author: WELCH, J.

text:
    Margaret A. MADDEN v. LEMLE AND KELLEHER, LLP.
    No. 2008 CA 1691.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.
    Alfred F. McCaleb, III, Livingston, LA, for Plaintiff-Appellant, Margaret A. Madden.
    J. Michael Stiltner, Renee C. Willis, Baton Rouge, LA, for Defendants-Appellees, Lemle and Kelleher, LLP and Louisiana Workers’ Compensation Corp.

      Before PARRO, McCLENDON, and WELCH, JJ.
   WELCH, J.

^Plaintiff, Margaret A. Madden, appeals a judgment denying her claim for indemnity benefits against her former employer, Lemle & Kelleher, LLP, and its workers’ compensation insurer, Louisiana Workers’ Compensation Corporation (LWCC). We affirm.

BACKGROUND

On March 6, 2004, Ms. Madden, a paralegal employed by Lemle & Kelleher, injured her left shoulder while lifting boxes of files in the course and scope of her employment. Ms. Madden continued to work until October 11, 2004. In October, an MRI revealed that Ms. Madden sustained a torn rotator cuff, and she underwent surgery to repair the tear in November of 2004. In April of 2005, a second rotator cuff surgery was performed.

Lemle & Kelleher, through its workers’ compensation carrier, LWCC, began paying medical benefits and indemnity benefits to Ms. Madden on October 11, 2004. In October of 2005, her treating physician, Dr. James R. Gosey, Jr., an orthopedic surgeon, suggested that a functional capacity evaluation (FCE) be performed to determine what type of work Ms. Madden could perform.

On November 30, 2005, and December 1, 2005, Ms. Madden underwent an FCE. The notes of that evaluation indicate that Ms. Madden was cooperative and gave her maximum effort on all test items. It was determined that Ms. Madden could perform a job in the light duty category. The FCE noted that Ms. Madden reported having to lift file boxes weighing about 30 pounds from the floor in her job as a paralegal assistant, a factor making that job fall within the medium physical demand level and beyond Ms. Madden’s current lifting capacity from floor level of 23 pounds on occasion.

Some time around the end of 2005, Rusty Pleune, a vocational rehabilitation consultant, was assigned to Ms. Madden’s case. On December 8, 2005, he |oinformed LWCC that he had contacted Lemle & Kelleher and learned that the firm would be willing to have Ms. Madden return to work and that it would make reasonable accommodations so that she could return to work. The firm indicated it would reduce the amount of weight Ms. Madden would be required to lift and that it would provide Ms. Madden with assistance in lifting heavy items. A full duty assessment was prepared for the paralegal job on December 8, 2005, restricting the lifting of objects to 20 pounds. The assessment noted that while Ms. Madden may have lifted boxes weighing over 20 pounds in the past, such was not a job requirement, and there were other individuals in the office who could lift anything weighing over 20 pounds. The assessment contains a section in which Ms. Madden was to certify that she reviewed the analysis and understood that it was a transitional position available to her during her recovery from the on-the-job injury.

On March 1, 2006, Dr. Gosey opined that Ms. Madden had reached maximum medical improvement. At that time, he noted that Ms. Madden was not fit for her old job and needed a different job with less lifting and less overhead work. However, after receiving the modified paralegal job with lifting restrictions as identified in the full duty assessment forwarded to him by Mr. Pleune, on March 29, 2006, Dr. Gosey certified that he felt the job was within Ms. Madden’s physical capabilities.

A second job assessment for the job of legal secretary was prepared on May 17, 2006, with lifting restrictions of 20 pounds maximum, containing the same notation that other individuals in the firm’s employ could lift objects weighing over 20 pounds. The job assessment was forwarded to Dr. Gosey, who certified on June 6, 2006, that he felt the job fell within Ms. Madden’s physical capabilities.

On June 20, 2006, Mr. Pleune wrote Ms. Madden a letter advising her that Dr. Go-sey approved her to return to work in both positions as a legal secretary and |4paralegal with Lemle & Kelleher, and that Lemle & Kelleher formally offered her a position and would like for her to return to work on June 28, 2006. Ms. Madden refused to return to work, and on June 28, 2006, her benefits were terminated.

On June 28, 2006, Ms. Madden’s attorney sent Dr. Gosey a letter requesting that he review a job assessment for the paralegal position to which Ms. Madden had made changes regarding the physical demands of the job. Dr. Gosey was asked whether, if the changes reflected by Ms. Madden were true, he would still be of the opinion that Ms. Madden could do the job as described on a 40-hour a week basis. Dr. Gosey replied that he did not feel Ms. Madden could do the job description as modified by Ms. Madden, noting that it entailed more lifting and overhead activities that were restricted in Ms. Madden’s case.

On December 15, 2006, Ms. Madden filed this disputed claim for compensation against Lemle & Kelleher and LWCC (sometimes referred to hereafter as defendants) in the Office of Workers’ Compensation (OWC), charging that her workers’ compensation wage benefits were improperly terminated on June 28, 2006. She alleged that she was permanently and totally disabled from any employment and was disabled from returning to her prior job. Ms. Madden urged that she could not return to her previous job because it involved moving, loading, and unloading heavy boxes; she could not work at a computer for an extended period of time; and she could not drive from her home in Slidell to get to Lemle & Kelleher’s New Orleans office.

A trial was held, at the outset of which Ms. Madden raised for the first time a rehabilitation issue, urging that because rehabilitation had been initiated, upon her failure to accept the modified position offered by Lemle & Kelleher, the law permitted only the imposition of a reduction of her benefits by one-half until such |stime as she accepted the position.

At trial, Ms. Madden, a co-employee, and Lowry Jackson, Lemle & Kelleher’s human resources manager, testified. Ms. Madden testified that she could not work in the modified position, observing that the drive would take a toll on her, she would have to sit at the computer for long periods of time, and she would have to lift and carry heavy files. She admitted that she never returned to work to see if she could perform the modified job and that she had not attempted to work elsewhere. Ms. Jackson testified that Lemle & Kelleher would provide Ms. Madden someone to assist her in lifting and that Ms. Madden would not be required to do any overhead lifting. She further attested that Ms. Madden was going to make the same salary in the modified position as she did before she left her position. Documentary evidence introduced at the trial includes Dr. Gosey’s medical records, the FCE evaluation, and Mr. Pleune’s records.

The workers’ compensation judge (WCJ) determined that Ms. Madden failed to carry her burden of proving by clear and convincing evidence that she is temporarily or permanently totally disabled, and therefore was not entitled to total disability benefits. The WCJ noted that the medical evidence demonstrated that Ms. Madden is capable, at the very least, of light duty work. The WCJ further found that Ms. Madden failed to carry her initial burden of proving by a preponderance of the evidence that she is unable to earn ninety percent or more of her pre-injury wage and, therefore, was not entitled to supplemental earnings benefits. In her written reasons, the WCJ noted that despite being released by her treating physician to return to work, Ms. Madden was not willing to return to work. She also stressed that Lemle & Kelleher was willing to offer Ms. Madden either a paralegal or legal secretary position, both of which Ms. Madden had previously held, and that Ms. Madden would have been paid her pre-injury wage at either position.

| (iThis appeal followed.

DISCUSSION ,

In a workers’ compensation case, the appellate court’s review of factual findings is governed by the manifest error or clearly wrong standard. Rushing v. Winn-Dixie Louisiana, Inc., 2006-2016, p. 3 (La.App. 1st Cir.8/1/07), 965 So.2d 462, 463. The two-part test for reversal of a factfinder’s determination is whether there is a reasonable factual basis in the record for the finding and whether the record establishes the finding is manifestly erroneous. Stobart v. State, 617 So.2d 880, 882 (La.1993). This court is not called upon to determine whether the WCJ’s factual findings are right or wrong, but whether the factfinder’s conclusion is reasonable. Rushing, 2006-2016 at p. 3, 965 So.2d at 463.

An employee seeking to recover indemnity benefits for a temporary or permanent total disability must prove by clear and convincing evidence that he is physically unable to engage in any employment. La. R.S. 23:1221(l)(c) and (2)(c). Ms. Madden’s own treating physician opined that she could return to work at a light duty position, and there was no medical evidence contradicting this opinion. We find the WCJ’s determination that Ms. Madden failed to carry her burden of proof by clear and convincing evidence to be entirely reasonable and that finding is not manifestly erroneous.

A threshold prerequisite to entitlement to supplemental earnings benefits under La. R.S. 23:1221(3) is that the employee’s injury results in an inability to earn wages equal to ninety percent or more of the wages he was earning at the time of the injury. The injured employee bears the burden of proving that the injury resulted in his inability to earn that amount in any employment. Sartin v. LSU/Bogalusa Medical Center, 2007-1367, p. 5 (La.App. 1st Cir.2/8/08), 984 So.2d 777, 780.

We find no error in the WCJ’s determination that Ms. Madden failed to |7carry her initial burden of proving by a preponderance of the evidence that she is unable to earn ninety percent or more of her pre-injury wages. Ms. Madden’s treating physician approved of the modified position offered by Lemle & Kelleher, which the evidence established would pay the same rate as her pre-injury position. Ms. Madden did not offer medical evidence substantiating her claim that she was unable to perform the modified job and did not meet her threshold burden of demonstrating an inability to earn ninety percent or more of her pre-injury wage.

Lastly, we reject Ms. Madden’s contention that the WCJ erred in not applying La. R.S. 23:1226(B)(3)(c) to this case. Louisiana Revised Statutes 23:1226 provides that when an employee has suffered an injury precluding him from earning wages equal to the wages earned prior to the injury, the employee is entitled to prompt rehabilitation services. Other provisions in the statute give both the employer and employee the right to utilize an expedited procedure in the event the employer refuses to provide rehabilitation services or the employee refuses to cooperate in the rehabilitation process. See La. R.S. 23:1226(B)(3)(a) and (c). Ms. Madden insists that after she refused to accept the modified position, defendants were required to file a petition in the OWC demanding that she take the job, and if she refused to do so, she would be subject to a fifty percent reduction in her weekly compensation benefits for each week of the period of refusal in accordance with La. R.S.23:1226(B)(3)(c).

We find no merit in this argument. Ms. Madden’s supplemental earnings benefits were terminated not because of her lack of cooperation in the rehabilitation process, but because she was capable of returning to work at an available job earning one hundred percent of her pre-injury wage. At that point, she was no longer entitled to receive supplemental earnings benefits or further rehabilitation services under La. R.S. 23:1226. Accordingly, La. R.S. 23:1226(B) (3) (c) is not applicable in this case, and defendants were not obligated |Rto petition the OWC to reduce Ms. Madden’s benefits when she refused to accept the modified position.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant, Margaret Madden.

AFFIRMED.

      . It is undisputed that Ms. Madden was paid indemnity benefits from October 11, 2004, through June 28, 2006. LWCC’s payment records indicate that the majority of this time, Ms. Madden was paid total disability benefits; however, for the remainder of the time, she received supplemental earnings benefits.


source: Caselaw Access Project

author: KUHN, J.

license: Public Domain

text:
    The GUARISCO CO., INC. d/b/a Dawg & Brew; The Guarisco Co., Inc. d/b/a Sport’s City Deli; and Guarisco Co., Inc. d/b/a Soup & Salad Kitchen v. STATE of Louisiana, Louisiana State Police, and Louisiana Gaming Control Board.
    No. 2008 CA 1034.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Allison U. Rovira, Baton Rouge, Louisiana, for Plaintiff-Appellee Guarisco Company, Inc.
    Brian L. McCullough, Karen L. Godwin, Baton Rouge, Louisiana, for State of Louisiana, Louisiana State Police, and Gaming Control Board.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   KUHN, J.

| .¿Appellants, State of Louisiana, Louisiana State Police, Video Gaming Division (the Division), and Louisiana Gaming Control Board (the Board), appeal the trial court’s judgment on judicial review, which reversed the Board’s decision to revoke the three licenses for video draw poker devices granted to appellee, the Guarisco Company, Inc. (Guarisco). For the reasons that follow, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Guarisco owns, in a single building, the side-by-side establishments of Sports City Deli, Soup & Salad Kitchen, and Dawg & Brew (the establishments). Guarisco has owned and operated video draw poker devices in each establishment since 1997. According to a Division compliance audit dated August 9, 2006, each business has its own separate entrance with no interior access between the establishments. Each establishment keeps separate sales records and has personnel who work solely for it. The three establishments were granted Class A-General retail alcoholic beverage permits to sell beer for on-premises consumption, and maintained financial records that segregated the beer sales from all other sales on the premises. Based on the auditor’s analysis of sales data obtained from Guarisco, the auditor concluded that none of the establishments met the requirements for issuance of a video draw poker license.

Administrative action was undertaken against Guarisco based on the recommendation of the Division. After a series of hearings, a hearing officer concluded that the establishments were in compliance with the statutory |3requirements for issuance of a video draw poker license. After a hearing, the Board reversed the hearing officer’s decision and revoked the licenses of the establishments. Guarisco’s subsequent motion for rehearing was denied. Guarisco then filed a petition for judicial review. After a hearing, the district court reversed the Board’s decision to revoke the establishments’ licenses and reinstated the decision of the hearing officer. This appeal followed.

On appeal, appellants urge that the establishments fail to conform to the requirements for issuance of video draw poker licenses under the plain language of the law and, therefore, the district court erred in reversing the Board’s decision.

DISCUSSION

Disputed gaming matters are to be heard by a hearing officer at a public hearing conducted in accordance with the adjudication provisions of the Administrative Procedure Act (APA). La. R.S. 27:25 B(l). Either party to such a hearing may appeal the decision of the hearing officer to the Board. La. R.S. 27:25 E. Appeals from decisions of the Board are made to the Nineteenth Judicial District Court and are reviewed solely on the record. La. R.S. 27:26.

The APA specifies that judicial review shall be confined to the record, as developed in the administrative proceedings. La. R.S. 49:964 F. The district court may reverse or modify the agency decision if substantial rights of the appellant are prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in |4excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion; or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. La. R.S. 49:964 G. On legal issues, the reviewing court gives no special weight to the findings of the administrative tribunal, but conducts a de novo review of questions of law and renders judgment on the record J. Manoco, Inc. v. State ex rel. Louisiana Gaming Control Bd., 98-1412, p. 6 (La.App. 1st Cir.12/28/99), 756 So.2d 430, 434, writ denied, 2000-0248 (La.3/24/00), 758 So.2d 155.

According to La. R.S. 27:306 A(2)(b), a person who is the owner of more than one bar which is located within a single building or structure, and who has been granted a Class A-General retail permit to sell alcoholic beverages for consumption on the premises of each such facility may make available for play not more than three video draw poker devices at each separate facility, not to exceed a total of nine video draw poker devices, if that person and each facility complies with all other requirements of the Video Draw Poker Devices Control Law. And La. R.S. 27:308.2 states that the Board shall initiate an administrative action and may revoke the license of any person for the failure to meet the requirements for issuance of a license as provided in the Video Draw Poker Devices Control Law.

| Jn support of their contention that Guarisco failed to comply with the requirements for issuance of its licenses, appellants rely on La. R.S. 27:301 B(12), which sets forth in relevant part:

“[B]ar, tavern, cocktail lounge, or club” means an operating establishment primarily engaged in ... the sale of alcoholic beverages for on-premises or immediate consumption that meets all of the following criteria:
(a) Has been granted a Class A-General retail permit ... for the sale of alcoholic beverages for on-premises consumption.
(b) ... [Pjrepares, dispenses, and sells alcoholic beverages for on-premises consumption during the hours it is open to the public.
(c) Maintains financial records that segregate the sales of alcoholic beverages prepared for on-premises or immediate consumption and sales of food prepared for on-premises or immediate consumption from any other sales on the premises.
(d) ... [I]t must have a person whose primary duty is tending bar on duty while the establishment is open for business and have a permanently affixed wet bar facility, including plumbing and sinks.

Appellants do not dispute that the Guaris-co establishments conform to the requirements of (a) through (d). Instead, they focus their complaint on the requirement that the establishment be “primarily engaged” in the sale of alcohol, | ^emphasizing that the compliance audit established 94% of the combined income for the three establishments was derived from video poker and only 2% was from the sale of alcohol. Because the video poker proceeds of each establishment far exceed the proceeds for alcoholic beverages, appellants contend that under the plain language of La. R.S. 27:301 B(12), the establishments are not primarily engaged in the sale of alcoholic beverages.

Laws on the same subject matter must be interpreted with reference to each other. La. C.C. art. 13. The meaning and intent of a law is determined by consideration of the law in its entirety and all other laws on the same subject matter, and a construction should be placed on the provision in question which is consistent with the express terms of the law and with the obvious intent of the lawmaker in enacting it. Stogner v. Stogner, 98-3044, p. 5 (La.7/7/99), 739 So.2d 762, 766.

Thus, La. R.S. 27:301 B(12) cannot be read in isolation but must be read in pari materia with the other statutes contained in the Video Draw Poker Devices Control Law. La. R.S. 27:308.2 A(2) provides the Board with the authority to initiate an administrative action and to revoke the license of any person that fails to meet the requirements for issuance of a license. At the time an applicant requests a license, obviously the establishment does not derive any income from video poker since the business would not have any video draw poker devices from |7which to generate such income. The Board has pointed to, and we have found, no authority for the Board to bring this action to revoke Guar-isco’s licenses except that provided by § 308.2 A(2), which is limited to instances where the person holding the license has failed to meet “the requirements for issuance of a license.” If at the time of issuance of the license, proceeds derived from video draw poker devices are necessarily excluded from the determination of whether an establishment is primarily engaged in the sale of alcohol, then the Board’s review of the applicant’s compliance with § 301 B(12) (providing the requirements for issuance of a license) under § 308.2 A(2) should likewise exclude consideration of the proceeds from video draw poker devices. To hold otherwise would be to ignore the language of La. R.S. 27:308.2. Because our construction of the two statutes is consistent with the express terms of the law, we conclude that the hearing officer correctly found “the character of a business must be determined [by] what it sells- [I]f [an establishment were] licensed as a bar, and the sales were 90% shoes, it would be folly to contend it is a bar. The comparison that defines the character of an establishment comes only from [the] goods sold, and in these businesses, the primary goods sold is beer.”

We find further support for our construction in our review of the legislative history of § 301 B(12). By La. Acts 2005, No. 61, § 1, the legislature amended § 301 B(12) to expand the type of establishments eligible for video draw poker licenses to include bars, taverns, cocktail lounges, and clubs. Prior to that, only restaurants were eligible establishments under § 301 B(12) and, in addition to the requirement that restaurants be primarily engaged in the retail sale of prepared foods for on-premises or immediate consumption, § 301 B(12) included in its ^compliance criteria that the restaurant derive at least sixty percent of its monthly gross revenues from the sale of foocl, food items, and nonalcoholic beverages. That requirement was eliminated from the subsequent legislation. We find noteworthy the House Committee on the Administration of Criminal Justice Minutes of Meeting for the 2004 Regular Session dated May 12, 2004 in which Representative Townsend proposed in House Bill No. 1202 that the minimum percentage of revenues from the sales of food, food items, and nonalcoholic beverages necessary for restaurant compliance be reduced from sixty percent to fifty percent. The committee members present at the meeting were expressly advised by Paul Ed-monson of State Police Video Gaming that “the proposed changes would dilute current law and there may become establishments that are restaurants in name only.” Nevertheless, the legislature enacted House Bill 1202 as La. Acts 2004, No. 867, § 1. And subsequently, by La. Acts 2005, No. 61, § 1, which expanded the type of establishments eligible to own and operate video draw poker gaming devices, it eliminated altogether the criterion that an establishment derive a minimum percentage of revenues from the sales of food or alcohol.

In light of the legislative history of § 301 B(12), it is evident that the legislature did not intend for an establishment to derive any particular percentage of its monthly gross revenues from the sale of alcohol to determine whether a bar is primarily engaged in the sale of alcoholic beverages for on-premises or immediate consumption. Because the Board’s review under § 308.2 A(2) of whether the establishments meet the requirements for issuance of a license set forth in § 301 B(12) excludes video draw poker devices proceeds from the determination of whether the establishments are primarily engaged in the sale of | flalcoholic beverages for on-premises or immediate consumption, the Board’s revocation of Guarisco’s video draw poker licenses was a clearly unwarranted exercise of discretion in excess of its statutory authority. See La. R.S. 49:964 G(2) & (5). And because the substantial rights of Guarisco were prejudiced by the revocation of its licenses, the district court correctly reversed the Board’s decision.

DECREE

For all these reasons, we affirm the district court’s judgment, which reverses the decision of the Board and reinstates that of the hearing officer. Appeal costs in the amount of $692.00 are assessed against appellants, State of Louisiana, Louisiana State Police, Video Gaming Division, and Louisiana Gaming Control Board.

AFFIRMED.

      . The hearing officer concluded that Guarisco had violated LAC 42:XI.2411.A.10.b.i and ii (relative to maintenance of employee and tax records) and assessed a $1,000 civil penalty against each of the establishments. This ruling was not appealed.

      . See Part II of Chapter 1 or Part II of Chapter 2 of Title 26 of the Louisiana Revised Statutes.

      . The Video Draw Poker Devices Control Law is set forth in La. R.S. 27:301-326.

      . In their brief, appellants expressly concede that the establishments meet the criteria of La. R.S. 27:301 B(12)(b) and (c). Insofar as subsection (a), the compliance audit and the evidence admitted at the administrative hearings show that each of the establishments have been granted Class A-General retail permits for the sale of alcoholic beverages on their premises, and on appeal, while appellants assert that the regulatory authority that issues retail permits for the sale of alcohol cannot confer video draw poker device licenses to the establishments, they do not dispute that Guarisco has been granted those permits. Lastly, the hearing officer found that each establishment had a person whose primary duty was tending bar. He also determined each establishment had a sink located within the distance of 4 to 8 feet of the bar and because each establishment was permitted for and sold only beer, a sink under the bar was an unnecessary adjunct to the business. On appeal, although appellants do not expressly concede compliance with La. R.S. 27:301 B(12)(d), they do not raise any arguments or assign error to these findings by the hearing officer, implicitly adopted by the district court in its reversal of the Board’s decision to revoke Guarisco’s licenses, and for which we find no manifest error. La. R.S. 49:964 G; see Stobart v. State, 617 So.2d 880, 882 (La.1993).

      . Specifically, based on sales data obtained during the audit period of January 1 through March 31, 2006, the combined income from the establishments (derived by taking the net device revenue and subtracting from that the franchise fees of 26% and device operations fees of $250/machine/year), the auditor found $34,952.51 of income was from video poker and $707 from the sale of beer. The remaining percentages were generated from tire sale of nonalcoholic beverages and food delivered to the establishments from Guarisco’s restaurant located in a separate facility situated in front of the multiple-business building.


author: PETTIGREW, J. HUGHES, J.,

text:
    Stella MASON v. Dexter HADNOT.
    No. 2008 CU 2015.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Cassandra Butler, Independence, LA, for Plaintiff-Appellee Stella Mason.
    Derriel C. McCorvey, Lafayette, LA, for Defendant-Appellant, Dexter Hadnot.
    Before PETTIGREW, McDONALD, and HUGHES, JJ.

      . Although the offense report from the St. Helena Sheriffs Office and the records from Children’s Hospital appear in the record before us, we note there are no photographs in evidence. Moreover, while Ms. Mason indicated that she also took photographs of M.D.M. after the incident, she testified that she did not bring the pictures with her to the hearing.

   PETTIGREW, J.

|2In the instant case, defendant/appellant, Dexter Hadnot, appeals a judgment rendered by the 21st Judicial District Court wherein the trial court found good cause was shown for denying him visitation, and denied Mr. Hadnot’s rule for contempt against plaintiff/appellee, Stella Mason. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Although never married to each other, Ms. Mason and Mr. Hadnot are the parents of one minor child, M.D.M., born July 28, 1995. In July 2006, Ms. Mason filed a rule for custody and visitation, seeking to be awarded sole custody of M.D.M., with Mr. Hadnot being awarded reasonable visitation. In a stipulated judgment rendered on September 18, 2006, and signed by the trial court on October 6, 2006, the parties were awarded joint custody of M.D.M. with Ms. Mason named as domiciliary parent. Mr. Hadnot was awarded specific visitation for holidays and summer vacation and was ordered to pay child support in accordance with the child support guidelines. In response to cross-motions for contempt filed by the parties, a new stipulated judgment was rendered on January 22, 2007, and signed by the trial court on March 21, 2007, delineating with more specificity, among other things, Mr. Hadnot’s monthly visitation, his Christmas visitation, and the offset in his monthly child support obligation for June and July that he would receive while exercising his summer visitation with M.D.M.

Thereafter, in January 2008, after what Mr. Hadnot alleged was “willful noncompliance with the court order of custody/visitation, without a justifiable reason” by Ms. Mason, Mr. Hadnot filed a motion to reset custody/visitation and a motion for contempt. The matter was set for hearing on February 11, 2008, at which time the trial court heard from witnesses and considered documentary evidence. At the close of the hearing, the trial court found that Ms. Mason was not in contempt because she had reasonable grounds to keep M.D.M. from visiting with Mr. Hadnot. Thus, the trial court denied Mr. | .¡Hadnot’s rule for contempt. A judgment in accordance with the trial court’s findings was signed on March 10, 2008.

It is from this judgment that Mr. Had-not has appealed, assigning the following specifications of error:

I. The trial court erred in not holding Stella Mason in contempt of court without a justifiable excuse and not ordering make up visitation for Defendant/Appellant.
II. The trial court abused its discretion in allowing her personal opinion regarding corporal punishment to influence the ruling and further by giving the Defendant/Appellant the ultimatum of no corporal punishment, or no visitation.

LAW AND ANALYSIS

Contempt of court is defined in La.Code Civ. P. art. 221 as “any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court or respect for its authority.” There are two types of contempt. A direct contempt is defined in La.Code Civ. P. art. 222 as “one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record.” A constructive contempt of court is defined in La.Code Civ. P. art. 224 as “any contempt other than a direct one.” In order 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 justifiable excuse. Haydel v. Pellegrin, 2007-0922, pp. 4-5 (La.App. 1 Cir. 9/14/07), 970 So.2d 629, 632. The trial court is vested with great discretion in determining whether a party should be held in contempt for disobeying a court order, and the court’s decision should be reversed only when the appellate court discerns an abuse of that discretion. Bou-dreaux v. Vankerkhove, 2007-2555, pp. 10-11 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 733.

In this case, after hearing all of the testimony and considering the evidence, the trial court found that Ms. Mason had reasonable grounds to keep M.D.M. from visiting with Mr. Hadnot and that Ms. Mason was not in contempt of court. From our review of |4the record before us, we cannot determine that the trial court abused its vast discretion in so ruling.

According to the record, in early June 2007, M.D.M. was with her father for a weekend visit that was to precede her regular summer visitation. Ms. Mason testified that a month prior to the scheduled visit, she and Mr. Hadnot had discussed the issue of M.D.M.’s cell phone and the fact that M.D.M. had lied to him about bringing her cell phone with her during her previous visits with him. Mr. Hadnot told Ms. Mason that he was going to “chastise” M.D.M. by “whipping her behind.” Because of. MJD.M.’s age and what Ms. Mason described as a stressful situation due to the custody arrangement, Ms. Mason implored Mr. Hadnot to use means other than spanking to punish M.D.M. However, as Ms. Mason explained, her pleas did not ultimately change Mr. Hadnot’s plans.

Ms. Mason indicated that she and Mr. Hadnot met on Friday evening at their regular exchange place in Lake Charles, Louisiana, where M.D.M. left with Mr. Hadnot for the weekend. It was not until early Saturday morning when M.D.M. called her that she became aware of the incident in question. According to Ms. Mason, M.D.M. stated, “It happened, Mommy.” M.D.M. continued, “He beat me like he said he would.” M.D.M. explained that during the drive to Houston the previous night, her father had told her what was going to happen and asked her if she was scared. M.D.M. told her mother that she was anticipating it the entire drive, but that nothing happened that night when they arrived at her father’s home. Rather, she described being awakened the following morning by her father whipping her with a belt. M.D.M. stated that “it was hurting” and that she “kept asking him to stop.”

Ms. Mason testified that after hearing about the incident from M.D.M., she drove to Houston that day and spoke to the local authorities. According to Ms. Mason, they explained to her that it was not against the law for Mr. Hadnot to use corporal punishment to discipline M.D.M. and that if it was his weekend for visitation, unless Issocial services was involved, they could not go into the home to investigate. Thus, Ms. Mason returned home and did not see M.D.M. again until Sunday when it was time to pick her up. Ms. Mason described “dark, deep bruises on her ... thighs and on her bottom” and added that her “thumb was a little swollen.”

Ms. Mason brought M.D.M. to the St. Helena Sheriffs Department where M.D.M. was photographed and statements were taken from both Ms. Mason and M.D.M. Ms. Mason also phoned her family physician and was referred to Children’s Hospital where M.D.M. was examined and again photographed. Ms. Mason also sought counseling for M.D.M., contacted the Office of Community Services (“OCS”) to report the alleged abuse by Mr. Hadnot, and terminated all contact between M.D.M. and her father.

Mr. Hadnot testified that the reason he spanked M.D.M. during the visit in June was because she lied to him about having her cell phone with her during their visits in March, April, and May. He acknowledged striking M.D.M. 10 to 15 times with a belt. When asked if he noticed any injuries after the spanking, Mr. Hadnot testified as follows:

Actually, I got — I allowed my wife to see if there were any injuries on my child. And I — there were bruises on her butt. But there was no bruising on her butt to the point where she complained or if I thought she needed medical attention. No. I did not notice any [bruising] on her butt. We went swimming after that, by her request.

Teresa Lieber, accepted by the trial court as an expert in social work, testified concerning her treatment of M.D.M. Her impression of M.D.M. was that she was suffering from post-traumatic stress disorder, with multiple symptoms of anxiety and depression. Ms. Lieber’s initial recommendation was that M.D.M. continue with individual counseling and that she not have any contact with her father. After seven individual sessions with M.D.M., Ms. Lieber opined that M.D.M. was much improved. Although Ms. Lieber agreed that it was important that M.D.M. have a relationship with 1 Rher father, she reiterated to the trial court that M.D.M. was still fearful that another incident like the one in June 2007 would reoccur. In order to help alleviate M.D.M.’s fears and anxieties, Ms. Lieber opined that M.D.M. could begin supervised visitation with her father. In the alternative, the trial court asked Mr. Hadnot if he would agree not to exercise any corporal punishment with M.D.M. during what the trial court termed the “initial period” so as to reassure M.D.M. and make her feel more comfortable about visiting with her father. Mr. Hadnot did not agree to these terms, stating “If my daughter needs to be spanked, she will be spanked.”

On appeal, Mr. Hadnot argues that the alleged fear from which M.D.M. suffered as a result of the June 2007 incident was not a justifiable excuse for Ms. Mason’s noncompliance with the trial court’s orders. He maintains that as M.D.M.’s parent, he had the right to use reasonable corporal punishment in disciplining his child. Mr. Hadnot added that he had been involved in the rearing of M.D.M. since she was an infant and that prior to this incident, he had only used corporal punishment on two occasions. Mr. Hadnot further alleges that the trial court abused its discretion in allowing personal opinions regarding corporal punishment to obstruct judicial duties and in giving him an ultimatum of either no corporal punishment or no visitation. We find no merit to any of Mr. Hadnot’s arguments on appeal.

In denying Mr. Hadnot’s rule for contempt, the trial court gave the following reasons:

THE COURT:
I find that Ms. Mason is not in contempt. She had reasonable grounds to keep her child from visiting her father. She had her child, who the counselor says is suffering from post-traumatic syndrome and also who is depressed. Now, she did say she is getting better and that she was a whole lot better off now that she has been going to counseling. But I find that she acted correctly when she kept the child from going for visitation with her father. So, I find there is no contempt.
MR. MCCORVEY: [COUNSEL FOR MR. HADNOT]
Well, Your Honor, a modification of the current custody award is not before you. But the issue of his visitation and my whole pleading is that it — the rule sought to stop his visitation from being interrupted. |7Now, basically, your ruling leaves in place what she’s been doing and has given no affect to your judgment that you signed in March of 2007, or your oral rulings in a conference call on December 12th. So I mean, you’re leaving this case in a mess, with all due respect, Your Honor.
THE COURT:
And I beg your pardon, sir. I did not make this case a mess. It’s what you have brought to me, sir. I’m doing what I believe is right and that’s what I was elected to do. Also, I will tell you that I don’t feel safe with this child going to see her father when she is suffering like she is and worried like she is, and he will still not say that he will not beat her again.
MR. MCCORVEY:
Well, Your Honor, Louisiana Law specifically protects a parent’s right to use reasonable corporal punishment on them children.
THE COURT:
When a child is afraid like that, to the point that she needs to have counseling because she is afraid to go to her father’s house because she might be beaten?
MR. MCCORVEY:
Your Honor, three spankings in the ten years that Mr. Hadnot has known his daughter does not create a reasonable fear of being—
THE COURT:
I think the one that happened on that Saturday morning created a reasonable fear, and she’s being treated for that fear.
THE COURT:
He can use reasonable discipline, but he cannot beat her with a belt 15 times. MR. MCCORVEY:
Well, Your Honor, I mean, look, that’s a protected right in the State of Louisiana, unless some — the Legislature changes the law and says that you can’t use corporal punishment on your child. Your Honor, you — I mean, come on, this case is about her intentionally refusing your order. She produced no—
THE COURT:
I think she had every right to and that’s as far as it goes.... [F]or good cause shown she does not have to obey the order. And I think that she showed good cause today why she did not want him to have visitation.

|sIt is well settled that each child custody case must be viewed in light of its own particular set of facts and circumstances. Pinegar v. Harris, 2006-2489, p. 9 (La.App. 1 Cir. 5/4/07), 961 So.2d 1246, 1252. Moreover, the best interest of the child is always the paramount consideration in child custody cases. Henry v. Henry, 2008-0689, p. 3 (La.App. 1 Cir. 9/23/08), 995 So.2d 643, 645; La. Civ.Code art. 131.

As noted by the trial court in its reasons above, we are mindful that corporal punishment, when reasonable in degree, used by a parent of a minor child for disciplinary reasons is permitted in Louisiana. See La. R.S. 14:18; La. Civ.Code art. 218.

In the instant case, the trial court determined that the June 2007 incident did not amount to reasonable discipline of M.D.M. by Mr. Hadnot. Rather, the trial court concluded that Mr. Hadnot’s actions created a “reasonable fear” in M.D.M. that if she returned for visitation with him, she would be subjected to another such incident. Based on the unique facts and circumstances presented herein, we agree with these findings. The trial court, taking into consideration M.D.M.’s best interest, determined that Ms. Mason had shown good cause for not obeying the order regarding visitation. Following our review of the record and applicable law, we find no abuse of discretion in the trial court’s ruling.

M.D.M. was almost twelve years old at the time of the incident. She was disciplined by her father for lying to him about bringing her cell phone with her during | ¡¡previous visits with him. Mr. Hadnot admitted to striking M.D.M. 10 to 15 times with a belt the morning after they arrived in Houston for the scheduled visitation. Moreover, according to M.D.M., she was aware of her father’s intentions the night before the incident and was anticipating the punishment. In this court’s opinion, Mr. Hadnot’s actions did not constitute reasonable discipline so as to be considered corporal punishment in this instance. He went beyond that which is reasonable in disciplining M.D.M., thus, providing Ms. Mason with good cause to deny him any visitation with his daughter. Accordingly, Ms. Mason was not in contempt of court for her actions.

CONCLUSION

For the above and foregoing reasons, the trial court’s March 10, 2008 judgment denying Mr. Hadnot’s rule for contempt is affirmed. All costs associated with this appeal are assessed against Mr. Hadnot.

AFFIRMED.

HUGHES, J., dissents with reasons.

HUGHES, J.,

dissenting.

hi respectfully dissent. While 1 personally agree that a twelve-year old should not be spanked with a belt, even if it is not illegal, if the mother felt it was a problem she should have filed pleadings to suspend visitation rather than take the law into her own hands by unilaterally terminating visitation contrary to the order of the court. The failure to address the mother’s actions may encourage others to ignore orders of the court and harms the respect and integrity of the court system. Two wrongs do not make a right.

      . According to the record, Ms. Mason and M.D.M. reside in Independence, Louisiana, while Mr. Hadnot resides in Houston, Texas.

      . M.D.M. was just two months shy of her twelfth birthday at the time of this incident.

      . According to the record, there was never any action taken by OCS against Mr. Hadnot, and the case was closed.

      . Louisiana Civil Code article 131 provides as follows: "In a proceeding for divorce or thereafter, the court shall award custody of a child in accordance with the best interest of the child."

      . Louisiana Revised Statutes 14:18 provides, in pertinent part, as follows:
      The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:

      (4) When the offender’s conduct is reasonable discipline of minors by their parents, tutors or teachers....
      Louisiana Code of Civil Procedure article 218 provides: "An unemancipated minor can not quit the parental house without the permission of his father and mother, who have the right to correct him, provided it be done in a reasonable manner."


text:
    Stanley PERRET v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, OFFICE OF MOTOR VEHICLES.
    No. 2008 CA 1693.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      H. Thomas Murphy, New Orleans, Louisiana, for Plaintiff-Appellant, Stanley Per-ret.
    James D. “Buddy” Caldwell, Attorney General, Tunde M. Animashaun, Baton Rouge, Louisiana, for Defendant-Appellee, Louisiana Department of Safety and Corrections, Office of Motor Vehicles.
    Before KUHN, GUIDRY, and GAIDRY, JJ.
   KUHN, J.

| ^Plaintiff-appellant, Stanley Perret, appeals the trial court’s judgment, granting an involuntary dismissal in favor of defendant-appellee, Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles (OMV), and dismissing his claim for damages arising from OMV’s failure to promptly notify him of its potential uses for his social security number that he was required to provide in order to renew his driver’s license. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Perret attempted to renew his driver’s license with the OMV. When he was asked to provide his social security number, Perret advised the OMV representative that he did not want to disclose that information. He left the OMV office without obtaining a renewal of his driver’s license. He subsequently returned to OMV with a written request to renew his driver’s license without providing his social security number. After speaking with a number of OMV representatives up the chain of command, Perret was unable to renew his driver’s license, having been advised that supplying OMV with his social security number was a requirement of state law.

Perret returned to an OMV office in April 2000, again seeking to obtain a driver’s license without disclosing his social security number. After he was again advised that he could not obtain a driver’s license without providing OMV with his social security number, Perret requested a privacy notice. The OMV representative told Perret, “We don’t give that.” Before he left, however, Perret was given a | ./‘privacy act notice.” Perret ultimately obtained a Louisiana driver’s license in 2005 after providing OMV with his social security number “under verbal protest.”

Perret filed this lawsuit on September 6, 2000, seeking damages for having been denied a driver’s license and for the failure of OMV to timely provide him with a privacy notice that outlined the potential uses to which his social security number would be put. After Perret put on his case-in-chief, OMV moved for and was granted an involuntary dismissal. This appeal follows, in which Perret urges that the trial court erred in granting OMV’s motion and involuntarily dismissing his lawsuit.

DISCUSSION

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. La. C.C.P. art. 1672 B. In deciding whether to grant a motion for involuntary dismissal, the trial court’s standard is whether the plaintiff has presented sufficient evidence in his case-in-chief to establish a claim by a preponderance of the evidence. Proof by a preponderance of the evidence means that taking the evidence as a whole, the fact or cause sought to be proved is more probable than not. Jackson v. Capitol City Family Health Ctr., 2004-2671, pp. 3-4 (La.App. 1st Cir.12/22/05), 928 So.2d 129, 131.

When considering a motion for involuntary dismissal, a plaintiff is entitled to no special inferences in his favor. However, absent circumstances in the record |4casting suspicion on the reliability of the testimony and sound reasons for its rejection, uncontroverted evidence should be taken as true to establish a fact for which it is offered. Id., 2004-2671 at p. 4, 928 So.2d at 131. A trial court’s decision to dismiss based on La. C.C.P. art. 1672 B should not be reversed in the absence of manifest or legal error. Id.

According to the Privacy Act of 1974, 5 U.S.C. 552A NOTE, section 7:

(a)(1) It shall be unlawful for any Federal, State or local government agency to deny to any individual any right, benefit, or privilege provided by law because of such individual’s refusal to disclose his social security account number. (2) The provisions of paragraph (1) of this subsection shall not apply with respect to—
(A) any disclosure which is required by Federal statute, or
(B) the disclosure of a social security number to any Federal, State, or local agency maintaining a system of records in existence and operating before January 1, 1975, if such disclosure was required under statute or regulation adopted prior to such date to verify the identity of an individual.
(b) Any Federal, State, or local government agency which requests an individual to disclose his social security account number shall inform that individual whether that disclosure is mandatory or voluntary, by what statutory or other authority such number is solicited, and what uses will be made of it.

88 Stat. at 2194.

Perret concedes that under section 7 of the Privacy Act of 1974, OMV is permitted to demand that he provide his social security number in order to obtain a driver’s license. But he asserts that the failure of OMV to inform him of the uses to which his social security number will be put as required by subsection C of section 7 supports his entitlement to damages. Although OMV correctly points out that section 7 does not contain an express remedial scheme to support his claim, see Dittman v. California, 191 F.3d 1020, 1026 (9th Cir.1999), cert. denied, 580 U.S. 1261, 120 S.Ct. 2717, 147 L.Ed.2d 982 (2000), Perret nevertheless claims entitlement to damages under 42 U.S.C. § 1983, see e.g., Schwier v. Cox, 340 F.3d 1284, 1289 (11th Cir.2003) (holding that rights conferred by section 7 of the Privacy Act of 1974, which bars agencies from denying any right because of an individual’s refusal to disclose his social security number, could be enforced by a private right of action under § 1983), as well as under La. C.C. art. 2315.

The evidence in this case failed to establish a violation of section 7(b) of the Privacy Act of 1974 so as to support recovery under § 1983. Perret conceded that OMV informed him that disclosure of his social security number was mandatory. He also admitted in his trial testimony that he had been given a copy of La. R.S. 32:409.1 A(2)(d)(6) (setting forth that an applicant for a driver’s license shall provide his social security number). Thus, the only violation of section 7 that Perret asserts supports a claim for damages is that he was not given a list of the uses that would be made of his social security number contemporaneously with his refusal to disclose that information. But nothing in section 7(b) requires that OMV’s intended uses be disclosed contemporaneously with the driver’s license applicant’s refusal to disclose his social security number. Additionally, Perret testified that an OMV representative eventually handed him a copy of a “privacy act notice,” and nothing in the record establishes that it was not in conformity with the requirements of the | Privacy Act of 1974. Mindful that Per-ret seeks neither injunctive nor declaratory relief in this lawsuit, we find no error in the trial court’s conclusion that Perret failed to establish entitlement to a monetary judgment given the lack of evidence to support a finding that OMV violated section 7(b) of the Privacy Act of 1974.

Insofar as Perret’s claimed entitlement to damages under La. C.C. art. 2315, we likewise find no merit in his contentions. Because he conceded that OMV acted within its legal authority to require disclosure of his social security number and ultimately provided him with the requisite notice, and since he has proven no other duty that OMV may have breached under the facts of this case, Perret failed to establish entitlement to recovery under La. C.C. art. 2315. See Rideau v. State Farm Mut. Auto. Ins. Co., 2006-0894, p. 8 (La.App. 1st Cir.8/29/07), 970 So.2d 564, 573, writ denied, 2007-2228 (La.1/11/08), 972 So.2d 1168 (to impose liability a plaintiff must prove, among other things, that the defendant had a duty to conform its conduct to a specific standard of care (the duty element)).

DECREE

For these reasons, the trial court’s judgment, granting OMV’s motion for an involuntary dismissal and dismissing Perret’s claims, is affirmed. Appeal costs are assessed against Stanley Perret.

AFFIRMED.

GUIDRY, J., concurs in the result.

      . On March 15, 1996, Perret filed a lawsuit seeking a declaratory judgment and injunctive relief, which was voluntarily dismissed in February 2000.

      . A trial court judgment sustaining a peremptory exception raising the objection of prescription in favor of OMV was reversed by this court, see Perret v. La. Dep't of Pub. Safety and Corr., 2001-2837 (La.App. 1st Cir.9/27/02), 835 So.2d 602, and the matter proceeded to a trial on the merits.

        .See PL 93-579, DECEMBER 31, 1974, 88 Stat 1896, in which the Privacy Act Law of 1974, 5 U.S.C. 552A NOTE, is set forth.

      . Although Perret suggests that because "OMV committed an invasion of [his] right of privacy,” he is afforded recovery under La. Const. Art. I, § 2 ("No person shall be deprived of life, liberty, or property, except by due process of law”). But Perret has not proven any substantive or procedural due process violation. Perret’s contention that OMV "committed a taking of [his] privilege without compensation therefore giving rise to and an action” under La. Const. Art. I, § 5 ("Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy”) is also without merit. Because OMV acted in conformity with section 7 of the Privacy Act of 1974, Perret has failed to establish that OMV's actions were unreasonable so as to support a claim for recovery under La. Const. Art. I, § 5.


author: PARRO, J.

text:
    In the Matter of the SUCCESSION OF Winston R. CLARK.
    No. 2008 CA 1278.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Lawrence' W. Bell, Gonzales, LA, for Plaintiff-Appellant, Brian Scott Clark.
    Malcolm J. Dugas, Jr., Dugas, LeBlanc & Associates, L.L.C., Donaldsonville, LA, for Defendant-Appellee, Mary Beth Clark.
    Before PARRO, MeCLENDON, and WELCH, JJ.
   PARRO, J.

|2The only child of the testator/decedent appeals a judgment dismissing the child’s petition to have his father’s testament declared to have been revoked by operation of law. For the following reasons, the judgment is affirmed.

Factual Background and Procedural History

Winston R. Clark (Winston) and Mary Beth Paille Clark (Mary Beth) were married on October 30, 1976, and were divorced on October 3, 2003. Winston executed his last will and testament on January 18, 1995. In his testament, Winston directed, in pertinent part:

In the event that my wife, Mary Beth Paille Clark survives me, I will and bequeath to her all of the property which I own at the date of my death, of every kind and character, less the forced portion inherited by son, Bryan Scott Clark, only in the event that such a forced portion is mandated by law at the time of my death. In the event that the laws of the State of Louisiana [do] not require or mandate a forced portion to my son at the time of my death, I will and bequeath all of my property owned by me at my death to my wife, Mary Beth Paille Clark.
In the event that the law in effect at the date of my death mandates a forced portion to my son, I will and bequeath such forced portion to my son, Bryan Scott Clark, to be ... held in trust for him as beneficiary of income and principal.
This trust shall be subject to the usu-fruct of my wife, Mary Beth Paille Clark.
In the event that my wife, Mary Beth Paille Clark, predeceases me, I then will all of the property that I own at the date of my death to a trust for the benefit of Melissa Yvette Paille, Wendy Ann Ze-ringue, and Ashley Renee Zeringue, being beneficiaries of both principal and income, and having as the trustee, Cleveland Paille, my brother-in-law.

■Furthermore, Winston provided for the appointment of Mary Beth as the executrix of his estate. Winston died on November 26, 2005, at which time he and Mary Beth were not married. At no time prior to his death did Winston revoke his last will and testament.

On January 3, 2006, Winston’s succession was judicially opened by his son, Brian Scott Clark (Brian). Brian is Winston’s only child. Mary Beth then filed a petition for probate of the 1995 testament. Pursuant to the terms of the testament, the trial court |3named Mary Beth as the executrix of Winston’s succession. Subsequently, Brian filed a petition to declare that the testament had been revoked by operation of law, to remove Mary Beth as the executrix, and for a temporary restraining order and preliminary injunction. In that petition, Brian averred:

Decedent’s last will and testament dated January 18, 1995, and the legacies, testamentary designations and appointments therein were revoked as of the date of his death, November 26, 2005, by operation of law.

Mary Beth responded by filing a peremptory exception raising the objection of no right of action, which was sustained by the trial court, and Brian’s petition was dismissed. See LSA-C.C.P. art. 927(A)(6). On appeal, the judgment was reversed, and the case was remanded to the trial court for further proceedings. Succession of Winston R. Clark, 06-2210 (La.App. 1st Cir.11/2/07), 977 So.2d 1000.

On remand, the trial court proceeded with a trial on Brian’s petition to declare that the testament had been revoked by operation of law, to remove Mary Beth as the executrix, and for a temporary restraining order and preliminary injunction. The parties jointly stipulated to the underlying facts and introduced a copy of Winston’s death certificate, the 1995 testament, and affidavits of death, domicile, and heirship. After considering the applicable law and In re Succession of Gonzales, 03-0828, 03-0537 (La.App. 4th Cir.3/10/04), 868 So.2d 987, the trial court, in written reasons, stated:

Clearly, it was the testator’s intention not to leave his son, Brian Clark, any portion of his estate unless forced to do so. Therefore, it is the ruling of this court that La. Civ.Code art. 1608(5) has no applicability to the facts of this case and Brian Clark’s Petition to have the will revoked, to remove the executrix and for a temporary restraining order and a preliminary injunction is dismissed.

Subsequently, the trial court signed a judgment dismissing Brian’s petition. Brian appealed, contending that the trial court erred in finding that LSA-C.C. art. 1608(5) was not applicable to the facts of this case and in dismissing his petition.

Discussion

In his petition, Brian contended Winston’s entire testament and the legacies, testamentary designations, and appointments pertaining to Mary Beth were revoked as of the date of his death by operation of law. His revocation argument focused on the |4fact that Winston and Mary Beth were no longer married when Winston died. The basis of his argument is that LSA-C.C. art. 1608(5) is applicable in this case, resulting in the revocation of the 1995 testament.

Louisiana Civil Code article 1608, in pertinent part, provides:

Revocation of a legacy or other testamentary provision occurs when the testator:
(5) Is divorced from the legatee after the testament is executed and at the time of his death, unless the testator provides to the contrary. Testamentary designations or appointments of a spouse are revoked under the same circumstances.

Although this provision was in effect on the date of Winston’s death, November 26, 2005, it was not in effect when Winston executed his testament on January 18, 1995. Article 1608(5) is a new provision and was a part of the revised law of successions adopted by 1997 La. Acts, No. 1421, § 1, which had an effective date of July 1, 1999. Thus, the issue of whether Brian has stated a cause of action under this provision depends on whether Article 1608(5) is applicable to a testament that was executed prior to the legislation’s effective date when the testator’s death occurred after that effective date.

The retroactive application of LSA-C.C. art. 1608(5) to a testament executed prior to July 1, 1999, was addressed by the fourth circuit in In re Succession of Gonzales. In In re Succession of Gonzales, the testator executed his testament, leaving his entire estate to his then wife and naming her as the executrix of his estate, prior to the adoption of Article 1608(5). By judgment dated March 13, 2001, the testator and his wife were divorced. Subsequently, without having changed his testament, the testator died. Based on those facts, the court in In re Succession of Gonzales determined that LSA-C.C. art. 1608(5) was not applicable and that, in the absence of evidence that the testator wished to revoke the legacy and appointment, the intent of |sthe testator at the time of the execution of the testament governed. In re Succession of Gonzales, 868 So.2d at 990; see LSA-C.C. art. 1611, LSA-R.S. 9:2440.

Relative to the issue of the applicability of LSA-C.C. art. 1608(5), the facts in this case are similar to those of In re Succession of Gonzales. Under the facts of this case, we likewise find that the provisions of LSA-C.C. art. 1608(5) should not be given retroactive application, especially since the testament was executed prior to the effective date of this law. See LSA-R.S. 9:2440. Rather, we should be guided by the intent of the testator, the single most important guideline in the interpretation of a testament, at the time of the execution of the testament. See In re Succession of Gonzales, 868 So.2d at 990. Considering the allegations in Brian’s petition and the inapplicability of LSA-C.C. art. 1608(5), we conclude that Brian failed to state a cause of action for the revocation of the legacies and testamentary designations or appointments pertaining to Mary Beth. Accordingly, we find no error in the trial court’s dismissal of Brian’s petition to have the testament revoked, to remove the executrix, and for a temporary restraining order and preliminary injunction.

Decree

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Brian Scott Clark.

AFFIRMED.

      . In the record, Brian is sometimes referred to as “Bryan.” His date of birth is September 24, 1967.

      . This provision was adopted to fill a gap in the prior law and recognizes that when a testator becomes divorced from a spouse, more often than not, he does not want bequests to that spouse to be maintained, and would very likely not want that spouse to serve as the executor or trustee. LSA-C.C. art. 1608, Revision Comments — 1997, comment (0-

      .Article 1611 was enacted by 1997 La. Acts, No. 1421, § 1, effective July 1, 1999, and was subsequently amended by 2001 La. Acts, No. 560, § 1, effective June 22, 2001, to include paragraph B which provides:
      When a testament uses a term the legal effect of which has been changed after the date of execution of the testament, the court may consider the law in effect at the time the testament was executed to ascertain the testator’s intent in the interpretation of a legacy or other testamentary provision.

      . LSA-R.S. 9:2440 was also enacted by 1997 La. Acts, No. 1421, § 4, and amended by 2003 La. Acts, No. 74, § 1. It provides:
      A testament, testamentary provision, legacy, or other appointment executed prior to January 1, 1998, and valid under the law and jurisprudence prior to that date, when executed, is not invalidated by the passage of Acts 1997, No. 1421.
      Section 2 of Act 74 states that "[t]he provisions of this Act are intended to be remedial and curative.”

      . Article 1608(5) provides only for the revocation of a legacy or other testamentary provision. The revocation of the entire testament is not recognized by this provision.


author: DOWNING, J.

text:
    Shelby GRAFFIA v. LOUISIANA FARM BUREAU CASUALTY INSURANCE COMPANY, Maria Clara Grano Sanchez, and Safeway Insurance Company.
    No. 2008 CA 1480.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 13, 2009.

      Jill LeBlanc Brady, Steven A. DeBosier, Baton Rouge, LA, for Plaintiff/Appellee, Shelby Graffia.
    Christopher A. Mason, Stacey Moak, Baton Rouge, LA, for Defendants/Appellants, Maria Sanchez and LA Farm Bureau Insurance Company.
    Before CARTER, C.J., WHIPPLE and DOWNING, JJ.
   DOWNING, J.

IgMaria Clara Grano Sanchez and Louisiana Farm Bureau Casualty Insurance Company (Farm Bureau) appeal a judgment notwithstanding the verdict (JNOV) in which the trial court awarded certain special and general damages to Shelby Graffia resulting from a traffic accident. Graffia answers the appeal asserting that the jury and trial court erred in allocating a percentage of the fault in the accident to Graffia. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

This litigation arises from an automobile accident at an intersection where Graffia intended to make a left-hand turn. Sanchez had pulled up behind Graffia. What happened next is the dispute at the heart of this litigation. Graffia alleges that Sanchez rear-ended her suddenly and without warning. Sanchez asserts that Graffia caused the accident by stopping suddenly and without warning after commencing into the intersection, such that she was unable to stop in time to avoid hitting Graffia. Both parties also contest the extent of the damage to Graffia’s vehicle and the extent of her personal injuries.

Graffia filed suit against Sanchez and Farm Bureau for damages. Upon the trial of the matter, the jury found Graffia 55% at fault and Sanchez 45% at fault. Pertinently here, the jury awarded $1,453.48 in past medical expenses. This amount totaled the cost of three emergency room visits within eleven days of the accident. The jury awarded $0.00 in general damages. In response to the jury interrogatory, “Did the plaintiff, Shelby Graffia, suffer any bodily injury as a result of the accident of July 22, 2005?,” the jury responded, “Yes.”

Graffia filed a motion for JNOY, or in the alternative, a motion for new trial. The trial court granted the JNOV and ruled, therefore, that the motion for new trial was moot. On the JNOV, the trial court declined to amend the allocation of fault. |3It did, however, award general damages in the amount of $75,000.00 and awarded $12,739.23 as special damages for past medical expenses.

Sanchez now appeals, asserting three assignments of error, as follows:

1. The trial court erred by granting the plaintiffs motion for JNOV on the issue of damages.
2. In the alternative, if this court finds that the trial court properly granted the JNOV, then the trial court applied the wrong standard of review when it made a de novo review of the damage award.
3. In the alternative, if this court finds that the trial court properly granted the JNOV, then the trial court’s award of general damages and medical costs was excessive.

Graffia answered the appeal, asking this court to amend the allocation of fault such that Sanchez be found 100% at fault in causing the accident.

DISCUSSION

Propriety of JNOV

Because we conclude under the facts of this case that the jury erred in failing to award general damages for injuries with objective symptoms, we further conclude that the trial court did not err in entering JNOV in this matter on the issue of damages.

“A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes that reasonable jurors could not find otherwise.” Cavalier v. State, ex rel. Dept. of Transp. and Development, 08-0561, p. 13 (La.App. 1 Cir. 9/12/08) 994 So.2d 635, 644. And once the jury verdict is set aside under the strict JNOV standards, the trial court becomes the trier of fact with the responsibility to review the award de novo. Roberts v. Owens-Corning Fiberglas Corp., 03-0248, p. 3 n. 2 (La.App. 1 Cir. 4/2/04), 878 So.2d 631, 637 n. 2. Tautologically, when a jury errs in its award of general damages, reasonable jurors could not reach such an award; entry of JNOV is, therefore, warranted and the trial court becomes the de novo trier of fact.

14Here, the jury made a specific finding in the jury interrogatories that Graffia suffered bodily injury as a result of the accident at issue. It awarded $1,453.48 in past medical expenses, which is the exact amount due from Graffia’s three emergency room visits, including physician’s fees. The records of those visits show that these visits were more than precautionary or for purposes of evaluation. Rather, the records of the first visit on July 23, 2005 show that Graffia was treated for intense pain and was prescribed appropriate medication. On the second visit on July 26, the record shows that Graffia was complaining of increased neck pain. She was suffering from severe muscle spasms, intense pain and other symptoms. She was prescribed more medicine. On the third visit on August 2, she was treated for less severe neck pain and a cervical strain.

Graffia argues that the supreme court’s decision in Wainwright v. Fontenot, 00-0492 (La.10/17/00), 774 So.2d 70, requires that we reverse the entry of JNOV because it ruled that it is not necessarily legal error for a jury to award medical expenses without awarding general damages for pain and suffering. Quoting Wainwright, 00-0492, 774 So.2d at 76, he argues that “a jury, in the exercise of its discretion as factfinder, can reasonably reach the conclusion that a plaintiff has proven [her] entitlement to recovery of certain medical costs, yet failed to prove that [she] endured compensable pain and suffering.”

Waimmight, however, did not expressly abrogate the long-standing line of jurisprudence that “it is legal error to award special damages for a personal injury, yet simultaneously refuse to award general damages for injuries with objective symptoms or findings.” (Emphasis added.) Leighow v. Crump, 06-0642 (La.App. 1 Cir. 3/23/07), 960 So.2d 122, 129, writs denied, 07-1195, 07-1218 (La.9/21/07), 964 So.2d 337, 341.

Further, in Wainwright, 00-0492, 774 So.2d at 75, the supreme court explained that “a jury verdict awarding medical expenses but simultaneously | ^denying damages for pain and suffering will most often be inconsistent in light of the record.” Wainwright, 00-0492, 774 So.2d at 74-76, instructs us to review the jury’s award under the abuse of discretion standard. In Wainwright, the supreme court held that “the particular facts of each case are ultimately determinative” regarding whether no award for general damages is inconsistent with an award for special damages, and that “there is no bright line rule at work” in situations where special damages are awarded but general damages are not. Wainwright, 00-0492, 774 So.2d at 76.

Examining Wainwright, this court explained in Leighow, 06-0642, 960 So.2d at 129, that the supreme court ruling appears to be limited to matters in which medical treatment was precautionary or evaluative, as follows:

[T]he court recognized a narrow exception to that general finding of inconsistency, applicable where the evidence supports a finding that a person incurred special damages (medical expenses) but did not necessarily experience compensable pain and suffering, because the medical treatment was precautionary or to simply evaluate whether or not physical injury occurred.

Here, under the particular facts of this case, we cannot conclude that Graffia incurred special damages without attendant physical pain and suffering. Accordingly, we find no error in the trial court’s entry of JNOV, whether based on legal error or abuse of discretion, and will affirm the judgment in this regard. Sanchez’s first assignment of error is without merit.

Review of Damage Award

Sanchez next argues that should we uphold the JNOV, we should review the award for general damages under the abuse of discretion standard as outlined in Wainwright, 00-0492, 774 So.2d at 74-76. And the Wainwright court stated: “There is no question that the abuse of discretion standard of review applies when an appellate court examines a factfinder’s award of general damages.” Wainwright, 00-0492, 774 So.2d at 74.

| fiHere, in this regard, the trial court became the factfinder when it entered JNOV. Roberts, 03-0248, 878 So.2d at 637 n. 2. It is the trial court’s award, therefore, that we are to review for abuse of discretion. The cases cited by Sanchez are inap-posite in that they consider an appellate court’s review of jury awards and do not address a trial court’s awards on JNOV.

Sanchez does not argue that the trial court’s findings of special damages are manifestly erroneous. Nor does she argue that its award of general damages is abusively high. And we cannot disturb the trial court’s award unless it abused its discretion, as explained in Coco v. Winston Indus., Inc., 341 So.2d 332, 335 (La.1976), as follows:

[Bjefore a Court of Appeal can disturb an award made by a trial court ... the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. (Internal citations omitted.)

On review of the record, we conclude that the trial court’s award of special damages for past medical expenses is supported by the record and is not manifestly erroneous. Further, we conclude that its award of general damages is not abusively high in light of the harm suffered and injuries incurred. Accordingly, we will affirm the judgment in these regards. Sanchez’s second and third assignments of error are without merit.

Apportionment of Fault

Graffia filed an answer to the appeal, arguing that the jury erred in apportioning 55% fault to her and 45% fault to Sanchez, especially given the presumption that in a rear-end collision the following driver is at fault. The trial 17court specifically denied JNOV on this issue. In oral reasons it stated its agreement with the jury’s apportionment.

Graffia argues that the jury erred in apportioning fault to her because Sanchez failed to rebut a presumption of negligence when Sanchez rear-ended her. And a legal presumption does exist that a following motorist who collides into the rear end of a leading automobile is at fault. Matherne v. Lorraine, 03-2369 (La.App. 1 Cir. 9/17/04), 888 So.2d 244, 246. The following motorist must exonerate himself or herself from fault before he or she can completely avoid liability. Id. However, notwithstanding the presumption of negligence, a favored motorist can still be assessed with comparative fault if his or her substandard conduct contributed to the cause of the accident. Id. “[OJnce the presumption of negligence attaches to the defendant, the ordinary rules of comparative negligence apply and, thus, a plaintiffs damage award may be reduced by the degree that he was comparatively at fault.” Id. Accordingly, the jury did not err in apportioning fault between Sanchez and Graffia.

We review allocations of fault employing the manifest error standard. Laborde v. St. James Place Apartments, 05-0007 (La.App. 1 Cir. 2/15/06), 928 So.2d 643, 647. “As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Therefore, an appellate court should only disturb the trier of fact’s allocation of fault when it is clearly wrong or manifestly erroneous.” (Citation omitted.) Duncan v. Kansas City Southern Railway Co., 00-0066 (La.10/30/00), 773 So.2d 670, 680. Only after making a determination that the factfinder’s apportionment of fault is clearly wrong can we disturb the award, and then only to the extent of lowering it or raising it to the highest or lowest point respectively which is reasonably within the trial court’s discretion. Id.

[sThe court in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985) listed a number of factors for us to consider in determining the portion of fault attributable to the parties, including the level of the risk, whether the behavior was inadvertent or done with awareness of the danger, the significance of what was sought, the capacities of the parties, and any other extenuating circumstances. Reviewing these factors as they apply to this case, we cannot say the jury was manifestly erroneous in apportioning fault as it did. While Sanchez is presumed to be at fault to some degree, the jury could have reasonably found that Graffia stopped suddenly and without reason, precipitating the accident.

Despite Graffia’s contention, the jury was free to credit the testimony of Sanchez. Where a factfinder’s determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong unless “documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact-finder would not credit the witness’s story.” (Citation omitted.) Ryan v. Zurich American Ins. Co., 07-2312 (La.7/1/08), 988 So.2d 214, 222. No such impediments exist to Sanchez’s testimony.

Under the facts of this case, and employing the proper standards and analysis, we cannot conclude the jury was manifestly erroneous in allocating 55% of the fault in this accident to Graffia and 45% to Sanchez. Accordingly, we find no merit in Graffia’s assignment of error on answer to appeal. We will affirm the judgment in this regard.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. Costs of this appeal are assessed one-half to Maria Clara Grano Sanchez and Louisiana Farm Bureau Casualty Insurance Company and one-half to Shelby Graffia.

AFFIRMED.

      . Louisiana Code of Civil Procedure art. 181 IF specifically provides that ^[tlhe motion for a judgment notwithstanding the verdict may be granted on the issue of liability or on the issue of damages or on both issues.”