author: GASKINS, J. SEXTON, Judge Pro Tem.,

text:
    STATE of Louisiana, et al., Plaintiffs-Appellants v. MISS CHUB, L.L.C., Defendant-Appellee.
    No. 47,054-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      William S. Carter, Jr., Ruston, LA, for Plaintiffs-Appellants.
    Law Offices of Charles G. Tutt, LLC, by Charles G. Tutt, Shreveport, LA, for Defendant-Appellee.
    Before GASKINS, DREW and SEXTON (Pro Tempore), JJ.
   GASKINS, J.

| iln this expropriation case involving the expansion of the Louisiana Tech campus, the State of Louisiana, through the Board of Supervisors for the University of Louisiana System and the Commissioner of Administration (hereinafter “the State”), appeals from a judgment ordering payment of attorney fees to the defendant, Miss Chub, L.L.C. We affirm the trial court judgment.

FACTS

In November 2008, the State filed a petition for expropriation, seeking to take the defendant’s property in Ruston, Louisiana, for the expansion of the Louisiana Tech campus in connection with the Louisiana Tech Research Park. In its petition, the State asserted that, despite good faith negotiations, it had been unable to reach an amicable agreement with the defendant. In its answer, the defendant did not contest the State’s right to take; however, it asserted that the amount offered was inadequate to compensate it for its loss.

On August 27, 2010, the Friday before the trial started, the parties filed a joint stipulation that the defendant waived all defenses to the State’s' right to take the property while reserving the issue of just compensation for determination by trial.

The following e-mail exchange occurred between the parties, also on August 27, 2010, between 11:25 a.m. and 5:11 p.m.:

State’s counsel [11:25 a.m.]: I must have not gotten your fax. Can you resend the offer?
Defendant’s counsel [1:55 p.m.]: $800[,]000 plus all court costs and attorney fees will be acceptable to my client as settlement in this case ... thanks.
^State’s counsel [4:14 p.m.]: We offer $508,000 in settlement.
Defendant’s counsel [4:14 p.m.]: [I] have spoken again to ms. cobb. [S]he will accept $750,000 plus all court costs and attorney fees. [T]hanks.
State’s counsel [5:11 p.m.]: Thanks. Will pass that on.

Trial commenced on Monday, August 30, 2010. On September 2, 2010, the jury awarded compensation of $460,000.

Prior to the signing of the judgment by the trial court, the State objected to paying attorney fees to the defendant under La. R.S. 19:8(A). This statute grants the defendant in an expropriation case a right to seek attorney fees if the highest amount offered before trial, as determined by the trial judge, is less than the compensation awarded. The State argued that since it had previously offered the defendant $508,000 in its e-mail offer and the amount awarded by the jury was only $460,000, the defendant was not entitled to attorney fees.

The defendant contended in its motion to assess costs against the State and award attorney fees to the defendant that no tender was ever made to it. It asserted that the amount awarded by the jury was $180,000 more than the State offered before filing suit and $160,000 more than the State’s appraisers testified to at trial. It contends that no “clear offer” was made after suit was filed.

On September 22, 2010, the trial court signed a judgment of expropriation. However, the parties’ claims as to costs, including attorney fees, were reserved for further proceedings. A hearing on these matters was Rheld on December 20, 2010. At the conclusion of the hearing, the matter was taken under advisement.

On February 25, 2011, the trial court issued written reasons for judgment in which it ruled in favor of the defendant on the issue of attorney fees. In its written opinion, the court reviewed the policy consideration of requiring expropriation authorities to make reasonable offers in a reasonable time period to encourage landowners to settle their claims for just compensation. The court noted that in August 2010, the State had two appraisals of the property in the amounts of $288,000 and $300,000, while the defendant’s expert valued it at $715,000. The State made a “blanket” offer of $508,000 on the Friday before the Monday trial which did not specify whether it included attorney fees and costs. Thus, the court concluded that the offer was ambiguous and vague; such ambiguity is construed against the drafter of the offer. The court found that the vagueness of the offer failed to provide the landowner with a clear baseline to evaluate the risks of continued litigation. The court ruled that the State’s offer was invalid and unenforceable. Attorney fees of $25,308.50 were awarded to the defendant. Judgment in conformity with the court’s ruling was signed on June 6, 2011.

The State suspensively appealed.

LAW

Attorney fees are not allowed except where authorized by statute or contract. State, Department of Transportation and Development v. Williamson, 597 So.2d 4B9 (La.1992).

|4La. R.S. 19:8(A), which pertains to general expropriation cases, provides statutory authority for an award of attorney fees. In relevant part, it states:

Immediately after compensation has been determined, the plaintiff shall, upon motion of the defendant, present evidence as to the highest amount it offered the defendant for the property prior to trial on the merits. After hearing evidence on the issue, the court shall determine the highest amount offered. If the highest amount offered is less than the compensation awarded, the court may award reasonable attorney fees.

The intent of La. R.S. 19:8 seems clear—to encourage fair offers by the plaintiff, and to encourage reasonableness on the part of defendants. Shell Pipe Line Corporation v. Sarver, 442 So.2d 884 (La.App. 3d Cir.1988), writ denied, 446 So.2d 319 (La.1984).

The owner of expropriated property shall be compensated to the full extent of his loss. La. R.S. 19:9(B). The Louisiana Constitution of 1974 likewise provides that the owner of expropriated property is to be paid “just compensation” and “to the full extent of his loss.” La. Const. Art. 1, § 4(B)(1) and (5). Attorney fees have traditionally been regarded as being distinct from the compensation due to the landowner. Rivet v. State, Department of Transportation & Development, 2001-0961 (La.11/28/01), 800 So.2d 777.

An award of attorney fees in expropriation cases is largely within the trial court’s discretion, and a reviewing court will not disturb such an award absent an abuse of that discretion. Acadian Gas Pipeline System v. Bourgeois, 04-578 (La.App. 5th Cir.11/30/04), 890 So.2d 634, writ denied, 2004-3203 (La.3/11/05), 896 So.2d 69. See also State, Department of Transportation and Development v. Williamson, supra; Valley Electric Membership Corporation, Inc. v. Wallace, 465 So.2d 986 (La.App. 3d Cir.1985); City of Lafayette v. Delhomme, 401 So.2d 1044 (La.App. 3d Cir.1981). However, in cases where the amount finally awarded for the value of the property for the taking is substantially higher than the amount offered by the authority initiating the taking, attorney fees should be paid. City of New Orleans v. Condon, 600 So.2d 78 (La.App. 4th Cir.1992), writ denied, 605 So.2d 1130 (La.1992).

The trial court’s discretion is great and will not be disturbed in the absence of a clear abuse of that discretion. City of Baton Rouge/Parish of East Baton Rouge v. Broussard, 2002-0166 (La.App. 1st Cir.12/31/02), 834 So.2d 665, writ denied, 2003-0652 (La.5/30/03), 845 So.2d 1056.

Although the trial court is vested with discretion in deciding whether or not to award attorney fees, this discretion is not limitless. City of Shreveport v. Pupillo, 390 So.2d 941 (La.App. 2d Cir.1980), writ denied, 396 So.2d 921 (La.1981).

DISCUSSION

In support of its argument that the defendant is not entitled to attorney fees, the State cites Shell Pipe Line Corpora tion v. Sarver, supra, and Faustina Pipe Line Company v. Bernard, 458 So.2d 981 (La.App. 3d Cir.1984), writ denied, 462 So.2d 1249 (La.1985). In the Sarver case, the trial court denied the defendant’s request for attorney fees under La. R.S. 19:8 because in its opinion, “immediately prior to trial,” an offer of $45,000 was | r,made to him. Since the jury awarded only $30,191.26, the trial court found that the defendant was not eligible to receive attorney fees. The court also found that the offer of $45,000 was reasonable. The appellate court affirmed. In Bernard, supra, the trial court found the defendants were entitled to compensation of more than $5,000. Because the plaintiff offered them only $2,689 prior to trial, the trial court awarded attorney fees to the defendants under La. R.S. 19:8. On appeal, the third circuit reduced the compensation award to $2,544.75, a sum less than the amount offered before trial. As a result, the appellate court found that attorney fees could not be awarded. Apparently, ambiguity of the offers made prior to trial was not an issue in either of these cases.

In the instant case, the trial court found that the State’s offer of $508,000 was ambiguous. It was made in response to the defendant’s offer to settle for $800,000 “plus all court costs and attorney fees.” After a thoughtful and well-reasoned analysis, the court concluded that it was not clear whether or not the State’s offer included court costs and attorney fees. The court noted the landowner’s understandable concerns about the expenses and costs of litigation already incurred due to the involuntary expropriation of its property. The court stated that “such a vague offer did not provide the landowner with a clear baseline to evaluate the risks of continued litigation.” Therefore, it found that the offer was invalid and unenforceable. As such, it could not be considered to be the State’s highest offer.

|7We agree with the trial court. In the limited context of the e-mail exchange between the parties’ attorneys, the State’s offer of $508,000 was far from clear. Under the terms of La. R.S. 19:8, the pertinent inquiry is the “highest amount [the plaintiff] offered the defendant for the property prior to trial on the merits” (emphasis ours). In Louisiana Resources Co. v. Greene, 406 So.2d 1360 (La.App. 3d Cir.1981), writ denied, 412 So.2d 84 (La.1982), the third circuit found that La. R.S. 19:8 required the making of “an unqualified specific offer.” (There, a joint offer to two landowners failed to meet that requirement.) Ordinarily the statement by counsel for the expropriating authority could perhaps be construed as that party suggests — a straightforward offer of only $508,000 with nothing more. However, given the introduction of the issues of attorney fees and court costs into the discussion between the attorneys, we find that the offer lacks the necessary clarity to be considered an “unqualified specific offer” for the property itself. Also, like the trial court, we cannot ignore the facts that the defendant was compelled into litigation and forced to engage the services of legal counsel in order to obtain just compensation for the taking of its property. Only on the very eve of trial, almost two years after the filing of suit, did the State attempt to negotiate a fair offer. Under these circumstances, it was incumbent upon the State to make a clear and 1 ^unambiguous offer for the property itself. Only such an offer could be construed as the plaintiffs highest offer under La. R.S. 19:8(A).

Our review of the record reveals no abuse of the trial court’s great discretion. Accordingly, we affirm.

CONCLUSION

The judgment of the trial court is affirmed.

Costs of this appeal are not assessed. See La. R.S. 13:4521.

AFFIRMED.

SEXTON, J., (Pro Tempore), dissents with reasons.

SEXTON, Judge Pro Tem.,

dissents.

|J respectfully dissent. The issue is whether the $508,000 was a “clear offer.” Here, the defendant knew the approximate costs at the time of the offer. The final costs after trial were $8,250.14 and, certainly, less at the time of the offer before trial. The defendant was also aware of its fees, which were finally asserted to be $37,725, although the trial court awarded $29,925.

Therefore, even if you add the total costs, $8,250.14, and the final fees, $37,725, to the jury award of $460,000, the result is $505,975.14. Obviously, this is less than the offer of $508,000.

Although the offer was very late and certainly inconvenient, I reluctantly believe that it does not trigger the penal provision of La. R.S. 19:8 authorizing attorney fees and would reverse the award of attorney fees.

      . The identical language is found in La. R.S. 19:109(A), which pertains to expropriation by municipal corporations.

      . The defendant could have reasonably believed that the $508,000 offer contained amounts for expert fees, costs of court, and attorney fees. Subtracting the amount of expert fees ($29,925), costs of court ($8,250), and attorney fees ($25,308) actually awarded, the offer could have reasonably been interpreted to only offer $444,517 for the value of the property. This offer, therefore, would have been less than the $460,000 awarded.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Ryan BRODNAX, Plaintiff v. Jeff FOSTER and Zachary Nolan, Defendants.
    No. 47,079-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      The Downs Law Firm, A.P.C., by Ross Downs, Jr., for Plaintiff-Appellant.
    The Lawrence Law Firm, L.L.C., by L. Douglas Lawrence, Bastrop, LA, Andrell Bowman-Cooper, for Appellees, AK. Brothers, Inc., Hardial S. Kang and Bhu-pinder Aulakh.
    Before CARAWAY, DREW and MOORE, JJ.
   CARAWAY, J.

hThe plaintiff in this personal injury action sustained serious burns to the front of his body in an accident after three hours of drinking and horseplay with two friends. One friend, a 19-year-old, attempted to throw gasoline onto a bonfire and accidentally doused the nearby plaintiff who was set on fire. Plaintiff sued his friends and the convenience store which twice sold beer to the underage friend on the evening in question. After the presentation at trial of the plaintiffs case against the store and its owners, the trial court granted judgment in favor of these defendants dismissing all of plaintiffs claims against them with prejudice. This appeal by the plaintiff ensued. For the following reasons, we affirm.

Facts

On January 8, 2009, 26-year-old Ryan Brodnax and 19-year-old Zachary Nolan worked together a full day cutting firewood from residential property in Bastrop, Louisiana. After completing their work at approximately 5:30 p.m., .the two planned to go to the home of '40-year-old Jeff Foster where the group was going to burn residual scrap from the trees which Foster had retrieved from the cutting site. Before Brodnax and Nolan arrived at Foster’s, they purchased beer at Super Mart II (“Super Mart”), a Bastrop gas station and convenience store, owned and operated by AK. Brothers, Inc. (“AK Brothers”). Nolan allegedly drove his vehicle in which Brodnax was a passenger. The two went through the Super Mart drive-thru window where Nolan allegedly purchased a 12-pack of beer with money the 12two planned to share from the earlier tree work. Thereafter the men traveled to Foster’s house.

In the meantime, Foster was working on building a fire in his backyard. He initially used diesel to get the green wood to burn, but began pouring gasoline on the fire to keep it going. For approximately three hours, the three men drank alcohol and visited. Foster had his own alcohol and Brodnax and Nolan drank the beer they had purchased earlier. None of the men could recall the exact amount of beer each consumed, although Nolan admitted that he drank between 8 and 13 beers. Nolan described his condition as “buzzing,” but not drunk. Brodnax admitted that he drank about 4 beers from the first 12-pack. During their time together, the men engaged in horseplay that included pouring lines of gasoline in the grass and setting them on fire. Later, Nolan and Foster made a second beer run to Super Mart. Foster contended that Nolan again drove his own vehicle to purchase more beer. Nolan could not remember who drove.

The timing of the event is unclear, but all of the men agreed that at some point a small gas can the three were using ignited. When it caught fire, Brodnax kicked the can in the direction of Foster. The burning can caught Foster’s clothes and the grass near a shed on fire. Foster was able to get the fire out quickly and was not injured.

In a separate event, after Nolan and Foster returned from the second beer run, Nolan began throwing gas on the fire from a larger metal gasoline |scontainer in an attempt to stoke the fire. Brodnax recalled that he was approximately four feet from the fire and Nolan was closer to it. Nolan testified that he was uphill from Brodnax, but on the same side of the fire with Brodnax when he attempted to throw gasoline on the fire. As he did so, however, the spout of the larger can spewed Brodnax with gas and the fire ignited. Brodnax suffered serious injuries as the result of the accident with 13% of his body on the front side receiving second and third degree burns. He was rushed to a local hospital immediately after the event and transported to the Louisiana State University Medical Center burn unit in Shreveport for further treatment. Brod-nax received two skin grafts, was confined to a wheelchair for a month and wore a burn suit 23 hours a day for one year. He received occupational therapy and consulted a plastic surgeon for residual scarring.

Brodnax instituted a personal injury suit against Nolan, Foster and their insurers. AK Brothers and its individual owners, Hardial Kang (“Kang”), Bhupinder Aulakh (“B. Aulakh”) and Laddie Aulakh, were also named as defendants. In relevant part, Brodnax alleged that AK Brothers and its individual owners were liable for his injuries because they sold alcohol to the tortfeasor, Nolan, who was under the age of 21. Brodnax also alleged that the Aulakhs and Kang knowingly and intentionally sold alcohol to underage purchasers, made it company policy to do so, failed to check for valid identification, train, supervise or monitor employees, follow state law and exhibited a reckless disregard for the safety of others.

|4Upon Brodnax’s motion, the trial court granted partial summary judgments on the issues of medical causation and duty, finding that as a matter of law AK Brothers had “a duty to not sell alcoholic beverages to persons under 21” and that in violation of that duty AK Brothers sold alcoholic beverages to Nolan. Laddie Aulakh was also dismissed from the action by summary judgment. On March 31, 2011, Brodnax dismissed all claims against Nolan, Foster and their insurers. Thus, at trial, the only remaining issue was the liability of AK Brothers, and two of its owners, Kang and B. Aulakh.

After the presentation of the plaintiffs case, the defendants moved for a directed verdict which the trial court granted, dismissing the claims against AK Brothers, Kang and B. Aulakh. In oral reasons for judgment, the trial court concluded that it was Nolan who first drove himself and Brodnax to the Super Mart to buy beer and that Nolan drove Foster back to the Super Mart for the second beer run. The court considered that “the beer would have been purchased [by Brod-nax] regardless if Mr. Nolan bought it under age” and that “Mr. Nolan [was] not a minor” so “we’re not talking about serving beer to a 16-year old.” Further the court determined that there was no evidence of impairment when the sales were made. Going further however, the court ultimately concluded that it was not “foreseeable” that 19-, 26- and 40-year-old men would “go off and engage in this type of | ⅞horseplay and that it would cause the injuries that Mr. Brodnax sustained,” and that the facts were “not within the scope of the duty that they [defendants] have.” The court also refused to address the issue of the personal liability of Kang and Au-lakh “because there’s no testimony, no evidence that they engaged in any type of written policy or tacit policy or any other type policy to engage in the sale of alcoholic beverages to minors.” Thus, the court dismissed all of plaintiffs claims. This appeal by Brodnax ensued.

Discussion

On appeal, Brodnax argues that the trial court erred in concluding that sales of alcohol would have been made anyway to the older men with Nolan in the truck. Nevertheless, since we view the trial court’s ruling (including the prior partial summary judgment) as having at least assumed that AK Brothers breached its duty in making the sales, we pretermit the trial court’s handling of that issue and address the trial court’s conclusion that the risk Brodnax encountered was not within the scope of the duty owed by defendants. Brodnax asserts that this issue of legal cause is subject to the appellate court’s de novo review.

Akin to the directed verdict, a motion for involuntary dismissal is allowed at the close of the plaintiffs evidence in a bench trial. The movant requests dismissal of the action on the grounds that, based on the facts and law, the plaintiff has failed to show a right to relief. La. C.C.P. art. 1672(B); King of Hearts, Inc. v. Wal-Mart Stores, Inc., 27,137 (La.App.2d Cir.8/23/95), 660 So.2d 524; Brouillette v. Ducote, 93-990 (La.App. 3d Cir.3/02/94), 634 So.2d 1243. The appropriate standard for the trial court’s determination of a motion to dismiss is whether the plaintiff has presented sufficient evidence to establish his claim by a preponderance of the evidence. Clifton v. Coleman, 32,612 (La.App.2d Cir.12/23/99), 748 So.2d 1263, writ denied, 00-0201 (La.3/24/00), 758 So.2d 151; Darton v. Kroger Co., 30,711 (La.App.2d Cir.8/25/98), 716 So.2d 974; Vig v. City of Shreveport, 28,530 (La.App.2d Cir.8/21/96), 679 So.2d 524, writ denied, 96-2285 (La.11/15/96), 682 So.2d 775.

A dismissal based on Article 1672(B) should not be reversed in the absence of manifest error or unless clearly wrong. Clifton, supra. On the other hand, while factual determinations by the trier of fact are given great deference on appeal, if the trial court’s decision was based on an erroneous application of law, rather than a valid exercise of discretion, the trial court’s decision is not entitled to the deference it would otherwise enjoy. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993); Clifton, supra; We Sell Used Cars, Inc. v. United Nat’l Ins. Co., 30,671 (La.App.2d Cir.6/24/98), 715 So.2d 656.

The applicable standard of review is the manifestly erroneous or clearly wrong standard. To reverse a factfinder’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. Brewer v. J.B. Hunt Transp., Inc., 09-1408 (La.3/16/10), 35 So.3d 230, citing, Stobart v. State Through Dep’t. of Transp. and Dev., 617 So.2d 880 (La.1993). 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. Brewer, 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. Id.

The liability of a vendor of alcoholic beverages who sells or serves alcohol to a person under the legal drinking age is determined under La. C.C. arts. 2315 and 2316 using the traditional duty/risk analysis on a case-by-case basis, rather than under La. R.S. 9:2800.1, which grants immunity for damages arising from the sale of alcohol to persons over the age of 21. Berg v. Zummo, 00-1699 (La.4/25/01), 786 So.2d 708. Under the duty/risk analysis, the vendor has the duty to refrain from selling or serving alcohol to a minor, and if the other requirements of breach of duty, causation and damages are proven, the vendor will be liable for damages. Id.

The duty/risk analysis consists of the following four-prong inquiry: (1) Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred? (2) Did the defendants) owe a duty to the plaintiff? (3) Was the duty breached? (4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached? Rando v. Anco Insulations Inc., 08-1163 (La.5/22/09), 16 So.3d 1065; Mathieu v. Imperial Toy Corp., 94-0952 (La.11/30/94), 646 So.2d 318. Under a duty/risk analysis, all four inquiries Rmust be affirmatively answered for plaintiff to recover. As such, in order for liability to attach under a duty/risk analysis, a plaintiff must prove five separate elements, namely the duty element, the breach of duty element, the cause-in-fact element, the scope of liability or scope of protection element and the damages element. Rando, supra; Davis v. Witt, 02-3102 (La.7/2/03), 851 So.2d 1119.

Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Rando, supra; Roberts v. Benoit, 605 So.2d 1032 (La.1991). The scope of protection inquiry asks whether the enunciated rule or principle of law extends to or is intended to protect this plaintiff from this type of harm arising in this manner. Rando, supra. This legal determination depends on factual determinations of foreseeability and ease of association. Rando, supra; Perkins v. Entergy Corp., 98-2081 (La.App. 1st Cir.12/28/99), 756 So.2d 388, affirmed, 00-1372 (La.3/23/01), 782 So.2d 606.

A risk may not be within the scope of a duty where the circumstances of the particular injury to the plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between that risk and the legal duty. Rando, supra; Todd v. State Through Dept. of Social Services, 96-3090 (La.9/9/97), 699 So.2d 35; Hill v. Lundin & Assoc., Inc., 260 La. 542, 256 So.2d 620 (1972). The extent of protection owed by a defendant to a plaintiff is made on a case-by-case basis to avoid making a defendant an insurer of all persons against all harms. Rando, supra; Todd, supra. Ease of association asks, how easily does one associate the plaintiffs complained-of harm with the defendant’s conduct? Roberts, supra.

With minor inconsistencies in the sequence of events leading up to Brodnax’s injuries, the three men testified consistently, reporting the events around the bonfire as stated above. Brodnax added that when Nolan left for the second trip to Super Mart, he was visibly intoxicated. Also, when the gasoline ignited on him, Brodnax estimated that Nolan was two feet from the blaze.

Nolan explained that as he threw the gas on the fire, the safety cap splashed gas onto Brodnax who was downhill from him. Nolan stated that the drinking of alcohol “had effect of us starting to play with gas a little bit,” but he testified that even sober, “if we was playing with gas, it would’ve been the same way.” The testimony also indicated that the men had previously conducted similar outdoor fires with the misuse of gasoline.

Brodnax’s fianceé testified that when she arrived at the scene prior to the second beer run, she spoke with Nolan who was “slurring his words really bad.” She went inside Foster’s house for 30-40 minutes before she informed Brodnax she was ready to go home. As she moved toward her car, she heard “Hey Ryan.” She turned around to see that Nolan “had thrown the gas,” and that “Ryan was nothing but flames.” She stated that Nolan and Brodnax were on different sides of the fire.

| inEvidence relating to other sales of alcohol to minors at Super Mart was also introduced at trial. The two individuals who worked the evening of the accident did not recall if they sold alcohol to Nolan. Those employees, and a third employee who testified, stated that they knew they were required to check identification and were never instructed or encouraged to sell alcohol to underage individuals. Kang, the president of AK Brothers, testified that it was the store’s mandatory practice that employees ask for identification.

In 1986, Louisiana raised the minimum drinking age from 18 to 21 in response to the National Minimum Drinking Age Act passed by Congress and set forth in 23 U.S.C. § 158. The federal law requires states to impose a minimum drinking age of 21 for the purchase or public consumption of alcoholic beverages in order to remain eligible to receive full federal highway funding. The initial Louisiana legislation contained no sanctions applicable to retailers or sellers of alcoholic beverages because the federal law contained no such requirement. Nevertheless, in 1995, the Louisiana Legislature added provisions imposing sanctions on retailers for selling alcoholic beverages to those between 18 and 21. See discussion in Manuel v. State, 95-2189 (La.3/8/96), 692 So.2d 320, which originally held that the increase in the drinking age violated equal protection, but upheld the legislative action on rehearing. In Manuel, the court noted that the | ^‘governmental objective at issue is improving highway safety,” through statutes which addressed the problem of “youthful drinking and driving.”

In Berg v. Zummo, supra, the court faced a suit by an injured pedestrian against the bar that sold alcohol to a minor. The minor had been served alcohol by the bar without any check of his identification. The intoxicated minor left the bar along with several companions and immediately in the nearby area had battered and run over the plaintiff with the defendant’s truck. In affirming the jury verdict which imposed liability on the bar, the court made the following statements regarding the public policy underlying the prohibited sale of alcohol to underage individuals:

Legislation has been enacted specifically pertaining to the sale of alcohol to minors, and although those statutes impose criminal, rather than civil responsibility, they serve as guidelines for the determination of an alcoholic beverage vendor’s duty to refrain from selling or serving alcohol to minors. It further evidences the public policy of this state to prohibit the sale of alcohol to minors and to protect minors and the general public from the effect of a minor’s intoxication, particularly when the minor is operating an automobile.

Id. at 715.

The court concluded that “the vendor of alcoholic beverages has a duty to refrain from selling or serving alcohol to minors” and that the bar which served alcohol to the 17-year-old breached that duty. The court also determined that the jury was not manifestly erroneous in finding that serving of alcohol to the minor was a cause in fact of the injures suffered by the pedestrian. Finally, the court determined that “the risk that a minor who is served alcohol might become intoxicated and get into a fight and injure someone with his car” was clearly within the scope of the duty to refrain | i2from serving alcohol to the minor and was not a manifestly erroneous determination by the jury.

In Norris v. Guthrie, 93-962 (La.App. 5th Cir.8/1/94), 641 So.2d 978, writ denied, 94-2253 (La.11/18/94), 646 So.2d 382, the appellate court addressed the liability of a store from which an underage passenger in a vehicle bought beer which he consumed and later battered an individual. On the evening of the accident, three friends decided to drive around. The defendant was not the driver of the vehicle. On two separate occasions during the evening, the individuals purchased a six-pack of beer from the same convenience store and drank the beer while driving around. It was speculated that the defendant participated in these purchases. The men also went to the French Quarter where they drank “hurricanes” before driving around the lake front. At some point in the evening, the defendant saw his ex-girlfriend in her front yard with her date. The defendant asked the driver to let him out of the car so he could speak with his ex-girlfriend. The driver and other passenger continued to drive around. The defendant punched his ex-girlfriend’s date and a fight ensued. Two other young men who were not in the car saw the defendant on the ground and came to his aid. One of these young men kicked the plaintiff in the head.

The plaintiff sued both the driver of the vehicle and the convenience store in the tort suit along with the individuals involved in the fight. The jury exonerated the driver and convenience store, but allocated fault to other individuals involved in the altercation. The plaintiff appealed. In affirming the jury verdict as to the convenience store, the court stated:

| [.¡Likewise any negligent acts by an employee of [the convenience store] was not a contributing cause of [the plaintiffs] damages. Assuming that [the defendant] and not [the driver] actually purchased the beer at [the convenience store] and that the store cashier did not ask [the defendant] for proof of his age, this conceivable negligence was remote from and not a legal cause in fact of the fight. [The defendant] attacked [the victim] because he was angry and jealous.

In the language of Rando, supra, the trial court by considering the policy of our law made “a legal determination” which was also dependent “on factual determinations of foreseeability and ease of association.” Id. at 1088. The trial court concluded that the risk of the gasoline-infused bonfire which injured the plaintiff was not within the scope of the duty of AK Brothers not to sell alcohol to Nolan. This was a mixed question of law and fact which the trial court weighed. The trial court’s conclusion must be manifestly erroneous for an appellate court reversal, and the de novo standard of review asserted by appellant is not applicable.

A primary policy underlying the duty of the alcohol vendor is to prevent the societal risk of the impaired driving of underage persons. Importantly, however, a violation of that policy in this case was not a cause of the accident. Instead, there were two intervening factors. The trial court weighed the facts concerning the other adults’ responsibility for Nolan’s drinking. Brodnax and Foster were obviously aware of the younger Nolan’s inebriated state. Their decisions were to not discourage his conduct, but to participate with him in what Brodnax now asserts as Nolan’s misuse of alcohol. The second intervening factor was the participants’ choice to mix gasoline with the fire. This use of gasoline on that evening was not a one-time accidental occurrence with a sudden ignition that surprised the | ^participants. There was a continuous pattern of horseplay lighting the gasoline on and around the bonfire, and those actions had occurred for some time before the final fire consumed Brodnax. The trial court could consider the timing and the facts of the prior accident with the smaller gasoline can which caused Foster’s clothing to catch on fire. The court could reasonably conclude that the prior event should have served as an immediate warning that the recklessness of the men’s actions must end.

Under the manifest error standard we find that the trial court’s measure of legal cause or the scope of liability for AK Brothers’ duty was reasonable. The foreseeability of the unusual and reckless conduct of all the participants with the gasoline around the fire was remote in its association with the breach of AK Brothers’ duty regarding the sale of alcohol in this case.

Conclusion

For the foregoing reasons, the judgment of the trial court granting an involuntary dismissal of all of plaintiffs claims against AK Brothers and Kang and B. Aulakh is affirmed. Costs of this appeal are assessed to Brodnax.

AFFIRMED.

      . Foster testified that the two events occurred very close in time. Brodnax recalled that the small can incident occurred before the second beer run. Nolan could not remember much about the incident.

      . A directed verdict is appropriate only in a jury trial. Because this case was tried by a judge only, the appropriate method of dismissal was involuntary dismissal. Nevertheless, that error is one of form rather than substance, as the ultimate object of both motions is the same. Gillmer v. Parish Sterling Stuckey, 09-0901 (La.App. 1st Cir. 12/23/09), 30 So.3d 782; Broussard v. Voorhies, 06-2306 (La.App. 1st Cir.9/19/07), 970 So.2d 1038, writ denied, 07-2052 (La.12/14/07), 970 So.2d 535. See also, Heath v. McCarthy, 41,853 (La.App.2d Cir. 1/24/07), 948 So.2d 363, writ denied, 07-0358 (La.3/30/07), 953 So.2d 69.

      . Through his deposition testimony introduced into evidence, Dr. Thomas Arnold, expert in toxicology, estimated that Nolan’s blood alcohol would have been approximately .182 at the time of the incident. In the doctor’s opinion, this level of impairment would have affected Nolan's coordination, reaction time and judgment and would have been a significant factor in causing the accident.

      . Two young men testified that they bought beer from Super Mart when they were under the age of 21 without being asked for identification. Nolan also testified that he purchased beer from Super Mart on occasion before the night of the incident.


author: MOORE, J.

text:
    Edgar CASON & Flora Caskey Cason, Plaintiff-Appellants v. CHESAPEAKE OPERATING, INC., Empress Louisiana Properties, L.P., et al., Defendant-Appellees.
    No. 47,084-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.
    Rehearing Denied May 10, 2012.

      Bethard & Bethard, LLP, Coushatta, LA, by James G. Bethard, for Appellants.
    Jones, Walker, Waechter, Poitevent, Carrére & Denegre, by Michael B. Donald, Krystal P. Scott, for Appellee Empress Louisiana Properties, & Chesapeake Operating and Fluid Disposal Specialties.
    Cook, Yancey, King & Galloway, Shreveport, LA, by Herschel E. Richard, Jr., John T. Kalmbach, for Appellee EnCana Oil & Gas (USA).
    Liskow & Lewis, Lafayette, LA, by Lawrence P. Simon, Jr., Brian W. Capell, for Appellee SWEPI, LP.
    Before BROWN, WILLIAMS and MOORE, JJ.
   MOORE, J.

|! Edgar and Flora Cason appeal a judgment that overruled their exceptions and granted a preliminary injunction in favor of Empress Louisiana Properties, prohibiting the Casons from interfering with the construction of a gas pipeline from a well drilled on land leased from the Casons. For the reasons expressed, we affirm.

Factual and Procedural Background

The Casons own, among other properties, a 68-acre tract (“the lease tract”) between the Red River and Loggy Bayou in the northwest part of Sec. 24, T14N, R11W, Red River Parish. On May 31, 2005, they granted an oil, gas and mineral lease covering 7,200 acres (including the lease tract) in favor of Pride Oil & Gas. With extensions that were exercised, the primary term of the Pride lease was five years, ending on May 31, 2010. This lease contained a clause (¶ 6) continuing the lease as long as the lessee is “engaged in operations for drilling”; another (¶ 9) permitting ingress and egress to the lease tract on “adjacent or adjoining lands” to build necessary roads and pipelines; and another (¶ 10) allowing either party to assign its rights in whole or in part.

Pride Oil assigned its interest to EnCa-na in early 2007; EnCana partially assigned its interest to SWEPI LP; EnCana and SWEPI partially assigned their interest to Empress in 2009. As a result, the lease is now owned by EnCana and SWEPI, subject to a sublease in favor of Empress. In 2009, EnCana obtained a unitization order placing the lease tract in a unit designated as HA RD SUO.

12According to the Casons, none of the assignees or sublessees took any actions that would continue the lease beyond its primary term-no drilling operations or drilling permit from the Office of Conservation. However, on May 28, 2010, employees of Chesapeake, Empress’s parent company, and of Fluid Disposal, a contractor, entered the lease tract without prior approval from “One Call,” an entity that tracks underground pipes and cable and must approve any excavations; on May 29 and 30, contractors entered the lease tract to cut trees and stack the lumber; and on June 1, after getting approval from One Call, Chesapeake’s men entered and began building a road and well pad.

Feeling that the Pride lease had expired, the Casons leased the same tract to Goodrich Petroleum on June 7, with the proviso that Goodrich could never assign any interest to Chesapeake; on June 11, Goodrich obtained a drilling permit from Conservation. However, Empress’s contractors continued daily work on the site, which was designated -as the “Cason 24 well.” In July, Goodrich executed a change of operator form naming Chesapeake as the operator of Cason 24. The well was spudded on July 22.

The Casons filed this suit on August 17, 2010, against Chesapeake, Empress, En-Cana, Fluid Disposal and SWEPI. They alleged that the minor work performed on the lease tract on May 29-31 did not constitute “operations for drilling” sufficient to continue the lease beyond its primary term. They demanded a declaration that the Pride lease terminated on May 31, 2010; damages for trespass after that date; an injunction to cease all operations; and other damages.

IsEmpress answered that it fulfilled all obligations under the Pride lease, specifically that it caused the Cason 24 well to be drilled. Empress also reconvened for an injunction to prevent the Casons from interfering with its lease. Empress alleged that as of July 2011, it had spent $8.5 million on Cason 24, yet the Casons were refusing to allow Empress’s contractors to lay a gas pipeline north from the well to a connector line in Section 13, due north of Section 24, on an adjacent tract owned by the Casons but not part of the lease tract.

The Casons responded with exceptions of no right of action, nonjoinder and unauthorized use of summary proceedings, and two exceptions of no cause of action.

Synopsis of Trial Evidence

At the start of trial on August 1, 2011, the district court heard arguments and rejected most of the Casons’ exceptions. Over the next two days, Empress called four Chesapeake managers.

• James Forney, a senior landman, testified that Mr. Cason had objected to extending operations and asked him to delay spudding for 90 days, presumably so the lease would expire. For-ney admitted that Chesapeake did not obtain a drilling permit within the primary term, but insisted that in that time frame they did surveys that were vital to the drilling. Also, after Cason 24 was completed but before the pipeline was laid, Chesapeake sent the Ca-sons a shut-in royalty of $5,764, but they refused to cash the check.
• Andy Widmer, a Chesapeake corporate representative, testified that the company hired Fenstermaker, a surveying | ¿company, on April 26, 2010; surveyors were on the ground May 4-7, tying off the section corners, and May 26-28, staking the pad. Widmer considered these operations for drilling. He also referred to Exhibit D-16, an invoice from Fenstermaker, to show that surveyors and technicians were “on the ground” on those days; the Casons objected to this document for lack of foundation.
• Carlos Evans, manager of gas sales, testified that he started researching production issues on May 10, and decided that the only feasible option for moving gas from Cason 24 was to run a pipeline north to KinderHawk’s gathering station in Section 13, due north of Section 24. Chesapeake signed a gathering agreement with KinderHawk to build this line, but the Casons refused to grant KinderHawk a right-of-way. A copy of the gathering agreement, heavily redacted to preserve the parties’ confidences, was admitted as Exhibit D-22, over the Casons’ objection. Evans estimated that Chesapeake was losing about $1,000,000 a month because it could not move this gas.
• Robert R. Stall, now a senior analyst for Chesapeake Midstream, testified that he worked for KinderHawk when D-22 was executed; he agreed that the line north to KinderHawk’s station in Section 13 was the most direct route to move Cason 24’s gas, but the Ca-sons refused to grant them a right-of-way.

Empress’s most expansive evidence came from an expert, Philip N. Aspro-dites, an attorney who was Louisiana Commissioner of Conservation for four years in the first Mike Foster administration, chairman of the Interstate Oil & Gas Commission, currently serves on the Mineral Law Institute at LSU, and has an active oil and gas legal practice. He carefully reviewed everything that Empress did prior to May 31, 2010 — putting surveyors on the ground, staking the well and cutting trees to lay a road — and concluded that these operations equaled “commenced operations.” He felt it did not matter that Empress did not obtain a drilling permit before May 31. On cross-examination, he admitted it was not “standard practice” to do so much and then not get a drilling permit until 45 days after the end |sof the primary term, but he stressed that the lease tract posed special difficulties requiring extensive preparatory work.

The Casons’ only witness was Mr. Ca-son, who testified that the work he observed on May 28-31 was “slow-pace” and “counterproductive,” accomplishing in four days what he could have done in one. He insisted that he only objected to these operations, but did not interfere, and he opposed the pipeline in Section 13 only because there were already 9-12 pipelines in the area, and he was concerned for everyone’s safety. He also admitted that his new lease with Goodrich had given him much better terms than the original lease.

Action of the District Court

The court ruled orally, overruling the Casons’ second exception of no cause of action and finding that Empress had made a prima facie case that it would prevail on the underlying claim. Further, the defendants were engaged in drilling operations prior to the end of the primary term and their conduct was in good faith. The court later signed a judgment and a separate order granting Empress’s preliminary injunction. The order required Empress to post a security bond of $150,000.

The Casons have appealed, advancing 12 assignments of error by which they ask this court to reverse the preliminary injunction, reverse the rulings on the exceptions, and award the Casons damages, costs and attorney fees.

| ¡^Empress is joined by Chesapeake and Fluid Disposal on brief, urging this court to affirm. EnCana and SWEPI have also filed a brief seeking affirmance.

Discussion: Engaging in Operations

By their second assignment of error, the Casons urge that Empress failed to make a prima facie case for maintaining the lease beyond the primary term. They contend they are entitled to de novo review because the district court required only a prima facie showing; in support, they cite Mary Moe LLC v. Louisiana Board of Ethics, 2003-2220 (La.4/14/04), 875 So.2d 22. On the merits, they contend that Empress filed no application for a drilling permit; Chesapeake’s surveyors did not complete a drilling survey, and Chesapeake itself provided no notice of intent to drill until long after the primary term ended; neither Empress nor any of its contractors moved equipment or materials onsite, dug any pits or performed any of the activities recognized in the jurisprudence as operations necessary to maintain a lease. Further, no Louisiana case has ever maintained a lease on such minimal conduct. The Casons distinguish Crye v. Giles, 200 So. 155 (La.App. 2 Cir.1941), Johnson v. Houston Oil Co., 229 La. 446, 86 So.2d 97 (1956), Hilliard v. Franzheim, 180 So.2d 746 (La.App. 3 Cir.1965), and Allen v. Continental Oil Co., 255 So.2d 842 (La.App. 2 Cir.1971), writ ref'd, 260 La. 701, 257 So.2d 156 (1972), all of which found sufficient operations to maintain a lease. The Casons conclude that on de novo review, this court should reverse the finding that Empress made a prima facie showing.

1/Empress responds that the correct standard of review is that the grant of a preliminary injunction will not be disturbed except for a “clear abuse” of the trial court’s discretion, Frank L. Maraist, 1A La. Civ. L. Treatise, § 1.2 (2011), and the court’s findings were no abuse of discretion. The items on Fenstermaker’s surveying invoice, May 4-7 and May 26-31, 2010, the corroborating testimony of Forney and Widmer, and the expert testimony of Mr. Asprodites, taken together, support the court’s finding of preparatory activities necessary to drill Cason 24. The jurisprudence distinguishes between actual spudding and commencing to drill, Hilli-ard v. Franzheim, supra, and holds that actual drilling is unnecessary, Allen v. Continental Oil Co., supra. Empress concludes the court committed no manifest error.

EnCana adds that acts preliminary to the beginning of the actual work of drilling, when performed in good faith, constitute a commencement of drilling operations under the “engaged in operations” clause. Allen v. Continental Oil Co., supra; Leslie Moses, “Bench and Bar: What Constitutes Commencement of Operations Under an Oil, Gas and Mineral Lease,” 16 Tul. L.Rev. 573, 584 (1942). Further, merely providing access to the lease tract is deemed sufficient operations to maintain the lease. Breaux v. Apache Oil Corp., 240 So.2d 589 (La.App. 3 Cir.1970).

At the outset, we note that the grant or denial of a preliminary injunction is left to the sound discretion of the trial court and will not be |sdisturbed on appeal except for a clear abuse of that discretion. Smith v. West Virginia Oil & Gas Co., 373 So.2d 488 (La.1979); Farmer’s Seafood Co. v. State, 2010-1746 (La.App. 1 Cir. 2/14/11), 56 So.3d 1263. Mary Moe LLC, supra, is inapposite: the opinion refers only to the citizens’ petition for injunctive relief, numerous subpoenas and a “closed hearing” held in the district court. A trial court may hear a preliminary injunction solely on the verified pleadings or supporting affidavits, if proper notice is given. La. C.C.P. art. 3609; State v. Twin Cities Memorial Gardens Inc., 43,568 (La.App. 2 Cir. 9/17/08), 997 So.2d 16. Mary Moe holds that in such a situation, de novo review is proper. However, when the trial court receives evidence and makes factual determinations, the proper standard is abuse of discretion. Smith v. West Virginia Oil & Gas Co., supra; Farmer’s Seafood Co. v. State, supra; Maraist, op. cit., n. 33. Such is the case here.

On the merits, the crucial question is whether Empress’s activities on the lease premises amounted to “engaged in operations for drilling” such as to continue the lease beyond its primary term. In Allen v. Continental Oil Co., supra, this court discussed the requirement of being “engaged in drilling operations”:

The general rule seems to be that actual drilling is unnecessary, but that the location of wells, hauling lumber on the premises, erection of derricks, providing a water supply, moving machinery on the premises and similar acts preliminary to the beginning of the actual work of drilling, when performed with the bona fide intention to proceed thereafter with diligence toward the completion of the well, constitute a commencement or beginning of a well or drilling operations within the meaning of this clause of the lease.
If the lessee has performed such preliminary acts within the time limit, and has thereafter actually proceeded with the 1 grilling to completion of a well, the intent with which he did the preliminary acts [is] unquestionable, and the court may rule as a matter of law that the well was commenced within the time specified by the lease.

255 So.2d at 845, quoting 2 Summers Oil & Gas, § 349, pp. 459-465.

In Breaux v. Apache Oil Corp., supra, the court found that building a board road and turnaround to the well location satisfied a clause requiring the lessee to “commence operations for the drilling of a well” before the expiration of the lease. In Hilliard v. Franzheim, supra, the court found that staking the site, obtaining a drilling permit, moving lumber onsite and leveling the well location, building a board road and placing drilling equipment nearby satisfied a clause requiring the well “to be started” within a specified time. In Johnson v. Houston Oil Co., supra, the court found that hiring a drilling contractor, getting a drilling permit and moving drilling equipment onsite constituted “drilling or reworking operations” sufficient to extend the lease. In Crye v. Giles, supra, this court held that erecting a derrick, digging a slush pit and laying drill stem on the ground were activities sufficient to maintain a lease which would expire unless “operations for drilling are commenced” by a certain date. At the other end of the spectrum, this court recently stated that merely obtaining a drilling permit did not satisfy the “engaged in operations” clause. Pilkinton v. Ashley Ann Energy, 46,650 (La.App. 2 Cir. 11/2/11), p. 11, 77 So.3d 465, 472, writ denied, 2011-2657 (La.2/10/12), 80 So.3d 484.

An early commentator summarized the jurisprudence of Louisiana and other oil-producing states as follows:

|inIt can be seen readily, therefore, that where the lease provides for commencement of operations, the courts will hold that operations preliminary to the actual drilling of the well are sufficient compliance with the terms of the lease, provided, however, that such preliminary operations are continued in good faith, without undue delay, and with due diligence and dispatch, and thereafter the well is begun and completed. What constitutes good faith is determined by the subsequent conduct of the lessee, and no hard and fast rule can be laid down. Each case must stand on its own set of circumstances, and the intent of the lessee is the determining factor in arriving at a proper decision. Where preliminary work performed within the time limit of the lease, is carried on, and a well drilled, the intent with which the preliminary work was done cannot be attacked is unquestionable.
As to what constitutes sufficient preliminary operations, that, too, is a question of fact in each case, although the courts are prone to hold that performance of the first acts necessary to move in proper equipment for the actual drilling of the well is sufficient. An examination of the cases * * * shows that great leeway is given, where later events show good faith. One thing is certain— the courts are definite in their holding that the clause does not mean actual drilling of the well by the penetration of drill or bit into the ground.

Moses, op. cit., 583-584.

With these principles in mind, we see that although neither Empress nor its parent company, Chesapeake, obtained a drilling permit within the primary term, they performed preliminary acts. On May 4-7, their surveyors tied off the section corners and gathered topographic data; on May 26-27, they finished the preliminary survey, staking the site and access road; on May 28-31, contractors logged 12 hours a day felling trees and clearing the site. Mr. Asprodites, a highly qualified expert, testified that this was not standard practice but the lease tract posed “special difficulties” requiring extensive prep work. In his professional opinion, these acts constituted “commenced operations.” Mr. Ca-son disagreed, stating that the work was In sluggish and counterproductive. From this evidence, the district court did not abuse its broad discretion in finding that Empress engaged in operations for drilling prior to the expiration of the primary term.

This court will not belabor the copious evidence of Empress’s activities onsite after May 31, 2010; in short, Chesapeake spudded the well on July 22, and by July 2011 had spent $8.5 million to bring it into operation. Despite Mr. Cason’s pejorative view of Chesapeake’s motives, this evidence amply shows that the preliminary acts were done for the purpose of completing Cason 24. The district court’s finding of good faith is no abuse of discretion. This assignment of error lacks merit.

The Pipeline in Section 13

By three assignments, the Casons urge that injunctive relief was improper because Empress had no rights in Section 13. By their 10th assignment, they contend the court erred in finding the sublease (labeled a “partial assignment”) from EnCana and SWEPI granted Empress any rights in Section 13, as the sublease was limited to the lease tract in Section 24. By their 4th assignment, they contend the court erred in finding Empress had any right to lay a pipeline in Section 13; by their 7th assignment, they reiterate that the sublease is expressly limited to Section 24.

As noted above, the Pride lease expressly granted the lessee the right to conduct operations on the lease premises “or on any adjacent or adjoining lands,” for the construction and use of “roads, canals, pipelines, tanks” and other facilities deemed necessary by the lessee to produce, store, treat, “and/or transport oil, gas and other substances.” The courts have long recognized the validity of the “adjacent lands” clause. Caskey v. Kelly Oil Co., 98-1193 (La.6/29/99), 737 So.2d 1257, 143 Oil & Gas Rep. 32, and citations therein; Blanchard v. Pan-OK Prod. Co., 32,764 (La.App. 2 Cir. 4/5/00), 755 So.2d 376, 145 Oil & Gas Rep. 262.

Pride Oil executed an act of assignment of the Pride lease in favor of EnCana in March 2007; EnCana executed an act of assignment of 50% interest in the lease in favor of SWEPI in October 2007; EnCana and SWEPI then executed an act of partial assignment of the lease to Empress in May 2009. The record also shows that the tract in Section 13 over which Empress wishes to lay this pipeline is included in the Pride lease and that Empress holds the leasehold rights to that tract by virtue of the assignments and partial assignments. In short, Empress showed its right to use the tract in Section 13 by virtue of the “adjacent lands” clause of the Pride lease.

The Mineral Code provides, “A partial assignment or partial sublease does not divide a mineral lease.” La. R.S. 31:130. Moreover, we have carefully reviewed the assignments and partial assignment, and find nothing in them that would sever the adjacent lands clause. In fact, the partial assignment, introduced in evidence as Exhibit JT-2, refers to leaseholds, rights in production, contract rights, easements and permits. The record fully supports the district court’s finding that Empress had a right to lay a pipeline from Cason 24 into the Casons’ tract in Section 13. These assignments lack merit.

Standards for Preliminary Injunction

By several assignments, the Casons urge that preliminary injunction [ 13was improper because Empress failed to make the technical or evidentiary showing to support the judgment.

By their 1st assignment, the Casons contend they never interfered with Empress’s activities; they stated under oath that they would not interfere; Empress’s witnesses agreed that the Casons never denied them access to the lease tract; and Empress showed no irreparable injury. The record supports the bare allegation that the Ca-sons did not interfere with Empress’s operations in Section 24.

The thrust of Empress’s motion for in-junctive relief, however, was that the Ca-sons steadfastly refused to grant a right-of-way from Cason 24 to KinderHawk’s connector line on an adjacent tract owned by the Casons. Witnesses Evans and Stall both testified to this effect, and Mr. Cason candidly admitted that he opposed the line in Section 13. As noted above, Empress had the right to use Section 13 to lay a pipeline from Cason 24, pursuant to the adjacent lands clause. The district court did not abuse its discretion in finding that the Casons’ refusal to grant a right-of-way amounted to interference. This assignment lacks merit.

By their 9th assignment, the Casons urge the court erred in granting a preliminary injunction when there was no showing of irreparable injury. They argue that Empress failed to prove it sustained any damages that cannot be adequately compensated in money damages. By their 1st assignment, they also contend that Empress failed to show irreparable injury.

An injunction shall be issued in cases where “irreparable injury, loss, 114or damage may otherwise result to the applicant, or in other cases specifically provided by law[.]” La. C.C.P. art. 3601. Irreparable injury means a loss that cannot be adequately compensated in money damages, or is not susceptible to measurement by pecuniary standards. Shaw v. Hingle, 94-1579 (La.1/17/95), 648 So.2d 903; In re Succession of Scurria, 45,292 (La.App. 2 Cir. 8/25/10), 47 So.3d 620. However, this court has recognized that irreparable injury is not an element of proof for obtaining injunctive relief when an owner is seeking to protect rights in real property. Monroe Real Estate & Dev. Co. v. Sunshine Equip. Co., 35,555 (La.App. 2 Cir. 1/23/02), 805 So.2d 1200; see also Thomas v. New Orleans Redevelopment Auth., 2004-1964 (La.App. 4 Cir. 10/6/06), 942 So.2d 1163; Carbo v. City of Slidell, 2001-0170 (La.App. 1 Cir. 1/8/03), 844 So.2d 1, writ denied, 2003-0392 (La.4/25/03), 842 So.2d 400. A mineral lease is by definition a real right. La. R.S. 31:16; Hoover Tree Farm LLC v. Goodrich Petroleum Co., 46,153 (La.App. 2 Cir. 3/23/11), 63 So.3d 159. Empress asserted a real right in Section 13 based on the mineral lease. The district court expressly recognized the exception and did not abuse its discretion in finding that irreparable injury was not required. These assignments lack merit.

By their 3rd assignment, the Casons urge that the court erred in granting a preliminary injunction “that fails to maintain the status quo”; by their 4th assignment, they urge that the court upset the status quo by granting the preliminary injunction. In support, they reiterate their claim that Empress had no rights in Section 13, an argument which this court has | ^already rejected.

Further, we note that one generally recognized purpose of a preliminary injunction is to preserve the status quo during the pendency of full proceedings. South Central Bell Tel. Co. v. Louisiana Public Serv. Comm’n, 555 So.2d 1370,1373 (La.1990). However, a mandatory injunction, one which requires someone to do an act, differs greatly from an injunction which merely seeks to protect the status quo. Chalmette Amusement Co. v. Alphonso, 2007-1512 (La.App. 4 Cir. 4/16/08), 983 So.2d 239. When the status quo is a condition “not of rest, but of action, and the condition of rest is exactly what will inflict the irreparable injury upon the complainant,” a mandatory injunction is appropriate. Vicksburg, S. & P. Ry. Co. v. Webster Sand, Gravel & Const. Co., 132 La. 1051, 62 So. 140 (1913). Even though this preliminary injunction altered the status quo, it was the status quo that inflicted irreparable injury on Empress. The district court did not abuse its discretion in granting the preliminary injunction to compel the Casons to grant the right-of-way in Section 13.

These assignments of error lack merit.

Rulings on Exceptions

By their 4th assignment, the Casons urge the court erred in overruling their exception of unauthorized use of summary proceedings and improper cumulation of actions; by their 10th assignment, they urge that Empress used the wrong procedural device to enforce a (nonexistent) contractual right. They argue that the substance of Empress’s claim is a contractual and statutory obligation which is properly addressed in an ordinary proceeding |1(iby petition for declaratory judgment. Citing Citizens Organized for Sensible Taxation (C.O.S.T.) v. St. Landry Parish School Bd., 528 So.2d 1048 (La.App. 3 Cir.1988), which involved the cumulation of a mandamus action, they conclude that a summary proceeding cannot be cumulated with an ordinary proceeding.

The action for a preliminary injunction employs summary procedure; cu-mulation of actions is therefore proper. Abadie v. Cassidy, 581 So.2d 657 (La.1991); Farmer’s Seafood Co. v. State, supra. The district court did not err in hearing the preliminary injunction as a summary matter.

By their 5th assignment, the Casons urge the court erred in overruling their exception of nonjoinder under La. C.C.P. art. 641. They argue that through the various subleases, only EnCana and SWEPI own the lease, and Empress is merely a sublessee. They contend that Empress failed to join these parties in thfeir demand for injunctive relief. Citing Morgan v. Winbeau Oil & Gas Co., 45,921 (La.App. 2 Cir. 2/16/11), 57 So.3d 1202, they conclude that failure to join all assignees of mineral leases should result in dismissal.

Both EnCana and SWEPI are parties to the principal action, and the record shows that each was served with Empress’s motion for preliminary injunction. Moreover, at the hearing, counsel for EnCana and SWEPI stated on the record that they did not object to Empress’s use of Section 13 to build the pipeline. There is no showing that the rights of EnCana and SWEPI were disregarded or that a “complete and equitable adjudication of the controversy cannot be made unless they are joined in the action.” La. C.C.P. art. 641. We perceive no error.

By their 8th assignment, the Casons urge the court erred in overruling their second exception of no cause of action. They cite La. R.S. 31:177: “A co-owner of a lessee’s interest in a mineral lease may not independently conduct operations * * * without the consent of his co-owner.” They argue that Empress failed to prove it had EnCana and SWEPI’s consent to run the pipeline into Section 13. In light of counsel’s statement noted in the preceding paragraph, this assignment lacks factual support.

These assignments of error lack merit.

Evidentiary Rulings

By their 11th assignment, the Casons urge the court erred in admitting into evidence Exhibits D-16 (the Fenstermaker invoice) and D-22 (the KinderHawk gathering agreement). They contend that the witness who identified D-16, Andy Wid-mer, did not have personal knowledge of what took place on the Cason property and thus could not lay a foundation under La. C.E. art. 602. Similarly, nobody from Kin-derHawk testified to validate the gathering agreement, some 75% of which was “blacked out” to protect the parties’ confidences. The Casons argue that Empress’s failure to call any appropriate witnesses activated the “uncalled witness rule,” a presumption that their testimony would be unfavorable to Empress. Driscoll v. Stucker, 2004-0589 (La.1/19/05), 893 So.2d 32. They suggest several inferences that could be drawn from the failure to call any witness from KinderHawk, EnCana, SWEPI or Fenstermaker.

Contrary to the Casons’ claim, Widmer testified that he had been to | [Sthe well site to see that the work was being performed, worked with Fenstermaker on the project, and had personal knowledge that the work stated on the invoice was indeed done. Similarly, Carlos Evans, Chesapeake’s manager of gas sales, testified that he signed the gathering agreement and described the services that KinderHawk would perform. In both instances, the district court was entitled to find that these witnesses had sufficient personal knowledge to testify about the documents. There is simply no basis to apply the uncalled witness rule. This assignment of error lacks merit.

Damages, Costs and Attorney Fees

By their 12th assignment, the Casons urge without elaboration that because the preliminary injunction was in error, the court should have awarded them damages, costs and attorney fees as provided in La. C.C.P. art. 3608. They suggest that Empress’s injunction bond (actually filed by Chesapeake) should cover these claims.

Because we have affirmed the preliminary injunction, we find no merit to the claim that damages for wrongful issuance are due. Moreover, La. C.C.P. art. 3608 allows such damages “on a motion to dissolve or on a reconventional demand,” but the record does not show that the Casons filed either of these. Even if this court could somehow construe the appeal as a motion to dissolve or a reconventional demand, the law contemplates awarding attorney fees only to litigants who are successful on appeal. Ferrara v. Questar Exploration & Prod. Co., 46,357 (La.App. 2 Cir. 6/29/11), 70 So.3d 974, writ denied, 2011-1926 (La.11/14/11), 75 So.3d 943. The claim for damages, costs and attorney fees is denied.

Conclusion

For the reasons expressed, the judgment granting the preliminary injunction is affirmed. The cost of preparing that portion of the supplement that was responsive to this court’s order of March 16, 2012, is taxed as costs to be paid one-half by the plaintiffs, Edgar and Flora Cason, and one half by defendant, Empress Louisiana Properties. The excess cost of preparing materials not responsive to this court’s order are not taxed. All other appellate costs are to be paid by the plaintiffs.

AFFIRMED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, GASKINS, CARAWAY and MOORE, JJ.

Rehearing denied.

      . In addition, Empress, Chesapeake and Fluid Disposal filed a motion for summary judgment on the issue of "commencing operations”; EnCana and SWEPI filed their own motion for summary judgment on the same issue. The Casons filed a motion for' partial summary judgment declaring that the defendants had not commenced operations. The documentary evidence to support and oppose these motions was similar to that introduced at the trial of Empress’s preliminary injunction.

      . After granting the preliminary injunction, the district court granted all defendants’ motions for summary judgment and denied the Casons' motion for partial summary judgment, ruling that "Empress engaged in operations for drilling, thus maintaining the [Pride lease] entered into May 31, 2005[.]” Despite supplementation by order of this court, the record does not show that the court designated this an appealable final judgment under La. C.C.P. art. 1915 B.

      . Empress also argues that this issue (and indeed the whole appeal) is moot because of the summary judgment on the "underlying issue of commencing operations,” a ruling which was not appealed. The district court, however, did not designate the summary judgment an appealable final judgment, so the Casons could conceivably contest it at the conclusion of the case. This court has therefore considered all the issues raised by the appeal.


author: LOLLEY, J.

text:
    STATE of Louisiana in the Interest of J.M.L. State of Louisiana in the Interest of A.M.L.
    Nos. 47,201-JAC, 47,202-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    April 11, 2012.

      J. Clay Carroll, Jonesboro, LA, for Appellant.
    Yumeaka R. Washington, Assistant District Attorney, for Appellee, State of Louisiana.
    Guy R. Lain, for Appellee, State of LA, Dept, of Children & Family Svcs.
    Before MOORE, LOLLEY and SEXTON (Pro Tempore), JJ.
   LOLLEY, J.

11The defendant, C.L., appeals the judgment of the 2nd Judicial District Court, Parish of Jackson, State of Louisiana, terminating her parental rights as to her minor children, J.L. and A.L. For the following reasons, we affirm the trial court’s judgment.

Facts

In September 2008, the Louisiana Department of Children and Family Services (the “Department”) received and validated a report of Dependency by G.L. regarding her child, J.L., born February 16, 2007. A family services case was opened by the Department in order to provide services to C.L. and avoid removal of the child. On March 11, 2009, C.L. gave birth to her second child, A.L., who was born with a congenital heart condition and clubbed feet. C.L. moved to Jonesboro, Louisiana with her mother. Ultimately, A.L. was hospitalized at New Orleans Children’s Hospital for failure to thrive and began to gain weight after a feeding tube was surgically implanted.

In June 2009, A.L. was removed from C.L.’s custody, because it was believed that C.L. could not adequately care for the child. A.L. was adjudicated a Child in Need of Care by stipulation on July 8, 2009.

In August 2009, C.L. reported to the Department that her food stamp case had been closed, and she had no food. The Department conducted an inspection of her home — C.L. and J.L. were not home, but her mother, Sherry Gough, showed the Department case worker the home. The case worker discovered not only was there a lack of food, but the home was unsanitary and disorganized. The case worker observed dog feces in the living area | ^and in C.L.’s bedroom. The home was littered with cigarette butts, clothes, and other household items. The case worker told Gough that the home would need to be cleaned, and she and C.L. were given one week to do so. When the case worker returned the next week, the house was cleaner, but there was no substantial food in the house, only popsicles. The Department was informed that J.L. was staying with his “godparents,” John White and Susanne Gatlin, because there was no food in the home. After running a background check on White and Gatlin, the Department learned that Gatlin had a significant history with the Department.

On August 14, 2009, J.L. was removed from C.L.’s custody and placed in the state’s custody due to the concern that she could not adequately care for the child. On September 9, 2009, J.L. was adjudicated a Child in Need of Care by stipulation, and in October 2009, the children’s cases were consolidated.

In October 2009, J.L.’s father executed a voluntary act of surrender regarding his parental rights, which was approved by the trial court. In September 2010, A.L.’s father executed a voluntary act of surrender regarding his parental rights, which was also approved by the trial court.

Initially, the trial court approved a case plan with a goal of reunification of the children with their mother. However, after several case plans, in October 2010, the Department filed its Petition for Termination of Parental Rights and Certification of Minor Children for Adoption. In that petition, the Department alleged that:

13* C.L. had failed to substantially comply with her case plans;
• C.L. was unable to demonstrate substantial improvement in redressing the problems preventing reunification after receiving services;
• the Department did not foresee any reasonable expectation of significant improvement in C.L.’s conduct or condition; and
• C.L. failed to provide significant contributions to the care and support of the children during the time they were in the custody of the Department, nor did she have significant contact with them by visits or communications.

At the May 4, 2011 Permanency Hearing, the trial court approved a change of the goal from reunification to adoption of the children, although C.L. was still receiving services.

The termination of parental rights hearing was conducted in September 2011, and after hearing evidence on the matter, the trial court took the case under advisement. Up until that point, the trial court had considered and approved five case plans for the care of the children and services to C.L. A judgment was entered subsequently terminating C.L.’s parental rights to her children, J.L. and A.L., freeing the children for adoption. This appeal by C.L. ensued.

Discussion

On appeal, C.L. raises one assignment of error, arguing generally that the trial court erred in terminating her parental rights as to J.L. and A.L. Specifically, C.L. submits that the trial court was in error in its judgment for |4three reasons: (1) she was unable to provide significant contributions to her children’s care and support, because she is indigent; (2) there was no evidence that she failed to maintain contact with the children for six consecutive months; and (3) there was insufficient evidence that she failed to substantially comply with the Department’s case plan. In this case, we find that the Department proved by clear and convincing evidence that C.L. had failed to substantially comply with the Department’s case plan, meeting the requirement of proving at least one of the statutory grounds for termination under La. Ch. C. art. 1015.

A parent has a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with his or her children, including the companionship, care and custody of the children. State in the Interest of A.C., 1993-1125 (La.01/27/94), 643 So.2d 719, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995); State ex rel. S.C.M., 43,441 (La.App.2d Cir.06/04/08), 986 So.2d 875. The fundamental purpose of involuntary termination proceedings is the protection of a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs by providing an expeditious judicial process to terminate parental rights and to achieve stability for the child. The primary concern of the courts and the state is to secure the best interest of the child, including termination of parental rights if justifiable grounds exist and are proven. State ex rel. R.L.T. and S.A.T., 45,168 (La.App.2d Cir.01/27/10), 30 So.3d 1085.

|5To terminate parental rights, the state must meet the onerous burden of proving one of the statutory grounds for termination set forth in La. Ch. C. art. 1015 by clear and convincing evidence. La. Ch. C. art. 1035(A); State ex rel. B.H. v. A.H., 42,864 (La.App.2d Cir.10/24/07), 968 So.2d 881. Proof by clear and convincing evidence requires a showing that the existence of the disputed fact is highly probable, meaning more probable than its nonexistence. State in Interest of K.D., 586 So.2d 692 (La.App. 2d Cir.1991). Once a ground for termination is established, the trial court may terminate parental rights if termination is in the best interest of the child. La. Ch. C. art. 1037(B); State ex rel. B.H. v. A.H., supra.

The issue of parental compliance with a case plan, the parent’s expected success of rehabilitation, and the expectation of significant improvement in the parent’s condition and conduct are questions of fact in a proceeding for termination of parental rights. State ex rel. C.M.M. v. T.P.M., 42,238 (La.App.2d Cir.05/09/07), 957 So.2d 330. In a termination proceeding, the appellate court will not set aside the trial court’s findings of fact unless it was manifestly erroneous. State ex rel. B.H. v. A.H., supra; State ex rel. M.H. v. K.W.H., 40,332 (La.App.2d Cir.09/23/05), 912 So.2d 88.

Among the several, pertinent grounds for termination of parental rights contained in La. Ch. C. art. 1015 are the following:

(4) Abandonment of the child by placing hiin in the physical custody of a nonpar-ent, or the 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.
(c) As of the time the petition is filed, the parent has failed to maintain significant contact with the child by visiting him or communicating with him for any period of six consecutive months.
(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.

As stated, to terminate parental rights, the state must prove by clear and convincing evidence the existence of one of the statutory grounds for termination. La. Ch. C. art. 1035. Once a ground for termination has been established, the court may terminate parental rights upon a finding that termination is in the children’s best interest. La. Ch. C. art. 1039; State ex rel. J.W., 46,526 (La.App.2d Cir.06/29/11), 72 So.3d 369.

Here, although it was alleged that C.L. violated more than one of the statutory-criteria required to be proven to terminate parental rights, we determine that the Department’s evidence was clear and convincing particularly as to one of the grounds— that being C.L.’s failure to substantially comply with her case plan and inability to demonstrate 17substantial improvement in correcting the problems that prevented reunification with her children as required under La. Ch. C. art. 1015(5).

At the trial, Kerri Byrd, the Department’s case worker assigned to C.L.’s case, testified regarding C.L.’s compliance with her case plans-there were five approved by the Court, all of which were substantially similar. As described by Byrd, when A.L. came into the Department’s care, she was hospitalized at Children’s Hospital in New Orleans due to a congenital heart defect. The hospital staff called the Department due to concerns that C.L. could not care for A.L. Ultimately, a feeding tube was inserted into A.L., because she failed to thrive. As a result of A.L.’s custody with the Department, concern grew for J.L.’s welfare, and he was also taken into custody.

According to Byrd, two of C.L.’s five case plans had as their goal reunification of the family. In May 2010, the case plan was changed from a goal of reunification to adoption due to “lack of progress on the case plan,” which change was approved by the trial court. As noted by Byrd, the major domains of the case plans addressed food and basic needs. Byrd testified that C.L. was instructed to: maintain a current address with the Department for at least six months, along with notification to the Department within 72 hours if she moved; maintain utilities and an adequate food supply in the house; and, develop a budget. Byrd noted that C.L. did not maintain stable housing, and her homes have not met the needs of her children. Byrd’s records showed that C.L. did not maintain electricity, running water, or an adequate food supply. Moreover, according to Byrd, the Department had |sdocumented 25 moves by C.L. during the time in which the children were in custody, and she did not consistently inform the Department of those moves. Byrd described C.L.’s contact as sporadic.

Another domain of the case plan that C.L. failed to fully comply with was her participation in a parenting class. According to Byrd, C.L. did not visit with her children regularly enough to demonstrate that she learned anything from the classes. Furthermore, C.L. was also instructed to participate in visitation coaching, but the service was closed to her when she failed to participate. Regarding her visitation with the children, Byrd testified that during the Department’s involvement since 2009, she has had 54 scheduled visits, and had only attended 29 of the visits.

Related to C.L.’s housing situation, Byrd testified that there were also issues with C.L. allowing questionable individuals access to her home. C.L. had been instructed not to allow any convicted felons, drug users or sexual perpetrators access to her home. According to Byrd, once when she was bringing C.L. home, a man was being arrested on her front porch for a sexual offense. Byrd felt that C.L. did not understand the danger posed to her children by such individuals. Notably, J.L.’s biological father is a registered sex offender.

Finally, Byrd testified that C.L. was instructed to maintain a budget, which Byrd helped her to devise. However, C.L. was unable to maintain a budget, primarily by failing ever to obtain affordable housing.

Kathy Judd, an instructor of educational programs for LSU Agricultural Center, also testified. C.L. attended parenting classes led by 19Judd, who stated that C.L. began classes in February 2010, attended three classes, stopped for seven months and then began again. Although C.L. completed the program in November, Judd did not feel that C.L. comprehended the class information, nor did Judd believe that C.L. could implement the information covered in class. Notably, Judd testified that C.L. tended to blame others for any problem she had.

Further, the testimony of Dr. John Si-moneaux, an expert in psychology, also clearly proved that C.L. has “no reasonable expectation of significant improvement” in the near future regarding her case plan. Dr. Simoneaux evaluated C.L. twice: approximately two years before the termination hearing and in January 2011. When he initially evaluated C.L., he was limited in the type of test he could administer to her, because her reading ability was so low. Dr. Simoneaux conducted an abbreviated intelligence test on C.L. and determined her full scale I.Q. to be 73, which he described as “the borderline range of functioning just slightly higher than what we would consider to be mental retardation!.]” An I.Q. of 73 placed C.L. in the bottom third percentile in the United States. Dr. Simoneaux opined that C.L.’s low intelligence made it difficult for her to parent, especially children who were medically compromised.

Dr. Simoneaux also described C.L.’s problem with judgment, and how that affected her ability to parent. He described that C.L. lived a very impulsive life and she had very little ability to see how behavior today would affect tomorrow. Dr. Simoneaux noted that she often made decisions based on what felt best at the moment, be that in areas regarding sex, drugs, | inor her housing. She simply made very impulsive, spur of the moment decisions, without any consideration of long-term consequences.

Dr. Simoneaux did note that C.L.’s low I.Q. alone did not necessarily render C.L. unable to parent, but that her I.Q. combined with her personality characteristics were problematic. Both times Dr. Simo-neaux saw C.L., he conducted a Global Assessment of Functioning (“GAF”) on her, which test measures a person’s ability to function. According to Dr. Simoneaux, a perfectly functioning human being would score a 100, with “problems” beginning to present around a score of 70. He noted that the average child protection evaluations he made were in the 60-65 range. In his professional opinion, if a person scored below a 50, he would be reluctant to allow the person to leave his office because that person’s functioning in society would be severely limited. The first time he evaluated C.L., she scored a 50, the lowest score he tended to give. At that time, her GAF score indicated that she was unable to parent her children without risk to them. When he saw her the second time, he believed her functioning condition to be even worse, and her ability to parent worse, in light of the efforts the Department had taken to improve her condition. He saw no improvement in C.L., and perhaps even regression, despite the Department’s efforts.

Dr. Simoneaux noted he would love to say there could be a plan to keep the children with C.L.; however, he did not believe there was such a plan. Supervision under such a case with C.L. would need to be 24 hours a day. He could not envision any protective services that could be put in place for the children. Although he certainly did not think that C.L. had any h, malicious intent with the children, Dr. Simoneaux opined that he didn’t “think there’s much prospect that she’s going to be able to parent these children so I believe termination of parental rights may be the best thing for them.”

Finally, our review of C.L.’s own testimony does little to persuade us that termination of her parental rights was in error. At the termination hearing, C.L. was again pregnant. C.L. contradicted the Department’s assertion that she had moved 25 times during the children’s custody — she maintained it had only been 15 times “more or less,” two of which moves she admitted had been in the last three months. She admitted to not informing the Department of all her moves, because she did not have a phone, nor did she know anyone with a phone to use. Although she and her mother had a violent history together (her mother previously gave her a black eye), C.L. explained that she liked living with her mother, because her mother helped her out with things she “didn’t understand.” When asked if she could relate any parenting techniques she learned in parenting class, she stated how she could “get down to their level, talk to them like a normal person, don’t get mad and don’t show anger or anything”; however, she could not remember any other parenting techniques she had learned. C.L. claimed that she attended over 29 visits with her children (although she did not count them), and the reason she missed so many others was for lack of transportation. Further, C.L. stated she attended only one medical examination, because she did not know she could attend others. C.L. [12admitted there was only one residence she lived in for longer than six months, but she could not remember the reason she moved.

Here, the record shows that the Department has proved by clear and convincing evidence that C.L. failed to comply with her case plan, and that there is no reasonable expectation of significant improvement in her condition and conduct in the near future. It is evident that the Department proved that C.L. was unable to adhere to any case plan the Department set forth. Even if C.L. had moved only 15 times as she claimed, and not the 25 times the Department had records of, that would still be sufficient to show that she failed to maintain a safe and stable home for at least six months as required. The only home C.L. admitted to keeping for six months, she described as being too cluttered for the Department’s standards, and she could not even remember why she moved. Additionally, the Department proved that C.L., although she attended and completed the required parenting classes, was unable to apply the information taught in those classes. Other than one piece of information, C.L. was unable to describe at the hearing any parenting techniques she should have acquired through those classes.

Furthermore, considering that statutory grounds for termination were proven, Dr. Simoneaux’s testimony supports the judgment that termination of C.L.’s parental rights was in the children’s best interest. Considering the deficiencies C.L. has in both intellect and functioning, it does not appear that she will ever have the judgment necessary to care for these two young, medically challenged children. Children need permanency and stability, and |1sforcing them to remain in foster care indefinitely, when there is no hope of reunification, runs afoul of state and federal mandates to further the best interests of the child. State ex rel. J.J.B. v. A.N.B., 45,238 (La.App.2d Cir.03/03/10), 32 So.3d 372. Thus, the trial court did not err in finding that it was in the best interest of the children to terminate C.L.’s parental rights and free them for adoption.

Conclusion

Considering the foregoing, the judgment of the trial court terminating C.L.’s parental rights as to her minor children, J.L., and A.L. is affirmed. All costs of this appeal are assessed to C.L.

AFFIRMED.

      . That child is currently in the custody of the Department.