author: AMY, Judge. COOKS, J.,

text:
    Angelo SAGNIBENE, et ux. v. ROY O. MARTIN LUMBER CO., LLC.
    No. 10-1331.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.

      James P. Dore, Robert E. Dille, R. Benn Vincent, Jr., Lyn S. Savoie, Kean, Miller, Hawthorne, D’Armond, McCowan & Jar-man, L.L.P., Baton Rouge, LA, for Defendant/Appellant, Roy 0. Martin Lumber Company, LLC.
    Craig L. Raster, Zachary, LA, for Plaintiffs/Appellees, Angelo Sagnibene, Nolia Dupuis Sagnibene.
    Paul D. Spillers, Theus, Grisham, Davis & Leigh, L.L.P., Monroe, LA, for Amicus Curiae, Louisiana Forestry Association.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, JIMMIE C. PETERS, MARC T. AMY and BILLY H. EZELL, Judges.
   AMY, Judge.

|,The plaintiffs sought damages after alleging that the defendant wrongfully cut timber on their property. The defendant reconvened, asserting that it was the rightful owner of the property. The trial court found in favor of the plaintiffs, determining that their title included the tract in dispute and that the defendant did not acquire the property by acquisitive prescription. The trial court awarded statutory damages for the fair market value of the timber cut and also awarded costs associated with the restoration of the property. The defendant appeals. For the following reasons, we affirm in part, reverse in part and render.

Factual and Procedural Background

This case involves the ownership of 3.96 acres of timberland in St. Landry Parish (hereinafter “the Subject Property”) and, in turn, the appropriate damages due following the cutting of timber thereon without permission. The record demonstrates that the Subject Property is a rectangular strip located between a larger parcel owned by the plaintiffs, Angelo Sagni-bene, and his wife, Nolia Dupuis Sagni-bene, to the south and one owned by the defendant, Roy 0. Martin Lumber Company, L.L.C., to the north. Both parties maintain that their respective property extends into the Subject Property.

The plaintiffs assert that the Subject Property was part of a larger parcel they ^acquired in 1977 through an Act of Exchange. This property was previously that of Mrs. Sagnibene’s father, Cilton Dupuis, and his wife, Azelda LeJeune Dupuis. The Dupuis family had acquired their property in 1943 through an Act of Sale.

However, the defendant contends that it acquired the Subject Property through its own 1977 Act of Exchange. This Act of Exchange included a southern border of property previously possessed by Turner Lumber Company. The defendant asserts that, after the exchange, it maintained the old Turner Lumber Company boundary line by marking its border with a yellow painted line and that it marked the corners of its property by painting the initials “ROM” in these areas. Further, it contends it included this property in hunting leases and possessed this area through employee activity on the area.

The dispute as to the ownership of the Subject Property came to light in 1991, causing the Sagnibene family to conduct a survey at that time. The resulting plat identified the property as an “area of encroachment.” Both parties assert that, after that time, they conducted their respective activities on the property. The defendant asserts it periodically painted its purported border with yellow paint.

The instant matter was provoked when, on December 17, 2007, the defendant began cutting timber from the Subject Property. Although the plaintiffs requested that the defendant’s personnel cease operations, the cutting was completed the following day.

|sThe plaintiffs subsequently filed this suit against the defendant, asserting that their property was damaged and seeking associated damages, attorney fees, and costs. In its answer to the petition, the defendant asserted its ownership of the Subject Property and its timber. Thereafter, in a reconventional demand, the defendant sought declaratory judgment that it was the owner of the Subject Property by ten-year and thirty-year acquisitive prescription.

Following a bench trial, the trial court determined that the plaintiffs were the owners of the Subject Property through their 1977 acquisition of the larger parcel. It further denied the defendant’s acquisitive prescription claim, finding that it failed to demonstrate adequate uninterrupted possession of the property. The trial court found that the plaintiffs were entitled to the treble damages available pursuant to La.R.S. 8:4278.1, and to $288,998 in restoration costs of the property.

The defendant appeals, assigning the following as error:

1. The lower court erred as a matter of law when it decided that Sagnibene’s title included the four acres in dispute. The title described the northern boundary as the “Turner Lumber Company” line and the Turner Lumber Company line was clearly marked on the south line of the subject property.
2. The lower court erred in finding that Martin Lumber did not have corporeal possession when (1) Martin Lumber bought Turner Lumber Company’s property in 1977, (2) at the time of acquisition, Turner Lumber Company maintained a white-painted boundary line along an existing hog-wire fence line, (3) Martin Lumber maintained the same boundary line as Turner Lumber Company, with a yellow-painted line along the hog-wire fence, and (4) Martin Lumber leased the property to a local hunting club Land continued its timber operations on the property for the last 30-plus years.
3. The lower court erred in finding the clandestine hunting activity of Sag-nibene’s grandson and son-in-law was open, continuous, public, and within a visible boundary line.
4. The lower court erred as a matter of law when it declared that Martin Lumber failed to meet the good faith element for 10-year acquisitive prescription when (1) good faith possession is presumed and is determined at the beginning of possession, and (2) there was no evidence Martin Lumber did not have good faith at the beginning of possession.
5. The lower court erred in finding that Martin Lumber did not meet the requisite elements for 30-year acquisitive prescription, especially when Martin Lumber and its predecessor possessed the property within visible bounds.
6. The lower court erred as a matter of law when it awarded grossly excessive damages, totaling more than 30 times the appraised value of the property.

[^Discussion

Title

The defendant first questions the trial court’s determination that the plaintiffs owned the 3.96 acres of the Subject Property by virtue of their title. Primarily, it contends the trial court erred in finding that the northern boundary of the Subject Property was dictated by section line whereas the plaintiffs title description provides that their property was “bounded north by Section Line or Turner Lumber Company.” (Emphasis added.) The defendant contends the evidence indicates that the Turner Lumber Company property, which it acquired in 1977, was designated by a painted white line along the southern border of the Subject Property. As the defendant undoubtedly possesses the property to the north, it contends that the trial court erred in determining that its own property did not extend to the southern border of the Subject Property.

The plaintiffs’ act of exchange by which they acquired their larger tract, and purportedly the Subject Property, provides as follows:

Cilton Dupuis and wife, Mrs. Azelda LeJeune Dupuis do hereby convey, transfer and set over unto ANGELO SAGNIBENE and wife NOLIA DU-PUIS SAGNIBENE, accepting for themselves, their heirs and assigns, the following described property, to-wit:
A certain tract or parcel of naked land, without improvements, near Palmetto in the 4th Ward of St. Landry Parish, Louisiana, containing thirty-eight and 52/100 (38.52) acres and bounded, now or formerly, as follows: IfiNorth by Section line or Turner Lumber Company; South by blacktopped highway leading to Palmetto and also partly by a one acre tract of heretofore sold to Angelo Sagnibene et ux by Cilton Dupuis; East by lands of Preston Leger and also partly by aforesaid one acre tract of land belonging to Angelo Sagnibene and wife and West by remaining and adjoining land of Cilton Dupuis.
The above parcel of land is situated in Section 4, T-4-S, R-6-E, and is a part of a one hundred eleven (111) acre tract of land which Cilton Dupuis acquired of Harris Hyman, Jr. et al on July 20, 1943, and recorded July 23, 1943, as per act of sale duly recorded in the conveyances of St. Landry Parish, Louisiana.

(Emphasis added.)

In resolving the title issue, the trial court referenced the Sagnibene property description in the 1977 Act of Exchange, above, and further stated that:

[The] Sagnibene[s]’s claim that the disputed 3.9 acres lies within the above listed property description granting them ownership by virtue of title executed in 1977 and traced to their common ancestor by virtue of title executed in 1943 between Cilton Dupuis and Harris Hyman, Jr. Furthermore, [the] Sagni-benes rely on a survey of the property conducted by Robert Wolfe, Jr. in 1991 and M.J. Goudeau in 1943.
Roy 0. Martin claims that the disputed property was part of the old Turner Lumber Company property, which was acquired by Friedberg/Moncrief in 1976. The property description «that Roy 0. Martin relies upon states in pertinent part:
A certain small tract or lot of land containing 3.71 acres more or less, located in the Southeast corner of the Southwest Quarter of Section 33, Township 3 South, |7Range 6 East, which is more particularly described as follows:
Beginning at a point on the South line of Section 33, Township 3 South, Range 6 East, forty nine feet west of the Southeast corner of South west Quarter of said Section 33, thence West along the Southern line of Section 33, a distance of seven hundred sixty-three feet, thence North a distance of two hundred nineteen feet to an iron stake, thence East a distance of seven hundred sixty-three feet to an iron stake forming the Northwest corner of Lot No. 1, thence South a distance of two hundred five feet to the point of beginning.

After careful examination of the exhibits admitted into evidence, the court finds that the Sagnibenes have title to the 39½ acres which include the approximately four (4) acres being contested. The evidence presented establishes that in 1943 Mrs. Sagnibene’s father purchased 111 acres from the Hymans. The purchased property bounded on the north by Section 33, Township 3 South, Range 6 East. In 1977, Mrs. Sagnibene and her husband obtained the 39½ acres from her father, including the approximately four (4) acres of this disputed area. In addition, testimony at trial verified that the disputed tract was referenced in numerous right of ways, servi-tudes, oil, gas and mineral leases, and tax records, all of which confirm the Sagnibenes own the approximately four (4) acres in dispute. The title records introduced by Roy 0. Martin show Turner Lumber Company acquired property from St. Landry Timber Company in 1939 and that acquisition confirms the property acquired by Turner was the southwest quarter of Section 33, Township | s3 South, Range 6 East. Later, Roy 0. Martin acquired this property from Turner Lumber Company. However, this court finds that Roy 0. Martin never acquired the property south of Section 33, which is where the subject four (4) acres are located.

Certainly, the trial court s reasons for ruling, by setting out the entirety of the plaintiffs’ title description acknowledges the defendant’s contention that the plaintiffs’ property was bordered to the north by section line or Turner Lumber Company. The 1943 Act of Sale by which the plaintiffs’ ancestor in title, Cilton Dupuis, acquired his 111 acre parcel from Harris Hyman, Jr. provided similarly.

As seen by the remainder of the trial court’s reasons for ruling and in the defendant’s assignment, the equivocation of the northern border by section line or Turner Lumber Company gives room for the defendant’s claim by acquisitive prescription, discussed below. It does not, however, preclude the trial court’s determination that the plaintiff held superior title to the Subject Property. According to the plaintiffs’ expert in engineering and surveying, Robert Wolfe, Jr., the Subject Property is bordered to the North by the north line of Section 4. He determined that this section line was the same as determined in surveys completed in 1942 and 1943, as well in other surveys conducted in the area. This provided a reasonable basis for the trial court’s determination that the Subject Property was bordered to the North by the section line between Sections 4 and 33, that the plaintiffs property description allowed for the designation of its northern border by section line, and that the defendant’s property description included no indication that property was acquired |flsouth of Section 33. To the extent that the trial court’s interpretation of the property description relied on factual determinations and credibility assessments of the parties’ experts, these findings are supported by the record and are, therefore, not disturbed on appeal.

This assignment lacks merit.

Acquisitive Prescription

The defendant’s next four assignments stem from the trial court’s rejection of its alternative claims of ownership by ten-year or thirty-year acquisitive prescription. We address these in turn.

Possession

Louisiana Civil Code Article 3446 provides that “[ajcquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time.” However, important in the trial court’s factual findings and now contested by the defendant, is Article 3476 which states that “[t]he possessor must have corporeal possession, or civil possession preceded by corporeal possession, to acquire a thing by prescription. The possession must be continuous, uninterrupted, peaceable, public, and unequivocal.” (Emphasis added.)

A party pleading acquisitive prescription must bear the burden of proving all essential facts. Merritt v. Brennan, 08-973 (La.App. 3 Cir. 2/4/09), 3 So.3d 646, quoting, Mistric v. Kurtz, 610 So.2d 226, 230 (La.App. 3 Cir.1992), writ denied, 612 So.2d 102 (La.1993). Further, the question of whether a party has possessed the subject property for prescription purposes is a factual determination for the trial court and will not be disturbed on appeal unless it is manifestly erroneous or clearly wrong. Prince v. Palermo Land Co., Inc., 05-1399 (La.App. 3 Cir. 5/3/06), 929 So.2d 831. Also, the trial court is owed great deference and, when its findings are based upon determinations as to the credibility of witnesses, its findings are virtually never manifestly erroneous or clearly wrong. Id.

In ruling on the issue of possession, the trial court stated:

With regard to possession, the Court finds that Roy O. Martin may have in fact painted trees in order to identify its boundary line between 1991 and 2007, walked the property, and inspected the property. However, the Sagnibenes have also exercised possession of this property during the same time and previous to the time Roy 0. Martin attempted to possess. As testified, the Sagnibene family hunted the property every year from 1977 to present, set up deer stands on the property, and has also painted over the trees that had been marked. Roy 0. Martin has failed to prove uninterrupted and continuous possession and failed to prove it conducted sufficient activities on the disputed property which gave notice to the public, including the Sagnibenes, that it intended to possess as owner. The possession claimed by Roy 0. Martin was not actual, physical, open, public, unequivocal, continuous, uninterrupted and did not show an intent to possess as owner.

The defendant contends that the trial court erred in failing to accept what it considers to be evidence overwhelmingly demonstrating that it exercised corporeal possession of the Subject Property. In short, it asserts that its witnesses testified regarding a visible, painted boundary line, a fence, and the further possession of the property through the activities of a hunting club that leased a larger 1300 acre area from the h defendant. It also observes that the forested Subject Property distinctly differs from the Sagnibenes’ adjacent farm land.

The defendant correctly points out that the record contains evidence that could have been construed as supporting a finding in its favor on the point of corporeal possession. However, the trial court could have interpreted the evidence as it did to conclude that the defendant failed to prove that its alleged possession fit within the definition of La.Civ.Code art. 3476. Both parties presented testimony and photographic evidence regarding whether the southern boundary of the Subject Property was identified by the yellow paint marks historically used by the defendant and whether white paint marks, historically used by Turner Lumber Company, existed in that area before the defendant acquired the property.

With regard to the early years of the defendant’s possession, the defendant produced Jewel Willis, accepted as an expert in a number of timber-related areas, including timberland boundaries, who explained that he felt that the quality of the paint remnants and the wire associated with the fence remnants found on the border indicated that they predated the mid-70s. Further, Robert Bihm, the President of the Fritz Field Hunting Club, testified that this club has annually leased a 1300 acre tract from the defendant since 1978. He testified that he was familiar with the Subject Property and that yellow paint had been on the southern and eastern boundaries of the subject property since that time. He denied that he had seen other hunters in the area. |iaHe further explained that in the early 1980s, a hunter, Kenneth Dupuis, shot a deer from a stand adjacent to the property and that he had asked for permission to enter the Subject Property to retrieve the deer, which had crossed onto the property and died.

While pieces of evidence regarding this alleged early possession by the defendant and/or Turner Lumber Company is contained in the record, the trial court could have found that the quality of the evidence did not sufficiently satisfy the requirements of La.Civ.Code art. 3476. While Mr. Willis testified as to areas of paint and fencing that he felt existed in the 1970s, neither the testimony nor the photographic evidence mandated a finding that any border designation was “continuous, uninterrupted, peaceable, public, and unequivocal[.]” Id. Rather, the evidence as to this early existence of the paint and fencing was sporadic and vague. Instead, the trial court also heard from James Morgan, the plaintiffs’ son-in-law, who testified that he had been going to the property for hunting purposes for forty-five years. He explained that he had not seen yellow paint “as such” on the trees along the southern-border of the encroachment. Instead, he stated that he only saw yellow paint after it was covered with dark paint. He noted that shortly before trial, the defendant again placed yellow paint over this dark paint. Also related to this early time period |isafter the 'parties’ acquisition of the property in the 1970s, Chandler Hutchins testified that he had hunted in the area for over thirty years and that he had never been told to leave.

Similarly, Mrs. Sagnibene testified that her parents purchased the property approximately sixty-five years earlier. She explained that some of her father’s property was farmland, and some was woodland, which was used for hunting and for cattle during this time. After the wooded area was no longer used, she explained that the fencing on the area was no longer maintained. She denied knowing whether yellow paint had been on the border of the Subject Property when she and her husband purchased the property. These witnesses support a finding by the trial court that any marking of the southern border by either the defendant or Turner Lumber Company, in the early days of the time period at issue, was not so obvious and unequivocal as to necessarily fit within the parameters of Article 3476. Further, Mrs. Sagnibene’s explanation of her family’s long time use of the property, in part, as farmland and, as part, for hunting and raising cattle undercuts the defendant’s contention that the change in landscape necessarily indicates that it was maintained as part of the adjacent timberland.

Also, the record indicates that, subsequent to 1991, the parties’ boundary dispute became apparent when the defendant asked Mr. Sagnibene for permission to travel along a roadway on his farmland to cut timber from the Subject Property. | HWhile Mr. Sagnibene refused access, the parties met and Mr. Sagnibene hired Mr. Wolfe to complete the 1991 survey referenced above. Thereafter, and as referenced above, the defendant marked the southern border of the property with its yellow paint. It did so repeatedly. However, the trial court’s determination that this possession was interrupted is supported by the record. Notably, Mrs. Sag-nibene testified that she painted over the brown paint more than ten years prior to the trial. Too, when the timber cutting commenced in 2007, the defendant’s employees were immediately notified that they were cutting on property claimed by the plaintiff.

Given the limited evidence regarding the quality and obviousness of the defendant’s possession during the early years of the defendant’s alleged possession and the very distinct interruptions remarked upon in 1991 and beyond, we find no manifest error in the trial court’s factual findings regarding the defendant’s possession of the subject property. This finding is applicable to the defendant’s claims of both ten-year and thirty-year acquisitive prescription.

Hunting

The defendant next argues in brief that the trial court erred in determining that “the clandestine hunting activity of Sagni-bene’s grandson and son-in-law was open, continuous, public, and within a visible boundary line.” It points to a statement in the trial court’s reasons for ruling that “the Sagnibenes presented evidence at trial to establish that they have corporeally possessed the subject property since acquisition.” | |5The defendant contends the trial court incorrectly found that there was evidence that the plaintiffs’ hunting activities were public for purposes of acquisitive prescription.

However, reference to the trial court’s reasons for ruling indicates that, after setting forth the defendant’s evidence presented in support of its acquisitive prescription claim, the trial court’s full statement, excerpted in part by the defendant, provides that: “Contrarily, the Sagnibenes presented evidence at trial to establish that they have corporeally possessed the subject property since acquisition.” The remainder of the paragraph provided an overview of the plaintiffs’ evidence, only a portion of which related to the plaintiffs’ family’s use of the area for hunting purposes. Instead, the trial court’s later reference to the family’s hunting practices was used as a finding undermining the defendant’s contention that it proved its own sufficient possession of the property. Recall too, that the trial court found that the plaintiffs owned the property by virtue of their title. This assignment would be relevant had the trial court found that the plaintiffs owned the property by acquisitive prescription, which it did not.

| mGood Faith

As explained above, the defendant asserted that it possessed the property through either ten-year or thirty-year acquisitive prescription. Louisiana Civil Code Article 3475 lists the requisites for acquisitive prescription of ten years as: “possession of ten years, good faith, just title, and a thing susceptible of acquisition by prescription.” As noted by the defendant, Article 3481 creates a presumption of good faith and provides that “[njeither error of fact nor error of law defeats this presumption. This presumption is rebutted on proof that the possessor knows, or should know, that he is not owner of the thing he possesses.” Id. Furthermore, “[i]t is sufficient that possession has commenced in good faith; subsequent bad faith does not prevent the accrual of prescription of ten years.” La.Civ.Code art. 3482 (emphasis added). In this assignment, the defendant asserts that the trial court erred in determining that it did not have good faith in its possession of the property, at least at the commencement of the acquisitive prescription period.

However, this assignment is rendered moot by our above discussion regarding possession. As explained above, the evidence regarding the quality of the defendant’s possession during the early years of its acquisition is limited. Instead, testimony only indicated remnants of historic paint and fencing. No testimony or 117physical evidence was so compelling as to the continuity or obviousness of these purported indicia of possession to have demanded a finding that the defendant established the first element required under Article 3475, i.e., possession of ten years.

This assignment is moot.

118Damages

Alternatively, the defendant contests the trial court’s award of damages. Chiefly, the defendant questions the trial court’s award of restoration damages in the amount of $288,998, a figure the defendant asserts is “more than 30 times” the appraised value of the 3.96 acres of the Subject Property. Instead, the defendant contends that jurisprudence indicates that the trial court’s judgment should have been more reflective of the property’s appraised value of $9,433 before the timber harvest.

In assessing damages, the trial court first awarded three times the value of the harvested timber. This award was in keeping with La.R.S. 3:4278.1, which provides a penalty for the cutting of trees without consent, as follows:

A. It shall be unlawful for any person to cut, fell, destroy, remove, or to divert for sale or use, any trees, or to authorize or direct his agent or employee to cut, fell, destroy, remove, or to divert for sale or use, any trees, growing or lying on the land of another, without the consent of, or in accordance with the direction of, the owner or legal possessor, or in accordance with specific terms of a legal contract or agreement.
B. Whoever willfully and intentionally violates the provisions of Subsection A shall be liable to the owner or legal possessor of the trees for civil damages in the amount of three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, plus reasonable attorney’s fees.
C. Whoever violates the provisions of Subsection A in good faith shall be liable to the owner or legal possessor of the trees for three times the fair market value of the trees cut, felled, destroyed, removed, or diverted, if circumstances prove that the violator should have been aware that his actions were without the consent or direction of the owner or legal possessor of the trees.

119After citing Paragraphs A and B, above, the trial court provided the following findings:

In Thibodeaux v. Western World Insurance Company, [391 So.2d 24 (La.App. 3 Cir.1980) ], the Third Circuit held that when a person intentionally trespasses onto the property of another with the intent to cut timber, the plaintiffs [sic] should be awarded three times the fair market value of the trees pursuant to statute, plus the cost associated with restoration of the property.
Based on the evidence, testimony, and record, this Court finds that Roy 0. Martin was in bad faith and willfully trespassed onto the Sagnibene[s]’s property, removing standing timber belonging to the same. In addition to cutting standing timber not belonging to it, Roy 0. Martin left the property in an unacceptable condition, causing the property to be of no use for harvesting timber or any other purpose. The Court finds that the Sagnibenes’s [sic] are entitled to three times the value of the trees and the restorative amount required to return the property to an acceptable condition.
In determining the amount of damages recoverable, Plaintiffs [sic] presented testimony and evidence as follows:
• Mr. Culpepper’s services were employed to determine the value of the timber removed from the property. Mr. Culpepper testified that approximately 104 trees valued at $13,459 [], were removed from the property.
• Mr. Johnson testified that the cost of removing stumps and returning the property to natural grade so trees could be replanted were estimated to total $288,998.
The court finds the testimony presented by the plaintiff regarding damages is credible and reliable, [and] therefore relies on such evidence presented in determining the total amount of recoverable damages.

12oThus, based on the evidence cited, the resulting judgment awarded damages to the plaintiff in the amount of $329,075.00, attorney fees in the amount of $13,225.41, and associated expert witness fees.

Here, the trial court awarded treble damages under La.R.S. 3:4278.1 and those attributable to restoration. It cited Thi-bodeaux, 391 So.2d 24, for the proposition that both were available. However, Thibo-deaux predates relevant Louisiana Supreme Court jurisprudence on the issue of restoration after property damage caused by tortious conduct.

In Hornsby v. Bayou Jack Logging, 04-1297 (La.5/6/05), 902 So.2d 361, 365, the Louisiana Supreme Court addressed the “proper measure of damages due a landowner whose timber was removed without consent.” In laying out the available remedies, it advised that it had previously held that such a landowner “may recover pursuant to La.R.S. 3:4278.1 or under general tort principles set forth in La.Civ.Code art. 2315[].” Id. (emphasis added), citing First South Prod. Credit Ass’n v. Georgia-Pacific, 585 So.2d 545 (La.1991). Thus, it is clear that in the present matter the judgment was in error insofar as it awarded damages pursuant to La.R.S. 3:4278.1 |⅞1 and for restoration damages pursuant to La.Civ.Code Code art. 2315. We turn to consideration of the evidence to determine which theory of recovery is appropriate.

The supreme court noted that the calculation of statutory damages pursuant to La.R.S. 3:4278.1 is clear and unambiguous. Hornsby, 902 So.2d 361. Yet, general tort recovery “when restoration is the objective, is not as straightforward.” Id. at 365. For this latter analysis, the supreme court referred to its existing analysis of the recovery of property restoration costs allegedly due under La.Civ.Code art. 2315. Id., citing Roman Catholic Church of the Archdiocese of New Orleans v. Louisiana Gas Serv. Co., 618 So.2d 874 (La.1993).

In Roman Catholic, 618 So.2d at 879, the supreme court concluded that:

[A]s a general rule of thumb, when a person sustains property damage due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or may be reasonably incurred, or, at his election, the difference between the value of the property before and after the harm.

(Emphasis added.) Notably, the court further remarked that:

If, however, the cost of restoring the property in its original condition is disproportionate to the value of the property or economically wasteful, unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the repairs, damages are measured only by the difference between the value of the property before and after the harm.

Id. at 879-80.

In this case, the cost of restoring the property to its original condition is undoubtedly disproportionate to the value of the property. The plaintiff put on no | ^evidence of the property’s value before the cutting of the timber, although their expert arborist and forester estimated that the timber cut from the Subject Property had a value of $18,359. However, the defendant’s expert testified that, even assuming the inclusion of timber on the property, the land had a value of $2,382 per acre or a total value of $9,433. Thus, and even assuming that the plaintiffs would have valued the land at a higher figure as their estimates of the timber value exceeded those of the defendants’ expert, the restoration of the grade awarded by the trial court in the amount of $288,998 was disproportionate to the value of the land even before the removal of the timber. Further, we note that the defendant presented testimony indicating that, if the land was left alone, without restoration work, merchantable trees would once again grow within fifteen years.

Returning to the Roman Catholic, 618 So.2d at 879-80 analysis, we note that the supreme court provided that disproportionate awards were not available “unless there is a reason personal to the owner for restoring the original condition or there is a reason to believe that the plaintiff will, in fact, make the repairs!.]” In this case, there is no such evidence requir-ing the disproportionate award. In light of the fact that the plaintiffs have been recompensed for the timber on the property, they have presented no evidence that the return of the property by way of considerable removal | ^of stumps and earthwork is necessary for reasons personal to the plaintiffs. Instead, Mrs. Sagnibene only testified regarding her family’s historic use of this property for hunting. However, the relevant testimony did not indicate that their hunting activities were limited to the Subject Property nor was the testimony of the family members conclusive as to the extent that it could no longer be used for this purpose.

Finally, in Hornsby, 902 So.2d at 367, the supreme court observed that for a party attempting to prevail under the restoration remedy, the primary objective may be “to restore the property as nearly as possible to the original state,” but that this restoration may not be possible at times and may not be cost effective. Such was the case in Hornsby, as the supreme court determined that, under the Roman Catholic analysis, the plaintiff failed to present sufficient evidence of reasons personal to the owner to justify the restoration damages.

However, the supreme court in Hornsby found sufficient evidence for the alternate award of treble damages under La.R.S. 3:4278.1. The same situation is present in this case. As we have explained, the plaintiffs’ evidence does not support a general tort award pursuant to the Roman Catholic analysis. However, the evidence warrants the award of treble damages and attorney fees under La.R.S. 3:4278.1(B). In short, the record supports the trial court’s determination that the defendant cut and removed the trees of another without consent and did so after being informed, on the first day of cutting, that the plaintiffs asserted ownership of the property. ^Furthermore, we note that, if the plaintiffs were allowed to recover under both this tort theory and the available statutory recovery, this “would result in duplication of damages.” Hornsby, 902 So.2d at 372 (Weimer, J., concurring).

Accordingly, we affirm the trial court’s award of statutory damages in the amount of $40,077. We further affirm the award of attorney fees made under the statute. However, we reverse that portion of the judgment awarding $288,988 in damages for the restoration of the property.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed insofar as it was entered in favor of Nolia Dupuis Sag-nibene, both in her individual capacity and as the independent administratrix of the succession of Angelo Sagnibene. However, the judgment is vacated insofar as it awarded restoration damages in the amount of $288,988. Judgment is recast, in part, as follows:

Judgment is granted herein in favor of Nolia Dupuis Sagnibene, in her individual capacity and as the independent ad-ministratrix of the succession of Angelo Sagnibene, and against Roy 0. Martin Lumber Company, L.L.C. in the sum of $40,077 together with legal interest from date of judicial demand until paid.

That portion of the judgment awarding attorney fees and court costs is affirmed. All costs of this proceeding are assessed equally between the appellees and the appellant.

AFFIRMED IN PART; REVERSED IN PART AND RENDERED.

THIBODEAUX, Chief Judge, dissents in part for the reasons assigned by Judge COOKS.

COOKS, J., concurs in part and dissents in part.

EZELL, J., concurs.

COOKS, J.,

concurs in part and dissents in part.

l iThe majority finds no manifest error in the trial court’s finding that Plaintiffs enjoy good title to the property and that defendant has not acquired title by any means including thirty year acquisitive prescription. I fully agree with this portion of the majority’s opinion. The majority also finds that Plaintiffs are only entitled to treble damages based on the fair market value of the timber cut and removed from their property along with attorney fees and that they are not entitled to the trial court’s award for cost of restoration. While I agree that Plaintiffs are entitled to treble damages and attorney fees for Defendant’s bad faith removal of their timber, I do not agree with the majority’s decision limiting Plaintiffs’ recovery to these statutory damages and I must, therefore, dissent in part.

Plaintiffs’ property has been left in an unusable condition covered with tall stumps which remain after the bad faith, wrongful removal of trees by Defendant. Plaintiffs’ have suffered far more in damages than the mere fair market value of the |2timber unlawfully removed. I do not believe the legislature intended to limit Plaintiffs’ recovery for damages to only recovery for the timber unlawfully removed. Louisiana Revised Statutes 3:4281.1 provides a remedy for the valuation of the trees as timber removed unlawfully and assesses a punitive penalty for Defendant’s intentionally tortious action which includes the recovery of attorney fees and expert fees. Nothing in the language of the statute limits or bars Plaintiffs’ recovery for damages other than the loss of the trees which Plaintiffs’ may incur as a result of Defendant’s trespass upon Plaintiffs’ property. As Justice Weimer wrote in his concurrence in Hornsby v. Bayou Jack Logging, 04-1297 (La.5/6/05), 902 So.2d 361, 372 (La.2005):

Pursuit of treble damages for the fair market value of the timber pursuant to LSAR.S. 3:4278.1 did not preclude plaintiffs from the right to pursue damages such as mental anguish or damage to the property itself (i.e. damage to ditches, drainage, fences) which they may have sustained because of the unauthorized cutting of the trees.

In Otwell v. Diversified Timber Services, Inc., 04-924 (La.App. 3 Cir. 1/26/05), 896 So.2d 222, writ denied 05-467 (La.4/22/05), 899 So.2d 575, our court awarded general damages for loss of use to plaintiffs in that timber trespass suit in addition to statutory treble damages and attorney fees. One of the plaintiffs in Otwell merely enjoyed a usufruct over the property but our court found he was entitled to general damages of $4200.00 for his loss of use of the property. Mrs. Sanders was also awarded general damages in the amount of $1800.00 for her loss of use of the property.

lain Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Serv. Co., 618 So.2d 874, 876 (La.1993) (emphasis added) (citations omitted), the Louisiana Supreme Court set forth the fundamental legal precepts in Louisiana regarding full indemnification for damages sustained as a result of the fault of another and the Constitutionally protected “Right to Property”:

Every act of man that causes damage to another obliges him by whose fault it happened to repair it. La.Civ.Code art. 2315. One injured through the fault of another is entitled to full indemnification for damages caused thereby. In such a case, ‘[t]he obligation of defendant ... is to indemnify plaintiff-to put him in the position that he would have occupied if the injury complained of had not been inflicted on him.’
Consequently, “[w]hen property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage ...”
[]
These basic precepts have been reaffirmed and strengthened indirectly by the Declaration of the Right to Property of our state constitution. Article I, Section 4 of the Louisiana Constitution of 1974, in pertinent part, provides:
“Every person has the right to acquire, own, control, use, enjoy, protect, and dispose of private property.... Property shall not be taken or damaged by the state or its political subdivisions except for public purposes and with just compensation paid to the owner or into court for his benefit ...”
Thus our constitution does not simply require that the owner of condemned or damaged property be compensated with the market value of the property taken and severance damage to his remainder, but that he be “compensated to the full extent of his loss’ and ‘placed in as good a position pecuniarily as [he] enjoyed prior to the taking.” Accordingly, justice, reason, and the principle of full reparation of Louisiana Civil Code article 2315 require that where an individual’s property is damaged unlawfully by a tortfeasor for no good reason, he be compensated at least as fully as when his property is damaged by the [4state for a public purpose pursuant to the owner’s obligation of citizenship to the community.

I do not believe the legislature intended to abrogate these fundamental precepts of property rights in enacting La.R.S. 8:4281.1. It should not be applied so as to limit plaintiffs’ full recovery for all of their losses to the treble damages plus attorney fees calculated on the fair market value of the trees as timber wrongfully cut. The statute is clearly punitive in nature and sets forth punitive damages for a defendant’s bad faith behavior for the loss of the timber. Hornsby, 902 So.2d at 369. Nowhere does the statute limit or deny plaintiffs recovery of any other general damages to which they may be entitled, recovery for which is the only means to make these Plaintiffs whole.

Additionally, if Defendant faces only the payment of the fair market value of the timber cut, plus treble damages and attorney fees, this case demonstrates that the amount of such damages does little to discourage the intentional, bad faith, tortious destruction of a plaintiffs property by a willful defendant. The Defendant in this case was told to stop cutting the trees but willfully proceeded to cut the timber and leave Plaintiffs’ property in a deplorable condition. I believe the majority’s decision sends the wrong message to the people of this state, i.e. that plaintiffs faced with a similar scenario can only protect their property from eminent destruction/desecration by threat of force against the illegal trespasser rather than rely on our courts to resolve such disputes. When Defendant was told not to cut the trees because they were on Plaintiffs’ property, Defendant could and should have proceeded to court if they truly |sbelieved they were the rightful owner of the disputed property. Instead, they proceeded to decimate Plaintiffs property and get what they wanted to get for their use. Defendants willfully deprived Plaintiffs of their constitutional right to “own, control, use, enjoy, protect, and dispose of’ their property and the limited award proposed by the majority falls far short of full compensation for these Plaintiffs’ loss and is an insufficient deterrent to stop such behavior in the future. Plaintiff is an elderly lady who in all probability cannot live long enough to allow nature to return her property to the state in which she was enjoying it before Defendant’s willful trespass. This simply cannot be what the legislature intended. Such intent runs afoul of our citizens’ constitutional property rights and our fundamental precepts of full compensation for a loss occasioned by the fault of another.

Because the trial court awarded what it called restoration damages it did not make an award for any other general damages. I believe this case should be remanded in part to the trial court for a determination of an amount of general damages for loss of use and for any other general damages to which Plaintiffs may be entitled, including removal of the stumps. I respectfully dissent from that portion of the decision which limits Plaintiffs’ recovery and leaves Plaintiffs without full compensation for their loss.

      . The record indicates that Mr. Sagnibene died during these proceedings. The court substituted Mrs. Sagnibene, as the independent administratrix of the Succession of Angelo Sagnibene, as the party plaintiff,

      . By virtue of these two transfers the record refers to the plaintiffs as owning a 39.5 acre tract.

      . In its reply brief, the defendant disputes that the property description referenced by the trial court is the one upon which it relies. It instead asserts that the 1977 Friedberg/Mon-crief Act of Exchange provides it with justicia-ble title. This latter description provides as follows:
      Section 33.
      All of the West Half (W-l/2) of Section Thirty Three (33); South of the midpoint of Bayou Rouge, less and except 3.71 acres sold to Preston Leger by Act No. 340689, records of St. Landry Parish, Louisiana, and less and except 0.23 acres sold to Edgar Bertrand by Act No. 340688 of records of St. Landry Parish, Louisiana, both sales dated December 31, 1953.

      . As further addressed below, Mrs. Sagnibene testified that, over ten years prior to trial, she placed brown paint on what she felt was her border after the defendant had freshly placed yellow paint on the border.

      . La.Civ.Code art. 3473 provides that ”[o]wn-ership and other real rights in immovables may be acquired by the prescription of ten years.”

      . Mr. Culpepper’s report indicates that the actual figure is $13,359. This correct figure is reflected in the total amount awarded in the judgment.

      . The reasons indicate that this figure “includes three times the market value of the trees totaling $40,077 and restoration costs of $288,998.”

      . Although the plaintiff sought restoration damages for the removal of stumps and the return of the grade after the timber harvesting, the trial court did not award damages associated with the planting of trees.

      .Louisiana Civil Code Article 2315(A) provides that "[ejvery act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”

      . The defendant’s expert valued the timber removed at $8,640 whereas the plaintiff assumed the value of the timber as $13,359.


source: Caselaw Access Project

author: AMY, Judge. SAUNDERS, Judge,

license: Public Domain

text:
    STATE of Louisiana in the Interest of C.M.
    Nos. 11-54.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.
    Rehearing Denied July 13, 2011.

      Lloyd Dangerfield, Lafayette, LA, for Appellant, N.M.M.
    Vivian Neumann, Lafayette, LA, for Ap-pellee, J.A.
    Allyson Prejean, Lafayette, LA, for Ap-pellee, C.M.
    Tamara Rahim, State of Louisiana, Department of Social Services, Lafayette, LA, for Appellee, State of Louisiana, Department of Social Services.
    Michelle Breaux, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR and MARC T. AMY, Judges.
   AMY, Judge.

11 The State sought termination of parental rights of the appellant’s two minor children, alleging that she failed to substantially comply with the assigned case plan in a number of respects. The trial court granted the termination, finding both a failure to substantially comply with the case plan and that the termination was in the best interests of the children. The mother appeals.' For the following reasons, we affirm.

Factual and Procedural Background

This case involves the termination of parental rights of the two minor children of the appellant, N.M.M. and the children’s father, J.A. The record indicates that N.M.M.’s daughter, A.A., died nineteen days after her birth. The State of Louisiana, through the Department of Children and Family Services, took N.M.M.’s older child, C.M. (born in November 2007), into custody the following day. The associated instanter order reported that “the agency was already working with [N.M.M.] due to. an earlier report at which time she used cocaine and admitted to having thoughts of wanting to harm [C.M.] because she could not handle his crying.” On January 13, 2009, C.M. was adjudicated a child in need of care.

Thereafter, on September 3, 2009, N.M.M. gave birth to a daughter, P.A. The State took P.A. into custody on September 16, 2009. The related instanter order reported that the State received information from personnel at the hospital where P.A. was receiving treatment for a breathing problem that N.M.M. had displayed poor parenting techniques, had not taken an active role in the child’s care at the hospital, failed to participate in the child’s feeding, and was “very rough with the in-fante.]” _[gThe personnel also reported to the State that N.M.M. left the hospital for an extended period. P.A. was adjudicated a child in need of care on December 15, 2009.

In July 2010, the State filed a Petition for Termination of Parental Rights and Certification for Adoption regarding both children. The State alleged that termination of the parents’ parental rights to both children was appropriate pursuant to La.Ch.Code art. 1015(4) and La.Ch.Code art. 1015(5) and, further, that termination of those rights was in the best interests of the children. After a September 2010 trial, the trial court determined that the State satisfied its burden and entered judgment terminating the parents’ rights and certifying the minor children free and eligible for adoption.

N.M.M. appeals the judgment as to both children, although J.A. has not done so. N.M.M. assigns the following as error:

1. The trial court erred in terminating the rights of N.M.M. for substantial non-compliance when she had completed several components of the case plan and OCS failed to prove by dear and convincing evidence there was no reasonable expectation for further improvement in N.M.M.’s condition or conduct.
2. The trial court erred in terminating the rights of N.M.M. regarding P.A., the younger child, when she had not been in OCS’s care for more than one year at the time of filing the petition for termination.
3. The trial court erred in finding that termination was in the best interest of the children when considering the relationship with N.M.M.

^Discussion

Termination of Parental Rights

In considering a case involving the termination of parental rights, a court considers two elements pertinent to the termination analysis. First, pursuant to La.Ch. Code art. 1015, the State must prove one of the enumerated grounds for termination contained within that provision. The State must do so by clear and convincing evidence. La.Ch.Code art. 1035. Thereafter, the court determines if termination is in the best interests of the child pursuant to La.Ch.Code art. 1037(B). On appeal, we review the trial court’s findings as to whether a parent’s rights should or should not be terminated pursuant to the manifest error standard. State in the Interest of K.G. and T.G., 02-2886 (La.3/18/03), 841 So.2d 759.

Louisiana Children’s Code Article 1015(5)

N.M.M. first contests the trial court’s determinations regarding the grounds for termination. Her argument in this regard is comprised of two aspects of Article 1015(5), one of the grounds for termination included in the judgment. First, she argues that the trial court erred in finding substantial noncompliance with the case plan. She asserts that, instead, she completed several requirements of the case plans. Further, she contests the determination that there was no reasonable expectation of significant improvement in her condition or conduct.

[4As it relates to this assignment, La.Ch. Code art. 1015 instructs that:

The grounds for termination of parental rights are:
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

(Emphasis added.)

Lack of Substantial Parental Compliance

On the issue of a lack of parental compliance with the case plan, La.Ch.Code art. 1036(C) provides that:

Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.

IfiThe case plans throughout these proceedings required N.M.M. to: maintain a safe and stable home for herself and her family; demonstrate proof of income; contribute $50 per month to support the children while in foster care; demonstrate self-awareness of her mental health issues , including following all recommendations of the doctor and taking medications as appropriate; attend substance abuse support meetings on a regular basis; submit to random drug screens by the State; demonstrate what she learned in her parenting classes; and attend all visits with the children and be on time. By August 2009, N.M.M.’s case plan also required that she attend and complete anger management class through the Family Violence Intervention Program.

In its reasons for ruling, the trial court addressed the parents’ compliance with the case plans, stating:

The parents have both failed to provide adequate housing for the children and have both failed to address their substance abuse issues. The mother continues to abuse prescription medication while pregnant [with] another child. The father has failed to attend an alcohol abuse treatment program. The mother still struggles with mental issues and has failed to attend her appointments regularly. The father has not addressed his anger management problems.

The record supports the trial court’s determination that the State presented clear and convincing evidence that she failed to substantially comply with her case plan.

N.M.M. contends that she demonstrated compliance with the case plan in a number of areas, particularly early in these proceedings when C.M. was initially placed in the State’s custody. However, the record demonstrates that N.M.M.’s compliance, such as it was, deteriorated thereafter and left only sporadic compliance with elements of the case plan.

| fiNotably, N.M.M. failed to supply adequate housing for herself and for her family as was required. Instead, she and J.A. lived in her mother’s two bedroom apartment. She and J.A. slept in one bedroom, while her mother slept in the remaining bedroom. N.M.M.’s case worker, Christopher Simmons, explained that the home had “some debris around it” and that it is “just not safe for young children.” Additionally, there was no room for the children in the event they were returned.

Also, when asked whether N.M.M. demonstrated an ability to provide income as was required by the plan. He stated that, while N.M.M. had indicated that she was employed, she never offered proof or verification of that work. Instead, testimony, including that of N.M.M., indicted that J.A. provided the couple’s financial support. The record lacks other proof of N.M.M.’s compliance with this aspect of her plan.

Turning to the requirement that N.M.M. make a monthly $50 contribution to support her children while they were in foster care, the evidence indicates that she consistently failed to do so. Instead, Mr. Simmons reported that N.M.M. had failed to financially contribute to the costs of care. He had, however, observed her present the children with gifts during her visits with them. The nature of these gifts was not explained in the record nor proven to be a meaningful contribution to the children’s care.

Further, the State also demonstrated lack of substantial compliance with its requirements that N.M.M. follow physician recommendations regarding her mental health issue and that she take prescribed medications. Instead, the record indicates that, after an initial psychological assessment, N.M.M. began receiving treatment at the Dr. Joseph Henry Tyler, Jr. Mental Health Care Center and did so sporadically. |7At trial, N.M.M. testified that she complied with her recommended mental health treatment. However, she explained that she could not do so while she was pregnant, as she was at trial, because “they don’t allow you to be on medication.” She further admitted to missing “one or two” appointments at the health center.

However, the Tyler Mental Health records, admitted into evidence under seal, indicated that medications were prescribed to her during her pregnancy and that she had taken them at times. By her appointment in July 2010, N.M.M. reported that she was taking her medications routinely before she ran out of them. At that time, she admitted to taking more than prescribed. During that appointment, she expressed her preference for a particular medication. The clinic’s record from that visit indicated that she was advised to continue her medications and that N.M.M. expressed a desire “to continue meds during pregnancy.” This evidence, as well as evidence of inconsistent medical health treatment throughout, indicates that N.M.M. failed to demonstrate self awareness of her mental health condition and that she further failed to follow the recommendations of her physician regarding use of medication.

As for those aspects of her case plan regarding substance abuse, N.M.M. admitted that she had not continued to attend substance abuse support meetings. This was confirmed by Mr. Simmons who testified that N.M.M. attended “a couple of NA classes, but there was no verification that was ever produced to the agency that she had attended those classes.” N.M.M. explained that she became uncomfortable with the location for her preferred meeting. Yet, it is unquestioned that she did not resume her classes or find an alternative location. Mr. Simmons also confirmed that N.M.M. had two drug tests that were considered positive. The first, in January 2010, was 1 sconsidered positive because she “did not go” and that “[s]he had informed the agency that she would test positive for Lortabs.” Thereafter, in July 2010, N.M.M. again failed to arrive for the drug screen, resulting in the State’s consideration of the screen as a positive. Finally, at trial, N.M.M. admitted taking non-prescribed Xanax and Soma during the two days preceding trial. While N.M.M. points to the instances in which she sporadically attended substance abuse meetings and had negative drug screens, the record clearly supports a determination that she failed to substantially comply with this aspect of the case plan.

As for the components addressing N.M.M.’s development of her parenting skills, it is uncontested that she completed her parenting class. However, Mr. Simmons testified that N.M.M. only complied “somewhat” with her scheduled visitations with the children. He reported that there were “several missed visits in which [N.M.M. and J.A.] did not show at all, and the kids were at the office.” He later testified that she only attended about half of the visits. Again, this evidence supports the determination that N.M.M. failed to substantially comply with her case plan insofar as she did not regularly attend her scheduled visitation.

Finally, the case plan required N.M.M. to attend anger management classes. Neither N.M.M. nor J.A. did so. Mr. Simmons testified that this was of particular concern with regard to N.M.M. because of her bipolar diagnosis and due to a medical report indicating that she had thoughts of harming C.M. while he was still in her care. Mr. Simmons confirmed that, despite the State having made between four and six agency referrals for anger management, N.M.M. failed to attend. Thus, the record indicates full noncomplianee with this final component of the case plan.

|nIn sum, the State presented evidence that N.M.M. failed to fulfill numerous components of the case plan. While La.Ch. Code art. 1036(C) indicates that substantial compliance can be demonstrated through proof of one of its enumerated factors, it is clear that, in this case, the State proved by clear and convincing evidence that N.M.M. failed to substantially comply with the case plan in numerous respects.

Reasonable Expectation of Significant Improvement

N.M.M.’s remaining argument under this assignment is that the trial court erred in finding that the State proved La. Ch.Code art. 1015(5)’s requirement that “there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future[.]”

In this regard, La.Ch.Code art. 1036(D) explains that:

D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(1) Any physical or mental illness, mental deficiency, substance abuse, or chemical dependency that renders the parent unable or incapable of exercising parental responsibilities without exposing the child to a substantial risk of serious harm, based upon expert opinion or based upon an established pattern of behavior.
(2) A pattern of repeated incarceration of the parent that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time.
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

Certainly the record supports a view that N.M.M.’s pattern of behavior evidences a lack of reasonable expectation of improvement pursuant to Article 1036(D)(3). In short, N.M.M.’s pattern of behavior has demonstrated that she has been either unable or unwilling to progress in various components of her case plan |inso as to indicate that she will be able to provide an adequate permanent home for the children. Instead, her compliance with the case plan was consistently deficient.

This assignment lacks merit.

Custody of Less than One Year

In her second assignment, N.M.M. asserts that termination was inappropriate as to her parental rights of P.A., because the child had not been in custody for more than one year when the petition to terminate parental rights was filed.

This argument focuses on termination under La.Ch.Code art. 1015(5), which requires that, in addition to the other elements, the State prove that: “Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order[J” However, we note that the judgment terminated parental rights pursuant to La.Ch.Code art. 1015(4) in addition to termination pursuant to La.Ch. Code art. 1015(5). Paragraph (4) does not require that one year has elapsed since a child was removed from the parent’s custody. Instead, La.Ch.Code art. 1015(4) provides the following ground for termination:

Abandonment of the child by placing him in the physical custody of a nonpar-ent, or a department, or by otherwise leaving him under circumstances demonstrating an intention to permanently avoid parental responsibility by any of the following:
(b) As of the time the petition is filed, the parent has failed to provide significant contributions to the child’s care and support for any period of six consecutive months.

It is clear that N.M.M. failed to provide significant contributions to P.A.’s care and support, despite the case plan’s requirement that she make $50 contributions while Inthe children were in foster care. Instead, the record indicates that N.M.M. made no contributions in this regard. Although Mr. Simmons testified that he had seen N.M.M. provide the children with gifts, there is no indication that these gifts were in the nature of significant contributions to the child’s care.

Accordingly, we find no merit in this assignment.

Best Interest

As stated, in addition to the State being required to prove at least one ground for termination, it was also required to prove that termination was in the best interest of the children. La.Ch.Code art. 1037(B). N.M.M. challenges the trial court’s determination in this regard.

In ruling, the trial court noted that “the children are bonded with their foster parents, and termination of parental rights would be in their best interests.” The record supports this finding. In addition to Mr. Simmons’ testimony regarding N.M.M.’s failure to substantially comply with the components of the case plan, he further testified that he had observed the children in their foster placement. He explained that: “They are real [sic] bonded to the foster parents. You can tell there’s a huge attachment between the kids and the foster parents.” He confirmed, too, that C.M. and P.A. were bonded with the foster parents’ biological child as well. He explained that the foster parents met all of the children’s needs and that, in his opinion, their continued custody in that environment was in their best interest.

Similarly, CASA volunteer Nicole Holmes explained that she had observed the children in their foster home and during their meetings with N.M.M. and J.A. She 112testified that she had witnessed the children become less bonded to their biological parents and that they have become more timid in their interactions with them. She stated that the increase in bonding with the foster parents “has been tremendous.” Ms. Holmes stated that the children “feel very securely bonded in that home.” Ms. Holmes also expressed concern regarding several aspects of N.M.M.’s conduct, including a recent missed drug screen, a lapse in mental health treatment, a recent domestic dispute between N.M.M. and J.A., and N.M.M.’s failure to attend an anger management program. Like Mr. Simmons, Ms. Holmes opined that termination would be in the children’s best interest.

In light of the evidence in the record, we find no manifest error in the trial court’s determination that termination was in the best interests of the children. This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the appellant, N.M.M.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

SAUNDERS, Judge,

dissents and assigns written reasons.

b The record, as I read it, does not support the conclusion that there is no reasonable expectation of significant improvement in the mother’s condition or conduct. Accordingly, I do not believe that the State has met its burden of proof, and I respectfully dissent.

      . The initials of the minor children and the parents are used herein pursuant to Uniform Rules — Courts of Appeal, Rule 5-2. See also Uniform Rules — Courts of Appeal, Rule 5-1.

      . The record indicates that the cause of death was not determined.

      . Formerly the Department of Social Services.. See La.R.S. 36:471.

      . We discuss both matters herein. For the decree regarding this court's ruling as to P.A., see the companion case in State of Louisiana

        in the Interest of P.A., 11-55 (La.App. 3 Cir.6/1/11), 68 So.3d 55.

      . La.Ch.Code art. 1037(B) provides that:
      When the court finds that the alleged grounds set out in any Paragraph of Article 1015 are proven by the evidentiary standards required by Article 1035 and that it is in the best interests of the child, it shall order the termination of the parental rights of the parents against whom the allegations are proven. The court shall enter written findings on both issues. The consideration of best interests of the child shall include consideration of the child’s attachment to his current caretakers.

      . The record demonstrates that N.M.M. has been diagnosed as having bipolar disorder.

      . Reports to the trial court contained in the record indicate that she had "not made any parental contributions since June 29, 2009."

      . The trial at issue was conducted on September 9, 2010.

      . The record indicates that P.A. was taken into custody on September 16, 2009. The petition for termination was filed on July 26, 2010.

      . Instead, the State’s report to the trial court indicated that N.M.M. had made no parental contributions since June 29, 2009. As P.A. was not bom until September 2009, it is clear these earlier contributions were not related to P.A., but were related to C.M. instead.


author: AMY, Judge.

text:
    STATE of Louisiana in the Interest of P.A.
    Nos. 11-55.
    Court of Appeal of Louisiana, Third Circuit.
    June 1, 2011.
    Rehearing Denied July 13, 2011.

    Lloyd Dangerfield, Lafayette, LA, for Appellant N.M.M. .
    Vivian Neumann, Lafayette, LA, for Ap-pellee J.A.

      Allyson Prejean, Lafayette, LA, for Ap-pellee C.M.
    Tamara Rahim, State of Louisiana, Department of Social Services, Lafayette, LA, for Appellee State of Louisiana, Department of Social Services.
    Michelle Breaux, Assistant District Attorney, Lafayette, LA, for Appellee State of Louisiana.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR and MARC T. AMY, Judges.

      Saunders, J., would grant rehearing.

   AMY, Judge.

|¶ For the reasons expressed in the companion case of State of Louisiana in the Interest of C.M., 11-54 (La.App. 3 Cir. 06/01/11), 68 So.3d 47, the judgment of the trial court is affirmed. All costs of this appeal are assessed to the appellant, N.M.M.

AFFIRMED.

SAUNDERS, Judge, dissents and assigns written reasons.

The record, as I read it, does not support the conclusion that there is no reasonable expectation of significant improvement in the mother’s condition or conduct. Accordingly, I do not believe that the State has met its burden of proof, and I respectfully dissent.


author: RANDOLPH, Justice,

text:
    In the ESTATE OF Cynthia WALLACE, Deceased, Personal Representative Louis M. Wallace v. Emad H. MOHAMED, M.D., Bristol Myers Squibb Company and Sanofi Synthelabo, Inc.
    No. 2009-CT-00132-SCT.
    Supreme Court of Mississippi.
    Aug. 25, 2011.
    See also 55 So.3d 1088.
    Shirley C. Byers, Jackson, attorney for appellant.
    Diane V. Pradat, L. Carl Hagwood, Walter T. Johnson, Joseph George Baladi, Jackson, attorneys for appellees.
   ON WRIT OF CERTIORARI

RANDOLPH, Justice,

for the Court:

¶ 1. Louis Wallace filed a suit in the Circuit Court of Lowndes County, Mississippi, styled Louis Wallace, Personal Representative of the Estate of Cynthia Wallace v. Dr. Emad Mohamed, alleging wrongful death as the cause of action. After discovering evidence that Louis was never legally married to Cynthia, Mohamed moved to intervene in the estate proceedings in the Chancery Court of Lowndes County, Mississippi. The chancellor allowed the intervention, considered the evidence, and removed Wallace as the administrator, and in his stead, appointed the Chancery Clerk of Lowndes County. Subsequently, Mohamed moved to dismiss the wrongful death action, claiming Wallace lacked standing to bring the suit on behalf of the estate. The circuit court granted the motion and dismissed the wrongful death action “since Plaintiff lacked standing to commence the suit,” and “the Plaintiff lack[ed] standing as a wrongful death beneficiary and there being rightful beneficiaries available to commence a new suit.”

¶ 2. Subsequently, Wallace appealed the chancery court’s decision to allow Mohamed to intervene in the estate proceedings, as well as the decision to remove Wallace as estate administrator. The Mississippi Court of Appeals reversed both chancery court rulings and remanded the case with instructions to reinstate Wallace as the estate administrator. See Estate of Wallace ex rel. Wallace v. Mohamed, 55 So.3d 1088 (Miss.Ct.App.2010).

¶ 3. Wallace then appealed the circuit court’s judgment, which had granted Mohamed’s motion to dismiss the wrongful death suit. The Court of Appeals, relying on its decision in the chancery court appeal, reversed the circuit court and held that Wallace had standing to file a wrongful death action on behalf of the estate. See Estate of Wallace v. Mohamed, 68 So.3d 64 (Miss.Ct.App.2010).

¶ 4. Mohamed first filed a petition for writ of certiorari from the decision of the Court of Appeals reinstating Wallace as the estate administrator, which this Court granted. See Wallace v. Mohamed, 49 So.3d 106 (Miss.2010). This Court reversed the Court of Appeals and reinstated the decision.of the chancellor, finding that the chancellor did not abuse his discretion in removing Wallace as the estate administrator. See Estate of Wallace ex rel. Wallace v. Mohamed, 55 So.3d 1057 (Miss. 2011) (“Wallace I”). Mohamed now appeals the decision of the Court of Appeals that reversed the circuit court’s dismissal of the wrongful death suit.

ANALYSIS

¶ 5. Mohamed argues that Wallace lacked standing to bring the wrongful death action. Mississippi Code Section 91-7-233 states, in pertinent part, that “administrators ... may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted.” Miss.Code Ann. § 91-7-233 (Rev.2004). Also, Mississippi Code Section 11-7-13 states that an action for damages in a wrongful death suit may be brought “in the name of the personal representative of the deceased person.... ” Miss. Code Ann. § 11-7-13 (Rev.2004).

¶ 6. “[Standing is to be determined as of the commencement of suit.” Delta Health Group, Inc. v. Estate of Pope ex rel. Payne, 995 So.2d 123, 126 (Miss.2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 571, 112 S.Ct. 2130, 2142, 119 L.Ed.2d 351, 371 (1992)). Consistent with our prior holdings, Wallace was the administrator of the estate at its commencement. When he was removed, the chancery court was not asked to vacate his actions prior to removal or to enter a nunc pro tunc order appointing the new administrator. The new administrator was appointed in the same order. Thus an estate with a court-appointed administrator existed at all relevant times.

¶ 7. The circuit court correctly dismissed Wallace from the circuit court action, for he was neither a personal representative of the estate nor a wrongful death beneficiary. (As requested by the defendants in their Motion for Partial Summary Judgment noticed but not heard on the same date as the Motion to Dismiss). However, the trial court erred in dismissing the wrongful death action brought by the estate and on behalf of the wrongful death claimants who were seeking a trial date at the same hearing.

¶ 8. As stated in the Court of Appeals opinion in this case, “according to Dr. Mo-hamad, Wallace is not entitled to recover for [Cynthia Wallace] Gilkey’s death, and he is not [her] estate’s representative.” Based on its prior opinion, the Court of Appeals rejected this proposition and remanded to the circuit court for further proceedings, holding that Wallace was wrongfully removed as the administrator. Our reversal of Estate of Wallace ex rel. Wallace v. Mohamed, 55 So.3d 1088 (Miss.Ct.App.2010), affirming the decision of the chancellor, validates Mohamed’s argument. Wallace is not entitled to recover for Cynthia Wallace’s death, and Wallace is not the estate’s representative. Our decision in Wallace I dictates the case shall proceed, albeit without Mr. Wallace. We conclude the circuit court erred in dismissing the case, but find no error in dismissing Wallace.

CONCLUSION

¶ 9. We vacate the decision of the Court of Appeals and reverse the circuit court’s decision to dismiss the wrongful death suit. Accordingly, we remand this case to the Circuit Court of Lowndes County for proceedings consistent with this opinion.

¶10. REVERSED AND REMANDED.

WALLER, C.J., CARLSON AND DICKINSON, P.JJ., LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.

      . Plaintiff's counsel argued this at the hearing on defendant’s Motion to Dismiss.

      . Counsel for the plaintiff stated at the hearing "we should be allowed to substitute the new representative of the estate, which is the chancery clerk,” but neither moved ore terms, nor filed a motion to do so.


text:
    RIVERBEND UTILITIES, INC. v. Hugh Edward BRENNAN and Shanda Melissa Brennan, Meranda Ivy Brennan, and Sarah Elizabeth Marut.
    No. 2010-IA-00131-SCT.
    Supreme Court of Mississippi.
    Aug. 25, 2011.

      Brenda G. Long, Michael Bryan Dickinson, Gulfport, attorneys for appellant.
    Harry Vincent Satterwhite, Brian Thomas Pugh, attorneys for appellees.
    Before WALLER, C.J., RANDOLPH and CHANDLER, JJ.
   RANDOLPH, Justice,

for the Court:

¶ 1. In this interlocutory appeal, River-bend Utilities alleges that the trial court erred by: (1) adding Arch Insurance Company as an involuntary counterplaintiff, and (2) ordering Riverbend to make four individuals available for deposition.

FACTS AND PROCEDURAL HISTORY

¶ 2. In August 2006, sewage backed up into a home occupied by Hugh Brennan, Shanda Brennan, Meranda Brennan, Diana Marut, and Sarah Marut (“the Bren-nans”) in Saucier. The Brennans reported the problem to Riverbend, which provided their water and sewer services. River-bend and its insurance carrier, Arch, paid approximately $40,000 for cleanup, repair, storage, and claims for damages. River-bend paid approximately $2,000 and Arch paid approximately $10,000 directly to vendors, with the remaining $28,000 paid directly to the Brennans by Arch.

¶ 3. In March 2008, the Brennans sued Riverbend, alleging negligence. During discovery, Riverbend learned that the Brennans’ home had suffered damage from Hurricane Katrina in August 2005. In August 2009, with leave of the trial court, Riverbend counterclaimed, alleging that the Brennans had submitted the same invoices to Riverbend that they previously had submitted to their homeowner’s insurance provider, and that they had been paid by that insurer.

¶4. In September 2009, the Brennans’ attorney stated the following in a letter:

We will now file a motion to have the insurance carrier named as a party in interest in this case. Strategically, we believe fighting against a large corporation and its insurance carrier will probably be easier than fighting the corporation alone. We believe this is a good development in presenting this case to the jury as well.

In October 2009, the Brennans filed a “Motion to Add [Arch] as a Real Party in Interest,” requesting that the trial court order Arch to “be made a party Counter-plaintiff in this action, or in the alternative, if [Arch] refuses to join as Counterplain-tiff, it be added as a Defendant as provided by Rule 19(a) Miss.R.Civ.P.” The Bren-nans now state that they filed the motion “for it to be clear on the record that [Arch] is the party that the alleged fraud was committed against....” As a part of its response to the Brennans’ motion, River-bend attached Arch’s “Rule 17 Certificate of Ratification,” which was dated November 3, 2009. See Miss. R. Civ. P. 17. It stated:

[Arch], pursuant to Rule 17(a) ..., hereby ratifies [Riverbend]’s commencement of Counter-Claim against [the Bren-nans] and assigns its subrogation claims to Riverbend and agrees that Riverbend continue to prosecute the CounterClaim on ARCH’s behalf for its benefit and further agrees to be bound by the final determination in this case.

¶ 5. In December 2009, the trial court heard argument on the motion to add Arch, as well as a motion to compel River-bend to answer interrogatories. The Brennans alleged that Riverbend had not answered questions related to the invoices at issue. The Brennans claimed also that they had not had an opportunity to depose certain employees of Arch and its agents. From the bench, the trial court granted the motion to compel Riverbend to answer the interrogatories and ordered River-bend’s attorney to “[g]ive [the Brennans] all the names of anybody who knows anything about this counterclaim. [Their attorney will] take depositions of them.” Later, the trial court told the Brennans’ attorney to “[t]ake their depositions if you want.”

¶ 6. On the motion to add Arch, the Brennans argued that, “because [Arch] maintains a pecuniary interest in this case, ... they’re clearly a party to this case.” In answer to a question from the trial court, Riverbend acknowledged that River-bend and Arch had reached an agreement on how to divide the judgment if River-bend were to prevail. Based on this statement, the trial court found that Arch had a pecuniary interest in the case in spite of the Rule 17 Certificate of Ratification.

¶ 7. On January 5, 2010, the trial court issued its order, as follows:

The Court finds that [Arch] has a pecuniary interest in the outcome of the Counterclaim. [The Brennans]’ motion to Add [Arch] as a Real Party in Interest is GRANTED. [Arch] shall be added to this cause as a Counterplaintiff.
[The Brennans]’ Motion to Compel [Riverbend] to Properly Answer ... Interrogatories is GRANTED. [River-bend] shall fully and specifically answer Interrogatories ... within 10 days of the date of this Order. Furthermore, [Riverbend] shall make the following persons available for deposition before January 29, 2010: Bryan Wakefield, La-raine Allred, Jeffrey Davis and Rick Pridgen.

(Emphasis in original.)

¶ 8. On January 28, 2010, the trial court stayed all proceedings based on River-bend’s filing of this interlocutory appeal. Riverbend appealed both issues. This Court granted an interlocutory appeal.

ISSUES

¶ 9. The issues are:

I. Whether the trial court abused its discretion in joining Arch as an involuntary counterplaintiff.
II. Whether the trial court abused its discretion in compelling Riverbend to make available for deposition individuals who are not its employees, not parties, and not residents of Mississippi.

ANALYSIS

¶ 10. “The standard of review regarding joinder ... is abuse of discretion.” Dillard’s, Inc. v. Scott, 908 So.2d 93 (Miss.2005) (citing Ill. Cent. R.R. v. Travis, 808 So.2d 928, 931 (Miss.2002)). “[I]n discovery matters trial courts have considerable discretion and should be reviewed with great deference.” Cucos, Inc. v. McDaniel, 938 So.2d 238, 242 n. 1 (Miss.2006) (citing Allen v. Nat’l R.R. Passenger Corp., 934 So.2d 1006, 1008-09 (Miss. 2006)).

I. Whether the trial court abused its discretion in joining Arch as an involuntary counterplaintiff.

¶ 11. The trial court found that Arch would benefit if Riverbend prevailed on its counterclaim. Thus, it ordered that Arch should be joined as an involuntary counterplaintiff based on the Brennans’ motion to add Arch as a real party in interest.

¶ 12. Riverbend argues that this case is controlled by this Court’s holding in Turner v. Haynes, 489 So.2d 494 (Miss.1986), and that the’trial court erred by not giving effect to Arch’s ratification. In part, Rule 17 provides the following:

(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his representative capacity without joining with him the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Miss. R. Civ. P. 17(a).

¶ 13. In Turner, an insured brought a negligence case, which was dismissed under Rule 17(b) after she refused to join her insurer. Turner, 489 So.2d at 495. Compulsory joinder was never at issue in Turner. This Court found that the function of Rule 17 was to “protect litigants from harassment and multiple suits by persons who would not be bound by the principles of res judicata and to enable the defendant to present his defenses against the proper persons and to proceed to finality of judgment.” Id. at 496. This Court found that Rule 17(b) was inapplicable, as no party was claiming subrogation rights. Id. at 497. Applying Rule 17(a), this Court reversed the dismissal. Id. at 497-98. The Court applied the rule’s language that ratification has the same effect as if the suit had been brought originally by the real party in interest. See Miss. R. Civ. P. 17(a). This Court held the following:

[The insurer] assigned its interest to [the insured] and waived the right to participate in this action. [Insurer] is looking entirely to [insured] for reimbursement in the event of a successful termination of the suit. Just as in [Peyton v. Pascagoula Drayage Co., 69 F.R.D. 19 (N.D.Miss.1975) ], “the carrier has assigned to the plaintiff whatever rights it may have by virtue of its subro-gation and has chosen, instead, to rely upon its contractual right against the plaintiff in the event of a recovery.” [Id. at 20.] This Court holds that [insurer] has ratified the action of [insured] and is no longer a real party in interest as contemplated by Mississippi Rule 17(a). Our holding is strengthened by the fact that [defendant] does not face a subsequent judgment from [insurer] for reimbursement of monies paid to [insured]. Likewise, [defendant] has no defenses against [insurer] that it does not have against [insured]. It appears unnecessary to require [insurer] to participate, expend legal fees and time in a lawsuit in which it has only a contingent interest against [insured], not ... the defendant.”

Turner, 489 So.2d at 497-98.

¶ 14. Turner is directly on point with this case. Arch ratified the actions of Riverbend, waived the right to participate, assigned any claim it might have to River-bend, and agreed to be bound by the result. Arch looks to Riverbend via a contractual right for recovery. Thus, Arch is not a real party in interest in the counterclaim against the Brennans. The purpose of Rule 17 is met; the Brennans will not be subject to further litigation, as collateral estoppel will prevent Arch from reversing its agreement to be bound by the final determination. See Turner, 489 So.2d at 496; James v. Nashville Bridge Co., 74 F.R.D. 595, 597 (N.D.Miss.1977).

¶ 15. The Brennans attempt to distinguish Turner by pointing out that the insurer in that case ratified before the lawsuit was filed, while Arch ratified after the Brennans moved to add it as a party. However, the language of Rule 17(a) defeats this argument, allowing for a reasonable time “after objection for ratification.” Miss. R. Civ. P. 17(a). Indeed, this Court has recognized ratification subsequent to judgment. See Kirk v. Pope, 973 So.2d 981, 989 (Miss.2007) (quoting Jenkins v. Wright & Ferguson Funeral Home, 215 F.R.D. 518, 522 (S.D.Miss.2003) (“A valid ratification requires the ‘ratifying party to authorize continuation of [the] action and agree to be bound by the result.’ ” ) Thus, we find that the trial court erred in ordering that Arch be made a party to the counterclaim.

II. Whether the trial court abused its discretion in compelling River-bend to make available for deposition individuals who are not its employees, not parties, and not residents of Mississippi.

¶ 16. Riverbend argues that the order creates an “undue burden of being required to produce individuals who are not employed with Riverbend, and whom Riverbend has no control over.” River-bend argues that, as a good-faith effort to comply with the order, it had forwarded the notices, and that it had asked the individuals voluntarily to submit to a deposition, but all four declined. Riverbend argues that it has no ability to require them appear for deposition, as the four are not parties to the suit, not Riverbend employees, and not Mississippi residents.

¶ 17. The Brennans counter that the trial court has considerable discretion in discovery matters. See Capital One Servs., Inc. v. Page, 942 So.2d 760, 765 (Miss.2006). The Brennans argue that, as Arch is a party, the trial court did not abuse its discretion in ordering Riverbend to produce employees of Arch and its agents for deposition. As the individuals noticed are not parties, Mississippi residents, or Riverbend employees, the trial court abused its discretion in ordering Riv-erbend to be make them available for deposition. See generally Syngenta Crop Prot., Inc. v. Monsanto Co., 908 So.2d 121, 129 (Miss.2005). As the trial court stated, the Brennans may take the deposition of these individuals. In so doing, they should use the normal procedure for taking out-of-state depositions, as provided in Mississippi Rules of Civil Procedure. See Miss. R. Civ. P. 28(a).

CONCLUSION

¶ 18. The judgment of the Circuit Court for the First Judicial District of Harrison County is reversed, and the case is remanded for further proceedings consistent with this opinion.

¶ 19. REVERSED AND REMANDED.

WALLER, C.J., CARLSON, P.J., LAMAR, KITCHENS, CHANDLER, PIERCE AND KING, JJ., CONCUR. DICKINSON, P.J., NOT PARTICIPATING.

      . Diana Marut was voluntarily dismissed with prejudice in March 2009.

      . The same attorney represented Riverbend and Arch.

      . The Brennans contend also that Riverbend’s argument is contrary to its objections to the interrogatories. The attorney who represented Riverbend and Arch objected on the basis of attorney-client privilege. However, this is irrelevant to this Court’s finding on the issue of producing these individuals for deposition.


author: ROBERTS, J.,

text:
    In the ESTATE OF Cynthia WALLACE, Deceased, Personal Representative Louis M. Wallace, Appellant v. Emad H. MOHAMED, M.D., Bristol Myers Squibb Company and Sanofi Synthelabo, Inc., Appellees.
    No. 2009-CA-00132-COA.
    Court of Appeals of Mississippi.
    Sept. 7, 2010.
    Rehearing Denied Dec. 7, 2010.

      Shirley C. Byers, Jackson, attorney for appellant.
    Walter T. Johnson, Diane V. Pradat, Jackson, Joseph George Baladi, L. Carl Hagwood, Jackson, attorneys for appel-lees.
    Before LEE, P.J., BARNES and ROBERTS, JJ.
   ROBERTS, J.,

for the Court:

¶ 1. Louis Wallace filed a wrongful-death suit in the Lowndes County Circuit Court as the administrator of Cynthia Gilkey Wallace’s (Gilkey) estate. Wallace sued Dr. Emad H. Mohamed, Bristol-Myers Squibb Co., and Sanofi-Synthelabo, Inc. Dr. Mohamed intervened in the estate-administration proceedings in the Lowndes County Chancery Court and had Wallace removed as the administrator of the estate. Dr. Mohamed then successfully moved to dismiss Wallace’s wrongful-death suit. Wallace appeals and argues that the circuit court erred when it dismissed the wrongful-death suit. We agree. Therefore, we reverse the circuit court’s judgment to grant Dr. Mohamed’s motion to dismiss. Additionally, we remand this case to the circuit court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. This is the second appeal regarding the events that occurred after Gilkey’s death, although the previous appeal addressed the administration of the estate. See Estate of Wallace ex rel. Wallace v. Mohamed, 55 So.3d 1088 (Miss.Ct.App. 2010). The underlying facts in our previous opinion stated:

On September 29, 2005, Wallace filed a petition for administration, requesting that he be appointed as administrator of Gilkey’s estate. His petition alleged that Gilkey had passed away “as a result of a fatal condition believed to have been caused by medical negligence.” The petition stated that Wallace had “individually, and on behalf of [his and Gilkey’s son, Christopher Wallace], a minor, retained [an attorney] to investigate and prosecute any claim they may have due to the death of [Gilkey].... ” [Gilkey’s daughter], J’Bria[,] joined in Wallace’s petition. On October 4, 2005, the chancery court granted Wallace’s petition and appointed him as the administrator of Gilkey’s estate. The court’s decree stated that Gilkey was “believed to have left as her sole and only heirs[-]at-law, [Wallace] her husband, her natural daughter [J’Bria], an adult, and [Christopher], a minor, her natural son.”

Id. at (¶ 4). As the administrator of the estate, Wallace filed a wrongful-death complaint against Dr. Mohamed. Dr. Mohamed filed a motion to intervene in the estate-administration proceedings. Dr. Mohamed claimed that Gilkey had married Keith Magee on January 12, 1984. Dr. Mohamed further claimed that Gilkey had never been divorced from Magee. Dr. Mohamed reasoned that Wallace was never legally married to Gilkey; therefore, the chancery court should remove Wallace as the administrator of the estate.

¶ 3. The chancellor ultimately granted Dr. Mohamed’s request to remove Wallace as the administrator of the estate. After Dr. Mohamed succeeded in having Wallace removed as the administrator, Dr. Mohamed returned his attention to the circuit court proceedings. Dr. Mohamed filed a motion to dismiss the wrongful-death suit based on the argument that Wallace had no standing to file it because he was not the proper administrator of the estate. The circuit court granted Dr. Mohamed’s motion and dismissed the wrongful-death suit.

¶ 4. Meanwhile, Wallace appealed the chancery court’s decision to allow Dr. Mohamed to intervene in the estate-administration proceedings. Wallace also appealed the chancery court’s decision to remove Wallace as the administrator of the estate. We reversed both of the chancery court’s decisions. Id. at (¶ 20). We then remanded the estate-administration proceedings to the chancery court and instructed the chancellor to reinstate Wallace as the administrator of the estate. Id. Wallace now appeals the circuit court’s judgment, which granted Dr. Mohamed’s motion to dismiss the wrongful-death suit.

STANDARD OF REVIEW

¶ 5. ‘When considering a motion to dismiss, this Court’s standard of review is de novo.” Scaggs v. GPCH-GP, Inc., 931 So.2d 1274, 1275 (¶6) (Miss.2006). “[T]he allegations in the complaint must be taken as true[,] and the motion should not be granted unless it appears beyond doubt that the plaintiff will be unable to prove any set of facts in support of his claim.” Id. (citation omitted).

ANALYSIS

¶ 6. Wallace argues that the circuit court erred when it granted Dr. Mohamed’s motion to dismiss based on the premise that Wallace did not have standing to file the wrongful-death suit. Naturally, Dr. Mohamed argues that the circuit court was correct. According to Dr. Mohamed, ‘Wallace is not entitled to recover for [Gilkeyl’s death, and he is not [her] estate’s representative.”

¶ 7. However, Dr. Mohamed’s argument is grounded on the chancery court’s decision to remove Wallace as the administrator of the estate. As previously mentioned, we reversed the chancery court’s judgment and remanded the estate-administration proceedings with instruction to reinstate Wallace as the administrator of the estate. Estate of Wallace, 55 So.3d at 1093 (¶ 20).

¶ 8. As set forth by Mississippi Code Annotated section 91-7-233 (Rev.2004), “administrators ... may commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecuted.” Mississippi Code Annotated section 11-7-13 (Rev.2004) sets forth that an action for damages in a wrongful-death suit may be brought “in the name of the personal representative of the deceased person.” Furthermore, Mississippi Rule of Civil Procedure 17(a) states that “[a]n ... administrator ... may sue in his representative capacity without joining with him the party for whose benefit the action is brought.”

¶ 9. “[Standing is to be determined as of the commencement of suit.” Delta Health Group, Inc. v. Estate of Pope ex rel. Payne, 995 So.2d 123, 126 (¶ 13) (Miss.2008) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 571, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). “[I]n the event the litigants wish to pursue a claim on behalf of the estate of the deceased, such estate must, of course, be opened and administered through the chancery court.” Id. at 125 (¶ 12) (citation omitted). Based on our decision in the appeal of the estate-administration proceedings, as of the commencement of the wrongful-death suit, Wallace was the duly appointed and acting administrator of the estate. It follows that Wallace had standing to file the wrongful-death suit. By extension, the circuit court erred when it granted Dr. Mohamed’s motion to dismiss the wrongful-death suit. We therefore reverse the circuit court’s judgment that granted Dr. Mohamed’s motion to dismiss and remand the wrongful-death suit to the circuit court’s active trial docket for further proceedings consistent with this opinion.

¶ 10. Another matter bears discussion. In August 2008, Wallace filed a motion to substitute his and Gilkey’s biological son, Christopher, as the plaintiff in the wrongful-death suit. The circuit court denied Wallace’s motion on the basis that Wallace lacked standing to file the wrongful-death suit; therefore, there could be no substitution of parties. As previously mentioned, we reversed the chancellor’s decision to remove Wallace as the administrator of the estate. It follows that Wallace had standing to file the wrongful-death suit, and the circuit court had the authority to hear Wallace’s motion for substitution of parties. Accordingly, we also remand this case on the substitution-of-parties issue to the circuit court for further proceedings.

¶11. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE AND MAXWELL, JJ„ CONCUR. CARLTON, J., NOT PARTICIPATING.

      . The record refers to Wallace as "Gilkey.” For continuity and to distinguish the parties, we will do the same.