author: LOLLEY, J.

text:
    Valerie Gale HARVEY, Plaintiff-Appellant v. Joseph Patten BROWN, Jr., Gailliard Farms, Inc. and Gailliard Gin, Inc., Defendants-Appellees.
    No. 47,382-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Raymond L. Cannon, Tallulah, LA, for Appellant.
    Nelson, Zentner, Sartor & Snellings, Monroe, LA, by Thomas G. Zentner, Jr., for Intervenor Appellee-Southern Farm Bureau Casualty Ins. Co.
    McNew, King, Mills, Burch & Landry, Monroe, LA, by Brady D. King, II, for Appellees Gailliard Farms, Inc., Gailliard Gin, Inc. and MAPP, Inc.
    Cotton, Becton, Hoychick & Doughty, Rayville, LA, by John B. Hoychick, for Appellees Joseph P. Brown, Jr., MAPP, Inc.
    Before GASKINS, CARAWAY and LOLLEY, JJ.
   LOLLEY, J.

_JjThe plaintiff, Valerie Gale Harvey, appeals the summary judgment granted by the Sixth Judicial District Court, Parish of East Carroll, State of Louisiana, in favor of Joseph Patten Brown, Jr., and MAPP, Inc., as well as the judgment granting the exception of no right of action in favor of MAPP, Inc. For the following reasons, we affirm the trial court’s grant of summary judgment.

Facts

The plaintiff, Valerie Gale Harvey, is the daughter of McNeil C. Harvey, who died on October 8, 2009, when a piece of farm equipment he was working under fell and crushed him. He was taken to the emergency room where he was pronounced dead.

Initially, Valerie filed suit seeking survivor’s damages and wrongful death damages against Joseph Patten Brown, Jr., Gailliard Farms, Inc., and Gailliard Gin, Inc. She claimed that the accident was caused by the parties’ negligence in: (1) exposing McNeil to ultrahazardous perils; (2) assigning McNeil to work outside the course and scope of his employment; and, (3) other fault and negligence to be discovered.

Valerie subsequently filed her first amending petition, adding as an additional defendant MAPP, Inc. She claimed that MAPP was negligent for the same reasons as the original defendants.

Gailliard Farms and Gailliard Gin together filed a motion for summary judgment arguing that there existed no basis for liability against them in that neither entity had operated since 2001. The trial court granted |2the motion, dismissing all claims against Gailliard Farms and Gailli-ard Gin. That judgment was not appealed by Valerie and is final.

MAPP filed an exception of no right of action, claiming that McNeil was its employee and, therefore, Valerie had no right of action against it in tort. Subsequently, Brown and MAPP filed a joint motion for summary judgment in which they claimed that McNeil died in the course and scope of his employment with MAPP, making MAPP immune from tort liability and Valerie’s exclusive remedy against it in workers’ compensation. Further, they claimed that Brown was an officer of MAPP and, likewise, had no personal liability. The trial court sustained the exception of no right of action and the motion for summary judgment in one judgment, dismissing all of Valerie’s claims against Brown and MAPP. She moved for a devolutive appeal, which was granted, and this appeal ensued.

Discussion

On appeal, Valerie argues that the trial court erred in sustaining MAPP’s exception of no right of action and Brown’s and MAPP’s motion for summary judgment. Both the exception and motion hinged on the common issue of whether McNeil was MAPP’s employee and whether his injury arose out of and in the course of employment. Valerie maintains that there are genuine issues of material fact regarding McNeil’s employment and the liability of MAPP and Brown (an officer and manager of MAPP). Notably, the trial court, in its ruling in favor of Brown and MAPP, determined that:

IsMAPP, Inc. was the employer of McNeil Harvey, and Joseph Patton Brown, Jr. was an officer of MAPP, Inc., and that McNeil Harvey was employed and working within the course and scope of his employment at the time of the accident. Therefore, the plaintiffs exclusive remedy against them is through worker’s compensation,....

For the following reasons, we agree with the trial court’s' conclusion, and conclude that summary judgment was properly granted.

The Louisiana Workers’ Compensation Act provides for compensation if an employee receives a personal injury by an accident arising out of and in the course of his employment. La. R.S. 23:1031. Except for intentional acts, workers’ compensation is the exclusive remedy for work-related injuries and illnesses. La. R.S. 23:1032; Kelly v. CNA Ins. Co., 1998-0454 (La.03/12/99), 729 So.2d 1033. The exclusive remedy provision of Louisiana’s workers’ compensation statute precludes an employee from filing a lawsuit for damages against “his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal.” Naiman v. Goldsberry Operating Co., Inc., 48,266 (La.App.2d Cir.06/11/08), 987 So.2d 826. When a defendant invokes the immunity of a statutory employer under La. R.S. 23:1032, it has the burden of proving this immunity. Walls v. American Optical Corp., 1998-0455 (La.09/08/99), 740 So.2d 1262; Boyte v. Ward North American Ins. Co., 35,929 (La.App.2d Cir.05/08/02), 818 So.2d 293, writ denied, 2002-1520, 2002-1591 (La.09/20/02), 825 So.2d 1179, 1181. The statute is strictly construed against the party claiming the immunity. Morgan v. ABC Manufacturer, 1997-0956 (La.05/01/98), 710 So.2d 1077.

Here, Brown and MAPP met the burden of proving that McNeil was MAPP’s employee performing employment duties when the accident occurred. In so finding, we observe two separate affidavits by Brown that are of record and included with the two pretrial pleadings considered by the trial court. Attached to MAPP’s exception of no right of action was Brown’s first affidavit, wherein he averred he was a stockholder and officer of MAPP. In that affidavit, he stated that McNeil was employed by MAPP on October 8, 2009 (the date of the accident), and attached McNeil’s 2009 W-2 for wages paid. In Brown’s second affidavit attached to the motion for summary judgment filed on behalf of both Brown and MAPP, he noted that McNeil had worked for MAPP for approximately 8-10 years prior to the accident. He also stated that McNeil was employed by MAPP on the day of the accident. According to Brown, McNeil was performing repairs on a bushhog owned by MAPP, which Brown stated was a normal part of McNeil’s employment. In fact, Brown averred that McNeil repaired such farm equipment on a “frequent basis.” Finally, Brown and MAPP also included with their motion the affidavit of Marquis Thompson, another MAPP employee. According to Thompson, he had been working with McNeil on the farm operated by MAPP, performing the same kind of work as McNeil. This work included regularly repairing heavy equipment. These affidavits sufficiently establish McNeil’s employment with MAPP and the fact that he was performing employment duties when the accident occurred; thus they satisfy the defendants’ burden of proving their immunity as a statutory employer.

|fiIn response, Valerie failed to refute the proof submitted by Brown and MAPP that McNeil was MAPP’s employee and was performing employment duties when the accident occurred. Although she contends that her father was not an employee on the day of the accident because he was not paid for the day of his death, this argument is unpersuasive. Considering both of Brown’s affidavits, there was sufficient proof to establish that McNeil was employed by MAPP up until the date of the accident and including the date of the accident, regardless of whether MAPP issued a paycheck including that day. Notably, for an employer-employee relationship to exist, there must be a contract of employment, either express or implied, whereby services are furnished in anticipation of compensation. Dustin v. DHCI Home Health Services, Inc., 1995-1989 (La.App.1st Cir.05/10/96), 673 So.2d 356. According to Valerie’s own allegations, on the day of the accident McNeil was assigned to perform the “work” he was engaged in at the time of his death. Moreover, there is no evidence to indicate McNeil did not anticipate being paid for the day of the accident. If McNeil was not employed on MAPP’s farm as argued by Valerie, there is no evidence that he was simply volunteering. In fact, all the evidence of record indicates McNeil was working in anticipation of compensation — he had received wages in 2009 as evidenced by the W-2. Additionally, as to the failure to pay McNeil for that day, MAPP points out that upon McNeil’s death, no demand had ever been made for the pay due him. If compensation has not yet been paid to his Ifisuccessor(s) for the date in question, that does not negate the fact that McNeil was indeed MAPP’s employee on the day the accident occurred.

Furthermore, Valerie has not alleged that her father died as a result of an intentional tort, an exception to the exclusive remedy rule. In fact, she specifically alleged that McNeil died as a result of negligence. Even if we accept Valerie’s allegations that the workplace presented an ultra hazardous condition, this would not raise the defendants’ alleged actions to that of an intentional tort. See Crockett v. Therral Story Well Service, Inc., 45,716 (La.App.2d Cir.01/05/11), 57 So.3d 355, writ not considered, 2011-0263 (La.03/25/11), 61 So.3d 650.

In this case, the evidence shows that McNeil was employed by MAPP and was performing employment duties on the date of the accident. Valerie failed to refute the evidence supporting that fact, and MAPP (as McNeil’s employer) and Brown (as an officer of MAPP) are immune from liability. Valerie’s remedy is in workers’ compensation, and the trial court’s determination on this issue was not in error.

Conclusion

For the foregoing reasons, the judgment in favor of Joseph Patten Brown, Jr. and MAPP, Inc. is affirmed. All costs of this appeal are assessed to Valerie Gale Harvey.

AFFIRMED.

      . In her appeal brief, Valerie raises an ancillary issue of the defendants’ solidary liability for damages. Considering the conclusion regarding liability, any discussion regarding damages is moot.


source: Caselaw Access Project

author: SEXTON, Judge Pro Tem.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. Frederick L. PALMER, Appellant.
    No. 47,390-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Louisiana Appellate Project by Douglas Lee Harville, James E. Beal, Jonesboro, LA, for Appellant.
    Jonathan M. Stewart, District Attorney, Kenneth P. Haines, Tammy G. Jump, Assistant District Attorneys, for Appellee.
    Before STEWART, GASKINS & SEXTON (Pro Tempore), JJ.
   SEXTON, Judge Pro Tem.

| ¶Defendant, Frederick L. Palmer, pled guilty to two counts of distribution of cocaine, a Schedule II, controlled dangerous substance. He was sentenced on each count to serve ten years’ imprisonment, with the first two years to be served without the benefit of probation, parole or suspension of sentence. The sentences were ordered to run concurrently with each other, but consecutively to any parole or probation revocation. Defendant now appeals. For the reasons stated herein, Defendant’s convictions and sentences are affirmed.

FACTS

On November 17, 2010, December 7, 2010, and December 12, 2010, Defendant sold cocaine to an undercover Bienville Parish Sheriffs deputy. On February 8, 2011, Defendant was formally charged by bill of information with three counts of distribution of a Schedule II, controlled dangerous substance. Defendant was on probation for an unrelated offense at the time of his arrest. On November 23, 2011, a plea and sentencing agreement was reached whereby Defendant pled guilty to two counts of distribution of cocaine. In exchange for his guilty plea, the State dismissed the third count and agreed not to file a habitual offender bill of information. Also pursuant to the plea and sentencing agreement, Defendant was sentenced to serve ten years at hard labor on each count, with the first two years without the benefit of probation, parole or suspension of sentence. The sentences were ordered to run concurrently with each other, but consecutive to any probation revocation.

|2The sentencing portion of the agreement was disclosed to Defendant and he signed both the plea and sentencing portions of the written plea agreement. However, during the colloquy, Defendant stated to the judge that he believed his sentence was “an over-sentence,” or a greater sentence than other defendants who had committed similar offenses had received. After a lengthy and thorough colloquy ensuring that Defendant was satisfied with representation of his counsel and that he understood the plea and sentence he was going to receive pursuant to the agreement, Defendant’s plea was accepted and he was sentenced accordingly. A reading of the colloquy reveals that Defendant understood the benefit of the plea agreement and sentence and decided to accept the benefit of the agreement, while reserving his right to seek review of the sentences. On the same day, Defendant consented to the revocation of his probation and was sentenced to five years’ imprisonment, to be served consecutive to his ten-year concurrent sentences.

On December 7, 2011, Defendant filed a motion to reconsider sentence, which was denied by the trial court. This appeal followed.

DISCUSSION

Assignment of Error Number One (verbatim): The trial court erred in imposing a sentence herein that is unconstitutionally excessive.

Defendant argues that he was convicted of a nonviolent offense; and, therefore, his sentence is grossly disproportionate when compared to the severity of the crime. The State maintains that Defendant’s sentence is appropriate for the crimes committed. It further argues that, by pleading |sguilty, Defendant received the benefit of having one count of distribution dismissed, as well as not being charged as an habitual offender.

This court utilizes a two-pronged test in reviewing a sentence for excessiveness. First, the record must show that the trial court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The trial judge is not required to list every aggravating or mitigating circumstance so long as the record reflects that he adequately considered the guidelines of the article. State v. Smith, 438 So.2d 688 (La.1988); State v. Lathan, 41,855 (La. App.2d Cir.2/28/07), 953 So.2d 890, unit denied, 07-0805 (La.3/28/08), 978 So.2d 297. The articulation of the factual basis for a sentence is the goal of La. C. Cr. P. art. 894.1, not rigid or mechanical compliance with its provisions. The important elements which should be considered are the defendant’s personal history (age, family ties, marital status, health, employment record), prior criminal record, seriousness of offense and the likelihood of rehabilitation. State v. Jones, 398 So.2d 1049 (La. 1981); State v. Ates, 43,327 (La.App.2d Cir.8/13/08), 989 So.2d 259, unit denied, 08-2341 (La.5/15/09), 8 So.3d 581. There is no requirement that specific matters be given any particular weight at sentencing. State v. Shumaker, 41,547 (La.App.2d Cir.12/13/06), 945 So.2d 277, unit denied, 07-0144 (La.9/28/07), 964 So.2d 351.

Second, the court must examine whether the sentence is too severe considering the circumstances of the case and the background of the defendant. A sentence violates La. Const. Art. 1, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than a Lpurposeless and needless infliction of pain and suffering. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1; State v. Dorthey, 623 So.2d 1276 (La.1993); State v. Bonan-no, 384 So.2d 355 (La.1980). A sentence is considered grossly disproportionate if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice. State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166; State v. Lobato, 603 So.2d 739 (La.1992); State v. Robinson, 40,983 (La. App.2d Cir.1/24/07), 948 So.2d 379; State v. Bradford, 29,519 (La.App.2d Cir.4/2/97), 691 So.2d 864.

The trial judge is given a wide discretion in the imposition of sentences within the statutory limits, and the sentence imposed by him should not be set aside as excessive in the absence of a manifest abuse of his discretion. State v. Williams, 03-3514 (La.12/13/04), 893 So.2d 7; State v. Thompson, 02-0333 (La.4/9/03), 842 So.2d 330; State v. Hardy, 39,233 (La.App.2d Cir.1/26/05), 892 So.2d 710.

The penalty for a conviction of distribution of cocaine shall be a sentence of imprisonment at hard labor for not less than 2 years nor more than 30 years, with the first 2 years of said sentence being without the benefit of parole, probation or suspension of sentence; and may, in addition, include a fíne of not more than $50,000. La. R.S. 40:967(B)(4)(b).

In the case sub judice, although the trial court did not articulate any factors listed in La. C. Cr. P. art. 894.1 as consideration for the sentences imposed, we And no abuse of discretion by the trial court. Where the record clearly shows an adequate factual basis for the sentence imposed, remand is | Sunnecessary even where there has not been full compliance with La. C. Cr. P. art. 894.1. State v. Landos, 419 So.2d 475 (La.1982); State v. Swayzer, 43,-350 (La.App.2d Cir.8/13/08), 989 So.2d 267. The sentences imposed by the trial court were contemplated by Defendant and made a part of the plea agreement. During sentencing, Defendant expressed his concern that his sentences of ten years (concurrent) were more than “some other people who had a much more serious record than he had.” At that time, the court informed Defendant that every case was different, and the sentence imposed was not the result of any animosity toward Defendant.

Further, the court noted that Defendant was on probation for only six months for a conviction of possession with intent to distribute marijuana when he was arrested on the current charges. Thus, the record supports a finding that Defendant would likely commit another crime if given a probated or suspended sentence. In addition, Defendant pled guilty to two counts of distribution, for which he faced a possible maximum sentence of 60 years. The trial court sentenced Defendant to only 10 years’ imprisonment on each count, to run concurrently with each other. The sentences are squarely within the statutory ranges and far less than half of the possible maximum allowable sentences. Moreover, Defendant received the benefit of a reduced penalty exposure because, in exchange for his guilty plea to two counts, the State dismissed the third count and agreed not to file an habitual offender bill against Defendant. We conclude that Defendant’s ^sentences are not grossly disproportionate to the seriousness of the offense, nor do they shock the sense of justice.

Defendant’s assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the convictions and sentences of Defendant, Frederick L. Palmer, are affirmed.

AFFIRMED.

      . As a result, Defendant’s probation was revoked on the same day of his sentencing for the current charges, and the trial court imposed the original sentence of 5 years’ imprisonment, to run consecutive to his 10-year concurrent sentences.


author: WILLIAMS, J.

text:
    Lisa Kay Carroll Nee TIPPEN, Plaintiff-Appellee v. William Scott CARROLL, Sr., Defendant-Appellant.
    No. 47,415-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Mason L. Oswalt, Monroe, LA, for Appellant.
    Richard L. Fewell, Jr., for Appellee.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   WILLIAMS, J.

| Jn this community property partition litigation, William Scott Carroll (“Scott”) appeals a trial court’s decision, awarding Lisa Kay Carroll nee Tippen (“Lisa”) reimbursement in the amount of $50,000 for community funds expended to make improvements to Scott’s separate property. Scott also appeals the denial of his claims for reimbursement for the use of community funds to pay the mortgage on Lisa’s separate property, Lisa’s “mismanagement” of Scott’s separate property, and utilizing his separate funds to pay community tax obligations. Additionally, Scott appeals the trial court’s determination that Lisa was owed an equalizing payment in the amount of $5,000.

For the following reasons, we reverse the court’s denial of Scott’s reimbursement claim for the payment of the community tax obligation with separate funds, and we award Scott reimbursement in the amount of $4,651. We also amend the court’s calculation of the equalizing payment due to Lisa to reflect that Scott owes an equalizing payment to Lisa in the amount of $2,500. All other aspects of the judgment are hereby affirmed.

FACTS

Scott and Lisa were married on March 19, 2001. One child, William Scott Carroll, Jr., was born during the marriage. On August 9, 2005, Lisa filed a petition for divorce. Subsequently, a judgment of divorce was granted, terminating the community of acquets and gains retroactive to the date of filing the petition for divorce.

On July 16, 2007, Lisa filed a petition for partition of the parties’ community property, along with a detailed descriptive list of the assets of the community. Thereafter, Lisa filed a supplemental and amending sworn detailed ^descriptive list, setting forth multiple reimbursement claims. Subsequently, Scott also filed a sworn detailed descriptive list and made numerous claims for reimbursement.

On March 2, 2010, a preliminary hearing was held to determine the parties’ community property and reimbursement claims. The hearing officer prepared a report and made recommendations, to which both parties objected. Consequently, a trial was held on July 1, 2010. After hearing the testimony and reviewing the hearing officer’s recommendations, as well as the evidence presented at trial, the trial court found that the net value of the community was $78,504. The court allocated the community property as follows:

Scott — $41,752 (½ net proceeds from the sale of the family home and Scott’s custom motorcycle);
Lisa — $36,752 (½ net proceeds from the sale of the family home and Lisa’s Chevrolet Tahoe);
$5,000 was due to Lisa from Scott to equalize the community property ($41,-752-$36,752).

The court concluded that net community payment due to Lisa was $41,752 ($36,752 + $5,000). The court also granted various reimbursement claims urged by both Scott and Lisa. After balancing and offsetting the claims, the court awarded Lisa reimbursement in the amount of $32,414.75. The court further ordered $12,533.62, from Scott’s portion of proceeds from the sale of. the house, to be held in escrow to “catch up support arrearages.” The court ordered the remainder of Scott’s portion of the proceeds from the sale of the house “to be paid out of the escrow community funds to Lisa forthwith.” Scott was also ordered to pay the balance due to Lisa, $33,216.75, plus interest, within 60 days.

I a As stated above, the court also granted some of the parties’ claims for reimbursement and denied others. Namely, the court awarded Lisa reimbursement in the amount of $50,000 for community property funds expended to purchase land and erect a building owned by Chassis, Inc. (Scott’s separate property); denied Scott’s reimbursement claim for the use of his separate' funds to pay community tax obligations; denied Scott’s reimbursement claim for the use of community funds to pay the mortgage on a house owned by Lisa (Lisa’s separate property) for approximately 15 months during the marriage; and denied Scott’s reimbursement claim for Lisa’s “mismanagement” of property owned by Chassis, Inc.

Subsequently, the trial court denied Scott’s motion for new trial. Scott appeals.

DISCUSSION

Use of Community Funds to Build or Make Improvements to Separate Property

Scott contends the trial court erred in awarding Lisa reimbursement in the amount of $50,000, for community property funds expended to purchase land and erect a building owned by Chassis, Inc. (a company Scott owned prior to his marriage to Lisa). Scott concedes that he made certain improvements, including the construetion of a building; however, he asserts that the court disregarded his testimony that he did not use any community funds to construct the building and/or make improvements. Additionally, Scott asserts that Lisa’s claim for reimbursement relates to a “building [or] other constructions permanently attached to the ground” under LSA-C.C. art. 2366. However, because Chassis, Inc., not Scott, is “the owner of the ground” on which the | ¿improvements were made, Lisa is not entitled to reimbursement.

LSA-R.S. 9:2801 provides, in pertinent part:

A. When the spouses are unable to agree on a partition of community property or on the settlement of the claims between the spouses arising either from the matrimonial regime, or from the co-ownership of former community property following termination of the matrimonial regime, either spouse, as an incident of the action that would result in a termination of the matrimonial regime or upon termination of the matrimonial regime or thereafter, may institute a proceeding, which shall be conducted in accordance with the following rules:
(4) The court shall then partition the community in accordance with the following rules:
(a) The court shall value the assets as of the time of trial on the merits, determine the liabilities, and adjudicate the claims of the parties.
(b) The court shall divide the community assets and liabilities so that each spouse receives property of an equal net value.
(c) The court shall allocate or assign to the respective spouses all of the community assets and liabilities. In allocating assets and liabilities, the court may divide a particular asset or liability equally or unequally or may allocate it in its entirety to one of the spouses. The court shall consider the nature and source of the asset or liability, the economic condition of each spouse, and any other circumstances that the court deems relevant. As between the spouses, the allocation of a liability to a spouse obligates that spouse to extinguish that liability. The allocation in no way affects the rights of creditors.
(d)In the event that the allocation of assets and liabilities results in an unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. The court may order the execution of notes, mortgages, or other documents as it deems necessary, or may impose a mortgage or lien on either community or separate property, movable or immovable, as security.
⅜ *

Generally, the property of married persons domiciled in Louisiana is either community or separate. LSA-C.C. art. 2335. The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property. LSA-C.C. art. 2338. Wages are the premier community asset acquired through the effort, skill or industry of either spouse. Ross v. Ross, 2002-2984 (La.10/21/03), 857 So.2d 384; Gill v. Gill, 39,406 (La.App.2d Cir.3/9/05), 895 So.2d 807.

LSA-C.C. art. 2341 provides:

The separate property of a spouse is his exclusively. It comprises: property acquired by a spouse prior to the establishment of a community property regime; property acquired by a spouse ■with separate things or with separate and community things when the value of the community things is inconsequential in comparison with the value of the separate things used; property acquired by a spouse by inheritance or donation to him individually; damages awarded to a spouse in an action for breach of contract against the other spouse or for the loss sustained as a result of fraud or bad faith in the management of community property by the other spouse; damages or other indemnity awarded to a spouse in connection with the management of his separate property; and things acquired by a spouse as a result of a voluntary partition of the community during the existence of a community property regime.

It is well settled that a trial court has broad discretion in adjudicating issues raised by divorce and partition of the community. Clemons v. Clemons, 42,129 (La.App.2d Cir.5/9/07), 960 So.2d 1068, writ denied, 2007-1652 (La.10/26/07), 966 So.2d 583; Mason v. Mason, 40,804 (La.App.2d Cir.4/19/06), 927 So.2d 1235, writ denied, 2006-1524 (La.10/13/06), 939 So.2d 366. A trial judge is afforded a great deal of latitude in arriving at an equitable distribution of the assets between the spouses. Id. Factual findings and credibility determinations made in the course of valuing and allocating assets and liabilities in the partition of community property may not be set aside absent manifest error. Clemons, supra. However, the allocation or assigning of assets and liabilities in the partition of community property is reviewed under the abuse of discretion standard. Benoit v. Benoit, 2011-0376 (La. App. 1st Cir.3/8/12), 91 So.3d 1015; Legaux-Barrow v. Barrow, 2008-530 (La.App. 5th Cir.1/27/09), 8 So.3d 87, writ not considered, 2009-0447 (La.4/13/09), 5 So.3d 152.

LSA-C.C. art. 2366 provides:

If community property has been used during the existence of the community property regime or former community property has been used thereafter for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the community property had at the time it was used. Buildings, other constructions permanently attached to the ground, and plantings made on the separate property of a spouse with community property belong to the owner of the ground. The other spouse is entitled to reimbursement for one-half of the amount or value that the community property had at the time it was used.

As stated above, Scott owned Chassis, Inc., before he married Lisa. However, it is undisputed that the land was purchased and the building was |7constructed during the marriage. Scott testified that he paid $100,000 for the land and that funds were obtained from the sale of his separate property (a race car and other “racing stuff’). Although the record indicates that Seott/Chassis, Inc., obtained construction loans to erect the building, Scott testified that he invested approximately $100,000 “in cash” in the building. He stated that he kept the $100,000 locked in his shop; he never deposited any of the funds in his business account or his personal accounts. Other than his testimony, Scott offered no evidence as to the source of the $100,000. There is nothing in the record to prove that the funds were not “acquired during the existence of the legal regime through the effort, skill, or industry” of Scott. As such, the trial court concluded that Scott presented no evidence to overcome the presumption that the $100,000 in cash, used “for the acquisition, use, improvement, or benefit” of Scott’s separate property, was community funds.

We agree. We have reviewed this record in its entirety. As the trial court noted, Scott produced documents to prove that a portion of the costs of the improvements to his separate property was paid with funds from a construction loan. However, no documents were presented to overcome the presumption that the $100,000 invested in the building was community property. Accordingly, we find that the trial court did not err in concluding that Lisa was entitled to reimbursement in the amount of $50,000 for the use of community funds for improvements made to Scott’s separate property. This assignment lacks merit.

Use of Community Funds to Pay Mortgage on Separate Property

|sScott also contends the trial court erred in denying his reimbursement claim, in the amount of $9,870, for the use of community funds to pay the mortgage on a house owned by Lisa (Lisa’s separate property) during the marriage. He argues that the mortgage on the house, approximately $658 per month, was paid with community funds for a period of 15 months. Thus, he is entitled to reimbursement in the amount of $4,985 (½ of the $9,870 paid).

A separate obligation of a spouse is one incurred by that spouse prior to the establishment of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse. LSA-C.C. art. 2363. If community property has been used during the existence of the community property regime or former community property has been used thereafter to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. LSA-C.C. art. 2364.

In the instant case, Scott testified he “spent some money on [the house owned by Lisa].” He stated that community funds, in the amount of $658 per month, for a period of 15 months, were used to pay the mortgage on that house. To support his claim, Scott introduced into evidence a copy of one cancelled check, dated March 5, 2002, in the amount of $658.35; the check was made payable to the company which held the mortgage to the house.

Our review of the testimony reveals that Lisa, Scott, their son and Lisa’s three daughters from her first marriage lived in the house from March, 2001, until approximately November, 2002. The documents and testimony indicate |9that Scott and Lisa maintained separate bank accounts, in addition to one joint checking account. Lisa and Scott testified that Scott routinely gave her approximately $2,800 in cash per month to “pay the bills.” However, Lisa, who stopped working in 2002, testified that the amount given to her by Scott was insufficient to meet the community obligations. Therefore, Lisa frequently deposited her separate funds into the joint account to meet the obligations of the community. Scott produced no evidence to definitively prove that community funds, rather than Lisa’s separate funds, were used to pay the mortgage on Lisa’s house. Based on this record, it impossible to ascertain whether the mortgage on Lisa’s house was paid with community funds or with Lisa’s separate funds, deposited into the joint account. For these reasons, we find that the trial court did not abuse its discretion in concluding that Scott is not entitled to reimbursement in the amount of $4,935. This assignment lacks merit.

“Mismanagement” of Separate Property

Next, Scott contends the trial court erred in denying his reimbursement claim for Lisa’s improper release of property from Chassis, Inc., and the mismanagement of property owned by the company. Scott argues that he is entitled to reimbursement in the amount of $64,764.

Scott testified that while he was in jail and/or an inpatient drug rehabilitation treatment program, Lisa, without his knowledge or authorization, entered Chassis, Inc. He stated that while there, Lisa released three vehicles to | incustomers, and she released equipment and parts from the company without fully collecting the amounts owed. He also stated that Lisa collected $17,525.28 from the customers, when the amount owed totaled $64,764. Further, Scott testified that Lisa deposited only $8,014.28, into Scott’s business account, without accounting for the remainder.

A spouse owes an accounting to the other spouse for community property under his control at the termination of the community property regime. LSA-C.C. art. 2369. A spouse has a duty to preserve and to manage prudently former community property under his or her control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He or she is answerable for any damage caused by his or her fault, default, or neglect. LSA-C.C. art. 2369.3.

To support his reimbursement claim, Scott introduced into evidence a typed document, dated July 27, 2005, entitled, “Cars Lisa Released from Chassis, Inc.” The document was not signed; therefore, the source of the document is unknown. Scott also introduced into evidence an undated typed document, generated by Lisa, which stated that she collected $17,525.28 from customers and “paid out” $4,865 for various business expenses. The document included the following statement:

I deposited $8,011.28 into Chassis Inc. on July 28th.
I kept the rest of the collected funds to pay household bills for however long it last[s]. Scott withdrew $5000 cashiers check from bank which made the Chassis Inc. Account overdrawn by 3035.62.

After reviewing the documents, the hearing officer stated:

|n[A]s Chassis, Inc. is a corporation, any claim that might exist as a result of Lisa releasing cars without authorization would belong to the corporation rather than to Scott individually.
As there is no showing to support the validity of this claim and, as to any extent it is valid, it would appear to be a claim of the corporation, I recommend that this claim for reimbursement be denied.

The trial court denied Scott’s claim “for the reasons stated by the hearing officer.”

We agree. The personality of a corporation is distinct from that of its members. See, LSA-C.C. art. 24. Only the corporation, not its members, may sue to recover any damages it has sustained. Skannal v. Bamburg, 44,820 (La.App.2d Cir.1/27/10), 38 So.3d 227, writ denied, 2010-0707 (La.5/28/10), 36 So.3d 254; Taylor v. Dowling Gosslee & Assoc., 44,654 (La.App.2d.Cir.l0/7/09), 22 So.3d 246. A shareholder has no separate or individual right of action against third persons for wrongs committed against or damaging to the corporation. Skannal, supra, citing Glod v. Baker, 2002-988 (La.App. 3d Cir.8/6/03), 851 So.2d 1255, writ denied, 2003-2482 (La.11/26/03), 860 So.2d 1135. This same rule applies even where one person may be the sole shareholder. Skannal, supra; Taylor; supra.

Based on this record, we find that Chassis, Inc., is the proper party to bring the action against Lisa for any alleged wrongs committed against the corporation. Accordingly, the trial court did not err in denying Scott’s claim for reimbursement.

Use of Separate Property to Pay Community Tax Obligation

Scott also contends the trial court erred in denying his reimbursement claim for the use of his separate funds to pay community tax obligations for the 2002 and 2003 tax years. He argues that $10,635.61 of his separate funds were used to pay the community income taxes; therefore, he is entitled to reimbursement in the amount of $5,317.80.

If separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used. LSA-C.C. art. 2365. The burden of proof is on the party claiming reimbursement to show that separate funds existed and were used to satisfy the community obligation. Dupree v. Dupree, 41,-572 (La.App.2d Cir.12/20/06), 948 So.2d 254; Ward v. Ward, 32,617 (La.App.2d Cir.12/10/99), 748 So.2d 619.

Scott did not introduce any of the tax returns into evidence. However, to support his reimbursement claim, Scott testified that his income tax refunds were seized to pay community tax debts. Lisa admitted that she did not pay any of the community tax obligations.

Additionally, Scott introduced into evidence letters from the Department of the Treasury, Internal Revenue Service (“IRS”), which indicate that his income tax refunds from his 2007 and 2008 tax returns were seized and applied to unpaid balances “of other federal taxes which our records show you owe.” [ lsOne letter from the IRS, dated July 7, 2008, provides, in part:

We applied $1,820.00 of the overpaid tax on your 2007 tax return to the unpaid balance of other federal taxes which our records show you owe.

Where We Applied Your Overpayment

Forms(s) Tax Period(s) Amount(s) Applied

1040 December 31,2002 $1,820.00

Balance Remaining

$5,038.78

Another letter, dated July 14, 2008, states, m Park

We applied $800.00 of the overpaid tax on your 2007 tax return to the unpaid balance of other federal taxes which our records show you owe.

* * *

Where We Applied Your Overpayment

Forms(s) Tax Period(s) Amount(s) Applied

1040 December 31,2002 $300.00

Balance Remaining

$4,743.18

Another document, which does not bear a date, states:

Our records show you owe Federal taxes. Your overpayment was applied as follows:

Tax Forms(s) Amount Applied Tax Period(s)

1040 $4,117.00 December 31, 2002

Balance Remaining

_j_i4$784.08

The next letter, dated October 26, 2009, states, in pertinent part:

We applied $3,065 of the overpaid tax on your [2008] tax return to the unpaid balance of other federal taxes which our records show you owe.

Where We Applied Your Overpayment

Forms(s) Tax Period(s) Amount(s) Applied

1040 December 31, 2003 $2,671.17

1040 December 31, 2004 $394.05

Although Scott did not submit the tax returns, the language from the documents clearly indicates that Scott’s income tax refunds were applied to tax debts owed for 2002, 2003 and 2004 tax periods. It is undisputed that Scott and Lisa were married during the tax periods listed in the IRS documents. Additionally, as stated above, Lisa admitted that she did not pay any of the tax debt owed, other than the amount withheld from sale of the house.

After reviewing the record and supporting documents, we find that Scott satisfied his burden of proving that $9,302 of his separate funds (his income tax refunds) were used to satisfy the community income tax obligation. Therefore, we find that, pursuant to LSA-C.C. art. 2365, Scott is entitled to reimbursement for one-half of the amount paid ($4,651).

Calculation of the Equalizing Payment Due to Lisa

Scott also contends the trial court erred “in its mathematical calculation in determining the equalizing payment due from Scott Carroll to Lisa Carroll.” Scott argues that the court failed to divide the difference between each party.

In the event that the allocation of assets and liabilities results in an |15unequal net distribution, the court shall order the payment of an equalizing sum of money, either cash or deferred, secured or unsecured, upon such terms and conditions as the court shall direct. LSA-R.S. 9:2801(A)(4)(d).

In the instant case, the court determined that Scott’s net portion of the community property allocation was $41,752; the court calculated that Lisa’s net portion was $36,752. The court correctly calculated the difference to be $5,000. However, the court incorrectly awarded the entire $5,000 difference to Lisa, thereby awarding Lisa a net portion of $41,752, and Scott $36,752. Thus, we find that the equalizing payment due to Lisa was incorrectly calculated. Accordingly, we amend the trial court’s judgment to reflect that Scott owes an equalizing payment to Lisa in the amount of $2,500.

CONCLUSION

For reasons set forth herein, we reverse the court’s denial of Scott’s reimbursement claim for the payment of the community tax obligation with separate funds, and we order Scott’s reimbursement in the amount of $4,651. We also amend the court’s calculation of the equalizing payment due to Lisa to reflect that Scott owes an equalizing payment to Lisa in the amount of $2,500. All other aspects of the judgment are hereby affirmed. Costs of this appeal are assessed equally to the parties, William Scott Carroll, Sr. and Lisa Kay Carroll nee Tippen.

REVERSED IN PART; AMENDED IN PART; AND AFFIRMED AS AMENDED.

      . Lisa introduced into evidence copies of multiple checks given to her by her mother. Some of the funds were given as "gifts.” Lisa also deposited a check given to her from proceeds from the sale of timber from land owned by Lisa's family.

      . Apparently, Scott did not file any documents from the IRS relating to the community tax obligation prior to the hearing before the hearing officer. Nor did he file any can-celled checks or other evidence which might prove that he paid the tax debt from his separate funds. As a result, the hearing officer recommended that the reimbursement claim be denied based on lack of documentary evidence to support the claim. The only documents presented to the hearing officer proved that a federal tax lien was attached to the parties’ family home to satisfy unpaid tax debts. The documents also indicated that the lien was released after the family home was sold and a sum of $2,787.93, was paid with a portion of the proceeds from the sale of the house.

      . This communication is actually “Page 3” of a document from the IRS. The communication does not bear a name; however, Scott’s social security number is listed at the top of the document.


author: GASKINS, J.

text:
    Jack L. FIEBELKORN and Jean F. Fiebelkorn, Plaintiffs-Appellants v. Allen Ray ALFORD and Janet Schultz Alford, Defendants-Appellees.
    No. 47,423-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 20, 2012.

      Heck Law Firm by Charles H. Heck, Monroe, LA, Dimos, Erskine, Garner, Riles & McQueen, LLP by J.N. Dimos, for Plaintiffs-Appellants.
    Hallack Law Firm, West Monroe, LA, by William H. Hallack, Jr., Dennis W. Hallack, for Defendants-Appellees.
    Before BROWN, WILLIAMS and GASKINS, JJ.
   GASKINS, J.

_JjThe plaintiffs, Jack L. Fiebelkorn and Jean F. Fiebelkorn, appeal from a trial court judgment rejecting their claims for damages against the defendants, Allen Ray Alford and Janet Schultz Alford. The plaintiffs alleged that their home and lot suffered water damage after the defendants modified the adjoining lot to construct a home. For the following reasons, we affirm the trial court judgment.

FACTS

The plaintiffs’ house, located in a golf course community in Calhoun, Louisiana, was constructed in 1984-1985. The plaintiffs, who are in their 70s, purchased the house in 2005. In October 2005, the plaintiffs installed a sprinkler system and in 2006, they had a landscape designer put in extensive flowerbeds around the house. The lot south of their property was vacant. The parties’ lots face the road on the east, and the golf course is behind them, on the west side. This area drains into a catch basin to the north of the properties.

The defendants purchased the lot next to the plaintiffs in 2008 and constructed a house. The plaintiffs contend that they never had problems with flooding on their lot until the defendants built their house. The plaintiffs claim that the defendants altered the drainage of the area, causing an overflow of silt onto their property, standing water in their yard, and water that came into the house, damaging their wood flooring and creating a musty smell. The plaintiffs filed suit against the defendants and trial was held in February and April 2011.

Mr. Fiebelkorn testified that he and his wife are real estate brokers and generally buy a house, live in it for several years, and then sell it. According to Mr. Fiebel-korn, at the time he bought this house in 2005, it was inspected and Rno problems were found. He stated that the drainage on the property was good and that water drained from the street to the back of the property, toward the golf course, through swales or indentions in the ground.

In October 2005, the Fiebelkorns installed a sprinkler system in the yard and in 2006, they installed flowerbeds around the house. Mr. Fiebelkorn testified that the landscaping did not cause any problems with the drainage on his property. However, after the Alfords began constructing their house on the adjoining lot, Mr. Fie-belkorn claimed his drainage and flooding issues commenced. Shortly after Mr. Alford moved dirt on the lot to build up the house pad, heavy rains washed the fill dirt onto the Fiebelkorns’ yard. Mr. Fiebel-korn said that the dirt was red and contained iron ore.

Mr. Fiebelkorn claimed that the Alfords built up their lot and changed the drainage so that all the water flowing off the defendants’ lot comes through the plaintiffs’ house. Mr. Fiebelkorn alleged that dirt from the Alfords’ lot filled up a swale that previously had drained the Fiebelkorns’ property. When the flooding problems began, Mr. Alford put sandbags out, but Mr. Fiebelkorn said they were put in the wrong place. Mr. Fiebelkorn stated that Mr. Alford put a French drain on his property, but when it gets clogged, water gushes onto the plaintiffs’ lot. Mr. Fiebel-korn contended that as a result of his drainage problems, bricks on the house are cracked, his slab is cracked and water is coming up through the slab into the house. He stated that there is mold in the cracks of the slab. The ground on one side of the house is always soft and wet and he cannot mow there or drive his golfcart on that area. He stated that since the defendants moved in, he has had water in his house 20 times.

| sMr. Fiebelkorn testified that the wood flooring in the house came up and they had to remove it and have not replaced it. According to Mr. Fiebelkorn, he could always tell how many inches of rain had fallen because the floorboards of the house would be raised by that amount. Mr. Fie-belkorn said that with the drainage problems now existing in the property, he cannot sell the house, as had been his plan.

Mr. Fiebelkorn claimed that the flooding of their house and property adversely affected his wife’s health. During the time the problems with water in the house arose, Mrs. Fiebelkorn had a pacemaker installed. Mr. Fiebelkorn stated that the stress of the situation with the house aggravated his wife’s physical condition.

Mr. Alford installed a French drain on the plaintiffs’ property, but Mr. Fiebelkorn said it is not working. He testified that the French drain does not appear to be removing water from his property. According to Mr. Fiebelkorn, Mr. Alford constructed a retaining wall on his own property, but he claimed that water comes over the top of Mr. Alford’s retaining wall during heavy rains. Mr. Fiebelkorn identified material from the Alfords’ retaining wall that had washed over into his flowerbed. Mr. Alford also put a 12-inch drainage pipe on his property that empties into a catch basin. Mr. Fiebelkorn claimed that the defendants have created a situation where the water table in the ground is higher than his slab, forcing the groundwater up through his slab.

Mrs. Fiebelkorn testified that she is 70 years old and has been married to Mr. Fiebelkorn for 27 years. She stated that there were no drainage problems with the house before the Alfords began construction. After the drainage problems began, closet doors in the house were hard to open and the wood ^flooring began to come up, necessitating its removal. She stated that the concrete slab appears to have water coming up from below. Mrs. Fiebelkorn said that her husband has a seizure disorder for which he takes “heavy medication” and does not need to have a lot of stress.

Robert Hilory Quinn, Jr., sold the house to the Fiebelkoms. He testified that he purchased the house in 1990 and never had any drainage problems in the house, including during an area flood in 1991.

Brandon Antley is affiliated -with the flooring company that removed the wood floors from the Fiebelkorn home. He stated that it cost $1,550 to remove the flooring. He observed that there was moisture in the slab and mold and mildew were growing under it.

Nicholas Charles Hilburn mows the Fie-belkorns’ lawn. He stated that there were no problems with mowing before the Al-fords built on the lot next door. He observed that the Affords’ fill dirt washed onto the plaintiffs’ property and filled in the swale so that it does not drain as well. He testified that the flowerbeds are constructed so that the water drains away from the house and the weep holes are open all around the house.

Foy Bryon Gadberry worked for an engineering firm and was accepted as an expert in architecture and building. He testified for the Fiebelkorns and was familiar with the area before the Affords’ house was built. He stated that the water flowed southeast to northwest on the front and flowed toward the golf course in the back. He said that the water basically sheet-flowed over the Affords’ property before construction. After they built their house, the swale |Bwhich drained the area was narrowed and created a dam for water that previously had come from the street and flowed over the Affords’ lot. He said that the construction slowed the drainage on the plaintiffs’ property. He observed that the defendants’ dirt was within two feet of the retaining wall that the defendants built and that silt was built up halfway between the retaining wall and the flowerbeds. On a later visit to the site, he observed that the ground had been sodded and the swale was not as well defined as it had previously been. He made soil bor-ings on the plaintiffs’ property which showed the presence of silt and moisture. However, he did not see any silt in the flowerbeds.

Mr. Gadberry observed that the floors in the plaintiffs’ house were buckled from water damage and there was a crack in the brick on a corner of the house. He stated that moisture in the soil caused shifting and that the work on the defendants’ property contributed to the plaintiffs’ problems. Mr. Gadberry observed water seeping through the defendants’ retaining wall onto the plaintiffs’ lot. He noted that some remedial work had been done on the retaining wall to seal the cracks. He said that the defendants’ lot is 3½ feet higher than the plaintiffs’ lot at the property line. He was aware that the Alfords had placed a drainpipe on their property to catch water and drain it back toward the golf course. He thought that the swale slope on the Fiebelkorns’ lot could be reestablished to get the water off the property more quickly.

Mr. Gadberry noted that the plaintiffs’ flowerbeds were two bricks high on the house and covered the weep holes and he felt water was entering the house through the weep holes. Mr. Gadberry testified that because the flowerbeds were over the weep holes, when the soil gets saturated, it runs to |fithe lowest point, which is the foundation of the house. He stated that there is a valley in the plaintiffs’ roof on the southeast side of the house that shoots water toward the end of the flowerbed in a heavy rain. He testified that the condition of the flowerbed was conducive to water entering the house. He stated that the construction the Alfords did on their property increased the amount of water flowing onto the Fiebelkorns’ lot “slightly.” Mr. Gadberry said that the Alfords had made a reasonable attempt to catch their drainage.

Dixie Marsh Griffin, Jr., holds a Ph.D. in hydrology and environmental engineering and testified for the Fiebelkorns as an expert in those fields. He made a “Rational Method Drainage Report” on the property in 2010. Dr. Griffin stated that the property is at the bottom of a sack which catches rainwater. He noted that the swale which had previously been on the property has disappeared, so that water runs toward the Fiebelkorns’ lot. He stated that the swale had originally been three feet deep. He said that the Alfords’ house blocked off a large part of the catchment and caused a major disruption in the drainage pattern. According to Dr. Griffin, the Alfords’ house has blocked the outlet of an 11-acre catchment. However, in later testimony, Dr. Griffin stated that he had made an error in his calculations and that the area drained was actually 3½ acres, not 11 acres.

Dr. Griffin testified that the groundwater in the Alfords’ yard is between four and six feet higher than that in the Fiebel-korns’ yard. This has created a groundwater mound where, in order to equalize the pressure, the water is coming out of the ground. He said the groundwater is within one inch of the bottom of the Fie-belkorns’ slab. He used pipes placed in the ground known as piezometers to measure the level of the groundwater. He stated that the ^damage inside the plaintiffs’ house is consistent with the diffusion of groundwater up through the slab. He advised that a remedy would be to cut out the swale and underlay it with a French drain. He noted that there is a French drain on the plaintiffs’ property now, but said that it is not working. He observed that some of the plaintiffs’ flowerbeds were above the slab, but most were below. Once the swale was filled in, he opined that the flowerbeds served as dams to keep the water from flowing out. He said that it was ridiculous to argue that the plaintiffs’ problems are caused by their flowerbeds. He opined that a sprinkler system will not cause this kind of flooding. Dr. Griffin maintained that the Fiebelkorns’ problems are caused by groundwater, not surface water.

Jerry Magee, the landscape designer who installed the Fiebelkorns’ flowerbeds, testified as an expert in landscape design. The Fiebelkorns’ lot had positive drainage with the swale which was 18 inches deep and three to four feet wide. There were no drainage problems when the flowerbeds were first put in. He claimed that the beds were not higher than the slab or the weep holes. He opined that the dirt placed on the Alfords’ property increased the amount of water that flowed onto the Fiebelkorns’ lot. In order to remedy the plaintiffs’ problem, he suggested that the swale be excavated and three catch basins be installed, all connected by a French drain. This would cost $5,588.56 and replacing the flowerbeds would cost $1,480.

Michael Dewayne Burroughs testified as an expert in home inspection. He inspected the Fiebelkorns’ house in 2005, before they purchased it. At that time, there were no problems with the drainage and there was no water damage in the house. When he went back to inspect the house in 2009, he used infrared 1 ^photography and moisture readings to determine that there were large amounts of water coming in and affecting the wood flooring. He stated that the defendants’ house is preventing the water from flowing off of the plaintiffs’ lot. The water pressure under the house is being forced up and water is wicking into the house.

Water stains were found underneath the flooring and he opined that the water was coming up from below. He stated that the water was not coming into the house through the weep holes. He said that if water came in through a weep hole, it would go out through another weep hole on the same horizontal plane. He stated that there would have been water damage up the walls if the water was coming in through the weep holes. Mr. Burroughs claimed that the dirt in the flowerbeds was not above the weep holes. He did not observe any rust or peeling paint which would have indicated that the water was coming into the wall cavity. As a remedy for the problems, he agreed with Mr. Ma-gee’s plan of digging out the swale and installing a French drain.

Mr. Burroughs testified as to the expense in repairing the damage to the Fie-belkorns’ house. He estimated $9,800 for removal of sheet rock to check for mold and reinstalling the sheet rock, $700 for mold remediation, $4,000 to replace the wood flooring, and $23,000 for dirt work and landscaping.

Mr. Alford testified that he studied civil engineering for two years in college and then obtained a degree in construction. When he began construction on the house at issue here, he did not employ a landscape architect or an engineer. He did not have a professional, design the drainage on the property because he considers himself to be a professional in that regard. He Iflhad a friend who is a civil engineer “shoot elevations” to determine if there was enough dirt on the lot for the house construction.

Mr. Alford began dirt work for the house in August 2008, and shortly thereafter, Hurricane Gustav passed through the area. A large amount of silt ran off his lot onto the plaintiffs’ property. He put down sandbags and hired workers to shovel the dirt out of the plaintiffs’ yard. He then built a retaining wall to keep the dirt off the plaintiffs’ property. The first retaining wall was built quickly because Hurricane Ike was due to hit the area. He later built a second retaining wall with a 12-inch drainpipe between the two walls.

After the Fiebelkorns filed suit, Mr. Alford tried to resolve the issue with them. Mr. Alford agreed to put a French drain on the Fiebelkorns’ property and was assisted in the placement of the drain by Dr. Griffin. Mr. Alford stated that Dr. Griffin held the tape measure while the defendant shot elevations and used the estimate to shoot the grade. Mr. Alford said that while installing the French drain, he dug down 36 inches and found that there was no water in the hole. He claims that the drain is working as it was intended. Mr. Alford said he built a swale on his property which drains onto the golf course.

According to Mr. Alford, the causes of the plaintiffs’ water problems are their flowerbeds and roof drainage. He stated that the plaintiffs’ flower-beds are covering the weep holes of the house. He said that when it rains one inch per hour, 240 gallons per hour run off the plaintiffs’ roof into the flowerbeds. Mr. Alford said that the dirt in the flowerbeds should be six inches below the slab level to keep water away from the slab.

Hubbard Donald was retired from construction work and testified for the defendants. He stated that the property slopes from the southeast to the | innorthwest. In October 2009, he went to the property to observe a heavy rainfall. Most of the water on the Alfords’ property went into a catch basin and the rest went to a swale on the inside of the Alfords’ retaining wall. He did not observe any water going from the Alfords’ property onto the Fiebelkorns’ lot.

Vernon Robert Yepson, who knows both the Fiebelkorns and the Alfords, testified regarding his observations of the two lots. He said that the water from the Alfords’ lot drains onto the golf course. During a recent 4½ inch rain, he did not see any water going over the Alfords’ retaining wall. He stated that the water in the swale was running and not standing. He said that the rain steadily poured off the Fiebelkorns’ roof and filled the flowerbed in the front of the house. He noted that the flowerbeds installed by the Fiebel-korns in 2006 were high up on the bricks and would have flooded in a heavy rain. According to Mr. Yepson, the French drain installed by the Alfords was working well. He stated that after the Alfords built this house, he could no longer drive his golf cart on one side of the Fiebel-korns’ house, not because of the condition of the ground, but because there was not enough room between the wall and the flowerbed.

James Bernard Gaston, a bricklayer, testified that he has seen landscaping on houses that covered the weep holes and caused water to get into the houses. He worked on the Alfords’ lot to install drainpipe to keep the water off the Fiebelkorns’ property.

Mark Anthony Thomey was accepted as an expert in civil engineering. He was hired by the Alfords to evaluate the lot. He made a drainage study report for the two properties. He said that the water flows over the Alfords’ property in a sheet flow until it reaches a drainage collection structure and that | pit is a virtual impossibility for any water to flow from the Al-fords’ lot onto the Fiebelkorns’ property. He noted that with an event like a hurricane, there might be some overflow onto the Fiebelkorns’ property, but with lesser storm events, the drainage structures are adequate. He stated that the ground elevation of the Fiebelkorns’ flowerbed is above the elevation of the slab and that the water in the flowerbeds drains to the south wall of the Fiebelkorns’ house and then travels west along the wall to the golf course. He said that in a rain of one inch per hour, 300 gallons of water would go into the Fiebelkorns’ flowerbed, but the water from the Alfords’ property would be intercepted by the swale.

Mr. Thomey did not agree with Dr. Griffin’s theory about a ground-water mound. He did not think that Dr. Griffin had conducted a sufficient groundwater hydrostatic pressure evaluation to make a definitive determination.

Mr. Thomey observed the inside of the Fiebelkorns’ house and concluded that some damage was due to water and some was attributable to normal foundation settling and movement. He stated that no water from the street was coming across the property.

Roy David Jones has a degree in civil engineering and works with house foundations. He stated that the years prior to Hurricanes Gustav and Ike were relatively dry. He determined that the damage to the Fiebelkorns’ house was caused by drainage from the roof and the flowerbeds. He stated that, for every inch of rain that falls, the roof puts 800 gallons of rain into the flowerbeds and the water is trapped by the clay soil. He also noted that the flowerbeds were above the weep holes of the house.

112When asked about Dr. Griffin’s use of piezometers to measure groundwater, Mr. Jones said that four piezometers in the area of the flowerbeds are not sufficient to determine the presence of groundwater. He said that the surface soils are basically a clay type, which are impermeable, and that it is very difficult for there to be ground water in that type of soil as shallow as three feet. He further stated:

It is my opinion that this water is water that is migrating from the flowerbeds into these piezometers that are in the vicinity of the flowerbed. And it’s also based on the fact that due to the French drain that was installed at a location selected by Dr. Griffin, myself, Mr. Alford, and Mr. Fiebelkorn, that that was installed at a depth of approximately three feet below the existing ground surface, and it was installed dry while water was still in the piezometers that were within a few feet of this open trench. To me, that indicates that the water did not come from the Alfords’ residence toward the Fiebelkorns’ but from the Fiebelkorns’ toward the Al-fords’.

He opined that it takes a substantial amount of water to saturate clay soil to a sufficient depth beneath the structure so as to create a volumetric swell and pressures in an upward direction. His opinion was that the Fiebelkorns’ problems were not caused by groundwater; he said the problem was surface water. He suggested that dirt work be done on the side of the Fiebelkorns’ house so as to form a positive grade away from the house.

On November 11, 2011, the trial court signed and filed a judgment in favor of the Alfords, dismissing the Fiebelkorns’ claims with prejudice. The trial court stated that it considered the lay and expert testimony, as well as making a visit to the site. The court found that the Fiebelkorns failed to carry their burden of proof. The Fiebel-korns appealed.

On appeal, the Fiebelkorns argue that the trial court erred in failing to find that the Alfords were negligent and were liable under La. C.C. arts. 2315, | 1S656, and 667, for the flooding and drainage problems which damaged the plaintiffs. According' to the Fiebelkorns, the Alfords were in violation of La. C.C. art. 656 in making a servitude of drainage more burdensome on the servient estate. They contend that the Alfords created a groundwater mound which increased the groundwater pressure on the neighboring property, resulting in damages to the property and to the plaintiffs. The Fiebelkorns maintain that the Alfords conducted work on their lot which led to the filling and blocking of the drainage swale of the Fiebelkorns’ property. They claim that this increased the flow and rate of flow of water, resulting in flooding and damage to the Fiebelkorns and their property. The Fiebelkorns argue that the trial court erred in failing to award them general and special damages and costs.

LEGAL PRINCIPLES

General tort liability is imposed by La. C.C. art. 2315 which provides in pertinent part:

A. Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.
B. Damages may include loss of consortium, service, and society, and shall be recoverable by the same respective categories of persons who would have had a cause of action for wrongful death of an injured person....

The servitude of natural drain is set forth in La. C.C. arts. 655 and 656. La. C.C. art. 655 provides:

An estate situated below is bound to receive the surface waters that flow naturally from an estate situated above unless an act of man has created the flow.

La. C.C. art. 656 states:

The owner of the servient estate may not do anything to prevent the flow of the water. The owner of the dominant estate may not do anything to render the servitude more burdensome.

114 Accor ding to La. C.C. art. 655, the natural servitude of drainage exists only for natural water flow and not for water flow created by “an act of man.” An owner whose land drains naturally onto the land of his neighbor may install conduits on his own land, and on the neighbor’s land with the neighbor’s permission, to concentrate and speed the flow of water beyond the slow natural process by which it would ultimately reach its destination, provided this does not increase the amount of water that flows over the neighbor’s land. Tool House, Inc. v. Tynes, 564 So.2d 720 (La.App. 2d Cir.1990), unit denied, 568 So.2d 1087 (La.1990).

The right to make work on an estate is set forth in La. C.C. art. 667 which states in pertinent part:

Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. However, if the work he makes on his estate deprives his neighbor of enjoyment or causes damage to him, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known that his works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care....

As a general rule, the landowner is free to exercise his rights of ownership in any manner he sees fit. He may even use his property in ways which occasion some inconvenience to his neighbor. However, his extensive rights do not allow him to do real damage to his neighbor. In determining whether a work or activity occasions real damage or mere inconvenience, a court is required to determine the reasonableness of the conduct in light of the circumstances. This analysis requires consideration of factors such as the character of the neighborhood, the degree of intrusion and the effect of the 1/¡activity on the health and safety of the neighbors. Atkins v. Six C Properties, L.L.C., 45,682 (La.App.2d Cir.11/3/10), 55 So.3d 120.

Where recovery is based on an owner’s use of property that causes damage to a neighbor, the injured party must establish causation between the owner’s action or inaction and the damage resulting from the defendant-owner’s act or omission. Haworth v. L’Hoste, 95-0714 (La.App.4th Cir.11/30/95), 664 So.2d 1335, writ denied, 96-0408 (La.3/29/96), 670 So.2d 1235.

An appellate court may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” The issue to be resolved by the appellate court is not whether the trial court was right or wrong, but whether its conclusion was a reasonable one. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart v. State, through Department of Transportation and Development, 617 So.2d 880 (La.1993). Where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Taylor v. Haddox, 42,557 (La. App.2d Cir.10/31/07), 968 So.2d 1200, writ denied, 2007-2368 (La.2/1/08), 976 So.2d 724.

A trial court evaluates expert testimony using the same principles that apply to other witnesses or lay opinions. Where experts differ in their testimony, it is the trial court’s responsibility to decide which is most credible. Carr v. Oake Tree Apartments, 34,539 (La.App.2d Cir.5/9/01), 786 So.2d 230, writ denied, 2001-1682 (La.9/21/01), 797 So.2d 675.

|1fiDISCUSSION

Although in the present case the trial court gave very limited reasons for judgment, it did state that it considered the lay and expert testimony and visited the site. The trial court found that the Fiebelkorns failed to carry their burden of proof.

As stated earlier, the servitude of natural drainage exists under La. C.C. art. 655 and provides that the estate situated below is bound to receive surface waters that flow naturally from an estate situated above, unless an act of man has created the flow. Under La. C.C. art. 667, the owner of an estate cannot make any work on it which deprives his neighbor from enjoying his own or which may be the cause of any damage to him. To prove liability under La. C.C. art. 667, there must be proof of causation and damages.

In the present case, the Fiebelkorns presented lay and expert testimony tending to show that the construction of the Alfords’ house caused excess amounts of water to collect on the Fiebelkorns’ property, raising the level of groundwater, which resulted in water wicking into the house through cracks in the slab.

The Alfords presented lay and expert testimony tending to show that the Fiebel-korns’ water damage was caused by the installation of a sprinkler system and extensive flowerbeds which covered the weep holes of the house and collected rainwater falling off the Fiebelkorns’ roof. The flowerbeds were installed in 2006 and the Al-fords built their house in 2008. Although the Fiebelkorns claim that they did not have water damage until the Alfords built their house, there was testimony that several years prior to 2008 were dry and in _Jjj2008, during the construction of the Al-fords’ house, two hurricanes passed through the area in close succession.

Many of the experts, including some offered by the Fiebelkorns, stated that in some places, the flowerbeds were covering weep holes of the house and that water standing in the flowerbeds was the source of the Fiebelkorns’ water damage. There was expert testimony establishing that the Alfords have employed extensive measures to prevent water from their property from flowing onto the Fiebelkorns’ lot. These measures included the installation of two retaining walls, several drainpipes, French drains, catch basins, and swales on the Alfords’ property as well as the installation of a French drain on the Fiebelkorns’ lot.

Although some of the Fiebelkorns’ experts stated that the construction of the Alfords’ house caused the water damage to the Fiebelkorns’ house, this was basically a battle of experts where the plaintiffs’ witnesses claimed that the water damage was caused by the Alfords’ construction and the defendants’ experts opined that the problem was caused by the Fiebelkorns’ landscaping, sprinkler system, and roof runoff. The trial court found that the evidence and testimony offered by the Al-fords was more credible. In this matter, we cannot say that the trial court’s determination was manifestly erroneous or clearly wrong. The trial court’s conclusion was reasonable and we affirm its judgment.

CONCLUSION

For the reasons stated above, we affirm the judgment of the trial court in favor of the defendants, Allen Ray Alford and Janet Schultz Alford, rejecting the claims of the plaintiffs, Jack L. Fiebelkorn and Jean F. Fiebelkorn. Costs in this courts are assessed to the plaintiffs.

I,«AFFIRMED.

      . Weep holes are openings in the brick to allow water vapor to escape from the confined walls of the house.