author: FREDERICKA HOMBERG WICKER, Judge. WINSBERG, J.,

text:
    Demetris ROBINSON, Individually and on Behalf of Her Deceased Son, Rayvon Robinson v. JEFFERSON PARISH SCHOOL BOARD, Southern Baptist Camping Association, Tall Timbers Baptist Conference Center and Sam White c/w Raynell Bailey, Individually and on Behalf Of His Deceased Son, Rayvon Robinson v. Jefferson Parish School Board, Southern Baptist Camping Association, Tall Timbers Baptist Conference Center and Sam White.
    Nos. 08-CA-1224, 08-CA-1225.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 7, 2009.
    Rehearing Denied April 29, 2009.

      Lionel H. Sutton, III, Attorney at Law, New Orleans, LA, for Plaintiff/2nd Appellant.
    Marc E. Johnson, Attorney at Law, Kenner, LA, for Plaintiff/Appellant.
    Michael G. Fanning, Attorney at Law, Gretna, LA, for Defendant/Appellee.
    James M. Benson, Attorney at Law, Lakeway Two Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges CLARENCE E. McMANUS, FREDERICKA HOMBERG WICKER, and JEROME M. WINSBERG, Pro Tempore.
   FREDERICKA HOMBERG WICKER, Judge.

|3In these consolidated wrongful death and survival action proceedings, the parents of a 20-year-old son have appealed the granting of a summary judgment. Tragically, their son drowned in a lake during a high school ROTC camping trip. Demetris Robinson (the mother), and Ray-nel Bailey (the father) individually and on behalf of their deceased son Rayvon Robinson filed separate petitions for damages against defendants/appellees Jefferson Parish School Board, Southern Baptist Camping Association, Tall Timbers Baptist Conference Center and Sam White. The cases were allotted to different divisions of the District Court but the father’s case was later transferred and consolidated with the mother’s case. The plaintiffs alleged that the defendants were negligent in ■ several respects, including failure to adequately supervise Rayvon, failure to perform a timely and adequate search, failure to train employees or agents in proper supervision of campers and Lstudents; failure to timely notify authorities of the disappearance; failure to adequately provide for Rayvon’s safety; and creating or allowing hazardous conditions to exist. The father sought additional punitive and exemplary damages. The key issues in this case are: (1) Are Tall Timbers and Sam White immune from liability pursuant to the Recreational Use Statutes? (2) Did Jefferson Parish School Board breach its duty of reasonable care? Finding that there are no genuine issues as to material fact concerning these issues, we affirm. Facts

It is undisputed that on March 17, 2006, Rayvon, a Jefferson Parish Bonnabel High School Student, attended a ROTC trip at the Tall Timbers Baptist Conference Center in Woodworth, Louisiana. Riverdale High School ROTC’s Colonel James T. Webb arranged the trip. The next morning on March 18, 2006, Colonel Webb discovered that Rayvon was missing. Approximately 10 days later, his body was found in the lake. He was clothed and his boots were on. Approximately one year later, his cell phone and wallet were discovered near the lake. At the time, Ray-von was age 20.

Sam White and Tall Timbers filed a motion for summary judgment as did Jefferson Parish School Board. In support of its motion for summary judgment, Sam White and Tall Timbers relied on Mr. White’s affidavit and Colonel James T. Webb’s deposition. Jefferson Parish School Board relied on the Webb deposition, the autopsy report, and Ms. Robinson’s deposition.

According to the March 29, 2006 autopsy report, Rayvon died on March 28, 2006 as a result of asphyxia due to accidental drowning. No significant injuries were present.

In his affidavit, Mr. Wdiite averred that he is the director of Tall Timbers Baptist Conference Center. He stated that Tall Timbers is a 123-acre facility that is adjacent to a portion of the Kisatchie National Forest in Rapides Parish. It has lodges and cabins with rooms to accommodate up to 400 people. It also has a dining facility, a swimming pool, an activity center, and a “ropes course.” Most of the remainder of the grounds is heavily wooded except for a lake, which is about ten acres in size.

Mr. Wdiite described the relationship between Tall Timbers and the Louisiana Baptist Convention. He stated that Tall Timbers is owned and comes under the umbrella of the Executive Board of the Louisiana Baptist Convention. Tall Timbers is heavily subsidized by the Executive Board. Tall Timbers’ mission is to provide people with the type of atmosphere they desire as they seek God’s will and the peace that He promises.

According to Mr. White, Tall Timbers operates at a substantial loss, which is made up through an annual subsidy provided by the Convention. For the years 2005 through 2007, Tall Timbers received subsidies from the Convention that ranged from $131,930.76 to $271,041.96.

Mr. WRite averred that at the time of this accident, Tall Timbers had 11 full time employees, and several part time employees, with the number depending upon the time of year. These employees operated the facility, but were not directly involved with any activity of visiting groups except for the facility’s “rope course,” swimming pool, or pedal boats. Tall Timbers was not involved in any of the ROTC group’s activities prior to Rayvon’s disappearance. No one from Tall Timbers approved, participated in, or chaperoned any ROTC activity before Rayvon’s disappearance.

Mr. Wdiite described the events that followed Rayvon’s disappearance. He averred that Kevin Tichey, a maintenance worker at Tall Timbers, called Mr. White at 7:30 a.m. on March 19, 2006, and told him that Rayvon was missing. |(iTwo' Tall Timbers’ performed a search of the buildings while Mr. Wdiite was enroute to Tall Timbers. When one of the employees reported that all of the buildings had been searched, that the ROTC members had searched all of the tents and areas where they had conducted activities the night before, and that Rayvon had not been found, Mr. White immediately called 9-1-1.

Mr. White stated that a sheriffs deputy arrived at approximately 9:30 a.m. Thereafter, a search team searched the grounds. The search ended at dusk on the March 19th and resumed at sunrise on the 20th. Detective Gary Bradford called off the search at 11:00 a.m. on Sunday, the 20th, stating his belief that Rayvon had simply left the grounds in an attempt to get to Jackson, Mississippi, to visit his girlfriend.

According to Mr. White, on March 28, 2006, Tall Timbers maintenance Manager, Glen Smith, saw Rayvon’s body floating in the water near the north bank. Mr. Smith contacted Mr. White and Mr. White immediately called 9-1-1. The sheriffs department removed the body from the water. Rayvon was wearing his ROTC T-shirt, camouflage pants, and boots. Neither Mr. White nor anyone at Tall Timbers knows how or why Rayvon entered the lake on March 18 or 19, 2006. More than a year after Rayvoris death, maintenance workers trimming the perimeter of the lake found Rayvoris wallet and cell phone on the bank of the south side of the lake.

Colonel Webb testified in his 2007 deposition that for approximately three years, he had been a senior Air Force instructor at Riverdale High School, which is within the Jefferson Parish school system. Before that, he had been employed by the St. Charles Parish school system approximately 11 years in that capacity. After his 1993 military service retirement, he had taken over the ROTC program in St. 17Charles Parish. Colonel Webb explained that as a ROTC instructor, he was employed as a teacher within the state system.

He testified that students became eligible for ROTC when they entered the ninth grade. ROTC students were required to take courses in the ROTC curriculum. All other activities, such as field trips after school and on the weekend, however, were voluntary.

Colonel Webb stated that one such outside activity was “snake school.” This was the activity that took place at Tall Timbers. Although this was the first time they had conducted a “snake school” at Tall Timbers, this was not the first time they had conducted “snake school.” Colonel Webb testified that he conducted the “snake school” program for approximately nine years at Destrehan High School. Before the Tall Timbers’ trip, he had also previously conducted the program in Jefferson Parish at other facilities.

He testified that his principal coordinates the offer of the “snake school” program to other schools in the school system. Two to three months before they went to Tall Timbers, Sergeant Whitener surveyed the location. Based on Sergeant Whitener’s recommendation, they decided to conduct the “snake school” at Tall Timbers. The Colonel stated that he had never visited the site before actually arriving for “snake school” although he occasionally spoke with someone at Tall Timbers to discuss some details.

Colonel Webb stated that he believed he had 12 chaperones for the trip consisting of four National Guard members, five parents, and three instructors. Sixty-eight students from four high schools, including Riverdale and Bonnabel, attended the “snake school.”

Colonel Webb testified that Tall Timbers was required to meet basic requirements in order to meet their needs in conducting a “snake school.” These | Rneeds consisted of some manner in which to feed the students, two separate camping areas, a low ropes course, and a high ropes course. Details of the “snake school” activities were spelled out in a contract that they signed with Tall Timbers. The contract had details regarding ropes, camping requirements, and the dining facility.

He stated that the “snake school” required two campsites because students were divided into two squadrons: the Alpha squadron and the Bravo squadron. He explained that there was a competition to capture the other squadron’s flag.

Colonel Webb testified that basically Tall Timbers was not part of the “snake school” activities although the ropes’ instructors were arranged through Tall Timbers. However, he did not think that the ropes’ instructors were employees of Tall Timbers.

Colonel Webb testified that they arrived in buses at Tall Timbers. He spoke to Rayvon on the bus in an attempt to know the students who did not attend Riverdale. Upon arrival at Tall Timbers, the students and chaperones unloaded their gear from the buses. Then, they went over the ground rules, including safety rules with everyone. Sergeant Whitener walked with both squadrons on a daylight tour of the area to identify the operating area and to show where the students were permitted to go and where they were prohibited from going. They went over the safety rules with them again and then they finished setting up their camps. They took the students to the other unit’s encampment so they knew where that was and vice versa. There was a lake in the middle of the camps. After they finished setting up their camps, they started the “capture the flag” game. Colonel Webb stated that he gave the students a time limit of 4:00 a.m.

Colonel Webb described the game. He stated that the goal was that each squadron had a flag posted in the encampment. And their job was to defend it [ 9against the other squadron. A student was captured by getting tagged by the other side. The students were never to go anywhere alone without a partner. If the partner were captured, the student had to return to his camp and procure another partner. However, the students were not required to participate in the “capture the flag” game. There were a few students who did not want to participate.

Colonel Webb testified that he saw Ray-von before the game started. At the time, the colonel had remarked that Rayvon’s tent was crowded. Colonel Webb learned that Rayvon left his tent and his camping supplies at Riverdale. Therefore, he was placed in a tent with four other students. Colonel Webb stated that he did not recall seeing Rayvon after the game started.

Colonel Webb was asked about his instruction to the students concerning the lake. He responded that he told them the lake was off limits. He stated that there was a perimeter road that the students could use to get to the other encampment but they could not go inside that road toward the lake. The students were also told not to go on the side of the fence around the lake. He was asked how many feet was it from the perimeter road on each side to the lake. He responded that it varied from 20 feet to 50 feet. He thought that some areas of the perimeter road were only 20 feet from the lake.

When asked whether this was his own rule or whether this was an instruction from Tall Timbers, he replied that he did not recall getting any input from Tall Timbers. He explained that it did not seem that they needed any input since the lake was not part of the program.

Colonel Webb explained that they went over the ground rales before they ever got on the bus and made certain that everyone understood what was happening. Then, when they arrived at the campsite, they reinforced those ground rules.

| |()Colonel Webb was asked about the location of the “capture the flag” game. He replied that the students were told that they could not go into the woods. A few students were not abiding by the rules. These students tried to go over the fence and they were told not to do that. As the colonel patrolled the area, he made certain that the students were within the boundaries set forth in the rules. He testified that nothing unusual happened during the game. To his knowledge no one tried to get into the lake and swim across the lake during the game. No one was reprimanded for going too close to the lake during the game.

Colonel Webb was asked whether the students were allowed to go around the wooded side of the lake where the road was to get to the other camp. He replied that the instructions were for the students to remain on the road. They did not want the students going off the inside toward the lake and they did not want them getting off the path to the outside because at night there was no orientation. The road itself was in bounds during the game.

He testified that the students in the game had flashlights. When they started the game it was just getting dark. The game lasted until 2:00 a.m. There was no success on either side so they finally decided to end the game.

He stated that no one from Tall Timbers participated in the game, provided any type of support for the game, or provided any type of supervision during the game. The colonel did not ask Tall Timbers to do so.

Colonel Webb testified that he was told by one of Rayvon’s tent mates that Robinson was sitting in a chair outside of the tent after his partner had been captured. And then his partner returned and Ray-von, who was reading a book, did not want to go again. The colonel understood that Rayvon’s partner and others left at that time. The colonel asked all of the students whether they teamed up with Ray-von again after that point and no one told him that Rayvon went out again with | nanother partner. Colonel Webb learned that when students saw that Rayvon was not there upon their return, they assumed that he joined other students. The last time he determined that Rayvon had been seen was about 10:30 p.m. or 11:00 p.m. The colonel testified that Rayvon’s tent mates said that he did not sleep in the tent that night. He stated that the tent mates assumed that Rayvon had slept in another tent with a friend.

Colonel Webb testified that he awoke around 5:00 a.m. to 5:30 a.m., after going to bed a few times that night. The cadet commander had the students fall in. The colonel asked for a head count and that was when the colonel learned that they were missing one person. The head count took place about 5:30 a.m. or 6:00 a.m. When he discovered that Rayvon was missing, he informed the other chaperones and Tall Timbers. Together with Tall Timbers’ employees, they conducted a search. They decided to call the Rapides Sheriffs office. The sheriffs office responded very quickly, assessed the situation, and took over from there.

Colonel Webb stated that the next morning when he was walking around the lake, he noticed a spot where there was a sudden drop off.

Colonel Webb testified that there was no bed check by him or anyone in charge. Normally, if they were staying in a hotel, he would have a bed check at 10:00 p.m. or 11:00 p.m. and then the first thing in the morning as well. But the way this game ended and started, he did the check when he got up. He explained that there was no set time that the game would be over so they did not have all of the students at one spot at one time to account for them. He left instructions that everyone report any problems that they had and nobody did.

He stated that when he was sleeping, the other chaperones and the guardsmen were in charge. There was, however, no routine schedule for chaperone duty.

112Ms. Robinson testified in her 2007 deposition that her son, Rayvon, was a senior at Bonnabel High School. He had been held back because he failed in two prior years. However, his grades improved in the 11th grade from C’s and D’s to A’s and B’s.

She testified that she met his ROTC teacher when Rayvon got an award. He had finished his ROTC training and he was going to graduate. He probably was going to go into the Army and the Army would pay for college. Rayvon had been accepted by a school.

She stated that Rayvon had no disabilities. At the time of his death he was employed at Avis-Rent-A-Car. He had been working there six or seven months. He typically worked about 62 hours over a two-week period because he was still in school. He had worked at Wendy’s years before Avis. At Avis, he drove cars from one Avis location to another. Rayvon had a bank account.

She testified that Rayvon had no formal swimming training but he knew how to swim. She had seen him swim. He had no fear of the water.

On July 15, 2008, the trial judge granted the two motions for summary judgment. He concluded that there was no genuine issue of material fact as to Sam White and Tall Timbers because these defendants were immune from liability under Louisiana’s Recreational Use Statute and there was no factual evidence to show that these defendants breached a duty to the plaintiffs. As to Jefferson Parish School Board, the trial judge concluded there was no genuine issue of material fact regarding its liability. The court found that “[w]hile the plaintiffs death was tragic, the undisputed facts showed that plaintiff was a 20-year old adult who was reasonably warned twice by his ROTC leader that the lake was off limits, and participation in the group activity was voluntary.”

The court also concluded:

| ^Plaintiffs point out that Col. Webb apparently went to sleep while the game was still in progress, but he was not the only supervising adult on site. Rayvon himself was an adult who had the legal capacity and right to go anywhere on his own at night.
Under those undisputed facts, it is clear that the Jefferson Parish School Board and its employees did not owe constant supervision to the deceased.

The plaintiffs have each filed timely de-volutive appeals.

Demetris Robinson raises one specification of error: “The trial court erred in determining that Jefferson Parish School Board provided reasonable supervision of Rayvon Robinson.”

Raynell Bailey specifies as error the trial court’s finding that there were no genuine issues of material fact as to Jefferson Parish School Board as well as to Sam White and Tall Timbers.

Analysis

By its order, the Court granted the defendants’ motion for summary judgment on the claims brought against them, effectively dismissing them from the case entirely.

We apply the de novo standard of review in reviewing a district court judgment on a motion for summary judgment. Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (Citation omitted). In short, we use “the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.” Id.

The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). The procedure is favored and shall be construed to accomplish these ends. Id. Summary judgment shall be rendered if the pleadings, depositions, answers to |, interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B). After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. La.C.C.P. art 966(C)(1)

The movant bears the burden of proof. La.C.C.P. art. 966(C)(2). If the movant meets this initial burden, the burden then shifts to the plaintiff to present factual support adequate to establish that he will be able to satisfy the evidentiary burden at trial. Champagne v. Ward, 03-3211, p. 5 (La.1/19/05), 893 So.2d 773, 776-77 (Citation omitted). Thereafter, if the plaintiff fails to meet this burden, there is no genuine issue of material fact and defendant is entitled to summary judgment as a matter of law. Id.

Immunity

Mr. Bailey argues on appeal that the trial judge erred in concluding that there was no genuine issue of material fact as to Sam White and Tall Timbers because these defendants were immune from liability under Louisiana’s Recreational Use Statute. Ms. Robinson does not assign such error nor does she present any argument that the trial judge erred in this respect.

Louisiana’s Recreational Use Statutes are contained in La.R.S. 9:2791 and La. R-.S. 9:2795.

Mir. Bailey contends that Sam White and Tall Timbers are excluded from coverage under the immunity statute for the following reasons. First, the provi-sions for immunity do not apply if the premises are used for profit. Mr. 11fiBailey asserts that the fact that Tall Timbers has not made a profit does not negate the fact that Tall Timbers might be operated for the purpose of making a profit. He asserts that there was no indication that Tall Timbers is a nonprofit organization. Second, Mr. Bailey asserts that Mr. White and Tall Timbers are not excluded from immunity because the exemption does not apply for willful or malicious failure to warn against a dangerous condition, use, structure, or activity.

Mr. Bailey argues that in Van Pelt v. Morgan City Power Boat Association, Inc., 489 So.2d 1346 (La.App. 1 Cir.1986), writ granted, 493 So.2d 627 (La.1986) (cause dismissed 9/29/86), the organization in that case was a nonprofit corporation. Mr. Bailey argues that in this case Tall Timbers must prove that it is a nonprofit corporation rather than simply stating that it had no intention to make a profit. Also, he contends that since Colonel Webb testified about signing a contract, the contract showed a more formal, business nature of the activities.

The Supreme Court granted writs in Van Pelt. Therefore, we do not consider Van Pelt controlling. Rather, we conclude that the more recent Supreme Court case of Richard, v. Hall, 03-1488 (La./23/04), 874 So.2d 131 is controlling. Additionally, the Van Pelt court did not hold that an organization must be a nonprofit organization to benefit from the immunity statute.

La.R.S. 9:2791(B) grants immunity to the owner or occupant of property that is not used primarily for commercial recreational purposes. Section D provides that the provisions of this section shall not apply when the premises are used principally for a commercial, recreational enterprise profit. It does not state that the provision shall not apply to a nonprofit corporation.

In Richard v. Hall, 03-1488, p. 28 (La./23/04), 874 So.2d 131, 151, the Louisiana Supreme Court recognized that the immunity statutes grant a broad immunity from liability. In Hall, the Supreme Court held that pursuant to L./Louisiana's Recreational Use Immunity Statutes, it was the “owner’s” use of the premises and not the underlying classification of the premises as a commercial recreational enterprise for profit that determined the availability of the immunity provisions to a qualified owner. 03-1488 at 29, 874 So.2d at 152. When, as in that case, the owner/lessor operated the premises as a commercial recreational enterprise, but the lessee did not utilize the premises for a commercial profit from recreational activities, the lessee was entitled to the immunities afforded by the immunity statutes. Id. The person claiming the immunity must utilize the premises for a commercial recreational enterprise for profit to be excluded from the immunity provisions. OS-1488 at 29-30, 874 So.2d at 152.

In the present case, Mr. White’s affidavit establishes that Tall Timbers did not operate the facility for profit. Instead, Tall Timbers operated at a loss and it received subsidies from the Louisiana Baptist Convention. Therefore, Tall Timbers and Sam White fall within the provisions of the Louisiana Recreational Use Statutes.

We next turn to the question of whether Tall Timbers and Mr. White willfully or maliciously violated a duty owed to the plaintiffs so as to exclude them from the immunity granted by the Recreational Use Statutes. In this regard, Mr. Bailey refers to Colonel Webb’s testimony. Mr. Bailey states that everyone was aware that the ROTC activities were to take place around the lake. He points out that Colonel Webb testified that the following morning he observed a sudden drop off into the lake. Mr. Bailey opines that if Colonel Webb could observe the drop off into the lake, it was safe to assume that Tall Timbers and Mr. White were also aware of the drop off. He contends that Tall Timbers and Mr. White breached their duty to the ROTC participants to correct or warn them against dangers not known to the students.

| )8Section B of Recreational Use Statute La.R.S. 9:2791 sets out instances when liability will not be excluded. Section B(l) does not exclude any liability which would otherwise exist for “willful or malicious failure to warn against a dangerous condition, use, structure, or activity.” “A failure to warn of a dangerous condition connotes a conscious course of action, and is deemed willful or malicious when action is knowingly taken or not taken, which would likely cause injury, with conscious indifference to consequences thereof.” DeLafosse v. Village of Pine Prairie, 08-0693 (La.App. 3 Cir. 12/10/08), 998 So.2d 1248, writ denied, 09-0074 (La.2/4/09), 999 So.2d 766, quoting Lambert v. State, 40,-170, pp. 11-12 (La.App. 2 Cir. 9/30/05), 912 So.2d 426, 433-434 (citations omitted), writs denied, 05-2310 (La.4/17/06), 926 So.2d 509 and 05-2311 (La.4/17/06), 926 So.2d 509.

We do not find Tall Timbers and Mr. White’s failure to warn of the lake and the sudden drop-off to be malicious or willful. Further, there was no showing made that Tall Timbers or Mr. White, willfully or maliciously failed to warn against a dangerous condition, use, structure, or activity. Under the language of the statutes, the defendants have statutory immunity against tort liability and owe no duty to warn campers of the existence of the lake or of its allegedly hazardous condition.

To sum up, we find that Tall Timbers and Sam White were afforded immunity pursuant to the Recreational Use Statutes. Therefore, the trial judge did not err in concluding that there were no issues of material fact as to Sam White’s and Tall Timbers’ liability.

Jefferson Parish School Board

Ms. Robinson argues that the trial judge erred in finding that the Jefferson Parish School Board provided reasonable supervision to Rayvon. She does not 1 iaclaim that the Jefferson Parish School Board should have provided constant supervision. Rather, she claims that the Jefferson Parish School Board had a duty to provide reasonable supervision. She asserts that the trial court’s finding that Colonel Webb reasonably warned Rayvon twice that the lake was off limits is irrelevant and cannot provide the basis for a finding of adequate supervision.

Mr. Bailey presents a similar argument as to the Jefferson Parish School Board.

A school board, through its agents and teachers, owes a duty of reasonable supervision over students. Wallmuth v. Rapides Parish School Bd., 01-1779, p. 8 (La.4/3/02), 813 So.2d 341, 346, citing La. C.C. art. 2320; Adams v. Caddo Parish School Bd., 25,370 (La.App. 2 Cir. 1/19/94), 631 So.2d 70, unit denied, 94,684 (La.4/29/94), 637 So.2d 466. The supervision required is reasonable, competent supervision appropriate to the age of the children and the attendant circumstances. Id., citing Jackson v. Colvin, 98-182 (La. App. 3 Cir. 12/23/98), 732 So.2d 530, unit denied., 99-228 (La.3/19/99), 740 So.2d 117. This duty does not make the school board the insurer of the safety of the children. Id. Constant supervision of all students is not possible nor required for educators to discharge their duty to provide adequate supervision. Id., citing Adams, supra.

Before liability can be imposed upon a school board for failure to adequately supervise the safety of students, there must be proof of negligence in providing supervision and also proof of a causal connection between the lack of supervision and the accident. Id.

To establish a claim against a school board for failure to adequately supervise the safety of its students, a plaintiff must prove: (1) negligence on the part of the school board, its agents, or teachers in providing supervision; (2) a causal connection between the lack of supervision and the accident; and (3) that thejjgrisk of unreasonable injury was foreseeable, constructively or actually known, and preventable if a requisite degree of supervision had been exercised. Pugh v. St. Tammany Parish School Bd., 07-1856 (La.App. 1 Cir. 8/21/08), 994 So.2d 95, writ denied, 08-2316 (La.11/21/08), 996 So.2d 1113, citing Wallmuth, supra, 813 So.2d at 346.

Ms. Robinson argues that the undisputed facts show that Rayvon and the other students were sent out into unfamiliar woods, at night, with little or no supervision. While the students were told to employ a buddy system, the rules of the game prevented the students from following that suggestion since one of the buddies had to make his way back to the camp alone.

She points out that Colonel Webb testified that he went to bed while the game was going on. Before going to sleep he did not do a bed check, head count, or confirm in any other way that all of the students were safe and accounted for. She states that he also testified he had no procedures in place to account for the students once he turned them loose into the woods. Ms. Robinson contends that the trial court’s finding that Colonel Webb reasonably warned Rayvon twice that the lake was off limits was irrelevant and could not provide the basis for a finding of adequate supervision. She also argues that the trial court’s finding that there were other adults on the site is of no moment since the School Board produced no evidence that those adults were actually involved in any supervision of Rayvon.

Mr. Bailey also argues that the School Board breached its duty by failing to adequately supervise Rayvon. He contends that it was foreseeable that an accident could occur around the lake even if the students were advised not to enter the lake. He states that the purpose of the game was to run around the lake to capture the flag of the opposing team. He opines that it was more conceivable than not that an accident could occur.

12i Mr. Bailey contends that the School Board allowed the field trip without any policies regarding the safety precautions or instructions for the chaperones. In particular, he refers to Colonel Webb’s testimony that the chaperones had no assigned responsibilities.

Additionally, Mr. Bailey argues that it was safe to assume that Colonel Webb could have discovered the drop off if he had taken the time to complete the initial site survey before the trip or if he had walked around the lake before nightfall. As such, Mr. Bailey contends that Colonel Webb could have warned the students of the potential hazard.

In Hunter v. Evergreen Presbyterian Vocational School, 338 So.2d 164, 164, 165 (La.App. 2 Cir.1976), the parents of decedent, a moderately to severely retarded young man, filed a wrongful death action against a vocational school. Their son drowned in a pond on the school’s premises. The trial court rejected the plaintiffs’ demands against the school, finding no breach of duty by the school or its personnel. The Second Circuit affirmed the judgment.

The principal issue in Hunter was whether the standard of care owed by the school to the decedent required continuous supervision throughout the day. The Court found that during the decedent’s three and one-half years at the school, he had given no indication that he was dangerous to himself. Id, 338 So.2d at 165. There was an insufficient basis upon which to give the school notice that continuous supervision was necessary for the decedent’s safety. Id.

Rayvon, who was aged 20, had no disabilities. He was gainfully employed and doing well academically. Rayvon was even more capable than the decedent in Hunter. He was warned not to go near the lake. The School Board’s duty did not include constant supervision.

In Lemelle v. State, Through Bd. of Secondary & Elementary Educ., 435 So.2d 1162, 1163 (La.App. 3 Cir.1983), the plaintiff, an adult vocational-technical student brought an action for damages against the school and others. He alleged that he severely injured his left knee when a sheet of steel fell on him. Lemelle had been a student at the vocational school for more than six months at the time of the accident. He had been given instructions regarding the use of the acetylene torch as one of his first activities at the school. The Third Circuit concluded that as a 29-year-old mature adult, he should have been able to carry out his teacher’s instructions to cut the metal without the need of supervision.

Likewise, as a 20-year-old mature young man, Rayvon should have been able to carry out Colonel Webb’s instructions that the lake was off limits without the need of supervision. Therefore, the trial judge did not err in concluding that the Jefferson Parish School Board and its employees did not owe constant supervision to the deceased to ensure that he obeyed the instruction that the lake was off limits. As such, the trial judge properly found that there were no issues of material fact as to Jefferson Parish School Board’s liability.

Decree

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

AFFIRMED.

WINSBERG, J., dissents with reasons.

WINSBERG, J.,

dissents with reasons.

hi respectfully dissent. The placing of urban high school students of any age into an unknown rural setting at night, near a lake with dangerous drop-offs, creates a genuine issue of material fact in and of itself. There was no plan in place by the organizers, or supervision by the so-called chaperones, and they lacked training in the “game” that went on into the early hours of the morning. For these reasons, I conclude that this is not a fact situation that should be subject to a summary judgment.

      . On September 19, 2007, the father moved to dismiss Southern Baptist Camping Association. On that day, the trial judge granted the motion and dismissed this defendant from the father's suit, without prejudice as requested.

      . La.R.S. 9:2791 provides:
      A.An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing, or boating or to give warning of any hazardous conditions, use of, structure, or activities on such premises to persons entering for such purposes, whether the hazardous condition or instrumentality causing the harm is one normally encountered in the true outdoors or one created by the placement of structures or conduct of commercial activities on the premises. If such an owner, lessee, or occupant gives permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.
      B. This Section does not exclude any liability which would otherwise exist for deliberate and willful or malicious injury to persons or property, nor does it create any liability where such liability does not now exist. Furthermore the provisions of this Section shall not apply when the premises are used principally for a commercial, recreational enterprise for profit; existing law governing such use is not changed by this Section.
      C. The word “premises” as used in this Section includes lands, roads, waters, water courses, private ways and buildings, structures, machinery or equipment thereon.

        D. The limitation of liability extended by this Section to the owner, lessee, or occupant of premises shall not be affected by the granting of a lease, right of use, or right of occupancy for any recreational purpose which may limit the use of the premises to persons other than the entire public or by the posting of the premises so as to limit the use of the premises to persons other than the entire public.

      . La.R.S. 9:2795 pertinently provides:
      A. As used in this Section:
      (1) "Land” means urban or rural land, roads, water, watercourses, private ways or buildings, structures, and machinery or equipment when attached to the realty.
      (2) "Owner” means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
      (3) "Recreational purposes” includes but is not limited to any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized, or nonmotorized vehicle operation for recreation purposes, nature study, water skiing, ice skating, roller skating, roller blading, skate boarding, sledding, snowmobiling, snow skiing, summer and winter sports, or viewing or enjoying historical, archaeological, scenic, or scientific sites.
      (4) "Charge” means tire admission price or fee asked in return for permission to use lands.
      (5) "Person” means individuals regardless of age.
      B. (1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
      (a) Extend any assurance that the premises are safe for any puiposes.
      (b) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owed. (c)Incur liability for any injury to person or property caused by any defect in the land regardless of whether naturally occurring or man-made.
      (2) The provisions of this Subsection shall apply to owners of commercial recreational developments or facilities for injury to persons or property arising out of the commercial recreational activity permitted at the recreational development or facility that occurs on land which does not comprise the commercial recreational development or facility and over which the owner has no control when the recreational activity commences, occurs, or terminates on the commercial recreational development or facility-

      E(2)(a) The limitation of liability provided in this Section shall apply to any lands, whether urban or rural, which are owned, leased, or managed as a public park by the state or any of its political subdivisions and which are used for recreational purposes.
      (b) The provision of supervision on any land managed as a public park by the state or any of its political subdivisions does not create any greater duty of care which may exist and does not create a duty of care or basis of liability for personal injury or for damage to personal property caused by the act or omission of any person responsible for security or supervision of park activities, except as provided in Subparagraph (E)(2)(d) of this Section.
      (c) For purposes of the limitation of liability afforded to parks pursuant to this Section this limitation does not apply to playground equipment or stands which are defective.
      (d) The limitation of liability as extended to parks in this Section shall not apply to intentional or grossly negligent acts by an employee of the public entity.
      F. The limitation of liability extended by this Section to the owner, lessee, or occupant of premises shall not be affected by the granting of a lease, right of use, or right of occupancy for any recreational purpose which may limit the use of the premises to persons other than the entire public or by the posting of the premises so as to limit the use of the premises to persons other than the entire public.


source: Caselaw Access Project

author: STEWART, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Michael RHODES, Jr., Appellant.
    No. 44,076-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Louisiana Appellate Project, by Peggy J. Sullivan, for Appellant.
    J. Schuyler Marvin, District Attorney, John M. Lawrence, C. Sherburne Sentell, III, Assistant District Attorneys, for Ap-pellee.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   STEWART, J.

| iThe defendant, Michael Rhodes, Jr., pled guilty to felony grade theft pursuant to an agreement providing for a seven-year sentencing cap and no multiple offender bill. He received a sentence of five years at hard labor with credit for time served. Claiming excessiveness, the defendant now appeals. We affirm.

FACTS

The theft occurred on December 15, 2007, at Sandy’s Handy Shop in Minden, Louisiana, after business hours. The defendant went to the store and asked to use the telephone. The clerk, who was familiar with the defendant, allowed him to enter. Money from the cash register was on the counter. The defendant grabbed the money and stated, ‘You just got jacked.” He ran off with $576.99.

After another store employee provided his name to the police, the defendant was arrested and charged with theft over $500. Though the defendant claimed that he took $428 from the store, he accepted a plea agreement and pled' guilty as charged. The plea agreement provided for a seven-year sentencing cap and no multiple offender bill. After considering a presen-tence investigation (“PSI”) report, the trial court sentenced the defendant to five years at hard labor with credit for time served. The trial court also ordered the defendant, if paroled, to pay restitution in the amount of $576.99. After the denial of a motion to reconsider the sentence, the defendant appealed.

| ¡.DISCUSSION

The defendant’s excessive sentence argument is based on his claim that he took only $428, an amount that bears a sentencing range of up to two years under La. R.S. 14:67(B)(2). He complains that his sentence is more than double what it would have been if he had been convicted of stealing an amount less than $500. He also argues that the sentence, though entered pursuant to a plea agreement, is renewable due to the trial court’s failure to advise him that he had no right of appeal.

A defendant cannot appeal or seek review of a sentence imposed in conformity with a plea agreement that was set forth in the record at the time of the plea. La. C. Cr. P. art. 881.2(A)(2). Where a specific sentence or sentencing cap has been agreed upon as a consequence of a plea bargain, a sentence imposed within the agreed range cannot be appealed as excessive, and there is no need for the trial judge to give reasons for the sentence as normally required by La. C. Cr. P. art. 894.1. State v. Bailey, 40,098 (La.App.2d Cir.10/26/05), 914 So.2d 116, writ denied, 2006-0462 (La.9/22/06), 937 So.2d 377.

However, in State v. Foster, 42,212 (La.App.2d Cir.8/15/07), 962 So.2d 1214, the defendant was allowed to have his sentence reviewed for excessiveness even though he entered a guilty plea with a sentencing cap and the sentence imposed was within the cap. Because the trial court informed the defendant that by pleading guilty he would give up the right of appeal “except as to the amount of the sentence,” review for excessiveness was allowed. This court held that the defendant had a constitutional right of |3review under La. Const. Art. 1, § 19, because the right had not been “intelligently waived.” Id.

The record shows that the plea agreement was explained prior to the defendant’s guilty plea. Pursuant to the agreement, the defendant was allowed to plead guilty to felony theft with a sentencing cap of seven years. The charge carries a penalty of imprisonment up to ten years, with or without hard labor, a fine of not more than $3,000, or both. La. R.S. 14:67(B)(1). Also, the defendant obtained the benefit of having a PSI ordered, and the state agreed not to file a multiple offender bill. The defendant agreed to these terms in entering his guilty plea.

Contrary to his argument that he was not informed that he would have no right to appeal, the record shows that the trial court specifically advised the defendant of his rights, including the right to appeal, and that by pleading guilty he would be giving up these rights. The defendant indicated his understanding. Unlike the situation in Foster, supra, here the trial court did not qualify the explanation of the rights waived as a result of the guilty plea. Consequently, the defendant’s acknowledgment of understanding constituted an intelligent waiver of his right to appeal.

In this case, a sentencing cap of seven years was agreed upon by the parties as part of the plea bargain. This cap is well within the statutory limits for the charged offense. The sentence of five years imposed by the trial court is within the cap. No basis exists for the defendant to appeal his sentence as excessive. La. C. Cr. P. art. 881.2; State v. Bailey, supra.

_JjEven so, the five-year sentence is not constitutionally excessive. The record shows that the trial court was cognizant of and considered the appropriate factors in determining the defendant’s sentence. It is neither grossly disproportionate to the severity of the offense nor shocking to the sense of justice. Though the defendant would have been subject to a lesser sentence if he had been convicted of stealing an amount less than $500, the fact remains that the defendant accepted the plea bargain and the benefits it provided in lieu of going to trial. We find no abuse of the trial court’s discretion in imposing this five-year sentence.

CONCLUSION

For the reasons explained, we affirm the defendant’s sentence.

AFFIRMED.


author: CARAWAY, J.

text:
    Harold H. HOLLENSHEAD, Gayle K. Hamilton and Gloria Hernandez Hamilton, Plaintiffs-Appellants v. A.C. DOMINICK, Jr. and Jack Dominick, Jr., Defendants-Appellees. A.C. Dominick, Jr., Plaintiff-Appellee v. Harold H. Hollenshead, Gayle K. Hamilton and Gloria Hernandez Hamilton, Defendants-Appellants.
    Nos. 43,933-CA, 43,934-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Francis M. Gowen, Jr., Shreveport, for Appellants.
    William McLoyd Comegys III, Shreveport, Douglas Clifton Dominick, Vivian, for Appellees.
    Before STEWART, CARAWAY and PEATROSS, JJ.
   CARAWAY, J.

|, These consolidated disputes are posses-sory actions brought by opposing owners with lands on opposite sides of the Red River. The disputed land was shown at trial to have been affected at various times by the continuous movement of the Red River since the original governmental surveys of the townships in 1839. This riparian land was determined by the trial court’s judgment to be now in the possession of the owner of the lands on the same side of the Red River where the disputed property is located. The owners of lands on the opposite side of the Red River were ordered pursuant to La. C.C.P. art. 3662 to bring a petitory action to establish their claim of ownership of the disputed property, and they appeal. For the following reasons, we affirm the trial court’s ruling.

Facts

These consolidated actions concern riparian land on either side of the Red River in northern Caddo and Bossier Parishes. On the westerly side of the Red River, Jack Dominick, Jr. (hereafter “Dominick”), and his ancestors have held title to 830 acres called the Manilla Plantation since 1929. Manilla Plantation extends to lands north of the center (east/west) line of fractional Section 4, Township 22 North, Range 14 West and west of the Red River.

Harold H. Hollenshead (hereafter “Hol-lenshead”) and Gayle K. Hamilton and Gloria H. Hamilton, husband and wife (hereafter “Hamilton”), 12and their respective ancestors have maintained title to two tracts of land in said fractional Section 4 and in Section 33, Township 23 North, Range 14 West (hereafter the “H & H Property”) lying east of the present bed of the Red River. The H & H Property consists of a 31.018-acre tract in the northeast corner of Section 4 and 99.355 acres in the south half of the south half of Section 33, all of which land presently lies east of the Red River. Hollenshead and Hamilton are undisputedly in possession of the H & H Property.

The former deeds to the H & H Property of Hollenshead and Hamilton’s ancestors in title also apparently included additional lands in Section 4 and Section 33 west of the existing bed of the Red River (hereinafter the “Disputed Property”). Hollenshead and Hamilton claim that the location of the Red River in January 1839, as shown on the Official Map of the Northwestern Land District of Louisiana, is the western boundary of the Disputed Property as described in the deeds of their ancestors in title. The present location of the river lies to the east of that former location of the river and in between is the Disputed Property. Therefore, in 2001, Hollenshead and Hamilton hired a survey- or to trace the boundary of the center thread of the 1839 location of the river and to set stakes along that line. After Hol-lenshead posted the line according to the survey, this dispute began.

The extent of the possession now asserted by Dominick includes the land described in the deeds for Manilla Plantation and alleged alluvion or |sbatture lands that have attached to Manilla Plantation as the river moved eastward through the years. The Disputed Property according to Dominick is that alluvial land. Dominick’s alleged activities on the Disputed Property consisted of grazing cattle, planting rye grass, and hunting and fishing. In the 1950s, Manilla Plantation was fenced to the river along the northern and southern boundaries to keep the cattle in.

During the trial, Hollenshead testified that he first acquired his property around 1989. Upon his acquisition, he began crossing the Red River in his boat and on his jet ski because he “knew” he owned land on the other side. Eventually, he and Hamilton exchanged the ownership in their adjoining parcels in Section 4 and Section 33 to become co-owners. Enoch French prepared the boundary survey for Hollenshead and Hamilton in April 2001, using the 1839 Government Survey Map. French identified certain flood events, one ostensibly occurring at some time between 1929 and 1939, and the other in 1945. Concerning the flood event in April 1945 that allegedly caused the river to shift overnight, French said:

Well, it caused the river in this area to move basically to the alignment where it is today and it has continued to migrate to the east and to build up. This — this area right here, you’ve got a cut bank in that area that — that’s eating on the west | ¿bank. And then down in this area, you’ve got a cut bank that’s eating on the east bank. So it’s cutting here, building up in this inside right here and cutting here and building up down there.

Based upon French’s findings, Hamilton and Hollenshead assert that the changes in the river that occurred between 1929 and 1945 were avulsive events, so that their ownership of the Disputed Property was not lost by the gradual movement of the river and the principles of accretion. French confirmed that Hollenshead and Hamilton claimed the area lying east of the former thread of Red River as it flowed in 1838 or 1839.

Appellee’s father, Jack Dominick, Sr., first acquired Manilla Plantation. Jack Dominick, Jr., testified that he remembered walking around Manilla Plantation with his father from the time he was five years old, checking cattle and building fences. They would cross the levee, and watch the river. In particular, he testified about fencing on the property in reference to a 1955 aerial photograph:

A That’s '55. Of course, this was still wet in '55. You can see where the peninsula had eroded away and so this would have been the first land that — that he was really fencing to put cattle on. There were fences that went up to the river and of course, we had fences on the cotton land so the cattle couldn’t get back on the cotton fields and — They eat cotton, even- — even bolls of cotton. So this is the first place that there were fences later.
Q Let me ask you this. Over the years did you fence the entirety of the entirety of the alluvion?
A It was fenced — on the north side there was an east/west fence. On the south side there was also a fence that went in an easterly direction to the river.
Q All right, sir. And that would be a fence separating your property from your southern—
A East and northeast too.
Q Yeah, from your southern neighbor. A Right. To keep the cattle in.

|r,The Dominicks’ cows grazed on the Disputed Property until 1982, when Dominick and his father quit the cattle business and the herd was sold. Thereafter, the cotton fields and farm land were leased separately to the Dominick cousins for cultivation. Absent the grazing cattle on the sandbar, vegetation grew up, and only remnants of old fences remain visible. Nevertheless, Dominick testified that he still uses all of the property for farming and recreation, and is vigilant concerning protection of his possession.

Andrew C. Dominick, who leased Manilla Plantation for eight or ten years prior to the trial, testified concerning his planting of cotton, corn and soybeans on a portion of the land, particularly the Disputed Property over the levee. He remembered going “all back in there when he was a kid,” some 60 years ago, and denied any knowledge of adverse possession. A.C. Dominick corroborated Dominick’s testimony describing the old fence line along the southern boundary, and dated the original fence to the 1960s. A.C. Dominick “rode horseback back in there and helped get cattle up back in there for [Jack Dominick, Sr.].” On cross, A.C. Dominick confirmed that he encountered French while he was hunting in a deer stand and told French to leave the property.

Winfred Johnston testified that he was born on Manilla Plantation, and often fished on Red River. Johnston’s father leased land from Jack Dominick, Sr. and farmed it. Johnston observed Dominick working on fences, running cattle, and spoke to him when he was on the river.

| (¡Willis T. LaRue testified about hay work he did for the Dominicks in the late 1970s, on both sides of the levee, as follows:

A Well, I did it after — go back to eight-two, he got me to gather the cattle on that pasture. They was going out of the cattle business and over a period of three or four months from late spring of eighty-two until late summer I hauled cattle to Texarkana for him and — I kept up with the number of cattle and it was 385 head that we gathered and hauled.
Q All right, sir. And after that did you have any further connection with— A Yes, over the levee, now, I went over there during the drought of eighty-four and the hay was scarce and along— possibly even this time of the year of eighty-four or eighty-five. I put up hay over the levees where it had never been — you know, in recent years it hadn’t been anything done to the land. And I put up hay right up to the first sand bank of the river that — that time.
Q All right, sir. During that period of time were you — did you observe a fence—
A Yes.
Q —on the southern boundary?
A Yeah. It was maintained. It kept those cattle in there until eighty-two and eighty-four when I went — the road went down alongside that fence to the eastern part of it down to the river and it was— it extended throdgh some brush there on the — close to the river on down to the river. And I’m sure it was — it kept the cattle in until we sold them out of there. And — and I used that road. It crossed a pretty good slough and it had to be dry weather to really get across that slough. And — and I had some difficulty getting hay out of there after I — I rolled some of it on — -that winter after it started l’aining.

John Paul Hobbs testified concerning his hunting activities on Manilla Plantation from the late 1960s until 1990. According to his testimony, Jack Dominick, Sr. showed him where he could hunt east of the levee, and showed him the boundaries.

In January 2002, each side filed a separate suit against the other. These proceedings present two possessory actions. Dominick’s petition alleged peaceful possession of the land east of the levee which runs through Manilla Plantation. That land between the levee and the existing bed of the 17Red River includes the Disputed Property. Dominick’s asserted acts of possession consisted of continuous farming operations, grazing cattle, fencing, harvesting timber, and leasing for agricultural and oil and gas purposes. Hollenshead and Hamilton alleged quiet possession of their property according to their deeds. As to the alleged facts concerning their acts on the Disputed Property, the petition stated they “established posted signs” on the property on October 16, 2001. Three days later, they “returned to their property,” and found that Dominick and/or his agent had allegedly removed the surveyor’s stakes and posted signs.

After the trial, the trial court rendered its written opinion which found:

The testimony of Dominick and his witnesses, together with the other evidence submitted on his behalf prove by a preponderance that he and his family have continuously possessed the Manilla Plantation up to the bank of the Red River without interruption for a period of time well in excess of ten years.
In October and November of 2001 both parties were under the impression they had the right to possess the disputed property. In October and November of 2001 Hollenshead/ Hamilton individually or through their designated agents and employees violated Dominick’s peaceful possession of the property.

The trial court rendered judgment in the consolidated actions, rejecting Hollenshead and Hamilton’s possessory action and restoring Dominick’s possession of the 830.07 acre Manilla Plantation, together with all batture and riparian rights east to the present location of the Red River. The court further ordered Hollenshead and Hamilton to file a petitory action to assert | ¡¡any ownership claim within 60 days after the judgment becomes final. This appeal followed.

Discussion

To acquire possession, one must intend to possess as owner and must take corporeal possession of the thing. La. C.C. art. 3424. Corporeal possession is the exercise of physical acts of use, detention, or enjoyment over a thing. La. C.C. art. 3425. Possession is a matter of fact; nevertheless, one who has possessed a thing for over a year acquires the right to possess it. La. C.C. art. 3422.

The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted. La. C.C.P. art. 3655; Liner v. Louisiana Land & Exploration Co., 319 So.2d 766 (La.1975). The posses-sory action shall be brought against the person who caused the disturbance. La. C.C.P. art. 3656. In a possessory action, the sole object is the protection of possession and title is not an issue. Bennett v. Louisiana Pacific Corp., 29,598 (La.App. 2d Cir.5/9/97), 693 So.2d 1319, writ denied, 97-1552 (La.10/3/97), 701 So.2d 199.

To maintain the possessory action the possessor must allege and prove that: (1) he had possession of the immovable property or real right therein at the time the disturbance occurred; (2) he and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud; (3) |9the disturbance was one in fact or in law, as defined in Article 3659; and (4) the posses-sory action was instituted within a year of the disturbance. La. C.C.P. art. 3658.

Hollenshead and Hamilton present to this court only one assignment of error, which states:

The trial court committed an error of law by ignoring a sudden flood or floods of Red River created land on the west side of Red River (but still located in Bossier Parish) by avulsive event(s) of Red River.

Because of such avulsive event, appellants claim that La. C.C. art. 502 operated to maintain their ownership of the Disputed Property lying west of the Red River after the avulsion. They argue that although their surveyor, French, “could not pinpoint exactly when the avulsive act(s) of the Red River occurred, he unequivocally testified” from the prior maps of the area, “it had to have occurred somewhere between 1929 and 1939.” From this, appellants conclude that French’s “opinion that it was caused by an avulsive act, rather than an action of accretion, places the ownership of the property in” the appellants. (Appellants’ Brief, emphasis supplied).

Appellants’ assignment of error and arguments asserting “ownership” are totally out of place in this possessory action. La. C.C.P. art. 3661. The 60 to 80-year-old alleged avulsive event has no relevance to the question concerning which of the parties had maintained acts of possession over the Disputed Property in the year and immediate time period before the parties 110came into conflict on the land in 2001. A party’s deeds of title are relevant in a possessory action only for the limited purposes enumerated under Code of Civil Procedure Article 3661, to show the extent of appellants’ possession. Likewise, an assertion of the legal principle for the maintenance of one’s ownership under La. C.C. art. 502 long after an avulsive event overlooks the importance of the actual possession of the property as expressly recognized by the last sentence of that code article. Corporeal possession which establishes one’s right to possession requires a showing in the possessory action of the facts of the exercise of physical acts of use, detention and enjoyment of the property. La. C.C. arts. 3424 and 3425.

Although appellants’ deeds and those of their ancestors in title may describe lands that once formed a contiguous tract located entirely on the east bank of the Red River, those lands are now divided by the present location of the river. The portion of appellants’ lands cut off by the river from them possession of the H & H Property east of the river is the Disputed Property. The question presented by their possessory action does not concern the fact that the Disputed Property was once described in appellants’ ancient deeds, or that its “ownership” by their ancestors was not lost by accretion but was maintained by the principles surrounding avulsion. The question of this possessory action is: What were the acts of corporeal possession by Hollenshead and Hamilton or their predecessors that had established their possession over the Disputed Property in 2001?” From this perspective, appellants’ petition for possession on its face suggested | ntheir lack of possession, as it alleged only their acts of surveying and posting the Disputed Property during a brief period of time in 2001 that never amounted to one year of corporeal possession and the establishment of their right of possession. They never alleged facts of their activities on the land that amounted to “possession quietly and without interruption for more than a year immediately prior to the disturbance” created by Dominick’s removal of appellants’ stakes and posted signs in 2001. La. C.C.P. art. 3658 and La. C.C. art. 3422.

With the appellants’ assignment of error making no challenge concerning manifest error in the trial court’s factual determination of Dominick’s possessory acts over the Disputed Property, we affirm the judgment which determined possession in his favor. Our recitation of the evidence above concerning Dominick’s activities on and the enclosure of the Disputed Property clearly demonstrates Dominick’s establishment of corporeal possession and the right of possession over the Disputed Property.

Conclusion

For the above reasons, the decision of the trial court is affirmed. Costs of the appeal are assessed to appellants.

AFFIRMED.

      . We will refer in this opinion in the broad sense to the west and east sides of the Red River since the river generally runs from north to south. However, we recognize that due to the sharp turn in the river’s course tire disputed property in this case, while lying generally on the west side of the river, actually has the river as its boundary on its northeast side.

      . In 2001, Hollenshead and Hamilton exchanged their interests in the tracts to become co-owners of the H & H Property.

      . We note that the movement of the Red River has extended so far eastward that it now enters Section 3, Township 22 North, Range 14 West at approximately its northwest comer, curving southeasterly to approximately the center of that section, and then sharply curves back to the southwest, exiting Section 3 at its southwest corner. This horseshoe bend in the river means that any accretion formed east of Manilla Plantation as alleged by Dominick may extend into Section 3. Hol-lenshead and Hamilton have asserted no record title to lands in Section 3 held by themselves or their ancestors in title even though they appear to also contest the land west of the Red River in Section 3. Because Manilla Plantation’s south boundary line as appearing on Dominick's deeds only extends southward to the centerline of Section 4, any dispute regarding the ownership of the riparian lands in Section 3 lying west of the present location of the Red River, which might develop in the petitory action ordered by the trial court's judgment, would require as parties other owners with claims to the south half of Section 4 and the owners of tracts in Section 3, so that the conflicting claims under La. C.C. arts. 501 and 502 may be completely adjudicated.

      . La. C.C. art. 502 provides:
      If a sudden action of the waters of a river or stream carries away an identifiable piece of ground and unites it with other lands on the same or on the opposite bank, the ownership of the piece of ground so carried away is not lost. The owner may claim it within a year, or even later, if the owner of the bank with which it is united has not taken possession.


author: LOLLEY, J.

text:
    SUCCESSION OF James Clyde WILKERSON, Plaintiff-Appellant Edith Clyde Wilkerson Wong; James Clifton Wilkerson, II, Plaintiffs-Appellants v. Dr. Ed Eiland, Executor, Legatee and Trustee of Jim Wilkerson Trust; Virginia Ann Reeves, Executrix and Legatee; James E. Paxton, Trustee of Jim Wilkerson Trust; Raye Marie Toups Wilkerson, Legatee; Ginger Ellen Lynn, Legatee; Melanie W. Stephens Rogers, Legatee; Sons of Michael and Virginia Ann Reeves, Legatees, Defendants-Appellants.
    Nos. 44,212-CA, 44,213-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.
    James Clifton Wilkerson, II, for James Clifton Wilkerson, II, Edith Margaret Wilkerson Wong, First Appellants.

      Jess Joseph Waguespack, Napoleonville, for Ryan Marie Toups Wilkerson, Second Appellant.
    Carlyle V. Paxton, James Edward Pax-ton, Tallulah, for Dr. Ed Eiland, Executor, Legatee & Trustee of Jim Wilkerson Trust; Virginia Ann Reeves, Executrix & Legatee; James E. Paxton, Trustee of Jim Wilkerson Trust; Ginger Ellen Lynn, Legatee; Melanie W. Stephens Rogers, Legatee; Julie Edith Wilkerson Berry, Legatee; Brian Kifer, Legatee; Sons of Michael & Virginia Ann Reeves, Legatees, Third Appellants.
    Before PEATROSS, MOORE and LOLLEY, JJ.
   LOLLEY, J.

| ]This appeal arises from a trial court judgment declaring invalid the trust provision of the final will and testament of James Clyde Wilkerson. In addition, the trial court found that a provision for a general legacy was not revoked by later provisions for particular legacies. For the following reasons, we affirm.

Facts

James Clyde Wilkerson (“the Testator”) executed his final will and testament on March 12, 2007. He died on July 19, 2007, survived by his wife Raye Marie Toups Wilkerson and his two children, James Clifton Wilkerson, II, and Edith Margaret Wilkerson Wong. The Testator’s children filed an action to annul the Testator’s will on November 21, 2007.

The pretrial pleadings went through an extensive evolution of theories before the matter was heard on April 14, 2008. The two issues put before the trial court that are now issues on appeal are (1) the validity of a trust provision that committed testamentary dispositions to the choice of third persons, and (2) whether the insertion of three particular legacies invalidates a general legacy written earlier in the testament.

The trial court found that the trust provision which committed the testamentary dispositions to the choice of third persons was in violation of La. R.S. 9:1802 and La. C.C. art. 1572. Further, the trial court found that striking the provision so defeated the purpose of the trust as to render the entire trust invalid. In addition, the trial court found that the placement of the three particular legacies (paragraphs 29, 30, and 31) at the end of the trust was inadvertent, the provisions were not incompatible with other |2provisions in the will, and did not constitute an intent on the part of the Testator to revoke the earlier written general legacy (paragraph 28).

This appeal has taken on a sectarian nature wherein each of the three parties has named itself the appellant. The first party is composed of James Wilkerson, II, and Edith Wilkerson Wong, who ask this court to find that the trial court erred in finding that paragraphs 29, 30, and 31 were compatible with paragraph 28. The second party is the Testator’s surviving spouse, Raye Wilkerson, who argues that the trial court misapplied and misinterpreted the provisions of the trust code and went against the Testator’s intent by nullifying the entire testamentary trust. The third party is a cumbersome group of executors, legatees, and trustees who also argue that the trial court erred in nullifying the entire trust.

Discussion

The Trust

In its reasons for judgment, the trial court gave an admirable, well-cited explanation for its finding that the entire trust was invalid. Paragraph 8(b) of the Testator’s will reads as follows:

b. Principal Beneficiaries. The original principal beneficiaries of THE JIM WILKERSON TRUST shall be either James Clifton Wilkerson, II or Virginia Ann Reeves and Julie Berry or Ginger Ellen Lynn and Melanie W. Stephens or all of the above. The distribution of this property shall be left to the total discretion of the trustees as they see fit. They may distribute the property and income to either James Clifton Wilkerson, II or Virginia Ann Reeves and Julie Berry or Ginger Ellen Lynn and Melanie W. Stephens, or all as they see fit.

|sNo party argues that the trial court erred in finding that this provision violates La. C.C. art. 1572 and La. R.S. 9:1802, the latter providing:

A beneficiary must be designated in the trust instrument, except as otherwise provided in this Code. The designation is sufficient if the identity of the beneficiary is objectively ascertainable solely from standards stated in the trust instrument.

However, La. R.S. 9:2251 provides:

If a provision in the trust instrument is invalid for any reason, the intended trust does not fail, unless the invalid provision cannot be separated from the other provisions without defeating the purpose of the trust.

The removal of paragraph 8(b) from the trust removes the prospective principal beneficiaries, but leaves the Testator’s surviving spouse as the income beneficiary. Louisiana R.S. 9:1802 provides:

A beneficiary must be designated in the trust instrument, except as otherwise provided in this Code. The designation is sufficient if the identity of the beneficiary is objectively ascertainable solely from standards stated in the trust instrument.

Comment (c) states:

If the trust instrument does not designate a beneficiary, the trust fails. If either a beneficiary of income or principal is designated, the trust does not fail.

So, at this point it appears that the trust could be partially salvaged to keep the Testator’s surviving spouse as income beneficiary, and substitute |4the general legatees named in the will for those people named in the invalid paragraph 8(b). However, the trial court cited La. R.S. 9:2026, which provides in part:

The proper court may order the termination or modification of a trust, in whole or in part, if:
(1) The continuance of the trust unchanged would defeat or substantially impair the purposes of the trust.

The trial court found that the express purpose of the trust was to give the Testator’s son an opportunity to receive a portion of his estate in the capacity of a principal beneficiary if deemed appropriate by the trustees, and that this purpose was defeated by the declaration that paragraph 8(b) of the will was invalid. Accordingly, the trial court terminated the entire trust.

In construing a trust, the set-tlor’s intention controls and is to be ascertained and given effect, unless opposed to law or public policy. Thomas v. Kneipp, 43,228 (La.App. 2d Cir.05/28/08), 986 So.2d 175. Intent is an inherently factual finding. Klebanoff v. Haberle, 43,102 (La.App. 2d Cir.03/19/08), 978 So.2d 598. A court of appeal may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Thomas, supra. The issue to be resolved is not whether the trier of fact was right or wrong, but whether its conclusion was reasonable. Wood v. Spillers, 37,087 (La.App. 2d Cir.04/09/03), 843 So.2d 555. Where there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

The testator did not decree who would certainly receive the principal of the trust in his will. Instead, the Testator charged named trustees to |.^bestow the principal and income, according to their discretion and in whatever percentage they deemed proper, to one or all of certain listed people. One of those listed as a potential principal beneficiary was the Testator’s son. That Louisiana law does not allow this manner of distribution is irrelevant as to a finding of the Testator’s intent.

It is not manifestly erroneous or clearly wrong to conclude that the Testator arranged the trust in this manner for the purpose of influencing his son to “demonstrate stability and maturity” after the Testator’s death. This interpretation of the Testator’s intent is possibly correct. The question before this court is not whether the trial court’s finding of the Testator’s purpose was correct, but rather whether the trial court’s finding was reasonable given the facts on the record. Wood, supra. Finding the trial court’s conclusion reasonable, we affirm the judgment invalidating the entire trust.

The Particular Legacies

The Testator’s children argue that the trial court erred in finding that the general legacy provided in paragraph 28 of the will was not revoked by the particular legacies provided in paragraphs 29, 30, and 31. This argument has no merit. Placing these particular legacies after a general legacy that disposes of residual property is inartful; however, there is absolutely no evidence that the Testator intended to revoke any provision of his will. It is clear that he merely wished to add bequests of specific items of property to a testament with which he was otherwise satisfied.

1 f,Conclusion

For the reasons stated above, the findings of the trial court are affirmed in full. The costs of this appeal are to be shared equally by the three appellants.

AFFIRMED.

      . The third party comprises: Dr. Ed Eiland, executor and legatee; Virginia Ann Reeves, executrix and legatee; James E. Paxton, Trustee; Ginger Ellen Lynn, legatee; Melanie W. Stephens Rogers, legatee; Julie Edith Wilkerson Berry, legatee; Brian Kifer, legatee; sons of Michael and Stephen Reeves, legatees.

      . See also Comment (d): In other states, a beneficiary may be designated through the exercise of a power of appointment. This section makes it impossible for the settlor to create a trust without a beneficiary or a reserve to himself or confer upon another the power to select a beneficiary subsequently.


author: GASKINS, J.

text:
    Richard P. JONES, Plaintiff-Appellant v. Shelly GEDDIS, Defendant-Appellee.
    No. 44,215-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 8, 2009.

      Richard Paul Jones, In Proper Person.
    Hamilton & Hamilton by Orlando Hamilton, Oak Grove, for Defendant-Appellee.
    Before BROWN, STEWART and GASKINS, JJ.
   GASKINS, J.

11 The plaintiff, Richard P. Jones, filed pleadings claiming that the defendant, Shelly Geddis, is in possession of movable property belonging to the plaintiff. The defendant filed a dilatory exception pointing out that the pleadings failed to state the domicile of the parties and failed to designate an address, not a post office box, for the receipt of service of all items involving the litigation. The plaintiff was given an opportunity to amend his pleadings to cure the defects. When his amended pleadings failed to fully cure the defects, the trial court dismissed the case. The plaintiff filed the present appeal. For the following reasons, we amend in part and as amended, affirm the trial court judgment.

FACTS

Mr. Jones is incarcerated at Winn Correctional Center following his conviction for manslaughter. In 2003, three individuals drove up in front of Mr. Jones’s residence, tied a chain around his mailbox and proceeded to rip it up out of the ground. Mr. Jones got his .30-30 rifle and fired in the direction of the individuals. After they jumped back into their truck and fled, Mr. Jones fired at least three more rounds, striking and killing one of the individuals. Mr. Jones, who had three prior felony convictions, was convicted by a jury of manslaughter and sentenced to serve the minimum sentence, 20 years at hard labor, without benefit of parole, probation, or suspension of sentence. His conviction and sentence were affirmed in State v. Jones, 41,880 (La.App. 2d Cir.3/28/07), 954 So.2d 296.

On January 13, 2005, with the aid of counsel, Mr. Jones filed a rule to show cause for the return of'certain items of personal movable property he ^claimed were being wrongfully held by Ms. Geddis. These items included a gun cabinet and several guns. The pleadings did not specify who Ms. Geddis is or why she allegedly had possession of Mr. Jones’s property. On August 10, 2006, in proper person, Mr. Jones filed an amended petition to add several other pieces of movable property he sought to have returned by Ms. Geddis.

On September 15, 2006, the plaintiff, in proper person, filed a pleading in the trial court which was treated as a motion for a preliminary default, claiming that Ms. Geddis had failed to respond to his claims. On September 29, 2006, the trial judge wrote to the plaintiff explaining that his initial petition was a summary proceeding. The trial judge instructed the defendant that a preliminary default cannot be entered on a summary proceeding and the plaintiff needed to schedule a hearing. Regarding the amended petition filed in proper person, the trial judge termed this to be an ordinary proceeding. Ms. Geddis had been served and the plaintiff could seek a preliminary default. The trial judge instructed the plaintiff to ask for a trial date to prove the allegations on the amended petition.

Ms. Geddis secured counsel and filed a dilatory exception to the original and amended petitions, claiming that they did not comply with La. C.C.P. art. 891 in that there was no specification of domicile for either party and there was no designation of address, other than a post office box, for the ^parties. Upon the motion of the defendant, the dilatory- exception was submitted on the pleadings and memorandum filed in the trial court.

The plaintiff filed an opposition to the dilatory exception, arguing that he had a lawyer for the filing of the original petition and that any discrepancies in the pleadings should be attributed to the attorney. On January 11, 2007, a judgment was signed by the trial court ordering the plaintiff to amend his pleadings, if he could, to alleviate the objections raised by Ms. Geddis.

On January 31, 2007, the plaintiff filed what purported to be amendments to his pleadings in order to remove the objections raised in the dilatory exception. The plaintiff retyped his original and amended petition and specified an address for service of process for Ms. Geddis. He also listed his physical address at Winn Correctional Center. He did not specify the domicile of either party.

On August 23, 2007, Ms. Geddis filed a rule to dismiss the plaintiffs case, claiming that the plaintiff simply refiled his original and amended petitions. On September 20, 2007, the trial court granted the motion to dismiss with prejudice, finding that the filings of the plaintiff failed to set forth the domicile of the parties. The plaintiff appealed.

Legal Principles

The defendant claimed that the plaintiff failed to comply with the requirements of La. C.C.P. art. 891 in filing his pleadings in this case. That statute provides in pertinent part:

A. The petition shall comply with Articles 853, 854, and 863, and, whenever applicable, with Articles 855 through 861. It |4shall set forth the name, surname, and domicile of the parties; shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation; si tall designate an- address, not a post office box, for receipt of service of all items involving the litigation; and shall conclude with a prayer for judgment for the relief sought. Relief may be prayed for in the alternative. [Emphasis supplied.]

The nonconformity of a petition with any of the requirements of La. C.C.P. art. 891 is raised through a dilatory exception. La. C.C.P. art. 926. The function of the dilatory exception merely retards the progress of the action. La. C.C.P. art. 923. When the grounds of a dilatory exception, other than want of an amicable demand or prematurity, may be removed by amendment of the petition or other action by the plaintiff, the judgment sustaining the exception shall order the plaintiff to remove them within the delay allowed by the court; and the action, claim, demand, issue or theory subject to the exception shall be dismissed only for a.noncompliance with this order. La. C.C.P. art. 933.

At the time the plaintiff filed his claim in this matter, La. C.C. art. 38 provided the following definition of domicile:

The domicile of each citizen is in the parish wherein he has his principal establishment.
The principal establishment is that in which he makes his habitual residence; if he resides alternately in several places, and nearly as much in one as in another, and has not declared [5his intention in the manner hereafter prescribed, any one of the said places where he resides may be considered as his principal establishment, at the option of the persons whose interests are thereby affected.

Domicile is important because it is necessary to determine the proper venue for a lawsuit. Venue is 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. An action against an individual who is domiciled in the state shall be brought in the parish of his domicile; or if he resides but is not domiciled in the state, in the parish of his residence. La. C.C.P. art. 42. The venue for specific proceedings such as nullity, successions, divorce, judicial emancipation of a minor, appointment of a tutor, or interdiction may not be waived. Otherwise, any objection to venue is waived by the failure of the defendant to timely plead the declinatory exception of improper venue. La. C.C. art. 44; La. C.C.P. art. 925.

Discussion

In his brief, the plaintiff notes that he was given until February 15, 2007, to amend his pleadings to set forth the domicile of the parties and to designate an address, not a post office box, for receipt of service of. all items involving the litigation. The plaintiff claims that he was confused by this demand because he had received all documents in connection with the matter and the defendant was served at her residence. The plaintiff claims that on January 31, 2007, he filed amended pleadings setting forth the [fiphysical address of both parties; he believes that this cures the grounds for the dilatory exception, which were the failure to set forth the physical addresses and domiciles of the parties.

In this matter, in his amended pleadings, the plaintiff has provided a physical address for both parties, but has not specified the domicile for them. The trial .court gave the plaintiff an opportunity to amend his pleadings to cure the defects. The plaintiff furnished physical addresses of the parties, but never set forth their domicile. Because the plaintiff did not cure the defects in his pleadings, the trial court acted properly in dismissing the case. However, the trial court erred in dismissing the case with prejudice.

The basis of a dismissal of a suit for noncompliance with an order to remove objections pleaded in a dilatory exception is the power of the court to enforce compliance with a lawful procedural order in connection with a dilatory exception, for by definition, the dilatory exception merely retards the progress of the action as it is not filed in order to defeat the action. For this reason, the judgment of dismissal for failure to cure the defect urged by dilatory exception has consistently been without prejudice, with trial court dismissals being amended when not so providing. Washington v. Flenniken Construction Company, 188 So.2d 486 (La.App. 3d Cir.1966); Lawrence v. Williams, 330 So.2d 121 (La. App. 2d Cir.1976), unit denied, 333 So.2d 247 (La.1976). See also Thomas v. Sonic, 2006-0014 (La.App. 1st Cir.11/3/06), 950 So.2d 822; Whipple v. Whipple, 408 So.2d 390 (LaApp. 1st Cir.1981), writ not considered, 412 So.2d 1089 (La.1982); Lemoine v. Roberson, 366 So.2d 1009 (La.App. 1st Cir.1978); Jenkins v. Hartford Accident and Indemnity Co. Inc., 356 So.2d 490 (La.App. 1st Cir.1977); Alexander v. Town of Jeanerette, 371 So.2d 1245 (La.App. 3d Cir.1979); Jackson v. Housing Authority of New Orleans, 478 So.2d 911 (La.App. 4th Cir.1985). A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action. La. C.C.P. art. 1673. Accordingly, we affirm the trial court action dismissing the plaintiffs claim, but amend to specify that the dismissal is without prejudice.

CONCLUSION

For the reasons stated above, we affirm the trial court judgment dismissing the plaintiffs claim for failure to remove the grounds for the dilatory exception filed by the defendant. However, we amend the judgment to provide that the dismissal is without prejudice. Costs in this court are assessed to the plaintiff.

AMENDED AND AS AMENDED, AFFIRMED.

      . The defendant argued in her brief that the plaintiff, a convicted felon, is prohibited by state and federal law from possessing fire- • arms. In response, the plaintiff filed a notarized document into the record requesting that the firearms and other property be returned to his sister.

      . Typically, and as suggested in the LSA-C.C.P. Form 101 and following, a petition usually begins as follows: The petition of [plaintiff’s name ], who is domiciled in_Parish, respectfully represents.... The first numbered paragraph of the petition usually begins as follows: _, the defendant, who is domiciled in_Parish,....

      . The Louisiana Civil Code provisions on domicile were changed by Acts 2008, No. 801 § 1, effective January 1, 2009. La. C.C. art. 38 now provides dial, "The domicile of a natural person is the place of his habitual residence.” The comments to the new article state that the word "parish” is no longer used in order to make the definition of domicile relevant to both in-state and out-of-state applications.