author: GASKINS, J. CARAWAY, J.,

text:
    Denise Oden Nee HOWARD, Plaintiff-Appellant v. Frederick L. ODEN, Jr., Defendant-Appellee.
    No. 44,191-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Feb. 25, 2009.
    Rehearing Denied April 2, 2009.

      Richard L. Fewell, Jr., for Appellant.
    Shawn D. Akers, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   GASKINS, J.

[/The mother, Denise Oden, appeals from a trial court judgment which held her in contempt of court for the third time. Because of the mother’s repeated and willful failure to follow the court’s order disallowing contact between her children and the man she has now married, the trial court found her in contempt and granted primary domiciliary custody of her children to their paternal grandfather. For the reasons set forth below, we affirm the trial court judgment.

At the outset, we believe it is important to note that the difficulties with the children’s custody in this matter appear to emanate from the troubling behavior of their father, who has mental health problems, and the inability of their mother to provide them with a safe and stable environment. Postseparation and postdivorce, the mother had primary custody of the children, but her inability to care for them emotionally was so troubling that the Office of Community Services/Child Protection monitored her parenting skills and the trial court ordered counseling. The trial court has provided significant supervision of this case and has found the mother to lack credibility and to be defiant of court orders. Some of the problems that have afflicted the extended family have been instigated by the mother. Despite the aim of the Office of Community Services/Child Protection and the trial court to stabilize the children’s environment, the mother introduced a disruptive presence into her home, her boyfriend (now husband) Chad Smith. It is the trial court’s attempt to bring equilibrium to the children that has resulted in the court finding the mother in contempt of court for the third time and in the consequent change of custody.

| .FACTS

The mother married Frederick (Rick) L. Oden, Jr., in 1988. The parties had three children: an adopted son, Steven, who was born in 1993; a daughter, Emilee, born in 2000; and a daughter, LeighAnn, born in 2003.

The mother filed a petition for divorce in January 2005, in which she alleged both spousal and child abuse; she sought primary care and custody of the children. In a judgment dated April 20, 2005, the mother was awarded primary custody of the children subject to the father’s specified visitation and an attached joint custody plan.

The parties were divorced in September 2006. To say that the relationship between the parents became toxic is a gross understatement. The record is replete with evidence of numerous police contacts involving both parties, documenting a wide variety of conflicts. They ranged from physical confrontations between the parties and/or their relatives to physical abuse of one of the children to accusations of trespassing, improper communications, stalking, harassment, and theft. The record clearly demonstrates that the father suffers from mental illness and that his contacts with the children should be supervised; generally, this supervision has been provided by the paternal grandparents, Frederick (Fred) and Paula Oden. The record also establishes that the couple’s son has behavior and emotional issues which led to his residing during the week with the paternal grandfather, who homes-chooled him.

The mother’s relationship with her boyfriend, Chad Smith, became an issue in the custody proceedings. In fact, the third hearing officer | aconference (HOC) report — which was dated March 21, 2007, the date of the conference- — contained the following provisions in the portion containing the hearing officer’s recommendations on interim custody and visitation:

2. Mother shall allow no contact whatsoever between the children and her current boyfriend, Chad Smith. He is not to be allowed in the home if any of the children are present. He is not to speak to the children by phone or in writing. The “paddle” made by Chad Smith shall be destroyed. The mother shall allow no “parenting” input whatsoever from Chad Smith. The mother’s past practice of allowing him to whip or spank or otherwise discipline the children is completely unacceptable. Violation of this provision shall be grounds for immediate removal of the children from her custody, and by punishment as contempt of court. [Emphasis theirs.]
A. This recommendation had already been arrived at prior to the HOC, based on the information provided by Dr. [Mark] Vigen’s report. However, his behavior at the conference should be noted.
1. The undersigned [hearing officer Lisa Rogers Trammell] had asked court security to keep an eye on things, given the past volatility of the parties. Lt. Walt Hendry periodically walked through the hallway and checked on the various groups of participants.
2. At approximately 2:30 p.m. the hearing officer’s assistant advised that Mr. Smith had commented to her that he did not appreciate “that security guard” looking into the conference room, and that if the “security guard” popped off to him one more time, he was going to “tie into” him. The hearing officer at that time personally informed Mr. Smith that his presence was no longer welcome and he was to wait outside in the hallway. The bailiffs were then alerted to his comments and told to take whatever measures they deem appropriate to keep order and to handle the threat made by Mr. Smith.

|/The parties accepted all interim recommendations; pursuant to their stipulations, the trial court signed an interim judgment adopting the interim recommendations on March 28, 2007.

Following the fourth HOC on June 11, 2007, a report was issued. The hearing officer concluded that the mother was “only marginal” in her ability to parent the daughters and unable to parent the son at that time; all of the experts agreed that she needed “continued extensive therapy and parenting training.” The hearing officer noted that one of the goals it was hoping to achieve was keeping the children out of foster care. Again, there were issues pertaining to Chad Smith. The following recommendation was included:

7. As ordered last time, Mother shall allow no contact whatsoever between the children and her current boyfriend, Chad Smith. He is not to be allowed in the home if any of the children are present. He is not to speak to the children by phone or in writing. The “paddle” made by Chad Smith shall be destroyed. The mother shall allow no “parenting” input whatsoever from Chad Smith. The mother’s past practice of allowing him to whip or spank or otherwise discipline the children is completely unacceptable. Violation of this provision shall be grounds for immediate removal of the children from her custody, and by punishment as contempt of court. [Emphasis theirs.]
A. It is alleged that Mother has violated this provision by allowing Chad Smith to attend a ballet recital for the girls, and by constantly bombarding the children with messages about what Chad is doing, and how much he | Joves them, et cetera. There are also reports Chad and mother’s brother Danny have been harassing the Father, substantiated by a police report. The mother’s brother was arrested on an outstanding warrant.
1. All the involved parties concur that this incident culminated in the Father displaying a rifle. This sort of provocation of the father by the mother’s brother and boyfriend, when he is clearly unstable, contributes greatly to the danger level of all parties, including the children. The under-signed [hearing officer] is satisfied that the mother is in contempt of court for violating the “no contact” provision regarding Chad. The mother is sentenced to 90 days in jail, suspended, conditioned on her immediate cessation of any contact with the children and Chad Smith, including her own efforts to make Chad a constant presence by telling the children how much he loves them, et cetera. SINCE THIS CONCEPT SEEMS DIFFICULT FOR HER TO UNDERSTAND, IT WILL BE PUT IN SIMPLE WORDS: ONE MORE VIOLATION AND SHE WILL BE DOING 90 DAYS IN THE MOREHOUSE PARISH DETENTION CENTER WHILE ALL THREE CHILDREN STAY WITH THE PATERNAL GRAND-PRAENTS [sic]. Compliance will be reviewed at the next status conference and sentence executed if necessary. [Emphasis theirs.]

A judgment adopting the hearing officer’s recommendations was signed on June 27, 2007.

Following the fifth HOC on August 13, 2007, the hearing officer reviewed the facts that she had seen this family five times in 10 months and enlisted the assistance of various agencies, all of whom had “made exhaustive efforts to keep the children from going into foster care.” While the children seemed “comparatively” stable, she noted that the adults were not. As she felt a full trial on all issues was unavoidable, the hearing officer recommended that no more HOCs be held. In the meantime, she | f,recommended that domiciliary custody of the children remain with the mother, subject to the special provisions for time with the paternal grandfather and the father’s supervised visitation. Again, the hearing officer placed in her recommendations the same prohibition of contact between Chad Smith and the children. She also noted that the mother was still subject to a 90-day suspended sentence as a result of her prior violation. Pending final disposition, the trial court adopted the HOC report as its interim order by judgment signed on August 21, 2007.

Beginning in early 2008, a nine-day trial was held. At its conclusion, the trial court issued a judgment wherein it awarded joint custody of the three children to the mother and the paternal grandfather. The custody plan provided for the daughters to reside primarily with the mother and the son with the grandfather. A weekend visitation schedule was established by which the mother would not have visitation with all three children on the same weekend. However, the court provided that this could be modified at a later date upon the recommendation of the parenting coordinator, Tamara Thompson of Family Matters. The mother was also awarded visitation with the son on Tuesday evenings.

On the issue of contempt and the mother’s refusal to obey the court’s directive to keep Chad Smith away from the children, the judgment contained the following:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the findings of contempt and sentence of ninety days in jail previously instituted by the Hearing Officer are affirmed; additionally, the Court finds that Denise Oden allowed contact between the children and Chad Smith since the time of the fifth hearing conference and, accordingly, holds Denise Oden in |7additional contempt of court and sentences Denise Oden to an additional ninety (90) days in the parish jail, said additional ninety-day sentence to run consecutively to the previously existing ninety-day sentence imposed by the hearing officer and affirmed herein. Said sentences of jail time, totaling 180 days, are suspended contingent upon immediate cessation of violations of the court’s orders and payment of all costs of these proceedings by Denise Oden.

During the hearing at which the court made the above rulings, the trial court addressed numerous matters. Among these were the mother’s credibility, which it found “severely challenged” on several matters. Although she denied contact between the children and Chad Smith, the evidence had revealed that they were sharing the same babysitter and that the mother dropped her daughters off at Smith’s house every morning to catch the school bus. The court noted that even her own mother contradicted some of her testimony about the children’s contacts with Chad Smith. It also questioned her judgment in repeatedly and flagrantly violating the contact prohibition, especially in view of the possibility of losing her children as a result. Given the son’s emotional problems and his issues with anger/aggression, the court was particularly disturbed by the boy’s contacts with Chad Smith and his family, which included shooting at dogs on a deer hunting excursion and disturbing photos involving the child and a slaughtered deer. The court stated:

I don’t know what to do to make you understand ma’am that this is serious. Your own selfish desires with this guy need to be put aside out of the best interest for your children to work through these issues.

The judgment containing the mother’s second contempt citation was signed on May 8, 2008. Only 17 days later, on May 25, 2008, the mother | Rmarried Chad Smith. Approximately a week after the wedding, she allowed him to move into the home where her daughters resided with her.

On June 27, 2008, the father filed a motion for contempt and modification of custody. The father brought the mother’s marriage to the court’s attention. He requested that she be held in contempt again and that sole custody of the children be awarded either to him or to the paternal grandparents.

The contempt matter came before the court for hearing on August 11, 2008. Ms. Thompson, the family’s parenting coordinator, testified that the mother did not tell her of her plans to marry. She stated that she did not find out about the marriage until three weeks before the contempt hearing. In view of the court order directing that the mother be sent to jail if she allowed Chad Smith around the children, she thought the mother’s action in marrying him was “really risky.” She also testified that the daughters had already related to her an incident since the marriage when Smith — despite the court’s repeated orders that he was to play no role in disciplining the Oden children — picked up one of the girls and threw her on her bed and threatened to spank her. She described his behavior in throwing the child on the bed as inappropriate. Following Ms. Thompson’s testimony, the court found that a prima facie case of contempt had been established.

The trial court allowed the mother to present evidence of mitigation. However, the first witness she called, psychologist Dr. E.H. Baker, testified | flthat even though he saw the mother on May 26, 2008, she failed to tell him that she had gotten married the day before. She did not inform him of the marriage until she saw him on July 23, 2008, at which time she mentioned the instant contempt matter. Dr. Baker said he had spoken to Smith once for about five to six minutes. He was concerned that Smith was only 26 years old and had already been married twice before; he also had a child from each of those marriages.

Smith testified that he had custody of his two daughters, ages four and eight. He denied punishing the Oden children in any manner except verbally. He said his relationship with the Oden children was “lovely” and that he did not have any reason to favor his children over them.

Fred and Rick Oden also testified. Primarily they were asked about the emotional health of Paula Oden, the paternal grandmother. Fred, the paternal grandfather, testified that she had experienced hallucinations and had reactions to her medications. She was currently living with another one of their sons elsewhere, and he stated that he would not let her be around the children until her mental health issues had been resolved. He stated that he had no reservations about caring for all three of his grandchildren if necessary. Rick testified that he was continuing with his counseling and that he was willing to help his father with the children at any time.

The mother testified that she thought the court orders prohibiting Smith from being around the children only had to do with his status as her “boyfriend.” She insisted that her new marriage to Smith had stabilized her family. She stated that she did not tell Dr. Baker about the marriage when hpshe saw him the day after the wedding because they “ran , out of time” in her appointment. She testified that Smith was quiet and did not have a bad temper; however, she conceded that he was not nurturing. She admitted that Steven was doing well in the care of the paternal grandfather; she even requested that the current custody situation be allowed to continue.

In its oral ruling, the court emphasized that the counselors involved with the Oden family felt that the mother needed to put aside her personal relationship and focus her emotional energies on the situation with the children. It noted her continuing credibility and judgment problems and expressed concern about her failure to tell Ms. Thompson or Dr. Baker about the marriage. The court also expressed concern about Smith throwing the child on the bed and threatening to spank her when there was a prohibition against his administering any discipline to the Oden children. Given the mother’s own admission that Smith was not a nurturing person, the court wondered at her exposing her children to someone like him when the children were in such need of nurturing and kindness. The court found that the addition of Smith and his two daughters to the mother’s household had undermined the ultimate goal of reuniting the three Oden children.

The court sentenced the mother to yet another 90 days in jail; because she would lose her job as a school teacher if she had to go to jail, the court again suspended her sentence. This suspension was subject to her abiding by the prohibition against contact between her children and Smith and her continuing counseling. The court also removed the daughters from her custody and, due to the best interest of the children, designated the paternal | n grandfather as their primary domiciliary caretaker. She was given weekend visitation with her children with the exception of every third weekend; that weekend they were to stay with the grandfather so they could have visitation with their father. The mother’s visitation was premised on Smith and his daughters not being present so that the mother could focus on her relationship with her own children.

Judgment in conformity with this ruling was signed September 11, 2008. The mother is now subject to three consecutive sentences of 90 days, or a total of 270 days, which are suspended contingent upon her immediate cessation of violations of the court’s orders.

The mother now appeals from the September 11, 2008, judgment.

CONTEMPT

Law

A contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the coui't or respect for its authority. La. C.C.P. art. 221. The willful disobedience of any lawful judgment or order of the court constitutes a constructive contempt of court. La. C.C.P. art. 224(2). To find a person guilty of constructive contempt, it is necessary to find that he or she violated the order of the court intentionally, knowingly, and purposely, without justification. In re S.L.G., 40,858 (La.App. 2d Cir.1/25/06), 920 So.2d 363.

| i2The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying the court’s order and its decision will only be reversed when the appellate court can discern an abuse of that discretion. Stephens v. Stephens, 30,498 (La. App. 2d Cir.5/13/98), 714 So.2d 115. A proceeding for contempt in refusing to obey the court’s orders is not designed for the benefit of the litigant, though infliction of a punishment may inure to the benefit of the mover in the rule. The object of the proceeding is to vindicate the dignity of the court. In re S.L.G., supra.

La. C.C.P. art. 227 specifies that the punishment which a court may impose upon a person adjudged guilty of contempt of court is provided in La. R.S. 13:4611. That statute provides, in pertinent part:

Except as otherwise provided for by law:
(1) The supreme court, the courts of appeal, the district courts, family courts, juvenile courts and the city courts may punish a person adjudged guilty of a contempt of court therein, as follows:
(d) For any other contempt of court, including disobeying an order for the payment of child support or spousal support or an order for the right of custody or visitation, by a fine of not more than five hundred dollars, or imprisonment for not more than three months, or both.
(f) A pattern of willful and intentional violation of this Section, without good cause, may constitute a material change in circumstances warranting a modification of an existing custody or visitation order.

\ ^Discussion

In brief, counsel for the mother claims that, as a lay person, she might have interpreted the trial court’s several prohibitions against Smith being around the children as being related to his “status” as her boyfriend, a situation remedied by making him her husband. Such a contention flies in the face of the overwhelming evidence. The record clearly shows that the orders barring Smith from the children were tied not to his status as a boyfriend, but to him inherently. We note his actions, which included inappropriate punishment of the Oden children and the construction of a “paddle” for that purpose. The record shows that he also engaged in questionable behavior directed at the mentally ill father, as well as a court security officer at the third HOC. Furthermore, the court, relying upon the psychologists evaluating the family, believed that the mother needed to concentrate all her attention upon the serious problems involving her own children, especially her very troubled young son. The stresses of embarking upon another marriage — which came laden with two stepchildren — could hardly be construed as conducive to dealing with the problems that already existed in the mother’s life pertaining to her first failed marriage and the children of that union.

If the mother felt that the court orders prohibiting contact between Smith and the children were erroneous, she should have sought review of | uthem. However, until this — her third contempt citation for the same offense — she has never appealed any judgment that incorporated the no-contact order or found her in contempt. Nor did she even file an objection to the HOC recommendations that Smith be barred from being around the children. Instead, the mother opted to simply ignore the orders and act as though they did not exist.

The sentence of 90 days imposed by the trial court is within the perimeters of La. R.S. 13:4611(l)(d). Given her pattern of blatant disobedience of the court’s no-contact order and the extreme manner by which she chose to violate the order this time — marrying the man prohibited from being around her children and moving him and his family into her home with her and her children — we cannot say that the sentence is excessive. However, as on the mother’s two previous contempt citations, the trial court mercifully chose to suspend the sentence so that the mother would not lose her job. A person found to be in contempt has no right to a suspension of sentence, but, in fact, is the beneficiary of the court’s clemency when such a suspended sentence is imposed. Wicker v. Wicker, 373 So.2d 210 (La.App. 4th Cir. 1979); Goins v. Goins, 437 So.2d 947 (La. App. 2d Cir.1983).

Additionally, we find that the record supports a finding that the mother engaged in a “pattern of willful and intentional violation ... without good cause” which, pursuant to La. R.S. 13:4611(l)(f), may be considered as a material change in circumstances warranting a modification of the 11fiexisting custody order. The change of custody ordered by the trial court will be discussed infra.

We find no abuse of the trial court’s much discretion in finding the mother is contempt and in giving her a suspended sentence of 90 days.

CUSTODY

Law

The best interest of the child is the guiding principle in all custody litigation. La. C.C. arts. 131 and 134; Myles v. Moore, 36,452 (La.App. 2d Cir.8/30/02), 827 So.2d 516. In a conflict between parents and nonparents, the parent enjoys the paramount right to custody of a child, and may be deprived of such right only for compelling reasons. Tennessee v. Campbell, 28,823 (La.App. 2d Cir.10/30/96), 682 So.2d 1274; Myles v. Moore, supra. At an initial custody contest between a parent and a nonparent, the burden of proof is on the nonparent to show that granting custody to the parent would be detrimental to the child, and that the best interest of the child requires an award of custody to the nonparent. However, after an initial considered decree, the parent’s paramount right to custody must be weighed in conjunction with the principles expressed in Bergeron v. Bergeron, 492 So.2d 1193 (La.1986). Tennessee v. Campbell, supra. See also Myles v. Moore, supra. When a trial court has made a considered decree of permanent custody, the party seeking a change in custody bears a heavy burden of proving that the continuation of the present custody is so | ^deleterious to the child as to justify a modification of the custody decree, or proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child. Bergeron, supra. A considered decree is one in which evidence as to parental fitness to exercise custody is received by the court. Tennessee v. Campbell, supra; Bragg v. Horne, 33,857 (La.App. 2d Cir.6/21/00), 764 So.2d 1177.

La. C.C. art. 133 provides:

If an award of joint custody or of sole custody to either parent would result in substantial harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment, or otherwise to any other person able to provide an adequate and stable environment.

Comment (c) to this article provides that an award of joint custody to nonparents is not precluded, citing Schloegel v. Schloegel, 584 So.2d 844 (La.App. 4th Cir.1991); in that case, an award of joint custody between the child’s father and the maternal grandmother was upheld as within the trial court’s discretion. See also Matter of Landrum, 97-826 (La.App. 3rd Cir.12/10/97), 704 So.2d 872; Robert v. Gaudet, 96-2506 (La.App. 1st Cir.3/27/97), 691 So.2d 780; and Rupert v. Swinford, 95-0395 (La.App. 1st Cir.10/6/95), 671 So.2d 502. However, see also Merritt v. Merritt, 550 So.2d 882 (La.App. 2d Cir. 1989); like Schloegel, supra, this case dealt with La. C.C. art. 133’s pre-1993 amendment predecessors.

117Discussion

Joint custody between the mother and the paternal grandfather was awarded in the judgment signed in May 2008. The mother did not appeal that judgment, which was rendered after a nine-day trial and therefore is a considered decree. Since La. C.C. art. 133 addresses initial awards of custody to nonparents, it is inapplicable in the instant matter.

The mother concedes application of the Bergeron standard after a considered decree, i.e., proof that the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or proving by clear and convincing evidence that the harm likely to be caused by a change of environment is substantially outweighed by its advantages to the child.

We note at the outset that pursuant to La. R.S. 13:4611(l)(f), the mother’s “pattern of willful and intentional violation ... without good cause” may be considered as a material change in circumstances warranting a modification of the existing custody order. Indeed the mother was repeatedly warned in the HOC recommendations, which were adopted by the trial court as its judgments, that violation of the no-contact provision “shall be grounds for immediate removal of the children from hér custody.” | ,8We cannot imagine a more blatant and substantive violation of this order than marrying the person ordered to have no contact with her children and moving him into the children’s home where daily contact with them is completely unavoidable.

The Oden daughters said some positive things about Smith to Ms. Thompson. However, they also revealed that although the mother was ordered not to allow Smith to discipline the children, he had thrown one of the girls on a bed and threatened to spank her. While Smith denied any physical discipline of the girls, Ms. Thompson testified that the mother recalled and confirmed the occurrence of this incident to her. As the family’s parenting coordinator, Ms. Thompson believed that this was not appropriate discipline. It is noteworthy and troubling that this event occurred so soon after Smith moved into the mother’s home. In light of the information in this record pertaining to Smith previously “disciplining” the Oden children, the trial court’s apprehension on this issue appears to be justified. Prior judgments called for the destruction of a “paddle” he made for use on them.

The mother resided in a three-bedroom, two-bathroom trailer home; however, only one bathroom functioned. Prior to her marriage to Smith, her two daughters shared a bedroom while she and her son each had a bedroom. Since the marriage, the mother and Smith share a bedroom, while their eight-year-old daughters share another bedroom. The bedroom that formerly belonged to her son is now shared by the couple’s four-year-old daughters. When the son is present, he is relegated to a bed in the corner of [1flthe playroom or the bed of one of his absent sisters. The trial court expressed concern as to this emotionally fragile boy being forced out of his own room due to the addition of Smith’s daughters to the household.

The paternal grandfather testified that at his residence each child has his or her own bed. He also testified that he would put the needs of his grandchildren first. As to the unfortunate situation with his wife’s health issues, he testified that he was insisting that she obtain the professional help that she needed but that she was not allowing him to help her at that time. He was adamant that he would not let her return home until she addressed her issues so that the children would be safe. As to the quality of care the grandfather is able to give the children, even the mother admitted that her son was doing well with him. The record shows that the grandfather homeschooled this troubled young boy and gave him the stability he needed; the child has now been able to enroll in a private school.

The record before us indicates that the trial court originally allowed the mother to enjoy joint custody of the children with the paternal grandfather after she declared her intention to comply with the orders pertaining to Smith for the good of her children. In view of the serious questions surrounding the mother’s relationship with and now her subsequent marriage to Smith, her repeated and blatant violations of a court order prohibiting this man from any contact with her children, Smith’s own laflactions in “disciplining” the children despite repeated court orders to abstain from such actions, the need of her children (especially her emotionally fragile son) for her undivided attention when they are with her, and the current living arrangements, we find that the trial court did not err in finding that continuation of the current situation was so deleterious as to now warrant changing primary domiciliary care of the Oden daughters from the mother to the paternal grandfather.

It is clear from the manner in which the trial court handled this matter that the change of custody is not the trial court’s infliction of a punishment upon the mother for her disobedience of its orders; rather it is a sad acknowledgment of the fact that the mother has repeatedly shown that she does not have the best interest of her children at heart. The trial court properly directed the mother to continue with counseling, which will hopefully be helpful in future assessments of this difficult ongoing custody matter.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed against the mother, Denise Oden.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

hi respectfully do not accept the majority’s characterization of this custody dispute because of all that is missing in the record before this court. The case is depicted as teetering on the edge of a child in need of care proceeding; yet the Office of Community Services/Child Protection agency has not been asked to intervene. Upon the motion of the mentally ill father, the present custody ruling virtually ends the parental rights of the mother in favor of a nonparent who is not a party to this action. The testimony of the nine-day trial which concluded in February 2008 maintained the mother’s parental rights and primary custody of the two daughters, yet that evidence in her favor is not in the appellate record. Mr. Smith is not a felon; he is the custodian of his own children; and he has never been the subject of a child protection agency review. The issue of the mother’s right to marry such person was never directly addressed and prohibited by the prior proceedings, and yet has now become the linchpin for the termination of the parental rights. The mother’s conduct which resulted in her loss of custody was not measured by the trial court under either Civil Code Article 133— “substantial harm” to the children — or the Bergeron test — “so deleterious” to the children. The trial court’s ruling articulated neither standard and was primarily based upon the newly pronounced prohibition upon the mother’s right to marry and the corresponding ex post facto imposition of contempt. Therefore, I am not prepared to end the mother’s parental rights in favor of a nonparty to this action under these circumstances and the record before us.

|2Under La. C.C.P. art. 927, the court may notice on its own the peremptory exception involving the nonjoinder of a party. Had Mr. Fred Oden been made a party and sought custody under La. C.C. art. 133, the custody ruling in his favor might have been properly adjudicated with a specific determination that custody in Denise Oden “would result in substantial harm to the children.” Procedurally and substantively, this did not occur. I would therefore reverse the rulings of the trial court on those procedural and substantive grounds.

APPLICATION FOR REHEARING

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

|! Rehearing denied.

WILLIAMS and CARAWAY, JJ., would grant rehearing.

      . At the time of the third HOC, the psychologists evaluating the parents raised the possible necessity of placing the children in foster care because of fears that neither parent was able to provide suitable care. The hearing officer requested that an alternate recommendation to foster care be developed, which recommendation was thereafter implemented with some modifications. While the mother had domiciliary custody of the three children, the paternal grandparents were given physical custody of Steven during the week with visitation with the girls every other weekend. The paternal grandfather assumed the responsibility of homeschooling Steven. The father was not allowed any contact with the children at that point. As "gatekeepers,” the grandparents agreed to honor the court’s order and permit their son no contact with the children until directed otherwise.

      . Although the mother filed a pleading entitled "Answer to motion for contempt and for motion of custody order and exception of failure to state a cause of action and recon-ventional demand and third party claim for contempt and modification of custody order,” the court ruled that it was not before the court when the motion to hold the mother in contempt was called up.

      . When the mother made this argument before the trial court, the judge reminded her of a previous appearance before him when she tearfully asked not to be placed in jail and said she would do what was in the best interest of her children and “cut it off” and not see Smith anymore.

      . Although the grandfather was not a party to the custody dispute, this technicality does not prevent an award of custody to him. See Stuckey v. Stuckey, 276 So.2d 408 (La.App. 2d Cir.1973); Roller v. Roller, 213 So.2d 161 (La.App. 3rd Cir. 1968); Schloegel, supra; Nail v. Clavier, 1999-588 (La.App. 3rd Cir. 11/10/99), 745 So.2d 1221, writ denied, 1999-3494 (La. 1/5/00), 752 So.2d 169; Miller v. Miller, 2004-1355 (La.App. 3rd Cir.2/2/05), 893 So.2d 233. See also Hall v. Hall, 367 So.2d 162 (La.App. 2d Cir.1979), which held that where the proper standard of proof regarding the parents’ conduct has not been met, custody cannot properly be awarded to a nonparent especially one in whom custody has not been prayed for by either parent or who is not a party.
      Here, the fourth HOC report noted that the paternal grandfather was “not technically a party’’ but had been identified as a resource by some of the psychologists and Child Protection; the report states that “everyone consented to his involvement as an alternative to foster care.”

      . Under the visitation schedule then in place, the boy only spent the night with the mother when his sisters were visiting with the grandfather.

      . Ironically, the mother criticizes the grandfather for taking this position and essentially doing what she herself refuses to do-placing the children and their well-being before his marriage.

      . At some point in the future, the court may even find it beneficial to include the mother's current husband in such counseling.


source: Caselaw Access Project

author: GREMILLION, Judge.

license: Public Domain

text:
    May YEN, et al. v. AVOYELLES PARISH POLICE JURY, et al.
    No. 2007-0225.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.
    Rehearing Denied April 15, 2009.
    See also 858 So.2d 786.
    Richard J. Guidry, Jeffrey A. Mitchell, The Cochran Firm New Orleans, New Orleans, LA, for Plaintiff/Respondents, May Yen, Lenard Moten, Lentrell Moten, Chantell Moten, Elijah Yen, Lainee Yen.
    James D. “Buddy” Caldwell, Attorney General, Baton Rouge, LA for Defendant/Applicant, State of Louisiana, through LSU Medical Ctr. Health Care Serv. Div.
    Robert L. Bussey, Mary Lauve Doggett, Bussey & Lauve, Alexandria, La, for Defendant/Applicant, State of Louisiana, through LSU Medical Ctr. Health Care Serv. Div., Huey P. Long Medical Center, State of Louisiana, through LSU Medical Ctr. Health Care Serv. Div.
    John Albert Ellis, Louisiana Dept, of Justice, Alexandria, LA, for Defendant/Respondent, State of Louisiana, Dept, of Public Safety & Corrections Avoyelles Correctional Center.
    Court composed of MICHAEL G. SULLIVAN, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| [This medical malpractice action comes before the court on remand from the Louisiana Supreme Court from this court’s previous ruling. See Yen v. Avoyelles Parish Police Jury, 07-225 (La.App. 3 Cir. 12/5/07), 971 So.2d 536. In our original ruling, we granted writ and made it peremptory, holding that the trial court erred in denying the peremptory exception of prescription filed by the State of Louisiana, through the LSU Medical Care Services Division d/b/a Huey P. Long Medical Center (HPL). For the following reasons, the trial court’s ruling is affirmed.

FACTS

On December 27, 2001, Leonard Robinson, an inmate at the Avoyelles Correctional Center, suffered a sickle cell anemia crisis and was taken to HPL, where he died on December 28, 2001. Plaintiffs, May Yen and Chantell Moten, mothers of Robinson’s children and heirs, filed a request for a medical review panel against HPL on December 22, 2002. They also filed a suit against the state through the Department of Public Safety and Corrections (DPSC), the administrator of the Avoyelles Correctional Center, and the Avoyelles Parish Police Jury. The request for a medical review panel and the suit both sounded in tort alleging medical malpractice.

In the suit, the state filed an exception of prematurity, asserting that plaintiffs, who are not themselves prisoners but rather were suing in a representative capacity, were required to pursue their claims before a medical review panel convened pursuant to the Medical Liability for State Service Act (MLSSA), La.R.S. 40:1299.39, et seq. The trial court denied the exception. The state appealed, and we affirmed, holding that the MLSSA exempted prisoners, as well as those pursuing claims as heirs of prisoners, from filing requests for medical review panels. See Yen v. Avoyelles Parish Police Jury, 03-603 (La. App. 3 Cir. 11/5/03), 858 So.2d 786. This ruling was based on the MLSSA’s definition of “patient,” La.R.S. 40:1299.39(A)(3), as:

[A] natural person who receives, or should have received, health care from a person covered by this Part and any other natural person or persons who would or may have a claim or claims for damages under applicable law arising out of, or directly related to, the claim or claims of the natural person who receives, or should have received, health care from a person covered by this Part.

Because patients who are prisoners are exempted from proceeding before a medical review panel, the heirs are likewise exempted.

The proceeding before the medical review panel against HPL continued until our ruling regarding the panel proceeding against DPSC. Following that ruling, the state filed a motion to strike the panel and exceptions of no cause of action, no right of action, lack of subject matter jurisdiction and prematurity, or alternatively a motion for summary judgment. The trial court granted the motion to strike the panel on January 10, 2005.

On March 9, 2005, plaintiffs amended the suit against DPSC to add HPL as a defendant. HPL then filed an exception of prescription. The trial court denied the exception, holding that the suit against DPSC interrupted prescription against HPL.

We granted writs and reversed. Yen, 971 So.2d 536. Plaintiffs sought review from the supreme court, which remanded the matter in light of Borel v. Young, 07-419 (La.11/27/07), 989 So.2d 42.

ANALYSIS

The Borel decision: Prior to Borel, a consistent line of cases, beginning with Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La.1986), held that the limitation on pursuing a medical malpractice case set forth in La.R.S. 9:5628 was prescriptive in nature. In Borel, the court was faced with a claim against several | shealth care providers, all of whom were “qualified” for purposes of the Medical Malpractice Act (MMA), La.R.S. 40:1299.41, et seq., governing malpractice involving private health care providers. Following the medical review panel’s opinion, plaintiffs filed suit against the hospital alone. Plaintiffs later sought to amend their petition to assert the negligence of one of the doctors, but the district court denied the amendment. Plaintiffs then filed a separate lawsuit against the doctor, which was consolidated with the suit against the hospital. That petition was filed 79 months after the date of the alleged malpractice.

The doctor filed an exception of prescription, to which plaintiffs responded that the filing of suit against the hospital interrupted prescription. The district court maintained the exception, and this court affirmed. See Borel v. Young, 06-352, 06-353 (La.App. 3 Cir. 12/29/06), 947 So.2d 824. The district court had reasoned that the limitation period of La.R.S. 9:5628 was peremptive and, therefore, not subject to interruption. We based our decision, though, upon LeBreton v. Rabito, 97-2221 (La.7/8/98), 714 So.2d 1226, which held that the more specific provisions of the MMA applied to the exclusion of the Louisiana Civil Code’s provisions regarding the interruption of prescription by filing suit against alleged joint tortfeasors found in La.Civ.Code art. 2324(C). The claim was thus prescribed.

The supreme court originally held that the provisions of § 5628 were peremptive and affirmed. That decision was handed down on November 27, 2007. Subsequently, the Borel plaintiffs requested and were granted rehearing. On rehearing, the supreme court held that § 5628 was not per-emptive, but prescriptive. It further held that the prescriptive period was not subject to interruption, but only to suspension.

_|_4Prescription versus peremption: Had the original decision in Borel remained the ruling of the supreme court, the decision would have been momentous. Real consequences flow from the distinction between prescription and peremption. Liberative prescription is defined in La. Civ.Code art. 3447 as “a mode of barring of actions as a result of inaction for a period of time.” Peremption, on the other hand, “is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” La.Civ.Code art. 3458. In other words, prescription sets a time limit within which one is allowed to seek enforcement of a right; peremption completely does away with the right. Prescription under the Civil Code may be suspended, or interrupted by the filing of suit against a soli-dary obligor or a joint tortfeasor or by acknowledgment of the obligee’s right, per La.Civ.Code art. 3464. Peremption is not subject to suspension or interruption. La. Civ.Code art. 3461. Prescription, once it has tolled, can be renounced. La.Civ.Code art. 3449. Peremption cannot be renounced. La.Civ.Code art. 3461.

The supreme court in Borel noted that classifying § 5628 as a peremptive statute is to place it at odds with the MMA’s provision suspending the tolling of the period during the pendency of the review panel proceeding. La.R.S. 40:1299.47(A)(2). This was further indication that § 5628 is prescriptive and not peremptive.

Section 5628 then stands as a “hybrid prescriptive statute which expressly limits application of the discovery rule in an action for medical malpractice to a maximum of three years ...” Borel, 07-0419, 18-19, 989 So.2d 42, 63. Otherwise, as the court noted in footnote 9, the result could be cases that become perempted before the medical review panel process has run its course.

Comparison of MMA and MLSSA provisions: The Borel case arose under the Medical Malpractice Act, whereas the present matter arises under the MLSSA. We see no distinction in the statutes, other than the exemption of prisoners from the review panel process. Indeed, the two suspension provisions are virtually identical, save that a panel convened under the MLSSA is referred to as a “state medical review panel.” They even bear the same subsection numbering: (A)(2)(a) and (c). Therefore, the jurisprudence interpreting the suspension provisions of the MMA also applies to the MLSSA.

Further indication that the Civil Code’s provisions do not apply to MLSSA actions is found in La.R.S. 40:1299.39(0, which provides:

Since the Louisiana Civil Code was enacted only in the domain of the private law, governs only the legal relationships of private persons among themselves alone, and is inapplicable to public entities and their legal relationships, there is no right nor legal basis ex delic-to, or ex quasi-delicto, for an action by a patient or his representative to recover damages or any other losses, including those for the death of the patient, from the state or a state health care provider as defined in this Section as a result of malpractice in connection with state-provided or state-related health care; however, a patient, his representative properly acting for him, or his after-death representative shall have a right to recover from the state certain losses to the extent and within the limitations defined and allowed by this Section of public law due to malpractice as defined in this Section, in the circumstances and within the parameters provided by this Section, on the sole basis of this Section as a special substantive sui generis statutory grant in the domain of public law. This Section shall not be construed to limit, waive, or prohibit claims for lack of informed consent or breach of contract as defined by statutes or otherwise provided by law.

This is a clear expression by the Legislature that actions against the state are governed solely by the provisions of the MLSSA.

Application of MLSSA: What does create a clear distinction between the MLSSA and the MMA in the present matter is the exemption of prisoners from the review panel process in actions under the MLSSA. Originally, prisoners were | ^exempted from this requirement because their claims were subject to review under the Correctional Administrative Remedy Procedure (CARP), La.R.S. 15:1171, et seq. La.R.S. 40:1299.39(E)(1). However, the Louisiana Supreme Court in Pope v. State, 99-2559 (La.6/29/01), 792 So.2d 713, held that CARP violated the state constitution, specifically Art. 5, § 16, insofar as it divested district courts of their original jurisdiction over tort claims. The Legislature has not corrected what appears to the court as a paradox: ordinary citizens claiming malpractice against a state agency are required to follow the review panel process, while prison inmates are exempt from any such procedure.

To further complicate the task, while plaintiffs were pursuing medical malpractice claims against two separate agencies of the state, DPSC and HPL, they requested a review panel against HPL but opposed DPSC’s attempts to require a panel. Plaintiffs were not alone in this contradiction. The state fought for a panel to review the claim against DPSC on the one hand and, on the other, succeeded in striking the panel convened to consider the claim against HPL. A state medical review panel was not allowed by this court; yet the state did not move to strike the HPL panel until well after that decision, and plaintiffs did not attempt to amend their petition with any more deliberate speed. See Yen, 858 So.2d 786. What remains is that a panel was convened and subsequently dismissed. How or why this happened is not relevant to our analysis. When this happened is critical.

Rules of statutory construction: Law in Louisiana is created either through legislation or custom. La.Civ.Code art. 1. When a law is clear and unambiguous and its application does not lead to absurd consequences, courts are bound to apply them as written without resort to determining the legislative intent. La.Civ.Code art. 9, |7La.R.S. 1:4. Words and phrases are to be accorded their common usages, except for technical terms, which are to be accorded their peculiar and appropriate meanings. La.R.S. 1:3.

The court in this matter, then, is bound by the expression of law of the legislature in enacting the MLSSA. Unless the application of the MLSSA leads to absurd consequences, we are not allowed to search for the legislative intent.

Analysis: Medical malpractice claims by prisoners are subject to the prescriptive period of La.R.S. 9:5628 to the same extent as any other medical malpractice claim. When asserting medical malpractice against a state health care provider, those prisoner claims are governed by the MLSSA. They are exempted, though, from pursuing their claims before a state medical review panel. Because medical malpractice claims are tort claims, the provisions of the MLSSA requiring prisoners to submit their claims for administrative review under CARP do not apply. La.R.S. 40:1299.39(E)(1). We find it persuasive, however, that although it does not apply to the case because of the supreme court’s Pope decision, CARP also provides for the suspension of prescription during the pen-dency of a prisoner’s complaint or grievance. La.R.S. 15:1172(E). The MLSSA provides that the formation of a state medical review panel triggers the suspension of prescription. La.R.S. 40:1299.39.1(A)(2)(a).

If the provisions of the MLSSA govern all claims of medical malpractice against the state, including claims of prisoners— and it clearly does govern all such claims— we are bound to apply the MLSSA. That is the import of Borel, on which we rely pursuant to our instructions from the supreme court. Here, a review panel was convened. Under the plain wording of La.R.S. 40:1299.39.1(A)(2)(a), that ^suspended prescription. The trial court’s order striking the panel was rendered on January 10, 2005.

Suspension continues for 90 days following the notification of an opinion or the dissolution or dismissal of the panel. La. R.S. 40:1299.39.1(A)(2)(a) & (c), and La. R.S. 40:1299.39.1(B)(3). The 90th day was April 10, 2005. Because the death occurred on December 28, 2001, and prescription was suspended by the convening of the panel on December 22, 2002, six days remained on the one-year prescriptive period. Prescription would have tolled on April 16, 2005. That date fell on a Saturday. Plaintiffs had, then, until April 18, 2005 to file suit against HPL. La.R.S. 1:5 and La.Civ.Code art. 3454. The parties agree that plaintiffs amended their petition to name HPL on March 9, 2005. That amendment, then, was timely filed. Plaintiffs’ claims against HPL were not prescribed.

CONCLUSION

Despite a prisoner’s exemption from proceeding before a state medical review panel, his claims are otherwise governed in every respect by the MLSSA. So are the claims pursued by the heirs of prisoners. That includes the provisions regarding prescription. The court is bound to apply the MLSSA as written unless its application would lead to absurd consequences.

Prescription in all medical malpractice actions is governed solely by the provisions of the MMA or the MLSSA. Therefore, there is no interruption of prescription in medical malpractice cases. Suspension in such cases is only available when a medical review panel is convened. That suspension continues until 90 days after the panel is dismissed or renders a decision that is delivered to the parties. In the present matter, both the state and plaintiffs were simultaneously opposing and 1pursuing proceedings before state medical review panels. We find it dispositive of the exception of prescription that a panel was in fact convened regardless of whether the convention was later found to be improper. The dismissal of the panel triggered the 96-day countdown within which plaintiffs were required to file suit against HPL. The amendment of the original suit was filed within the 96-day period. Therefore, plaintiffs’ claims were preserved. The judgment of trial court denying the exception of prescription is affirmed.

AFFIRMED.


author: DECUIR, Judge.

text:
    Steven THIBODEAUX, et al. v. LIVING WATERS COMMUNITY CHURCH, et al.
    No. 08-1064.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      Keith L. Richardson, Guglielmo, Marks, Schutte, Terhoeve & Love, Baton Rouge, LA, for Defendants/Appellants, Living Waters Community Church, Guideone Mutual Insurance Company.
    Christopher C. McCall, Baggett, McCall, Burgess, Watson & Gaughan, Lake Charles, LA, for Plaintiffs/Appellees, Steven Thibodeaux, Barbara Thibodeaux.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   DECUIR, Judge.

|, Defendants appeal a judgment of the trial court finding them liable for the fault of an unnamed third party defendant. For the reasons that follow, we affirm.

FACTS

On October 2, 2004, Stephen Thibodeaux and Lionel Fontenot were hanging crown molding in the new church building of Living Waters Community Church (Living Waters) in Sulphur, Louisiana. Thibo-deaux and Fontenot were both members of Living Waters and had volunteered to assist with the project.

Thibodeaux and Fonentot completed hanging all the molding they could reach from one level of scaffolding and took a break while another level was added. When they returned they both proceeded to climb the scaffold. As they climbed the scaffold tipped over causing Thibodeaux and Fontenot to fall. Fontenot landed on another volunteer and was not injured. Thibodeaux was not so fortunate and sustained serious injuries.

Subsequently, Thibodeaux filed suit against Living Waters, and its insurer, Guideone Mutual Insurance Company (Guideone). Fontenot was not named as a defendant. After trial on the merits, the jury concluded that Thibodeaux, Fontenot and Living Waters were each one-third at fault in causing Thibodeaux’s injuries. The trial court found that Living Waters was responsible for the fault of Fontenot. Living Waters and Guideone lodged this appeal.

DISCUSSION

The sole issue on appeal is whether the trial court erred in finding Living Waters responsible for Fontenot’s fault. Relying on Billiot v. Terrebonne Parish Sheriff’s Office, 98-0246 (La.App. 1 Cir. 2/19/99) 735 So.2d 17, writ denied, 99-1376 (La.7/2/99), 747 So.2d 22, Living Waters argues that the trial court erred in deciding | ?the coverage issue as matter of law. In Billiot, the court found that the issue of whether a policy of insurance provides coverage is a purely legal question only in the context of motions for summary judgment and not where a factual finding is necessary in order to reach the coverage issue.

As a threshold matter, we note that Billiot has only persuasive potential rather than precedential value as we are not obliged to follow jurisprudence of other appellate circuits. Supreme Services and Specialty Co., Inc. v. Sonny Greer, Inc. 04-1400 (La.App. 3 Cir. 5/3/06), 930 So.2d 1077, reversed on other grounds, 06-1827 (La.5/22/07), 958 So.2d 634. While we agree that coverage is a purely legal question only where a factual finding is not necessary in order to reach the issue, we decline to limit the application of the principle to the context of summary judgment. In cases where the relevant facts regarding coverage issues are not disputed, the question of coverage can remain purely a legal question even though the issue was not raised in the context of summary judgement.

In the present case, we can ascertain from the record that it was undisputed that Lionel Fontenot was a member of Living Waters and was working on behalf of Living Waters at the time of the accident doing what they had requested be done. Under these circumstances, we need only determine whether the policy language provides coverage.

Interpretation of an insurance policy is a question of law, and we have authority to construe the provisions of the policy in order to resolve questions of coverage. Stoute v. Long, 98-683 (La.App. 3 Cir. 12/9/98), 722 So.2d 102. Our review of the policy reveals that Living Waters is the named insured and that the following are also insureds:

IsAny of your members, but only with respect to their liability for your activities or activities they perform on your behalf, at your direction and within the scope of their duties.
Any person(s) who are volunteer worker(s) for you, but only while acting at your direction and within the scope of their duties.

Applying the plain language of the policy, we find that Fontenot meets either of these definitions of an insured.

Guideone argues that as a volunteer Fontenot would be excluded from coverage because injuries to a co-volunteer are excluded. We disagree. The actual language of the exclusion provides that bodily injury to a “co-volunteer of your ‘employee’ ” is excluded. This phrasing is somewhat unclear in its meaning but appears to apply to injuries between a volunteer and an employee. In Tally v. Blue Cross Blue Shield of Louisiana, 99-1974 (La.App. 3 Cir. 5/3/00), 760 So.2d 1193, 1196, writ denied, 00-1561 (La.8/31/00), 766 So.2d 1278, this court said:

The law mandates that an exclusion be definable with a reasonable degree of certainty, and that the terms of the exclusion must be such that it is clear who is insured and what is excluded. Furthermore, it is the duty of the insurer to clearly express its limitations. Any doubts as to coverage must be construed against the drafter of the policy and in favor of coverage.

We find that Fontenot is an insured under the policy both as a member and a volunteer. Moreover, we find that the exclusion as written does not apply to the facts of this case.

Guideone also argues that it cannot be liable for the fault of Fontenot because the petition did not allege vicarious liablity, and Fontenot was not a named defendant. We disagree.

|4Our review of the petition reveals that Thibodeaux alleged fault on the part of Living Waters, its agents, servants, and employees. Moreover, evidence regarding Fontenot’s relationship and responsibilities to Living Waters was introduced at trial. In Hopkins v. American Cyanamid Co., 95-1088 (La.1/16/96), 666 So.2d 615, 624, the Court held that:

Unobjected to evidence of issues not contained in the pleadings, which is admitted at trial, serves to enlarge the pleadings. Such evidence is “treated in all respects as if [it] had been raised by the pleading[s].” La.Code Civ.P. art. 1154; See also, First National Bank of Abbeville v. Greene, 612 So.2d 759 (La. App. 3d Cir.1992) and Herrell v. Herrell, 594 So.2d 943 (La.App. 3d Cir.1992)

Living Waters did not make any contemporaneous objection to the admission of evidence supporting these claims. To the contrary, it was at the insistence of Living Waters that the fault of Fontenot was placed at issue.

As noted above, Fontenot was an insured under the policy both as a member and as a volunteer. In addition, in Avery v. Commercial Union, Ins. Co., 621 So.2d 184 (La.App. 3 Cir.1993), this court addressed the issue of vicarious liability for the actions of a volunteer who was not a named defendant. For the reasons, assigned therein, we find the trial court properly found Living Waters responsible for the fault of Fontenot.

DECREE

For the foregoing reasons, the judgment is affirmed. All costs of the proceedings are taxed to Guideone Mutual Insurance Company.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    Merdis COLE, et al. v. BROOKSHIRE GROCERY COMPANY.
    No. 08-1093.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendant/Appellant, Brookshire Grocery Company.
    David A. Johnson, Alexandria, LA, for Plaintiffs/Appellees, Jerry Cole and Mer-dis Cole.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   THIBODEAUX, Chief Judge.

| ]This case involves a fall by the plaintiff-appellee, Mrs. Merdis Cole, near the outside entrance of Super 1 Foods. Following a bench trial, the trial court issued judgment for Merdis and Jerry Cole in the total amount of $19,029.95. Brookshire Grocery Company, the owner of Super 1 Foods, appeals. We affirm the judgment of the trial court.

I.

ISSUE

We must decide whether the trial court abused its discretion in finding the defendant grocery store liable for Mrs. Cole’s injuries.

II.

FACTS AND PROCEDURAL HISTORY

At approximately 7:00 p.m. on Friday, July 1, 2005, seventy-year-old Merdis Cole was leaving Super 1 Foods, a grocery store owned by Brookshire Grocery Company (“Brookshire”), when she tripped over a carton of bottled water that had fallen from a display stacked on a pallet outside the front entrance of the store. Mrs. Cole landed on her right side injuring her elbow, arm, neck, hip, leg, and knees. Her husband, Pastor Jerry Cole, had preceded her to the car with the groceries. Upon hearing her call out his name, he came back to help her up, with the assistance of a nearby woman. Upset and embarrassed by the fall, Mrs. Cole went home, but given the amount of pain she was experiencing, went back a short time later with her husband to fill out an accident report. She went to her family physician the following week. Damages are not being contested on appeal.

At trial, testimony was given by the assistant manager of the store, Michael Leonard, and by Mr. and Mrs. Cole. Following trial, the judge found the 12store at fault for Mrs. Cole’s injuries and awarded her $15,000.00 in general damages, $1,592.95 in past medical expenses, and awarded $2,500.00 to Mr. Cole for loss of consortium.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the findings of the trial court:

1). [t]he appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
2). [t]he appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous).

Mart v. Hill, 505 So.2d 1120, 1127 (La.1987) (quoting Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1979)).

Even where the appellate court believes its inferences are more reasonable than the fact finders, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux, 365 So.2d 1330. Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is “convinced that had it been sitting as the trier of fact, it would have weighed that evidence differently.” Housely v. Cerise, 579 So.2d 973, 976 (La.1991) (quoting Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990)). The basis for this principle of review is grounded not only upon the better capacity of the trial | scourt to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

Analysis

Brookshire contends that the trial court committed an error of law in finding that the Coles met their burden of proof in establishing fault on the part of the defendant. We disagree. Causation is a fact question. Mart, 505 So.2d 1120. The trial court was not manifestly wrong in finding that the evidence proved Brook-shire’s liability for Mrs. Cole’s injuries. As cited by Brookshire, La.R.S. 9:2800.6 (emphasis added), governs merchant liability, providing as follows:

§ 2800.6. Burden of proof in claims against merchants
A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways, and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a negligence claim brought against a merchant by a person lawfully on the merchant’s premises for damages as a result of an injury, death, or loss sustained because of a fall due to a condition existing in or on a merchant’s premises, the claimant shall have the burden of proving, in addition to all other elements of his cause of action, all of the following:
(1) The condition presented an unreasonable risk of harm to the claimant and that risk of harm was reasonably foreseeable.
(2) The merchant either created or had actual or constructive notice of the condition which caused the damage, prior to the occurrence.
(3) The merchant failed to exercise reasonable care. In determining reasonable care, the absence of a written or verbal uniform cleanup or safety procedure is 1 insufficient, alone, to prove failure to exercise reasonable care.
C. Definitions:
(1) “Constructive notice” means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.

In the present case, Mrs. Cole drew a diagram of the front of the grocery store showing three front entrances; her route of exit; the location of the display of bottled water by the door; and the location of the errant carton of water that caused her fall. Mrs. Cole exited through the middle door right next to the display of shrink-wrapped, twelve-bottle water cartons stacked on a pallet. She did not notice the display going in or coming out. As Mrs. Cole stated at trial, she “never bought stuff outside.” Coming out of the door, Mrs. Cole crossed to her left toward her car. The package that she tripped over was directly in her path. Mrs. Cole testified that she was not looking down, but was looking up and out toward her car and watching for traffic as she was about to enter a parking lot.

It is uncontested that the assistant manager, Michael Leonard, found the fallen carton of water on the pavement and picked it up and placed it back on the stack, apparently unaware that there had been an accident shortly before he found the carton out of place. It is not known how long the water had been displaced from the stack, but it is not contested that the entire pallet of stacked water cartons was located outside the store right by the front door. Brookshire, citing rainy day cases, argues that Mrs. Cole did not establish the “temporal” element of time that the courts have | ¡¡discussed in deciding constructive knowledge issues. We assume Brookshire is referring to the fallen carton of water. However, we do not believe that it is necessary to prove constructive notice in this case because La.R.S. 9:2800.6(B)(2) states that the plaintiff must show that the defendant created the harm or had actual or constructive notice of the harmful condition. In this case, the defendant created the risk of harm.

More specifically, under the facts of this case, we find that the entire stack of cartons right outside a main entrance, in or near the direct path of customers entering or leaving the store, presented an unreasonable risk of harm and that it was foreseeable that a carton, or the whole display, could fall in the path of a customer. When Mr. Leonard referred to the water display at trial, he stated: “We had a vendor set those up.” He, therefore, admitted that Brookshire created the condition and had actual notice of the condition. Further, Brookshire failed to exercise reasonable care in placing a pallet of stacked twelve-bottle water cartons at an outside entrance, where there are no shopping aisles, basically using its store front as storage and requiring the invited public to traverse the area.

IV.

CONCLUSION

Based upon the foregoing, we affirm the trial court’s judgment awarding the Coles a total of $19,029.95 plus legal interest from the date of judicial demand. All costs of this appeal are taxed against Brookshire Grocery Company.

AFFIRMED.


author: AMY, Judge.

text:
    Samuel TATE v. UNITRIN AUTO AND HOME INSURANCE COMPANY.
    No. 08-1104.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.

      R. Scott lies, Lafayette, LA, for Plaintiff/Appellant, Samuel Tate.
    Michael P. Corry, Gary J. Delahoussaye, Brandon 0. Wallace, Briney & Foret, Lafayette, LA, for Defendant/Appellee, Financial Indemnity Company.
    Court composed of MARC T. AMY, BILLY HOWARD EZELL and JAMES T. GENOVESE, Judges.
   AMY, Judge.

| ]The plaintiff sought damages from the defendant insurer, under UM coverage, for injuries related to an automobile accident. The insurer denied the claim, asserting that the plaintiff had waived UM coverage. The plaintiff contended that the waiver was ineffective as it was not completed on a current UM rejection form. The parties filed cross motions for summary judgment. The trial court granted summary judgment in favor of the insurer, finding that the absence of the name of the insurer on the form was not fatal to the validity of the waiver. The plaintiff appeals, contending that the UM rejection form at issue does not comport with the requirements discussed in Duncan v. U.S.A.A., 06-368 (La.11/29/06), 950 So.2d 544. For the following reasons, we reverse and remand.

Factual and Procedural Background

The plaintiff, Samuel Tate, alleges that he sustained injury in an August 2007 automobile accident. Mr. Tate alerted his insurer, Financial Indemnity Company, that his related medical expenses would exceed the policy limits of the other driver’s insurance policy. Financial Indemnity, however, denied the plaintiffs claim, contending that the plaintiff waived uninsured/underinsured motorist coverage by declining such coverage on a UM rejection form.

The plaintiff filed the present matter, seeking a determination as to the availability of UM coverage. He also sought an award under the UM coverage and statutory penalties and attorney fees for the failure to tender UM benefits. Thereafter, the parties filed cross motions for summary judgment on the issue of UM coverage, with the insurer presenting a UM rejection form bearing the plaintiffs initials and dated April 7, 2005. The plaintiff asserted that the rejection form was deficient in two |2areas. Following a hearing, the trial court granted summary judgment in favor of the insurer.

The plaintiff appeals.

Discussion

In his sole assignment of error, the plaintiff contends that the UM rejection form is invalid. He argues that the form is insufficient pursuant to the Commissioner |nof Insurance’s directive, in “Bulletin Number 01-05 Amended,” to include the insurance policy number in the lower right hand corner and the insurer’s name on the lower left hand corner. He argues that the alleged failure to strictly comply with the form promulgated by the Commissioner renders the rejection invalid in light of jurisprudence requiring adherence to the form. See Duncan, 950 So.2d 544, and Gingles v. Kinnery Dardenne, 08-448 (La. App. 3 Cir. 11/26/08), 998 So.2d 795. Thus, he seeks a reversal of the summary judgment entered in favor of Financial Indemnity and entry of summary judgment declaring UM coverage under the Financial Indemnity policy.

Financial Indemnity argues that since the UM rejection form under review was executed in 2005 and the Commissioner’s bulletin relied upon by the plaintiff was issued in 2007, it is inapplicable to this case. Further, Financial Indemnity points out that the completed rejection form includes a binder number which, it argues, is sufficient as the supreme court has explained that “the Commissioner of Insurance’s regulations specifically allow omission of the policy number if it does not exist at the time [the] UM waiver form is completed.” Carter v. State Farm Mut. Auto. Ins. Co., 07-1294 (La.10/5/07), 964 So.2d 375, 376.

Louisiana Revised Statutes 22:680(l)(a)(ii) provides that, with regard to UM coverage:

[a] rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative. The form signed by the named insured or his legal representative which initially rejects such coverage, selects lower limits, or selects economic-only coverage shall be conclusively presumed to become a part of the policy or contract when issued and delivered, irrespective of whether physically attached thereto. A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected |4coverage, selected a lower limit, or selected economic-only coverage. The form signed by the insured or his legal representative which initially rejects coverage, selects lower limits, or selects economic-only coverage shall remain valid for the life of the policy and shall not require the completion of a new selection form when a renewal, reinstatement, substitute, or amended policy is issued to the same named insured by the same insurer or any of its affiliates. An insured may change the original uninsured motorist selection or rejection on a policy at any time during the life of the policy by submitting a new uninsured motorist selection form to the insurer on the form prescribed by the commissioner of insurance. Any changes to an existing policy, regardless of whether these changes create new coverage, except changes in the limits of liability, do not create a new policy and do not require the completion of new uninsured motorist selection forms. For the purpose of this Section, a new policy shall mean an original contract of insurance which an insured enters into through the completion of an application on the form required by the insurer.

As explained in Duncan, 950 So.2d 544, this statute is to be liberally construed, with its exceptions strictly interpreted. In light of this strict construction requirement, the insurer bears the burden of proving the validity of a UM rejection. Id.

Louisiana Code of Civil Procedure Article 966(B) provides that a summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” Subparagraph C(2) indicates that “[t]he burden of proof remains with the movant.” Yet, if the moving party will not bear the burden of proof at trial, he or she is not required to “negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” Id. If the adverse party then “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden or proof at trial, there is no genuine issue of material fact.” Id. An appellate court reviews a ruling on a | smotion for summary judgment de novo, using the same criteria that governed the trial court’s consideration of the motion. Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880.

Financial Indemnity advances a legal argument regarding the adequacy of the UM rejection form in light of La.R.S. 22:680, Duncan, and bulletins from the Commissioner of Insurance. However, its submissions fail to resolve all genuine issues of material fact. In support of its motion, Financial Indemnity submitted the plaintiffs petition, the insurance policy under which recovery is sought, and the UM rejection form relied upon. The insurance policy bears policy number CCFICS1825886-04 and lists its effective date as April 18, 2007. However, the UM rejection form relied upon by Financial Indemnity does not include a policy number, but instead bears binder number 10171795C14P5828. It is dated April 7, 2005, two years prior to the effective date of the policy submitted. There is no evidence, whether by affidavit, deposition, or otherwise, indicating that the UM rejection form is even related to the policy offering coverage much less information indicating whether a policy number was available. See Carter, 964 So.2d 375. For this reason, the trial court erred in finding that Financial Indemnity sustained its burden of proof for summary judgment.

Although the plaintiff seeks entry of summary judgment declaring UM coverage under the policy, this is not warranted in light of the evidence presented. Rather, Financial Indemnity’s presentation of the UM rejection form establishes a genuine issue of material fact as does the policy declaration page which indicates that “no coverage” is listed under the UM coverage. We also note that, although the plaintiff asserts that a Commissioner of Insurance bulletin establishes the | ^requirements of a valid form, he has not demonstrated that the bulletin relied upon represented the requirements at the time the purported rejection form was executed.

For these reasons, we reverse the entry of summary judgment.

DECREE

For the foregoing reasons, the judgment of the trial court entering judgment in favor of the defendant, Financial Indemnity Company, and dismissing the plaintiffs claim is reversed. All costs of this proceeding are assessed to Financial Indemnity Company. This matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . The trial court rendered the following written reasons for ruling:
      The Court fín[d]s that there has been numerous time that Tate has changed vehicles which were replaced by other vehicles on the Unitrin policy. However, there was never another U.M. rejection form signed by Tate. The form signed by him does not provide a place for the name of the insurance company which is not in compliance with the Insurance Commissioner's Office, directive 201, cited by plaintiff in his memorandum and filed into the records as an exhibit. The Court has considered the case of Duncan v. USAA, 950 So.2d 544, (La.11/29/06). In that case, the Supreme Court discussed that the failure to have policy numbers in the lower right-hand corner of the U.M. rejection for[m] invalidates the policy. The court finds that the use of the binder number was sufficient due to the fact that no other rejection forms were executed by the plaintiff. However, the question is whether or not the plaintiff was required to execute a new U.M. rejection form each time he replaced a vehicle on the policy. The court finds that this is not what the law provides. See Exhibit "B” of TATE's Opposition to Motion for Summary Judgment.
      The court is also faced with determine [sic] whether or not the failure to use the new form issued by the insurance commissioner as Exhibit "A” should have been used to replace the old form.
      Neither counsel for the plaintiff or defendant have cited any cases that indicates that a new form was required to be signed by the plaintiff in order to reject U.M. coverage. In fact, it is my understanding that there was an agreement by both counsel for the plaintiff and defendant that a new form did not have to be executed when a new vehicle was placed on the insurance policy. The only time a new rejection form is required is if the insured desires a change in the limits of liability.
      The court finds that there is no evidence before the court to establish the rejection of U.M. coverage is not valid. The only argument advanced by the plaintiff in his Cross Motion for Summary Judgment and Opposition to Motion for Summary Judgment is that the rejection form failed to comply with commissioner directive [sic] due to the fact the name of the insurer is not listed on the form. However, the form which was initially signed did not require nor have a place for the name of the insurer to be placed and that form is still valid and in full force since there was never a change in the insurance policy which required the execution of a new rejection form by the insured.
      For the reasons recited hereinabove, the court does not find that the failure to list the name of the insurer is a fatal flaw to this waiver. Therefore, defendant’s Motion for Summary Judgment is granted and all costs are assessed against the plaintiff and the plaintiff’s petition is dismissed with prejudice.