author: PAINTER, Judge.

text:
    STATE of Louisiana v. Ben James THOMPSON.
    No. 13-261.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 9, 2013.
    André R. Bélanger, Yigal Bander, Manasseh, Gill, Knipe & Bélanger, PLC, Baton Rouge, LA, for Defendant-Appellant, Ben James Thompson.
    Ted L. Ayo, Assistant District Attorney, Abbeville, LA, for the State of Louisiana.
    Court composed of BILLY HOWARD EZELL, J. DAVID PAINTER, and JAMES T. GENOVESE, Judges.
   PAINTER, Judge.

1 j Defendant, Ben James Thompson, appeals the trial court’s finding that he knowingly and intelligently waived his right to trial by jury. We affirm.

FACTS AND PROCEDURAL HISTORY

When we previously considered this case in State v. Thompson, 12-83, pp. 1-2 (La.App. 3 Cir. 10/10/12), 100 So.3d 375, 376, we set forth the facts and procedural history as follows:

The State charged Defendant with armed robbery with the use of a firearm. Defendant allegedly entered the Food-N-Fun in Kaplan, Louisiana[,] while armed with a gun[,] and demanded money from the cashier. Defendant stipulated that he entered and robbed the cashier at the convenience store, but he denied he was armed with a weapon. He also contested that he used force or intimidation while committing the offense.

This court also noted that:

Defendant Ben James Thompson was convicted of armed robbery with the use of a firearm, a violation of La.R.S. 14:64 and 14:64.3, after a bench trial.
The trial court sentenced Defendant to twenty-five years at hard labor without benefit of probation, parole, or suspension of sentence. The trial court also sentenced him to an additional five years for using a firearm, which the court ordered to run consecutively to his sentence for armed robbery.

Id. at 375-76.

This court conditionally affirmed Defendant’s conviction and sentences but remanded the case to the trial court for an evidentiary hearing on the issue of whether Defendant validly waived his right to trial by jury. The hearing ordered by this court was held on November 15, 2012. At the conclusion of that hearing, the trial court found that Defendant knowingly and intelligently waived his right to trial by jury. Defendant appealed that ruling and is now before this court alleging that the trial court erred in finding that the State proved that he validly waived his bright to trial by jury. We find that this assignment of error lacks merit and affirm both the trial court’s ruling and Defendant’s conviction.

DISCUSSION

Errors Patent

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. An error patent review was previously conducted by this court in Thompson, 100 So.3d 875, and we will not repeat that review in this opinion.

Waiver of Trial by Jury

In his only assignment of error, Defendant contends that the trial court committed legal error and manifest factual error in finding that the State proved that he validly waived his right to trial by jury.

In State v. Bazile, 12-2248, pp. 17-19 (La.5/7/13), — So.3d -, 2013 WL 1880395 (footnote omitted), the supreme court discussed the waiver of the right to trial by jury as follows:

To be valid, a defendant’s waiver of his right to a jury trial must be knowing and intelligent. Adams [v. United States ex rel. McCann], 317 U.S. [269] at 277-278, 63 S.Ct. at 236 [87 L.Ed. 268 (1942) ]. “[Wjhether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case.” Id., 317 U.S. at 278, 63 S.Ct. at 241. The state constitution and Louisiana criminal procedure also require a criminal defendant’s waiver of his right to trial by jury to be both knowing and intelligent. See La. Const, art. I, § 17(a) and La.C.Cr.P. art. 780(A)....
... In this context, a criminal defendant’s jury waiver is deemed knowing and intelligent when he understands “that the choice confronting him is, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge.” United States ex rel. Williams v. DeRobertis, 715 F.2d 1174, 1180 (7th Cir.1983), cert. denied, 464 U.S. 1072, 104 S.Ct. 982, 79 L.Ed.2d 219 (1984); see also United States v. Sammons, 918 F.2d 592, 597 (6th Cir.1990); Sowell v. Bradshaw, 372 F.3d 821, 836 (6th Cir.2004), cert. denied, 544 U.S. 925, 125 S.Ct. 1645, 161 L.Ed.2d 485 (2005). That is all the defendant needs to know and understand. “Greater proof of knowing |sand intelligent waiver has been neither constitutionally nor jurisprudentially required.” State v. Johnson, 389 So.2d 1302, 1305 [ (La.1980) ]. Thus, the type of information the defendant must possess in order to make a knowing and intelligent waiver of the right to a jury trial relates not to matters of strategy, but rather to his knowledge of his constitutional rights. See United States v. Kelley, 712 F.2d 884, 888 (1st Cir.1983).
We hold a criminal defendant’s waiver of his right to trial by jury is knowing and intelligent when he demonstrates his understanding that he will proceed to trial before a judge upon that waiver. Information about the composition of the jury pool and any outstanding discovery, although of some strategic value, does not provide the defendant with any greater understanding of the constitutional right at stake.

At the hearing held on remand, Jan Rowe testified that he represented Defendant throughout the course of the proceedings. Rowe was questioned regarding Defendant’s waiver of his right to trial by jury as follows:

Q. When they did find him, did you and he speak about the right to go in front of a judge or a jury?
A. We did.
Q. And did you advise him that it would be a 12-man jury?
A. I’m sure I did.
Q. And you advised him that 10 of the 12 had to agree?
A. Correct.
Q. He wanted a judge trial?
A. I believe, when I mentioned the choice that he had, I believe he told me he wanted to think about it. This is my recollection. And I think maybe — it’s a little speculation, because my memory is vague; but I believe he called my office and told me that he wanted a judge trial. And at some point after that, I went to the jail and I talked to him about it, and he decided that’s what he wanted to do.

Rowe agreed that Defendant did not voice an objection to the bench trial while it was taking place. When asked if Defendant wavered in his request to be tried by a judge, Rowe responded: “Not to my recollection.”

| ¿Rowe was asked on cross-examination whether he had an independent recollection of advising Defendant that ten of twelve jurors must concur to render a verdict. Rowe responded: “I assume that I discussed that with him because I know how it works; so, if I’m explaining the option to anyone, I assume that I explain that to them. But can I vividly remember doing that? No.” There was no entry in the database of the public defenders’ office indicating that Rowe either discussed the jury trial waiver or the fact that it was irrevocable with Defendant. Rowe had no recollection of whether he advised Defendant that a waiver was irrevocable or whether a judge reviewed the waiver with Defendant.

Rowe testified that, to his recollection, he informed Defendant of his choices, and Defendant wanted to think about it. A few days later, Defendant called Rowe and said that he wanted to be tried by a judge. Rowe acknowledged that there was no language in the motion to waive jury trial that indicated that Rowe had discussed the jury makeup with Defendant or that a waiver was irrevocable.

Rowe was questioned by the judge and stated that he told Defendant what his options were and discussed the number of jurors with him. Rowe testified that he had no reason to think that Defendant’s decision was not intelligently made. On re-cross, Rowe admitted that he assumed he discussed the jury makeup with Defendant because he had done so in more recent cases.

Defendant testified that he and Rowe discussed whether he should elect a trial by jury or a bench trial. Defendant additionally testified that Rowe said that he would be tried by a jury of twelve of whom ten must concur to render a verdict. Defendant testified that he told Rowe that he was leaning toward a bench trial, and Rowe advised him to go ahead and sign the waiver. Defendant further testified that Rowe told him that he had until forty-five days before trial to withdraw the |fiwaiver. Defendant subsequently signed the waiver, thinking that he could withdraw it at any time up to forty-five days prior to trial. Defendant testified that about a week later, he was reading law books and discovered a case wherein a defendant was found guilty of armed robbery during a bench trial. He then called Rowe and said that he was not comfortable with a bench trial, and that he wanted to withdraw the waiver. Defendant testified that he had no idea that the judge had to approve the withdrawal of his waiver. Defendant also testified that the next time that he spoke to Rowe was after the forty-five days had lapsed, and, at that time, Rowe informed him that the judge had denied the request to withdraw the waiver. Defendant further testified that the judge never went over the waiver with him and that no judge informed him that the waiver was irrevocable.

When asked why he did not tell the judge that he wanted a jury trial, Defendant stated: “Because Mr. Rowe begged and — pretty much begged me not to say anything unless I was asked to speak by the judge.” Defendant was asked why he did not complain about the lack of a jury trial at the sentencing hearing, and he testified: “Well, when Mr. Rowe informed me that the waiver was denied by the judge of having the trial, I figured that was set in stone. I mean, I don’t know how that works. I thought that was a done deal and over with.”

The trial court found that the waiver of the right to trial by jury was made knowingly and intelligently and stated the following:

[Fjirst because Mr. Rowe, who is an experienced trial defense lawyer, has testified that he discussed fully and apprized Mr. Thompson of all of his options — discussed fully the situation with Mr. Thompson and apprized him of all of his options and said that it was up to him.
... In accordance with the defendant’s decision, he filed the motion in May, just before — apparently just before the deadline, five days, at most, before the deadline; and the trial was held as a bench trial in accordance with the defendant’s wishes.
|fiThat timing makes me not find— makes me find that the defendant’s testimony today is not credible, because he indicated that he did not want to sign the waiver but that he signed it, and it was submitted and filed by Mr. Rowe long before the deadline and long before he had the right to change his mind.
I think that he may — to give him the benefit of the doubt, he may have been mistaken, because I recall that he clearly said — in fact, he said it more than once — Mr. Rowe kept saying, you have until 45 days before to make this decision. Well, I think what Mr. Rowe was doing at that point is telling him the 45 days was upon them and that he needed to make that decision, and he did, and he made it at the last minute.
Secondly — or, thirdly, I find nothing in the law that would indicate specifically that the Court must conduct a hearing to determine whether the waiver is knowing and intelligent, certainly not at the time it’s filed 45 days before trial.
It’s very difficult to go back and prove that something was done knowingly and intelligently. I can do it at the time. In this particular case, all I have is Mr. Rowe’s testimony, Mr. Thompson’s testimony, and the record. I choose to believe Mr. Rowe and the record.

In brief to this court, Defendant paraphrases pertinent testimony as follows:

(1) Mr. Rowe: I didn’t tell Mr. Thompson, or don’t recall telling Mr. Thompson, that his waiver of a jury trial was irrevocable.
(2) Mr. Thompson: Mr. Rowe told me I should sign the waiver because I could always change my mind up to 45 days before trial. So I signed it [on May 19, 2011 — more than 45 days before trial. O.R. 130]. Then I told him — “about a week after he came and I signed the waiver” [i.e., after May 24, 2011, the date of the Motion and Order, but before the 45-day mark of May 30, 2011]— that I wanted to change my mind. Mr. Rowe came to see me the following week and now said it was up to the judge. Later he told me the judge denied the withdrawal of the waiver.

Defendant questions what basis the trial court had for determining that he was telling the truth about the jury composition and voting requirements but not about whether he was told about the judge having to approve a withdrawal of the waiver.

Defendant contends that assumptions are insufficient to carry a burden of proof. In support of this claim, Defendant cites Caridas v. Dahl, 311 So.2d 551 (La.App. 4 Cir.1975), a suit on a promissory note. Therein, the assumption of a plaintiff who claimed that he made a payment, but had no records to support his claim, was ruled insufficient to meet his burden of proof. Defendant notes that the State has the burden of proof and that Rowe’s assumption with no independent recollection would be insufficient to prove that he explained that ten of twelve jurors must concur to render a verdict without Defendant’s corroborating testimony. Further, Rowe’s lack of recollection about whether he told Defendant that he could withdraw his waiver was insufficient to prove that he explained this to Defendant when Defendant distinctly recalls that Rowe did not do so.

Defendant cites State v. James, 99-1047 (La.App. 5 Cir. 1/25/00), 751 So.2d 419, in support of his argument. Therein, the fifth circuit stated the following:

[A] waiver of a jury trial is never presumed. The evidence adduced at the evidentiary hearing shows no affirmative waiver of this right by the defendant. His former defense counsel presumed that James must have waived his right to trial, since a bench trial took place, and said that the record “speaks for itself.” But it is this presumption that the law does not allow. The evidence, at best, shows that Amstutz probably advised the defendant of his right to trial by jury. The evidence does not show that James waived this right, either knowingly, intentionally, or otherwise. Therefore, James’s conviction must be reversed, and the matter remanded for a new trial.

Id. at 422-23.

Defendant asserts that the issue in the case at bar is not whether he signed a waiver but whether Rowe adequately explained to him what he needed to know in order to make a knowing and intelligent decision to sign the waiver.

Defendant testified that he and Rowe did discuss whether Defendant should elect a trial by jury or a bench trial. Additionally, Rowe said that he thought Defendant would be tried by a jury of twelve of whom ten must concur to render a verdict. Defendant testified that he told Rowe that he was leaning toward a bench Rtrial and signed the waiver. Approximately a week later, Defendant changed his mind and wanted to withdraw his waiver.

Defendant’s testimony is sufficient to find that he was informed of and understood the choice to be judged by a group of people from the community or to have his guilt or innocence determined by a judge. Based on the supreme court’s ruling in Bazile, we find that Defendant knowingly and intelligently waived his right to trial by jury. Accordingly, this assignment of error lacks merit, and we affirm both the trial court’s ruling and Defendant’s conviction.

DECREE

The ruling of the trial court finding that Defendant knowingly and intelligently waived his right to trial by jury is affirmed, and Defendant’s conviction is affirmed for that reason.

AFFIRMED.


source: Caselaw Access Project

author: CARAWAY, J.

license: Public Domain

text:
    Hanh WILLIAMS, Plaintiff-Appellant v. CDY DEVELOPMENT CORPORATION and Kai S. Change Individually as President and Owner, Defendant-Appellees. Hanh Williams, Plaintiff-Appellant v. Richard R. Ray, Defendant-Appellee.
    Nos. 48,359-CA, 48,360-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 7, 2013.
    Rehearing Denied Sept. 19, 2013.

      Trina T. Chu, Shreveport, LA, for Appellant.
    Joseph W. Greenwald, Jr., Shreveport, LA, for Appellees, CDY Development Corporation and Kai S. Chang.
    Herschel E. Richard, Jr., Jason B. Nichols, Cook, Yancey, King & Galloway, Shreveport, LA, for Appellee, Richard R. Ray.
    Before WILLIAMS, CARAWAY and LOLLEY, JJ.
   CARAWAY, J.

Bln this legal malpractice action, the defendant attorney prepared a commercial lease. Plaintiff did not direct the attorney’s work on the lease but relied upon a co-tenant who executed the lease with her. When a dispute arose between the plaintiff and the landlord over the term for the lease and its optional • extension, plaintiff sued the landlord and the attorney in these consolidated actions. The attorney pled the peremptory exception of peremption. Following trial of the exception, the trial court ruled that plaintiff was aware of the disputed optional term for the lease for over one year prior to the filing of the malpractice action. The peremptory exception was granted. For the following reasons, we affirm.

Factual and Procedural Background

In 2006, the plaintiff, Hanh Williams (hereinafter “Williams”), and two other tenants, Alvin Gore (hereinafter “Gore”) and Jack Yost (hereinafter ‘Yost”), were renting office space in Shreveport at 315 Fannin Street. The building was owned at the time by the Downtown Development Authority (hereinafter “DDA”). Aside from a common address, Williams, Gore, and Yost had a business arrangement in which they shared office expenses and common areas.

In the spring of 2006, the DDA was negotiating the sale of the Fannin building to CDY Development Corporation (hereinafter “CDY”). Williams, Gore, and Yost decided to execute a second lease with the prospective new owner, CDY, in order to remain in the building. In furtherance of that goal, they attended a DDA meeting addressing the CDY sale. At this meeting, 12Joe Greenwald (hereinafter “Green-wald”), CDY’s agent, agreed to enter a four-year lease with Gore, Williams, and Yost. DDA’s attorney memorialized this agreement in a March 30, 2006 letter to Greenwald. The letter reiterated the terms of the agreement as follows:

We’ve been asked by Alvin Gore, Hanh Williams, and Jack Yost to offer this letter of agreement to memorialize the discussions held at the Downtown Development Authority Meeting on March 28, 2006. According to our understanding, you, on behalf of and with full authority from your client, have agreed to lease to these three individual[s] the three offices that they now occupy at 315 Fannin Street at the same monthly rental rate the DDA now collects, that being $150.00 per office for a total rental payment of $450.00. This lease shall have a term of four years, beginning when your client takes ownership of the building.

Williams, Gore, and Yost received a copy of this letter.

With this agreement, Gore hired the law firm, Perkins & Associates, to draft the lease agreement with CDY. Gore’s prior attorney, Mark Perkins, was unavailable so Gore was referred to the defendant, Richard Ray (hereinafter “Ray”), an associate in the fern. CDY and the tenants desired a four-year lease with the same monthly rent as previously paid to DDA. Gore, however, testified that he desired an option to exit the lease after two years. “We had a four-year lease with an option to get out.”

On April 13, 2006, Ray contacted Green-wald and the attorney handling the CDY’s closing with DDA. His letter stated that:

It is my understanding that the new owner has agreed to allow some of the current tenants (Alvin Gore, Hanh Williams, and Jack Yost) to remain in the building for four (4) more years. We were retained by Alvin Gore to prepare a simple lease agreement that documents the intent of the parties.

Ray drafted the lease (hereinafter the “Fannin Lease”) and attached it to the April letter. Williams stated that she also received a copy of this letter and |sthe Fannin Lease. While Yost would benefit, he was not a named lessee on the Fannin Lease. Gore and Williams were the only named “lessees” in the Fannin Lease.

The term and rent of the Fannin Lease was stated as follows:

This lease shall be for a minimum of 24 months beginning on the date the deed transferring ownership of the property to CDY Development Corporation is recorded, with an option for an additional 24 months beginning 24 months after the date of recordation of the deed. After 48 months rental, this tenancy may be terminated at any time by mutual consent of the parties, or by either party by giving written notice to the other not less than one full calendar month before the date of termination. Any provision of this lease may be changed by Lessor in like manner. Any hold-over after termination date has passed shall- be considered at option of Lessor as automatic renewal of lease.
Lessee agrees to the monthly rental of $150.00 per month per office (3 offices-$450.00 total per month) payable on or before the first day of each succeeding month thereafter. Payments are to be made to CDY Development Corporation. Lessees will have a period of 10 days to make said rental payments.
The signing of this lease by the Lessor and Lessees acknowledge the receipt of a copy of this lease.

Gore and CDY executed the Fannin Lease on April 26, 2006. DDA sold the property to CDY on May 4, 2006, and the deed was recorded the same day. Thus, May 4, 2006, is the effective date of the Fannin Lease. Williams, however, did not sign the Fannin Lease until May 30, 2006.

After acquiring the property, CDY immediately began extensive construction and renovations of their newly acquired building. When disputes arose regarding these renovations, the parties to the Fan-nin Lease came to an agreement in September. CDY agreed to allow Gore, Williams, and Yost to relocate to another office building on Youree Drive until the renovations were completed. Additionally, CDY agreed to pay any ^additional cost in rent as a result of this move. Thereafter, CDY sent a monthly check payable to Gore, Williams and Yost in the amount of $362.49, the added rental expense.

In early 2008, Gore’s health problems led him to leave the Youree Drive office and work at home. Thereafter, Gore contacted CDY and informed them to send his share of the reimbursed rent directly to his home address. Nevertheless, as a result of a dispute over CDY’s continued joint payment to the parties, Gore’s attorney, Perkins, sent the following letter to Williams on April -14, 2008, on behalf of Gore:

Mr. Gore has received a notice regarding payment for the months of February & March for space at 3772 Youree Drive, Shreveport, Louisiana.
There was no lease regarding that property and Mr. Gore has not utilized the property since February 1, 2008....
Furthermore, we know CDY was told to direct payments due to Mr. Gore to Ms. Williams. This appears to be misappropriation of funds, but we assume you will immediately reimburse Mr. Gore.
Ms. Williams: You know that I have defended and prosecuted other matters you have been involved (Kozak). So you know I would relish the opportunity to address you in court again; therefore, leave Mr. Gore alone or be prepared to litigate this matter.

After receiving this letter, Williams filed a disciplinary complaint on April 24, 2008, with the Louisiana Attorney Disciplinary Board (hereinafter “LADB”) agajnst Perkins. Since Perkins & Associates drafted the Fannin Lease, she alleged that Perkins had a conflict of interest by threatening litigation against her for matters arising out of the Fannin Lease. She attached the Fannin Lease -with her complaint.

| .Williams alleges that CDY failed to send a rental reimbursement check for the Youree Drive office “after April 2008.” Gore testified that he also did not receive a reimbursement check beginning May or June 2008. The last reimbursement letter filed in the record is dated February 1, 2008. This CDY letter addressed to Gore, Williams and Yost states that:

Following our previous discussions of your relocation to Youree Drive, I am enclosing a check in the amount of $362.49 made payable to you, Mr. Gore and Hanh Williams as reimbursement for the rent for the month of February, 2008, as stated in Joe Greenwald’s letter of September 12, 2006 (copy enclosed). I will send a check each month in the amount of $362.49 until you relocate back to the Fannin Street building or the term of your lease expires.

On May 4, 2008, the original 24-month period for the lease expired without the option for an additional 24 months being addressed by the parties. On June 19, 2008, Greenwald, on behalf of CDY, sent Williams the following letter in reference to her prior attempt to exercise the option:

Dear Hanh:
Please be advised I am in receipt of your correspondence this date. According to the terms of the subject lease the period for exercising the two (2) year option expired prior to the receipt of this correspondence. Accordingly, your request to renew the lease is denied.

Williams’ prior letter to Greenwald concerning the option/renewal was not filed in evidence.

Williams subsequently filed suit against CDY on January 22, 2009, asserting that the Fannin Lease was intended to extend for four years. CDY filed its answer and asserted that the two-year CDY lease had expired. On May 14, 2009, Williams also filed the action now pertinent to this appeal, | (¡asserting legal malpractice against Ray. Ray’s motion for consolidation of the two cases was granted.

Responding to Williams’ suit, Ray filed a peremptory exception of peremption and/or prescription. At the hearing on the exception, Gore, Perkins, and Williams testified. Gore testified that Ray drafted the Fannin Lease exactly as he requested. Gore testified that he desired a four-year lease, but he asked Ray to include an option to get out of the lease after two years. Gore testified that he understood that the option was not automatic but had to be exercised. Gore also testified that:

Well, it was going to be a total of 4 years unless they were to say we got office space ready for y’all again; you can move back into our building. And we didn’t want to move back again. It gave us an option.

Regarding the legal fee for Ray’s services, Gore paid the bill for the Fannin Lease. He explained that “we shared a lot-of expenses back and forth through things. • And they may have reimbursed me.” Significantly, Gore testified that Williams was aware of the lease’s term and option and even agreed that it “would be nice to have an out just in case.”

Williams testified that she did not read the Fannin Lease thoroughly prior to signing it. “But I read the letter that Richard Ray — when I pick up the lease, it said that this was to be 4 years.” Williams stated that she became aware that the Fannin Lease was not for four years only when CDY scheduled Ray’s deposition in March of 2009. Williams testified that she is a financial advisor at Chase Investment Services and holds a securities license.

17At the end of the hearing, the trial court granted Ray’s peremptory exception. The court noted that Williams is an educated person who should be held to have read the document she signed. The trial court also pointed to Williams’ controversy with Ray’s law firm in April 2008 concerning the LADB complaint, as indicative of her knowledge of the provisions of the Fannin Lease.

As a result, the trial court held that Williams’ suit against Ray was filed over one year from Williams’ knowledge of the option. From this adverse ruling, Williams appeals.

Discussion

La. R.S. 9:5605 is the legal malpractice peremption statute. It provides that:

A. No action for damages against any attorney at law duly admitted to practice in this state ... whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. ... The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.

Thus, legal malpractice actions must be filed no later than one year from the date the plaintiff discovered, or should have discovered, the alleged malpractice or three years from the date of the alleged malpractice, whichever comes first. McGuire v. Mosley Rogers Title Co., L.L.C., 43,554 (La.App.2d Cir.9/17/08), 997 So.2d 23, writ denied, 08-2728 (La.1/30/09), 999 So.2d 757; Brumfield v. McElwee, 07-0548 (La.App. 4 Cir. 1/16/08), 976 So.2d 234. Legal malpractice is not perempted if it is brought within one year of the date of discovery and the record shows that the claimant was reasonably unaware of malpractice prior to the date of discovery and delay in filing suit was not due to willful, negligent, or unreasonable action of the client. McKinley v. Scott, 44,414 (La.App.2d Cir.7/15/09), 17 So.3d 81, 84; Waldrop v. Hurd, 39,855 (La.App.2d Cir.6/29/05), 907 So.2d 890, 893 citing Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502; Ledbetter v. Wheeler, 31,357 (La.App.2d Cir.12/9/98), 722 So.2d 382, 385.

The party raising an exception of prescription or peremption ordinarily bears the burden of proof at the trial of a peremptory exception. However, when prescription is evident from the face of the pleadings, the plaintiff bears the burden of showing the action has not prescribed. Scranton v. Ashley Ann Energy, L.L.C., 46,984 (La.App.2d Cir.4/11/12), 91 So.3d 1174, 1178-79, writ denied, 12-1345 (La.9/28/12), 98 So.3d 846. When evidence is introduced at the hearing on the peremptory exception of prescription, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. McKinley, supra, citing Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261; Alexander v. Fulco, 39,293 (La.App.2d Cir.2/25/05), 895 So.2d 668, 674, writ denied, 05-0781 (La.5/6/05), 901 So.2d 1107.

| cThe date of discovery is the date the negligence was discovered or should have been discovered by a reasonable person in the plaintiffs position. Teague v. St. Paul Fire & Marine Ins. Co., 07-1384 (La.2/1/08), 974 So.2d 1266. Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. Percy v. State, E.A. Conway Memorial Hasp., 478 So.2d 570 (La.App. 2d Cir.1985). Constructive knowledge is whatever notice is enough to excite attention and put an injured party on guard and call for inquiry. Campo, supra at 510. The ultimate issue is the reasonableness of the tort victim’s action or inaction, in light of his education, intelligence and the nature of the defendant’s conduct. Id.

Since the merits of the controversy over Ray’s representation of Williams were not the subject matter of the peremptory exception, we may assume the attorney-client relationship between the parties as Williams alleges. The alleged event at the center of the malpractice claim is the termination of the Fannin Lease on May 4, 2008. Dispute regarding the termination of the lease remains in the consolidated action against CDY. Williams’ suit against Ray was filed on May 14, 2009, over a year after the Fannin Lease’s disputed termination date. Thus, we consider that the one-year period of La. R.S. 9:5605 is evident on the face of the allegations as having run, and that Williams had the burden of showing that she could not have discovered the alleged flaw in the Fannin Lease before May 14, 2008.

Williams asserts that the references in the Fannin Lease to multiple “24 months” periods did not alert her that the lease term was less than four |1f)years. She claims the Fannin Lease is ambiguous, creating different interpretations for the lease term and the manner of execution of the option. In June of 2008, CDY informed her of its position that the Fannin Lease had terminated. Yet, Williams maintained at trial that she did not understand Ray’s failure of performance until 2009.

In his defense, Ray urges that certain facts were sufficient to call for inquiry by Williams. A most important fact dispute which the trial court resolved in favor of Ray concerned Williams’ initial knowledge of the option. Gore testified that in 2006, he and Williams discussed the option and that she agreed that “an out” was desirable. The “out” is expressed in the written lease as the option right falling between the two 24-month periods. From Gore’s testimony, the trial court could discredit Williams’ claim that she did not read or understand the Fannin Lease when she signed it in 2006.

Additionally, Gore’s sole direction of Ray regarding the confection of the Fannin Lease and his later discussion with Williams evidences Williams’ duty of inquiry to obtain from Ray, Gore or the lease itself knowledge about the option. Gore testified to his understanding that the option had to be exercised.

CDY’s discontinuance of reimbursement payments is another fact showing Williams’ knowledge regarding the disputed 2008 renewal of the Fannin Lease. She alleged in her petition that “after April 2008,” CDY stopped making the monthly reimbursement payment to her and the others for the Youree office rent. CDY’s various reimbursement letters, including | nits February 1, 2008 letter, were filed in evidence. All were dated on the first day of the month and included a check for reimbursement. There is no letter in evidence for April, and Williams clearly admits she did not receive reimbursement from CDY on May 1, 2008. This was immediately before the disputed option time for the Fannin Lease. The lease arrangement was therefore in dispute by that time.

Finally, despite her burden of proof, Williams did not produce her letter to CDY which prompted CDY’s June 19, 2008 letter disputing her right to renew the Fannin Lease. The actual date of her earlier letter in June or even before is unknown. Nevertheless, the fact that she requested the renewal of the Fannin Lease at that time demonstrates her ability to conclude that the Fannin Lease was not for a four-year term and that her action for renewal was required. Her claim that she could not discover the deficiency in Ray’s actions in preparing the lease until 2009 is discredited by her 2008 letter which was not produced at trial.

The trial for the exception of prescription and peremption is an evidentiary proceeding. La. C.C.P. art. 931. The findings of fact by the trial court at such trial of the exception are subject to our manifest error review. The present determination of Williams’ knowledge of Ray’s actions, whether actual or constructive, clearly involved the trial court’s credibility rulings, and the trial court’s findings may not be overturned as clearly wrong.

11⅞Conclusion

For the above reasons, the trial court’s grant of the peremptory exception is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.

      . On January 15, 2009, LADB ruled that Gore was the only client of Perkins & Associations and that Williams was simply a third party beneficiary of the firm’s services.


author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Elba Esperanza RAMIREZ v. Reyna RAMIREZ.
    No. 13-CA-166.
    Court of Appeal of Louisiana, Fifth Circuit.
    Aug. 27, 2013.

      Miguel A. Elias, Attorney at Law, Ken-ner, LA, for Plaintiff/Appellant.
    Ron A. Austin, Matthew P. Chenevert, Ramona G. Fernandez, Attorneys at Law, Harvey, LA, for Defendant/Appellee.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   FREDERICKA HOMBERG WICKER, Judge.

| ?Elba Esperanza Ramirez (“Elba”), appeals the trial court’s November 26, 2012 judgment granting her sister, Reyna Ramirez (“Reyna”), the sole custody, care, and control of Elba’s minor child, Carlos Enrique Ramirez (“Carlos”). Elba argues the trial court erred in this judgment because: it did not consider whether the custody award to Reyna would result in substantial harm to the minor child; it did not evaluate all of La. C.C. art. 134’s factors to determine the best interest of the child; and it did not determine whether appellee would provide the minor child a wholesome and stable' environment. For the following reasons we find appellant’s assignments to be without merit and affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

The instant litigation commenced on April 24, 2012, when Elba filed an “Application for Writ of Habeas Corpus and Emergency Motion for Return of Child” which sought to force her sister, Reyna, to return Elba’s biological son, Carlos. On April 27, 2012, the trial court ordered Reyna to appear with Carlos. On May 16, 2012, a hearing on this matter was continued because Reyna, had not |¿yet been served. Reyna was allegedly served with this application and motion on May 31, 2012.

On June 22, 2012, Reyna failed to appear at a hearing on this matter. The trial court entered an interim judgment ordering the physical custody of Carlos be returned to Elba. Pursuant to this order, Elba and a Jefferson Parish Sheriffs Officer went to Reyna’s home to attempt to remove Carlos. After the officer met and listened to Reyna however, Carlos was not removed from her home.

On July 2, 2012, Reyna filed an expedited motion to vacate the June 22, 2012 judgment and for sole custody of Carlos. Reyna alleged that she had failed to appear in court because she had not been served with the original petition and was not given notice of the June 22, 2012 hearing date. Reyna’s counsel alleged that the May 31, 2012 service was made on the wrong address and that therefore, the trial court’s June 22, 2012 order should be vacated. On July 3, 2012, the trial court denied Reyna’s motion to vacate and set Reyna’s motion for sole custody for July 23, 2012.

After a hearing on July 23, 2012, the trial court vacated its June 22, 2012 order and awarded Reyna temporary custody of Carlos with supervised visitation by Elba; it also issued a temporary restraining order preventing either party from removing the child from Louisiana. The court also ordered that this matter be revisited on September 5, 2012. That hearing date was continued to November 2, 2012.

On November 2, 2012 and November 20, 2012, trial was held on Reyna’s petition for sole custody. At trial, Reyna called three witnesses: herself, her friend, Brhinia Vivas, and her daughter, Yesenei Dubon. They testified as follows:

|4Reyna Ramirez testified that her ten year old nephew, Carlos, has lived with her from the time he was born in Texas on January 27, 2003, and she has been his caregiver and acted as his mother since he was three months old. Reyna became Carlos’ caregiver in May, 2003 after his mother, Elba was arrested for shoplifting at J.C. Penney in Conroe, Texas and deported to Honduras. Although Elba has been back in the United States since 2009, Reyna continues to pay for nearly all of Carlos’ needs including food, clothing and shelter, medical care and school needs.

Reyna testified that she came to the U.S. the first time in 1998, living first in Conroe, Texas. In 1998 when she came to the U.S., her three children, Yesenei, Lis-ette and Danny, remained in Honduras for a year. They lived there with and were cared for by her adult daughter, Yesenei, and Yesenei’s husband. Her three children followed her to Texas in 1999. In 1998, when Reyna left for the U.S., she was also caring for Elba’s son, who she and her family called Luiz, then about eight months old. Reyna continued to live in Conroe, Texas until Hurricane Katrina struck. In 2006, after Hurricane Katrina, Reyna and her family moved to New Orleans because of the job market. She lived at first in New Orleans with Carlos, her friend, Brhinia Vivas, and Lisette, and thereafter moved to Gretna. Recently she purchased a four bedroom home in New Orleans where she lives with her partner, Hilberto; Carlos; her daughter, Lisette; Lisette’s partner, Marvin Mendoza; and their three children.

While Reyna first entered the United States illegally, in 1998 she achieved legal status through Temporary Protective Status, a work permit, through which she has remained in the United States.

In 2003, while Reyna was living in Con-roe, Texas, her sister, Elba, came to the United States from Honduras illegally. Elba was pregnant. Upon her arrival, |sElba lived with Reyna and her family. Elba did not work while she was pregnant or thereafter before her arrest. Reyna supported Elba throughout her pregnancy and after Elba’s child, Carlos, was born. Reyna also took Elba to her pre-natal doctor’s appointments and saw to her care.

On May 21, 2003, after Elba had been with Reyna for a few months, Reyna received a call from the police telling her that Elba had been arrested for shoplifting in a J.C. Penney store. At the time Elba was arrested, she had three-month-old Carlos with her. The security people at J.C. Penney turned the baby over to Reyna. Elba was held for about a month and a half, before being deported back to Honduras. When Elba was being deported, Reyna told her she would take care of Carlos until Elba returned to the U.S.

Between 2003, when Elba was deported, and 2009, when Elba returned to the United States, she provided no financial support for Carlos, was not in contact with Reyna, and sent no cards, gifts, or correspondence to Carlos. While Elba has stated that she could not contact Reyna because she did not have Reyna’s phone number or know where Reyna lived, Reyna indicated that she has only changed her phone number one time in the last ten years and she gave that information to her mother and asked her mother to give it to Elba. Reyna stated she has maintained her same cell phone number throughout the years. Reyna has moved two times in the last five years but knows the person who lives at her former residence in Con-roe, Texas, who has maintained the same phone number Elba knew in 2003. While Elba was living outside the United States, Reyna asked her mother about Elba because she wanted Elba to have a relationship with Carlos.

In 2009'Reyna took Carlos to Honduras to meet his mother, Elba, and his grandmother. They stayed with Reyna’s mother in Honduras for twenty-two days. During their first ten days in Honduras, Elba was with them for three days, leaving | ^thereafter for Mexico while Reyna and Carlos remained in Honduras for the balance of their trip. Reyna covered Carlos’ expenses for the trip.

In November 2009, Elba returned illegally to the United States. After her arrival, Elba lived for about a month and a half in Gretna with Reyna; her partner, Gabriel; Carlos; Reyna’s daughter, Lis-ette; Lisette’s husband, Marvin; and their three children. Reyna allowed Elba to live in her house so that Elba could be close to Carlos. During this time, Elba did not help with Carlos’ needs. She neither helped financially nor with his school-related necessities. According to Reyna, after she helped Elba get a job in the Carrollton neighborhood of New Orleans, Elba left Reyna’s home to live in the Carrollton neighborhood to be closer to work. After Elba moved, she continued to see Carlos frequently for some period of time

According to Reyna, between 2010, when Elba moved out of Reyna’s Gretna home, and 2012, when Elba filed suit, Elba never said she wanted to take her child back to raise him. For a period Elba came by Reyna’s to visit Carlos once or twice a month. Elba worked during that period but did not contribute to Carlos’ support either financially or by buying him necessary items such as clothes, shoes or school supplies. Further, while Elba was in New Orleans for Carlos’ birthday, she did not attend his party. After the last court hearing, however, Elba purchased half of Carlos’ school supplies and her partner bought him shoes.

According to Reyna, she first learned that Elba wanted custody of Carlos in 2012 when Elba showed up at her front door with her grandson, her husband, and a policeman, and demanded that she immediately release Carlos.

Reyna testified that at some point she learned that when Carlos stayed at Elba’s house he shared a bed with Elba and her partner. According to Reyna, when she questioned Elba about this practice, Elba became angry and threatened |7her. After the custody proceedings began, Elba told Reyna, “[y]ou’re going to pay for this.” According to Reyna, six or seven months before the custody trial Elba told her she would prefer to see Carlos dead to living with Reyna.

In discussing Elba’s history, Reyna testified that Elba had six children, Henry, Danny, and Leslie by one man, and Luiz/Andre, an unnamed girl baby, and Carlos by other men. According to Reyna, after Elba’s first three children were born, Reyna’s mother raised them. While Elba was pregnant with Luiz/Andre, her fourth child, Elba was unemployed and lived with Reyna and her family. After Luiz/Andre was born, Elba left Luiz/Andre with Reyna, who cared for him until Reyna left for the United States in 1998. Thereafter, Reyna’s daughter, Yesenei Dubon, cared for Luiz/Andre for a period. At some point, Elba returned and retrieved Luiz/Andre, taking him to his paternal grandmother to care for him. At some later point, Luiz/Andre was removed from this grandmother’s home and raised by Elba’s daughter, Leslie. Reyna testified that after Luiz/Andre was born Elba became pregnant again. She gave birth to a baby girl whom she did not name and gave away to a stranger.

As to her own history, Reyna testified that she was married in Honduras to Hector Manual and also has a partner here, Hilberto Origano. She separated from Hector Manuel in 1992. Reyna first came to the U.S. in 1998. Her daughter, Yese-nei, was born in 1978 and came to the U.S. in 1999. They lived together in Honduras and here in the U.S. Her daughter, Lis-ette, was born in 1980 and Darlene was born in 1983. Reyna entered the U.S. illegally in 1998 and helped her children do the same. A year later, they went to Tapachula, Mexico, where they obtained visas to enter the U.S. through Houston. Reyna has never been arrested and has been with Hilberto for five years. Neither Hilberto nor Marvin has a criminal record. When questioned about Hilberto’s drinking, Reyna testified that |8he drinks at the end of the week. Reyna testified that shé goes out to clubs occasionally, leaving the children at home with Lisette and Hilber-to. Reyna works at El Ranchito, a store and restaurant which Yesenei owns. Reyna works Thursday through Sunday from either 9 a.m. to 3 p.m. or from 3 p.m. to 9 p.m. earning $375.00 to $400.00 per week. She is able to pick Carlos up at school daily because her daughter allows her to leave the restaurant. Because Reyna and Lisette work opposite schedules, someone is home with the children.

With regard to her care of Carlos, Carlos has attended two schools, Terrytown and Boudreaux. Currently, in their four bedroom New Orleans home, Carlos has his own bedroom. He does share a bathroom with six other people. Hilberto is helpful raising Carlos. He buys him clothes, shoes and snacks but does not discipline him. Reyna’s daughters also help Carlos with his school work. Reyna corrects Carlos as any other mother would.

As to building Carlos’ relationship with Elba, according to Reyna, she has always told Carlos he has two mothers, one in Honduras and one in the U.S. She testified that she has unsuccessfully encouraged Elba to have a relationship with Carlos and to learn about him. Elba knows neither Carlos’ teachers nor doctor. During this litigation, Elba went to Carlos’ school and tried to change his school, for no discernible reason. As to the time Carlos spent with Elba, when Elba began taking Carlos overnight, he would return angry, “[i]n a bad way.” Reyna allowed Carlos to sleep at Elba’s house unsupervised until this litigation began and Elba threatened her. Because of Elba’s threats, Reyna now takes Carlos to Elba’s house or meets Elba someplace else. Elba’s work schedule limits the time she can spend with Reyna and Carlos somewhat. Since school began, Reyna takes Carlos to see Elba after school on Wednesday, Saturday and Sunday, as ordered by the court. The only disruption in visitation was during Hurricane Isaac, when Carlos 19evacuated to Houston with Reyna, and Elba evacuated to San Antonio. According to Reyna, she would have given Carlos back to Elba, six years ago, but Elba is not a good mother and Carlos has been raised with an entire family.

Reyna called Brhinia Vivas, her friend of fifteen years. Brhinia and Reyna were neighbors in Conroe, Texas and began babysitting each other’s children there. Brhinia also knew Elba when she was pregnant with Carlos and living with Reyna. In May 2003, Brhinia went to J.C. Penney with Reyna to collect Carlos after Elba was arrested. When Elba was arrested she was with Reyna’s daughter, Lisette. Brhinia and Reyna, moved to New Orleans together in 2006 where they continued to live next door to each other. Brhinia continued to babysit Carlos when Reyna worked. Throughout the time Brhinia has known Reyna, she has been a good mother to Carlos and has supported him well.

Reyna also called Yesenei Dubon, her 33-year-old daughter. Yesenei corroborated both her mother’s and Brhinia Vivas’ testimonies. • She also testified that her mother was ' a fine mother to Carlos. Yesenei corroborated the testimony that Elba did not contact them or help support Carlos between 2003 and 2009. Elba worked for Yesenei at El Ranchito for a year or two but left because she was doing things not conducive to the business’ requirements. When Elba left El Ranchito she threatened Yesenei with a knife and told Yesenei she would pay for what- was going on. The day before Yesenei testified Elba again told her that whether Elba won or lost “you are going to pay for it.” Yesenei also corroborated Reyna’s testimony regarding Elba’s personal history with regard, to her other children.

While Yesenei testified that she sees-her mother daily, she testified that she does not know about her- mother’s current personal life. She testified that she does Imnot know whether her mother has a partner with whom she lives. She also testified that she does not know if Lisette was with Reyna when Elba was arrested.

After Reyna rested her case, Elba called three witnesses; herself, her daughter, Danny Ylibeth Maldonado, and her daughter’s husband, Pedro Luiz Gutierrez.

Elba testified that she currently lives in Terrytown with her husband, Alex Matute, who she has been with for three and a half years. She works at a restaurant as a cook, earning $380.00 per week. Her husband, Alex, works as a yard man earning $600.00 per week.

As to the J.C. Penny arrest, Elba testified that she was never convicted. Reyna talked her into not fighting deportation, telling her that the faster she got to Honduras the faster she could come back to the U.S. When she was arrested, Elba was with Lisette. Elba explained that Lis-ette tricked her. She took Elba’s diaper bag and put two bras in it. Lisette also put shorts on under her pants. When the officers checked the diaper bag Elba did not know the bras were there.

After Elba was deported she tried unsuccessfully to re-enter the U.S. three times, starting in 2005, before successfully entering in 2009. She wanted to come back to the U.S. to be with her last son. She did not have the option of taking Carlos back to Honduras with her. She never intended to abandon him. Elba tried to get her mother to give her Reyna’s contact information but she refused. When Elba got a number the call would not go through.

Elba testified that after she returned in 2009 and lived with Reyna, she left Reyna’s house because Reyna became jealous of Elba’s relationship with Carlos. Reyna told Elba there were too many people living in the house and she would have to go. Elba did not take Carlos with her when she left Reyna’s house for Carroll-ton, because Reyna told her she would be risking immigration catching her | n again. Reyna also said she could not have Carlos because she did not drive and so could not get him to school and to the doctor.

After Elba moved out of Reyna’s house, Elba would take Carlos to her house. While Carlos was with Elba at her house, Elba told him that she was his mother. When this happened Reyna told her to stop putting such things in the child’s head. After this when Elba would try to pick Carlos up at Reyna’s house, Reyna would lie and say she was not at home. Reyna also no longer let Elba be alone with Carlos. Since this litigation began, Elba only sees Carlos for short periods of an hour or so. Reyna is not obeying the court’s order. Often Reyna says they cannot get together because she has to work. She will not let Elba take him to church because of work. During the Hurricane Isaac evacuation Reyna would not return Elba’s calls and when they returned to Gretna, Reyna told her they could not get together because she had no water or lights. Elba checked and it was a lie. Elba cannot go to Reyna’s home now because she does not know where Reyna lives. They meet at McDonald’s or wherever Reyna says. Reyna will not allow Elba to pick Carlos up from school. Carlos is confused because Reyna told him she gave birth to him. Carlos told Elba that Reyna told him Elba was trying to kidnap him. Elba wants to be a part of Carlos’ life but Reyna will not permit it. Elba is afraid of Reyna because she has threatened to call immigration.

Elba further testified that she has been buying lots of clothes, shoes and things for Carlos since she has been back but Reyna does not use them because they are not “name brand.” But, Carlos gave her a paper with her name on it to thank her.

As to the occasion on which Elba, her husband, her grandson and the police went to Reyna’s to collect Carlos, Reyna told her granddaughter to tell the police, |12“Tell them that it’s a bad person, and that the child does not know her, and to please leave from here.” So the police would not let her take Carlos.

She also testified that she went to Carlos’ school and tried to change him to another school, but the school would not permit it without Reyna. Elba admitted that she does not know what grade Carlos is in.

Elba has five children. Nathalie Maldonado was the father of her first three children. They are not divorced. She left because he beat her. She had two other children, Andre Ardone and Carlos. Luiz’s name is really Andre but Reyna changed it to Luiz when she was caring for him. Her older children lived with her mother while she worked out of town but she came home to her mother’s regularly, saw her children all the time and supported them financially. Luiz/Andre currently lives in Louisiana near Elba. After Luiz/Andre was born, Elba lived with Reyna for eight months and called the baby Andre. She let Reyna keep the baby for three months while she went to “Morazan” to travel. Reyna did not want to give him back. Reyna changed the baby’s name. It was not, as Reyna said, that Elba did not name him or register him and so Reyna had to do it.

Reyna took Carlos to Honduras in 2009 because Elba asked her to. While there, Reyna would not allow Elba to see him alone because she was jealous. It was Reyna who suggested that Elba go to Mexico to try to get across the border again. Reyna said they would see her in the U.S.

Elba testified that if the court gave her custody of Carlos she would provide him with a stable home. She and her husband live in a two bedroom apartment with a bedroom ready for Carlos. Her daughter would help her with him while she works. She loves all of her children and struggled for them. She had no baby girl whom she gave away. No court ever took any of her children from her. She does 11snot want Carlos for money. He is her last son and she wants him for love. Reyna has never asked her for money for Carlos but she would have provided it.

As to the stability of Reyna’s home, Elba testified that Hilberto is drunk all of the time, that they drink at parties, and Reyna goes out to clubs with her daughters and leaves Carlos with Hilberto. Elba saw Reyna’s son-in-law, Melvin, hit Carlos and he tried to hit her. That was why she left Reyna’s house. Too many people live at Reyna’s and it is not healthy.

After she finished testifying, Elba called Danny Moldonado, her daughter. Danny testified that she went to clubs with Reyna and her daughters while a drunk Hilberto cared for Carlos. She believes Hilberto is a drunk, having seen him drunk many times, and that Reyna drinks and drives all the time.

When Danny told Carlos she was his sister Carlos said, “I got to go because my mom would scold me, and she told me not to talk to you guys.” That occurred about twelve days before Danny’s testimony. Danny thinks Reyna treats Carlos poorly in-part because she would not let him have a water gun Danny bought him because it would get water all over the house.

Elba and Alex get along well and Alex gets along with Carlos. Danny allows her mother to care for her baby. Danny began living with Elba in Honduras when she was thirteen but her mother was always around before that. Her mother worked to provide for them.

Pedro Luiz Gutierrez testified that he is Danny’s husband. He has seen Elba and Carlos together four times and they did well. He was present with Elba when the police accompanied them to Reyna’s to collect Carlos. While they were there Reyna told Carlos that Elba was not his mother and Elba cried. Pedro further testified that Carlos has told him that he loves Elba and that every time Pedro has spoken to Hilberto, Hilberto has been drunk.

|14At the conclusion of the trial, the court took the matter under advisement. The trial court rendered judgment on November 26, 2012, which, in relevant part, ordered that “Reyna Ramirez is granted the sole custody, care, and control of said minor, Carlos Enrique Ramirez pursuant to La. C.C. art. 138 [and that] Elba Esperanza Ramirez is granted liberal visitation with said minor, Carlos Enrique Ramirez.” The trial court did not issue separate reasons for judgment in connection with this judgment. Elba now appeals this judgment.

DISCUSSION

In this appeal, Elba argues that the trial court erred in its November 26, 2012 judgment, both in its application of the law and in the conclusion it reached. In each assignment of error, Elba argues the trial court erred when it granted sole custody of Carlos to Reyna, with only “liberal visitation” to Elba. In her assignments, Elba argues the trial court erred: first, because it did not consider whether the award of custody to Elba would result in substantial harm to the minor child; second, because it did not evaluate all of the factors set in La. C.C. art. 134 for determining the best interest of the child; and third, because it failed to determine whether Reyna would provide a wholesome and stable environment for Carlos.

In this case, Reyna, a non-parent, petitioned for sole legal custody of Carlos, a minor child, and made. Elba, the child’s biological parent, a defendant. The determination of Reyna’s petition is governed by Louisiana Civil Code article 133, which provides that:

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

La. C.C. art. 133.

| iaThis article provides for a dual test for divesting a biological parent of the custody of his or her child. As explained by the Third Circuit:

[B]efore a trial court deprives a parent of the custody of his or her child, the trial court must first determine that an award of custody would cause substantial harm to the child. If so, then the courts look at the best interest of the child factors in Article 134 to determine if an award of custody to a non-parent is required to serve the best interest of the child. Wilson v. Paul, 08-382 (La.App. 3 Cir. 10/1/08), 997 So.2d 572 (citing Tennessee v. Campbell, 28,823 (La.App. 2 Cir. 10/30/96), 682 So.2d 1274).

Black v. Simms, 08-1465 (La.App. 3 Cir. 6/10/09), 12 So.3d 1140, 1143. See also, Remondet v. Remondet, 08-838, p. 4 (La.App. 5 Cir. 4/28/09), 13 So.3d 1127, 1129 (“In addition to the factors set out in La. C.C. art. 134, a non-parent must show that substantial harm will result to the child if the custody is not changed to a non-parent”). The burden of proof on the non-parent requires a showing that the granting of custody to the parent would result in substantial harm by clear and convincing evidence. Carpenter v. McDonald, 2013 WL 557020, 12-1460, p. 1 (La.App. 1 Cir. 2/13/13); Rupert v. Swinford, 95-0395 (La.App. 1 Cir. 10/6/95), 671 So.2d 502, 505.

La. C.C. art. 13B Comment (b) states that while “substantial harm” is a change in terminology from the previous law, it is not entirely new to Louisiana jurisprudence. In pertinent part, that comment provides:

Prior to the 1982 introduction of the two-part statutory test that parental custody be shown to be “detrimental” to the child and that divestiture be “required to serve the best interest of the child,” the courts had followed the jurisprudential formula: “the parent ... may be deprived of ... custody only when (he) has forfeited his or her right to parenthood, ... is unfit, or ... is unable to provide a home for the child.”

11fiLa. C.C. Ann. art. 133, cmt. (B) (citing Deville v. LaGrange, 388 So.2d 696, 697-98 (La.1980)).

“The concept of substantial harm under art. 133 includes parental unfitness, neglect, abuse, abandonment of rights, and is broad enough to include ‘any other circumstances, such as prolonged separation of the child from its natural parents, that would cause the child to suffer substantial harm.’ ” Mills v. Wilkerson, 34,694, p. 6 (La.App. 2 Cir. 3/26/01), 785 So.2d 69, 74 (quoting Hughes v. McKenzie, 539 So.2d 965 (La.App. 2 Cir.), writ denied, 542 So.2d 1388 (1989)).

After the non-parent meets his or her burden of proving substantial harm, the court must consider the best interest of the child. On the determination of the child’s best interest, La. C.C. art. 134 states:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
|17(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

“The primary consideration and prevailing inquiry is whether the custody arrangement is in the best interest of the child.” McCormic v. Rider, 09-2584, pp. 3—4 (La.2/12/10), 27 So.3d 277, 279 (citing Ay- ans v. Lungrin, 97-0541, 97-0577 (La.2/6/98), 708 So.2d 731).

Here, we have no indication that the trial court, in making its determination, failed to- follow the- law as set forth in La. C.C. arts. 133 and 134. While neither party requested separate reasons for judgment from the trial court, the transcript reveals that the trial court did consider the substantial harm Elba’s status as an undocumented immigrant could cause Carlos:

You know, and the fact that if something happens and Elba has to be deported back to Honduras, she has custody of a child. The child goes back to Honduras. He has never lived in Honduras other than visit Honduras, and so now he’s taken from here. I know the same thing could happen with Reyna, too, though. If the T.P.S. [Temporary Protective Status] somehow for some reason — ... it’s not extended, then she has to go back, too. But the chances are better with Reyna it appears than with Elba.

Thereafter, the trial court acknowledged that under the applicable La. C.C. art. 133, the burden of proof was on Reyna.

While there is a dearth of jurisprudence in Louisiana on how a parent’s possible deportation affects a finding of substantial harm, other states have faced this issue. In deciding In re E.N.C., 384 S.W.3d 796, 805 (Tex.2012), the Supreme Court of Texas ruled that the mere threat of deportation was insufficient 11sto establish a child’s endangerment. The Supreme Court of Nebraska, in deciding In re Angelica L., 277 Neb. 984, 1009, 767 N.W.2d.74, 94 (2009), also found that mere deportation of a parent was not sufficient for the state to terminate her parental rights. In that case, the Supreme Court of Nebraska ruled for the parent, who was currently residing in Guatemala, despite the fact that her children had lived in the United States for their entire lives. Id. at 1009, 767 N.W.2d 74.

We agree that the fact that Elba is subject to deportation is not alone sufficient to support a finding that an award of custody to Elba would result in substantial harm to Carlos. Here, however, there is more than that possibility. Here, Elba’s possible deportation, combined with the uncertainty created by Elba’s history of delegating the responsibility for raising her other children to others, as well as her failure to support and keep in contact with Carlos, are sufficient for the trial court to have reasonably found that Carlos would have faced substantial harm if Elba was granted custody in this case.

Additionally, the transcript from the hearing on the petition indicates that the trial judge correctly applied La. C.C. art. 133 in making its decision. The transcript of the hearing clearly shows that the trial court correctly considered Carlos’ best interest to be paramount, stating:

Let me just tell Ms. Elba Ramirez and Ms. Reyna Ramirez, it’s not about the two of you. It’s about Carlos, and whatever decision I make will be in the best interest of the child.. And if both of you really love Carlos and you want to do what’s best for him, then you will put everything that happened behind you and try to move on and allow this child to enjoy all of his family, not just part of his family.

Here, the record reflects that the trial court heard testimony on: Carlos’ emotional ties to the parties; the capacity of the parties to love and provide for Carlos; the condition of the parties’ residences; the moral fitness of the parties and 119the people that they lived with; Carlos’ school history; each party’s willingness and ability to facilitate and encourage a close and continuing relationship between the child and the other party; the parties’ ability to drive and the distance between them; and each party’s history with regard to caring for and supporting Carlos. On the record before us, we cannot find that the trial court erred in applying the law.

This Court, in In re M.S.E., 12-553, p. 20 (La.App. 5 Cir. 3/13/13), 113 So.3d 327 addressed an assignment of error, similar to Elba’s assignments, which argued that the trial court erred by making no mention of several of the La. C.C. art. 134 factors for determining a child’s best interest. In that case, we found the trial court did not manifestly err, despite these omissions from its reasons for judgment. In so ruling, we recognized that:

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in Article 134; rather, the court should decide each case on its own facts in light of those factors. The factors listed in Article 134 are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Every child custody case must be decided in view of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the child. On appellate review, the determination of the trial court in establishing custody is entitled to great weight and will not be disturbed on appeal absent a clear showing of an abuse of discretion.

Id. at p. 22, 113 So.3d at 339 (internal citations omitted). See also, Robertson v. Robertson, 10-926 (La.App. 5 Cir. 4/26/11), 64 So.3d 354, 363.

In line with our decision in In re M.S.E., we find that the trial court did not err in its failure to explicitly make findings on all of La. C.C. art. 134’s factors for determining the best interest of the child. We find that the trial court’s judgment here was legally sufficient when it stated that its judgment was made, “pursuant to La. C.C. art. 133.” Accordingly, to the extent that Elba argues the trial court erred in failing to make certain findings explicitly, we find Elba’s assignments to be without merit.

| ^Furthermore, we cannot say that the trial court manifestly erred in its grant of custody to Reyna and liberal visitation to Elba. Here, the evidence established that Carlos has a close connection with Reyna and calls her his “mama.” The evidence also establishes that Reyna has been Carlos’ primary caretaker for almost his entire life, providing him almost all of his food, shelter, clothing, medical treatment, education, and family activities. The evidence showed that Elba currently resides in the United States illegally as an undocumented immigrant and has been deported from the United States three previous times. In contrast, Reyna has Temporary Protective Status in the United States and is legally therefore allowed to live and work in this Country. Under these circumstances, we cannot say that the trial court manifestly erred when it awarded Reyna legal custody of Carlos but also gave “liberal visitation” to Elba.

Accordingly, we find Elba’s assignments to be without merit, and therefore affirm the trial court’s judgment.

AFFIRMED

      . Reyna, through her attorney Ms. Ramona Fernandez, had filed a Petition for Termination of Parental Rights on August 23, 2012, which was withdrawn and dismissed at the beginning of this hearing.

      . Elba later testified that she named this child "Andre” but that Reyna called him "Luiz.” Because the record is not clear on this child's name, we refer to him has "Luiz/Andre.”

      . At trial, Elba's counsel conceded that she is currently residing in the United States illegally and therefore may be deported.

      . See also, Santosky v. Kramer, 455 U.S. 745, 753-54, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (recognizing the fundamental liberty interest a parent has in his or her child and concluding that the state must provide a parent with fundamentally fair procedures, in-eluding a clear and convincing evidentiary standard, when seeking to terminate parental rights); and Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001) (observing that "the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”).

      . In contrast to the case at bar, there was no evidence the parent at issue in In re E.N.C. abandoned his parental responsibilities once he was deported. In re E.N.C., supra at 805.


author: STEWART, J.

text:
    Corrie Johnson WILKINS, Plaintiff-Appellee v. CITY OF SHREVEPORT, et al., Defendants-Appellants.
    No. 48,116-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 28, 2013.
    The Malone Law Firm, by Mary E. Winchell, Shreveport, LA, for Appellants.
    Wilkinson, Carmody & Gilliam, Shreveport, LA, by Arthur R. Carmody, Jr., for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   STEWART, J.

|,The City of Shreveport (“the city”) is appealing the trial court’s judgment ordering that, if deemed necessary, it is to remove the sidewalk, at its expense, in order to make accommodations for Corrie Johnson Wilkins to be buried next to her husband. For the reasons that follow, we affirm.

FACTS

Mrs. Wilkins is the owner of the Leonard Johnson Wilkins burial plot (“family plot”) located in Greenwood Cemetery, Shreveport, Louisiana. The family plot contains six gravesites, which are occupied by Mrs. Wilkins’ parents, grandparents, aunt, and her late husband, Robert L. Wilkins. A public sidewalk runs adjacent to the family plot, specifically Mr. Wilkins’ grave, and ends abruptly at the foot of his grave. After her death, Mrs. Wilkins wants to be buried next to her husband. In order to accomplish this, she wants the sidewalk removed to create her burial site.

Mrs. Wilkins contacted Keith Gallagher, the regional vice-president of Suhor Industries (“Suhor”), to discuss the removal of the sidewalk so that another grave can be put in its place. Suhor manufactures burial vaults and maintains cemeteries. It recently purchased Boxeo, Inc. (“Boxeo”), a company that assumed the duties of sexton for Greenwood Cemetery on behalf of the city in the 1970s. At the time Suhor acquired Boxeo, it was owned and operated by Barry Box. When Suhor purchased Boxeo, it assumed some of the sexton duties at Greenwood Cemetery.

I ?Mr. Gallagher testified that Mrs. Wilkins contacted his office regarding the removal of the sidewalk adjacent to the family plot. After inspecting the area, he determined that because the sidewalk was in poor condition, it could be removed to accommodate her request.

On March 20, 2007, Mr. Gallagher met with Shreveport’s city attorney, Terri Scott, and the director of Shreveport Parks and Recreation (“SPAR”), Shelly Ragle. During this meeting, Mr. Gallagher proposed the idea of moving the sidewalk. He testified that everyone at the meeting agreed that the sidewalk did not serve a purpose and that another grave could be put in that spot. Mr. Gallagher sent a letter discussing his recollection of the meeting to Mrs. Wilkins.

Mrs. Wilkins contends that the letter creates an agreement between her and the city. More specifically, she alleges that on or about March 26, 2007, she entered into an agreement with the city, namely, Attorney Scott, and Shelly Ragle, to have the sidewalk removed so that another grave could be put in its place. The city denies entering into any agreement with Mrs. Wilkins.

By May 9, 2009, the city had taken over the management of the cemetery. On May 13, 2009, when Mrs. Wilkins contacted the cemetery again regarding graves-ites, a SPAR representative informed her that the alleged agreement would not be honored and that she had the option of either being buried on top, or on the bottom, of Mr. Wilkins.

|sOn June 12, 2009, plaintiffs counsel informed Ms. Ragle that she intended to sue the city if the sidewalk was not removed. Ms. Ragle informed him that the request to remove the sidewalk requires the city to follow state law and local ordinances to revise the cemetery plot. More specifically, it must seek authorization from the Shreveport City Council to sell the new plot, and it must competitively bid the sale of the new plot.

On May 20, 2010, Mrs. Wilkins filed a petition to enforce the alleged agreement and to prevent the stacking of bodies at the Greenwood Cemetery. In response to the petition, the city filed a dilatory exception of prematurity, alleging that her suit is premature because she did not present her request to the Shreveport City Council.

The city’s exception of prematurity was referred to the merits, and the matter proceeded to trial on December 6, 2011.

At trial, Mr. Gallagher testified that he told Mrs. Wilkins that the sidewalk could be removed, and that she would have a place to be buried right next to her husband. However, he also admitted that no contract existed between Suhor and the city, and that he did not have the authority to have the sidewalk removed.

Mr. Box testified that it was not uncommon to put more than six graves in a six-grave space. He stated that he inspected the public sidewalk at issue, as well as the family plot, and noted that it “appeared” that there was room to put another space. If necessary, Mrs. Wilkins’ husband could be moved slightly over without disturbing the sidewalk.

|4Ms. Ragle testified that the city, yia SPAR, is responsible for Greenwood Cemetery. She further testified that in her capacity as director of SPAR, she did not have the authority to create a plot for Mrs. Wilkins. The city does not have the au-thoi’ity to “sell, donate, or give away public property.” She further stated that even if she did state that she could remove the public sidewalk to create a plot for Mrs. Wilkins during the March 20, 2007, meeting, she would be exceeding her authority as the director of SPAR.

Ms. Ragle also noted that Mrs. Wilkins could move her family members to make room for an additional gravesite, but it must occur within the area that “they have already bought, paid for, and have a deed to.” She opined that the city council does not have to be involved if Mrs. Wilkins stays within the family plot.

At the close of evidence, the trial court instructed counsel for each party to draft a judgment that would permit the plaintiff to be buried next to Mr. Wilkins within the boundaries of the family plot. Counsel for the parties were unable to agree on the language of the judgment. Consequently, the trial court issued a judgment on August 31, 2012, ordering that the city, if deemed necessary, is to remove the sidewalk at its expense in order to make accommodations for the plaintiff to be buried next to husband. The city’s exception was deemed moot.

The city has filed the instant appeal, asserting one assignment of error.

CLAW AND DISCUSSION

The city maintains that it has no objection to Mrs. Wilkins creating more than the six burial sites in the Leonard Johnson Wilkins plot, so long as she follows state law. In fact, it is willing to assist her in creating another burial space within her family plot. However, the city assigns as error the trial court’s decision not to order the plaintiff to pay additional expenses involved, in the event that it determines that the sidewalk needs to be removed and replaced in order for Mrs. Wilkins to be buried, at the time of her death, next to Mr. Wilkins.

Louisiana courts of appeal apply the manifest error standard of review in civil cases. Detraz v. Lee, 2005-1263 (La.1/17/07), 950 So.2d 557; Hall v. Folger Coffee Co., 2003-1734 (La.4/14/04), 874 So.2d 90; Smith v. City of Shreveport, 46,596 (La.App. 2d Cir. 9/21/11), 73 So.3d 496. The trial court’s findings of facts may not be set aside on appeal unless clearly wrong or manifestly erroneous. The issue to be resolved is not whether the trier of fact was right or wrong, but whether its factual conclusions were reasonable. Where there are two permissible views of the evidence, the fact finder’s choice cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact-finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989). However, if a court finds that the trial court committed reversible |6error of law or manifest error of fact, the court of appeal must ascertain the facts de novo from the record and render a judgment on the merits. LeBlanc v. Stevenson, 2000-0157 (La.10/7/00), 770 So.2d 766; State Farm Mut. Ins. Co. v. Carter, 46,608 (La.App. 2 Cir. 11/2/11), 77 So.3d 1036.

In the case sub judice, the trial court issued an oral ruling, holding:

The plaintiff is entitled to some agreement or some statement of understanding that she can be at peace with to know that when she — and she will need at some point to use it and the opportunity to be buried next to her husband, how that can be done. It’s doable. It’s doable. It doesn’t take the City Council Authority if I’m hearing correctly ... The bottom line is the Court feels that, based upon the testimony as well as the exhibits, that Mrs. Wilkins is entitled to a judgment or some pronouncement by the Court that she will be entitled to be buried adjacent, next to her husband in Greenwood Cemetery, in the area or the space that is consistent with her request, and that’s to the extent we are saying next to his burial vault, if I’m using the right térm, up to the space consistent with what we kind of described as the sidewalk knowing two things. One, the Court is not including the displacement of the sidewalk for purposes of creating a new space, but the Court is mindful that there should be adequate room or space to include the traditional vault size or opening of the grave and closing of the grave. That’s the language where we need Mr. Box and those who are familiar with what we need to say to make this work. But I want Mrs. Wilkins to know that based upon the evidence the Court believes and will render judgment to give her the peace of mind that she will have a judgment of the Court permitting her to be buried in the space that she has requested subject to some modification that will not require the creation of a different space or displacement of a particular walk, but we have got to work those particulars out, but she needs to go away from the Court today knowing that she will have a judgment generally as prayed for.

After the trial judge recited his ruling, the plaintiffs attorney stated, “at cost, your honor.” The trial judge responded, “Let’s work this out and see where we are because there are some things that the Court can always do regarding the cost.”

17Further, in its judgment rendered in favor of Mrs. Wilkins, the trial court stated:

If the defendant, City OF SHREVEPORT, and/or its assigns as well as any subsequent owner(s) of Greenwood Cemetery, determines that the sidewalk currently situated adjacent to the Leonard Wilkins family plot located in the Greenwood Cemetery should be relocated replaced, and or otherwise moved in a manner to make reasonable physical accommodations to bury Plaintiff next to her husband, without “stacking”, the City OF SHREVEPORT, and/or its assigns as well as any subsequent owner(s) of Greenwood Cemetery, shall relocate, replace, and/or otherwise move said sidewalk in a manner to make reasonable physical accomodations to bury Plaintiff next to her husband without “creating” another burial plot, without “stacking”, and without additional expense to the plaintiff. (Emphasis added.)

As stated in the facts section above, Ms. Ragle testified that Mrs. Wilkins could move her family members to make room for an additional gravesite, but it must occur within the area that “they have already bought, paid for, and have a deed to.” She opined that with this option, the city council does not have to be involved.

Mr. Box testified that it was not uncommon to put more than six graves in a six-grave space. After viewing the family plot, he concluded that Mr. Wilkins’ vault could be moved slightly over without disturbing the sidewalk. Mr. Gallagher gave his opinion that “we would have to probably move two folks over to make room for Mrs. Wilkins.” The opinion of these two men strongly suggests that the plot has enough space to create an additional burial spot without having to remove the sidewalk by moving the existing burial vaults closer together.

The issue of the city relocating, replacing, and/or otherwise moving the sidewalk to accommodate Mrs. Wilkins’ grave at its expense would only Income into play only if, after shifting the vaults currently in the family plot, there is not enough room in the family plot to accommodate a gravesite for Mrs. Wilkins. It appears that the trial court created an equitable safeguard in favor of Mrs. Wilkins, which may never have to be used. The judgment indicates that the city will make the determination that the sidewalk must be relocated, replaced, or moved to accommodate Mrs. Wilkins’ gravesite. Based on the testimonies of both Mr. Box and Mr. Gallagher, there is a strong likelihood that the existing vaults can be shifted to accommodate Mrs. Wilkins’ gravesite, and this issue could subsequently become moot.

Further, this sidewalk serves no purpose, since it is not connected to any other walkway and ends abruptly at the foot of Mrs. Wilkins’ husband’s grave.

After a thorough examination of the record, we find that the trial court was reasonable in not ordering the plaintiff to pay additional expenses involved, in the event that the city determines that the sidewalk needs to be removed and replaced in order for Mrs. Wilkins to be buried, at the time of her death, next to her deceased husband. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment rendered in favor of Corrie Johnson Wilkins is affirmed. Total costs of this appeal are assessed against the City of Shreveport in accordance with La. R.S. 13:5112 in the amount of $303.50.

AFFIRMED.

      . Mrs. Wilkins’ husband died on January 3, 2010.

      . A sexton is responsible for opening and closing graves at the time of burial, marking or flagging gravesites for burial, acting as a liaison between the funeral homes and the families of the deceased, and keeping records of those buried at the cemetery.

      .Shelly Ragle is also spelled Shelly "Ragel” on several documents in the record.