livingston.
    Scott M. Perrilloux, District Attorney, Le’ Anne H. Malnar, Assistant District Attorney, Livingston, LA, for State Of Louisiana.
    Before: KUHN, PETTIGREW, JJ., and KLINE, J., pro tempore.

      . Judge William F. Kline, Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   PETTIGREW, J.

|2The plaintiff in this matter appeals a trial court judgment sustaining the defendants’ res judicata exceptions and dismissing his suit against defendants with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

This litigation arises out of the seizure of currency, allegedly derived from illegal drug transactions, by the Livingston Police Department in Livingston Parish on July 18, 2008. The “Affidavit Of Probable Cause That The Items Seized Were Used To Facilitate Or Were The Proceeds For Illegal Narcotics Activity,” executed by Officer Brandt Melerine of the Livingston Police Department, details the events of the early morning hours of said date as follows:

On July 18, 2008 ... this officer ... was conducting traffic enforcement ... when this officer observed [a] 2008 Chevrolet cobalt traveling west bound crossing the fog line three times (several feet), followed by the center line once within a short distance. This officer initiated a traffic stop.... Upon making contact with the driver, one Derrick A. Pope, [Officer] Melerine observed Pope to be extremely nervous (hands shaking, voice cracking, unable to stand still (pacing)[)]. Pope was advised [of] the reason for the stop and [this officer] requested his driver’s license and paperwork on the vehicle. Pope advised he did not possess a driver’s license and that the vehicle was a rental vehicle out of Houston, Texas, rented by the passenger, one Jake Landry. Pope advised he and Landry went to Mobile, Alabama to visit his mother at her home. Pope advised they had stayed for about one hour, before leaving to return home. Officer Melerine then made contact with the passenger, one Jake Landry, to retrieve the vehicle rental paperwork, at which time this officer could smell what appeared to be an obvious odor of raw marijuana coming from the inside of the vehicle. [Officer] Melerine asked Landry to exit the vehicle and inquired as to he and the driver’s travel itinerary for the trip. Landry advised they had gone to Mobile, Alabama for (2) days to sell 12 or 14 pit bull puppies and return home. Landry also appeared very nervous when speaking with this officer. [Officer] Melerine, due to the aforementioned indicators, advised both subjects of their rights per Miranda and requested written consent to search from the driver, Derrick Pope, which Pope signed granting an interior search. [Officer] Melerine was then also granted verbal consent by Landry, granting an interior search of the vehicle. Prior to an interi- or search, Pope admitted to Officer Melerine that the trunk (between carpet and driver’s side tail light) contained a large amount of U.S. currency (unknown amount) that were proceeds from a narcotic transaction from approximately 10 pounds of raw marijuana in Mobile, Alabama. Pope also admitted the story of visiting his mother was fictitious and that Landry’s story of selling puppies was also untrue. Pope advised the only puppy they had was the single puppy within the vehicle. Upon subsequent interior search of the vehicle, [Officer] Melerine located the U.S. currency within the trunk (pictures taken) and observed the currency to be contained in a brown paper bag and rubber banded together according to currency value ... [Officer] Melerine, [.¡through training and experience, recognized this to be very common with narcotic related currency binding, packaging, and transportation. [Officer] Melerine also observed the interior of the trunk to have a very strong raw marijuana odor permeating from it. Both Pope and Landry then signed a currency disclaimer form ... disclaiming any interest in the U.S. currency located. Pope was then cited ... for improper lane usage and no driver’s license. Both subjects were then released from the scene with the vehicle. No receipts were given due to the signed disclaimer forms, disclaiming the U.S. currency. The currency was then transported and calculated by [Officer] Melerine ... to total $10,440.00.

According to the record, Officer Melerine also gave Pope and Landry each an identical document entitled “Notice Of Pending Forfeiture,” advising them that the money in question had been seized for forfeiture and that bona fide owners and interest holders had a thirty-day period within which to request a “Stipulation of Exemption” or file a claim for return of the property. The document also gave specific details on how to file such a request and/or claim.

Based on Officer Melerine’s affidavit, and in accordance with the Seizure and Controlled Dangerous Substances Property Forfeiture Act of 1989 (“Forfeiture Act”), La. R.S. 40:2601, et seq., the trial court signed a “Warrant Of Seizure For Forfeiture” on July 18, 2008. Thereafter, on October 2, 2008, the State of Louisiana (“State”) filed a Public Notice of Pending Forfeiture in the Livingston Parish News, seeking to learn the identity of the owner or interest holder of the seized property since both Pope and Landry had disclaimed any interest in the currency. After sufficient time had elapsed from the signing of the “Notice Of Pending Forfeiture” and the publication of the pending forfeiture in the Livingston Parish News, and no claims to the currency were timely received by the State, the State filed an “Application For Order Of Forfeiture” with the trial court. A “Judgment Of Forfeiture” was signed by the trial court on March 10, 2009, in favor of the State forfeiting the $10,440.00 and distributing the funds in accordance with statute.

On October 3, 2008, Landry filed the instant suit alleging that he was the owner of the $10,440.00 and that the State and the Town of Livingston, through its Police 14Pepartment (“Livingston”), had converted the funds to its own use without legal cause. In response to Landry’s suit, the State and Livingston filed various exceptions, including exceptions raising the objection of res judicata. After considering the evidence and applicable law, the trial court granted the res judicata exceptions and found that the exceptions raising the objections of lack of indispensable party and no cause of action- and no right of action were moot. The trial court signed a judgment in accordance with these findings on December 22, 2009. This appeal by Landry followed, wherein Landry argued the trial court erred in granting the objections of res judicata because the issue of improper service in the forfeiture proceedings had not been decided by the trial court.

RES JUDICATA

Res judicata bars relitigation of a subject matter arising from the same transaction or occurrence of a previous suit. Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La.7/2/96), 676 So.2d 1077, 1079; La. R.S. 13:4231. It promotes judicial efficiency and final resolution of disputes. Terrebonne Fuel & Lube, Inc. v. Placid Refining, Co., 95-0654, 95-0671, p. 12 (La.1/16/96), 666 So.2d 624, 631. Louisiana Revised Statutes 13:4231 provides for res judicata as follows:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or [ 5occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The chief inquiry is whether the second action asserts a cause of action that arises out of the transaction or occurrence that was the subject matter of the first action. Avenue Plaza, L.L.C., 96-0173 at 6, 676 So.2d at 1080. However, the Louisiana Supreme Court has also emphasized that all of the following elements must be satisfied in order for res judicata to preclude a second action: (1) the first judgment is valid and final; (2) the parties are the same; (3) the cause or causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (4) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 2002-1385, p. 8 (La.2/25/03), 843 So.2d 1049, 1053.

The burden of proving the facts essential to sustaining the objection is on the party pleading the objection. Union Planters Bank v. Commercial Capital Holding Corp., 2004-0871, p. 3 (La.App. 1 Cir. 3/24/05), 907 So.2d 129, 130. If any doubt exists as to its application, the exception raising the objection of res judica-ta must be overruled and the second lawsuit maintained. Denkmann Associates v. IP Timberlands Operating Co., Ltd., 96-2209, p. 8 (La.App. 1 Cir. 2/20/98), 710 So.2d 1091, 1096, writ denied, 98-1398’ (La.7/2/98), 724 So.2d 738. When, as here, an objection of res judicata is raised before the case is submitted and evidence is received on the objection, the standard of review on appeal is manifest error. Leray v. Nissan Motor Corp. in U.S.A., 2005-2051, p. 5 (La.App. 1 Cir. 11/3/06), 950 So.2d 707, 710.

DISCUSSION

On appeal, Landry argues that the Forfeiture Act does not apply because the forfeiture was not properly served on him. Referring to the documents he signed at the time of the stop, Landry asserts he had no understanding of any of the documents he was signing and claims that the full amount of the funds seized were his personal ^property. Landry also alleges that the “Notice Of Pending Forfeiture” that he signed was not in proper form. Landry notes that the document he signed was addressed to Pope, the document was undated, and there was no service return. Landry maintains that because the issue of improper service has never been heard by the trial court, the objection of res judica-ta should not have been granted. In response, the State maintains that all of the required elements of res judicata are present, arguing as follows:

In the matter at hand, the thing demanded was the $10,440.00 seized from the car on July 18, 2008 of which the defendant in the present matter was a passenger. In the judgment signed on March 10, 2009 by the lower court in docket number 123230, the money is all that was seized and the defendant is listed as a defendant in the matter. As to element two, it is the same cause of action because under La. R.S. 40:2610, the defendant was given thirty days to raise any issue as to why the money should not have been subject to seizure. He did not, thus the State of Louisiana applied for an order of forfeiture and judgment of forfeiture. Finally, as to element three, it is the same parties.

Moreover, the State argues that not only did Landry sign a disclaimer to the money seized at the scene, but he also signed a “Notice Of Pending Forfeiture,” which the State argues satisfies the service of notice requirements of La. R.S. 40:2608.

17Livingston argues in response to Landry’s appeal that pursuant to La. R.S. 40:2620, the Forfeiture Act bars collateral actions and provides that “[n]o person claiming an interest in property subject to forfeiture may commence or maintain any action against the state concerning the validity of the alleged interest other than as provided in this Chapter.” La. R.S. 40:2620. Thus, Livingston asserts, Landry’s only remedy after the issuance of the “Warrant Of Seizure For Forfeiture” was to establish an exemption under La. R.S. 40:2605 within the statutory time frame, i.e., thirty days from the date of notice of forfeiture, and in the required form pursuant to La. R.S. 40:2609 and 40:2610, an action that Landry clearly did not take.

At the outset, we note that Landry’s argument concerning the issue of service and notice is without merit. During the July 20, 2010 hearing before the trial court, to determine whether the original judgment could be amended, the trial court stated:

And it’s my understanding that this res judicata exception is both by the State and [Livingston] which makes it a very simple issue for appeal. I do also further notice that in reviewing the record that I think it was Judge Winsberg who was sitting in my absence who had a problem with the service of process. I think that I had already made a ruling on that, however, and he was unwilling to disturb my ruling. I had specifically found that due process considerations had been satisfied even though the [statute] is to be narrowly construed and that service and notice had been effected; that there was an administrative error in the service.

Thus, contrary to Landry’s argument on appeal, the issue of service and notice was clearly considered and decided by the trial court. The trial court determined that the minor discrepancies in the documents signed by Landry and Pope at the scene amounted to nothing more than an “administrative error” that did not diminish the fact that due process considerations were satisfied and service and notice were effected on both Landry and Pope. We find no error in this ruling by the trial court concerning the issue of service and notice.

We turn now to the trial court’s ruling that the March 10, 2009 “Judgment Of Forfeiture,” signed by the trial court in docket number 123230, was res judicata as to the issues raised by Landry in the instant suit for return of the money seized. There is no dispute that said judgment was a valid and final judgment or that the parties are the same, i.e., Landry and the State. In said judgment, the trial court ordered the forfeiture [sof the $10,440.00 originally seized from the vehicle stopped by Officer Melerine on July 18, 2008. At the time of the traffic stop initiated by Officer Melerine, Landry waived his right to notice of seizure by signing the currency disclaimer form. Nonetheless, Landry received notice when he was served with a “Notice Of Pending Forfeiture,” a document that detailed the time restrictions (thirty days) and the procedures for filing a request for “Stipulation of Exemption” or a claim for return of the property. When Landry failed to file a timely request for stipulation or a claim, the State proceeded as provided for in the Forfeiture Act. Based on the facts and circumstances herein, Landry’s suit was clearly barred by the res judicata effect of the March 10, 2009 “Judgment Of Forfeiture.”

CONCLUSION

For the reasons assigned, the action of the trial court, sustaining the exceptions raising the objection of res judicata and dismissing, with prejudice, Jake Landry’s suit against the State of Louisiana and the Town of Livingston is affirmed. All costs associated with this appeal are assessed against plaintiff-appellant, Jake Landry. AFFIRMED.

      . A review of these documents reveals that the form signed by Landiy has Pope's name on the top of it and vice versa. Other than this minor discrepancy, the forms are identical. Landry and Pope each signed an individual form, acknowledging receipt of the "Notice Of Pending Forfeiture.”

      . After the instant appeal was filed, Livingston filed a motion to remand the matter to the trial court for the limited purpose of correcting the December 22, 2009 judgment. According to the record, the December 22, 2009 judgment was apparently prepared by counsel for the State and not circulated between the remaining parties involved in the litigation prior to being signed by the trial court. As such, the judgment failed to include the language necessary to grant the res judicata exception filed by Livingston. In an order dated July 7, 2010, this court granted the motion to remand, in part, to allow the trial court an opportunity to determine if the December 22, 2009 judgment could be amended through the consent of the parties. See Frisard v. Autin, 98-2637, p. 7 (La.App. 1 Cir. 12/28/99), 747 So.2d 813, 818, writ denied, 2000-0126 (La.3/17/00), 756 So.2d 1145. Following a hearing on July 20, 2010, the trial court made a factual finding that all of the parties consented to the amendment of the judgment, resulting in the final judgment rendered July 20, 2010, wherein the original judgment was amended to provide that the res judicata exceptions filed by both the State and Livingston were granted and that Landry’s suit against the State and Livingston was dismissed with prejudice.

      . Concerning the service issue, the State cites the case of State v. $144,320.00 U.S. Currency, 2009954, p. 5 (La.App. 3 Or. 2/3/10), 29 So.3d 1266, 1269, writ denied, 2010-0821 (La.6/18/10), 38 So.3d 324, in support of its position that having signed the currency disclaimer form, Landry expressly waived any right he may have had to notice of seizure or forfeiture proceedings. The State further argues that the waiver of notice signed by Landry in the currency disclaimer form satisfied the service of notice requirements of La. R.S. 40:2608, which provides, in pertinent part, as follows:
      (3) Whenever Notice of Pending Forfeiture or service of an in rem petition is required under the provisions of this Chapter, notice or service shall be given in accordance with one of the following:
      (a) If the owner’s or interest holder's name and current address are known, by either personal service or by mailing a copy of the notice by certified mail to that address.
      (b) If the owner’s or interest holder’s name and address are required by law to be recorded with the parish clerk of court, the motor vehicle division of the Department of Public Safety and Corrections, or another state or federal agency to perfect an interest in the property, and the owner’s or interest holder’s current address is not known, by mailing a copy of the notice by certified mail, return receipt requested, to any address of record with any of the described agencies.
      (c)If the owner’s or interest holder’s address is not known and is not on record as provided in Subparagraph (b) of this Paragraph, or the owner or interest holder’s interest is not known by publication in one issue of the official journal in the parish in which the seizure occurs.
      (4) Notice is effective upon personal service, publication, or the mailing of a written notice, whichever is earlier, and shall include a description of the property, the date and place of seizure, the conduct giving rise to forfeiture or the violation of law alleged, and a summary of procedures and procedural rights applicable to the forfeiture action.


author: GREMILLION, Judge. PAINTER, J.,

text:
    Joey JAMES v. STATE of Louisiana, DEPARTMENT OF WILDLIFE & FISHERIES.
    No. 10-399.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 2010.

      Henry St. Paul Provosty, Lena Giang-rosso, Provosty & Gankendorff, New Orleans, LA, for Defendant/Appellant, State of Louisiana, Department of Wildlife & Fisheries.
    Jere Jay Bice Bice, Palermo & Veron, Lake Charles, LA, for Plaintiff/Appellee, Joey James.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, J. DAVID PAINTER, JAMES T. GENOVESE and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hThe State of Louisiana, through the Department of Wildlife & Fisheries (the department), appeals the summary judgment granted in favor of Joey James, declaring that James, an employee of the department, is entitled to pursue his remedies under the Jones Act, 46 U.S.C. § 30104, against the department. For the reasons that follow, we reverse.

FACTS

James alleged in his petition against the department that he was employed as a Senior Wildlife Enforcement Agent off the coast of Cameron Parish in the Gulf of Mexico on May 20, 2007, when he was injured. He alleged a number of deficiencies in the boat and its operation, and its lack of seaworthiness. The department responded with a number of exceptions, all based upon its contention that James’s exclusive remedy lay in workers’ compensation. See La.R.S. 23:1032 et seq. The trial court denied those exceptions.

Thereafter, the department sought summary judgment on this same issue. James responded with a motion for summary judgment of his own, seeking a declaration that his exclusive remedy did not lie in workers’ compensation. The trial court denied the department’s motion and granted James’s. The department then perfected this appeal.

ANALYSIS

The Jones Act allows a seaman injured in the course of employment to bring a civil suit against his employer. Because the Jones Act was enacted by Congress, a constitutional question is implicated when the employer is a state. The Eleventh Amendment to the United States Constitution limits Congress’s ability to subject states to suit. The United States Supreme Court has held that, in the context of the |2Fair Labor Standards Act of 1938, 29 U.S.C. § 201, et seq., a state that has not waived sovereign immunity may not be subjected to suit in state court for a violation thereof. Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Thus, a state that has not waived sovereign immunity or otherwise consented to being sued is arguably not subject to suit under the Jones Act. An en banc panel of our colleagues on the fourth circuit have held that the department is subject to Jones Act claims. Fulmer v. Dept. of Wildlife and Fisheries, 10-88 (La.App. 4 Cir. 10/6/10), 50 So.3d 843. In Fulmer, the fourth circuit specifically overruled its decision in Kuebel v. Dept. of Wildlife and Fisheries, 08-1018 (La.App. 4 Cir. 4/15/09), 14 So.3d 20, writ denied, 09-1083 (La.9/4/09), 17 So.3d 964. We respectfully disagree with our colleagues.

Article 12, § 10(A) of the Louisiana Constitution provides, “Neither the state, a state agency, nor a political subdivision shall be immune from suit in contract or for injury to person or property.” This provision must be read in pari materia with subsection (C), which states that the legislature “may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages.” The fourth circuit majority omitted subsection (C) from its analysis entirely, as pointed out by Judge Belsome in his dissent.

An in pari materia reading of these two provisions reveals that Louisiana has conditionally waived sovereign immunity; for while the state may be sued in contract or tort, the legislature retains the right to define the circumstances under which it is liable and limit the amount of its liability. The pertinent question that follows is whether the legislature has limited the department’s liability to a seaman it employed.

In order to determine whether state workers’ compensation law allows James Lto pursue a claim under the Jones Act, we must first examine the exclusivity provisions of our workers’ compensation law. There are two relevant statutes.

One is Louisiana Revised Statute 23:1034 which we cited above. This is a specific exclusivity provision directed at state employees.

The other is Louisiana Revised Statute 23:1032 which also governs exclusivity and provides:

§ 1032. Exclusiveness of rights and remedies; employer’s liability to prosecution under other laws
A. (l)(a) Except for intentional acts provided for in Subsection B, the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages, unless such rights, remedies, and damages are created by a statute, whether now existing or created in the future, expressly establishing same as available to such employee, his personal representatives, dependents, or relations, as against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal, for said injury, or compensable sickness or disease. (Em-pahsis added).

This is the general exclusivity statute for all employees in the state and includes an exception for statutorily created rights such as Jones Act cases.

The question for the court then is which of these statutes applies to James? The answer is obvious: James is a state employee. Therefore, La.R.S. 23:1034 applies.

This is a critical determination because there is a notable difference in the two statutes. La.R.S. 23:1034 does not contain the “unless ...” provision contained in La.R.S. 23:1032. This is the language which creates the exception for Jones Act claims. Therefore, state employees are not entitled to make claims under the Jones act or any other statutorily created remedy. La.R.S. 23:1034. Workers’ compensation is the exclusive remedy for state employees without exception. Id.

|4The right to pursue a Jones Act claim by an injured employee is reserved by La.R.S. 23:1035.2, which provides:

No compensation shall be payable in respect to the disability or death of any employee covered by the Federal Employer’s Liability Act, the Longshoremen’s and Harbor Worker’s Compensation Act, or any of its extensions, or the Jones Act.

Our fourth circuit colleagues analyzed this provision and § 1034 and determined that they were in conflict. The fourth circuit arrived at the conclusion that a seaman’s remedies against the department were not limited by the exclusivity provision of § 1034. Our analysis demands a contrary conclusion.

We must conclude that James is not entitled to pursue his claim under the Jones Act. The legislature enacted La.R.S. 23:1035.2 to make clear that employees entitled to make federal claims are not entitled to make claims under workers’ compensation. This makes perfect sense in light of the exception created in La.R.S. 23:1032. It also makes it clear that there is no actual conflict between La.R.S. 23:1034 and La.R.S. 23:1035.2. Louisiana Revised Statute 23:1035.2 is simply inapplicable to state employees because La. R.S. 23:1034 bars them from making federal claims.

CONCLUSION

The State of Louisiana has, through the legislature, chosen to limit its liability to employees injured on the job to the benefits afforded by the Workers’ Compensation Act. This exclusivity of remedy admits of no exception. The judgment of the trial court granting summary judgment in favor of appellee, Joey James, is reversed. All costs of this appeal are taxed to appellee, Joey James.

REVERSED.

PAINTER, J., dissents and assigns written reasons.

PICKETT, J., dissents for the reasons assigned by Judge PAINTER.

PAINTER, J.,

dissenting.

hi respectfully dissent from the majority’s decision to reverse the trial court’s grant of summary judgment in favor of Joey James, a Senior Wildlife Enforcement Agent for the Louisiana Department of Wildlife & Fisheries, finding that James was entitled to pursue his remedies under the Jones Act, 46 U.S.C. § 80104.

The issue is whether, under Louisiana workers’ compensation laws, James is allowed to pursue a claim under the Jones Act. The majority answers this inquiry in the negative and disagrees with an en banc panel of our fourth circuit brethren in Fulmer v. Dept. of Wildlife and Fisheries, 10-88 (La.App. 4 Cir. 10/6/10), 50 So.3d 843. I am, however, of the opinion that the reasoning of Fulmer is sound and applicable to this case.

Louisiana Revised Statutes 23:1035.2 provides that: “No compensation shall be payable in respect to the disability or death of any employee covered by the Federal Employer’s Liability Act, the Longshoremen’s and Harbor Worker’s Compensation Act, or any of its extensions, or the Jones Act.” (Emphasis added.) This statute specifically uses the words “any employee.” Thus, I agree with the Fulmer court’s pronouncement that:

Pursuant to this provision, it appears that our Legislature ^recognizes that employees may also be covered by federal laws providing remedies, and that in such cases workers’ compensation benefits are not payable. In the unpublished decision rendered in Cosey, this court concluded that this language demonstrated that the remedies provided by the Louisiana Workers’ Compensation Act and by the Jones Act were mutually exclusive remedies; thus, it was not the intent of the law to deprive the employee of his right to seek his federal remedy in state court.

Id. at 848, 2010 WL 3911318, *7.

Thus, I would affirm the trial court’s grant of summary judgment in favor of James.


author: PICKETT, Judge. AMY, J.,

text:
    STATE of Louisiana In the Interest of G.O.
    No. 10-571.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 22, 2010.
    Rehearing Denied Feb. 16, 2011.

      Jo Ann Nixon, New Iberia, LA, for Appellant, M.L. (Mother).
    Reule P. Bourque, Kaplan, LA, for Ap-pellees, G.R. and N.R. (Maternal grandmother and step-grandfather).
    Gregory B. Dean, Dean Law Offices, Opelousas, LA, for Appellees, S.B. and K.B. (Paternal stepfather and grandmother).
    Diane E. Cote, Lafayette, LA, for Ap-pellee, State of Louisiana, Department of Social Services.
    Nicole M. Guidry, Abbeville, LA, for Appellee, R.O. (Father).
    Bart A. Broussard, Abbeville, LA, for Appellee, G. 0.
    Court composed of ELIZABETH A. PICKETT, ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   PICKETT, Judge.

_JjThe appellant seeks review of a judgment terminating her parental rights to her minor son and certifying that he is eligible for adoption. She asserts the following assignments of error:

1. The [ajppellant assigns error to the actions of the trial court in terminating the parental rights of a non-offending parent for substantial non-compliance when she had completed several components of the case plan and was actively involved in mental health treatment.
2. The [ajppellant assigns error to the actions of the trial court in terminating her parental rights where there had been improvement and expectation for further improvement with appropriate and adequate treatment.
8. The [ajppellant assigns error to the actions of the trial court in finding that termination was in the best interest of the child considering the relation of the child to his mother.
4. The [ajppellant assigns error to the actions of the trial court in failing to monitor the actions of the state to assure that the order of the court directed toward reunification of the child with his mother was followed.
5. The [ajppellant assigns error to the placement of the child during the term that the child was in the care of the state with the reporting party.

The State of Louisiana, through the Department of Social Services (DSS), filed a Petition for Termination of Parental Rights and Certification for Adoption (Petition) on April 22, 2009. The Petition alleges, among other things, that G.O. is a minor child:

[Cjurrently in the custody of [DSS] on July 27, 2007, on the grounds of neglect and sexual abuse and was adjudicated a “Child in Need of Care” by judgment rendered on November 07, 2007. The minor child has remained in the custody of [DSS] since entering care and is currently residing in St. Landry Parish, Louisiana with relative foster parents.

The Petition also sets forth numerous deficiencies as to parental fitness and/or compliance with case plans formulated by DSS and prays for termination of the parental rights of both the mother and father. Judgment was, after a trial on the | ¡merits, granted in favor of DSS, and the parental rights of M.L. and R.O. were terminated by the trial court. Only M.L. has appealed that judgment.

The facts of this case are somewhat unusual, and it is necessary to review those facts to reach a resolution. G.O. was born July 12, 2003, of a union between M.L. and R.O. R.O. acknowledged the child, but there is no evidence in the record that M.L. and R.O. ever maintained a common household. The evidence is clear that both M.L. and R.O. experienced difficulties in successfully parenting G.O.

On March 03, 2004, a consent judgment was signed by the Honorable Judge Blan-chet in the matter of [R.O. v. M.L.], 81154, Fifteenth Judicial District Court, Vermilion Parish. This judgment granted joint custody of G.O. to R.O., M.L., the maternal grandmother (G.R.), and the paternal step-grandfather (S.B.). All parties to the litigation agreed to this custody arrangement as is reflected by the terms of the consent judgment.

Subsequent to the entry of this judgment, G.O. lived primarily with S.B during the week while attending school and at the home of G.R. on the weekends. There is no evidence that either M.L. or R.O. had substantial involvement in the day to day care of G.O.

On July 13, 2007, DSS received a report that G.R.’s husband had sexually abused G.O. At the time DSS received and investigated the complaint, G.O. was actually physically in the custody of and staying with S.B. and his wife, K.B. He was not in the home of the alleged perpetrator. No allegations of abuse or neglect were made against K.B. or S.B. who, under the March 3, 2004 judgment, was a legal guardian of G.O. Although it is clear that M.L. and R.O. have ongoing issues that impede their parenting ability, no allegations of abuse or neglect were made against Neither parent. G.O. was not in the physical custody of G.R., where the alleged act occurred, at the time of the investigation.

DSS sought an Instanter Order from the Fifteenth Judicial District Court which stated, among other things, that it was necessary to place G.O. in the temporary custody of DSS for his protection and that continuation in his present home was contrary to his health, safety, and welfare. He was placed in the legal custody of DSS.

On July 31, 2007, a seventy-two-hour hearing was held to determine whether G.O. should remain in the custody of DSS and that request was granted. It was noted that DSS was placing G.O. in the home of S.B. pending further proceedings. G.O. was never physically removed from S.B.’s home.

DSS subsequently filed a Petition, alleging G.O. was a Child in Need of Care because of the alleged abuse set forth in the affidavit in support of the Instanter Order. On August 13, 2007, an Order of Continued Custody was signed which specified that G.O. was a Child in Need of Care, that DSS had made reasonable efforts to prevent his removal from the home, that a substantial and immediate danger existed at the time the oral Instanter Order was issued which precluded preventive services as an alternative to removal, and that it was necessary to take G.O. into custody for his protection.

The record reflects no evidence that G.O. was in anything but a safe and secure environment in S.B.’s home. He was not at risk of harm or further abuse in S.B.’s home. No allegations of abuse or neglect were ever made against S.B. or K.B. In a report filed with the trial court in anticipation of a January 8, 2008 review hearing, DSS noted that G.O. was living in S.B.’s home where he was doing well. Legal ^custody only of G.O. was transferred to DSS while physical custody remained with S.B. who, as previously noted, was his legal guardian pursuant to the March 3, 2004 judgment. G.O. was ultimately adjudicated a Child in Need of Care. Thereafter, a case plan was filed which reflected an ultimate goal of reunification with M.L. and R.O. When M.L. and R.O. did not, in DSS’s opinion, make appropriate strides toward completing the requirements of the case plan, the case plan’s goal was ultimately changed to adoption. In the meantime, S.B. and K.B. became certified foster parents, and DSS thereafter noted that G.O. was in the certified foster home of a relative.

On April 22, 2009, a Petition for Termination of Parental Rights was filed, seeking the termination of the parental rights of both parents. A two-day trial was held on January 25 and January 29, 2010. The trial court subsequently entered judgment in favor of DSS and terminated the parental rights of both M.L. and R.O.

Parents have a fundamental liberty interest in the companionship, care, custody, and management of their children which warrants great deference and vigilant protection under the law. State in the Interest of T.S.B., 532 So.2d 866 (App. 4 Cir.1988), writ denied, 536 So.2d 1239 (La. 1989). Therefore, a proceeding to irrevocably terminate a parent’s rights must satisfy the highest standards of due process. Id. Laws pertaining to termination of parental rights and adoption are in derogation of a parent’s natural rights and must be strictly construed. State in the Interest of M., 448 So.2d 1335 (App. 4 Cir.1984). Consequently, strict adherence to the statutory law from the time a minor child is removed from his home until the finalization of the adoption proceeding is required.

| r,Louisiana Children’s Code Article 606 (emphasis added) sets forth the grounds for determination that a child is in need of care and specifies in part:

A. 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 a 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.

In the matter before us, although the allegation of abuse was against the spouse of a joint legal custodian with whom G.O. spent his weekends, G.O. was not in the physical custody or household of the alleged perpetrator when this report was made. He was in the physical and legal custody of S.B. with whom he primarily resided and against whom no allegation had been made and who, in fact, reported the abuse. G.O.’s health, safety, and welfare in S.B.’s home was never endangered, as was obviously noted by DSS which saw no need to physically remove him from the home and which certified S.B. and K.B. as foster parents. Clearly, G.O. did not, therefore, “fit” within the definition of a Child in Need of Care under Article 606.

In spite of this glaring fact, DSS sought and obtained an Instanter Order ostensibly “removing” G.O. from S.B.’s home and placing him in state custody, and a Continued Custody Hearing was held. At the Continued Custody Hearing, DSS recommended G.O. be “placed” in S.B.’s care, when S.B. was already a joint legal custodian of G.O. and the individual with whom he was primarily residing. In other words, G.O. was never actually “removed” from S.B.’s physical custody. Because G.O. was in the legal and physical custody of a responsible adult, against whom no allegations had been made at the time of DSS’s report and investigation, and not in |fithe home of the alleged perpetrator, DSS’s involvement should have ended there, but it did not.

A seventy-two-hour hearing, or Continued Custody Hearing, was held on July 31, 2007. M.L., G.R., S.B., and K.B. were all present with legal counsel. DSS’s Petition recited the pertinent facts and noted that the alleged perpetrator was the maternal step-grandfather. The minutes of that hearing reflect that it was stipulated that G.O. should be continued in the custody of DSS with physical custody of him being granted to S.B. and K.B. The trial court entered an order to that effect.

Louisiana Children’s Code Article 627 (emphasis added) provides in pertinent part:

A. Following a hearing, the court may return the child to the parents or, in accordance with Article 622, may place the child in the custody of a suitable relative, other suitable individual, or the department.
B. If a child is not returned to the parents, the court shall place the child in the custody of a suitable relative unless the court has made a specific finding that such placement is not in the best interest of the child. The court shall give specific oral and written reasons for its findings, which shall be made a part of the record of the proceeding.

G.O. was placed in the physical custody of an individual considered to be a suitable relative — S.B., his paternal grandfather, who already had legal custody of him. Louisiana Children’s Code Article 672 precludes placing a child in both the custody of DSS and the custody of a relative. It sets forth in pertinent part:

A. Whenever custody of a child is assigned to the Department of Social Services, the child shall be assigned to the custody of the department rather than to a particular placement setting. The department shall have sole authority over the placement within its resources and sole authority over the allocation of other available resources within the department for children judicially committed to its custody.
B. The court shall not divide legal and physical custody whenever assigning custody to a department in accordance with this | ^¡Article, Articles 619, 622, 627, 681, 700, or 716, or any other statute or provision of law.

Id. (Emphasis added.)

It is clear that by granting legal custody of G.O. to DSS and physical custody of G.O. to S.B., the trial court violated the express prohibition against “splitting” custody set forth in Article 672. We addressed this issue in N.B. v. State, Dept. of Social Services, 94-647 (La.App. 3 Cir. 11/2/94), 649 So.2d 591, and specifically held that a trial court cannot split custody and is prohibited from awarding legal custody to the state and physical custody to a parent. This issue was revisited in State ex rel. G.R., 06-458 (La.App. 3 Cir. 9/27/06), 940 So.2d 873, where this court said the trial court lacked the authority to enter an order dividing legal and physical custody between DSS and the child’s maternal grandparents. See also, State ex rel. C.H., 06-386 (La.App. 3 Cir. 9/27/06), 939 So.2d 732.

In Wade v. Wade, 362 So.2d 1151, 1154 (La.App. 2 Cir.1978), the court addressed a juvenile court’s jurisdiction in such a situation, explaining:

The jurisdiction of juvenile courts to make an “informal adjustment” is predicated on the necessity for immediate action to protect the child. Once the “immediate protection” phase of the situation is over, the juvenile court has no jurisdiction to award custody [ujnless there has been a petition filed and the child has been declared neglected, abused, abandoned, or delinquent....

An obvious difference exists between the situation addressed in Wade and the situation presented here: a petition was filed here. However, the report of abuse to DSS was made by a relative with whom the child was residing, who was a legal custodian and who was providing a safe environment for the child. Accordingly, once the “immediate protection phase” passed, and it passed quickly, and G.O. was in no danger, the trial court’s authority ended. Id.

|sWhat we have here, in effect, is the entry of an improper Instanter Order to “remove” a child, who was in fact never removed, from the home of a non-perpetrator, legal guardian relative where the child was not at risk of harm. This “removal” was followed by an illegal division of custody between DSS and S.B., as G.O. was never in the physical custody of DSS. Although DSS certainly had grounds to investigate this complaint, when it became apparent that G.O. was in a safe environment with a legal guardian, this matter should have been handled by law enforcement and through family court.

Not every abuse complaint requires the oversight of DSS. If that was the case, a custodial parent who reports suspected abuse by a non-custodial parent is subject to having the child removed from his or her custody for reporting the abuse. The same would be true if the parents share joint custody of the child.

DSS filed a Petition for Termination of Parental Rights and Certification for Adoption, stating that it is proceeding under the authority of La.Ch.Code art. 1004(D). This article provides:

The department may petition for the termination of parental rights of the parent of the child when any of the following apply:
(1) The child has been subjected to abuse or neglect after the child is returned to the parent’s care and custody while under department supervision, and termination is authorized by Article 1015(3)0).
(2) The parent’s parental rights to one or more of the child’s siblings have been terminated due to neglect or abuse and prior attempts to rehabilitate the parent have been unsuccessful, and termination is authorized by Article 1015(3)(k).
(3) The child has been abandoned and termination is authorized by Article 1015(4).
(4) The child has been placed in the custody of the state and termination is authorized by Article 1015(5).
|fl(5) The child is in foster care because the parent is incarcerated and termination is authorized by Article 10159(6).

Article 1004(D)’s authorization for DSS to proceed to termination of parental rights is premised on the fact that the minor child at issue is actually in the custody of DSS. Indeed, La.Ch.Code art 1004.1 specifically states:

The department shall file and pursue to judgment in the trial court a petition to terminate the parental rights of the parent or parents if the child has been in state custody for seventeen of the last twenty-two months, unless the department has documented in the case plan a compelling reason why filing is not in the best interest of the child.

“[T]his State’s legislature has imposed statutorily strict procedural and evidentia-ry requirements which must be met before issuance of a judgment terminating parental rights.” State in the Interest of JL, DL, & SL, 93-352, p. 6 (La.App.3 Cir. 5/18/94), 636 So.2d 1186, 1191, overruled on other grounds by State in the Interest of ML & PL, 95-45 (La.9/5/95), 660 So.2d 830. DSS has not clearly established that G.O. was actually properly placed in its custody in accordance with the law. It also has established that even if we accept the abuse allegations as true, G.O. was never at risk of harm, as would justify his placement into state custody. Therefore, we do not find these procedural requirements have been met.

DISPOSITION

For these reasons, we find, under these facts, that the State, through the Department of Social Services, lacks standing to proceed in this matter and, sua sponte, find it has no right of action in this matter. The judgment granted by the trial court is hereby vacated, and the Petition for Termination of Parental Rights and | ^Certification for Adoption filed by the State through the Department of Social Services is dismissed.

This matter is remanded to the trial court. S.B. is hereby granted sole custody of G.O. pending further action of that court.

JUDGMENT VACATED; REMANDED WITH INSTRUCTIONS.

AMY, J., dissents and assigns reasons.

AMY, J.,

dissenting.

I respectfully dissent from the majority as I find that the trial court’s and the State’s actions are supported by the record. The majority recognizes that the factual background is unusual in this case. In my opinion, this unusual factual background has caused confusion regarding initial custody of the child and, in turn, who has had custody of the child during the pendency of this matter. My view is that it has also caused confusion throughout these proceedings as to who are the parties to the matter. In short, the grandparents are not parties in this case, although they have been represented and have made certain appearances herein.

As noted by the majority, the record contains a January 2004 “consent judgment” that resulted from a petition for custody, filed in another proceeding, by G.O.’s father. In that document, G.O.’s parents seemingly agreed that they, along with G.R. and S.B., would share “joint custody” over the child and that G.R. would “be named as the domicile [sic] parent.” Although this consent judgment does not seemingly comply with the detailed procedures set forth by La.Ch.Code art. 1510, el seq., or those anticipated for the authorization of provisional custody by mandate anticipated by La.R.S. 9:951, et seq., I do not consider the legality of that document. However, given its exceptional characteristics, I do not assume that this document provided the grandparents with joint legal custody over this child, certainly not as of the time that this matter was instituted in 2007. Such an assumption as to the custodians of this child blurs the line as to the identity of the parties. The petition seeking an adjudication of G.O. as a child in the need of care lists the parents, not the grandparents.

Instead, my review of the proceedings indicates that both the State and the trial court properly recognized that this was a case in which the State pursued and obtained custody from the parents. Although the child resided with the grandparents and was ultimately placed there with consent of the State, I believe that this was never a recognition as to the joint legal custodianship with the grandparents. Instead, as early as the July 31, 2007 hearing, at which the 72 Hour Instanter Order was considered, the minutes indicate that “the parties stipulated to continued custody with the State of Louisiana and that the child [would] be placed with the paternal step-grandparents [.]” (Emphasis added.)

This distinction prevents me joining in the majority opinion. In light of its recognition of S.B. as a legal custodian, the majority finds that there is no basis for the “child in need of care” determination pursuant to La.Ch.Code art. 606. Notwithstanding the dictates of Article 606, La.Ch. Code art. 647 permits a stipulation as to whether a child is in need of care with or without admitting the allegations of the petition. Here, the court minutes reflect that, ultimately, “all parties stipulated that the child is in need of care without admitting the allegations of the petition.”

Furthermore, I do not read the minutes as indicating that this is a case where the court divided the legal and physical custody of the child as prohibited by La.Ch. Code art. 672. Rather, the minutes indicate that the court did, in fact, place the child in the custody of the State pursuant to Article 672(A). It did not place the child in the custody of a particular placement setting as is prohibited by Paragraph A nor did it divide legal custody and physical custody as is prohibited by Paragraph B. Custody, at all times, remained with the State. The parties merely approved of the “placement” with the “paternal step-grandparentsf.]” I see no court intervention in this placement as is prohibited by Paragraph B and find no prohibition within the Article for the State to be able to exercise its “sole authority over the placement” with this type of agreement. See La.Ch.Code art. 672(A).

For these reasons, I do not find error in the issuance of the Instanter Order. I respectfully dissent from the majority in this regard. It follows, that a decision on the merits is warranted. Accordingly, I dissent.

      . See La.Code Civ.P. art. 927; see also, Succession of Comeaux, 04-1335 (La.App.3/2/05), 896 So.2d 1223.