author: JOAN BERNARD ARMSTRONG, Chief Judge. TOBIAS, J.,

text:
    FORTERRA CAPITAL, L.L.C. v. MAMAL, INC., Innovative Marine Services, L.L.C., Michael J. Thibodaux, Sr., Michael Thibodaux, Jr., Jason Lyons, Jay Capouch and Allison Randolph.
    No. 2010-CA-0798.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 13, 2011.

      Gladstone N. Jones III, Lynn E. Swanson, Catherine E. Lasky, Jones Swanson Huddell & Garrison, L.L.C., New Orleans, LA, for Plaintiff/Appellant, Forterra Capital, L.L.C.
    Robert H. Matthews, Pauline M. Warri-ner, New Orleans, LA, for Defendant/Ap-pellee, Innovative Marine Services, L.L.C., Michael Thibodaux, Jr., Jason Lyons, Jay Capouch and Allison Randolph.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge MAX N. TOBIAS, JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

|]The plaintiff-appellant, Forterra Capital, L.L.C. (“Forterra”), appeals the March 11, 2010 summary judgment dismissal of it’s claims against the defendants-appel-lees, Innovative Marine Services, L.L.C. (“IMS”), Michael Thibodaux, Jr. (“Mr. Thi-bodaux, Jr.”), Jason Lyons (“Mr. Lyons”), Jay Capouch (“Mr. Capouch”) and Allison Randolph (“Mr. Randolph”). The same judgment denied Forterra’s own motion for summary judgment, but Forterra does not raise that as an issue in this appeal. For the reasons that follow, we affirm the judgment of the trial court.

On or about January 12, 2007, Information Technology Systems, L.L.C. (“ITS”), with Mr. Michael J. Thibodaux, Sr. (Mr. Thibodaux, Sr.) as guarantor, executed a promissory note and allonge thereto (collectively, the “Loan Documents”) in the amount of $966,195.00 in favor of Forterra in connection with a certain Commercial Loan Agreement and Commercial Security Agreement.

ITS and Mr. Thibodaux, Sr. failed to make the required payments to Forterra. Consequently, Forterra entered into a Settlement Agreement with ITS and Mr. Thi-bodaux, Sr. on June 22, 2007, which provided that ITS and Mr. Thibodaux, Sr. would continue to make payments to For-terra pursuant to the original loan documents, and that Forterra would be granted an interest in certain |2contracts to be obtained by ITS, Mr. Thibodaux, Sr. and their affiliates, which included defendant Mamal, Inc. (“Mamal”). However, ITS, Mr. Thibodaux, Sr. and their affiliates failed to fulfill the terms of the Settlement Agreement.

On August 23, 2007, Forterra filed a breach of contract suit against ITS and Thibodaux, Sr. in the Civil District Court for the Parish of Orleans, seeking damages for breach of the Settlement Agreement. On November 15, 2007, Forterra and Mr. Thibodaux, Sr., in his individual capacity and as President/Manager of ITS, executed a Consent Judgment to end that litigation.

The Consent Judgment provided that ITS and Mr. Thibodaux, Sr. would continue to make payments as required under the loan documents; that the total indebtedness to Forterra as of November 2007 was $1,141,341.32; and that ITS and certain of its affiliates, including specifically Mamal, which is wholly owned by Mr. Thibodaux, Sr., would also make payments to Forterra on an ongoing basis based upon work obtained by Mamal and other affiliates. According to Forterra, pursuant to the Loan Documents, Settlement Agreement and Consent Judgment, Mamal, along with ITS and Mr. Thibodaux, Sr. became indebted to and obligors to Forter-ra. Again, ITS, Mr. Thibodaux, Sr. and Mamal failed to make the payments as required.

On July 29, 2008, Forterra filed a “Petition to Annul Transfers and for Damages,” naming as defendants Innovative Marine Services, L.L.C. (“IMS”), Mamal, Inc., Michael J. Thibodaux, Sr., Michael Thibo-daux, Jr., Jay Capouch, Jason Lyons and Allison Randolph, alleging that:

1. Mamal and IMS share the same address as Information Technology Systems, L.L.C. (“ITS”). However, we note that ITS is not named as a defendant.
|¾2. Mr. Thibodaux, Sr. is the President/Manager of ITS and the sole shareholder and director of Mamal. 8. Mr. Thibodaux, Jr. is the son of Mr. Thibodaux, Sr. and is a member, manager, and/or control person of IMS.
4. Capouch served as a consultant for ITS, Mr. Thibodaux, Sr. and Mamal and is a member and manager of IMS.
5. Mr. Randolph was an employee of ITS and a member, manager, and/or control person of IMS.

Forterra contends that Mr. Thibo-daux, Sr. and ITS transferred valuable assets known as Mudd X machines (used to clean tanks on offshore supply vessels) from their wholly owned affiliate, Mamal, at a time when Mamal was insolvent to another entity controlled by them, IMS, in order to frustrate Forterra’s attempts to collect the debt owed to it. Forterra relies primarily on La. C.C. art. 2036, the revoca-tory action, and La. C.C. art. 3182 and 3183. La. C.C. art. 3182 provides that:

Whoever has bound himself personally, is obliged to fulfill his engagements out of all his property, movable and immovable, present and future.

La. C.C. art. 3183 provides that:

The property of the debtor is the common pledge of his creditors, and the proceeds of its sale must be distributed among them ratably, unless there exist among the creditors some lawful causes of preference.

However, this is almost entirely a fact based case. Forterra cites the following cases in support of the merits of its claim: Gulf Refining Co. of Louisiana v. Glassell, 186 La. 190, 171 So. 846 (1936), and In re Goldberg, 277 B.R. 251, 283 (Bkrtcy. M.D.La.5/1/02). Glassell stands for the proposition that La. C.C. harts. 3182 and 3183 do not afford a creditor “specific relief such as the maintenance of a petitory action by a lessee against a third person in possession of the property.” As was explained in Glassell:

It logically follows that articles 3182 and 3183 of the Louisiana Civil Code, being literal translations of articles 2092 and 2093 of the Code Napoleon, as the above-quoted law writers pointed out, are designed to secure to creditors the payment of their ‘money debts.’ It is only money creditors, even under the liberal provisions of the French article 1166, who have a common pledge on the property of the debtors, who can exercise the rights, and actions of the debtors.
Articles 1990, 3182, and 3183, R.C.C., therefore, do not authorize the granting of specific relief such as the maintenance of a petitory action by a lessee against a third person in possession of the property-

Id., 186 La. at 209-210, 171 So. at 852-853.

Moreover, the facts in Glassell bear no direct relation to those of the instant case. Therefore, Glassell provides no guidance to this Court.

In re Goldberg, supra, is more relevant. It stands for the proposition that the revo-catory action under La. C.C. art. 2036 allows a creditor to set aside a transaction of the debtor when it increases the insolvency of the debtor on a dollar for dollar basis without the necessity of having to show receipt of less than reasonably equivalent value by the debtor as a threshold condition. La. C.C. art. 2036 provides that:

An obligee has a right to annul an act of the obligor, or the result of a failure to act of the obligor, made or effected after the right of the obligee arose, that causes or increases the obligor’s insolvency.

We agree with the interpretation of La. C.C. art. 2036 as set forth in Parish Nat. Bank v. Wilks, 04-1439 (La.App. 1 Cir. 8/3/05), 923 So.2d 8:

15In accordance with the clear language of La. C.C. art. 2036, in order for an obligee to annul an act of the obligor, he must show (1) an act (or failure to act) of the obligor that causes or increases the obligor’s insolvency; and (2) the act must occur after the obligee’s rights arose. See Lewis v. Hood, 97-2118 (La.App. 1st Cir.11/6/98), 721 So.2d 1078, 1080.

Id., 04-1439, p. 10, 923 So.2d at 15.

More specifically, Forterra complains that Mr. Thibodaux, Sr., on behalf of Mamal, transferred certain Mudd X machines (used to clean tanks on offshore supply vessels) and all present and future rights thereto to IMS for three hundred thousand dollars ($300,000.00). Forterra contends that this increased Mamal’s insolvency. In Forterra’s Memorandum in Support of its Motion for Summary Judgment and in its original brief to this Court, Forterra notes that:

As of November 5, 2007, the date of the transfer, the liabilities of Mamal were $3,917,836.31 while its assets were merely $3,241,386.34.

This results in an insolvency of $676,449.97. The record also contains an affidavit of Wilbur J. “Bill” Babin, Jr., as the Chapter 7 Bankruptcy trustee of Michael J. Thibodaux, Sr. and Andrea Thibo-daux. Mr. Babin avers without contradiction that:

According to the bankruptcy schedules of the Debtors, the Debtors were the 100% owners of Mamal, Inc. as of the date the Debtors filed Bankruptcy.

Mr. Babin’s affidavit goes on to explain that his “office ran a Balance Sheet of Mamal, Inc. as of November 4, 2007....” The balance sheet shows, without contradiction, on that date Mamal had liabilities of $3,930,866.11 and total liabilities and equity, i.e., assets of $3,190,776.44, resulting in an insolvency of $740,089.67, or an insolvency of approximately $65,000.00 greater than the insolvency on the next day, November 5, 2007, which is the date of the transfer by | fiMamal that is the crux of this litigation. Thus, it cannot be said that the transfer resulted in a La. C.C. art. 2036 increase in Mamal’s insolvency, the second of the alternative requirements of a revocatory action. Moreover, we find For-terra’s revocatory action does not satisfy the first alternative requirement of La. C.C. art. 2036, that the transaction complained of caused Mamal’s insolvency as it is uncontested that Mamal’s insolvency antedated the transfer of the Mudd X ma-chinéis). In other words, because Forter-ra relies on the November 5, 2007 Mamal balance sheet in support of its claim, and does not contest the accuracy of the November 4, 2007 balance sheet, we find that no genuine issue of material fact exists based on Forterra’s revocatory claims to reverse the judgment of the trial court.

We also find merit in the trial court’s observation that while Mamal was mentioned in some of the documents that form the basis of Forterra’s claim, Mamal was neither a signatory nor a party, to those documents. The Commercial Loan Agreement, the seminal document creating the debt upon which Forterra’s claim is based, was executed by Forterra and ITS. Mr. Thibodaux, Sr. signed as President/Manager of ITS. Mamal was not a party.

The Settlement Agreement was between ITS (represented by Mr. Thibodaux, Sr.), Mr. Thibodaux, Sr., in his personal capacity, and Forterra. In this Settlement Agreement, ITS and Mr. Thibodaux, Sr. agree to bind any of their affiliates, but those affiliates are not named and no one besides ITS, Mr. Thibodaux, Sr. and For-terra were signatory to the document.

On November 15, 2007, Forterra and Thibodaux, Sr. individually and on behalf of ITS, signed a “Stipulated Consent Judgment.” This Consent Judgment stated that it was intended to bind ITS and any of its affiliates, “including but not | Jimited to Michael J. Thibodaux, Sr., Thibodaux Equipment, Inc., Mamal, Inc. and Sky Data, Inc.... ” However, the record reflects that of those “affiliates” of ITS just listed, the only one that was a party to the Consent Judgment was Mr. Thibodaux, Sr. More particularly, Mamal was not a signatory to the judgment, although following Forterra’s arguments concerning Mr. Thi-bodaux Sr.’s control over Mamal, Mr. Thi-bodaux could just as easily have signed on behalf of Mamal as he did for ITS, had it been his intention to do so. Therefore, the lack of an appearance by Mamal undermines Forterra’s argument.

The language of the Consent Judgment gave Forterra a security interest in the rights of the ITS “affiliates,” including Mamal, to “certain contracts for transportation by barge work....” But the appel-lees point out without contradiction that Mamal engaged in no barge work and, therefore, even if we were to assume for purposes of argument that the Consent Judgment to which Mamal was not a signatory bound it nonetheless, the only thing for which the Consent Judgment purported to bind Mamal was in connection with barge work, and it performed none.

Forterra contends that Mr. Thibodaux, Sr., the president and sole owner of Mamal, in response to a request for admission, effectively admitted that Mamal was an obligor of Forterra by failing to respond to Forterra’s request for admission directed to this issue. La. C.C.P. art. 1467. The appellees complain that they cannot be bound by admissions to which they were not a party. Regardless, the only obligation imposed by the Consent Judgment on Mamal, assuming that Mamal could be bound by a Consent Judgment to which it was not a signatory, was in connection with barge work performed by Mamal, but Mamal admittedly | sperformed no such barge work. Therefore, any obligation arguably owed by Mamal to Forterra was meaningless.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

TOBIAS, J., Dissents and Assigns Reasons.

TOBIAS, J.,

Dissents and Assigns Reasons.

hThe function of this intermediate court is to correct errors made by the trial court. In the case at bar, as a matter of technical law, the majority opinion on its face might appear to be correct. I do not agree. I am disturbed by the result in this case based upon the procedural posture in which this case comes to us and what actually happened as gleaned from the record on appeal.

This case comes before us to review the trial court’s judgment granting a motion for summary judgment. Summary judgment is governed by La. C.C.P. arts. 966, et seq. The jurisprudence applying these articles to a case has consistently held more or less as follows:

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. See La. C.C.P. art. 966. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law.
The parameters of a motion for summary judgment have been described by this court as follows:
A motion for summary judgment will be granted “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 | daw.” La. C.C.P. art. 966(B). This article was amended in 1996 to provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La. C.C.P. art. 966(A)(2). In 1997, the legislature enacted La. C.C.P. art. 966 C(2), which further clarified the burden of proof in summary judgment proceedings, providing:
The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him 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. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.
This amendment, which closely parallels the language of Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), first places the burden of producing evidence at the hearing on the motion for summary judgment on the mover (normally the defendant), who can ordinarily meet that burden by submitting affidavits or by pointing out the lack of factual support for an essential element in the opponent’s case. At that point, the party who bears the burden of persuasion at trial (usually the plaintiff) must come forth with evidence (affidavits or discovery responses) which demonstrates he or she will be able to meet the burden at trial.... Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. [Internal cases, case citations, and footnotes omitted.]

In my view, this case turns upon the application of La. C.C. art. 2036 which states: “An obligee has a right to annul an act of the obligor, or the result of a failure to act of the obligor, made or effected after the right of the obligee arose, that causes or increases the obligor’s insolvency.” In my view, the jurisprudence |shas applied article 2036 simplistically and literally without adequate analysis of its intent and history. See La. C.C. art. 9.

In the case before us, two affidavits of Wilbur J. “Bill” Babin, Jr., the trustee in bankruptcy for appellee Michael J. Thibo-daux, Sr., etux, are presented: one by the appellant and one by the appellees. One affidavit’s attachment shows that Mamal, Ine.’s insolvency on 4 November 2007 to be $740,089.67 and the other affidavit’s attachment shows Mamal, Inc.’s insolvency on 5 November 2007 to be $676,449.97. The appellant does not with precision address how this change in the amount of

insolvency creates a genuine issue of material fact that would preclude the granting of summary judgment. But I find that the matter is addressed indirectly and implicitly by the appellant. What actually happened between 4 and 5 November 2007 is that Mamal, Inc.’s insolvency actually increased, not decreased, because it transferred property (Mudd-X machines, etc.) in a non-arms-jlengthi transaction for what appears to be less than full value to another, namely, an entity in which Michael J. Thibodaux, Sr.’s son was effectively the owner.

The following is an example of how the literal, simplistic application of article 2036 can be used to defeat a creditor:

Company X owns a thing (La. C.C. art. 448, et seq.) that it shows on its books as having a value of $300,000. In fact, the thing has a fair market value of $900,000. If Company X sells the thing to Company Y for $500,000, its books will show that it is $200,000 more solvent than when it owned the thing. In fact, Company X’s sale of the thing increased its insolvency by $400,000, the difference between the fair market value and the sales price of the thing.

In essence, that is precisely what Mamal, Inc. did in the case at bar which has deprived the appellant of its right to prove a revocatory action at trial by virtue of the literal application of article 2036 to “annul an act of the obligor ... that causes or increases the obligor’s insolvency.” That is to say, Mamal, Inc.’s actions reduced the value of the assets of Michael J. Thibo-daux, Sr.’s estate thereby defeating his creditor, the appellant.

The asset sale that took place in the 5 November 2007 in fact creates a genuine issue of material fact on its face precluding the granting of a motion for summary judgment. See La. C.C.P. art. 2164 (“The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal”). The two Babin affidavits create a genuine issue of material fact on their face. An explanation for the transfer establishing bona fide business reasons for the transfer is needed.

For the foregoing reasons, I respectfully dissent and would reverse the trial court’s decision to grant the motion for summary judgment that is at issue in this appeal.

      . Quotation is from Samaha v. Rau, 07-1726, pp. 3-5 (La.2/26/08), 977 So.2d 880, 882.

      . The 1984 official comments to the article state:

        (a) This Article is new. It changes the law insofar as it abandons the notion of fraud contained in the source articles. Otherwise, it reproduces the substance of C.C. Arts. 1969, 1970, 1971, 1972, 1975, 1977, 1985, 1986, 1988, and 1994 (1870).
      (b) This Article substitutes an act of the obligor that causes or increases his insolvency for the notion of an act in fraud of creditors contained in the source articles. As used in those articles, the word "fraud” has a meaning which is difficult to determine but which appears different from its meaning in other contexts. In this revision, the criterion for the revocatory action is an objective one. It may be satisfied by an act done negligently as well as intentionally.
      (c) The revocatory or Paulian action, an institution derived from Roman law, is the civil law analogue to the common law suit to set aside a fraudulent conveyance.
      (d) The term "act” in this Article encompasses contracts, acts of payment, and any "contrivance” employed by an obligor to defeat his obligee’s rightful claim. See Newman v. Baer, 50 La. Ann. 323, 23 So. 279 (1897). According to the jurisprudence, any arrangement, whether made through judicial machinery or otherwise, whereby an obligor tries to give an obligee an advantage over others may be attacked by the injured obligees. See, e.g., Muse v. Yarborough, 11 La. 521 (1838), (obligor confessed judgment to one obligee in prejudice of the rights of others); Bank of Patterson v. Urban Co., 114 La. 788, 38 So. 561 (1905), (obligor filed answer and consented to quick trial of suit).
      (e) The expression, "... the result of a failure to act of the obligor” contemplates situations in which an obligor becomes insolvent, or his insolvency increases, because of his failure to act, as when the obligor fails to defend himself in a law suit, and the resulting judgment creates or increases his insolvency.
      (f) Under this Article, anteriority of the debt and insolvency of the debtor are prerequisites to the revocatory action, in accordance with traditional doctrine received by the Louisiana jurisprudence. See Tate, "The Revocatory Action in Louisiana Law,” Essays on the Civil Law of Obligations 133 (Dainow ed.1969); Landry, "The Revocato-ry Action in the Quebec Civil Code: General Principles,” Id. at 115. An obligee’s claim does not have to be liquidated to judgment to be considered an anterior debt. Holland v. Gross, 195 So. 828 (La.App. 2nd Cir. 1940); Ventrilla v. Tortorice, 160 La. 516, 107 So. 390(1926).
      (g) The articles in this section do not address situations in which an already insolvent obligor gives an unfair advantage to one of his creditors. Situations of that kind are regulated by federal bankruptcy law. See 11 U.S.C. § 547.
      (h) An obligor's payment of a just and due debt may not be annulled under this Article. Although it reduces his assets, it also reduces his liabilities by the same amount. If the obligor gives a thing in payment of such a debt, C.C. Art. 2658 (1870) controls. See Morgan v. Gates, 396 So.2d 1386 (La.App. 2nd Cir.1981).

      . Mamal, Inc. is wholly owned by Michael J. Thibodaux, Sr.


source: Caselaw Access Project

author: ROLAND L. BELSOME, Judge. BONIN, J.,

license: Public Domain

text:
    PARAGON LOFTS CONDOMINIUM OWNERS ASSOCIATION, INC. v. PARAGON LOFTS, L.L.C., Ekistics, Inc., Edifice Construction Company, The Roof Doctors and Minerit, Inc.
    No. 2010-CA-0419.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 14, 2011.

      Raymond R. Egan, III, Lauren Fajoni Bartlett, George D. Fagan, Catherine L. Davidson, Leake & Andersson, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Andrew A. Braun, Mark T. Mahfouz, Gieger, Laborde & Laperouse, L.L.C., New Orleans, LA, for Royal Commercial Construction, Inc.
    Mark W. Verret, Brett M. Bollinger, Dax C. Foster, Allen & Gooch Metairie, LA, for Pontchartain Mechanical Company, Inc.
    James M. Benson, Ungarino & Eckert, Metairie, LA, for Ekistics, Inc.
    Wade A. Langlois, III, Gevin P. Gris-baum, Gaudry Ranson Higgins & Gremil-lion, LLC, Gretna, LA, for Edifice Construction, Inc.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME, Judge PAUL A. BONIN).
   ROLAND L. BELSOME, Judge.

| ^his lawsuit was initiated by The Paragon Lofts Condominium Owners Association, Inc. (Condo Association) on March 11, 2002, alleging damages resulting from construction defects relating to the conversion of the building into condominium units. The original named defendants were The Paragon Lofts, elastics, Inc., The Roof Doctor, Inc., Minerit, Inc., and Edifice Construction, Inc. The first petition filed asserted claims of breach of warranty and redhibition for structural defects in roof and exterior walls leading to water intrusion.

On July 29, 2003, a supplemental and amending petition was filed naming additional defendants related to the claims of water intrusion from the roof and exterior walls. A second supplemental and amending petition named two insurers but made no new allegations regarding damages. In a third supplemental and amending petition, filed on October 30, 2009, the Condo Association named Schiro Del Bianco Enterprises, Inc., Pontchartrain Mechanical Company, Inc., and Royal Commercial Construction, Inc. and their insurers. The third supplemental and amending petition also asserted claims of defective construction of bathrooms and showers. The newly added parties were subcontractors who allegedly performed the faulty bathroom and shower work for the contractor Edifice.

| ^Edifice filed an exception of peremption claiming that the breach of warranty claims for the bathrooms and showers were perempted under the New Home Warranty Act (NHWA). After hearing arguments, the trial court granted Edifice’s exception of peremption and dismissed the bathroom/shower claims asserted by the Condo Association. No written reasons were assigned to the trial court’s ruling. The Condo Association filed a motion for reconsideration or alternatively for a new trial, which the trial court denied. The trial court certified the judgment as final and appealable.

Afterwards, the Condo Association moved the trial court to amend its judgment to also include the dismissal of the bathroom/shower claims asserted against Schiro, Pontchartrain Mechanical and Royal Commercial, who had not joined in the exception filed by Edifice. The trial court drafted an amended judgment adding the additional parties. Louisiana law allows for the amendment of final judgments under limited circumstances. La. C.C.P. art. 1951. A final judgment may be amended by the trial court on the motion of any party or on its own motion, at any time to alter the phraseology, but not the substance, of the judgment or to correct errors of calculation. Id. Thus, a judgment may be amended by the court only if the amendment takes nothing from or adds nothing to the original judgment. Villaume v. Villaume, 363 So.2d 448 (La.1978).

Although the Condo Association couched the amendment to the judgment as a change in phraseology, rewriting a judgment to include additional parties clearly adds to the judgment and is therefore substantive. There are three methods by which a trial court can make a substantive change in a judgment: 1) the timely motion for new trial; 2) timely appeal; or 3) petition or action for nullity. Webster v. Boh Bros. Const. Co., Inc., 603 So.2d 761 (La.App. 4th Cir.1992). When the trial court does not 13follow the one of the prescribed methods for making a substantive amendment to a judgment, the amended judgment is an absolute nullity. Francis v. Lafon Nursing Home of the Holy Family, 02-1863 (La.App. 4 Cir. 3/19/03), 840 So.2d 1281. In this case, the trial court denied the motion for new trial and later amended the judgment. Accordingly, we find the amended judgment, dated January 14, 2010, is an absolute nullity. The original judgments rendered on November 16, 2009 and January 5, 2010, which make final the dismissal of the bathroom/shower claims asserted against Edifice, are hereby reinstated.

On appeal the Condo Association sets forth four assignments of error: 1) the trial court incorrectly determined that the amended claims did not “relate back” to the Association’s original petition; 2) the trial court incorrectly applied the law in effect on the date the construction defects were discovered instead of the conversion date which was held by the trial court and this court to be the warranty commencement date; 3) the trial court violated plaintiffs due process by retroactively applying procedural changes to the warranty periods when such application effectively deprived the plaintiff of vested rights; and 4) the trial court violated plaintiffs due process by retroactively applying substantive changes in the Louisiana New Home Warranty Act (NHWA).

By peremptory exception, the defendant argues that plaintiffs’ bathroom/shower claims under the New Home Warranty Act have prescribed and are hereby perempted pursuant to the provisions of La. R.S. 9:3144 and 9:3146.

The New Home Warranty Act governs the exclusive remedies, warranties and prescriptive periods as between a builder and owner relative to home ^construction. La. R.S. 9:3150. The NHWA was originally enacted in 1986 and amended in 1997, 1999, 2001, and 2003. The amendments to the NHWA at issue in this appeal are the passage of Acts 2001, No. 179 § l, in which a peremptive period was substituted for the stated prescriptive period and the change in the warranty period provided in La. R.S. 9:3144 A(3).

By definition under the NHWA, the “warranty commencement date” referenced in La. R.S. 9:3144 is the date that legal title is conveyed to the initial purchaser or the date that the home is first occupied, whichever occurs first. La. R.S. 9:3143(7). The Condo Association has asserted the commencement date of the warranty is March 12, 2001. The courts have consistently held that the warranties afforded the buyer are those in effect on the “warranty commencement date.” See, Hutcherson v. Harvey Smith Construc tion, Inc., et al., 08-1046, p. 5 (La. App. 1 Cir. 2/13/09), 7 So.3d 775, 778 (citing Barnett v. Watkins, 06-2442 (La.App. 1 Cir. 9/19/07), 970 So.2d 1028, 1034, writ denied, 07-2066 (La.12/14/07), 970 So.2d 537; see also Eiswirth v. Anthony L.Golemi, Contractor, Inc., 03-1065 (La.App. 5 Cir. 12/30/03) 864 So.2d 792. Therefore, the Condo Association is protected by a ten-year warranty period for major structural defects.

Next, we must determine the correctness of the trial court’s finding that the | ¿peremptive period imposed by Acts 2001 applies retroactively. Prior to that amendment, La. R.S. 9:3146 was titled “Prescription” and provided:

Any action to enforce any warranty provided in this Chapter shall prescribe thirty days after the expiration of the appropriate time period provided in R.S. 9:3144.

La. R.S. 9:3146 (West 2000) (emphasis added).

After the passage of Acts 2001, La. R.S. 9:3146 is titled “Peremption” and states:

Any action to enforce any warranty provided in this Chapter shall be subject to a peremptive period of thirty days after the expiration of the appropriate time period provided in R.S. 9:3144.

La. R.S. 9:3146 (emphasis added).

Generally, statutes of limitation are accorded retroactive application so long as it does not divest a plaintiff of his vested right in his cause of action. Lott v. Haley, 370 So.2d 521, 523 (La.1979). In Metairie III v. Poche’ Construction, Inc., 10-353 (La.App. 4 Cir. 9/29/2010), 49 So.3d 446, this Court explained what establishes a party’s vested right in his cause of action:

“[ujnder Louisiana law, a cause of action accrues when a party has the right to sue.” Patriot American Hospitality Partnership, LP v. Mississippi Land Holdings, Inc., 2006-0601, p. 5 (La.App. 4 Cir. 12/13/06), 948 So.2d 249, 252. Fault, causation, and damages are required for a cause of action to accrue. Owens v. Martin, 449 So.2d 448, 451 (La.1984). “Once a party’s cause of action accrues, it becomes a vested property right that may not constitutionally be divested.” Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La.1992). “Damage is sustained for the purposes of prescription when it has manifested itself with sufficient certainty to support the accrual of a cause of action.” Bell v. Glaser, 2008-0279, p. 5 (La.App. 4 Cir. 7/1/09), 16 So.3d 514, 517. “Where a claimant has suffered some but not all damages, prescription runs from the day on which he suffered actual and appreciable damages even though he may thereafter realize more precise damages.” Id.

Metairie, III, supra, p. 6, 49 So.3d 446.

The Condo Association relies on the Eis-wirth case in support of its position that the peremptive period was incorrectly applied retroactively by the trial court. | AEiswirth, supra. The Eiswirth plaintiffs filed suit against their contractor under the NHWA. Id. The Eiswirths’ action came into existence and suit was filed prior to the amendment of the statute. Id. Under those circumstances, the court found that retroactively applying the peremptive period would divest the Eiswirths of a right that had already accrued. Id.

Contrarily, in the instant case, the action to enforce the warranty provisions of the NHWA in relation to the bathroom/shower claims did not come into existence until sometime in 2008. By that time the statute had been amended to provide for the peremptive period. Therefore, we find that unlike the Eiswirths, the Condo Association had not accrued a cause of action for the bathroom/shower claims prior to the effective date of the peremption provision. Thus, applying the per-emptive period retroactively does not affect a vested right. Furthermore, because peremptive periods cannot be suspended or interrupted, the filing of the original suit has no bearing on the newly asserted bathroom/shower claims. See, Naghi v. Brener, 08-2527 (La.6/26/09), 17 So.3d 919.

In conclusion, we find the trial court erred in rendering an amended judgment to include additional parties that had not joined in the peremptory exception and motion to dismiss filed by Edifice. Therefore the amended judgment was an absolute nullity. We further find that the per-emptive period provided for in La. R.S. 9:3146 applies retroactively to the Condo Association’s bathroom/shower claims. Additionally, we conclude that the warranty periods applicable to the Condo Association’s claims are the ones that were in effect on the date of commencement. Thus, the ten-year warranty for major structural defects has not expired. It is unclear from the record and judgment what warranty period(s) was |7considered in dismissing the bathroom/shower claims. Likewise, we are also unable to ascertain from the record if the bathroom/shower claims rise to the level of major structural defects as contemplated by La. R.S. 9:3144.

Based on this Court’s findings, a remand for rehearing is warranted. Accordingly, we reverse the trial court’s ruling granting Edifice’s peremptory exception and motion to dismiss plaintiffs shower/bathroom claims. This matter is remanded for further proceedings to specifically address whether the ten-year warranty period applicable to major structural defects encompasses the bathroom/shower claims asserted by the Condo Association.

REVERSED AND REMANDED.

BONIN, J., concurs with reasons.

BONIN, J.,

concurs with reasons.

U respectfully concur in the result which reverses the trial court’s sustaining of the peremptory exception of peremption and remands the case for further proceedings. If the New Home Warranty Act (La. R.S. 9:3141 et seq.) applies to the plaintiffs cause(s) of action, then I agree that the warranty periods in effect as of the warranty commencement date, see La. R.S. 9:3143(7), are controlling and that the thirty-day period following the expiration of the applicable warranty period is per-emptive and not prescriptive, see La. R.S. 9:3146. I write separately, however, to express my reservation about whether the New Home Warranty Act is even applicable.

Based upon the materials before us in the record, this is not a new structure. A hundred-year old warehouse was converted to condominiums for residential use. And the Act itself provides the following definition for “home”:

“Home” means any neiv structure designed and used only for residential use, together with all attached and unattached structures, constructed by the builder whether or not the land was purchased from the builder. Such term includes structures containing multiple family dwellings or residences.

|2La. R.S. 9:3143(3) (emphasis added). Thus, the builder’s warranty under the Act extends only to a “new structure designed and used only for residential use”. See La. R.S. 9:3143(1).

Then, even if the Act were stretched to cover the new construction in this old warehouse, because there is no allegation that the condominium association is the “owner” of the home, I struggle to discern how the condominium association has a cause of action against the builders. Last year, in that regard, a panel of this court explained in its denial of a condominium association’s application for supervisory review that a condominium association “cannot pursue legal remedies under the [Louisiana New Home Warranty Act]” because the warranties are solely between builder and owner and the owner is defined under La. R.S. 9:3146(3) as “the initial purchaser of a home and any of his successors in title, heirs, invitees, or assigns to a home”. Marseilles Homeowners Condominium Assn., Inc. v. Broadmoor, L.L.C., 2010-0524 (La.App. 4 Cir.5/26/10) (unpub.). Because the matter is being remanded to the trial court, where the issue may be noticed on the court’s own and an appropriate remedy fashioned if this condominium association is not an owner under the Act, I see no need to further address the matter on appeal. See La. C.C.P. arts. 927 B and 934.

      . The January 5, 2010 judgment was designated final and appealable pursuant to La. C.C.P. art. 1915, providing this Court with proper jurisdiction.

      . Acts 2001, No. 179 § 1 became effective on May 31, 2001.

      . Prior to the 2001 amendment, 9:3144 A(3) provided:
      Ten years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards or due to other defects in materials or workmanship not regulated by building standards. (emphasis added).
      Then, in the 2001 amendment, the ten-year warranty period on major structural defects was changed to a seven year warranty period. Provision A(3) of 9:3144 was again amended by Acts 2003, No. 333 § 1, which reduced the warranty time on major structural defects to five years.

      .The correctness of this date is not an issue before this Court. This is the date taken from the face of the petition and by reference of the trial court.

      . Because there are no transcripts of the hearings or reasons for judgment, it is unclear what specific findings the trial court made. However, the granting of the exception of peremption indicates a retroactive application of La. R.S. 9:3146.

      . The panel consisted of Jones, Lombard and Love, JJ. The application, opposition, and disposition are all available in the office of the Clerk of this Court.


author: AMY, Judge.

text:
    STATE of Louisiana v. Hung NGUYEN.
    Nos. 10-483, 10-898.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.

      Alfred F. Boustany, II, Lafayette, LA, for Defendant/Appellant, Hung Nguyen.
    J. Phillip Haney, District Attorney, New Iberia, LA, for Appellee, State of Louisiana.
    Jeffrey J. Trosclair, Assistant District Attorney, Franklin, LA, for Appellee, State of Louisiana.

      Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

hThe defendant pled guilty to two counts of aggravated second degree battery and was sentenced to serve fifteen years imprisonment at hard labor with five years of that sentence suspended on each count. The trial court ordered the sentences to be served concurrently. The defendant appeals, questioning the trial court’s appointment of his step-son and the victim’s son as his translator. The defendant also asserts deficiencies in the bill of information and in his guilty plea. The defendant also challenges his sentences as excessive. For the following reasons, we affirm the defendant’s convictions, vacate his sentences, and remand the matter to the trial court for resentencing.

Factual and Procedural Background

The defendant, Hung Nguyen, was charged on April 10, 2007, by bill of information with attempted second degree murder and second degree kidnapping arising out of an altercation with his wife on February 13, 2007. On November 8, 2007, the defendant was also charged with attempted second degree murder arising out of an altercation with his wife on September 16, 2007.

The defendant and the State agreed to enter into a plea agreement, wherein the defendant would plead guilty and the State would amend the previous April and November bills of information and charge the defendant with two counts of aggravated second degree battery, violations of La. R.S. 14:34.7.

The defendant subsequently pled guilty on September 1, 2009, to two counts of aggravated second degree battery. On October 29, 2009, the trial court sentenced the defendant to serve fifteen years imprisonment at hard labor for each count, with five years of each penalty suspended and subject to supervised probation. The trial |2court ordered the sentences to be served concurrently. The defendant filed a motion to reconsider sentence, which was subsequently denied.

The defendant appeals, asserting the following errors:

1.- The district judge erred when she appointed the appellant’s step-son as his interpreter, who is also the biological son of the victim because [La.Code Crim.P. art.] 25.1 requires the court to appoint a competent interpreter, and [La.Code Evid. art.] 604 requires an interpreter to be qualified as an expert, and this record fails to show that the appointed interpreter had the qualifications required by law.
2. The district judge erred when she appointed the victim’s son as the appellant’s interpreter because he had an interest in the case that may have conflicted with the appellant’s best interests, also acted as the victim’s interpreter, and testified as a witness at the appellant’s sentencing hearing.
3. The district judge erred when she did not require the interpreter to translate in the appellant’s native language of Vietnamese.
4. The appellant did not knowingly and intelligently waive his Federal and State Constitutional right to confront his accuser because the district judge did not explain to the appellant during his Boy-kin colloquy that he had a Constitutional right under the Federal and State Constitutions to confront his accuser.
5. The appellate court should reverse the appellant’s conviction because the bill of information failed to list the name of the victim as required by [La.Code Crim.P. art.] 473.
6. The appellate court should reverse the appellant’s conviction because the appellant did not knowingly and intelligently plead guilty to the crime charged in the bill of information when the trial judge gave him a different date of offense than the one alleged in the bill of information, the bill of information alleged the use of a knife to commit the offense, but the appellant denied using a knife, and the offense required the use of a dangerous weapon but no one explained the definition of dangerous weapon to the appellant.
7. The lower court erred by imposing an excessive sentence.

As the pleas and sentencing under each lower court docket number were conducted jointly at the trial court and were part of the same plea agreement, the two |3appeals lodged with this court were consolidated. For the following reasons, we affirm the defendant’s convictions, vacate his sentences, and remand to the trial court with instructions.

Discussion

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the fact of the record. After review, we find one error patent in addition to finding the court minutes are in need of correction.

The sentencing transcript indicates that the trial court, when imposing sentence, stated in pertinent part, “And he is going to pay any outstanding restitution, out of pocket expenses that this victim has.” However, the trial court did not specify the amount of restitution owed, resulting in an indeterminate, illegal sentence. See State v. Joseph, 05-186 (La.App. 3 Cir. 11/2/05), 916 So.2d 378. Accordingly, the defendant’s sentences are vacated, and the matter is remanded to the trial court for resentencing.

After review, we also find that the court minutes are in need of correction. The amended bills of information and the plea hearing transcript indicate that the defendant was charged with, and pled guilty to, aggravated second degree battery. However, the September 1, 2009 minute entry of the defendant’s guilty plea reflects that the defendant pled guilty to “Aggravated Battery.” Consequently, we order the trial court to amend the minute entry to accurately reflect the transcript. See State v. Blue, 09-1111 (La.App. 3 Cir. 4/7/10), 34 So.3d 447.

]¿Assignments of Errors 1 and 2

The defendant asserts that “[t]he district judge erred when she appointed the victim’s son as the appellant’s interpreter because he had an interest in the case that may have conflicted with the appellant’s best interests, also acted as the victim’s interpreter, and testified as a witness at the appellant’s sentencing hearing.”

On September 1, 2009, a guilty plea hearing was held. The record reveals that the defendant spoke Vietnamese as a first language. The transcript reveals that, at that hearing, the trial court asked the defendant whether he understood English. The defendant responded: “A little bit[,] not too much.” The trial court then asked the defendant whether he had understood the proceedings thus far, to which the defendant responded, “Yes.” The trial court asked Thanh Le, the defendant’s step-son and the victim’s biological son, whether he would help by translating for his father in the event that the defendant had problems. Mr. Le agreed and took the interpreter’s oath.

The record reveals that the defendant made no objection at either his guilty plea or sentencing hearing regarding Mr. Le’s qualification as an interpreter or possible bias. In fact, the transcript reveals that at the sentencing hearing, counsel for the defendant asked Mr. Le if he would assist in translating, stating:

Yes, I would like to call the victim, his wife, Le. And I would also like her son, is here today, and her English is not the best, Your Honor, if he could come up and assist us, I would appreciate it. Even though he is going to testify.

| sUnder the contemporaneous objection rule, “[a]n irregularity or error cannot be availed of after verdict unless it was objected to at the time of occurrence.” La. Code Crim.P. art. 841. Accordingly, the defendant waived any objections as to these alleged errors by failing to timely object.

Further, although arguing generally as to Mr. Le’s potential bias, the defendant does not assert any specific prejudice arising out of Mr. Le’s translation. In fact, the record indicates that while Mr. Le testified at the defendant’s sentencing hearing, he did so on behalf of the defendant, asking the trial court to release the defendant on probation.

For these reasons, these assignments of error are without merit.

Assignment of Error 3

The defendant contends that the trial court erred in not requiring the interpreter to translate in the defendant’s native language of Vietnamese.

The transcript indicates that, twice, the trial court noted for the record that Mr. Le was translating into English. However, similarly to the above, the defendant did not object, thus waiving these alleged errors. See La.Code Crim.P. art. 841.

For this reason, this assignment of error is without merit.

Assignment of Error f

In his fourth assignment of error, the defendant contends that he did “not knowingly and intelligently waive his Federal and State Constitutional right to confront his accuser because the district judge did not explain to the appellant during his Boykin colloquy that he had a Constitutional right under the Federal and State Constitutions to confront his accuser.”

lfiIn order for a guilty plea to be valid, there must be a showing that the defendant was informed of and waived his constitutionally guaranteed right to trial by jury, right of confrontation, and right against self-incrimination. State v. Williams, 02-0707 (La.App. 3 Cir. 3/5/03), 839 So.2d 1095. In addition, under La. Code Crim.P. art. 556.1, a trial court shall not accept a guilty plea unless it advises the defendant of certain rights, including “the right to confront and cross-examine witnesses against him.”

The transcript of the guilty plea, in pertinent part, reads as follows:

[Trial Court]: If you go to trial you have the right to have your case heard in front of a jury. You understand that?
[Defendant]: Yes, Ma'am.
[Trial Court]: At that trial, Ms. Jones [counsel for the defendant] would ask questions of the witnesses. You understand what she would do at trial?
[Defendant]: Yes, Ma'am.
17[Trial Court]: That’s your rights, to have her ask those questions, you understand that? That she can ask the questions at trial?
[Defendant]: Yes.
[Trial Court]: You understand when you plead though, we are not going to have a trial. So she is not going to ask any questions.
[Defendant]: Yes, Ma'am.

The defendant, citing Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988), asserts that the right to confront witnesses includes two types of protections: the right to physically face persons who testify against him, and the right to conduct cross-examination. The defendant argues, in brief, that “[m]erely explaining to a defendant that his attorney has a right to question witnesses does not adequately explain the defendant’s Constitutional confrontation rights.”

In State v. Mendenhall, 06-1407 (La.12/8/06), 944 So.2d 560, our supreme court reversed the lower court’s determination that the defendant’s guilty plea should be vacated for the trial court’s failure to adequately advise the defendant of his right to confront his accusers. In reversing, it stated:

A majority on the court of appeal panel found that the trial judge’s statement informing defendant that the state would have to prove its case beyond a reasonable doubt and that his attorney would have the opportunity to cross-examine the state’s witnesses at a trial did not suffice as an advisement to defendant of his right to confront his accusers. However, this Court has stressed that neither Boykin v. Alabama, ... nor the Court’s implementation of Boykin ... sets out a “magic word formula” which may “serve as a technical trap for conscientious trial judges who conduct a thorough inquiry into the validity of the plea....” With respect to the Confrontation Clause of the Sixth Amendment, “[t]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination.” (“In common usage, the phrases confront and cross-examine always connote adversarial activities.”) In this instance, the language used by the trial judge appears sufficiently tailored to inform a 29-year-old defendant, who was educated through the twelfth grade and employed |8as a plant assistant manager, that he was waiving his right to confrontation, and that, because he was pleading guilty, there would be no further trial.

Id. at 560 (citations omitted).

Here, we find that the trial court adequately advised the defendant of his right to confront the witnesses. The colloquy between the defendant and the trial court reveals that the trial court explained, twice, that at a trial, he would have been entitled to have his attorney ask questions of all the witnesses. Further, the trial court explained to the defendant that if he pled guilty, he would not be entitled to a trial and that he would not be entitled to have- his attorney ask those questions. In each instance, the trial court asked the defendant whether he understood his rights to which the defendant responded in the affirmative each time. While the trial court did not expressly use the term “confront his accusers,” the language suggests that the defendant would be able to physically face and question the testifying witnesses, and thus, we find the trial court’s advisement of the defendant’s right to confrontation adequate. See, e.g., State v. Keener, 41,246 (La.App. 2 Cir. 8/28/06), 939 So.2d 510; State v. Ford, 02-1394, 02-1642 (La.App. 4 Cir. 4/16/03), 846 So.2d 98, writ denied, 03-1401 (La.11/26/03), 860 So.2d 1132.

For these reasons, this assignment of error is without merit.

Assignments of Error 5 and 6.

In his fifth assignment of error, the defendant asserts that this court “should reverse the appellant’s conviction because the bill of information failed to list the 19name of the victim as required by C.Cr.P. Article 473. In his sixth assignment of error, the defendant contends as follows:

The appellate court should reverse the appellant’s conviction because the appellant did not knowingly and intelligently plead guilty to the crime charged in the bill of information when the trial judge gave him a different date of offense than the one alleged in the bill of information, the bill of information alleged the use of a knife to commit the offense, but the appellant denied using a knife, and the offense required the use of a dangerous weapon but no one explained the definition of dangerous weapon to the appellant

A criminal defendant has a constitutional right to be advised of the nature and cause of the accusations against him. La. Const. 1974, art. I, § 13. Louisiana Code of Criminal Procedure Article 464 provides: “The indictment shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.”

Insofar as the defendant is asserting that his bill of information was “defective and failed to sufficiently advise him of the accusations against him, Defendant waived such claim as ‘[a] plea of guilty normally waives all non-jurisdictional defects in the proceedings prior to the plea.’ ” State v. Roberts, 08-1026, pp. 2-3 (La.App. 3 Cir. 3/4/09), 4 So.3d 1011, 1014 (footnote omitted), quoting State v. Crosby, 338 So.2d 584, 586 (La.1976).

|10As such, the defendant’s remaining claim is that his convictions should be overturned because, at his guilty plea hearing, the definition of a dangerous weapon, an element of aggravated second degree battery, was not explained to him. A dangerous weapon, defined at La.R.S. 14:2(A)(3), includes “any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.”

At the hearing, the trial court stated the following when informing the defendant of the nature of the charges against him in compliance with La.Code Crim.P. art. 556.1:

Aggravated Second Degree Battery is a battery committed with a dangerous weapon when the offender intentionally inflicts serious bodily injury, ok. And a battery is the use of force or violence against somebody without their consent, [y]ou understand that? If you hit me without my consent, if you use force or use a weapon against me or violence, that is a battery.
Mr. Nguyen:
Yes, Ma'am.
Q. You understand that?
A. Yes, Ma'am.
Q. It becomes a second degree battery when you mean to hurt me pretty bad. Ok? And let me explain or let me read to you what usually means you mean to hurt somebody really bad.
If it involves — if you hit them so hard they are unconscious, if they are in a lot [or] extreme physical pain, obvious disfigurement. If you cut somebody with a knife, that is obvious disfigurement, or the loss of an eye, or a bod[il]y function. The loss of an arm or an ear, if you lose any — the use of anything on your body or if you lose an organ. You know what an organ is, a kidney or whatever; or if your mind is not good after the battery. That is serious bodily injury. So do you understand that?
A. Yes, Ma'am.

| n Further, the following exchange took place when the State provided a factual basis for the guilty plea on the February 2002 count:

[State]: [T]he evidence would show and as the photographs indicate, that Mr. Nguyen took an object, a sharp objects
The Court: — in manner in which it was used to be dangerous—
[State]: — in a manner in which it was used it was dangerous and that he cut his wife at least on her chest causing serious bodily injury
[The Court]: Mr. Nguyen, you heard that?
[Defendant]: Yes, Ma'am.
[The Court]: That’s true?
[Defendant]: Yes, Ma'am.
[The Court]: And that was in February of 2002, correct?
[Defendant]: Yes, Ma'am.

The State similarly provided a factual basis for the second count, and the defendant again admitted it was true.

“The test for the validity of a guilty plea does not depend on whether the trial court specifically informed the defendant of every element of the offense. Rather, the defendant must establish that he lacked awareness of the essential nature of the offense to which he was pleading.” State v. Strattman, 08-674, p. 5 (La.App. 5 Cir. 4/28/09), 13 So.3d 1129, 1132, writ denied, 09-1157 (La.1/22/10), 25 So.3d 130; see also, State v. Minniefield, 43,300, p. 4 (La.App. 2 Cir. 6/4/08), 986 So.2d 227, 231. Here, after the trial court read the aggravated second degree battery statute, the defendant affirmed three times that he understood the nature of the charges against him. Further, the defendant affirmed the State’s factual basis, which included preference to the defendant using an “object in a manner in which it was used it was dangerous,” was true. Accordingly, it cannot be said that the defendant lacked awareness of the essential nature of the offenses to which he was pleading.

For these reasons, these assignments are without merit.

Assignment of Error 7

In his last assignment of error, the defendant argues that his sentences are excessive. However, this assignment is moot in light of our decision to vacate the sentences due to an error patent.

DECREE

The defendant’s convictions are affirmed. For the foregoing reasons, the defendant’s sentences are vacated, and the matter is remanded to the trial court for resentencing. Also, the trial court is instructed to amend the September 1, 2009 minute entry to accurately reflect that the defendant entered guilty pleas to aggravated second degree battery rather than aggravated battery.

CONVICTIONS AFFIRMED. SENTENCES VACATED. REMANDED WITH INSTRUCTIONS.

      . For the companion case to this appeal, see State v. Nguyen, 10-898 (La.App. 3 Cir.2/2/11), 55 So.3d 984.

      . According to the transcript, the interpreter’s oath reads as follows:
      Do you solemnly swear or affirm to make a true interpretation in this case in the language that he understands and you will repeat his answer to questions to counsel and the court to the best of your skill and judgment so help you God?

      . Louisiana Code of Criminal Procedure Article 556.1(A) reads as follows:
      A. In a felony case, the court shall not accept a plea of guilty or nolo contendere without first addressing the defendant personally in open court and informing him of, and determining that he understands, all of the following:
      (1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.
      (2) If the defendant is not represented by an attorney, that he has the right to be

        represented by an attorney at every stage of the proceeding against him and, if financially unable to employ counsel, one will be appointed to represent him.
      (3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself.
      (4) That if he pleads guilty or nolo con-tendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial.

      . Under La.Code Crim.P. art. 473:
      When the name of the person injured is substantial and not merely descriptive, such as when the injury is to the person, as in murder, rape, or battery, the indictment shall state the true name of the victim or the name, appellation, or nickname by which he is known. If the name, appellation, or nickname of the victim is not known, it is sufficient to so state and to describe him as far as possible. In stating any name of a victim it is sufficient to state a surname, a surname and one or more given names, or a surname and one or more abbreviations or initials of a given name or names.

      . Here, the original bill of information charging the defendant with attempted second degree murder and second degree kidnapping named Mui Nguyen, the defendant's wife, as the victim. Pursuant to the plea agreement, the State filed amended bills of information charging the defendant with aggravated second degree battery. However, the amended bills of information did not name Ms. Nguyen as the victim.


author: MARC T. AMY, Judge.

text:
    STATE of Louisiana v. Hung NGUYEN.
    Nos. 10-898, 10-483.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.
    Alfred F. Boustany, II, Lafayette, LA, for Defendant/Appellant, Hung Nguyen.
    J. Phillip Haney, District Attorney, New Iberia, LA, for Appellee, State of Louisiana.
    Jeffrey J. Trosclair, Assistant District Attorney, Franklin, LA, for Appellee, State of Louisiana.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   MARC T. AMY, Judge.

For disposition of this consolidated matter, see State of Louisiana v. Hung Nguyen, 10-483 (La.App. 3 Cir.2/2/11), 55 So.3d 976, 2011 WL 309185.

CONVICTIONS AFFIRMED. SENTENCES VACATED. REMANDED WITH INSTRUCTIONS.


text:
    Mia Angelina Cutrera DOOLEY v. Donald Jude DOOLEY.
    No. 10-785.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.
    Richard A. Spears, New Iberia, LA, For Plaintiff/Appellee, Mia Angelinn Cutrera Dooley.
    Jeanne M. Bourque, Lafayette, LA, for Defendant/Appellant, Donald Jude Dooley.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

|¶The defendant appeals a judgment of the trial court granting the plaintiff sole custody and terminating his, visitation with the parties’ two minor children. For the following reasons, we reverse the trial court’s judgment terminating the defendant’s visitation and remand for the limited purposes of implementing a visitation schedule. We affirm the trial court’s judgment granting the plaintiff sole custody of the two minor children.

Factual and Procedural Background

The plaintiff, Mia Cutrera Dooley (Mia), and the defendant, Donald Dooley (Donald) were married; two children were born from their marriage. The couple divorced and have been involved in litigation for many years concerning child custody and support.

Initially, in 1998, when the parties first divorced, Mia and Donald agreed to share joint custody of the children with Mia designated as the domiciliary parent. In 1999, Donald married Laura Dooley (Laura). In February of 2000, Mia filed a rule for custody, past due child support, and contempt against Donald, seeking sole custody of the children subject only to Donald’s supervised visits. On February 25, 2000, the trial court signed judgment awarding the parties joint custody, with Mia designated as domiciliary parent, pursuant to a subsequent agreement between the two.

On May 6, 2002, Donald filed a “Motion for Change of Child Custody and Child Support.” In that motion, Donald stated that he and his wife, Laura, had been involved in a serious automobile accident resulting in his inability to work and fulfill | ghis child support obligations. Donald sought a modification of the custody agreement to award him domiciliary custody of the children, an award of visitation to Mia, an order of child support against Mia, and a termination of the child support obligation he currently owed under the previous judgment. Donald further alleged that Mia’s boyfriend was physically abusive towards the children, that Mia was secreting assets from him, and that Mia was purposefully not cooperating with the joint custody plan.

On May 20, 2002, Mia answered by filing a “Motion to Limit Visitation and to Modify Child Support Payment Schedule.” Mia alleged that Donald’s new spouse had begun constantly harassing her and the children, causing an interference detrimental to the best interest of the minor children. Specifically, Mia alleged that Laura was: interrogating the children about Mia’s private life; insisting that she share in the decision making regarding the children; constantly contacting the children’s daycare to subvert Mia’s authority; tape recording calls between Mia, the children, and Donald; and having the child’s hair cut in a manner she knew Mia would not approve.

A hearing on those motions was held July 17, 2002, and while the matter was under advisement, on July 24, 2002, Mia filed a rule for injunctive relief alleging that Laura had “attempted suicide further destabilizing the situation” and alleging that Laura “went unaccompanied” to a school day camp and pulled one of the children from his activities to talk with her.

The trial court issued judgment, maintaining Mia’s and Donald’s joint custody, with Mia designated as the domiciliary parent and delineating a detailed sharing of physical custody schedule. The trial court included in that judgment several orders ^prohibiting Laura from contacting or visiting with the children. Laura was further prohibited from contacting Mia, going to the children’s school or daycare, or recording telephone conversations between the children and/or Mia and Donald.

On January 13, 2003, and again on September 26, 2003, the parties entered into joint stipulations relaxing the restrictions against Laura, allowing Laura to fully participate in the visitations with the minor children. However, the parties agreed to maintain the prohibition that Laura not contact Mia, that she not be allowed at school activities without Donald present, and that she not discuss the litigation with the children.

On January 26, 2009, Mia filed a “Rule for Change of Custody and Contempt,” which is the subject of the instant appeal. In that rule, Mia alleged that Laura, in violation of the earlier joint stipulations, had continued to contact Mia, attend the minor children’s school activities without Donald, and that she had spoken with the children about the parties’ custody arrangement “causing emotional distress to the minor children and affecting their relationship with” her. Further, Mia asked the trial court to grant her sole custody of the children, with Donald only being granted supervised visitation with the two children.

After a hearing, the trial court issued judgment, granting Mia sole custody and terminating all of Laura’s and Donald’s contact with the children.

|4Ponald appeals, asserting that the trial court erred in: (1) awarding the plaintiff sole custody; (2) denying him visitation and effectively terminating his parental rights; and in (3) not accepting the expert testimony opining that the visitation should not be changed.

Mia also filed with this court a “Motion to Strike Improper Attachment” alleging that Donald, in brief to this court, attached the trial court’s written reasons for judgment which “contains handwritten observations, pithy comments and other marginalia, which is improper and should not be contained!].]”

Discussion

Standard of Review

The trial court is in a better position to evaluate the best interest of the child from its observations of the parties and witnesses; thus, a trial court’s determination in child custody cases is entitled to great weight on review and will not be disturbed unless there is a clear abuse of discretion. D.R.S. v. L.E.K., 09-1274 (La.App. 8 Cir. 3/10/10), 38 So.3d 428, writ denied, 10-794 (La.4/30/10), 34 So.3d 291. Each child custody ease must be viewed in light of its own particular facts and circumstances, with the prevailing inquiry as to whether the custody arrangement is in the best interest of the child. McCormic v. Rider, 09-2584 (La.2/12/10), 27 So.3d 277.

Award of Sole Custody

Louisiana Civil Code Article 132 states:

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of | sthe child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

In D.R.S. v. L.E.K., 33 So.3d at 431-33, a panel of this court stated:

Louisiana Civil [Code] Article 132, Comment (b), expressly notes that “[t]his latter provision is intended to strengthen the preference for joint custody provided for in former Civil Code Article 131(A).” The effect of the 1993 revisions [sic] were discussed by the second circuit which stated as follows:
La. C.C. arts. 131, 132 and 134, as amended by Act No. 261 of 1993, have as their focus the best interest of the child in any contest over joint or sole custody. Article 132 states that in the absence of an agreement regarding custody, “the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.” Article 134 provides twelve relevant factors for the court to consider in determining the best interests of the child.
The author of a 1994 Louisiana Law Review article discussed the change in the focus brought about by the 1993 amendments, as follows:
Under present Article 132, the focus of the inquiry is not on the joint custody arrangement; it is on sole custody in a particular parent. It must be shown, by clear and convincing evidence, that custody in that parent will serve the best interest of the child. The question changes from why joint custody is not in the best interest of the child to why sole custody in a particular parent is in the best interest of the child. Although these issues may overlap, the burden on the parent seeking sole custody is to demonstrate that the granting of custody to that parent alone will be in the best interest of the child.
Kenneth Rigby, 1993 Custody and Child Support Legislation, 55 La. L.Rev. 103, 105 (1994). The author | sfurther noted that the test shifted from “a negative to a positive one, from why joint custody to both parents is not in the child’s best interest to why sole custody in a particular parent is in the child’s best interest.” Id. (Emphasis in original).
Harper v. Harper, 33,452, pp. 4-5 (La.App. 2 Cir. 6/21/00), 764 So.2d 1186, 1189-90 (footnote omitted).

Here, Donald argues that Mia failed to prove by clear and convincing evidence that sole custody was in the children’s best interest.

In its written reasons for judgment, the trial court stated, in part:

It seemed obvious to the Court, and more particularly on this hearing of June 28, 2009, that Laura Dooley is the one pushing for all of the things that she wants concerning the minor children. It is obvious to the Court and the testimony of Donald Dooley indicates that whatever she is asking and recommending is okay with him. It is obvious to the Court now and has also been obvious to the Court in the past that Donald Dooley has very little to do with any decisions made relative to these children. It is also obvious to the Court that Laura Dooley is the one who takes over completely with the children when they visit the Dooley residence. The e-mails to Mia Dooley indicate that. There are hardly any e-mails from Donald to Mia relative to the children. Obviously, Donald Dooley has relinquished his parental authority to Laura Dooley and goes along with whatever Laura Dooley wants.
The Court also did not hear any testimony from Donald Dooley as to why the children should be with him more frequently and what he can offer the children that is not being offered to them by their mother. All of the testimony at the hearing on June 23, 2009 concerned the desires and wishes of Laura Dooley relative to herself and the minor children. There was no testimony from Donald Dooley relative to the interaction between himself and the children or his desires and abilities to have the children with him subject to his authority. Donald Dooley has indicated, both in this hearing and in previous hearings, that in fact, he has delegated to Laura Dooley all of the concerns, communication, instruction and decisions with reference to his two children.... There is no indication from Donald Dooley that he is capable of having a relationship with the children and that his mental facilities are sufficient and capable for him to have a meaningful relationship at this point in time with his children. In fact, the testimony at the hearing would indicate that he has considerable mental problems relative to communicating and thought processes.
17This Court has been dealing with these parties for many years. From the very beginning and all throughout these proceedings, the fly in the ointment has been Laura Dooley. Laura Dooley has evidenced to this Court that she wants to do what she wants. She will do whatever she has to do in order to get what she wants relative to these children. She has tried to manipulate the children and Mia Dooley with her ideas of God, what is right and wrong, and God being on the side of Laura and Donald Dooley. Additionally, she is in total control of Donald Dooley. He has very little constructive to say or do as he testified throughout these proceedings and has not really asserted anything on behalf of himself or the children. Laura Dooley is in complete charge of that marriage and household.
[Bjeeause of the mental condition of Donald Dooley and his complete control by Laura Dooley, the Court does not believe that Donald Dooley can assert sufficient control over Laura Dooley to have these children visit with him. To begin with, he has allowed her to impress her beliefs, criticisms, religion, hatred and vengeance upon these children. He either cannot or will not prevent her from destroying these children and putting them under extreme stress and worry.

At the hearing, both Mia and Laura testified that they began communicating with each other, through email, in 2007 and 2008. The record indicates that, for a period of time, the two were amiable towards one another. However, Mia testified that, as a result of lenient “visitation” with Laura and Donald, the children would come home “withdrawn” and “upset.” Mia testified that Laura sent her numerous emails alleging that the children desired for them parents to exercise a week-to-week custody schedule. Laura confirmed in her testimony that she sent Mia numerous emails and posted certain statements on the internet for the public to see referring to Mia as the “enemy.”

Luke Lucas, a licensed professional counselor accepted as an expert by the trial court, also testified at the hearing and explained that he was familiar with Laura’s emails and internet postings. He stated that he believed the children’s relationship with them stepmother was unhealthy. Mr. Lucas further testified that Laura’s conduct [¿‘influences [the children’s] beliefs as to what they think is right and wrong and what they should and shouldn’t do and who’s right and who’s wrong. And they may not be affected totally today, but in 10-15 years they’re going to be dealing with a lot of stuff.” He related that it was unhealthy for Laura to refer to the children as “my babies” and make comments to the children that “I can’t wait for you to come home.” Mr. Lucas opined that the children were confused as to where “home” was because of Laura’s statements. He testified that home “would be with the custodial parent, the one they spend most of their time with.”

Mr. Lucas further testified that the children expressed to him that they loved both parents. He stated that in his second session with the children, “we all agreed that they [Laura and Donald] should get a — maybe another day during the week to have them with them. But with the bombardment of all the letters and constant information being in front of them, I would say no, that it [the custody agreement] should stay the same.”

In brief, Donald argues that the trial court erred in not accepting Mr. Lucas’s testimony that while Laura’s contact with the children should be limited, that the custody as it stood, joint custody, “should otherwise stay the same.” As explained above, the trial court is in a better position to evaluate the best interest of the child from its observations of the witnesses; thus, a trial court’s determination in child custody cases is entitled to great weight on review. D.R.S. v. L.E.K., 33 So.3d 428. This great discretion and deference granted to the trial court on review extends to its assessment of expert testimony. Dupre v. Dupre, 02-902 (La.App. 3 Cir. 12/30/02), 834 So.2d 1272. The trial court is not bound by expert testimony and remains free to accept or reject an expert’s conclusions. Slayton v. Slayton, 05-1529 (La.App. 3 |9Cir. 5/3/06), 929 So.2d 865. Here, the trial court could permissibly reject Mr. Lucas’s testimony concluding that joint custody should be maintained.

After review, we find that the trial court’s determination that Mia proved by clear and convincing evidence that sole custody was in the best interest of the children is supported by the record. The record reveals that the children were confused as to what “home” was, and, according to Mr. Lucas’s testimony, it was in their best interest to have that clarified and supported by the parties. It also indicates that the parties, under the previous custody arrangement, had trouble representing to the children what constituted home. In its reasons for judgment, the trial court considered this confusion and determined that the children were to have one home, “with their mother.” In its judgment, the trial court took into account the testimony establishing Laura’s interference with the children and what detrimental effect that interference was having upon the children. Further, the trial court took into account that Donald evidenced a lack of desire or ability to shield the children from Laura’s interference, “putting them under extreme stress and worry.” It found that Donald did not testify “relative to the interaction between himself and the children or his desires and abilities to have the children with him subject to his authority.”

Accordingly, we find that the trial court acted within its discretion in determining that it was in the best interests of the children to award Mia sole custody.

Visitation

Donald also asserts that it was error for the trial court to terminate his visitation.

Louisiana Civil Code Article 136(A) states that “A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court | infinds, after a hearing, that visitation would not be in the best interest of the child.”

In her “Rule for Change of Custody and Contempt,” while Mia asked that Laura’s contact with the children be prohibited, she asked for sole custody of the children, with Donald only being granted supervised visitation. Mia acknowledged in her testimony that the children wanted to spend time with their father. Further, Mr. Lucas acknowledged that the children love their father.

The record reveals that Mia did not ask for the termination of Donald’s visitation rights, and there was no testimony that supervised visitation would not be in the best interest of the child. As such, we reverse that portion of the judgment denying Donald’s visitation to the children and remand to the trial court in order to implement a schedule of supervised visitation. See Bradley Griffith v. Res a Latiolais, 10-754 (La.10/19/10), 48 So.3d 1058 (wherein the supreme court noted that it was error for the trial court to grant the defendant sole custody of the minor child while the record did not indicate that the defendant asked for sole custody in her pleadings.)

Motion to Strike

Mia also filed with this court a “Motion to Strike Improper Attachment” alleging that Donald, in brief to this court, attached the trial court’s written reasons for judgment which “contains handwritten observations, pithy comments and other marginalia, which is improper and should not be contained[.]” In accordance with Uniform Rules-Courts of Appeal, Rule 2-12.4, a copy of the trial court’s reasons for judgment shall be attached to the appellant’s brief. After review of the appellant’s brief, we find no support for Mia’s allegations that Donald added comments or other marginalia to the trial court’s reasons for judgment. As such, the motion to strike is denied.

JjjDECREE

For the foregoing reasons, the trial court’s judgment is reversed to the extent it terminated Donald Dooley’s visitation of the minor children. The judgment granting Mia Dooley sole custody is affirmed, and the matter is remanded to the trial court for implementation of a schedule of supervised visitation with Donald Dooley. The appellee’s motion to strike is denied. All costs of these proceedings are assessed equally between Mia Dooley and Donald Dooley.

REVERSED IN PART; REMANDED IN PART; AFFIRMED IN PART. MOTION TO STRIKE DENIED.

      . As child support is not at issue in the present matter, we will not discuss in detail the procedural history between the parties concerning child support.

      . The trial court issued separate written reasons for judgment, however, both matters were included in the written judgment,

      . In that judgment, the trial court also found Laura in contempt of court for “failure to comply with the Orders of the Court not to discuss the custody matter with the minor children" and "for talking about Mia Dooley to the minor children concerning the evil of Mia Dooley in not agreeing to the week and week visitation schedule and other violation of God’s desires by Mia Dooley in not allowing Laura Dooley and Donald Dooley what they desire with reference to the minor children.” The trial court ordered that Laura spend forty-five days in jail for this contempt, with thirty days of the sentence suspended on the condition that she have no further contact with the children from the date of judgment.
      Immediately after the judgment was executed, Laura filed with this court a “Motion to Stay Execution of Sentence with Request for Expedited Consideration, Order, and Original Brief Seeking Emergency Appeal and/or Supervisory Writ to Stay Execution of Criminal Sentence to Begin Monday, August 10, 2009.” A panel of this court granted Laura's writ, vacating her conviction for criminal contempt and reversing the forty-five day sentence. Mia Angelinn Cutrera v. Donald Jude Dooley (In Re: Contempt of Laura Dooley), an unpublished writ bearing the docket number 09-948 (La.App. 3 Cir. 11/4/09).


author: PAINTER, Judge.

text:
    Rebecca REED v. LCS CORRECTIONS SERVICES, LLC.
    No. 10-866.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 2, 2011.
    H. Douglas Hunter, Attorney at Law, Opelousas, LA, for Plaintifi/Appellant, Rebecca Reed.
    Jeffrey Warrens, Attorney at Law, Baton Rouge, LA, for Defendant/Appellee, LCS Corrections Services, LLC.
    Court composed of OSWALD A. DECUIR, MARC T. AMY, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

|,The Workers’ Compensation Judge (WCJ) found that the decedent, Solomon Reed, did not fall within the manual labor exception to the independent contractor rule found in La.R.S. 23:1021(7). Thus, Plaintiff, Rebecca Reed, appeals the judgment of the WCJ granting the motion for summary judgment filed by Defendant, LCS Corrections Services, LLC (LCS), on this issue and denying her cross motion on the same issue. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Solomon Reed was an airplane pilot. LCS provides consulting services to privately run correctional facilities in Louisiana and other states. LCS leases a corporate plane to transport its executives. Mr. Reed was often the pilot of the plane leased by LCS. Mr. Reed billed LCS a flat hourly rate for his services as a pilot. He was paid by LCS and issued a 1099 at the end of the year. Mr. Reed had other clients to whom he provided his services a pilot. Mr. Reed was also employed by Our Lady of Lourdes as a respiratory therapist.

Mr. Reed perished in a plane crash occurring on March 10, 2008, while piloting the plane that was transporting Pat Le-Blanc, then the president of LCS, and Michael LeBlanc, the CEO and Director of Marketing of LCS, for business purposes. Michael LeBlanc was not involved in the plane crash, as he was taken to Baton Rouge, Louisiana, from Jackson, Mississippi, and the crash occurred on the trip from Baton Rouge to Lafayette. The plane was owned by Mark Hampton.

Mr. Reed’s widow filed a workers’ compensation death benefit claim against LCS. All parties agree that Mr. Reed was an independent contractor. Mrs. Reed submitted a statement of uncontested facts wherein she stated that Mr. Reed was an independent contractor working as a commercial pilot. Thus, LCS asserts that Mrs. Reed is prevented from seeking benefits under the Louisiana Workers’ Compensation Act. Mrs. Reed, on the other hand, contends that the manual labor exception to the independent contractor rule applies. Both parties filed motions for summary judgment on the issue of whether the manual labor exception applied. The WCJ |2found that Mr. Reed’s work tasks did not constitute manual labor, granted LCS’ motion for summary judgment, denied Mrs. Reed’s motion for summary judgment, and dismissed her claim with prejudice. Mrs. Reed now appeals.

DISCUSSION

We review this matter de novo. Supreme Serv. and Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827 (La.5/22/07), 958 So.2d 634.

The term “independent contractor” is defined by La.R.S. 23:1021(7) (emphasis added) as:

[A]ny person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.

Mrs. Reed herself presents the only issue for review as “[wjhether a substantial part of Mr. Reed’s work time as a pilot for LCS was spent in manual labor carrying out the terms of his contract with LCS such that he was covered by the Act.” She would have us analogize her husband’s situation to that of the driver of a vehicle who is “physically required to regulate the direction, speed and control of the car by physical means.” See Timberlake v. Avis Rent A Car System, Inc., 361 So.2d 934, 935 (La.App. 4 Cir.1978). In Timberlake, the Fourth Circuit found that driving an automobile was manual labor such that the injured party, a person who contracted with Avis to drive a car from one location to another, was covered by the Act. Mrs. Reed also argues that Spells v. Extreme Nissan, 03-2179 (La.App. 4 Cir. 9/1/04), 884 So.2d 609, writs denied, 04-2660 and 04-2718 (La.1/7/05), 891 So.2d 682, 683, which deals with a person who died while driving a vehicle for an auto dealership, stands for the proposition that driving a vehicle constitutes manual labor. Mrs. Reed argues that all of the physically engaging aspects of driving a vehicle are present 13when piloting a plane, that planes have many more physically engaging aspects, and that pilots are also physically engaged before the engine is ever turned on in that they must perform a pre-flight inspection of the plane.

LCS, on the other hand, argues that the manual labor exception does not apply because Mr. Reed did not spend a substantial part of his work time performing manual labor. LCS alleges that Mr. Reed had no responsibility for the unloading or loading of any passengers or luggage and that he did not fuel or maintain the plane in any manner. According to LCS, Mr. Reed’s only obligation was the operation of the plane. Most importantly, LCS points out that the Timberlake and Spells decisions have been legislatively overruled by the 2004 amendment (which became effective June 10, 2004) to La.R.S. 23:1021(7) which added the language stating that the operation of a truck tractor or truck tractor trailer is not manual labor.

We agree that the cases cited by Mrs. Reed have been abrogated by statute. Furthermore, this court has not recognized that the physical act of driving in and of itself constitutes manual labor. For example, in Whitlow v. The Shreveport Times, 02-1215, pp. 6-7 (La.App. 3 Cir. 4/23/03), 843 So.2d 665, 670, writ denied, 03-1406 (La.9/19/03), 853 So.2d 647, this court stated:

Manual labor in this context “denote[s] work in which the physical element predominates over the mental,” a definition articulated in Welch v. Newport Industries, 86 So.2d 704, 707 (La.App. 1 Cir. 1956), and adopted by Riles v. Truitt Jones Construction, 94-1224 (La.1/17/95), 648 So.2d 1296. As the WCJ pointed out in reasons for judgment, Ms. Whitlow admitted that she did a significant amount of driving to deliver the newspapers to her customers. However, we must rely on our finding in Guillory v. Overland Express Co., 01-419, p. 6 (La.App. 3 Cir. 10/3/01); 796 So.2d 887, 891, wherein we found the following:
To fall within the manual labor exception, however, as provided for in La. R.S. 23:1021(6), the plaintiff must show not only that he engaged in manual labor, but that a “substantial part” of his work time was spent in manual labor. We do not find the physical act of actually driving the truck in itself is “manual labor” as defined by law. We must, therefore, look to the other tasks the plaintiff performed in accomplishing his job.

We, like Mrs. Reed, have found no cases involving a pilot. While we might agree with Mrs. Reed that a pilot’s services are analogous to that of a truck driver or |4the driver of a motor vehicle, we are statutorily precluded from reaching the conclusion that driving a vehicle constitutes manual labor as asserted by Mrs. Reed. As the WCJ noted, “under the facts as presented by the exhibits, there was a very minimal physical component to the job.” There is no evidence that other than conducting a pre-flight inspection, which by analogy to the truck driving situation, is statutorily excluded from the manual labor exception, Mr. Reed was required to do any manual labor in the provision of his sendees as a pilot. Therefore, we find that the WCJ’s grant of LCS’ motion for summary judgment and denial of Mrs. Reed’s cross motion for summary judgment were well founded. Based on the undisputed evidence and our interpretation of the statute, we find that the trial court did not err in granting the motion for summary judgment and in dismissing Mrs. Reed’s disputed claim for benefits. Accordingly, Mrs. Reed is not entitled to collect worker’s compensation benefits from LCS.

DECREE

For all of the foregoing reasons, we affirm both the grant of summary judgment in favor of LCS and the denial of Mrs. Reed’s motion for summary judgment. Costs of this appeal are assessed to Plaintiff/Appellant, Rebecca Reed.

AFFIRMED.