author: COOKS, Judge.

text:
    Charles FOSTER v. PATTERSON SERVICES, INC.
    No. 11-1417.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 25, 2012.
    Donovan J. O’Pry, II, Jeansonne & Re-mondet, Lafayette, LA, for Defendant/Appellant, Patterson Services, Inc.
    Michael B. Miller, Attorney at Law, Crowley, LA, for Plaintiff/Appellant, Charles Foster.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   COOKS, Judge.

| iThis court issued a rule for the Appellants to show cause, by brief only, why the appeal in this case should not be dismissed as having been taken from a non-appeal-able, interlocutory order. For the reasons assigned below, we dismiss the appeal.

The Plaintiff filed a claim with the Office of Workers Compensation against the Defendant in 1999 for a back injury. In 2000, a judgment was entered ordering the Defendant to pay Plaintiff supplemental earnings benefits. After paying the benefits for 520 weeks, the Defendant was allowed to terminate weekly supplemental earnings benefits to Plaintiff pursuant to La.R.S. 23:1221(3)(d).

On February 18, 2011, the Plaintiff filed a motion and order to modify the previous judgment to state that Plaintiff is totally disabled and entitled to continue weekly compensation benefits. Following a hearing, the workers’ compensation court issued a written judgment ordering Defendant to provide 26 weeks of computer training to Plaintiff during which time the Defendant shall pay temporary total disability benefits. The court also ordered the Plaintiff to undergo a functional capacity examination, and that Plaintiff be allowed to select Glenn Hebert as his vocational counselor. Lastly, the workers’ compensation court ordered that after the Plaintiffs completion of computer training, another hearing be held to consider additional evidence. The court stated that its judgment is designated as a partial final judgment for the purposes of appeal.

Both the Plaintiff and the Defendant filed motions for appeal from this ruling, and the trial court granted the orders of appeal. Upon the lodging of the record in this case, this court, on its own motion, issued a rule for the Appellants to show cause, by brief only, why the appeal should not be dismissed as having been ¡¡¡taken from a non-appealable, interlocutory order, citing Rhodes v. Lewis, 01-1989 (La.5/14/02), 817 So.2d 64.

The Defendant-Appellant responded by brief to this courts order arguing that the workers’ compensation court properly designated the judgment as final and appeal-able because the judgment will be enforced immediately. The Defendant contends that the Plaintiffs computer training and paid weekly benefits during the half-year of training will be a considerable cost. The Defendant also points out that the Plaintiff has been ordered to complete computer training as a prerequisite to his permanent total disability determination, even though the Plaintiff did not request additional training.

In response to the rule, the Plaintiff-Appellant contends that the workers’ compensation court’s ruling should have been a final judgment because at the time of the hearing on the motion to modify judgment, there were no other issues or motions pending before the court. However, the Plaintiff notes that the court entered a ruling that failed to either grant or deny his motion to modify the judgment.

As mentioned above, the rule to show cause issued by this court in this matter cited the Appellants to Rhodes, 817 So.2d 64. In Rhodes, two of three defendants were dismissed from the action. Despite the fact that dismissal of that appeal resulted in trial being conducted against only one defendant, which created a risk that a new trial would have to be held in the event that a later appeal resulted in a finding that the dismissal of the first two defendants was incorrect, the supreme court held that La.Code Civ.P. art. 1915(A)(1) and (5) were inapplicable to workers compensation suits.

In Evergreen Presbyterian Minist. v. Wallace, 05-1343 (La.App. 3 Cir. 4/5/06), 926 So.2d 759, this court ordered the dismissal of appeals filed by both [osides. The rulings at issue in that appeal were that the claimant was entitled to supplemental earnings benefits, but that the claimant was not temporarily and totally disabled nor totally and permanently disabled, as well as other rulings deciding other issues in the case. This court stated therein:

The law is clear, and we are bound to follow the supreme court’s dictates, that a piecemeal appeal is not permissible in a workers compensation case. The judgment of the Office of Workers Compensation clearly establishes that issue of penalties and attorney fees is yet to be decided by it. As the second circuit noted in Gajeske v. Integrated Electrical Services, Inc., 37,777 (La.App. 2 Cir. 10/29/03), 859 So.2d 896, in footnote four (citing Rhodes, 817 So.2d 64), a piecemeal appeal is not permissible when there are still issues involving penalties and attorney fees yet to determined. Until all issues have been decided in this case, this appeal is premature.

Evergreen Presbyterian Minist, 926 So.2d at 763.

Neither Appellants’ brief in response to this court’s rule discusses the Louisiana Supreme Court’s holding in Rhodes, 817 So.2d 64. Instead, the Defendant-Appellant argues that the ruling at issue should be immediately appealable because the judgment will be enforced immediately and at considerable cost to the Defendant. The Plaintiff-Appellant appears to concede that the judgment is not a final judgment.

Both of the Appellants clearly indicate that there are issues remaining outside the scope of this appeal, including the issue of the Plaintiffs right to future benefits. Accordingly, we hereby dismiss the instant appeal as being taken from a non-appeal-able, interlocutory judgment. La.Code Civ.P. art. 1841. We further order that the costs of this appeal are to be assessed by the workers’ compensation court. In addition, the Appellants are hereby permitted to file proper applications for writs in compliance with Uniform Rules — Courts of Appeal, Rule 4, no later than February 24, 2012. The Appellants are not required to file a notice of intent to seek writs nor obtain an order setting a return date pursuant to Uniform Rules — |Courts4 of Appeal, Rule 4-3, as we hereby construe the motions for appeal as timely filed notices of intent to seek supervisory writs and have set the return date for the writs in this opinion.

APPEAL DISMISSED. APPELLANTS ARE PERMITTED TO FILE APPLICATIONS FOR SUPERVISORY WRITS.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    John Aaron DUHON v. 3-D SUGAR FARMS, INC., et al.
    No. CA 11-1544.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 25, 2012.
    Steven Gerald Durio, Joseph Francis Durio, Durio, McGoffin, Stagg & Acker-mann, Lafayette, LA, for Plaintiff/Appellant, John Aaron Duhon.
    Katherine A. Theunissen, Mahtook & Lafleur, Lafayette, LA, for Defendants/Appellees, Richard Paul Duhon, 3-D Sugar Farms, Inc., 3-D Land Company, LLC, Warren Dale Duhon, Vickie Duhon Badeaux.

      Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

| lAppellant, John Aaron Duhon, filed two claims against Appellees, Richard Paul Duhon; DDB Operations, LLC; Warren Dale Duhon and Vickie Duhon Badeaux— one for revocation of a donation and a second as a “derivative action for recovery of amounts obtained by exploiting conflict of interest.” Appellees moved for summary judgment on both claims. The trial court granted summary judgment in part, dismissing Appellant’s claim for the revocation of donation only. In response, Appellant filed a motion for reconsideration or new trial, which was denied. Next, Appellant applied for supervisory writs to which Appellees responded. Appellant then filed a motion for devolutive appeal. The order of appeal was signed by the trial court soon thereafter.

After the appeal was lodged in this court, it was soon discovered that a formal judgment had not been issued nor a hearing held on Appellant’s motion for reconsideration or new trial. Accordingly, this court issued a rule, sua sponte, ordering Appellant to show cause, by brief only, why this appeal should not be dismissed as premature. Days later, Appellees filed a motion to dismiss the appeal on grounds that the judgment from which Appellant appealed was not a final, appealable judgment.

On January 3, 2012, in response to the rule to show cause, Appellant submitted a brief and “Order for Rule to Show Cause or New Trial.” Thus, it appears that the necessity of a formal judgment or hearing on the motion for new trial, discussed in Egle v. Egle, 05-0531 (La.App. 3 Cir. 2/8/06), 923 So.2d 780, has now been satisfied. See La.Code Civ.P. art. 2123(C). Appellees’ motion to dismiss, however, remains at issue.

Appellant contends that the judgment granting Appellees’ motion is a final, immediately appealable judgment under La. Code Civ.P. art. 1915(A)(1) and (3) | ¡/‘insofar as it dismisses all of John Aaron Duhon’s individual claims against his ungrateful defendant sons and daughter, such that the only remaining claim in this matter is the claim of the corporation, 3-D Sugar Farms, Inc., for which Aaron is merely the shareholder.” We disagree. Louisiana Code of Civil Procedure Article 1915(A), in pertinent part, provides the following:

A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or in-tervenors.
(3) Grants a motion for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E).

The partial granting of Appellees’ motion for summary judgment did not dismiss the suit as to any party, defendant, third party plaintiff or defendant, or inter-venor. Although Appellant sued Appellees individually for revocation and in his capacity as a shareholder in the shareholder derivative suit, he remains the sole claimant or plaintiff in this case. Further, while Appellant seeks to appeal the granting of Appellees’ motion for summary judgment, the summary judgment appealed is only partial in nature and is, therefore, governed by La.Code Civ.P. art. 1915(B).

Article 1915(B)(1) provides that a granted, partial summary judgment is not immediately appealable unless “it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” In the absence of such a determination and designation, “any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the ^parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal.” La.Code Civ.P. art. 1915(B)(2).

Based on the foregoing, we find that the instant appeal is not properly before this court. Accordingly, we hereby order that this appeal be dismissed at Appellant’s cost.

APPEAL DISMISSED.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Lonnie Paul COMEAUX.
    No. 11-883.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Michael Harson, District Attorney, 15th Judicial District Court, Lafayette, LA, Laurie A. Hulin, Assistant District Attorney, 15th Judicial District Court, Abbe-ville, LA, for Plaintiff/Appellee, State of Louisiana.
    Lynden James Burton, Pecantte-Burton & Burton, New Iberia, LA, for Defendant/Appellant, Lonnie Paul Comeaux.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and J. DAVID PAINTER, Judges.
   THIBODEAUX, Chief Judge.

| defendant, Lonnie Paul Comeaux, was convicted by a jury of molestation of a juvenile, a violation of La.R.S. 14:81.2, on January 20, 2011. He claims on appeal the trial court erred by allowing the video of the victim’s statement into evidence in addition to her live testimony. He further argues the trial court erred in its jury instruction on reasonable doubt.

FACTS

The victim, D.C., was eleven years old at the time of trial. She testified Defendant “put his four fingers inside of [her]” while they were lying in bed watching television on Father’s Day of 2009. Defendant touched D.C. on her back, stomach, and butt, and “[h]e acted like he was sleeping.” She did not think he was really sleeping “[b]ecause, if somebody was sleeping, you really wouldn’t move that much. You really wouldn’t, like, move all over and everything.”

Nicollette Joseph testified as the forensic interviewer at Hearts of Hope, a children’s advocacy center. She interviewed D.C. on July 2, 2009, when D.C. was nine years old. The videotaped recording of the interview was shown to the jury over Defendant’s objection. D.C. was called as a witness at trial by the State.

LAW AND DISCUSSION

Denial of Motion in Limine

Defendant contends the trial court erroneously denied his motion in limine because any probative value the Hearts of Hope videotape may have had was outweighed by its prejudicial effect when the declarant was available and testified at trial. This argument lacks merit because admission of the videotape into evidence is statutorily allowed as an exception to the hearsay rule. La.R.S. 15:440.3.

| ^Louisiana Revised Statutes 15:440.5(A) provides the eight requirements which must be met for admission of a videotape:

(1) No attorney for either party was present when the statement was made;
(2) The recording is both visual and oral and is recorded on film or videotape or by other electronic means;
(3) The recording is accurate, has not been altered, and reflects what the witness or victim said;
(4) The statement was not made in response to questioning calculated to lead the protected person to make a particular statement;
(5) Every voice on the recording is identified;
(6) The person conducting or supervising the interview of the protected person in the recording is present at the proceeding and available to testify or be cross-examined by either party;
(7) The defendant or the attorney for the defendant is afforded an opportunity to view the recording before it is offered into evidence; and
(8) The protected person is available to testify.

Ms. Joseph testified this videotaped interview was recorded with no attorneys present. Questions asked of D.C. were not calculated to lead her to a certain answer. The recording was an accurate depiction of what Ms. Joseph recalled, and it was not altered in any way prior to being shown at trial. Voices on the recording can be identified as those of Ms. Joseph and D.C., both of whom were present at trial and both of whom actually testified. While defense counsel objected to the introduction of the videotape into evidence, he never indicated he had not had the opportunity to view it before it was offered. In fact, Defendant filed a motion to produce “a copy of the two DVD’s of oral statements of a protected person” on October 27, 2010. The motion was dismissed on December 2, 2010, because “[n]o one showed” at the hearing.

Defendant argues the purpose of showing the videotape was to inflame the jury after D.C. testified, such that “any probative value was outweighed by the I,(¡prejudicial effect.” However, La.R.S. 15:440.5(B) allows the State to both enter the videotape into evidence and call the protected person as a witness at trial. This statute “does not violate defendant’s constitutional right of confrontation.” State v. In the Interest of AM., 08-2493, p. 4 (La.11/21/08), 994 So.2d 1277, 1279 (citing Crawford v. Washington, 541 U.S. 36, 59, n. 9, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004)). Further, Defendant’s brief recognizes “[i]t would appear that the videotaped statement can be admitted.”

Denial of Jury Instructions on Reasonable Doubt

Defendant contends the trial court erred by denying his request for jury instructions regarding reasonable doubt. The instruction given to the jury was:

While the State must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt based on reason and common sense, and it’s present when, after you have carefully considered all of the evidence, you cannot say that you are firmly convinced of the truth of the charge.

Defendant sought an additional instruction that “probably guilty is not enough to find guilty.” The trial court denied the request. Defendant argues the instruction as given, without his requested additional language, confused the jury about the State’s burden of proof.

In State v. Williams, 96-1023, p. 39 (La.1/21/98), 708 So.2d 703, 717, cert. denied, 525 U.S. 838, 119 S.Ct. 99, 142 L.Ed.2d 79 (1998), the Louisiana Supreme Court considered a jury instruction that stated in part:

Now while the State must prove guilt beyond a reasonable doubt, the State does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt based upon reason and common sense, and it’s present when after you’ve carefully considered all of the evidence you cannot say that you are firmly convinced of the truth of the charge.

| Jd. at n. 9. The court held this and other language from the instruction concerning reasonable doubt was not a constitutional violation.

Additionally, this court has found the language of the instruction given to the jury here “adequately informed the jury that the defendant was presumed innocent until proven guilty and was entitled to the benefit of any reasonable doubt.” State v. Watts, 596 So.2d 306, 310 (La.App. 3 Cir.) writ denied, 599 So.2d 316 (La.1992). Accordingly, Defendant’s argument lacks merit.

ERROR PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, there is one error patent.

The record does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8. Thus, the trial court is directed to inform Defendant of the provisions of article 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof in the record that Defendant received the notice. State v. Roe, 05-116 (La.App. 3 Cir. 6/1/05), 903 So.2d 1265, writ denied, 05-1762 (La.2/10/06), 924 So.2d 163.

CONCLUSION

Defendant’s conviction and sentence are affirmed. The trial court is directed to inform Defendant of the provisions of article 930.8 by sending appropriate written notice to Defendant within ten days of the rendition of this opinion and to file written proof in the record that Defendant received the notice.

AFFIRMED.

      . Initials of the victim are used to protect the identity of the victim pursuant to La.R.S. 46:1844(W).


author: GREMILLION, Judge.

text:
    STATE of Louisiana v. Mark Thomas WILLIAMS aka Mark T. Williams aka Mark Williams.
    No. 11-708.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 2012.

      Paula C. Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Mark Thomas Williams AKA Mark T. Williams AKA Mark Williams.
    Asa A. Skinner, District Attorney, Terry Wayne Lambright, Assistant District Attorney, 30th Judicial District Court, Lees-ville, LA, for Appellee, State of Louisiana.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| ¶ Defendant, Mark Thomas Williams, was originally charged with several offenses: possession of marijuana, improper lane usage, open container in a vehicle, contributing to the delinquency of a juvenile, and possession of a controlled dangerous substance, marijuana, on the premises of a jail. On January 11, 2011, Defendant pled guilty to one count of contraband in a penal institution, a violation of La.R.S. 14:402, and one count of improper lane usage, a violation of La.R.S. 32:79. The remaining charges were dismissed.

Defendant was sentenced to three years hard labor, suspended, on the conviction for possession of contraband on the premises of a jail, with three years supervised probation, restitution to the Public Defender’s Office, other special conditions, and ordered to pay a fine of seventy-five dollars, or fifteen days in jail, on the conviction for improper lane usage. Defendant filed a “Motion to Reconsider Sentence” on April 18, 2011. The trial court denied the motion without a hearing or written reasons.

Defendant appeals, asserting one assignment of error: The trial court erred when it denied him “the benefits available upon completion of his three-year probation as provided in La.Code Crim.P. art. 893(E)(2).” For the following reasons, Defendant’s sentence is affirmed.

FACTS

On August 8, 2009, Defendant was pulled over for a traffic violation. As he was being booked into the Leesville City Jail for the above mentioned offenses, the police found on his person a baggie of a green leafy substance, which later proved to be marijuana.

ASSIGNMENT OF ERROR

Defendant argues that because the trial court specifically denied the request for him to be sentenced pursuant to La. Code Crim.P. art. 893, he was deprived of |2the option, or benefit, of petitioning the trial court to set aside the conviction and dismiss the prosecution following successful completion of the probationary period.

Louisiana Code of Criminal Procedure Article 893, in pertinent part, allows suspension or deference of sentence, except for certain enumerated offenses, as follows:

A. When it appears that the best interest of the public and of the defendant will be served, the court, after a first or second conviction of a noncapital felony, may suspend, in whole or in part, the imposition or execution of either or both sentences, where suspension is allowed under the law, and in either or both cases place the defendant on probation under the supervision of the division of probation and parole....
E. (l)(a) When it appears that the best interest of the public and of the defendant will be served, the court may defer, in whole or in part, the imposition of a sentence after conviction of a first offense noncapital felony under the conditions set forth in this Paragraph. When a conviction is entered under this Paragraph, the court may defer the imposition of sentence and place the defendant on probation under the supervision of the division of probation and parole.
(2) Upon motion of the defendant, if the court finds at the conclusion of the probationary period that the probation of the defendant has been satisfactory, the court may set the conviction aside and dismiss the prosecution....

At the sentencing hearing, the trial court initially stated that “[t]here was a request by the Defense at the time of the plea that the Court consider sentencing under Article 893 and for concurrent sentences.” However, following a recitation of the facts of the case and a review of Defendant’s presentence investigation report, the trial court stated:

All right sir. All right. He’s a first felony offender. The Court is going to deny the request for an 893 though and sentence him as follows: On 80,022, possession of the contraband, that he serve three years at hard labor with the Louisiana Department of Corrections and there’s no fine provision in that Article or in that statute so I — I’m not [^entitled to impose any fine. I’m suspending the execution of the prison sentence and placing him on supervised probation^]

Defendant argues the trial court’s action of denying his request to be sentenced under Article 893 was premature. The State, however, argues in brief that it is not a matter of prematurity. The State contends that since the trial court suspended his sentence, rather than deferring the imposition of a sentence, the benefit of petitioning for the conviction to be set aside and the prosecution dismissed is not available to Defendant.

At the guilty plea hearing, the only discussion of Article 893 was a brief remark made by defense counsel that Defendant was “requesting consideration for these pleas under Article 893[.]” Despite the brevity of the language and the trial court’s apparent refusal to sentence Defendant pursuant to Article 893, it essentially did grant Defendant’s request. Louisiana Code Criminal Procedure Article 893(A) is the statutory authority to suspend a sentence under certain conditions.

Furthermore, as pointed out by the State, there is no option to request the conviction be set aside and the prosecution dismissed when a sentence is suspended, as opposed to when the imposition of a sentence is deferred. Accordingly, the trial court’s decision to sentence Defendant pursuant to Article 893(A) was not premature. See Horton v. Curry, 45,871 (La. App. 2 Cir. 7/22/10), 44 So.3d 830, wherein the second circuit, while discussing ex-pungement of a criminal record, noted that only when the imposition of a sentence was deferred pursuant to La. Code Crim.P. art. 893(E)(1)(a) at the time of sentencing could the record be ultimately expunged. See also State v. Comardelle, 06-251 (La. App. 5 Cir. 9/26/06), 942 So.2d 1126.

Defendant does not challenge the legality of this sentence otherwise. In State v. Sibley, 09-1104 (La.App. 3 Cir. 6/2/10), 41 So.3d 581, this court has held 14that a trial court has vast discretion in imposing sentences and the sentence shall not be set aside absent manifest abuse of discretion. Moreover, “[t]he relevant question is whether the trial court abused its broad sentencing discretion, not whether another sentence might have been more appropriate. State v. Cook, 95-2784 (La.5/31/96); 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).” Id. at 583 (quoting State v. Barling, 00-1241, 00-1591, p. 12 (La.App. 3 Cir. 1/31/01), 779 So.2d 1035, 1042-43, writ denied, 01-838 (La.2/1/02), 808 So.2d 331). At the sentencing hearing, the trial court noted that, while Defendant was a first time felony offender, he had several misdemeanor offenses including assault, theft, trespass, operating a vehicle while intoxicated, and improper telephone communications and that on two occasions he had not terminated probation satisfactorily. He also had two pending felony charges in Texas. The trial court did not abuse its discretion when it refused to defer imposition of sentence but instead suspended the sentence.

DECREE

Defendant’s sentence is affirmed.

AFFIRMED.


author: GENOVESE, Judge.

text:
    STATE of Louisiana v. Aubry Richard SANDERS.
    Nos. 10-246, 10-247.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 6, 2010.
    James C. “Jam” Downs, District Attorney — Ninth Judicial District, Loren M. Lampert, Assistant District Attorney, Alexandria, LA, for Appellee, State of Louisiana.
    Peggy J. Sullivan, Louisiana Appellate Project, Monroe, LA, for Defendant/Appellant, Aubry Richard Sanders.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

| defendant, Aubrey Richard Sanders, was charged by bill of information filed on January 23, 2009, in docket number 295,-231, with possession with intent to distribute CDS I, marijuana, in violation of La. R.S. 40:966; he also was charged in docket number 295,232, with possession of CDS III, hydrocodone, in violation of La.R.S. 40:968, and possession of CDS V, codeine, in violation of La.R.S. 40:970. Defendant entered pleas of not guilty in both docket numbers on March 27, 2009. On April 22, 2009, the two docket numbers were consolidated.

On September 15, 2009, Defendant withdrew his former pleas of not guilty and entered pleas of guilty to possession with intent to distribute CDS I, possession of CDS III, and possession of CDS V. The trial court then sentenced Defendant to the stipulated sentence of five years at hard labor on each count, to run concurrently, with a recommendation that Defendant be allowed to enter the Boot Camp program.

A “Reconsideration of Sentence to Modify Sentence” was filed in both docket numbers on October 16, 2009, which was denied. A motion for appeal was filed and granted.

Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), in this matter. For the following reasons, we affirm with instructions and grant counsel’s motion to withdraw.

FACTS:

No factual basis for the charged offenses was given.

| ¡.ERRORS PATENT:

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the records in docket numbers 10-246 and 10-247, we find there are no errors patent. However, the minutes of sentencing in trial court docket number 295,232 (appellate court docket number 10-247) do not accurately reflect the transcript of sentencing.

The minutes of the sentencing proceeding in docket number 295,232 provide in pertinent part:

Court sentenced accused for POSSESSION CDS III. POSSESSION CDS V. Court sentenced accused to be committed to the Louisiana Department of Corrections. Accused to serve 005 Years(s). Sentence is to be served at Hard Labor.

The transcript of sentencing provides, in pertinent part (emphasis added):

BY THE COURT: Okay. And I will accept the stipulated sentence. It’s five years at hard labor on each count, concurrent, with a recommendation of Boot Camp.

“[I]t is well settled that when the minutes and the transcript conflict, the transcript prevails.” State v. Wommack, 00-137, p. 4 (La.App. 3 Cir. 6/7/00), 770 So.2d 365, 369, writ denied, 00-2051 (La.9/21/01), 797 So.2d 62 (citations omitted). Consequently, the trial court is ordered to correct the minutes of sentencing in trial court docket number 295,232 to accurately reflect the transcript of sentencing. ANDERS ANALYSIS:

Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, Defendant’s appellate counsel has filed a brief stating that she could not find any errors on appeal that would support a reversal of Defendant’s convictions or sentences. Thus, counsel seeks to withdraw.

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir.1990), the court explained the Anders analysis:

IsWhen appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf. This court’s review of the record will consist of (1) a review of the bill of information or indictment to insure the defendant was properly charged; (2) a review of all minute entries to insure the defendant was present at all crucial stages of the proceedings, the jury composition and verdict were correct and the sentence is legal; (3) a review of all pleadings in the record; (4) a review of the jury sheets; and (5) a review of all transcripts to determine if any ruling provides an arguable basis for appeal. Under C.Cr.P. art. 914.1(D)[,] this Court will order that the appeal record be supplemented with pleadings, minute entries and transcripts when the record filed in this Court is not sufficient to perform this review.

Pursuant to Anders and Benjamin, we have performed a thorough review of the record, including pleadings, minute entries, the charging instruments, and the transcripts. Defendant was properly charged by bills of information, was present and represented by counsel at all crucial stages of the proceedings, and entered free and voluntary guilty pleas after properly being advised of his rights in accordance with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Additionally, Defendant received legal sentences.

We have found no issues which would support an assignment of error on appeal. Therefore, counsel’s motion to withdraw is granted.

CONVICTIONS AND SENTENCES AFFIRMED WITH INSTRUCTIONS. MOTION TO WITHDRAW GRANTED.

11 ORI) L R

After consideration of appellate counsel’s request to withdraw as counsel and the appeals presently pending in the above-captioned matter;

IT IS HEREBY ORDERED that appellate defense counsel’s motion to withdraw is granted.

      . ‘‘[W]liere a defendant does not assert his innocence in a ‘no contest’ plea or indicate he misunderstood the nature and consequences of that plea, the trial court does not err by foiling to include a factual basis of the offense in the record.” State v. Valrie, 09-737, p. 2 (La.App. 3 Cir. 12/9/09), 25 So.3d 1018, 1019 (citations omitted).


author: PEATROSS, J.

text:
    D.M.B.T., Plaintiff-Appellee v. M.A.T., Defendant-Appellant.
    No. 46,381-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 18, 2011.

      William G. Nader, Shreveport, LA, for Appellant.
    Tom N. Thompson, for Appellee.
    Before WILLIAMS, PEATROSS & DREW, JJ.
   PEATROSS, J.

| iThis is an appeal from a judgment ordering supervised visitation in favor of M.A.T., the father of two minor children. The father appeals and for the reasons stated herein, we affirm.

FACTS

The mother, D.M.B.T., and father, M.A.T., in this dispute were married in 1996 and separated in 2004, approximately nine months after learning that the father was infected with HIV. The couple had twins, who were five years old when the couple divorced. This is a heart-wrenching case; the record reveals that this is an upstanding family, with two good parents who both love the children very much. As of the date of trial in this matter, in 2008, the children were unaware that their father was HIV-positive.

At the time the father contracted HIV, he was the general manager of a retirement community in Bossier City. According to the father, he picked up a trash bag outside of the residential buildings in the retirement center to take it to the Dumpster one evening and was stuck by a hypodermic needle that was loose in the bag. The father testified that, at the time, he did not think the incident was “a big deal” and he did nothing about it. He did not reveal to anyone that he had been stuck and did not report the incident or take steps to correct any disposal issues at the facility. Approximately six weeks after the incident, the father became terribly ill and, after a battery of |2tests, was informed that he had tested positive for HIV. The father is in managed treatment, is progressing well, and now lives with asymptomatic HIV.

As stated, the marriage failed and the couple ultimately divorced in October 2005. According to the testimony of the mother, the two had discussed divorce prior to the father’s contracting HIV and his infection was not an issue in the divorce or initial custody proceedings. The stipulated Joint Custody Implementation Plan (“JCIP”), filed on February 10, 2005, provided for joint custody with the mother designated as domiciliary parent with visitation by the father “as agreed upon” by the parties.

In February 2006, the male child, who was six years old at that time, returned from a visit with the father with a bite mark on his buttocks. The child related to the mother and, ultimately, to the pediatrician, that his father had bitten him on the buttocks, through his underwear, while they were playing. The child told the pediatrician that his father had bitten him “through his pantys (sic).” There was a bruise in the shape of an adult mouth, but the skin was not broken. It is undisputed that this was an isolated incident of this magnitude — there are no allegations of any other acts of this type.

Following the biting incident, the mother insisted on supervised visitation only and the father agreed so that he could “continue to see the children.” The parties agreed that the father’s mother, the only member of the father’s family who was aware of his infection, would supervise the visits.

|sOn April 17, 2006, the father filed a Petition for Periods of Physical Custody and for Mediation, requesting unsupervised visitation; however, the mother was not served with the petition. No further action was taken until March 22, 2007, when the mother filed a rule nisi to modify the JCIP to provide for supervised visitation. On May 8, 2007, a judgment on rule was entered on stipulation of the parties. The judgment required, inter alia, supervised visitation and that the parties enroll in and complete an HIV education program. The father was further ordered to provide to the mother copies of all medical records on an ongoing basis. The purpose of this requirement was to inform the mother of lab results indicating the viral load, which would reveal the level of risk of the father transmitting the infection to others. This would allow the mother to monitor the level of contagiousness of the infection to the children.

On September 6, 2007, the father filed another petition for periods of unsupervised custody alleging that he had complied with the court-ordered obligations, including successful completion the HIV education class. On November 2, 2007, the father filed a motion for expedited hearing because he was being “forced by his former wife to exercise supervised visitation with the children” pending a judgment on the rule. Hearing was set for November 15, 2007. This hearing did not take place and the next filing of record is the parties’ joint motion to set the matter for trial filed on July 1, 2008. The mother then filed a response to the father’s petition for unsupervised visitation wherein she listed the following nonexclusive 14behaviors of the father that she alleged place the children at risk of contracting HIV and support supervised visitation:

a. the biting incident as described above
b. the father regularly cuts fruits and vegetables while holding them in his hand without protective gloves and then feeds them directly to the children
c. the father offers his children bites of food from his plate and from a fork that has been in his mouth
d. the father allows others, including his children, to drink from his glass after he has placed his mouth on the glass
e. the father does not take precautions recommended to prevent transmission of the disease to others, including the children

In addition, the mother alleged that the father had failed to provide her with any medical records as ordered by the court. She was unable, therefore, to monitor the level of risk to the children while they were with their father.

On August 28, 2008, the trial judge ordered mediation and appointed experts; however, the issue of supervision was ultimately tried before the judge in May 2009. At the hearing, Dr. Gerardo Negron, the father’s treating infectious disease physician, testified regarding the risk of transmission of the virus from day-to-day normal activity and contact with the children. The father and mother also testified. On August 31, 2010, judgment was rendered ordering supervised visitation. The judgment was filed into the record on October 1, 2010. This appeal from that judgment ensued.

DISCUSSION

The paramount consideration in any determination of child custody is the best interest of the child. La. C.C. art. 131; Evans v. Lungrin, 97-0541 (La.2/6/98), 708 So.2d 731. The court is to consider all relevant factors in determining the best interest of the child. La. C.C. art. 134. The court is not bound to make a mechanical evaluation of each factor. Shivers v. Shivers, 44,596 (La.App.2d Cir.7/1/09), 16 So.3d 500. Rather, a custody dispute must be decided in light of its peculiar set of facts and the relationships involved in order to reach a decision that is in the best interest of the child. Id., citing Earle v. Earle, 43,925 (La.App.2d Cir.12/3/08), 998 So.2d 828, writ denied, 09-0117 (La.2/13/09), 999 So.2d 1151; Wages v. Wages, 39,819 (La.App.2d Cir.3/24/05), 899 So.2d 662.

The trial court’s findings in child custody matters are entitled to great weight and will not be disturbed on review without a showing of clear abuse. Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). After weighing and evaluating expert and lay testimony, the trial court is free to accept or reject the expert’s opinion and may substitute his or her common sense and judgment when warranted by the record as whole. Beene v. Beene, 43,845 (La.App.2d Cir.10/22/08), 997 So.2d 169. Courts have inherent power to determine a child’s best interest and to tailor a custody order, including visitation, that minimizes the risk of harm to the child. Id.

| (¡In the case sub judice, the initial custody arrangement set forth in the JCIP was a stipulated judgment, i.e., one resulting from the parties’ consent to a particular custodial arrangement. As such, the party seeking modification (the mother) of the JCIP must prove that there has been a material change in circumstances since the original decree and that the proposed modification is in the best interest of the child. Evans v. Lungrin, supra.

The custodial factor at issue in the instant case is the mental and physical health of the father, La. C.C. art. 134, and, accordingly, the propriety of his behavior with the children in light of the fact that he suffers from asymptomatic HIV. At the hearing, Dr. Negron provided lengthy testimony describing the risk levels of various “normal” activities that occur in caring for young children. He opined that day-to-day activities pose a “negligible” risk of transmission of the virus. Under cross-examination, however, Dr. Negron agreed that, while there may be no documented cases of transmission in the medical literature, there is always a possibility of transmission with any fluid-to-fluid contact, such as blood from cold sores or cuts/serapes.

The mother provided credible testimony regarding her concerns over the risks posed to the children if their father was not diligent in acting in ways to reduce any potential exposure of the children to bodily fluids that contain the virus. She testified that her son suffers from frequent cold sores, as does the father, and that the children are of the age where cuts, scrapes and bug bites are the rule rather than the exception. The father takes no |7precautions to ensure that his bodily fluids, whether from saliva, cold sores or possible wounds, do not come into contact with the children. Most significantly, the father admitted that he bit his son, hard enough to leave a defined bite mark. While he expressed sorrow and regret over that poor decision, the totality of the record reveals an overall disregard on the part of the father for the severity and seriousness of his condition. In light of the magnitude of the end result (possible infection of the children), if this situation is not regarded with the utmost seriousness, we feel constrained to agree with the trial judge that supervised visitation continue at this juncture. Visitation should be supervised at least until the trial judge determines that the children are old enough to be told of the father’s medical condition and are mature enough to- extricate themselves from any situation that may pose a risk of exposure to the virus. We are unable to say that the trial judge abused her discretion in maintaining the supervision.

As a final note, we feel it important to point out that the litigation in this protracted custody case began back in 2007, a year after the bite incident and more than 4 years ago. The children were 7 years old when this began and are now 11 years old. The majority of that time, it seems, the mother has been unilaterally enforcing supervised visitation. Again, it is the opinion of this panel that supervised visitation should remain in effect only until the determination is made that the children are mature enough to be told of the health of their father and are able to police their own interactions with him. As with any custody dispute, the goal is to further the best interest of the children. Bergeron, supra. More specifically, in the instant Lease, our holding minimizes the potential harm to the children, Beene, supra, while promoting happy and healthy relationships with two well-meaning and capable parents.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed at the cost of M.A.T.

AFFIRMED.

      . The litigation below involved contentious issues of child support arrearages and contempt proceedings related thereto. Those issues have been resolved and are not a part of this appeal.

      . The father testified that he remains employed as the executive director of the retirement community, which is now under new ownership. The father has also previously served as the director for the Federation of Families for Children’s Mental Health.

      . Such factors may include: (1) The love, affection, and other emotional ties between each party and the child. (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child. (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs. (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment. (5) The permanence, as a family home, of the existing or proposed custodial home or homes. (6) The moral fitness of each party, insofar as it affects the welfare of the child. (7) The mental and physical health of each party. (8) The home, school, and community history of the child. (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference. (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party. (11) The distance between the respective residences of the parties. (12) The responsibility for the care and rearing of the child previously exercised by each party. La. C.C. art. 134.


author: WILLIAMS, J.

text:
    STATE of Louisiana, in the Interest of D.E.
    No. 46,644-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 12, 2011.
    Ross E. Shacklette, Bossier City, LA, for Appellants, Charlie Gentry and Janet Gentry.
    Brian H. Barber, Shreveport, LA, for Appellee, State of Louisiana.
    Warren G. Mangham, Shreveport, LA, for Appellee, State of Louisiana, DOSS.
    George E. Harp, Shreveport, LA, Justin H. Courtney, for Appellee, D.E.
    Pugh T. Huckabay, III, Shreveport, LA, for Appellee, Miranda Jo Gentry Burchett.
    Carey T. Schimpf, Shreveport, LA, for Appellee, Douglas Joe “DJ” Estey, Jr.
    Before WILLIAMS, DREW and LOLLEY, JJ.
   WILLIAMS, J.

| Charlie Gentry and Janet Gentry appeal a juvenile court judgment denying their motions to intervene and to establish visitation as the grandparents of the minor child, D.E. The court found that the Gen-trys failed to state a cause of action for intervention and that they could not modify the judgment of disposition to seek visitation. For the following reasons, we affirm in part, reverse in part and remand.

FACTS

Charlie and Janet Gentry are the maternal grandparents of the minor children, D.E. and J.H., his sister. The Gentrys were granted physical custody of the children in April 2002. Following a complaint of lack of supervision and child abuse received by the Office of Community Services, the children were removed from the Gentrys’ home in October 2009 and placed in state custody. The state then filed a petition requesting that D.E. and J.H. be adjudicated children in need of care. At the adjudication hearing in December 2009, the Gentrys agreed to return legal custody of J.H. to her mother, Miranda Burchett. The Gentrys also stipulated that D.E. was a child in need of care, without admitting the allegations of the state’s petition.

At the disposition hearing in January 2010, the trial court determined that the Gentrys were no longer parties to the proceedings because they were not the legal custodians of D.E. and they had not sought a return of custody. In March 2010, the trial court entered a judgment of disposition, finding that D.E. continued to be a child in need of care, awarding joint legal custody of D.E. to his biological parents and designating the father, |aDoug Estey, Jr., as the domiciliary parent, subject to the mother’s visitation. On appeal, this court affirmed the finding that the Gentrys were not parties to the action. In the Interest of D.E., 45,809 (La.App.2d Cir.9/22/10), 47 So.3d 1109.

On December 30, 2010, the Gentrys filed their “Motion to Intervene and/or Motion to Establish Visitation by Grandparent.” They also filed a rule for contempt, alleging a violation of the trial court’s previously issued protective order. In February 2011, without holding a hearing, the trial court issued an order denying the Gentrys’ motion to intervene on the basis that the pleading failed to state a cause of action. The court also denied visitation, finding that the Gentrys were not entitled to modify the judgment of disposition. Additionally, the court found that the rule for contempt failed to state a cause of action because the protective order had expired. The Gentrys appeal the judgment.

DISCUSSION

The Gentrys contend the trial court erred in denying the motion to intervene. They argue that their pleading alleged sufficient facts to state a valid cause of action.

Pursuant to LSA-Ch.C. arts. 687 and 701, if the child is placed in the custody of the state at any point during child in need of care proceedings, the provisions of Chapter 15 (Case Review Procedure; Review Hearings) and Chapter 16 (Disposi-tional Reviews) shall govern the subsequent review process until such time as the child achieves a permanent placement as defined in LSA-Ch.C. art. 603. The definition of permanent placement ^includes the return of legal custody of a child to his parents. LSA-Ch.C. art. 603(20) (formerly 603(15)). The juvenile court may allow any interested person for good cause shown to intervene in the case review 'proceedings to facilitate the permanent placement of the child and to ensure that the best interests of the child are protected. LSA-Ch.C. art. 697. For good cause shown, the court may allow any interested person to intervene in the permanency review proceedings to facilitate the permanent plan for the child and protect the best interests of the child. LSA-Ch.C. art. 707.

The function of the exception of no cause of action is to test the sufficiency of the petition by determining whether the law affords a remedy on the facts alleged. The court reviews the petition and accepts well-pleaded allegations of fact as true. Wright v. Louisiana Power & Light, 06-1181 (La.3/9/07), 951 So.2d 1058.

In the present case, the trial court rendered the judgment of disposition in March 2010, awarding joint custody of the minor child, D.E., to his parents, thereby vacating the state’s custody of the child. Thus, under Articles 687 and 701, once permanent placement of the child occurred by returning custody of the child to the parents, Articles 697 and 707 were no longer applicable as a basis for intervention in the proceedings. Consequently, we cannot say the trial court erred in denying intervention under those articles. The assignment of error lacks merit. Although Articles 697 and 707 are inapplicable, we must consider whether the Gentrys’ pleading stated a cause of action for visitation with the minor child.

\ ¿Visitation

The Gentrys contend the trial court erred in denying their motion to establish visitation with the 12-year old child. The Gentrys argue that allowing them more frequent visitation would be in the child’s best interest in light of their relationship with D.E. and the child’s preference.

Under extraordinary circumstances, a relative, by blood or affinity, not granted custody of the child may be granted reasonable visitation rights if the court finds that it is in the child’s best interest. In determining the best interest of the child, the court shall consider: (1) the length and quality of the prior relationship between the child and the relative; (2) whether the child is in need of guidance which can best be provided by the relative; (3)the preference of the child if he is of sufficient maturity to express a preference; (4)the willingness of the relative to encourage a close relationship between the child and his parents; and (5) the mental and physical health of the child and the relative. LSA-C.C. art. 136(B). The burden is on the mover, the relative, to demonstrate that extraordinary circumstances exist and that the visitation is in the child’s best interest. Lindsey v. House, 29,790 (La.App.2d Cir.9/24/97), 699 So.2d 1190; Broussard-Scher v. Legendre, 2010-1164 (La.App. 3rd Cir.3/23/11), 60 So.3d 1290. The court may modify a judgment of disposition on its own motion or on the motion of the district attorney, the department, the child, or his parents. LSA-Ch.C. art. 714.

Initially, we note that in denying the motion to establish grandparent visitation, the trial court treated the Gentrys’ pleading as a motion to modify |Rthe judgment of disposition under LSA-Ch.C. art. 714. However, the Gentrys’ motion specifically complains about the court’s April 1, 2010 protective order prohibiting them from any contact or communication with the child and does not refer to the judgment of disposition. Thus, the trial court erred in its characterization of the pleading and in denying the Gentrys’ motion on the basis of Article 714.

In denying the motion for visitation, the trial court also referred to unspecified reasons previously stated by the court as to why visitation with the Gentrys was not in the child’s best interest. However, the trial court approved a supervised visit with the child by the Gentrys in August 2010.

We find that the Gentrys’ motion for visitation with their grandson adequately stated a cause of action under Article 136(B). Their pleading included the allegations that extraordinary circumstances exist, including their role as primary care givers of D.E. when the parents were unable to care for the child, that they are the maternal grandparents of the child and that visitation with them is in the child’s best interest, given the length of their relationship with D.E. and the child’s preference for continued contact and visitation with his maternal grandparents. Consequently, the trial court erred in failing to hold a hearing to give the Gentrys an opportunity to present evidence to meet their burden of proving that extraordinary circumstances exist and that allowing them reasonable visitation with D.E. would be in the child’s best interest under the applicable considerations of Article 136(B). Accordingly, we shall remand this matter to the trial court with instructions to hold an evidentiary hearing on the Gentrys’ motion for 1 (¡increased visitation with the minor child.

Rule for Contempt

The Gentrys contend the trial court erred in denying their rule for contempt. They argue that the protective order had not expired before it was violated in December 2010, because the court had continued the effect of the order until January 2011.

The court may grant any protective order to bring about a cessation of abuse or neglect of any minor child and the relief may include establishing temporary visitation rights and conditions regarding any minor child. LSA-Ch.C. art. 618(A). Any final protective order shall be for a fixed period of time, not to exceed six months, and may be extended by the court after a contradictory hearing at the court’s discretion. LSA-Ch.C. art. 618(F).

In this case, the protective order issued by the trial court on April 1, 2010, was to remain in effect until the court’s review in July 2010. After conducting that review, the court rendered judgment on August 17, 2010, providing that the prior protective order concerning the Gentrys would remain in effect. The language of the August 2010 judgment indicates that the protective order was extended only with regard to the Gentrys, as no other individuals were named. Thus, we cannot say the trial court erred in denying the rule for contempt. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, that part of the trial court’s judgment denying the motion to establish visitation is reversed, and this matter is hereby remanded with instructions to the trial court to schedule an 17evidentiary hearing on the issue of visitation by the child’s maternal grandparents, Charlie and Janet Gentry. The judgment is otherwise affirmed. Costs of this appeal are assessed one-half to the appellants, Charlie and Janet Gentry, and one-half to the appellee, Douglas Estey, Jr.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.


author: CARAWAY, J. GASKINS, J., MOORE, J,

text:
    Samuel D. SILVERMAN, Jr., Plaintiff-Appellant v. WEATHERFORD INTERNATIONAL, INC., Defendant-Appellee. Samuel D. Silverman, Jr., Plaintiff-Appellant v. BJ Services Company, Defendant-Appellant.
    Nos. 46,402-WCA, 46,403-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 19, 2011.
    Rehearing Denied Dec. 8, 2011.

      Fischer & Associates, Shreveport, LA, by Mark K. Manno, for Plaintiff-Appellant Samuel D. Silverman, Jr.
    Allen & Gooch, Lafayette, LA, by John H. Hughes, for Defendant-Appellant BJ Services Company, U.S.A.
    Preis & Roy, Lafayette, LA, by Robert M. Kallam, Jonathan L. Woods, Jennifer J. Coussan, for Defendant-Appellees Weath-erford International, Inc., and American Home Assurance Company.
    GASKINS, CARAWAY, PEATROSS, DREW and MOORE, JJ.
   CARAWAY, J.

|, In these consolidated workers’ compensation actions an employee seeks benefits from his two former employers based upon claims that he received work-related knee injuries during the course and scope of his employment with each. The workers’ compensation judge (“WCJ”) awarded temporary total disability benefits from the time of plaintiffs second accident through the trial (and thereafter). The WCJ found the two employers solidarily liable however, for only the three-month period immediately following the second accident, assessing benefits thereafter against the first employer. Both the employee and the first employer appeal. Finding error in the WCJ’s ruling concerning the second employer, we reverse.

Facts

Samuel Silverman (“Silverman”) filed separate disputed claims for workers’ compensation against his employer, Weather-ford International, Inc. (“Weatherford”) and his prior employer, BJ Services Company (“BJ Services”) on June 23, 2009. The cases were consolidated.

Against Weatherford, Silverman alleged that he fell and hyper-extended his left knee on March 12, 2009, during the course and scope of his employment. Silverman claimed that the added weight of a piece of heavy equipment unexpectedly released by a co-worker pulled him forward, causing him to fall to his knees and bend his left leg beneath his body. Silverman alleged that this accident aggravated a preexisting condition that resulted from an injury he sustained while employed by BJ Services on July |⅞2, 2005, when a crane operator prematurely released a cement head which pinned Silverman’s left knee between two pieces of equipment.

Silverman had his first left knee surgery, a partial ACL tear repair, in 1990 and numerous other surgeries prior to 2005. Silverman had another knee surgery following the BJ Services accident. In 2006, Silverman began seeing Dr. Steven Atchison as his primary orthopedic physician. Dr. Atchison performed two left knee arthroscopic surgeries on Silver-man in 2007. He continued to experience pain, “locking” and “give-way” episodes, but was able to work. Silverman indicated that his knee had “given-out” 50-100 times between July 2005 and March 2009. During some of these episodes his knee would bruise and swell. Over the course of his treatment, Dr. Atchison diagnosed Silver-man with an ACL deficient knee.

Silverman began working for Weather-ford in 2007. He reinjured his knee in a home accident in the summer of 2007 which caused him to take a two-three month leave from work. On August 4, 2008, Atchison referred Silverman to ACL specialist, Dr. Googe, for “possible [ACL] surgical evaluation.” Silverman however was not evaluated by Dr. Googe and returned to work.

On March 12, 2009, immediately after the Weatherford accident, Dr. Atchison saw Silverman and diagnosed him with a deficient ACL. In his deposition testimony, jointly entered into evidence by the parties, Dr. Atchison stated, “Mr. Silver-man’s on-the-job injury of March 12 is an aggravation of his July 2, 2005 on-the-job injury.... I think, just like you have stated, that there is a — this is just another event in a long line of events |sthat has led up to, stemming from, leading back, to this July 2, 2005.” Dr. Atchison again referred Silverman to Dr. Googe who evaluated Sil-verman on April 17, 2009, and recommended ACL surgery.

Dr. Cambize Shahrdar was appointed by the court and conducted an independent medical exam (“IME”) on March 25, 2010. Dr. Shahrdar also recommended ACL surgery and concluded that Silverman’s “knee diagnosis (ACL tear) is as a result of his two work related knee injuries.” His deposition testimony consistently reflected that the 2005 accident partially tore the ACL and caused knee instability that was present in March of 2009. He believed that the March 12, 2009 fall completed the ACL tear and that the March 12, 2009 fall aggravated Silverman’s pre-existing July 2005 injury.

Weatherford initially paid compensation benefits and medical expenses for four weeks following the accident. The payments were terminated after a nurse employed by Weatherford, who provided medical assistance to Silverman on March 12, 2009, issued a report concluding that Silverman’s injury was related to a prior injury that never resolved. Subsequently, Silverman began these proceedings against B J Services and Weatherford.

Prior to trial, Silverman and B J Services allegedly entered into a partial settlement in which BJ Services agreed to approve medical treatment and pay indemnity benefits in return for Silverman’s waiver of any claim for penalties or attorney fees against BJ Services. This partial settlement is not a part of the record before us. However, consistent with the parties’ Ldescription of the settlement, BJ Services has not appealed the WCJ’s judgment holding it responsible under the Act for Silverman’s present disability.

In a pretrial statement, BJ Services stipulated with Silverman to the fact that there was a July 2, 2005 accident which resulted in a compensable injury. BJ and Silverman further stipulated the following:

[T]hat plaintiff sustained an accident and aggravation to his preexisting condition/injury to his left knee during the course and scope of his employment with Weatherford International, Inc. on March 12, 2009 and/or the injury(s) of March 12, 2009 combined with his previous knee injury to cause an increase in his disability which precluded his return to employment with Weatherford International, Inc.

At trial, Silverman and his supervisor testified consistently with the facts set forth above. Additionally, Weatherford presented the testimony of a field investigator and the Weatherford nurse who rendered medical assistance to Silverman on March 12, 2009. Trial testimony indicated that Silverman has not been able to return to any full-time employment since the March 12, 2009 injury. He described his knee as “totally unstable” from which he experiences greater pain.

The WCJ signed a judgment on September 9, 2010, and made the following findings:

• Silverman did sustain a compensable accident on March 12, 2009 which resulted in a temporarily disabling injury to his left knee.
• Silverman was temporarily totally disabled between March 12, 2009 and June 12, 2009 for which BJ Services and Weatherford were held liable, in solido, for three months of medical and indemnity benefits.
• The weekly benefit to which Silverman is entitled from March 12, 2009 through June 12, 2009 is $546.00.
Is* Silverman is entitled to receive temporary total disability benefits after June 12, 2009, from BJ Services Company at $438.00 per week.
• Weatherford is to be credited for the benefits already paid.
• B J Services was solely responsible for Silverman’s continuing disability, beyond June 12, 2009, as a result of the July 2, 2005 accident, as well as for any corrective surgery on the plaintiffs knee that was injured in that accident.
• The court denied Silverman’s claims against Weatherford for attorney fees and penalties holding that the claim was reasonably controverted by the parties.

Silverman and BJ Services appeal from this judgment.

Discussion

Silverman’s principal argument in this appeal is that the workers’ compensation judge arbitrarily ruled that his work-related injuries ended after three months despite its apparent finding of the combined work-related accidents. Related to this argument, both BJ Services and Silverman assert that the court gave greater weight to Dr. Bilderback’s opinion over the opinions of Dr. Atchison and Dr. Shahrdar and that Dr. Shahrdar’s opinion should be treated as prima facie proof of Silverman’s condition. Silverman and BJ Services also contend that the WCJ erred in finding that Silverman failed to satisfy his burden of establishing a causal relationship between the disability and the March 12, 2009 accident.

A claimant who seeks workers’ compensation benefits on the basis that he is temporarily totally disabled must prove by clear and convincing evidence, without taking pain into consideration, that he is unable to engage in any employment or self-employment. La. R.S. 23:1221; Bolton v. Grant Parish School Bd., 98-1430 (La.3/2/99), 730 So.2d 882; Bailey v. Smelser Oil & Gas, Inc., 620 So.2d 277 (La.1993). A workers’ compensation claimant has the burden of proving, by a preponderance of the evidence, that the disability suffered is related to an on-the-job injury. Scott v. Super One Foods, 45,636 (La.App.2d Cir.9/29/10), 48 So.3d 1133; Modicue v. Graphic Packaging, 44,049 (La.App.2d Cir.2/25/09), 4 So.3d 968; Taylor v. Columbian Chemicals, 32,411 (La.App.2d Cir.10/27/99), 744 So.2d 704.

A preexisting medical condition will not bar an employee from recovery if the employee establishes that the work-related accident aggravated, accelerated or combined with the condition to cause the disability for which compensation is claimed. Peveto v. WHC Contractors, 93-1402 (La.1/14/94), 630 So.2d 689; Dombrowski v. Patterson-UTI Drilling Co., 46,249 (La.App.2d Cir.4/13/11), 63 So.3d 308; Koenig v. Christus Schumpert Health System, 44,244 (La.App.2d Cir.5/13/09), 12 So.3d 1037; Hatfield v. Amethyst Const., Inc., 43,588 (La.App.2d Cir.12/3/08), 999 So.2d 133, writ denied, 08-2996 (La.2/13/09), 999 So.2d 1150. The preexisting condition is presumed to have been aggravated by the accident if the employee proves: (1) the disabling symptoms did not exist before the accident, (2) commencing with the accident, the disabling symptoms appeared and manifested themselves thereafter, and (3) either medical or circumstantial evidence indicates a reasonable possibility of causal connection between the accident and the activation of the disabling condition. Peveto, supra; Dombrowski, supra; Koenig, supra. Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that pit is more probable than not that the work injury did not accelerate, aggravate or combine with the pre-existing disease or infirmity to produce his disability. Peveto, supra.

In the case of two work-related accidents with separate employers, both of which are contributing causes of the ultimate disability, the employers and their insurers at the time of the accidents may be solidarily liable for the payment of compensation. Finley v. Hardware Mut. Ins. Co., 237 La. 214, 110 So.2d 583 (1959). This jurisprudential rule of solidarity is not specifically addressed in the Workers’ Compensation Act (the “Act”).

In Finley, the plaintiff was injured in 1955 while working for Williamson Motors, Inc., when the weight of a motor block assembly shifted onto his leg and back. In 1956, while working for Blaine Chevrolet Company, the plaintiff was again injured while lifting an inner tube in the course of tire salvage. Citing this court’s opinion in White v. Taylor, 5 So.2d S37 (La.App. 2d Cir.1941), the court found both defendants solidarily liable for compensation benefits.

In White, the claimant sustained back injuries while loading brick into a wheelbarrow while at work. Two days later, while working for a subcontractor, the claimant twisted his back, seriously aggravating the injury. The court concluded that because it took “a combination of the two accidents to totally disable” the claimant, both employers were solidarily liable.

In the more recent jurisprudence of this Court, the rule of solidary liability has been expressed as follows:

IsWhen a combination of work-related accidents causes a disability, or where by virtue of a second accident a prior injury is aggravated causing disability, both the subsequent employer and the employer at the time of the first work-related accident are solidarily liable for compensation benefits and medical expenses.

Tron v. Little Italiano, Inc., 38,556 (La.App.2d Cir.6/25/04), 877 So.2d 1055; Hill v. Manpower-Collier Investments, 30,444 (La.App.2d Cir.4/8/98), 712 So.2d 560.

The legislature has set up a Second Injury Fund in La. R.S. 23:1371-1379. This fund provides workers’ compensation benefit reimbursement protection to the second employer when the second employer hires an employee who has had a compen-sable accident in the past that is likely to be aggravated by future work. Specifically, La. R.S. 23:1371 states in pertinent part as follows:

A.It is the purpose of this Part to:
(1) Encourage the employment, re-employment, or retention of employees who have a permanent, partial disability.
(2) Protect employers, group self-insurance funds, and property and casualty insurers from excess liability for workers’ compensation for disability when a subsequent injury to such an employee merges with his preexisting permanent physical disability to cause a greater disability than would have resulted from the subsequent injury alone.
B. Except as provided in R.S. 23:1378(A)(6), this Part shall not be construed to create, provide, diminish, or affect in any way the workers’ compensation benefits due to an injured employee. The payment of compensation to an injured employee under this Chapter shall be determined without regard to this Part, and the provisions of this Part shall be considered only in determining whether an employer or his insurer is entitled to reimbursement from the Workers’ Compensation Second Injury Fund herein created.
C. As used in this part, the merger of an injury with a preexisting permanent partial disability is limited to the following:
(1) The subsequent injury would not have occurred but for the preexisting permanent partial disability; or
|s(2) The disability resulting from the subsequent injury in conjunction with the preexisting permanent partial disability is materially and substantially greater than that which would have resulted had the preexisting permanent partial disability not been present, and the employer has been required to pay and has paid additional medical or indemnity benefits for that greater disability.

Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Indus. Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So.2d 551; Dombrowski, supra; Koenig, supra. To reverse a fact-finder’s determination under this standard of review, an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong. Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880 (La.1993); Dombrowski, supra; Koenig, supra.

Ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. Stobart, supra; Dombrowski, supra; Koenig, supra. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Stobart, supra; Dombrowski, supra; Koenig, supra.

The opinion of the treating physician should be accorded greater weight than that of a physician who sees the patient only once or twice. Fuentes v. Cellxion, Inc., 44,914 (La.App.2d Cir.12/16/09), 27 So.3d 1045; Kendrick v. Solo Cup, 44,303 (La.App.2d Cir.6/3/09), 15 So.3d 295. However, the treating physician’s testimony is not irrebuttable, and the trier of fact is required to weigh the testimony of all medical witnesses. Fuentes, supra; Kendrick, supra. The opinion of the IME physician is prima facie evidence of the claimant’s condition. La. R.S. 23:1123.

Before any review of the medical testimony, we agree that the WCJ’s ruling contains a fatal inconsistency. On the one hand, the WCJ recognized the jurisprudential rule of solidary liability for the two employers when the multiple work-related accidents combined and Silverman’s prior injury was aggravated, causing him to be unable to work. That rule, as reflected in the legislature’s definition of “merger” in La. R.S. 23:1371(C), does not attempt to weigh any difference in the disabling impact of the two injuries and apportion the workers’ compensation responsibility of the two employers accordingly. Both employers are solidarily bound. Nevertheless, and on the other hand, the WCJ arbitrarily ended Weatherford’s liability for workers’ compensation benefits after three months even though Silverman remained disabled. Again, from the legislative implication of the definition of the “merger of an injury” which creates the second employer’s responsibility, it does not matter that “the subsequent injury would not have occurred but for the preexisting permanent partial disability.” The combined accidents, with the injury of the latter aggravating the preexisting injury, result in both employers being responsible thereafter for benefits under the Act.

Next, we do not find Dr. Atchison’s testimony contradictory concerning his conclusion that the second accident at Weath-erford_|_ncontributed to Silverman’s knee dysfunction that caused him to be disabled from working after March 12. The contradiction which the WCJ attempted to articulate in the written ruling apparently stemmed from the WCJ’s erroneous legal conclusion which discounted the aggravating injury at Weatherford. Additionally, Dr. Shahrdar clearly found that the March 12, 2009 accident aggravated the preexisting medical condition.

The Act’s concern for wage benefits means that the principal focus in this case is that Silverman was employed for over two years before the Weatherford accident and not disabled from earning wages. Yet, after the accident, Silverman cannot earn wages. This is the “objective worsening” which matters most in this case, and it began as the result of the Weather-ford work-related accident. Neither employer, in the lower court or on appeal, has challenged Silverman’s continuing disability preventing him from working. Indeed, the WCJ’s judgment recognizes Silver-man’s continuing entitlement to temporary total disability wage benefits from March 12, 2009, through the present.

Accordingly, the ruling of the WCJ ending Weatherford’s liability under the Act after three months was error. The judgment is amended to reflect that both employers are responsible for the medical and wage benefits under the Act since March 12, 2009.

Finally, Silverman contends that the workers’ compensation judge erred in failing to award penalties and attorney fees against Weatherford for its termination of benefits.

La. R.S. 23:1201(1) provides as follows:

l1?Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(C) shall be applicable to claims arising under this Chapter.

For purposes of imposition of attorney fees for discontinuance of workers’ compensation benefits, “arbitrary and capricious behavior” consists of willful and unreasonable action, without consideration and regard for the facts and circumstances presented, or of seemingly unfounded motivation. Williams v. Rush Masonry, Inc., 98-2271 (La.6/29/99), 737 So.2d 41; Crochet v. Barbera Chevy-Chrysler Co., Inc., 04-1390 (La.App.1st Cir.6/29/05), 917 So.2d 49. Whether a refusal to pay is arbitrary, capricious, or without probable cause depends primarily on the facts known to the employer or insurer at the time of its action. Williams, supra. The crucial inquiry is whether the employer had articu-lable and objective reasons for denying or discontinuing the benefits at the time it took that action. Id.

Our reversal of the WCJ’s ruling for an accident which occurred during the Weath-erford employment is based upon the established law regarding multiple employment-related accidents. We therefore find Weatherford’s discontinuance of wage benefits arbitrary. The law afforded Weath-erford contribution rights from BJ Services and/or the Second Injury Fund, yet it chose to cut off benefits. Accordingly, we award a penalty in 113the amount of $1,000 and attorney fees in the amount of $6,000 for this action.

Conclusion

For the foregoing reasons, we reverse the WCJ’s judgment which limited Weath-erford’s liability to three months. Judgment is hereby rendered against Weather-ford, making it solidarity liable with BJ Services for temporary total disability benefits from March 12, 2009, and thereafter in the amount of $546 per week, and for all medical payments/treatments and any other benefits to which Silverman is entitled under the Act. We also reverse that portion of the judgment which denied penalties and attorney fees. Finding the termination of benefits by Weatherford to be arbitrary, we hereby award to plaintiff penalties of $1,000 and attorney fees in the amount of $6,000. Costs of this appeal are assessed to Weatherford.

JUDGMENT REVERSED AND RENDERED.

GASKINS, J., dissents with written reasons.

MOORE, J., concurs in part and dissents in part with written reasons.

GASKINS, J.,

dissenting.

|,I respectfully dissent from the majority’s opinion.

The depositions of Dr. Atchison and Dr. Shahrdar contain contradictory testimony about Silverman’s condition. True, these depositions undeniably contain testimony that supports BJ Services’ and Silverman’s position that Silverman sustained a new, separate injury on March 12, 2009, resulting in a torn ACL. Yet the depositions also contain testimony that the recent accident did not cause further injury to Silver-man’s knee. Treating physician Dr. Atchi-son testified that this is the same injury and that he could not distinguish a worsening. Dr. Shahrdar agreed that there is no objective evidence to show that the accident worsened Silverman’s knee. The trial judge noted that he considered the contradictory testimony, and simply accepted the testimony that was unfavorable to BJ Services and Silverman.

The manifest error standard is used to evaluate the factfinder’s determinations of fact. The majority opinion correctly states this standard and its two-part inquiry. Under the first part of that inquiry, the court must find from the record that a reasonable factual basis does not exist for the finding of the trier of fact. Moreover, when there are two permissible views of the evidence, a factfinder’s choice between them can never be manifestly erroneous or clearly wrong. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Winford v. Conerly Corp., 2004-1278 (La.3/11/05), 897 So.2d 560. Consequently, I would find the trial court’s decision was not manifestly erroneous. Nor do I find fault with the decision that Weather-ford is responsible for a temporary aggravation of the injury.

On whether Silverman is now unable to work, as opposed to before the accident, Dr. Atchison says in his deposition that it is the continuing instability of Silverman’s knee, and the increased risk of injury, that is the basis for his recommendation that Silverman not work. It is not that Silver-man’s condition is now worse post-accident.

Also, some of Silverman’s statements support the trial court’s decision. Silver-man said that between July 2005 and March 2009, his knee gave out about 50 times (in his deposition, he said 50-100 times). He also testified that every time his knee would go out, it would get worse.

Finding support for the trial court’s decision in the record, I would affirm its decision.

MOORE, J,

concurs in part and dissents in part.

|,I respectfully concur in part and dissent in part. I appreciate the majority’s scholarly attempt to synthesize the old jurisprudential rule of solidarity among successive employers 'with the Second In-' jury Fund as established in La. R.S. 28:1371. However, I do not think the WCJ’s error was in failing to grasp these legal nuances but rather in a simple factual determination. Essentially, the WCJ found that the knee injury that Silverman sustained in March 2009 while working for Weatherford had resolved to pre-injury condition by June 12, 2009; hence, Weath-erford was liable for no further benefits after that date. This finding, in my view, is plainly wrong. The IME by Dr. Shahr-dar found that the 2009 injury completed the ACL tear sustained in the 2005 accident; he recommended ACL surgery. Dr. Atchison likewise found an aggravation, and Dr. Googe recommended ACL surgery. Together with Silverman’s own testimony, this evidence easily outweighed Dr. Bilderback’s opinion that there was no causation. I would hold that the WCJ committed manifest error in finding no aggravation of Silverman’s injury beyond June 12, 2009, and I therefore concur in this part of the court’s judgment.

I dissent, however, from the majority’s imposition of a penalty and attorney fee. The WCJ specifically found that Weather-ford “reasonably 12controverted” the claim and thus was not liable for penalties and fees. Of course, the correct standard in a case of terminated benefits is whether the employer was “arbitrary, capricious, or without probable cause.” La. R.S. 23:1201 I. In J.E. Merit Constructors Inc. v. Hickman, 2000-0943 (La.1/17/01), 776 So.2d 435, the employer terminated the claimant’s benefits “based on the availability of other employment and in calculating benefits based on part-time rather than full-time status[.]” The supreme court found that this was legal error, but held that legal error does not equate to arbitrary and capricious conduct. Moreover, the court noted, the WCJ had found a bona fide dispute and therefore denied penalties and attorney fees. The court stated (with emphasis supplied):

While these substantive determinations were later reversed on appeal, the finding of the workers’ compensation judge in favor of Merit [the employer] is virtually conclusive that its actions were reasonable and not arbitrary and capricious. If this were not so, it would suggest that the workers’ compensation judge’s ruling in favor of Merit was itself arbitrary and capricious. It would be very rarely appropriate for an appellate court to award attorney’s fees based on employer actions which the trier of fact previously found did not rise to the level of being arbitrary and capricious (and in fact found to be meritorious).

While I would find the WCJ was plainly wrong to absolve Weatherford of benefits after June 12, 2009, I am not prepared to say that Weatherford’s conduct was arbitrary and capricious, in light of Silver-man’s serious prior condition and the equivocal medical evidence, including Dr. Bilderback’s report. Even less am I willing to hold that the WCJ’s ruling was itself arbitrary and capricious. As this record does not present the kind of extraordinary case conjectured in Hickman, I would not disturb the WCJ’s denial of penalties and attorney fees.

APPLICATION FOR REHEARING

GASKINS, CARAWAY, PEATROSS, DREW and MOORE, JJ.

Rehearing denied.

GASKINS and MOORE, JJ., would grant rehearing.

      . Solidary liability was largely abolished by the 1984 enactment of La. C.C. art. 1796, which states that solidarity of obligation "shall not be presumed” but must arise from a "clear expression of the parties' intent or from the law.” The majority points to nothing in the Workers’ Compensation Act that clearly expresses solidarity among successive employers, but this court has retained the concept in cases like Tron v. Little Italiano Inc., 38,556 (La.App.2 Cir.6/25/04), 877 So.2d 1055.

        . The majority mentions Dr. Bilderback once in reference to the WCJ's reasons but does not discuss his finding that the March 2009 accident did not cause Silverman’s current condition and his recommendation against the ACL surgery.