author: PAUL A. BONIN, Judge. JONES. J., DYSART, J.,

text:
    STATE of Louisiana in the Interest of D.M.
    No. 2011-CA-0462.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 2011.

      Pascale Belizaire Watson, Juvenile Regional Services, Inc., New Orleans, LA, Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, D.M.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Brad Scott, Assistant District Attorneys, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Judge CHARLES R. JONES, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   PAUL A. BONIN, Judge.

hD.M., a child, was adjudicated delinquent for a violation of La. R.S. 14:68.4, the unauthorized use of a motor vehicle, a felony-grade delinquent act. See La. Ch.C. Art. 804(5). At the disposition hearing, D.M. was ordered to confinement for not more than one year, which was suspended on condition of his satisfactorily completing a two-year probationary period. D.M. argues on appeal that the evidence is insufficient to prove beyond a reasonable doubt that he knew the vehicle was taken without its owner’s authorization, an essential element of the offense. We agree.

The juvenile-court judge was clearly wrong in adjudicating D.M. a delinquent because the evidence is insufficient to find beyond a reasonable doubt that D.M. knew that the vehicle in which he was a passenger was taken without the consent of its owner. Thus, we reverse the adjudication, dismiss the proceedings with prejudice, and discharge D.M. on this charge. We explain our decision in the following Parts.

J¿

In this Part we consider the burden of proof required for adjudication in a delinquency proceeding, particularly as it is applied to the delinquent act charged.

The United States Supreme Court held in In re Winship that “the constitutional safeguard of proof beyond a reasonable doubt is ... required during the adjudicatory stage of a delinquency proceeding”. In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The Court observed that “[i]t is true, of course, that the juvenile may be engaging in a general course of conduct inimical to his welfare that calls for judicial intervention.” Id. at 367, 90 S.Ct. 1068. “But that intervention cannot take the form of subjecting the child to the stigma of a finding that he violated a criminal law and to the possibility of institutional confinement on proof insufficient to convict him were he an adult.” Id.

The Supreme Court’s holding was grounded in its earlier decision that the Fourteenth Amendment’s Due Process Clause requires application of “the essentials of due process and fair treatment” during the adjudicatory hearing. Id. at 359, 90 S.Ct. 1068, citing In re Gault, 387 U.S. 1, 13 and 30, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Thus, D.M., and other Louisiana children, when charged with a “delinquent act” enjoy the federal constitutional protection that the state must prove the delinquent act beyond a reasonable doubt. “A ‘reasonable doubt,’ at a minimum, is one based upon reason.’ ” Jackson v. Virginia, 443 U.S. 307, 317, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). And, the Supreme Court also noted that the trier of fact must be convinced “beyond a reasonable doubt of the existence of every element of the offense.” Jackson, 443 U.S. at 316, 99 S.Ct. 2781 (emphasis added).

Moreover, D.M. enjoys state statutory protection to the same effect: “In order for the court to adjudicate a child delinquent, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition.” La. Ch.C. Art. 883.

As charged in this case, the unauthorized use of a motor vehicle “is the intentional taking or use of a motor vehicle which belongs to another, ... without the other’s consent, ... but without any intention to deprive the other of the motor vehicle permanently.” La. R.S. 14:68.4 A. Intent generally remains an indispensable element of a criminal offense. See State v. Brown, 389 So.2d 48, 50 (La.1980); see also State v. Bias, 400 So.2d 650, 653 (La.1981).

The lack of intention to deprive the owner of the vehicle permanently is the factor which distinguishes unauthorized use of a motor vehicle from theft. See State in the Interest of Batiste, 367 So.2d 784, 789 (La.1979). Thus, unauthorized use of a motor vehicle requires a taking by the culprit. Id. In order to adjudicate him delinquent, the evidence then must tend to prove that D.M. took the motor vehicle without its owner’s authorization. Id.

|4If the state cannot establish the taking by D.M., then it must establish that he knew that the vehicle was taken without its owner’s authorization. See State in the Interest of O.B., 559 So.2d 31, 33 (La.App. 4th Cir.1990) (“O.B. testified that he had no idea the ear was stolen when he accepted the ride.”); State in the Interest of H.N., L.C., T.B., 97-0982 (La.App. 4 Cir. 7/8/98), 717 So.2d 666, 668 (“He said that he did not know the car was stolen.”); State v. Stevenson, 02-1152, p. 5 (La.App. 4 Cir. 1/22/03), 839 So.2d 203, 206 (“Accordingly, the evidence failed to establish that the defendant took or used the vehicle with the knowledge that it was stolen.”)

If the prosecution cannot produce evidence that D.M. knew that the vehicle was taken without its owner’s authorization, the mere inference of wrongful conduct by his presence in the vehicle does not, beyond a reasonable doubt, create the necessary mens rea or criminal intent for him to be adjudicated delinquent under the statute with which he is charged. See State in the Interest of C.B., 09-1114, p. 8 (La.App. 4 Cir. 12/16/09), 28 So.3d 525, 529.

Of course, knowledge that the vehicle was taken without its owner’s authorization may be proven by circumstantial evidence. See State in the Interest of T.C., 09-1669, p. 5 (La.App. 4 Cir. 2/16/11), 60 So.3d 1260, 1263. See also La. R.S. 15:438 (“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”)

_|¿I

In this Part we address the evidence upon which the juvenile-court judge adjudicated D.M. delinquent.

At the outset we observe that there is no factual dispute that the motor vehicle, or van, in which D.M. was a passenger had been taken without its owner’s authorization. The owner testified unchallenged.

Within hours of the owner’s having reported her van stolen, a police officer observed the vehicle being driven with four people inside. Because he was in an unmarked police car at the time, the officer called for the assistance of other police units. He briefly followed the van until the other police units arrived to the scene. When the marked cars activated their lights and sirens, the driver of the van sped away, beginning a police chase. The van stopped on the levee, and all four occupants fled into the nearby woods. The two passengers on the passenger-side exited on that side and ran to the right. The driver and D.M., who had been seated behind the driver, ran to the left. When the four passengers fled, the van was left in reverse, so it backed down the levee into the police units. The responding officer entered the van and put it in park before pursuing the four suspects. Within minutes the police, with the aid of a canine, captured D.M. and the driver nearby.

The driver of the van was eighteen years old and, thus, old enough to have an operator’s license. There was no damage to the windows of the van and no broken glass in the van.

| (¡The only damage to the car indicative of its having been stolen is at the base of the steering column, where the protective covering had been removed and placed on top of the steering column. Because of the darkness, the officer stated that “it was really hard to get a good look at it.” But on inspection he was able to see that the ignition device had been defeated so that a key would have been unnecessary to start the van.

Because there is no other evidence indicating that the car was stolen, in order for D.M. to be guilty of knowingly having used a stolen vehicle, he must have seen either the damage to the steering column or the lack of a key in the ignition. The evidence established that the steering-column damage was visible from anywhere in the front seat. In evidence is a photograph of the damage taken by the van’s owner from outside the van near the front passenger seat. Also, the officer had climbed into the backseat and noted that from the passenger-side he could see the steering-column damage from an angle. But he did not sit in the backseat where D.M. was sitting or make a determination about whether the damage was visible to a person seated behind the driver as D.M. was.

Tellingly, when D.M.’s counsel asked the van owner how long she had owned the vehicle, laying the foundation for questions concerning whether a passenger seated behind the driver could see the steering column, the prosecutor objected on the grounds that that line of questioning called for too much speculation: “you also have to distinguish how close you are to the door, how close you are to the middle. I just think it would call for too much speculation.” The |7trial judge overruled the objection, but permitted the owner to testify only as to what she has personally observed from her sitting in the back seat of the van. The owner of the vehicle had never been seated in the back seat behind the driver, so she, too, was unable to establish whether anyone could see the damage to the steering column from D.M.’s vantage point. Thus, there is no direct or circumstantial evidence that from D.M.’s position in the van he could have observed the only damage to the vehicle or that he could have observed whether the van was being operated without a key in the ignition.

Because D.M.’s mere presence in the van is insufficient to prove knowledge of the theft of the van, the state relies on the circumstantial evidence of D.M.’s flight in an attempt to show that D.M. had knowledge that the van was stolen. Flight from a police officer, the state argues, “indicates consciousness of guilt and, therefore, is one of the circumstances from which the jury may infer guilt.” State v. Davies, 350 So.2d 586, 588 (La.1977).

Ill

In this Part we address the standard by which we review the juvenile-court judge’s adjudication of D.M. and apply it to the findings of the juvenile court.

A

While delinquency proceedings may in many ways implicate criminal proceedings, sometimes even mimicking them, they are nonetheless civil in nature. In re C.B., 97-2783 (La.3/4/98), 708 So.2d 391, 400 (“The hallmark of special juvenile procedures is their non-criminal nature.”). Because delinquency proceedings are not criminal proceedings, the scope of review in Louisiana extends Rto both law and facts. “Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.” La. Const. Art. V, § 10(B). “In criminal cases its appellate jurisdiction extends only to questions of law,” Id. Because “the constitution does not provide otherwise, the scope of review of this Court in juvenile delinquency proceedings extends to both the law and the facts.” State in the Interest of Batiste, 367 So.2d at 788. Batiste then applied the well-known manifest error standard of review utilized in civil proceedings to adjudication-of-delinquency proceedings. Id. at 789 (“From this evidence we conclude that the juvenile court was clearly in error in finding beyond a reasonable doubt that Batiste committed unauthorized use of the bicycle.”)

Thus, “we apply the ‘clearly wrong’ standard of review to determine whether there is sufficient evidence to satisfy the standard of proof beyond a reasonable doubt.” State in the Interest of D.R., 10-0405, p. 9 (La.App. 4 Cir. 10/13/10), 50 So.3d 927, 932. The clearly wrong standard of review is broader than the constitutional minimum standard of review of Jackson v. Virginia, which must be satisfied in order for either an adult conviction or a juvenile adjudication to satisfy the Due Process requirement of the Fourteenth Amendment. Id. p. 14, at 935-36. See also State in the Interest of Cason, No. 15612 (La.App. 2nd Cir.1983), 438 So.2d 1130, 1131. On the one hand, “a juvenile adjudicated a delinquent would be entitled to a Jackson v. Virginia review but for Louisiana’s provision that a less deferential, or a broader, standard is available to the juvenile.” State in the Interest of D.R., 10-0405 p. 13, 50 So.3d at 934. On the other hand, “a child adjudicated a delinquent in Louisiana is entitled to a broader scope and ^standard of review than the minimum required by the Due Process clause.” Id. 10-0405 p. 14, 50 So.3d at 935.

The Jackson v. Virginia standard requires the bare review of facts slanted or tilted in favor of one of the parties, the prosecution. All facts which may have been theoretically proved by the prosecution are accepted; the review is not limited to those facts which the fact-finder actually found, perhaps discarding or disregarding some but not all prosecutorial “facts” or prosecutorial inferences. Moreover, while Jackson v. Virginia requires only that any rational trier of fact be convinced beyond a reasonable doubt, the Batiste standard looks to this particular trier of fact and whether his or her decision that there was proof beyond a reasonable doubt is not clearly wrong and is reasonable. Although the Batiste standard of review is somewhat broader than the Jackson v. Virginia minimum standard, the Batiste standard remains highly deferential to the function and findings of the trier of fact, the juvenile judge.

B

We apply the general principles of a manifest error/clearly wrong standard of review according to the principles announced in Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989). See State in the Interest of D.R., supra. Just as in a Jackson v. Virginia review, we review the entire record. Our review function is not complete “by reading only so much of the record as will reveal a reasonable factual basis for the finding in the trial court.” Rosell, supra at 844.

In our record review, we must defer to factual findings which are based on or dependent upon the juvenile-court judge’s “determinations regarding the credibility of witnesses” because “only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s | inunderstanding and belief in what is said.” Rosell v. ESCO, 549 So.2d at 844. But a fact-finder’s determination to credit a witness’s story, however, is not entitled to deference “[wjhere documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story.” Id. at 844-845. If we find such, we as a “court of appeal may well find manifest error or clear wrongness.” Id. at 845. Here, because the basic historical facts are undisputed, there are no credibility-dependent determinations by the juvenile-court judge.

We also, however, may not disturb “reasonable inferences of fact” “even though we may feel that our own evaluations and inferences are as reasonable.” Id. at 844, citing to Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Canter v. Koehring, 283 So.2d 716, 724 (La.1973). We are mindful that “[i]n applying the manifestly erroneous-clearly wrong standard to the findings below, appellate courts must constantly have in mind that their initial review function is not to decide factual issues de novo.” Rosell, supra at 844. Here, because the juvenile-court judge did not make any specific factual findings on the record, we assume that the fact-finder inferred that, in the absence of any other evidence that D.M. knew the van was stolen, his fleeing from the officers sufficed to prove his guilty knowledge. We thus consider whether that is a reasonable inference of fact sufficient to prove his guilty knowledge beyond a reasonable doubt. We find that it does not.

D.M.’s flight coupled with his presence in a stolen car most assuredly may give rise to the probable cause necessary for his arrest, but it does not satisfy the high burden of proof necessary to establish the element of knowledge beyond a reasonable doubt. While flight may create an inference of guilt, “flight from police |nofficers alone cannot be sufficient to prove guilt, given that flight alone is insufficient to justify an investigatory stop based on reasonable suspicion.” State v. Dunbar, 06-1030 p. 9 (La.App. 4 Cir. 1/10/07), 950 So.2d 872, 877 (reversed on other grounds); see also State v. Morgan, 09-2852 p. 8 (La.3/15/11), 59 So.3d 403, 408 (“Although flight ... is, by itself, insufficient to justify an investigatory stop, we have held that this type of conduct may be highly suspicious and, therefore, may be one of the factors leading to a finding of reasonable cause.”).

While fleeing from police surely establishes that D.M. “may be engaging in a general course of conduct inimical to his welfare that calls for judicial intervention,” In re Winship, 397 U.S. at 367, 90 S.Ct. 1068, it is not proof beyond a reasonable doubt so as to trigger the sanction of a delinquency-adjudication.

C

Just as was done in Batiste, having applied this civil standard of review of facts and law, we determine that the juvenile-court judge was clearly wrong in inferring from D.M.’s flight from the police that he knew beyond a reasonable doubt that the van was stolen. We conclude that the evidence is insufficient to prove every element beyond a reasonable doubt that D.M. knew the van was stolen and that he committed the delinquent act.

DECREE

We reverse the adjudication of D.M. as a delinquent child for a violation of La. R.S. 14:68.4, the unauthorized use of a motor vehicle. We dismiss the proceedings with prejudice, and discharge D.M. on this charge.

REVERSED AND RENDERED

JONES, J., concurs with reasons.

DYSART, J., dissents with reasons.

JONES. J.,

concurs with reasons.

h The record before this Court demonstrates that there is insufficient evidence to adjudicate the juvenile as delinquent with unauthorized use of a motor vehicle. For these reasons, I respectfully concur.

DYSART, J.,

dissents, with reasons.

[ j Because I find that the State offered sufficient evidence to prove the defendant’s guilt beyond a reasonable doubt, I respectfully dissent.

Officer Terrell testified on direct that one could see that the steering column had been compromised and that there was no key in the ignition “from all vantage points.” On cross examination, the officer was asked if he sat on the passenger seat behind the front seat passenger. He responded, “No. I entered through the rear passenger seat, to retrieve the rifle. At that time I could see — you can get an angle from the back of the seat, that the steering column was defeated.” To clarify, the defense attorney asked, “And what side of the rear passenger [sic] did you enter from?” Officer Terrell responded, “The driver’s side.”

This testimonial evidence is sufficient to prove that the defendant could indeed see from his seat in the van that the steering column had been defeated, and therefore, knew that the car was stolen. Applying the manifest error/clearly wrong standard enunciated in the majority’s opinion, I find there is sufficient evidence to affirm the adjudication of the trial court.

      . D.M. was also adjudicated a delinquent for resisting an officer, a violation of La. R.S. 14:108, a misdemeanor-grade delinquent act. See La. Ch.C. Art. 804(8). He is not appealing that adjudication, which is now final.

      . La. Ch.C. art. 804(3) defines the term:
      "Delinquent act” means an act committed by a child of ten years of age or older which if committed by an adult is designated an offense under the statutes or ordinances of this state, or of another state if the offense occurred there, or under federal law, except traffic violations. It includes an act constituting an offense under R.S. 14:95.8, an act constituting an offense under R.S. 14:81.1.1(A)(2), and a direct contempt of court committed by a child.

      . See, e.g., La. R.S. 14:67 A (emphasis added): "Theft is the misappropriation or taking of anything of value which belongs to another, either without the consent of the other to the misappropriation or taking.... An intent to deprive the other permanently of whatever may be the subject of the misappropriation or taking is essential.”


source: Caselaw Access Project

author: CHARLES R. JONES, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Robert HART, Jr.
    No. 2010-KA-1614.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 2, 2011.

      Leon A. Cannizzaro, Jr., District Attorney, Matthew C. Kirkham, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    Edward R. Greenlee, Louisiana Appellate Project, LaPlace, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge ROLAND L. BELSOME, and Judge DANIEL L. DYSART).
   CHARLES R. JONES, Judge.

| )The Appellant, Robert Hart, Jr., appeals his conviction and sentence for home invasion. Finding that the district court erred in part, we remand this matter for imposition of the mandatory fine as required by La. R.S. 14:62.8. We affirm the conviction of Hart, but we vacate the multiple bill adjudication and sentence, and we remand for Hart, to be sentenced as a first offender. We deny the motion to supplement by the State.

The State filed a bill of information charging Hart with home invasion, to which he entered a not guilty plea. The district court subsequently found probable cause. Following a jury trial, Hart was found guilty as charged. The defense filed motions for post-verdict judgment of acquittal and for a new trial that were denied by the district court.

Subsequently, we denied the pro se writ application of Hart seeking a ruling on his motions for new trial and for post-verdict judgment of acquittal. He was later adjudicated a fourth felony offender. The district court imposed a twenty-year sentence at hard labor without benefit of parole on his conviction for home invasion before the Court then sentenced him as a fourth felony offender to serve life imprisonment at hard labor without benefit of parole. |2 Hart’s motion to reconsider sentence was denied, and his motion for appeal was granted. Hart’s pro se motion to quash the multiple bill of information was denied. This timely appeal followed.

Ronald Forbes testified that he owns the home in Orleans Parish where the invasion was alleged to have occurred. The home was gutted at the time of the incident from the damage it sustained during Hurricane Katrina. Despite being gutted, Mr. Forbes testified that he was living there because the home had running water and electricity. The victim, Shannon Doucet, was staying with him.

Mr. Forbes testified that at approximately 9:00 a.m., Hart came to the home asking to talk to Ms. Doucet. Mr. Forbes testified that he told Hart that she was not there even though she was asleep in Mr. Forbes’ bedroom. Mr. Forbes testified that later that day he left the house for a half-hour, and he locked the front door when he left. He testified that when he returned, Hart was in the home and was coming from his (Forbes’) bedroom. He further testified that Hart passed him on his way out the door and Ms. Doucet came out of the bedroom crying. Mr. Forbes testified that he noticed that cereal had been thrown on the floor; that the window unit had been pushed into the house, and that a board had also been removed from the window. Mr. Forbes testified that he chased after Hart, but he was unable to catch him. Lastly, Mr. Forbes testified that he did not give Hart permission to be in his home. He also identified Hart in court.

Portions of the 911 call made by Ms. Doucet were played for the jury. The tape was first authenticated by a New Orleans Police Department Officer who was the custodian of the 911 tape.

| «Officer Brittany Marigny and her partner responded to the dispatch of a simple battery at the home of Mr. Forbes. She testified that once there, she met with Ms. Doucet, who had a contusion on the left side of her forehead that was bruised and swollen. Off. Marigny identified photographs of the victim’s injuries, which were published to the jury. The Officer testified that she saw the inside of the residence from the front door and that she determined that the point of entry was a side window that was once boarded. She further testified that a board was on the ground near the window, and the window was open.

Portions of a phone call that Hart received in prison were played for the jury. The parties stipulated that it was Hart’s voice on the tape recording of the phone call.

A review for patent errors reveals that the bill of information is missing from the record. In State v. Mitchell, 553 So.2d 915 (La.App. 4 Cir.1989), we found that a record lacking a bill of information was harmless error, where, as in the instant case, the defendant made no complaint that he was unable to properly defend himself, and the docket master indicated that the bill of information had been filed.

In this case, although the bill of information is not included in the record, the minute entry of arraignment shows that Hart waived a formal reading of the bill of information. Additionally, the trial transcript reveals that at the beginning of trial, the trial judge read the bill of information to the jury in Hart’s presence. There is no indication that defendant was unaware of the charges against him, and he has not alleged any prejudice. Therefore, the error is deemed harmless.

RThe record also reflects an error patent as to Hart’s sentence. Louisiana R.S. 14:62.8 requires imposition of a fine of not more than $5000. This court has determined that the failure to impose a mandatory fine requires that the matter be remanded for the imposition of that fine. State v. Williams, 2003-0302, pp. 3-4 (La.App. 4 Cir. 10/6/03), 859 So.2d 751, 753. Therefore, we remand this matter for the imposition of the mandatory fine.

No other errors patent were found.

By his first assignment of error, Hart argues that his right to confront the witnesses against him was violated when the district court permitted the 911 call made by Ms. Doucet to be played to the jury when Ms. Doucet did not testify at trial.

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution bars “admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 1365, 158 L.Ed.2d 177 (2004). In Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 2273, 165 L.Ed.2d 224 (2006), the U.S. Supreme Court declared that “[s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation Lis to enable police assistance to meet an ongoing emergency.” Conversely, statements are “testimonial when the circumstances objectively indicate there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecutions.” Id., 547 U.S at 822, 126 S.Ct. at 2273-4.

The Court in Davis acknowledged that “a conversation which begins ... to determine the need for emergency assistance ... [can] evolve into testimonial statements, ...” Id., 547 U.S at 828, 126 S.Ct. at 2278. In Davis, the Court used this test to hold that statements made to a 911 operator were non-testimonial because they constituted a call for help during an ongoing threat by a caller, and the questions asked were for information necessary to resolve the present emergency. The victim was being beaten at the time the call was made. After Davis left the premises, which the victim told the operator he had done, the 911 operator then gathered more information from the victim. The Court reasoned that the statements made by a battered wife — who initially claimed that she was fine and nothing had happened, to an officer responding to a domestic disturbance call — were testimonial because “there was no emergency in progress.” Id., 547 U.S. at 829, 126 S.Ct. at 2278. The officer did not hear any arguments or things breaking, and there was no immediate threat to the victim. Id., 547 U.S. at 830, 126 S.Ct. at 2278.

Even assuming that the portions of the 911 recording played to the jury in the instant case were inadmissible, confrontation errors, including Crawford violations, are subject to a Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), harmless error analysis. The proper standard of review is as follows:

| (¡The correct inquiry is whether the reviewing court, assuming that the damaging potential of the cross-examination were fully realized, is nonetheless convinced that the error was harmless beyond a reasonable doubt.... Factors to be considered by the reviewing court include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.”

State v. Wille, 559 So.2d 1321, 1332 (La.1990).

Though Hart urges that the error was not harmless because he was convicted based solely upon the inadmissible hearsay contained in the 911 call, the State produced other evidence inculpating Hart.

The evidence presented at trial established that Hart broke into Mr. Forbes’ home through a side window, pushing the window unit inside the home. He was inside the house without permission. Mr. Forbes observed Hart exit the bedroom followed by Ms. Doucet, who was crying. Officer Marigny met with Ms. Doucet and observed a contusion to Ms. Doucet’s forehead, and photographs of the injury were published to the jury. Also, Hart apparently confessed to hitting Ms. Doucet in the phone call he received in prison. Thus, it appears the error, if any, was harmless, as the playing of the redacted portion of the 911 recording did not contribute to the guilty verdict.

To convict Hart of home invasion pursuant to La. R.S.14:62.8, the State had to show that he entered a dwelling owned by another without permission, that the dwelling was used in whole or in part as a home, that a person was present when he made the unauthorized entry, and that he had the intent to use force or violence upon the person or to vandalize, deface or damage the property. Here, the 17admission of the 911 tape, even if erroneous, did not contribute to the verdict. This assignment of error is without merit.

Furthermore, we note that Hart has opposed the State’s motion seeking to supplement the record on appeal with a copy of the 911 recording that it located in its own file, arguing as to its authenticity. Also, the trial transcript reflects that only a redacted portion of the recording was allowed into evidence. In its brief, the State refers to what it represents is the redacted portion of the recording that was played for the jury; however, because the veracity of the State’s representation has not been shown, we deny the motion to supplement the record.

In his second assignment of error, Hart asserts that the evidence is insufficient to prove beyond a reasonable doubt that he was the person convicted of armed robbery in 1983 as alleged in the multiple bill.

To prove that a defendant is a multiple offender, the State must establish by competent evidence that there is a prior felony and that the defendant is the same person who was convicted of the prior felony. State v. Chaney, 423 So.2d 1092, 1103 (La.1982). Where the prior conviction resulted from a plea of guilty, the State must show that the defendant was advised of his constitutional rights and that | she knowingly waived those rights prior to his plea of guilty, as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).

Hart specifically urges that there were no fingerprints on the bill of information or arrest register from his 1983 conviction for armed robbery. Instead, the State used the multiple bill of information and arrest register from S-3, his 1996 convictions, as evidence of his identity as the person previously convicted in 1983 of armed robbery. Counsel argued that the proof was insufficient to prove Hart’s identity as the same person previously convicted in 1983, thereby preserving the issue for review.

In the multiple bill of information filed against Hart, the State averred that in addition to having been convicted of home invasion on April 29, 2010, he had three prior convictions. The predicate convictions listed in the multiple bill were a 1983 guilty plea to armed robbery (case # 295-415), 1996 convictions for attempted simple burglary and unauthorized entry of an inhabited dwelling (case # 383-513), and a 2005 guilty plea to simple burglary (case # 454-439).

Again, it should be noted that the supporting documentation concerning Hart’s prior conviction for armed robbery is not included in the appeal record, nor was it found in the property room of the criminal district court. Despite this, the State argues that the evidence is sufficient, noting that the multiple bill filed in case number 383-513, S-3, listed Hart’s 1983 conviction for armed robbery. The fingerprints from the multiple bill of information were then compared by the expert to the fingerprints on the bill of information from the case herein, and to the fingerprint card of Hart’s prints taken by the expert, who found all of the fingerprints to have come from the same person.

| nVarious methods are available to prove that the defendant is the same person convicted of the prior felony offense, including testimony from witnesses, expert opinion regarding the fingerprints of the defendant when compared with those in the prior record, or photographs in the duly authenticated record. State v. Henry, 96-1280, p. 7 (La.App. 4 Cir. 3/11/98), 709 So.2d 322, 326. However, here, the exhibits to which the State refers are not part of the record, and defense counsel adamantly opposed the State’s proof of Hart’s identity as the person previously convicted of armed robbery in 1983.

In State v. Santee, 2002-0693 (La.App. 4 Cir. 12/4/02), 834 So.2d 533, we held that the defendant was denied a meaningful appeal from his multiple offender adjudication because the exhibits introduced at the hearing were unavailable. The record before the court in Santee showed that defense counsel “focused on the fact that one of the arrest registers was missing, and part of the identification could not be matched by fingerprints ...” Santee, p. 5, 834 So.2d at 536. Without the exhibits, this court could not review the specific issue preserved for review and assigned as error; therefore, the court vacated the multiple offender adjudication and sentence and remanded for a new hearing. Santee, p. 6, 834 So.2d at 536.

As in Santee, the certified copies of the prior convictions are not available in the matter sub judice, and counsel herein focused on the insufficiency of the State’s proof of Hart’s identity as to the 1983 conviction. Thus, finding that this assignment of error has merit, we vacate the adjudication and sentence of Hart under the multiple offender statute. See also State v. McGhee, 96-1656 (La.App. 4 Cir. 3/24/99), 739 So.2d 222, where this court vacated the defendant’s multiple offender adjudication and sentence because the exhibits were not available for review.

ImLastly, Hart asserts that the district court failed to inform him of the time limitations to file for post-conviction relief. Though the minute entry of sentencing reflects that he was provided with this information, the transcript does not reflect that he was informed of the limitations.

In State ex rel. Glover v. State, 93-2330 (La.9/5/95), 660 So.2d 1189, the Louisiana Supreme Court held that La.C.Cr.P. art. 930.8(C), which requires the district court to inform the defendant of the limitation period for filing an application for post-conviction relief, is supplicatory language which does not bestow an enforceable right on an individual defendant. As decided in State v. McDonald, 2002-2347 (La.App. 4 Cir. 2/19/03), 841 So.2d 38, this court favors notifying a defendant of his rights under La.C.Cr.P. art. 930.8, when the district court failed to do so, by advising the defendant of such right in its written appellate opinion. Therefore, in the interest of judicial economy, we hereby advise Hart that La.C.Cr.P. art. 930.8 generally requires that applications for post-conviction relief be filed within two years of the finality of a conviction.

DECREE

For the foregoing reasons, the conviction of Robert Hart, Jr., is affirmed. However, this matter is remanded for imposition of the mandatory fine required by La. R.S. 14:62.8. Additionally, the multiple bill adjudication and sentence is vacated, and we remand for Hart to be sentenced as a first offender. Lastly, the motion to supplement the record of the State is denied.

AFFIRMED IN PART; VACATED IN PART AND REMANDED IN PART; MOTION TO SUPPLEMENT RECORD DENIED

      . 2010-K-0823.

      . The tape is not part of the record before this court. However, the State indicated during its closing argument without objection that Hart admitted that he "went in the house and slapped the [expletive] out of her, and I went up there and I [expletive] her up a little bit.”

      . La. R.S. 14:62.8 provides:
      A. Home invasion is the unauthorized entering of any inhabited dwelling, or other structure belonging to another and used in whole or in part as a home or place of abode by a person, where a person is present, with the intent to use force or violence upon the person of another or to vandalize, deface, or damage the property of another.
      B. (1) Except as provided in Paragraph (2) of this Subsection, whoever commits the crime of home invasion shall be fined not more than five thousand dollars and shall be imprisoned at hard labor for not less than five nor more than twenty years; at least five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.
      (2) Whoever commits the crime of home invasion when, at the time of the unauthorized entering, there is present in the dwelling or structure any person who is under the age of twelve years, is sixty-five years of age or older, or who has a developmental disability as defined in R.S. 28:451.2, shall be fined not more than ten thousand dollars and shall be imprisoned at hard labor for not less than ten nor more than twenty-five years. At least ten years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

      . In its brief, the State represents that only the following portions of the 911 recording were played to the jury:
      CALLER: I need a[sic] officer at 1240 Tennessee Street. My ex-old man just broke into my friend's house and beat my — beat me up.
      OPERATOR: Okay. What's the address?
      CALLER: 1240 Tennessee Street. I need 'em like now cuz [sic] he’s runnin’ up the street.
      OPERATOR: OKAY. Wh — this your boyfriend?
      CALLER: My ex-boyfriend. We’ve been broke [sic] up for the past three weeks and somebody told him I was down here, so he just jumped through the window. You can see everything all over the floor, (unintelligible)
      OPERATOR: Is he black, white, or—
      CALLER: He’s black.
      OPERATOR: What’s his name?
      CALLER: Robert Hart, Junior.


author: GREMILLION, Judge.

text:
    Ferris BONNET v. LAFAYETTE PARISH SHERIFF’S OFFICE, et al.
    No. 11-676.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 9, 2011.

      Katherine A. Theunissen, Mahtook & Lafleur, Lafayette, LA, for Defendants/Appellees, Lafayette Parish Sheriffs Office, Michael J. Neustrom, Lafayette Parish Sheriff.
    Joslyn Renee Alex, Attorney at Law, Breaux Bridge, LA, for Plaintiff/Appellant, Ferris Bonnet.
    Court composed of OSWALD A. DECUIR, ELIZABETH A. PICKETT, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

LThe children of the original plaintiff in this case, Ferris Bonnet, appeal the judgment in favor of the defendants, the Lafayette Parish Sheriffs Department and Michael J. Neustrom, in his capacity as Sheriff (collectively LPSD), finding them not liable for Bonnet’s injuries during his incarceration. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Bonnet was arrested on May 31, 2006 and taken to the Lafayette Parish jail. On June 1, 2006, Bonnet indicated to the staff that he was suicidal, and he was placed in an isolation cell that receives constant monitoring. He was experiencing alcohol withdrawal and was given a number of medications to assist with the symptoms. On June 3, 2006, Bonnet was still receiving medication for withdrawal symptoms. LPSD staff noted that he fell several times and was eventually placed on his bunk by deputies. He fell again and alleges that he was not properly monitored throughout the day leading to his injuries.

At 7:30 p.m. on June 3, 2006, a nurse indicated that Bonnet needed to be taken to the hospital. There, Bonnet claims he was left and the University Medical Center (UMC) staff was not given any information about his condition. Bonnet admitted he was in no condition to convey what was wrong with him due to his alcohol withdrawal and psychosis. On June 4, 2006, UMC staff determined that Bonnet had suffered from intertrochanteric fracture of the right femur, and surgery was performed. Bonnet remained in the hospital until June 20, 2006. Upon his release he was sent to a nursing home.

Bonnet filed suit against LPSD. LPSD filed a motion for summary judgment, which was granted. A panel of this court affirmed the trial court, but the supreme court granted writs, finding that there were genuine issues of material fact ^precluding summary judgment. The case was remanded for further proceedings. Bonnet died in May 2009.

In September 2010, LPSD filed a motion to strike expert witness, arguing that plaintiffs’ counsel had twice failed to comply with the expert report deadline. Following the plaintiffs’ two-day presentation of evidence before the trial court in December 2010, LPSD moved for a directed verdict, which was granted in favor of LPSD.

The plaintiffs now appeal and assign as error:

1. The trial court’s grant of a directed verdict when the evidence presented at trial proved LPSD’s negligence.
2. The trial court erred in allowing the defense to object to evidence previously accepted into evidence.

LPSD filed a motion to supplement and amend the record which was referred to this panel on the merits and is hereby granted.

INVOLUNTARY DISMISSAL

Louisiana Code of Civil Procedure Article 1672(B) states;

lain an action tried by the court without a jury, after the plaintiff has completed presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

The court court’s vast discretion in granting a motion for involuntary dismissal is reviewed under the manifest error standard. Guidry v. City of Rayne Police Dep’t., 09-664 (La.App. 3 Cir. 12/9/09), 26 So.3d 900; Gold, Weems, Sues & Rundell v. Granger, 06-859 (La.App. 3 Cir. 12/29/06), 947 So.2d 835, writ denied, 07-421 (La.4/27/07), 955 So.2d 687. Negligence claims under Louisiana law are subject to the duty-risk analysis, which requires a breach of a duty that was the cause-in-fact of the plaintiffs injuries, resulting in damages. See Jones v. Centerpoint Energy Entex, 11-0002 (La.App. 3 Cir. 5/25/11), 66 So.3d 539. Failure to prove any element results in a finding of no liability. Id.

Plaintiffs presented the following evidence. Vergie Bonnet, Ferris’s sister, testified that she saw him at about 4:00 a.m. the morning that he was arrested. She said he could walk and was not injured, and that he did not indicate that he fell off of a bicycle the morning of the incident. She said that on June 13, she visited Bonnet in the hospital where he was restrained. She said she learned that he had a fractured hip.

William Keith Lattimore of the LPSD testified that he works in the warrants division. He arrested Ferris, locating him in the metal shed behind Vergie’s house. Lattimore testified that he did not aid Bonnet in walking to the police car, and Bonnet did not use a cane for assistance. Lattimore took Bonnet to the Lafayette Parish Correctional Center where he was booked. Lattimore said that Bonnet did not present any medical issues at the time that would require him to be brought to the medical center for clearance.

|4Rebecca Fruge testified that she was employed as a licensed practical nurse at the Lafayette Parish Correctional Center when Bonnet was booked. She said that she arrived on the scene because Bonnet reported on his Intake Screening Questionnaire that he had high blood pressure, which requires an initial assessment. Fruge said that he did not complain of injury and that she did not observe any injuries. Fruge testified that she monitored his blood pressure, which was normal, and that Bonnet reported having hepatitis C.

Raisa Martinez testified she was employed by the LPSD as a deputy and monitored Bonnet via a camera during his incarceration while he was in a holding cell in the medical department for continuous watch because he threatened to kill himself. Martinez’s log observation began June 2, 2006 at 10:26 p.m. with notations being made every ten to fifteen minutes. Her log indicates that Bonnet stood at the door, walked around the cell, laid on his bunk, slept on his bunk, or sat on his bunk until her departure at 6:00 a.m. the following morning. She described Bonnet as being “just fine.” She noted no problems with his ability to walk, stand, or sit.

Martinez next observed Bonnet on June 3, 2006 beginning at 6:11 p.m. She noted six times that he was lying on the floor. Martinez stated that it is not unusual for some inmates to lie on the floor. At 9:30 p.m. she noted:

“I/M [Inmate] fell backwards against the bunk. He is now sitting on the floor. Nurse Marla was advised, and she took a look @ inmate. Advised inmate looked worse than earlier, & she will send inmate to UMC.
At 10:06 p.m. Bonnet was taken to UMC.

Lawrence Williams testified that he was employed as a Deputy at the LPSD and conducted camera observation of Bonnet during the time that Martinez was off. He began observing Bonnet in the early morning of June 3, 2006 at 6:20 a.m. ^through 5:45 p.m. He noted Bonnet was either sleeping in his bunk, standing in the cell or moving around the cell until 5:00 p.m. when he noted that “I/M fell because of withdrawal.” Thereafter, he noted that Bonnet “fell to the floor” at 6:15, “fell hit head on toilet” at 6:25, was placed on his bunk at 6:40, remained on his bunk at 6:50, fell off of his bunk at 7:00, and remained on the floor until 7:45 when Williams’ shift ended. Williams testified that he did not call for medical assistance during his shift. He testified that he did not observe anything that would have required medical attention. Williams said he had only been on the job for a few days at the time of this incident, but that he worked under the supervision of another deputy at the time.

Marla Landry, a part-time licensed practical nurse at the correctional center, who has been a nurse for twenty-five years, testified that she started the alcohol detox of Bonnet on the morning of June 3 because Bonnet’s blood pressure was rising and Bonnet had told her that he drank a lot. She noted that his blood pressure was normal on June 1 and June 2, but on June 3, it had gone up to 148/95. She said that he was given thiamine, mag sulfate, and Valium. She testified that by the evening, having been informed that he had fallen, she decided that Bonnet needed to go to the hospital. Landry testified that not all inmates who fall are automatically taken to the hospital. She said that alcohol detoxification occurs frequently at the prison. Landry testified that nursing staff administered medicine to him at 12:00 and 4:00 p.m. on June 3. She said that nursing staff would assess how the inmate was handling the detox at the time the medicine was dispensed.

Landry then went over the “Inmate Referral Form” she completed, in which she indicated that Bonnet had a history of alcohol abuse and that Bonnet needed to be detoxed on several occasions. She noted he was on critical watch due to the suicide threat. It then states that “VS [vital signs] were ok yet he was talking inappropriately — this pm he is shaking and with more inappropriate behavior. | ñPlease eval.” Landry noted no injuries; she said that Bonnet did not complain of any injuries. Landry said that if Bonnet had a physical cut, scrape, bruise, or other physical sign of injury, it would have been noted and treated prior to sending him to UMC.

Jolene Ann Bonnet Joseph, Bonnet’s daughter, testified that she and her father were estranged. She said she visited her father while he was in the nursing home following his surgery and that he complained of hip pain following the surgery. She said that she had last seen him a year' prior to the incident in question.

Mandisha Bonnet stated that prior to his incarceration, her father had not complained of having a fractured a hip. Ferris Bonnet, who was five years old when he last saw his father, provided no useful testimony. Plaintiffs’ counsel then rested.

UMC medical records indicate that on June 3, Bonnet was “noticed to have a poor orientation with person, place, and situation.” He complained of weight loss, cough, and history of depression. His final diagnosis was “1. Status post delirium tremens with alcohol abuse” and “2. Right intertrochanteric fracture.” The doctor’s report dated June 4, 2006 states that “patient claims he has right hip pain after he fell off of his bike 3 days ago. He has not been able to walk & claimed he fell up to 10 times yesterday.” The surgeon’s notes indicate that “Mr. Bonnet is a 55-year-old male with a history of alcoholism who three days prior to admission had a fall on his bike. He was admitted for delirium tremens and orthopedics was consulted approximately three days after the injury. X-rays revealed right intertrochanteric femur fracture.”

Plaintiffs submitted the report of Dr. Michael Rorback, an orthopedic surgeon from Connecticut, who concluded that Bonnet “could not have ambulated with a com-minuted intertrochanteric fracture of the right femur. In summary, Mr. Bonnet’s comminuted, intertrochanteric right femur fracture occurred during the 17time he was incarcerated on 6/3/06.” Defendant’s expert was Dr. Kim LeBlanc, who is board certified in family and sports medicine and is the Department Chairman of Family Medicine at LSU School of Medicine. He has also been the medical director of Lafayette Parish Correctional Center since 1999. Dr. LeBlanc testified that there was no way of knowing when Bonnet fractured his hip. He said it was significant that Bonnet was noted as kneeling on the floor at 7:27 p.m. on June 3, because a person with a fractured hip would not be able to kneel. Dr. LeBlanc further testified that it would be possible for Bonnet to have had a partial fracture from falling off of his bike prior to entering jail that was not made apparent until the fracture was complete. Ultimately, though, Dr. LeBlanc testified that he could not say with any certainty when the hip fracture occurred. In ruling on the motion for involuntary dismissal, the trial court stated:

[T]he biggest problem I have is knowing when this injury occurred. I’ll tell you that it’s very confusing to me, after hearing what I’ve heard that his complaints at the hospital of the hip wasn’t until the next day, according to the medical records, in which time he x-rayed him and — the fact that the medical personnel at the jail never sought or looked at any hip problem when they did recover him off the floor, they were more concerned with his detox. And so, from the evidence I’ve seen, I haven’t seen anything to indicate that he even hurt himself by falling on the floor. I know we’re extrapolating or jumping from A to B that he got hurt by falling on the floor. And he very well may have been hurt, but he didn’t complain of it, which is — I wish he was here to clarify that for me, because you know, I know the medical personnel, she seemed quite sincere that if she would have noticed a problem, I think she would have dealt with it, and he didn’t complain of it. He didn’t complain when he got to UMC of a hip problem or they would have x-rayed him, and that didn’t take place until the next afternoon. And so, what concerns me to start with is maybe something happened at the hospital that could have caused me a problem, you know. I mean, the deputy testified he fell over the — Ms. Martinez testified that he fell over backwards is when she noticed and went in to help him. Evidently he was trying to get up, but we don’t know how badly he was hurt at that point. There’s just really no evidence. And the plaintiff bears the burden of proof. And so the first problem is to say that this injury was caused by the negligence of the jail or an intentional tort of the jail by them not caring for him properly. And I don’t know that that’s where the injury occurred. So, and the plaintiff failing to carry their burden of proof on that, the causation issues. The failure to provide Rmedical treatment, again, I think they did what they thought — they tried to treat his problem as it occurred. Now, we can back up to the point where when they saw him fall the first time, they should have called the medics, and the medics should have brought him to the hospital right away, but we don’t know that that’s where he got injured, you know. And you have to look at it— I want the family to understand that I’m looking at it — the plaintiff does carry the burden of proof, and, you know, it’s not to take away from the seriousness of the situation, but we don’t know that that’s where he got hurt. If he was here to testify, that might be different, And, you know, what concerns me is he continued to report, maybe did hurt himself on a bike and then re-hurt himself even worse when he fell the last time in the jail. But I would just be guessing or— there’s no evidence to support that, so I am going to rule in favor of the defendant and dismiss the plaintiffs claim.

Having reviewed the evidence and the trial court’s reasoning, we find no manifest error in the trial court’s grant of an involuntary dismissal in favor of LPSD. Reasonable people could find that the plaintiffs failed to prove a fundamental facet of their case, namely that LPSD’s actions or inac-tions were a cause-in-fact of Bonnet’s hip fracture. The trial court’s finding that the cause of Bonnet’s hip injury simply cannot be determined from the evidence submitted by plaintiffs is reasonable. Jail personnel, including the nurse who examined him at 7:30 p.m. on June 3, 2006, reported no injuries to Bonnet. Bonnet’s UMC intake sheet indicated that his referral to the hospital was related to his alcohol detoxification. Bonnet reported falling from a bicycle. The trial court had a reasonable basis upon which to base its grant of involuntary dismissal in favor of the defendants. Accordingly, this assignment of error is without merit.

EVIDENCE

In their second assignment of error, the plaintiffs argue LPSD did not object to the admission of an expert’s report that the trial court later allowed to be withdrawn. In fact, the record shows that the plaintiffs’ report of Dr. Sheron Steward was admitted with the understanding that Dr. Steward would be testifying the next day at trial. Dr. Steward never appeared, and the trial court declined to admit her report. The issues that Dr. Steward would be testifying to — breach of a |nduty by LPSD — were not relevant to the trial court’s finding of lack of proof of causation. Further, LPSD agreed to withdraw its expert reports rebutting that issue. Because we have found no error in the trial court’s finding that plaintiffs would be unable to prove causation, this issue is rendered moot.

CONCLUSION

The trial court’s judgment granting an involuntary dismissal in favor of the defendants-appellees, Lafayette Parish Sheriffs Department and Michael Neustrom in his capacity as Sheriff, is affirmed. LPSD’s motion to supplement and amend the record is granted. All costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED, MOTION TO SUPPLEMENT AND AMEND RECORD GRANTED.

      . See Bonnet v. Lafayette Parish Sheriff, 08-905 (La.App. 3 Cir. 2/4/09), 2 So.3d 1280, writ granted, Bonnet v. Lafayette Parish Sheriff, 09-0490 (La.4/24/09), 7 So.3d 1202.

      . In June 2009, Mandisha Bonnet, Sherece Bonnet Pinnock and Succession of Ferris Bonnet were substituted as plaintiffs. Defendants filed an Exception of No Right of Action, which was granted in January 2010 as to the Succession of Ferris Bonnet. The petition was later amended to substitute Bonnet’s other children, Jaleen Bonnet Jospeh, Quinton Berard, Kasheam Fuller, Ferris Bonnet, and Deon Keys. There were extensive procedural maneuvers at the trial level regarding these children, which are not at issue here. At trial, the children who remained as plaintiffs were Mandisha Bonnet, pro se, Quinton Ber-ard, pro se, and although it is not completely clear, it appears that Jaleen Joseph and Ferris Andrew Bonnet were represented by counsel. Berard did not return for the second of day of trial. Neither Bonnet nor Berard filed appeals, and the judgment dismissing their claims is final.

      . LPSD erroneously moved for a directed verdict, and plaintiffs continuously refer to the trial court’s judgment as a directed verdict rather than an involuntary dismissal. This matter was tried before the trial court and is subject to involuntary dismissal under La. Code Civ.P. art. 1672(B), as opposed to a directed verdict under La.Code Civ.P. art. 1810, which is available in jury trials. See Basic Home Care Servs., Inc. v. Dore, 06-1036 (La.App. 3 Cir. 12/6/06), 945 So.2d 861.

      . The appellate record incorrectly denotes that defendants' exhibits 35 and 36 were proffered when, in fact, they were admitted into evidence. This appears to be a technical error because these exhibits were admitted in evidence before the trial court. We, therefore, grant defendants’ motion to supplement and amend the record to reflect that Exhibits 35 and 36 are part of the appellate record.

      . Military time was used in the observation log which we have converted.


author: STEWART, J. CARAWAY, J., DREW, J.,

text:
    Jonathon Spencer CHUMLEY and Shawna Woods Chumley, Plaintiffs-Appellants v. David L. WHITE, Defendant-Appellee.
    Nos. 46,479-CW, 46,707-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Nov. 9, 2011.

      J. Lomax Jordan, Jr., Lafayette, LA, for Appellants.
    Stone Pigman Walther Wittmann, by Phillip A. Wittmann, John P. Farnsworth, New Orleans, LA, Cook, Yancey, King & Galloway, by Herschel E. Richard, Jr., Shreveport, LA, Appellee.
    Before STEWART, CARAWAY, PEATROSS, DREW and LOLLEY, JJ.
   STEWART, J.

|,The plaintiffs, Jonathan Spencer Chumley and Shawna Woods Chumley (the “Chumleys”), filed an appeal and an application seeking supervisory review of two lower court judgments sustaining exceptions of improper venue asserted by the defendant, David White (“White”), in response to the Chumleys’ legal malpractice action filed against him in Caddo Parish (“Caddo”). This court granted the writ, docketed the matter for decision, and consolidated it with the pending appeal. Because we find that venue is proper in Caddo under La. C.C.P. art. -74, we reverse both judgments sustaining White’s exceptions and remand for further proceedings.

FACTS

In August 2005, the Chumleys filed suit for damages in Caddo against the sellers, home inspector, and real estate agent involved in their purchase of a home in the South Highlands neighborhood in Shreveport. After attorney David Szwak, who was representing the Chumleys, withdrew from the matter, the Chumleys hired White to represent them in opposing three pending motions for summary judgment that had been filed by the defendants. The motions were heard and granted by the trial court, thereby effectively dismissing the Chumleys’ claims. Aided by new counsel, the Chumleys filed a motion for a new trial on the grounds that the summary judgments were contrary to law and evidence and that newly discovered evidence should be considered. Noting that the newly discovered evidence was known to previous counsel and not presented, the trial court denied the motion for a new trial. The Chumleys appealed to this court, which ^affirmed the trial court’s dismissal of the Chumleys’ claims in Chumley v. Magee, 44,860 (La.App.2d Cir.2/17/10), 33 So.3d 345, writ denied, 2010-1125 (La.9/17/10), 45 So.3d 1046.

Alleging that White failed to properly oppose the three motions for summary judgment, the Chumleys filed a pro se legal malpractice suit against him on November 12, 2009, in Caddo. The main allegations in the petition concerned White’s representation of the Chumleys at the November 17, 2008, summary judgment hearing. They complained that he committed various acts and omissions in open court by failing to inform the trial court about the existence of two termite reports and by informing the trial court that “all pertinent documents, depositions, and records were already in the suit record” when not all the depositions and related exhibits had been offered. They also alleged that White failed to supplement the memoranda that had been filed in opposition to summary judgment and that he made promises and assurances he did not keep, namely, that he told them that they could trust him, that he “would handle this matter,” and that he would defeat the motions for summary judgment and then seek mediation with the defendants. The Chumleys prayed for various damages resulting from the dismissal of the claims and for return of legal fees paid to White.

White responded to the Chumleys’ petition with an exception of improper venue. He asserted that Bossier Parish (“Bossier”), where he is domiciled and where his law office is located, is the place of proper venue under La. C.C.P. art. 42. In opposing the exception, the Chumleys argued that venue is governed by either La. C.C.P. art. 74, pertaining to offenses 13and quasi-offenses, or La. C.C.P. art. 76, pertaining to contracts. They asserted that under either provision, venue is proper in Caddo where White committed various acts and omissions and where they sustained damages.

A hearing on the exception was held on July 19, 2010, before Judge Ramon Lafitte. White testified that he met with the Chumleys in his office. He then obtained a continuance of the summary judgment hearing, filed a supplemental brief opposing summary judgment, and attended the hearing in Caddo. He testified that he prepared the supplemental brief and made all decisions on how to defend the Chumleys against summary judgment at his office. On cross-examination, White admitted any documents or memoranda in opposition to summary judgment would have been filed in Caddo and that he was required to appear there at the hearing on the motions. He maintained that he prepared his argument for court in his office and made no decisions while in the courtroom.

Mr. Chumley also testified. He stated that he met with White on August 14, 2008, about the redhibition suit in Caddo. He explained that three motions for summary judgment were pending when he and his wife engaged White to represent them. Chumley was present in court at the hearing on the motions for summary judgment. He stated that he spoke with another attorney that same day because he perceived that the hearing had gone badly. When counsel began to question Chumley about the allegations in the petition regarding White’s representation at the hearing, the trial court sustained an objection by White, who urged that the questioning was not relevant to venue as it addressed the merits of the malpractice claim.

|„Following arguments at the close of the hearing, Judge Lafitte determined that this court’s opinion in Clarendon National Ins. Co. v. Carter, 39,622 (La.App.2d Cir.5/11/05), 902 So.2d 1142, writ denied, 2005-1567 (La.1/27/06), 922 So.2d 544, “indicated that the proper venue is the location of the law office which is where all the decisions are made or the domicile of the defendant.” In accordance with the Clarendon opinion, the trial judge sustained White’s exception of improper venue, designated the ruling as appealable, and asked counsel for White to prepare a judgment.

Before a judgment was signed, the Chumleys filed an amended and supplemental petition on July 28, 2010, to more clearly set forth their claims of legal malpractice and breach of contract against White as well as the basis for venue in Caddo. White again filed an exception of improper venue along with an exception of no cause of action directed to the Chum-leys’ breach of contract claim.

On December 7, 2010, Judge Lafitte signed the judgment sustaining the exception of improper venue heard by him in July 2010. The Chumleys filed a devolu-tive appeal from this judgment. The second exception of improper venue filed in response to the Chumleys’ amended petition was heard by Judge Scott Crichton on January 24, 2011. White introduced into evidence the record of the hearing on the first exception. Judge Crichton found that the Chumleys’ amended petition covered the same ground as the original petition and that Judge Lafitte’s prior ruling sustaining the exception of improper venue was binding. Accordingly, Judge Crichton sustained the second exception and signed a judgment on February 8, 2011, | .^ordering the case transferred to the 26th Judicial District Court in Bossier. The Chumleys filed a writ application seeking supervisory review of Judge Crichton’s ruling on the second exception.

This court granted the Chumleys’ writ and ordered the matter docketed and consolidated with the Chumleys’ appeal. At issue is whether venue is proper in Caddo under La. C.C.P. art. 74 in a legal malpractice action against an attorney whose domicile and law practice are in Bossier yet where the malpractice claims concern acts of commission and omission that occurred in Caddo and where the plaintiffs’ damages were sustained in Cad-do.

DISCUSSION

Venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. La. C.C.P. art. 41. As stated by the supreme court, “Choice of venue is a gateway consideration that is separate from the merits of the case and addresses only the initial inquiry of where to litigate.” Land v. Vidrine, supra.

An objection of improper venue is raised by a declinatory exception. La. C.C.P. art. 925. Evidence may be introduced to support or controvert the objection when the grounds thereof do not appear from the petition. La. C.C.P. art. 930. Thus, the defendant bears the burden of offering evidence to support an exception of improper venue when the grounds for the ^objection do not appear on the face of the plaintiffs petition. Saldana v. State Farm Mutual Automobile Ins. Co., 39,094 (La.App.2d Cir.12/15/04), 889 So.2d 1130.

For purposes of the venue exception, the allegations of the plaintiffs petition are taken as true. Saldana, supra; Nitro Gaming, Inc. v. D.I. Foods, Inc., 34,301 (La.App.2d Cir.11/1/00), 779 So.2d 817. However, when evidence is offered at trial on the exception, the court is not bound to accept as true the allegations of the petition. Price v. Roy O. Martin Lumber Co., 2004-0227 (La.App. 1st Cir.4/27/05), 915 So.2d 816, writ denied, 2005-1390 (La.1/27/06), 922 So.2d 543. As such, the exception will be tried on the evidence presented. Price, supra.

Venue is a question of law that is subject to a de novo review on appeal. Nitro Gaming, supra. Of course, any factual findings made by the trial court are reviewed under the manifest error standard. Rosell v. ESCO, 549 So.2d 840 (La.1989).

Under the general rules of venue, an action against an individual who is domiciled in this state shall be brought in the parish of his domicile. La. C.C.P. art. 42(1). However, the general rules of venue are subject to the exceptions provided by La. C.C.P. arts. 71-85 and as otherwise provided by law. La. C.C.P. art. 43. The exceptions are “part and parcel” of the general venue provision and are no longer strictly construed. Nitro Gaming, 34,301, p. 3, 779 So.2d at 820, citing Cacamo v. Liberty Mutual Fire Ins. Co., 1999-3479 (La.6/30/00), 764 So.2d 41, and Jordan v. Central Louisiana Elec. Co., 95-1270 (La.06/23/95), 656 So.2d 988. The |7exceptions may be used to supplement the general venue provision, and plaintiffs may choose any venue available under the general or supplementary venue provisions “that fits the particular circumstances of their claims.” Cacamo, supra.

The Chumleys chose to file this legal malpractice suit in Caddo, which they assert is a place of proper venue under La. C.C.P. art. 74. Article 74 states, “An action for the recovery of damages for an offense or quasi offense may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.”

The Chumleys assert that they alleged specific acts of malpractice that occurred in Caddo involving White’s mishandling of the summary judgment hearing on November 17, 2008, and that they sustained damages in Caddo as a result of the dismissal of their claims by summary judgment. As such, venue is proper in Caddo under La. C.C.P. art. 74. White counters that he made all decisions regarding the Chumleys’ case in his law office in Bossier; therefore, the alleged wrongful conduct occurred and damages were sustained in Bossier where his law office is located. White argues that venue is proper in Bossier in accordance with Clarendon, supra.

In Clarendon, supra, the plaintiff filed a legal malpractice action in Ouachita Parish against two attorneys, one whose office was in Ouachita and the other whose office was in Lincoln Parish. The suit alleged that they failed to plead third-party fault as an affirmative defense in a suit in Oua-chita. The Lincoln Parish attorney filed an exception of improper venue. He asserted that the pleading which did not include the affirmative [^defense would have been drafted at his law office in Lincoln, thus venue was proper there. Citing Chambers v. LeBlanc, 598 So.2d 337 (La.1992), and following Frisard v. State Farm Fire and Cas. Co., 02-987 (La.App. 5th Cir.1/28/03), 837 So.2d 706, writ denied, 2003-0969 (La.5/16/03), 843 So.2d 1138, both discussed infra, this court sustained the exception and held:

[I]n a legal malpractice action based on the failure to file documents, the proper venue is the parish where the defendant attorney’s law office is located because that is the parish where he or she handled the defense of the lawsuit and, thus, where the alleged wrongful conduct occurred.

Id.

We do not view Clarendon, supra, as establishing an exclusive rule of venue for legal malpractice actions, nor do we find it to be directly on point as asserted by White. To be exact, the alleged malpractice in Clarendon was not a failure to file documents; it was a failure to plead a specific defense. On the facts alleged, Clarendon is distinguishable from the present matter. The alleged failure to include an affirmative defense in a pleading, which would typically be drafted in a law office, differs from the alleged failure to file depositions and evidence into the record or the failure to inform the trial court of relevant facts at a hearing as alleged by the Chumleys. We agree with the Chumleys that legal representation is not necessarily confined to the attorney’s law office from which he or she practices.

The Clarendon opinion followed the fifth circuit’s decision in Frisard, supra, which involved a legal malpractice action against a law firm Land two attorneys, William Lozes and David Sirera, filed in Jefferson Parish. The plaintiff alleged that the defendants failed to properly defend him in suits in St. Tammany Parish and in Jefferson Parish. The law firm and Lozes, who was a resident of St. Tammany and whose law office was located there, filed an exception of improper venue. From its examination of the plaintiffs petition, the appellate court found that the majority of the allegations against the defendants related to actions in St. Tammany and that the allegation of failure to file pleadings in the suit in Jefferson did not suffice to establish that wrongful conduct occurred in that parish as argued by the plaintiff. Instead, the court concluded that the alleged wrongful conduct occurred in St. Tammany where the law office was located and from where the attorney handled the defense of the suits against the plaintiff.

The determination of venue in Frisará, supra, was supported by the facts that the attorney’s law practice was in St. Tammany and that the underlying litigation that led to the majority of the malpractice claims, which are not specified in the opinion, was based in St. Tammany. Here, White’s practice is located in Bossier, but the most significant of the claims asserted by the Chumleys relate to acts or omissions that allegedly occurred in Caddo in open court. Thus, Frisará, supra, is distinguishable on the facts alleged.

In Chambers, supra, the plaintiffs, who were domiciled in Livingston Parish, filed a legal malpractice suit there against an attorney who was domiciled in Iberville Parish and practiced in Ascension Parish. The basis [inof the suit was that the attorney failed to file a timely suit in East Baton Rouge Parish. Concluding that the plaintiffs sustained damages in Livingston Parish and that venue was proper under La. C.C.P. art. 74, the trial court overruled the defendant’s exception of improper venue. In a per curiam opinion, the supreme court reversed the judgment of the trial court stating:

When damage is caused to the plaintiff in the parish where the wrongful conduct occurred, then that parish is the parish of proper venue under Article 74, even if the plaintiff is in the parish of his domicile at the time of the wrongful conduct or if the damage progresses in the parish of the plaintiffs domicile. Belser v. St. Paul Fire & Marine Insurance Co., 509 So.2d 12 (La.App. 1st Cir.1987)

Id., at 337-338. The court concluded that the wrongful conduct occurred either in Ascension or East Baton Rouge but clearly not in Livingston. The matter was remanded for transfer “to a parish of proper venue.” Iá.

Chambers, supra, is not determinative as to where the wrongful conduct occurred. The opinion indicates that the wrongful conduct occurred either in the parish of the underlying litigation or of the attorney’s practice and remands for transfer to “a” parish of proper venue. Venue may be proper in more than one parish, and the choice of a proper venue belongs to the plaintiff. Cacamo, supra. Chambers, supra, does not preclude Caddo as a proper venue for this matter. Under Chambers, supra, venue could be proper either in Bossier where White’s law office is located or in Caddo where the Chumleys allege that wrongful conduct occurred in open court and damages were sustained. If venue is proper in both parishes, then the choice of where to file belongs to the Chumleys.

In Stovall v. Carimi, 95-0766 (La.App. 4th Cir.11/30/95), 667 So.2d 1107, writ denied, 96-0748 (La.5/3/96), 672 So.2d 692, the plaintiff filed a malpractice action in Orleans Parish, the location of the underlying litigation, against an attorney who practiced in Jefferson Parish. The malpractice claim involved a dispute over a settlement and attorney fees. The defendant’s exception of improper venue was sustained by the trial court and affirmed on appeal. The court found that none of the allegations of wrongful conduct by the attorney occurred in Orleans, whereas Jefferson was where the defendant advised the plaintiff and where the plaintiff executed all the documents related to representation and settlement.

A case similar to Clarendon, supra, is Belwise Aquaculture Systems, Inc. v. Lemke, 2005-69 (La.App. 3d Cir.6/1/05), 904 So.2d 940, writ denied, 2005-1735 (La.1/27/06), 922 So.2d 547, which involved a malpractice action based on a negligently drafted petition for damages. The plaintiffs alleged that the attorney did not include in the pleadings all the claims they wished to pursue in a federal court suit that was filed in the U.S. Western District in Monroe, then transferred to the Alexandria Division in Rapides Parish, and ultimately dismissed on summary judgment. The plaintiffs claimed that venue was proper in Rapides where they lived, their business was located, and damages were sustained. The attorney alleged that venue was proper only in Catahoula Parish where he was domiciled and where his practice was located. The trial court overruled the defendant’s exception of improper venue. The third circuit reversed. It found that the alleged wrongful conduct would have occurred when the petition was hi,drafted at the attorney’s office, not when the pleading was filed. Thus, venue was proper in Catahoula, even though damages may have “migrated” to another parish. Id.

Most analogous to the matter at hand is Johnson v. Tschirn, 94-0085 (La.App. 4th Cir.2/25/94), 635 So.2d 254, writ denied, 94-1543 (La.9/23/94), 642 So.2d 1300, in which the plaintiff sued his former attorney in district court in Orleans Parish after having a suit in the federal district court in New Orleans dismissed on summary judgment. The plaintiff alleged that the attorney failed to conduct timely discovery and to file the appropriate documents to defeat summary judgment. The defendant, whose law practice was in Jefferson Parish, filed an exception of improper venue, which was sustained by the trial court but then reversed on appeal. The fourth circuit found that the alleged wrongful conduct, the failure to file documents, occurred in New Orleans where the underlying action was pending. The documents had to be filed in New Orleans, thus failure to file them took place there and not in the attorney’s law office. The court likened the facts to those in Chambers, supra, where the failure to file a timely suit took place in East Baton Rouge Parish.

At the hearing on the first exception, Mr. Chumley testified that he engaged White to oppose pending motions for summary judgment in Caddo. Thus, White was aware that he would have to act in Caddo to oppose the motions. The Chum-leys alleged specific acts or omissions constituting wrongful conduct in Caddo. They alleged that White neglected to inform the trial court that there had been two termite reports; that he did not explain hato the trial court that neither report satisfied the conditions of the buy-sell agreement and did not raise the issue of breaches by the sellers or the agent; and that he affirmatively told the trial court that all critical depositions and discovery responses were in the record, when he had not offered the depositions of the closing attorney, the real estate agents, and the Magees along with related exhibits. These allegations all relate to White’s representation of the Chumleys at the hearing on the motions for summary judgment in Caddo. They concern statements White made or failed to make in court along with his failure to file documents relevant to opposing the motions for summary judgment into the record. These allegations do not relate to actions normally performed by an attorney in his or her office, such as the drafting of documents as in Clarendon, supra, or Belwise, supra.

White testified that he made all decisions about how to defend the Chumleys against summary judgment at his office in Bossier. Because all decisions were made in Bossier, White asserts that venue is proper only in Bossier. He argues that the Chumleys’ complaint is really about his strategy in opposing the motions for summary judgment and that even though damages may have manifested themselves in Caddo, they were set in motion in Bossier where he devised the case strategy.

The trial court, in ruling in favor of White at the hearing on the first exception, apparently believed his assertion that he made all decisions on the Chumleys’ case in Bossier. While we find no error in this factual finding, it does not support the ruling on the exception by proving that the wrongful conduct occurred in Bossier. Where a mental process such as 114making decisions on how to defend a case takes place is a subjective determination that can hardly be disputed. However, venue should be based on objective facts. Even if White made all decisions on how to oppose the motions for summary judgment in his law office, the alleged wrongful conduct would not have occurred until he implemented his defense strategy and damages would not have been sustained until that strategy failed. The fact remains that he had to act on his strategy in Caddo, and the Chumleys’ allegations include specific acts and omissions in Caddo. White’s testimony that he made all decisions on the Chumleys’ case at his Bossier office does not contradict the specific allegations of the Chumleys’ petition and does not prove that Caddo is an improper venue for this matter.

The focus for determining venue under La. C.C.P. art. 74 is where the wrongful conduct occurred or where the damages were sustained. Where the wrongful conduct occurred “presupposes an association between that location and an act, whether a ‘sin’ of omission or commission, that gives rise to the cause of action.” Richmond v. Dow, 97-1492, p. 10 (La.App. 4th Cir.4/1/98), 712 So.2d 149, 154. Based on the jurisprudence surveyed in this opinion, where the wrongful conduct occurred is determined by examining what the attorney was required to do and where he was required to do it. The failure to include claims or defenses in the pleadings occurs where pleadings are drafted, typically in the attorney’s law office as in Clarendon, supra, and Belwise, supra. The failure to file a timely suit or documents in the record as in Johnson, supra, occurs where the filing was to have been made. The allegations that White failed to Improperly defend the motions for summary judgment by failing to file depositions and exhibits to oppose the motion, by telling the trial court all relevant documents were in the record, and by failing to inform the trial court at the hearing of issues related to the termite reports and buy-sell agreement all pertain to White’s representation at the hearing in Caddo where he appeared in court on the Chumleys’ behalf. Moreover, the Chumleys’ damages were sustained in Caddo when their claims were dismissed on summary judgment, not when White devised his strategy for the case in Bossier. For these reasons, we find that the trial court erred in sustaining White’s exceptions of improper venue.

CONCLUSION

The trial court’s judgments are reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion. Costs are assessed against White.

REVERSED and REMANDED.

CARAWAY, J., concurs with written reasons.

DREW, J., dissents with written reasons.

CARAWAY, J.,

concurring.

11 Although a similar venue question was presented in Clarendon Nat. Ins. Co. v. Carter, 39,622 (La.App.2d Cir.5/11/05), 902 So.2d 1142, writ denied, 05-1567 (La.1/27/06), 922 So.2d 544, a ruling of this court in which I participated, I now believe that the ruling of the Supreme Court in Chambers v. LeBlanc, 598 So.2d 337 (La.1992), allows for the alternate venues of either Caddo or Bossier Parish in this legal malpractice action.

In Chambers, the court stated that “the wrongful conduct occurred in either Ascension Parish [the parish of the lawyer’s place of business] or East Baton Rouge Parish [the parish where plaintiffs suit was to be filed].” Id. This statement was dicta in the abbreviated per curiam opinion since the court only decided that Livingston Parish, the plaintiffs domicile, was an improper venue. Nevertheless, since the lawyer’s alleged negligence was his failure to act by timely filing suit in East Baton Rouge Parish, it might just as easily be said that “the wrongful conduct occurred” only at the lawyer’s office in Ascension Parish where his nonfeasance occurred. The Supreme Court did not say that, suggesting instead that the location where the client’s business is to be attended may also be considered as a place where the wrongful conduct occurred.

Additionally, consideration of the attorney-client relationship and the venue articles of the Code of Civil Procedure convinces me that Caddo Parish was a proper venue in this case. Despite the fact that we have come to view legal malpractice as a matter in tort with its special peremption statute for the institution of the action, there is still a contractual agreement |2underlying the attorney-client relationship. See, e.g., State Bar Articles of Incorporation, Art. 16, Rules of Professional Conduct, Rule 1.5, and La. R.S. 37:218. The analogous principle for venue in contract disputes allows a party to the contract to be sued in “the parish where any work or services were performed” under the contract. La. C.C.P. art. 76.1. With this broad allowance for alternate venues under Article 76.1 in contract cases, I would give special application to the express language of Article 74 and allow a venue for legal malpractice “in the parish where the damages were sustained.” That parish here is the parish of Chumleys’ prior pending lawsuit, because it was in that suit that the adverse judgment occurred giving rise to their damages.

DREW, J.,

dissenting.

| ^ This issue should be decided according to our opinion in Clarendon National Ins. Co. v. Carter, 39,622 (La.App.2d Cir.5/11/05), 902 So.2d 1142, writ denied, 2005-1567 (La.1/27/06), 922 So.2d 544. Accordingly, I respectfully dissent.

      . Rulings on venue are interlocutory judgments that are subject to review via supervisory writs. Land v. Vidrine, 2010-1342 (La.3/15/11), 62 So.3d 36. Even though appeal from a venue ruling may be improper, this matter is properly before us on supervisory review. Moreover, no party has sought dismissal of the appeal.

      . The Chumleys have not argued venue under La. C.C.P. art. 76 on appeal.


author: CARTER, C.J.

text:
    Terry L. STOGNER v. SMITH & SMITH, LLC and Sentry Insurance Company.
    No. 2011 CA 0413.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 9, 2011.

      Hugh B. Exnicios, Folsom, LA, for Plaintiff/Appellee, Terry Stogner.
    Shannon Seiler Dartez, Lafayette, LA, for Defendants/Appellants, Smith & Smith, LLC and Sentry Insurance Company.
    Before CARTER, C.J., PARRO and HIGGINBOTHAM, JJ.
   CARTER, C.J.

12This is a disputed claim for workers’ compensation. For the reasons that follow, we amend and, as amended, affirm.

FACTS AND PROCEDURAL HISTORY

In June 2005, the plaintiff, Terry Stog-ner, fell twenty feet to the ground while operating a forklift in the scope of his employment duties with the defendant Smith & Smith, LLC. As a result of the accident, the plaintiff suffered a fractured skull and traumatic brain injury, as well as fractured ribs, lung contusions, and strain on his cardiovascular system caused by the blunt chest trauma.

Dr. William Johnston was the plaintiffs initial neurosurgeon. A CAT scan of the lumbar spine, taken shortly after the accident, showed no acute traumatic injury. The scan did reveal that the plaintiff had degenerative disc disease and joint arthritic changes at several levels of the lumbar spine.

In October 2005, the plaintiff first reported back pain, and an MRI was ordered. The MRI revealed that the plaintiff had moderate spinal stenosis at L2-3, L3-4, and L4-5. The stenosis was more significant than that detected by the earlier CAT scan. During the next year, two more MRIs were performed. The results indicated that the plaintiffs back condition was continuing to worsen, and in July 2006, Dr. Johnston recommended spinal decompression surgery for all three levels (L2-5) to treat the plaintiffs progressive back pain, progressive radicular pain, and neurologic deficit. However, the plaintiffs cardiopulmonary problems, such as the compromising of his airway following the accident, made surgery too risky.

| ^According to Dr. Johnston, a July 2007 MRI showed that the plaintiffs condition at L2-3 had worsened since the October 2005 MRI. In addition, it was suspected that the plaintiff might be suffering from a disc space infection in that region. Dr. Johnston ordered another MRI of the plaintiffs lumbar spine in March 2008. According to Dr. Johnston, this test indicated the degeneration remained unchanged from the July 2007 MRI, and earlier concerns of disc space infection actually proved to be a reflection of advanced degenerative changes in the disc at L2-3. Dr. Johnston last saw the plaintiff in April 2008.

The plaintiff attempted to schedule an appointment with Dr. Johnston at the end of 2009; however, Dr. Johnston was unavailable, so the plaintiff met with Dr. Alan Weems, also a neurosurgeon. Dr. Weems also concluded that the plaintiff required a lumbar decompressive laminectomy and fusion at the L2-5 levels.

The plaintiff filed the present disputed claim for workers’ compensation benefits, seeking payment of all necessary expenses connected with the recommended surgical procedure. At issue was whether the plaintiffs June 2005 accident was a factor in causing or aggravating his medical condition at L2-3 and L3-4, collectively, or at L4-5. Filed into evidence at the hearing were the depositions of Dr. Johnston and Dr. Weems |4and the plaintiffs medical records from Charity Hospital, East Jefferson General Hospital, and North Oaks Medical Center.

After considering the evidence, the workers’ compensation judge (WCJ) concluded that the plaintiff was entitled to reasonable and necessary medical treatment for his condition at L2-3 and L3-4 only. In written reasons, the WCJ referenced Dr. Weems’s testimony as evidence that the June 2005 accident “was a factor in causing the aggravation of the [plaintiffs] progressive spine condition at L2-3 and L[3]-4.” In contrast, the WCJ found that Dr. Weems’s testimony was insufficient to carry the plaintiffs burden of proof to establish a causal connection between the accident and the plaintiffs medical condition at L4-5.

The defendants, Smith & Smith, LLC and Sentry Insurance Company, appeal, alleging the WCJ was clearly wrong in concluding the plaintiff carried his burden of proving a causal connection between the June 2005 accident and the medical condition of the plaintiffs spine at L2-3 and L3-4.

DISCUSSION

The employee in a workers’ compensation action must prove by a preponderance of the evidence that a work-related event occurred and that an |,^injury was sustained. Authement v. Consolidated Water Works Dist. No. 1, 05-0877 (La. App. 1 Cir. 5/5/06), 935 So.2d 158, 162. When an employee suffers from a preexisting medical condition, he may still prevail if he proves that the accident aggravated, accelerated, or combined with the condition to produce the disability for which compensation is claimed. Brown v. Deal’s Carpet Care, 03-0196 (La.App. 1 Cir. 11/7/03), 867 So.2d 762, 765, writ denied, 03-3363 (La.2/13/04), 867 So.2d 691. Where an employee proves that before the accident he had not manifested disabling symptoms, but that commencing with the accident, disabling symptoms appeared and manifested themselves, and that the medical or circumstantial evidence indicates a reasonable possibility of a causal connection between the accident and the activation of the disabling condition, the employee’s work condition is presumed to have aggravated, accelerated, or combined with his pre-existing disease or infirmity to produce his disability. Brown, 867 So.2d at 765-66.

Once the employee has established the presumption of causation, the opposing party bears the burden of producing evidence and persuading the trier of fact that it is more probable than not that the work injury did not accelerate, aggravate, or combine with the pre-exist-ing condition to produce the employee’s disability. Brown, 867 So.2d at 766. To rebut the presumption of causation, the employer must prove the absence of any correlation between the work injury and the employee’s disability by a preponderance of the evidence. Brown, 867 So.2d at 766-67.

| (¡Dr. Johnston stated that he did not believe the plaintiff was exaggerating his symptoms; however in his opinion, the plaintiff suffered no acute traumatic injury of consequence to his back from the 2005 fall, and his back pain was more likely related to the progression of a degenerative back disease and joint arthritic changes.

Although Dr. Weems agreed with Dr. Johnston that the changes in the plaintiffs back were not consistent with a fracture or an acute injury, he believed the rapid progression of the degeneration in the plaintiffs back over the last 4 to 5 years was caused by the twenty-foot fall. Dr. Weems described the plaintiffs injuries from the fall as “catastrophic” and explained that the delay in the plaintiff reporting back pain after his fall might be attributed to his severe head injuries. Dr. Weems explained that the plaintiff initially was comatose and bedridden and may not have been cognizant of the pain.

Referencing the plaintiffs multiple MRIs, Dr. Weems discussed the rapid progression of the degeneration at L2-3 and L3-4. In Dr. Weems’s opinion, the plaintiff suffered an injury “significant to multiple parts of the body[,] and it injured his lumbar spine.” The spinal injury caused the plaintiffs existing spinal disease to progress more rapidly. More specifically, Dr. Weems stated that the damage to the L2-3 was most likely an internal derangement of the disc with the fall; “the L2-3 was damaged very badly.” In his opinion, there was “a lot of proof that the plaintiffs back was injured from the fall.

17Factual findings in a workers’ compensation case are subject to the manifest error standard of review. Montanez v. Bayou Insulation & Garage Doors, 07-1988 (La.App. 1 Cir. 5/2/08), 991 So.2d 497, 498. Am appellate court cannot set aside the factual findings of a WCJ unless there is no reasonable factual basis for the findings or the findings are clearly wrong. Montanez, 991 So.2d at 498. When there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on appellate review, although the appellate court may feel its own evaluations and inferences are as reasonable. Id.

Herein, the WCJ was faced with conflicting medical opinions. When the testimony of expert witnesses differs, it is the responsibility of the trier of fact to determine which evidence is most credible. Connolly v. Seeley Service Const., 97-1620 (La.App. 1 Cir. 5/15/98), 712 So.2d 636, 640. The WCJ is granted considerable discretion in evaluating expert testimony, and his decision to accept the testimony of one expert over the conflicting testimony of another expert can never be manifestly erroneous. Connolly, 712 So.2d at 640.

The WCJ found Dr. Weems credible and persuasive, and the medical records corroborate his deposition testimony. The WCJ’s conclusion that the plaintiff suffered an aggravation of a pre-existing back condition that warrants medical benefits, including the surgical intervention at L2-3 and L3^1, is not clearly wrong.

\P,CONCLUSION

For the above-stated reasons, we amend the WCJ’s judgment to reflect the plaintiffs medical condition as existing at L2-3 and L3-4, rather than at L2-3 and L2-4. Finding no manifest error in the WCJ’s judgment as amended, we affirm. Costs are assessed to the appellants, Smith & Smith, LLC and Sentry Insurance Company.

AMENDED, AND AS AMENDED, AFFIRMED.

      . Although multiple levels of the lumbar spine are involved, for purposes of trial, L2-3 and L3-4 have been treated as one area and L4-5 as a second area.

      . The WCJ’s judgment incorrectly refers to the region as "L2-3 and L2-4.”

      . In his response brief, the plaintiff asks this court to reverse the WCJ's judgment in part and award the plaintiff medical benefits for his medical condition at L4-5; however, the plaintiff filed neither a motion for appeal nor an answer to the appeal. Louisiana Code of Civil Procedure Annotated article 2133 A provides that an appellee desiring to have the trial court's judgment modified, revised, or reversed is obliged to timely answer the appeal. Because the plaintiff failed to file an answer to this appeal, we are prohibited from reviewing this issue.