source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge.

license: Public Domain

text:
    Christa R. ST. PIERRE, Individually and on Behalf of Her Minor Child, Brooke Nicole St. Pierre v. LOUISIANA S.W. TRANSPORTATION, INC., ET AL.
    No. 08-CA-532.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 12, 2009.

      R. Ryland Percy, III, Katherine Tess Stromberg, Erin Wiley Lanoux, Gordon Dallon Bush, II, Percy, Stromberg, Bush & Lanoux, Gonzales, LA for Plaintiff/Appellant, Christa R. St. Pierre, Individually and on Behalf of Her Minor Child, Brooke Nicole St. Pierre.
    H. Alston Johnson, III, Marshall M. Redmon, Annette N. Peltier, Phelps Dunbar LLP, Baton Rouge, LA, for Defendants/Appellees, A3M Vacuum Service, Inc. and Evanston Insurance Company.
    Raymond C. Jackson, III, Allen & Gooch, Lafayette, LA, for Defendants/Ap-pellees, United States Fire Insurance Company, Steven A. Guidry, Jr., and Louisiana S.W. Transportation, Inc.
    Richard L. Edrington, Laplace, LA, for Defendant/Appellee, Parish of St. John the Baptist.
    Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge.

|3The plaintiff appeals several summary judgments that dismissed her tort claims. We affirm one judgment, vacate three other judgments, and remand.

PROCEEDINGS BELOW

This is a wrongful death and survival action brought by the survivors of Darren P. St. Pierre, who died of injuries sustained when his pickup truck crashed into the rear of an eighteen-wheel tractor-trailer rig.

On October 5, 2005, at approximately 7:20 p.m., St. Pierre was driving south on Louisiana Highway 54 in St. John the Baptist Parish. Ahead of him on the road was a tractor rig pulling a tanker trailer, operated by Steven Guidry. Guidry’s rig had slowed because Guidry was preparing to make a left turn into the sewer treatment plant on the east side of Hwy. 54. As the rig began to make the turn, St. Pierre’s truck crashed into the rear of the tanker trailer. St. Pierre was severely injured and died within a few hours.

Darren St. Pierre’s widow, Christa St. Pierre (hereafter “the plaintiff’), filed suit individually and on behalf of her minor child against Steven A. Guidry, Jr., as driver of the eighteen-wheeler, and Louisiana S.W. Transportation, Inc., as his 14employer (hereafter collectively called “L.S.W.T.”); the Parish of St. John the Baptist (“the Parish”) in its capacity as owner of the Garyville Wastewater Treatment Facility; A3M Vacuum Services, Inc. (“A3M”), which contracted with the Parish to dispose wastewater in the Garyville facility and which hired L.S.W.T. to deliver wastewater to the facility; and various insurers of the defendants.

The plaintiff asserted her husband’s death resulted from a combination of events. She alleged the Parish and A3M were negligent in entering into a contract allowing A3M to truck in sanitary waste-water to the Parish’s Garyville treatment facility with full knowledge that the heavy truck traffic on Louisiana Highway 54 would be significantly increased, specifically by the slowing down and stopping of heavy trucks on a frequent basis, without taking steps to warn the motoring public of such activity. She alleged that Guidry failed to maintain a proper lookout, that he drove the truck beyond the safe and customary daily recommended allowance, and that he committed other acts of negligence set forth in the petition, to be proven at trial. The plaintiff further alleged that L.S.W.T. negligently hired and trained Guidry and encouraged him to drive beyond the daily time limits and in a fatigued state. Finally, the plaintiff alleged that A3M and L.SW.T. are vicariously liable for Guidry’s negligent acts.

A3M filed a motion for summary judgment on the grounds that it is not vicariously liable because it did not exercise control over Guidry’s actions and that it had no duty to warn of increased truck traffic on the highway. The trial court granted the motion in part as to the issue of duty-to-warn, but denied it in part as to whether A3M exercised control over Gui-dry.

The plaintiff filed a motion for reconsideration of the ruling, and also sought supervisory review by writ application to this Court. We denied the application | ¿because the motion to reconsider the ruling was still pending in the trial court. Subsequently the court denied the motion to reconsider.

Thereafter the Parish filed a motion for summary judgment, asserting not only that it was not negligent, but also it was entitled to immunity pursuant to La.R.S. 9:2800.17. That statute, passed by Acts 2006, No. 402, § 1, eff. June 15, 2006, provides immunity to state and political subdivisions, as well as their employees, agents and representatives, for operational activities related to Hurricanes Katrina and Rita. L.SW.T. and A3M also filed motions for summary judgment, claiming immunity under La.R.S. 9:2800.17. In addition, A3M and L.S.W.T. claimed immunity under La.R.S. 29:735, a part of the Louisiana Homeland Security and Emergency Assistance and Disaster Act, which provides for immunity from liability of the state, its political subdivisions, agencies, and their employees or representatives engaged in homeland security and emergency preparedness activities.

The Parish, A3M, and L.S.W.T. asserted that the wastewater being delivered by L.S.W.T. on behalf of A3M was generated by cruise ships moored in the Mississippi River that were providing temporary housing for post-Katrina rescue, emergency, and law enforcement personnel, and that A3M was under contract with Waste Management National Services, Inc. (“WMNS”).to pick up the wastewater.

The trial court granted the summary judgment motions based on statutory immunity under La.R.S. 9:2800.17 and rendered separate judgments for each of the motions. As to A3M and its insurer the court ruled, “Defendants are entitled to immunity as contractors of the Parish of St. John the Baptist pursuant to La.R.S. 9:2800.17. Because Defendants are entitled to immunity under La.R.S. 9:2800.17, the Court does not reach the issue of whether Defendants are entitled to immunity | (iunder the Louisiana Homeland Security Emergency Act provided for in La.R.S. 29:721 et seq.” The judgments in favor of the Parish and L.S.W.T. simply granted their motions without written comment.

On appeal the plaintiff asserts (1) the trial court erred in granting summary judgment in favor of A3M, L.S.W.T., and the Parish on the basis of statutory immunity under La.R.S. 9:2800.17, because application of the statute deprives the plaintiff of her vested cause of action arising from her husband’s fatal accident; (2) the trial court erred in granting A3M’s motion for summary judgment on liability, thereby dismissing the negligence or “duty to warn” claim against A3M, and in denying the plaintiffs motion to reconsider the ruling.

After the appeal was lodged, the plaintiff filed in this Court a “Motion for Leave to Oppose the Application of La.R.S. 9:2800.17 to This Litigation and to Appoint a Private Process Server to Effect Service Upon the Louisiana Attorney General.” She argued that the statute was passed in June 2006, well after her cause of action accrued in October 2005 and after her suit was already pending. She asserted that by granting the motions filed by the defendants, the trial court unconstitutionally divested her of her vested cause of action concerning her husband’s fatal accident. We granted permission for the plaintiff to file the motion and to serve the state attorney general.

LAW AND ANALYSIS

Statutory Immunity

As noted above, La.R.S. 9:2800.17 provides immunity of state and political subdivisions for operational activities related to Hurricanes Katrina and Rita, in pertinent part as follows:

|7A. (1) The state, or any political subdivision thereof, or any public entity, meaning and including the state and any of its branches, departments, offices, agencies, boards, commissions, instru-mentalities, officers, officials, employees, and them agents, employees, contractors, volunteers, or representatives engaged in any operational decisions or activities in the aftermath of Hurricanes Katrina and Rita shall not be civilly liable for the death of, or any injury to, any person or damage to property as a result of such activity, except in the event of gross negligence or willful misconduct.

The statute was enacted by Acts 2006, No. 402, § 1. Section 2 of Act 402 provides, “The provisions of this Act shall have both prospective and retroactive application and shall be applied retroactively to August 29, 2005.” (Section 3 provides the provisions of the Act “shall terminate and expire on August 28, 2008.”)

We find the motions for summary judgment were improperly granted because the movers failed to establish properly that A3M and L.S.W.T. were “agents, employees, contractors, volunteers, or representatives” of the “state, or any political subdivision thereof, or any public entity, meaning and including the state and any of its branches, departments, offices, agencies, boards, commissions, instrumentalities, officers, officials, employees.... ” A3M and L.S.W.T. hold themselves out as agents of the Parish and, as such, entitled to protection under the immunity statutes. In fact, although A3M and L.S.W.T. contracted with the Parish, they were not operating on behalf of the Parish but rather on behalf of WMNS and, presumably, on behalf of a government agency with which WMNS had contracted to dispose of wastewater from the ships that housed emergency response workers. However, none of the affidavits and other documents filed by A3M and L.S.W.T. disclose that “chain of custody” of the wastewater. Hence, we deem the supporting papers inadequate to settle the material question of fact as to whether A3M and L.S.W.T. were acting as “agents, employees, contractors, volunteers, or j ^representatives” of the “state, or any political subdivision thereof, or any public entity” as required for the immunity statutes to apply.

Similarly, in order to establish its right to immunity under those statutes, the Parish was required to show the wastewater it was receiving resulted from Hurricane Katrina. In support of its motion the Parish filed a copy of the Wastewater Discharge Permit issued by its Department of Utilities to A3M on September 12, 2005. Attached to the permit was a copy of an On-Site Environmental and Remediation Services Subcontract between WMNS and A3M. That contract, however, was dated November 25, 2003 (prior to Hurricane Katrina), and it made no reference to Hurricane Katrina. There were no documents, affidavits or depositions from WMNS or government agency personnel to support the Parish’s claim that the wastewater A3M was discharging into the Parish’s water treatment facility was a product of Katrina-related operational activities. There was nothing to show a chain linking A3M (and through it, the Parish) to the state, or any public entity as the source of the wastewater, or the source of the wastewater as disaster-related operations.

Likewise, the documents offered in support of the motions for summary judgment by A3M and L.S.W.T. on the immunity issue fail to link A3M, or L.S.W.T. as subcontractor to A3M, to the state, or any public entity, as the source of the wastewa-ter, or to show that the source of the wastewater was Katrina-related operations. A3M’s motion included an affidavit by A3M manager Pat Sellars that A3M contracted with WMNS “to provide environmental services, including the transporting and disposal of sewer water from various barges housing Hurricane Katrina emergency relief workers.” Like the Parish, however, A3M does not provide supporting documents to establish a chain linking WMNS back to a public |flentity. Thus, there remains a question of material fact as to whether A3M could be considered within the classes protected by the immunity statutes.

On motion for summary judgment the mover bears the burden of proof that there is no genuine issue of material fact and that the mover is entitled to summary judgment as a matter of law. La.C.C.P. art. 966. “It is insufficient for an affiant to merely declare he has personal knowledge of a fact. The affidavit must affirmatively establish that the affiant is competent to testify to the matter stated by a factual averment showing how he came by such knowledge.” Barham & Churchill v. Campbell & Associates, 503 So.2d 576, 579 (La.App. 4 Cir.1987).

Here, the documents provided by the Parish, A3M, and L.S.W.T. do not provide facts to support the theory that A3M and L.S.W.T. were “agents, employees, contractors, volunteers, or representatives” of the “state, or any political subdivision thereof, or any public entity.” Accordingly, they do not properly support summary judgments in favor of the movers. Those judgments are vacated.

Attack on Constitutionality Made in Appellate Court

The trial court did not rule on constitutionality of La.R.S. 9:2800.17 because the issue had not been presented in the proper pleadings, nor had the attorney general been served. The plaintiff attempted to cure that problem by filing her motion in this Court, and serving it on the attorney general. On consideration of the record, however, we find our order permitting the plaintiff to file the motion raising unconstitutionality in this Court was improvidently granted.

| mUnder La.C.C.P. art. 852, the pleadings allowed in civil actions are petitions, exceptions, written motions and answers. Therefore, when the unconstitutionality of a statute is specifically pleaded, the claim must be raised in a petition (the original petition, an amended and supplemental petition or a petition in an incidental demand), an exception, a motion or an answer. Vallo v. Gayle Oil Company, Inc., 94-1238, p. 8 (La.11/30/94), 646 So.2d 859, 865. It cannot be raised in a memorandum, opposition or brief as those documents do not constitute pleadings. Id.

The plaintiff does not contend that La. R.S. 9:2800.17 is unconstitutional on its face, but only that it would be unconstitutional to apply the statute to the facts of this particular case. She states she filed the motion in this Court to satisfy the requirement that the unconstitutionality of a statute must be raised in a pleading, such as a motion, petition, answer or exception. At the trial court level she raised the unconstitutionality issue in various memoranda in opposition to the motions for summary judgment filed by the defendants. She states that none of the defendants objected to the manner in which she asserted it, nor to her failure to serve the Attorney General.

Louisiana litigants must raise constitutional attacks in the trial court, not the appellate courts, and the constitutional challenge must be specially pleaded and the grounds for the claim particularized. Unwired Telecom Corp. v. Parish of Calcasieu, 2003-0732, p. 6 (La.1/19/05), 903 So.2d 392, 399.

In Several exceptions to this general rule have been recognized: (1) when a statute attempts to limit the constitutional power of the courts to review cases; (2) when the statute has been declared unconstitutional in another case; (3) when the statute applicable to the specific case becomes effective after the appeal is lodged in the higher court; or (4) when an act which is the basis of a criminal charge is patently unconstitutional on its face and the issue is made to appear as an error patent on the face of the record. Mosing v. Domas, 2002-0012 (La.10/15/02), 830 So.2d 967.

None of those situations fits in this case. We erred in granting the plaintiffs motion to raise the constitutionality of the statute in this Court when it was not properly raised in the district court. To better resolve the constitutional issues, we vacate the judgments and remand the matter to the trial court, where the plaintiff may raise the issues properly and the trial court may consider and rule on the constitutional questions.

Duty to Warn Claim Against A3M

The plaintiff appealed the judgment that denied her motion to reconsider the July 27, 2007 partial summary judgment dismissing the duty-to-warn claim against A3M. We note that appeal of the denial of the motion to reconsider is actually an appeal of the underlying judgment, because that judgment was not final until the motion to reconsider was decided. Although the July 27, 2007 judgment dismissed only part of plaintiffs claims against A3M, the trial court designated it (via the judgment on the motion to reconsider) as final for purposes of appeal, pursuant to La.C.C.P. art. 1915(B)(1).

We find no error in the ruling. The trial court found that A3M had no duty to warn of highway conditions because the Department of Transportation and Development (“DOTD”) has the statutory duty to supervise and regulate all traffic |12on state highways. La.R.S. 32:2; La.R.S. 48:21. As such, DOTD’s regulatory duties include providing signs to warn motorists of unexpected dangers. We find no basis to establish a duty on the part of A3M to warn motorists of dangers on a state highway under the circumstances in this case.

Decree

For the foregoing reasons, we affirm the judgment of July 27, 2007 granting partial summary judgment in favor of A3M Vacuum Services on the issue of a duty to warn relating to traffic on the highway, and the judgment of October 17, 2007 denying the plaintiffs motion to reconsider the July 27, 2007 judgment.

We vacate our order that allowed the plaintiff to file the Motion for Leave to Oppose Application of La.R.S. 9:2800.17 and to serve such pleadings on the Louisiana Attorney General.

We vacate the judgments granting summary judgment on the issue of statutory immunity, specifically the judgment of September 26, 2007 in favor of A3M Vacuum Service, Inc. and Evanston Insurance Company; the judgment of October 3, 2007 in favor of the Parish of St. John the Baptist; the judgment of November 15, 2007 in favor of United States Fire Insurance Company, Louisiana S.W. Transportation, Inc., and Steven A. Guidry.

The case is remanded to the district court, which is instructed to permit the defendants to supplement their motions for summary judgment, considering our ruling on the issues of genuine material fact. In addition, the court shall permit the plaintiff to file appropriate pleadings regarding the constitutionality of La.R.S. 9:2800.17 and/or La.R.S. 29:735. Thereafter, the district court shall consider and rule on the issues as raised by such pleadings and other documents.

11HWe defer assessment of costs of this appeal, which may be taxed by the trial court upon completion of the lawsuit.

JUDGMENT OF JULY 27, 2007 AFFIRMED; JUDGMENTS OF SEPTEMBER 26, 2007, OCTOBER 3, 2007, AND NOVEMBER 15, 2007 VACATED; CASE REMANDED.

      . Guidry asserted he had slowed his rig to five to ten miles per hour and had activated his turn signal about 200 feet before he reached his turning point. The defendants allege that St. Pierre's truck was traveling at approximately 71 miles per hour in a 55-mile-per-hour zone.

      . The insurers arc Evanston Insurance Company (A3M); United States Fire Insurance Company (LSWT and Guidry); St. Paul Fire & Marine Insurance Company (the Parish).

      . La.R.S. 9:2800.17 expired effective August 28. 2008. under the terms of Acts 2006. No. 402, § 3.

      . The plaintiff has filed an affidavit of proof of service, stating that service was made on the attorney general’s office by a private process server. The attorney general has not responded.

      . "An agency relationship is never presumed. In Louisiana an agency relationship is created by either express appointment of a mandatary under LSA-C.C. art. 2985, or by implied appointment arising from apparent authority. Therefore, an agent's authority is composed of his actual authority, express or implied, together with the apparent authority which the principal has vested in him by his conduct.” Duplessis Cadillac, Inc. v. Creative Credit Services, Inc., 564 So.2d 336, 338-339 (La.App. 1 Cir.1990), citing Boulos v. Morrison, 503 So.2d 1 (La.1987).

      . The plaintiff relies on our supreme court’s recent decision in Burmaster v. Plaquemines Parish Government, 2007-2432, pp. 1-2 (La.5/21/08), 982 So.2d 795, 798-799, which upheld a lower court judgment that declared unconstitutional La. Act 545 of 2006, incorporated into the Louisiana Revised Statutes as 9:2800(H). The Burmaster court found application of the statute was unconstitutional because the plaintiffs' claims accrued, became vested, and were pending prior to the effective date of the act, and application of the statute would divest plaintiffs of their due process rights. 2007-2432 at 1, 982 So.2d at 799. The supreme court concluded the statute was enacted after acquisition of a vested property right, and therefore it "cannot be retroactively applied so as to divest the plaintiff of his vested right in his cause of action because such a retroactive application would contravene the due process guaranties.” 2007-2432 at 17, 982 So.2d at 808. Like the act that created the statute in this case, Act 545 of 2006 contains an express retroactivity clause.


author: MOORE, J.

text:
    STATE of Louisiana in the Interest of C.H., Plaintiff-Appellee v. S.P.H., Defendant-Appellant.
    No. 44,401-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    May 20, 2009.
    Rehearing Denied June 12, 2009.

      D. Rex Anglin, Shreveport, for Appellant.
    Susan D. Scott, Shreveport, for Appel-lee.
    Kristy Nicole Holmes, for C.H.
    Before BROWN, DREW and MOORE, JJ.
   MOORE, J.

11 This is an appeal of a Child in Need of Care (CINC) adjudication from the First Juvenile District Court, Caddo Parish, the Honorable Paul Young presiding. The court adjudicated the minor female child, C.H., as a child in need of care based on its finding that the father committed sexual abuse by touching the four-year-old child inappropriately. He appeals this finding and the judgment based upon it. The mother answers the appeal, demanding that the couple’s son, S.H., also be declared a child in need of care despite no allegations or findings of abuse. For the reasons that follow, we reverse the judgment adjudicating C.H. a “child in need of care” and vacate the judgment of disposition; the mother’s answer to the appeal is dismissed, and the case is remanded to the juvenile court with instructions.

Facts and Procedural History

This CINC proceeding was initiated by the child’s mother while in the middle of a custody dispute incidental to a divorce proceeding filed in the First Judicial District Court filed on November 28, 2007. The mother moved out of the matrimonial domicile in early November of 2007, and the father remained in the home.

There are two children born of the marriage, C.H. (the alleged victim), age four, and S.H., age three. Pursuant to an interim custody and support judgment in district court, the parents shared joint custody with the mother designated as the domiciliary parent. The father had physical custody of the children every other weekend from Thursday evening to Monday morning. Because the parties could not agree on custody and visitation, the district court ordered the parties to mediate the custody 12issues.

Mediation did not proceed smoothly and was apparently breaking down by early May of 2008. We are able to glean from the record that the mother and the father had disagreed over the extent to which the father could have physical custody of the children. The mother did not want a 50-50 physical custody agreement because she wanted to move back to Arkansas with the children, while the father wanted to share physical custody of the children on an equal basis. In a facsimile sent on May 2, 2008 to the father’s attorney, the mother’s attorney stated that “mediation is not working,” and he asked, “how about Shelly Booker to be appointed?”. The mother’s counsel was referring to a proposal to engage a local social worker for a child custody evaluation. Shortly after this faxed letter, the allegations of sexual abuse surfaced and proceedings in the juvenile court commenced.

The mother testified that on May 6, 2008, she observed C.H. “touching herself a lot” (in the genital area) and asked the child what she was doing. She said that the child told her she was “tickling it.” She questioned the child further, she said, and that C.H. told her that her father tickles her in the bedroom and other places. The mother said she called her mother and several counselors who advised her to contact the Office of Community Services.

The mother contacted the Caddo Parish Office of Community Services (“OCS”) on May 6 or May 7, 2008. David Ersoff, an employee of |3OCS at that time, was assigned to investigate the mother’s allegations. After interviewing the mother on May 7, Mr. Ersoff scheduled a Gingerbread House interview and CARA Center examination. He also reported the allegation to the Shreveport police sex crimes unit. Detective Anthony Rei was assigned to the case.

The Gingerbread House interview took place on May 18, 2007. Mr. Ersoff and Det. Rei observed the interview from an adjoining room, but were connected via an intercom device to the interviewer, Crystal Clark, enabling them to communicate with Ms. Clark during the interview. During the interview, which was videotaped and reviewed by this court, C.H. appeared to be relaxed and responsive to Ms. Clark’s questions. As will be discussed in more detail below, C.H. stated that her father “did not” and then later indicated that he “did” tickle her on her “booty” as well as her knees, belly, ribs, etc. She was equally equivocal as to whether the alleged tickling occurred outside or inside her clothing. C.H. said her father did not, as stated by the mother, kiss her “booty,” the term she used for her genital area, nor was she afraid when her father tickled her.

The mother testified that, after the interview, Mr. Ersoff and Det. Rei told her that they were going to continue with the investigation and felt like “there is enough,” saying that C.H. did say that the father touched her under her clothes.

Mr. Ersoff accompanied the mother and C.H. to the CARA Center to have a medical exam of C.H. performed by Dr. Jennifer Rodriguez. According to Mr. Ersoff, the medical report indicated that C.H. had a labial adhesion of unknown origin. Mr. Ersoff testified that he understood Dr. | .Rodriguez to conclude that the labial adhesion “may or may not have come from sexual abuse.” C.H.’s hymen was intact. C.H. was prescribed an ointment which subsequently cleared up the adhesion.

Mr. Ersoff then assisted the mother in writing a protective order to keep the father from having his upcoming visitation with C.H. after he advised her that she had two choices: either she had to get a protective order or the state could obtain an instanter order and take C.H. into state custody. Athough represented by counsel in the pending divorce proceeding, the mother apparently filed a pro se petition for a protective order the following day, May 14, 2008.

On the other hand, Det. Rei, who witnessed the interview, testified that the interview was a “poor interview.” He said that Mr. Ersoff reported to him that the medical examination showed no evidence of sexual abuse. He interviewed the father on May 15, 2008 regarding the allegations. Detective Rei said he was also subsequently informed by Mr. Ersoff of an email from the mother on May 21, a week after the Gingerbread House interview. The mother reported that C.H. disclosed to her that her father tickled her “front booty” with a “bumblebee” massager. However, Det. Rei did not investigate this new allegation because, in his view, it was “tainted” because the mother had shown the child pictures of the massager. He discussed the case with his supervisor and they decided to close the case and it would not be referred to the D.A. for further action.

|flThe mother sent the email in question to Mr. Ersoff on May 21, 2008. In it she reported that while she was applying medicine to C.H.’s labia with a Q-tip, C.H. said that it tickled, and that “Daddy does it without medicine.” She wrote also that C.H. further said that sometimes it tickles and sometimes it hurts “When he does the bumblebee on my front booty.” She said she then recalled that she and the father had a bumblebee massager that vibrates. The mother then looked for pictures of a bumblebee massager online, and after finding it, showed it to C.H., who identified the bumblebee and pointed to her vagina and said, “It hurts. Don’t tell Daddy it hurts.” The mother also stated in concluding the email to Mr. Ersoff that she was not sure if she had mentioned to him that the father was addicted to pornography.

Prior to the email, the juvenile court issued a restraining order on May 14, 2008, noting on the order that it had conferred with the First Judicial District Court presiding judge, and the juvenile court was “assuming exclusive jurisdiction of this case of alleged sexual abuse of the child pending hearing and adjudication.” The order also provided that the father would not be allowed visitation with the children pending further orders. A hearing was scheduled for May 28, 2008.

In response to the mother’s motion, on May 21, 2008, the father filed a motion to transfer the matter to district court pursuant to La. Children’s Code art. 1568(E), which provides that “if a suit for divorce is pending, any application for a protective order shall be filed in that proceeding.” The father also requested that the court order the Department of Social Services to allow him access to their investigative file so that he could defend against | (ithe petition for a protective order.

Rather than dismiss the motion or transfer the matter to the district court, the juvenile court, sua spoute, authorized the mother to file a CINC petition and granted her 10 days to amend her petition accordingly. The court issued a modified protective order maintaining the prior restraining order be in force until June 9, 2008.

Given court authorization, the mother filed a CINC petition on June 4, 2008, again alleging that the father had inappropriately touched their daughter. The matter was scheduled for a hearing on August 20, 2008.

Between the time of the original petition filed by the mother and the first of several evidentiary hearings beginning on August 20, 2008, in addition to the investigations by Mr. Ersoff of the OCS and Det. Rei of the Shreveport Police Department, the court appointed a “CASA” (Court 17Appointed Special Advocate) representative from the Volunteers of Youth Justice. CASA supervisor Kelli Todd filed a report by letter to the juvenile court in advance of the evidentiary hearing. The report detailed CASA’s three interviews with C.H. in its investigation of the allegations. At the conclusion of the report, CASA recommended to the juvenile court that the previous custody judgment of the district court be immediately reinstated. Ms. Todd was concerned that the parents were in the middle of a custody dispute and that CASA “does not feel that C.H. has freely disclosed information to CASA and in fact C.H. told CASA that her mother told her to tell CASA about the bumblebee.”

After the CASA recommendation, the father filed a reconventional demand alleging that the children were in need of care as victims of abuse by the mother, who was vindictively attempting to deprive the children of their natural relationship with their father by using C.H. as a tool to fabricate false allegations against him. However, the juvenile court denied the father authorization to initiate a CINC proceeding and treated his pleading as simply a “motion to dismiss” the mother’s petition.

At some point prior to the hearing, pursuant to Art. 607 of the Children’s Code, the court appointed an attorney for C.H. from the Mental Health Advocacy Service to represent the interest of C.H.

Trial was held on August 20, September 23, 25, and 30. The court issued oral reasons for judgment on October 15, 2008, finding that C.H. was a child in need of care, but expressly finding that S.H. was not a child in|sneed of care.

Specifically, the court found that the mother was credible in reporting the child abuse despite the numerous “attacks” on her credibility. It also found that C.H. made a disclosure of sexual abuse at the Gingerbi*ead House interview although there were inconsistencies in her disclosure. It concluded that the “fundamental” disclosure was not prompted or the product of improper leading.

The court also found that the statements of the child were not “clear and convincing,” but found evidence to corroborate the mother’s and the child’s statements in the testimony of Dr. Rodriguez, who the court said found that the labial adhesion was “consistent” with the allegation of sexual molestation.

Pursuant to a judgment of disposition filed on November 19, 2008, C.H. was placed in the mother’s sole custody subject to the exclusive jurisdiction of the juvenile court. The father was allowed weekly supervised visitation with C.H. at his cost, plus counseling costs for the child, “sexual perpetrator” counseling for himself, and child support.

The father filed this appeal, assigning three errors to the juvenile trial court and contending that it manifestly erred or abused its discretion in three of its factual findings to support its adjudication of C.H. as a child in need of care.

The mother answered the appeal demanding that S.H. also be declared a child in need of care.

C.H.’s attorney also submitted a brief on behalf of C.H. that aligned herself with the mother’s position in this appeal.

|9Discussion

It is well settled that an appellate court cannot set aside a juvenile court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. In re A.J.F., 2000-0948 (La.6/30/00), 764 So.2d 47; State ex rel. J.A., 43,998 (La.App. 2 Cir. 12/3/08), 999 So.2d 811. In a manifest error review, it is important that the appellate court not substitute its own opinion when it is the juvenile court that is in the unique position to see and hear the witnesses as they testify. Id. Where there is conflicting testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even when the appellate court may feel that its own evaluations and inferences are as reasonable as those of the juvenile court. Id.; see also Rosell v. ESCO, 549 So.2d 840 (La.1989). If the juvenile court’s findings are reasonable in light of the record reviewed in its entirety, the appellate court may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. In re A.J.F., supra.

Reversal of findings of fact on appeal requires that (1) the appellate court find from the record that no reasonable factual basis exists for the trial court’s finding, and (2) the appellate court determine that the record establishes the finding is clearly wrong or manifestly emmeous. State ex rel. J.A., supra; Williams v. State ex rel. Dept. of Social Services, 37,-923 (La.App. 2 Cir. 1/28/04), 865 So.2d 908, writ denied, 2004-0514 (La.4/8/04), 870 So.2d 276. If there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State, Dept. of Transp. & Dev., 617 So.2d 880|10(La.1993).

We are also mindful that this proceeding was commenced by the mother in the midst of an acrimonious custody dispute. “[W]here the claim of abuse arises in connection with other, highly-charged disputes (such as divorce or custody and visitation proceedings), the determination that sexual abuse occurred is fraught with added dangers:

More and more allegations of incest and [child] sexual abuse by husbands are being made by their wives during custody disputes. If the allegations are proven, the perpetrator, usually the husband/father, is excluded from contact with his children.... Child psychiatrists are frequently used by both sides to evaluate the child and make a determination about the authenticity of the charges.... A mistake might jeopardize a child’s future or destroy a man’s family life and career. Green, “True and False Allegations of Sexual Abuse in Child Custody Disputes,” Journal of the American Academy of Child Psychiatry, vol. 25, 449-456, at p. 449 [1986], And, regardless of the setting where the claim arises, there is also the danger, where it is not the child himself or herself who specifically makes the abuse charge, that unfounded allegations of sexual abuse can have a permanent detrimental effect upon the child. Cf. Matter of Jessica G., 151 Misc.2d 694, 696, 573 N.Y.S.2d 251 [ (1991) ]. See Caryl S. v. Child & Adolescent Treatment Services, Inc,., 161 Misc.2d 563, 614 N.Y.S.2d 661 (N.Y.Sup. May 10, 1994).

As the United States Supreme Court has recognized, “experience has shown that the question of custody, so vital to a child’s happiness and well being, frequently cannot be left to the discretion of parents. This is particularly true where, as here, the estrangement of a husband and wife beclouds parental judgment with emotion and prejudice.” Ford v. Ford, 371 U.S. 187, 193, 83 S.Ct. 273, 277, 9 L.Ed.2d 240 (1962).

The sole issue presented is whether the petitioner established by a preponderance of the evidence that C.H. has been sexually abused by the | nfather and therefore was properly adjudicated a child in need of care. We have reviewed the entire record in this case, including the testimony at trial, the Gingerbread House interview, and the reports and letters contained in the record. Based on this complete review, for the following reasons, we conclude that the trial court was clearly wrong in concluding that there was a preponderance of evidence to support its finding that C.H. was a victim of sexual abuse by the father.

As stated above, the trial court concluded that (1) the mother’s allegations of sexual abuse were credible and not motivated by the custody dispute, (2) the Gingerbread House interview of C.H. confirmed the mother’s allegations and resulted in a credible disclosure of abuse, and (3) the sexual abuse was corroborated by Dr. Rodriguez’s examination. On appeal, the father contends that the trial court erred in each of these findings.

The Mother’s Credibility

We consider the father’s third assignment of error first because it relates to the trial court’s initial finding that the mother’s allegations were credible. The father contends that the trial court committed manifest error by failing to give any weight to the evidence submitted that showed that the mother had a motive to deprive the father of custody by advancing false accusations of sexual abuse through coaching the child.

The mother moved out of the matrimonial domicile on November 1, 2007. In mid-December, the father’s sister moved into the house with him and remained until the end of April. Thus, she was present during the weekends that the father had custody of C.H. The father had custody of 112C.H. only one more weekend after that, from May 1 to 5, and his mother was present during that weekend. Furthermore, the father’s mother was present during nearly all the weekends that the father had custody of the child, making it unlikely, he argues, that he would abuse the child.

The father testified that when the parties separated, he declared he wished to share custody of the children on a 50-50 basis, but the mother made it known, even before the separation, that should they ever separate she would get the children full-time. After the separation, the mother told him that he would not have the children. He testified that the mother called him and asked him not to pursue equal custody of the children, and that, unless he dropped the request, it was going to get ugly.

The father also recounted some of the dates and circumstances in which the mother told him she would not let him have equal custody and that she alone would determine visitation; however, the court disallowed more testimony on the matter, stating that it had no impact upon the child’s disclosure and on the physical findings by a doctor.

C.H.’s paternal grandmother also testified regarding a conversation with the mother after the separation in which the mother told her that she would “fix it where we (the paternal grandparents) would never see the children again.”

The father placed into evidence several photographic images made of the mother’s “My Space” page. These pages contained comments posted by the mother that disturbingly coincide with events in the CINC proceedings. The May 17, 2008 image of her My Space page states: “If you want something done right, you have to do it yourself.” While the mother | ^acknowledged the comment, she claimed no knowledge of what she was referring to, even though the comment was posted three days after she filed the Petition for Protection from Abuse in propria persona. On May 22, 2008, she posted: “He has all eternity to burn in hell. Let him suffer here a while longer.” Again the mother acknowledged the posting, but stated that she could not remember what or whom the posting referred to.

Finally, following the July 29, 2008 report from CASA which she acknowledged she reviewed, the mother wrote on her My Space page:

“S_ would feel much better if she could kick someone’s teeth out ... no one specific ... just wanna feel some teeth crack. Is that so wrong?”

In response to questioning about the page, the mother was again evasive. Finally, The mother posted on July 14, 2008:

“S_ always gets what she wants ... eventually.”

The trial court acknowledged that the My Space “diatribes” were “stupid,” but concluded that they were “understandable” if the allegations of sexual abuse are true. The court said, however, they had no effect on the child’s disclosure and the medical findings.

In its oral reasons for judgment, the court found the mother credible because “her demeanor was calm and controlled, matter-of-fact, not excitable, vengeful, or overly dramatic,” while discounting or explaining away the “attacks” on her credibility.

First, as we have indicated above, we find it questionable that the court authorized a private litigant involved in an ongoing child custody litigation to personally file a CINC petition against the opposing 114parent/litigant accusing him of child sexual abuse. Be that as it may, under these circumstances, when the petitioner’s personal interest in the outcome (obtaining sole custody or depriving the father of custody) might not coincide with the best interest of the child, which, after all, is the paramount goal of the CINC proceeding, a court should be extremely cautious in giving much weight to the accuser’s testimony no matter how cool, calm and collected he or she may appear on the witness stand.

The court also characterized the mother as having a cautious approach with Child Protective Services and stated that Er-soffs testimony made it clear that “Child Protective Services forced the issue of going to court, not [the mother].” Our review of the testimony of Ersoff indicates that the mother wanted to prevent the father from having visitation the upcoming weekend, and Ersoff told her that she had two choices: she could file a protective order herself so that the state could finish its investigation or the state could obtain an instanter order and take custody of the child. It would be easier for her to file the protective order and keep custody of the children. Ersoff then assisted her in filing a protective order. It appears, then, that Ersoff was not prepared to initiate a CINC proceeding because the investigation was not completed.

Regarding whether the mother might have been motivated to file the protective order because of the custody dispute, the trial court noted the May 2nd faxed suggestion that Shelly Booker be appointed for a custody evaluation, although “custody was going relatively well.” On the contrary, _jj¿even if we disregard the father’s testimony regarding threats by the mother during this time to make sure he never saw the children, the mother made the allegation of sexual abuse just four days after the May 2nd letter was sent, and in that letter, counsel for the mother wrote: “Mediation is not working!” This can hardly be construed to mean that the dispute over custody was going relatively well.

The trial court went into lengthy explanations to defend its finding that the mother’s allegations were credible in the face of substantial evidence to the contrary. For example, the mother’s report of C.H.’s alleged disclosure of the bumblebee massager, which the trial court referred to as a sexual weapon and a vibrator, conveniently came to the surface only a few days after the very inconclusive Gingerbread House interview. The bumblebee allegation was found to be not credible even by Mr. Er-soff of the OCS and Det. Rei. The CASA report and Ms. Todd’s testimony regarding CASA’s second and third interview clearly revealed that the mother had coached C.H. regarding the bumblebee massager and what to say at the interview. Given the fact that the bumblebee allegation was manifestly untrustworthy by all counts, one must ask whether the mother’s initial allegation of “tickling” is credible. The court, however, in its reasons for judgment, rejected Ms. Todd’s testimony and the CASA report, ostensibly because Ms. Todd was not credible because she wrote in the report that the mother planned to move to Arkansas, which the mother vehemently denied, despite evidence to the contrary.

These matters, which include the fact that the allegations were made only after mediation of the custody dispute broke down, the CASA findings | lfitaken with and in consideration of the undisputed evidence on My Space and the mother’s desire to keep the father from having equal custody of the children, lead us to the conclusion that the trial court clearly erred in giving little or no weight to the evidence that raises serious questions about the mother’s motivation in making these allegations. Although credibility determinations are the exclusive province of the trier of fact, we find it inconceivable that the court largely ignored or discounted the evidence discussed above. We conclude that the mother’s allegations have little weight in determining whether or not the sexual abuse occurred in this instance. In general, when allegations like these do not arise until after a custody dispute has arisen, the court and appropriate agencies should cautiously investigate the allegations to make an independent determination whether there has been sexual abuse.

The Gingerbread House Interview

By his first assignment of error, the father contends that the trial court erred in finding that the child made a credible disclosure of child abuse during the Gingerbread House interview.

We have closely reviewed the videotape of the Gingerbread House interview and conclude that the disclosure of sexual abuse made by C.H. is, at best, equivocal. The interview took place at a small table in a room. It began with the interviewer, Crystal Clark, giving the child her name and asking C.H. her name. C.H. knew her name and her parents’ and brother’s first names. C.H. did not know her own age (age four). After Ms. Clark told C.H. that she was four years old, Ms. Clark asked C.H. how old was her brother (S.H.). C.H. responded that he was four, when in fact, S.H. wasJjjtwo.

Ms. Clark placed a white page on the table that contained two side-by-side drawings of a young female depicting the front and back side of the body. Ms. Clark then pointed a pen or marker at each part of the body while asking the child to identify the body part. C.H. was able to identify most of the body parts except the chest, namely, the eyes, lips, navel, fingers, genital area, feet and legs on the front part of the body. She referred to the front genital area as the “booty.” She did largely the same on the back side of the drawing, identifying the buttocks also as the “booty.”

When asked if she took baths at her daddy’s house, C.H. said that her daddy and her mommy give her baths. She later stated that when she is at her father’s house, “Nana” gives her baths.

When asked twice if anyone touched her booty, she said “no” to each question. Ms. Clark asked her if anyone did anything to her that scared her, she said “no-yes.” When asked how, C.H. said that [S.H., i.e., her little brother] pushed her against the wall. To the same questions again, she said Nana had a horse and related an unintelligible response regarding it.

At this point, Ms. Clark appeared to have completed her questioning, and asked Mr. Ersoff and Det. Rei, who were observing the interview and had the ability to communicate via private intercom with Ms. Clark, if they had any questions they wanted her to ask. Ms. Clark then asked the child if she ever gets tickled. C.H. said that her daddy tickles her. When asked to show on the drawing where he tickles her, the child first appeared to point to the feet on the drawing and then she said “all over.” When asked if her daddy tidded her on top of her clothes or under them, C.H. said “on top of |1Hher clothes” and again said he tickles her on her back. When asked if her father kissed her, the child said yes, and when asked where, she said on her face and when asked if he kissed her anywhere else, she pointed to her forehead.

Ms. Clark asked the child if she had been told to keep a secret. She said yes, “Nana has a kitty” and something about “Paw Paw.”

Ms. Clark asked C.H. if she remembered that she earlier asked if daddy ever touched her booty. C.H. did not remember. Ms. Clark then asked her again if daddy touched her booty when he tickled her. She said no, then yes, that daddy and mommy, then she said, “no, not mommy.”

Ms. Clark asked C.H. what does he tickle/touch her with and the child said his fingers. When asked if he tickled her on top of her clothes or underneath, she first said on top. Asked again, she said underneath her clothes. It was unclear if she said underneath when she was asked about under her underwear. At the close of the interview, however, Ms. Clark asked her again, pointing on the drawing to the genital area, does he tickle you on top of your clothes or underneath. C.H. answered “on top” of her clothes.

It is also noteworthy that when asked from what part of her body she “tee-teed,” the child pointed to her buttocks on the drawing, even when Ms. Clark questioned her about that answer while pointing to the front genital area. C.H. said she was not afraid when her father tickled her and she liked being tickled.

The father contends on appeal that an objective viewing of the Gingerbread House interview reveals a very immature child and no | ^evidence of abuse. He points out that in her petition, the mother specifically attributes the child’s use of the word “pee-pee” to the child in referring to her vaginal area, but in the Gingerbread House interview, the child uses only the word “booty.” The father also contends that in the CASA interview regarding the bumblebee massager allegation, she uses the phrase “front booty.”

Ersoff reported that the mother emailed him after the Gingerbread House interview and after the interview with the father, relating a new allegation that the child had disclosed to her that her father touched her vaginal area with a “bumblebee” massager.

Mr. Ersoff reported this to Det. Rei; however, Det. Rei declined to further interview the child after learning that the mother had tainted any evidentiary value of interviewing the child by reviewing the matter of the massager and showing her pictures of the massager even after Ersoff told her not to discuss allegations with the child. Detective Rei further stated that in the Gingerbread House interview, the child made inconsistent statements, did not know her colors, and even her own age. It was a “poor interview.”

Even Mr. Ersoff did not attach credibility to the massager story. He agreed that the child did not use the term “pee-pee” in referring to her vaginal area, and he admitted that the child denied that her father kissed her there as reported by the mother.

Finally, according to the CASA report in the record, the two CASA representatives rejected the allegations after their investigation, concluding that the child had been coached by the mother and that the allegations were |.^raised only after heated disagreement in the custody dispute in the divorce proceeding in which the father wanted to see the children every other weekend. The mother rejected this visitation plan, wanting to move back to Arkansas with the children.

Kelli Todd of CASA was appointed on June 17, 2008 to investigate the allegations and report to the court. She had three separate visits with the children. She asked the mother to bring some family photographs to form a context for the interview. When she put the CD in her computer, the first four photographs were of the “bumblebee” massager and C.H. (spontaneously) advised her that she and her mother had looked at them the night before. Based upon how C.H. acted and answered questions during the interviews, Ms. Todd believed that C.H. had been coached by the mother. Ms. Todd was also concerned that both the father and the paternal grandparents had been denied visitation for the past three months. The children were in Arkansas living with the mother’s parents who would not allow the paternal grandparents to see their grandchildren.

Michelle Edwards, the other CASA representative, concurred in the conclusion that the child had been coached. Ms. Todd was also present on one of the visits and participated in questioning the child. The child told Ms. Edwards that her mother was present when her daddy tickled her on the knee with the massager.

We conclude that the trial court manifestly erred in concluding that C.H. made a credible disclosure of sexual abuse at the Gingerbread House interview. The child appeared to be somewhat immature. On the questions regarding her daddy touching and tickling her “booty,” she answered “no” |2]more often than “yes,” and except for saying he tickled her in the genital area, most of the mother’s account of the disclosure to her was not corroborated by C.H. As we previously stated, the interview yielded equivocal results and thus would need very strong corroboration for a factfinder to conclude that sexual abuse had occurred.

The trial court looked for and found this corroboration in the testimony of Dr. Jennifer Rodriguez. The father argues that Dr. Rodriguez’s testimony clearly does not corroborate any sexual abuse. We agree.

Dr. Rodriguez testified that she examined the child three times: May 13, May 28 and June 11, 2008. She stated that before the first examination she was told that there was suspected child abuse. The mother also made allegations of abuse to her. The child never said anything about any abuse.

Dr. Rodriguez discovered on May 13 that the child had a labial adhesion, a condition such that a portion of the small vaginal lips are sealed, so that the doctor could not see her hymen well at that time. She said some children have labial adhe-sions and can be born with them, or will get them in the healing process of an irritation or trauma to that area. Dr. Rodriguez prescribed a cream for the adhesion. In the two subsequent visits, she found the adhesion was healing due to the cream, and she said that the hymen was intact.

Dr. Rodriguez testified that normal children can have labial adhesions with no known history of abuse adding, “Anything that could cause some redness and irritation in the private area could cause the skin to need to seal up and heal.”

^Although Dr. Rodriguez testified that the irritation was consistent with sexual abuse, she said it was not diagnostic of abuse. She said the irritation can be caused by any number of things, including soap, riding a bicycle, a rash, or any other irritation in that area. Importantly, Dr. Rodriguez said that the labial adhesion neither confirms nor denies the possibility of sexual abuse.

As an alternative explanation of a possible cause of the irritation, the father’s mother testified that on May 3, which is only 11 days before the examination and the child abuse allegation, she and her husband took the child to a company picnic in which the child participated in a rock wall climbing activity. They placed in evidence a photograph taken that day of C.H. participating in the activity, which shows a harness strapped between the child’s legs. The father contends that this was the likely source of the irritation.

We conclude that Dr. Rodriguez’s testimony does not corroborate the perceived disclosure from the Gingerbread House interview and the trial court was clearly wrong in so concluding.

Conclusion

Based on our review of the record in this case, we conclude that the trial court was clearly wrong in finding that a preponderance of the evidence showed that C.H. had been abused by her father. Because we have reached this result, the mother’s answer to the appeal is moot.

Accordingly, we reverse the judgment of the juvenile trial court finding C.H. a child in need of care. We vacate the juvenile court’s Judgment of Disposition and the Protective Order in this case. We remand |zJo the juvenile trial court with instructions to dismiss the CINC petition and transfer this matter back to the First Judicial District Court. The mother is cast for all costs of this appeal.

REVERSED; JUDGMENT VACATED; REMANDED WITH INSTRUCTIONS.

APPLICATION FOR REHEARING

Before BROWN, PEATROSS, DREW, MOORE and LOLLEY, JJ.

| iRehearing denied.

      . Although the mother testified that she was fine with the interim custody arrangement, which was essentially a standard 50-50 custody plan, there is considerable evidence in the record that she would not agree to sharing custody equally.

      . The device is clearly a back massager and not a device designed for sexual stimulation. Rather, the "bumblebee” back massager looks much like a toy ladybug with a happy face. There are four legs extending downward from the plastic oval body with small plastic balls for feet, and the device vibrates when activated.

      . The court clearly should have transferred the matter to district court as required by Art. 1568(E), which is why Section C of the same article requires the petitioner to inform the court whether a suit for divorce is pending.
      On the other hand, La. Ch.Code art. 631 states:
      A. A child in need of care proceeding shall be commenced by petition filed by the district attorney. Any other person authorized by the court may file a petition if there are reasonable grounds to believe that the child is in need of care. (Emphasis supplied).
      Although the phrase in the statute, “any other person authorized by the court,” might be construed to mean any person, whether associated with the stale or not, we are somewhat skeptical of a construction that gives the juvenile court authority to authorize a parent or any other third party to initiate the proceeding, particularly when there has been no hearing to determine whether "there are reasonable grounds to believe the child is in need of care.” The scant jurisprudence on this issue at least implies that “any other person” means only that an employee of the local child protection unit (or perhaps a peace officer) can file a complaint for removal of a child via an instanter order and commence a child in need of care proceeding by filing a petition. See State ex rel. J.F., 2007-1496 (La.App. 3 Cir. 5/14/08), 2008 WL 2042813 (not reported in Southern Reporter). It is always the stale, however, who is proceeding on behalf of the child in "child in need of care” proceedings, as recognized by the mother’s counsel on appeal who characterizes the mother's action as "acting in the state’s stead.” Thus, "the state shall have the burden to prove the allegations of the petition by a preponderance of the evidence.” La. Ch. C. art. 665.

      . The court stated that it was not going to accept the report into evidence because Ms. Todd of CASA was available to testify and because Ms. Todd made conclusions about the veracity of the parents.

      . We observe that this same court previously attempted to expand its jurisdiction in Martin

        ex rel. K.M. v. Harrison, 37,891 (La.App. 2 Cir. 9/26/03), 855 So.2d 950.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana v. Robert Elijah Lamar MINCEY, a/k/a Robert Bryant.
    No. 08-1315.
    Court of Appeal of Louisiana, Third Circuit.
    June 3, 2009.
    Rehearing Denied July 15, 2009.

      John Foster DeRosier, District Attorney-14th Judicial District Court, Carla S. Sigler, Assistant District Attorney-14th Judicial District Court, Lake Charles, LA, for Plaintiff/Appellee, State of Louisiana.
    Mary E. Roper, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant, Robert Elijah Lamar Min-cey, a/k/a Robert Bryant.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   THIBODEAUX, Chief Judge.

liThe Defendant, Robert Elijah Lamar Mincey, a/k/a Robert Bryant, appeals his jury conviction for manslaughter on the basis that the evidence was insufficient to disprove his claim of self-defense. We affirm.

FACTS

In September of 2006, the victim, Jerome Dejean, was at a nightclub called “Club 69” on Highway 90 in Calcasieu Parish. His girlfriend, Ashley Garcia, and two male friends, Kevin “Sandez” Doucet and Phillip “Smurf’ Jones were also there. Defendant was at the same nightclub with his sister, Nashayla Norman, and his mother, Tracey Bryant. The Defendant apparently bumped into Dejean on his way to and from the bathroom. Words were exchanged, and the Defendant ultimately walked out of the club followed by his mother, Doucet, and Jones.

Doucet and Jones confronted the Defendant about the bumping incident. An argument ensued, and the Defendant advised them that he was in possession of a gun. According to the Defendant’s mother, Jones told Defendant, “N .... r, show us what you got. We don’t care about what you got, we got heat.”

Dejean then came out of the club and also confronted the Defendant. The Defendant’s mother intervened and attempted to mediate the escalating dispute by standing between the Defendant and Deje-an. She placed her hand on Dejean’s chest. He pushed her hand aside and attempted to punch the Defendant. The Defendant shot him in the chest and fled. According to the Defendant’s mother, De-jean was in “mid-swing whenever he got shot.”

LAW AND DISCUSSION

Defendant argues the evidence was insufficient to support his conviction. The analysis for such claims is well-established:

|2When the issue of sufficiency of evidence is raised on appeal, the critical inquiry of the reviewing court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, rehearing denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979); State ex rel. Graffagnino v. King, 436 So.2d 559 (La.1983); State v. Duncan, 420 So.2d 1105 (La.1982); State v. Moody, 393 So.2d 1212 (La.1981). It is the role of the fact finder to weigh the respective credibility of the witnesses, and therefore, the ap-pállate court should not second guess the credibility determinations of the triers of fact beyond the sufficiency evaluations under the Jackson standard of review. See State ex rel. Graffagnino, 436 So.2d 559 (citing State v. Richardson, 425 So.2d 1228 (La.1983)). In order for this Court to affirm a conviction, however, the record must reflect that the state has satisfied its burden of proving the elements of the crime beyond a reasonable doubt.

State v. Kennerson, 96-1518, p. 5 (La.App. 3 Cir. 5/7/97), 695 So.2d 1367, 1371.

Defendant does not deny that he shot and killed the victim, nor did he deny it at trial. Rather, he argues that the State failed to disprove that he acted in self-defense. Killing in self-defense is governed by La.R.S. 14:20(A), which states, in pertinent part, “[a] homicide is justifiable: (1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger.” (Emphasis added).

Defendant contends that the killing was justifiable because he had his back against the wall, and was surrounded by the victim and the victim’s two friends, Doucet and Jones. Further, he contends that shooting the victim was the only way he could escape.

The Defendant’s claim that Jones had a firearm was disputed by both Doucet and Jones at trial. The evidence given by his own mother defeats his claim |Rof justifiable self-defense. The essence of his defense is that he was justified in responding to an attempted punch by shooting his opponent in the chest at close range. We recognize that Dejean had two friends with him. Thus, Defendant may have genuinely felt endangered; further, some level of fear was objectively reasonable. However, the level of force he used to defend himself was far beyond what was necessary under the circumstances.

In the context of self-defense in a manslaughter prosecution, our court has observed in State v. Griffin, 06-543, pp. 12, 14 (La.App. 3 Cir. 9/27/06), 940 So.2d 845, 851, 854, writ denied, 07-2 (La.9/14/07), 963 So.2d 995, the following:

The State had the burden of proving the Defendant did not stab Marcus Conway in self-defense; therefore, we must determine whether the Defendant reasonably believed that he was in imminent danger of losing his life or receiving great bodily harm and that killing Marcus was necessary to save himself from that danger. The standard in La. R.S. 14:20 is whether the Defendant’s subjective belief that he was in danger was reasonable. State v. Brown, 93-1471 (La.App. 3 Cir. 5/4/94), 640 So.2d 488.
Factors to consider in determining whether a defendant had a reasonable belief that the killing was necessary are the excitement and confusion of the situation, the possibility of using force or violence short of killing, and the defendant’s knowledge of the assailant’s bad character. State v. Hardeman, 467 So.2d 1163 (La.App.2d Cir.1985). Although there is no unqualified duty to retreat, the possibility of escape is a factor to consider in determining whether a defendant had a reasonable belief that the use of deadly force was necessary to avoid the danger. State v. Brown, 414 So.2d 726 (La.1982).
State v. Spivey, 38,243, p. 6 (La.App. 2 Cir. 5/12/04), 874 So.2d 352, 357.
In cases where the defendant claims self-defense as a justification, the absence of a weapon from the victim’s person or immediate reach is often a critical element of 14the state’s proof. See State v. Davis, 28,662 (La.App.2d Cir.9/25/96), 680 So.2d 1296.... The absence of weapon on the victim, however, is not dispositive of the issue ....
State in Interest of D.S., 29,554, p. 3 (La.App. 2 Cir. 5/7/97), 694 So.2d 565, 567.
By returning the guilty verdict, the jury obviously did not believe the Defendant acted in self-defense. We find that a rational fact finder, after viewing the evidence in the light most favorable to the prosecution, could have found beyond a reasonable doubt that the State proved the homicide was not committed in self-defense. Accordingly, this assignment of error lacks merit.

Defendants in this case and in Gnffin used deadly force against what were unarmed attacks. Thus, as in Gnffin, the jury in the present case could rationally have concluded that Defendant did not act in self-defense.

This analysis applies even if the jury believed the testimony of Defendant’s most favorable witness, Ms. Bryant, the Defendant’s mother. Of course, the State presented evidence that was less favorable to Defendant. Jones testified that Defendant walked to the bar’s bathroom, and bumped into the victim, then bumped into the victim again on his way back. The victim then told him to watch where he was going, “[a]nd the dude got crazy.” According to Jones, Defendant indicated that he wanted to resolve the issue outside, so Jones and Doucet followed him out of the bar. When they arrived outside, Defendant got near a wall and put his hand under his shirt. Jones testified that he saw Defendant had a gun, so then he and Doucet began backing up. The victim then came out and got in front of Defendant. When the victim touched his hat, Defendant shot him. Jones opined that the victim did not see the gun in Defendant’s waistband. Doucet’s testimony was similar, although he [¿acknowledged that he did not see the initial jostling that apparently triggered the incident.

Defendant did not deny shooting and killing the victim. His defense was justification. However, as mentioned earlier, responding to an oncoming punch by shooting the other person in the chest is an excessive response. Thus, the jury’s determinations in the present case were not unreasonable. Therefore, the Defendant’s reliance on self-defense is meritless.

CONCLUSION

For the foregoing reasons, the Defendant’s conviction is affirmed.

AFFIRMED.


author: TERRI F. LOVE, Judge.

text:
    Gerald BURGE v. NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, Wisconsin, Claire W. Trinchard, Leigh Ann Schell and Lincoln Insurance Company.
    No. 2008-CA-1396.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 3, 2009.

      Mark W. Smith, Mark W. Smith & Associates, PLC, Metairie, LA, for Gerald Burge.
    Gerald A. Melchiode, Kimberly G. Anderson, Kevin F. Bruce, Galloway Johnson Tompkins Burr & Smith, New Orleans, LA, for Lincoln Insurance Company.
    (Court composed of Judge CHARLES R. JONES, Judge MICHAEL E. KIRBY, Judge TERRI F. LOVE).
   TERRI F. LOVE, Judge.

J^This appeal arises from the alleged wrongful murder conviction of the plaintiff. The chief investigator allegedly suborned perjury and withheld exculpatory evidence, which resulted in an acquittal of the plaintiff at his second trial. The plaintiff sued the sheriffs office and the chief investigator in federal court and received a multimillion dollar judgment. The plaintiff later learned of and sued an excess insurer twenty-four years after the murder. The excess insurer filed a motion for summary judgment claiming that it was released in a partial settlement and that it was prejudiced by the delay of notice. The trial court granted the motion for summary judgment and the plaintiff appealed. We find that genuine issues of material fact exist as to whether the excess insurer suffered actual prejudice and whether the excess insurer was released in the partial settlement. We therefore reverse and remand.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

In 1980, a body was found under the West Pearl River Bridge in St. Tammany Parish, Louisiana. Gary Hale (“Mr. Hale”) was the chief investigator on the homicide from the St. Tammany Parish Sheriffs Office (“STPSO”). Gerald Burge (“Mr. Burge”) was convicted of the murder in 1986. Around 1990, the 12family of Mr. Burge learned that Mr. Hale withheld exculpatory evidence and allegedly suborned the perjury of the murder victim’s widow and mother-in-law. In 1991, Mr. Burge filed a lawsuit in federal court for wrongful imprisonment, malicious prosecution, and other state law torts. Subsequently, in 1992, Mr. Burge was retried and found not guilty of the murder.

The American Druggist Insurance Company (“ADIC”) insured the STPSO and Mr. Hale from September 1, 1980 through September 1, 1983, for $100,000 per occurrence. However, ADIC became insolvent and Northwestern National Insurance Company (“NNIC”) assumed responsibility for ADIC’s policies through a “cut-through” reinsurance endorsement. In 2000, Mr. Burge entered into a “Receipt, Partial Settlement and Indemnification Agreement with Reservation of Rights,” which stated, in part:

IT IS HEREBY AGREED that GERALD BURGE, in exchange for and in consideration of the total sum of SEVENTY-FIVE THOUSAND AND NO/ 100 ($75,000.00) DOLLARS, ... does hereby release and discharge NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE, WISCONSIN, INC. (Northwestern) and AMERICAN DRUGGISTS INSURANCE COMPANY (American Druggists), together with all their predecessors, successors and assigns from any and all liability of any type or nature whatsoever, ... except that I reserve my right to proceed against Sheriff Patrick Canulette, in his official capacity, and Gary Hale to pursue recovery of punitive damages.
IT IS FURTHER AGREED that payment ... shall release, acquit and discharge Patrick Canulette, individually and/or in his official capacity, his sueees-sors in office, any agent, insurer and/or employee of Canulette in his official capacity (the Sheriff) and Gary Hale for all damages, costs, legal interest and attorney’s fees, except punitive damages, for any tortious act or conduct of the Sheriff, his successors in office, any agent or employee of Canulette in his official capacity, and/or Gary Hale | ¿which occurred between September 1, 1980 and September 1, 1983 and which may give rise to any legal liability of the Sheriff and/or Hale in favor of Burge during that time period for any claims by Burge for personal injury, false arrest, wrongful imprisonment, wrongful conviction, malicious prosecution, negligence, negligent and/or intentional infliction of emotional distress, spoliation of evidence, violation of civil rights and/or violation of Gerald Burge’s rights ... including any other damages or injury of whatever nature or kind during that time period, except punitive damages, as well as any and all liability the Sheriff and/or Hale might have for costs and/or attorney’s fees, or legal interest due Burge as a result of any tortious or wrongful conduct by the Sheriff and/or Hale or any employee or agent of the Sheriff which occurred between September 1, 1980 and September 1,1983.
IT IS FURTHER AGREED AND UNDERSTOOD that the release of the Sheriff and Hale by Burge is a partial release and that Gerald Burge specifically reserves his rights to proceed against the Sheriff and Gary Hale for any liability for punitive damages which may be owed ... from September 1, 1980 and September 1, 1983. Further, Burge specifically reserves his rights to proceed against the Sheriff and Hale and any others (excluding Northwestern and American Druggists) for any and all damages of any type whatsoever which the Sheriff, his agents, insurers, employees, Hale and/or any other may owe to Burge for tortious conduct and damage which occurred and arises after September 1,1983....

In May 2001, the federal jury found that Mr. Hale committed tortious actions between September 1, 1980 through September 1, 1983; September 1, 1983 through September 1, 1986; and after September 1, 1986. The federal jury awarded Mr. Burge $4,150,000, which was reduced to $4,075,000, plus legal interest, court costs, and attorney’s fees in order to reflect Mr. Burge’s previous settlement amount for the 1980 through 1983 time period. The STPSO’s liability was reversed on appeal, leaving Mr. Hale liable for $4,075,000. In April 2004, during bankruptcy proceedings for Mr. Hale in federal court, Mr. Burge learned of an excess insurance policy issued by Lincoln Insurance Company (“Lincoln”), | Awhich provided $900,000 in excess coverage for Mr. Hale and the STPSO from September 1, 1980 through September 1,1983.

Mr. Burge then filed a petition for damages against NNIC; Lincoln; Claire Trinchard (“Ms. Trinchard”); and Leigh Ann Schell (“Ms. Schell”); alleging misrepresentation and concealment of the Lincoln policy. Mr. Burge sought $900,000, plus interest, from Lincoln, and $925,000, plus interest, from NNIC, Ms. Trinchard, and Ms. Schell, “jointly, severally, and solidarity.”

Lincoln filed a motion for summary judgment asserting that any claim Mr. Burge had against it was “settled, fully compromised and dismissed.” Lincoln also contended that the delay in notice constituted prejudice because it was prevented from presenting a defense in Mr. Burge’s federal lawsuit. The trial court granted Lincoln’s motion for summary judgment finding actual prejudice to Lincoln and that Mr. Burge’s claims were fully compromised, settled and dismissed without a reservation of rights against excess insurers. Mr. Burge’s devolutive appeal followed.

STANDARD OF REVIEW

Appellate courts review summary judgments de novo. Larkins v. David Wilkerson Constr., 08-0576, p. 5 (La.App. 4 Cir. 12/17/08), 3 So.3d 67, 70. A motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The mover bears the burden on a motion for summary judgment. La. C.C.P. art. 966(C)(2). | ¿However, if the mover will not bear the burden of proof at trial, he must “point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense.” La. C.C.P. art. 966(C)(2). If the plaintiff then “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2).

SUMMARY JUDGMENT

Lincoln contends that no genuine issues of material fact exist to disprove that Mr. Burge waived his claims when he released Mr. Hale and NNIC and that the late notice of the claim prejudiced its defense. Contrarily, Mr. Burge asserts that Lincoln was notified “as soon as practicable” and that Lincoln failed to prove actual prejudice.

Partial Settlement and Release

Mr. Burge avers that his settlement could not have released Lincoln, as an excess insurer, because none of the parties were aware of the Lincoln policy at the time of the partial settlement agreement. Mr. Burge released ADIC and NNIC and partially released Mr. Hale and Sheriff Canulette. Lincoln alleges that it was released because a reservation of rights against an excess insurer was not included in the settlement. However, the settlement did not include the statement that Mr. Burge intended to release all insurers.

The interpretation of a contract requires “the determination of the common intent of the parties.” La. C.C. art. 2045. “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. C.C. art. 2046. Additionally, |,“[although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include.” La. C.C. art. 2051. “A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.” La. C.C. art. 3071. “A compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.” La. C.C. art. 3076.' “It follows that the compromise instrument is the law between the parties and must be interpreted according to the parties’ true intent.” Brown, v. Drillers, Inc., 93-1019 (La.1/14/94), 630 So.2d 741, 748.

“When a dispute arises as to the scope of a compromise agreement, extrinsic evidence can be considered to determine exactly what differences the parties intended to settle.” Ortego v. State, Dep’t of Transp. and Dev., 96,1322 (La.2/25/97), 689 So.2d 1358, 1363-64. A motion for summary judgment “is rarely an appropriate procedure for determining intention.” Hall v. Mgmt. Recruiters of New Orleans, Inc., 332 So.2d 509, 511 (La.App. 4th Cir.1976). The “defendant bears the burden of establishing the requisites for a valid compromise, including the intent to settle the differences being asserted in the action in which it is interposed.!’ Smith v. Walker, 96-2813, p. 9 (La.App. 1 Cir. 2/20/98), 708 So.2d 797, 802.

The Louisiana Supreme Court held that an injured party did not intend to release a non-settling, excess insurer when the settlement and release included other settling insurers. Futch v. Fidelity & Cas. Co. of New York, 246 La. 688, 166 So.2d 274, |7277 (1964). In Brown, the Louisiana Supreme Court held that extrinsic evidence can be examined for the interpretation of a settlement agreement when the record shows:

(1) that the releasor was mistaken as to what he or she was signing, even though fraud was not present; or (2) that the releasor did not fully understand the nature of the rights being released or that the releasor did not intend to release certain aspects of his or her claim.

Brown, 93-1019, 630 So.2d at 749. The Brown settlement did not specifically address, with a reservation or otherwise, wrongful death claims, which the court found were not settled. Brown, 93-1019, 630 So.2d at 756-57. “[Differences which the parties do not intend to settle are unaffected by a compromise agreement.” Brown, 93-1019, 630 So.2d at 757. Likewise, in the case sub judice, the settlement did not specifically address claims against unknown excess insurers and Mr. Burge asserts that he did not release Lincoln.

Mr. Burge’s partial settlement includes language indicating a reservation of rights, which follows:

Further, Burge specifically reserves his rights to proceed against the Sheriff and Hale and any others (excluding Northwestern and American Druggists) for any and all damages of any type or nature whatsoever which the Sheriff, his agents, insurers, employees, Hale and/or any others may owe to Burge for tor-tious conduct and damage which occurred and arises after September 1, 1983, including any claims for costs or attorney’s fees that arise as a result of tortious conduct or damages which occurred after September 1,1983.

Lincoln was not a party to the settlement. Mr. Burge contends that he never intended to release an unknown excess insurer. This argument comes under the second prong of Brown because Mr. Burge may not have intended to “release certain aspects of his or her claim.” The record reflects that neither Mr. Hale nor |sMr. Burge were aware of the excess Lincoln policy until 2004. Accordingly, Mr. Burge may not have settled his claims against an unknown insurer. Therefore, we find that a genuine issue of material fact exists as to the true intent of Mr. Burge and whether Lincoln was released for Mr. Hale’s actions before or after September 1, 1983. See Rollins v. Richardson, 02-0556 (La.12/4/02), 833 So.2d 921.

Occurrence

Mr. Burge contends the Lincoln insurance contract was an “occurrence policy” and encompassed Mr. Hale’s tortious conduct even after the policy period ending September 1, 1983, due to the contractual language describing an occurrence. Additionally, the settlement reserved Mr. Burge’s rights for damages occurring after September 1, 1983. Mr. Burge alleges that the occurrence that triggered NNIC’s policy was the murder on or about October 17,1980. The Lincoln policy stated:

2. Policy Period: termination of underlying insurance: This policy applies to an injury or destruction taking place during this policy period provided that when the Immediate Underlying Policy insures occurrences taking place during this policy period, instead of injury or destruction taking place during its policy period, then this policy likewise applies to occurrences during this policy period and “occurrences” is substituted for “injury or destruction” under the Provisions Governing part of this policy.

Further, Mr. Burge avers that Lincoln adopted the “occurrence” language utilized by NNIC, which allegedly later amended the definition of occurrence to include “incident,” that included “any subsequent acts which directly relate to or arise out of the original crime of complaint.” Mr. Burge asserted in his supplemental [ ^opposition(i to Lincoln’s motion for summary judgment before the trial court that NNIC’s amended language included that an “occurrence” “means an accident, including continuous or repeated exposure to conditions.... ” Mr. Burge further contended that the policy included that an “occurrence” could “be a happening or series of happenings arising out of one event taking place during the policy period.

The Louisiana Supreme Court determined in Davis v. Poelman, 319 So.2d 351, 354 (La.1975), that an insurance company was liable for damages that happened outside of the policy period and after the first “occurrence,” which was within the policy period. Similarly, we find that genuine issues of material fact exist as to whether Lincoln’s policy covered Mr. Burge’s damages before and/or after September 1, 1983.

Prejudice

Mr. Burge asserts that Lincoln was notified as soon as he became aware of the policy and that Lincoln failed to prove actual prejudice. Conversely, Lincoln contends that the passage of time and the inability to participate in trial proceedings constitute sufficient prejudice.

“As a general rule, an insurer may not raise the failure of its insured to give notice of the accident or suit as a valid defense to claims of an injured third party.” Haynes v. New Orleans Archdiocesan Cemeteries, 01-0261, p. 4 (La.App. 4 Cir. 12/19/01), 805 So.2d 320, 323. “The third party tort victim’s claim against a defendant insurer will be recognized despite the lack of notice of process to the insurer by its insured ... unless the defendant insurer proves sufficient prejudice to defeat plaintiffs claim.” Elrod v. P.J. St. Pierre Marine, Inc., 95-295, p. 11 (La. |App.10 5 Cir. 10/31/95), 663 So.2d 859, 864.

-*-n Fakouri v. Ins. Co. of N. Am,., 378 So.2d 1083 (La.App. 3rd Cir.1979), the plaintiff, a third party, discovered a previously unknown excess policy after trial and informed the insurer. The court held that since the insurer “intended to avoid being a party to any lawsuit involving the insured, so holding it liable to pay the excess of the Jefferson Parish judgment does not prejudice INA in any way but, rather, is consistent with the very terms of the policy.” Fakouri, 378 So.2d at 1087.

Mr. Burge alleges that the Lincoln policy contained language precluding it from becoming a co-defendant, similar to the language analyzed in Falcouri, which negates prejudice. Lincoln avers that the “passage of time, death, and fading memories of the operative facts” would require it to “reinvent the wheel” to defend the claims asserted against Mr. Hale. However, Lincoln did not attach anything to prove the alleged prejudice aside from the assertions in the motion. Additionally, Lincoln claims that prejudice from the inability to defend was proven because the STPSO was released from liability. This argument is misplaced, as the claims asserted against the STPSO require different factual and legal elements for a finding of liability. Given that Lincoln did not present evidence of prejudice aside from its assertions, we find that genuine issues of material fact exist as to whether Lincoln suffered actual prejudice.

DECREE

Given the foregoing, we find that genuine issues of material fact exist as to whether Mr. Burge’s claims against Lincoln were released and whether Lincoln | n suffered actual prejudice. We reverse and remand for further Proceedings,

REVERSED,

      . Following the murder, Mr. Hale married the victim's widow.

      . Lincoln states, in its appellee brief, that the Lincoln policy ended September 1, 1981. However, its own statement of uncontested facts in the record state that the policy period ended September 1, 1983.

      . Claire Trinchard and Leigh Ann Schell were hired by NNIC to represent Mr. Hale and Sheriff Patrick Canulette; however, Mr. Hale was not represented by counsel at trial.

      . The current La. C.C. art. 3076 was revised in 2007 to reproduce the substance of La. C.C. art. 3073 and was not intended to change the law.

      . The federal jury found that Mr. Hale's tor-tious actions occurred during Lincoln's policy period and continued until after September 1, 1986.

      . This Court recognizes that trial court mem-oranda are not representative of the actual NNIC policy. However, this Court takes notice that Lincoln did not contest the alleged amended language.

      . In order to prove liability of the STPSO, a pattern of civil rights violations and/or withholding of exculpatory evidence by the STPSO as an entity pursuant to 42 U.S.C. § 1983, must be proven.