text:
    Evelyn ANDERSON, et al. v. MORENO’S AIR CONDITIONING, INC., et al.
    No. 14-27.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      William B. Monk, Lynsay M. Fontenot, Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendants/Appellees Moreno’s Air Conditioning, Inc., Willie M. Moreno, Dora E. Moreno.
    E.R. Robinson, III, E.R. Robinson, III, L.L.C., Lake Charles, LA, for Plaintiffs/Appellants Evelyn Anderson, Provisional Administratrix of the Estate of Fred M. Moreno, and Evelyn Anderson, Independent Executor of the Estate of Elsie Mae Savant Moreno.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   CONERY, Judge.

| j Evelyn Anderson (“Evelyn”) appears on behalf of her deceased parents, Fred and Elsie Moreno, in the capacity of the succession representative of their Estates (“the Estates”). Evelyn appeals the trial court’s judgment denying the Estates’ claims for pre-petition interest on the court’s $75,000.00 award for unpaid back rent against Moreno’s Air Conditioning, Inc. (“MACI”). Neither party appeals the amount of the award, but Evelyn appeals the failure of the trial court to render judgment in solido against Willie and Dora Moreno individually as co-owners of the property located at East Napoleon Street in Sulphur, Louisiana (“Property”). Evelyn also appeals the trial court’s denial of the Estates’ claim for damages to the Property, in addition to the Estates’ claims for fraud, discovery sanctions, and attorney fees against both MACI and Willie and Dora Moreno, individually.

After a trial on the merits, the trial court found in favor of the Estates against MACI only and awarded unpaid back rent to the Estates from 2001 to February 1, 2012, in the amount of $1,000.00 per month for a total amount of $75,000.00 with interest from the date of judicial demand. All other claims made by Evelyn on behalf of the Estates were denied by the trial court. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This case encompasses complex issues involving closely held family business enterprises. We adopt as our own the following pertinent portions of the factual and procedural history of this case, as contained in the trial court’s March 4, 2013 reasons, rendered after a two day bench trial and the trial court’s review of | apost-trial memoranda. In the trial court’s reasons, Dora is referred to as “Patsy.” Thus, Willie and Dora Moreno are referred to as “Willie/Patsy” in the quoted trial court reasons and will be referred to as such in our opinion.

Moreno’s Air Conditioning, Inc. (MACI) is a family owned business founded by Fred Moreno and operated for years by him and his brother, Willie Moreno. MACI operated from 1721 East Napoleon Street in Sulphur, Louisiana since its inception in 1968. This property was owned by Fred and his wife, Elsie, until 1983 when Willie and his wife, Patsy, became 50% co-owners of the property. Also at this time, shares in MACI had the same ownership percentages-50% — Fred/Elsie and 50% — Willie/Patsy. Fred retired in 1998, at which time the Fred/Elsie MACI shares were gifted to their son, Kenneth Moreno, and Willie/Patsy’s shares were reduced to 25% and their son, Allen Paul Moreno, became a 25% shareholder.
Elsie passed away in 2000 and her daughter, Evelyn Anderson, was appointed executrix of Elsie’s estate. Fred passed away in 2008 and Evelyn became the executrix of his estate, but had held his power of attorney since 2006.
This litigation arises out of the fact that although MACI is a distinct legal entity from its owners, and its owners had distinct roles as corporate managers and landownersAessors, these distinctions were ignored for decades. This arrangement worked well until the owners, and their interests, changed.
MACI operated at the East Napoleon location at all relevant times under a verbal month-to-month lease. There are no notes, corporate minutes or other documentation to reflect any understandings at any time regarding rent, maintenance or other common lessorfles-see issues. By 2009, the relationship between Evelyn Anderson and MACI’s management had deteriorated to the point that MACI quit paying any rent whatsoever to the landownersAessors. This eventually led to the filing of Suit No. 2011-1882, styled “Petition for Partition of Co-owned Property with a Demand for Accounting Reimbursements” and a later eviction action by the estates against MACI.
An Act of Partition among the parties dated January 23, 2012 resolved the partition issues in this case and memorialized the following exchange: Camilyn Apartments and Moreno’s Air Conditioning property at 1721 East Napoleon Street, Sulphur, Louisiana in exchange for the Moss Bluff Lumberyard. Among other things, the partition states: “The said properties are equivalent in value, considering the percentages of ownership of the property partitioned herein.” The Act of Partition also provides:
|sThe said parties do hereby reserve to themselves, their heirs and assigns, all claims for damages for an accounting, all other claims for damages, or other claims, accruing during or arising from or relative to their co-ownership of the properties partitioned herein. However, each of the parties to this partition agreement waives and relinquishes in perpetuity any claim or causes of action to rescind or vacate this partition and exchange agreement and the transfers of property herein made for any reason including but not limited to failure of consideration or failure to pay any indebtedness assumed by either, and each of the parties hereby also waives any and all rights under any resolutory conditions relative thereto, and reserving to each only their right to a personal cause of action against the other for any breach thereof.

Suit No. 2012-386 was filed on January 31, 2012 and styled “Petition for Unpaid Rent for an Accounting, Damages, and Reimbursements.” This suit seeks unpaid rent dating back to 2000 in the amount of $91,661.00, damages to the property improvements in the form of deterioration above normal wear and tear totaling $238,354.34 (much of it allegedly caused by Hurricane Rita), loss of rental opportunity due to the Plaintiffs’ alleged inability to find a new tenant because of the property’s poor condition and attorneys’ fees based on fraud and/or La. C.C.P. art. 1472 (discovery sanction).

ASSIGNMENTS OF ERROR

The Estates assert the following six assignments of error on appeal:

1. The Trial Court erred by failing to award pre-[p]etition interest on rent.
2. The Trial Court erred by dismissing all other claims for damages against all Defendants.
3. The Trial Court erred by dismissing claims for damages against the co-owners, Willie and Dora Moreno.
4. The Trial Court erred by dismissing claims for fraud against the Defendants.
5. The Trial Court erred by refusing to allow evidence that showed fraud in this case and a general pattern or practice toward Plaintiffs.
6. The Trial Court erred by failing to award Attorneys’ Fees.

| ¿Standard of Review

The proper standard of review is whether the trial court committed an error of law or made a factual finding that was manifestly erroneous or clearly wrong. Gibson v. State, 99-1730 (La.4/11/00), 758 So.2d 782, cert. denied, 531 U.S. 1052, 121 S.Ct. 656, 148 L.Ed.2d 559 (2000). The supreme court’s two-part test for appellate review of a factual finding requires: “1) The appellate court must find from the record that there is a reasonable factual basis for the finding of the trial court, and 2) The appellate court must further determine that the record establishes that the finding is not clearly wrong (manifestly erroneous).” Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). The reviewing court must review the record in its entirety to make this determination. Stobart v. State, DOTD, 617 So.2d 880 (La.1993).

However, statutory interpretations are questions of law. Shell v. Wal-Mart Stores, Inc., 00-997 (La.App. 3 Cir. 3/21/01), 782 So.2d 1155, writ denied, 01-1149 (La.6/15/01), 793 So.2d 1244. Although a reviewing court defers to a trial court’s reasonable decision on a question or matter properly within the trial court’s discretion, if the trial court’s decision is based on an erroneous interpretation or application of the law, such an incorrect decision is not entitled to deference. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983).

Assignment of Error One

The Estates contend that the trial court erred in awarding only post-petition interest from the date of judicial demand on the $75,000.00 awarded for unpaid back rent. In its reasons denying appellants claim for pre-petition interest, the trial court stated:

Plaintiffs also seek interest on these past due amounts. The Court finds that interest was never intended to be a component in the | srent calculation between the parties. The lessee is entitled to judicial interest only from the date suit was filed.

MACI and Willie/Patsy argue the application of the case of Teledyne Movible Offshore, Inc. v. C & K Offshore Co., 376 So.2d 357 (La.App. 3 Cir.1979). In Tele-dyne, the court distinguished interest due in a case sounding in tort and one sounding in contract and stated, “interest is recoverable on debts arising ex contractu from the time they become due, unless otherwise stipulated. LSA-C.C. Art. 1938.” Id. at 359. Teledyne was decided prior to a revision of the civil code, which included former La.Civ.Code art. 1938, now a part of La.Civ.Code art. 2000, effective July 3, 1985. Louisiana Civil Code Article 2000 states in pertinent part:

When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by R.S. 9:3500.

The Estates urge that La.Civ.Code art. 2000 and La.Civ.Code art. 1921 support its argument for pre-petition interest. Louisiana Civil Code Article 1921 (emphasis added) provides, “The court shall award interest in the judgment as prayed for or as provided by law.” The Estates prayed for “legal interest from the date each payment was due, until made.”

A review of the testimony and documentation in the record supports the trial court’s determination that “interest was never intended to be a component in the rent calculation between the parties.” The trial court, in conducting its extensive review of the past business dealings between the parties, determined that the closely held family business operated for decades with “blurred lines” not only between the individuals who owned a percentage of MACI, but also the property | (¡owners and MACI. In the following colloquy with counsel at trial, the trial court succinctly states its frustration with this situation:

But when you want to confuse the parties, either side, when it’s handy, you do. When you want to — when you want to distinguish the parties, the individuals from the corporations, you do, when it’s convenient. Both sides are guilty of that. But at the end of the day, we’re dealing with a closely held family corporation that blurred the lines for 40 or 50 years, and that’s — you know, that’s why we’re here is because the lines are so blurred. That’s the way people do things in a family business.

The trial court specifically found that there was no written agreement between the parties concerning the terms of the rental of the Property and stated, “MACI operated at the East Napoleon location at all relevant times under a verbal month-to-month lease. There are no notes, corporate minutes or other documentation to reflect any understandings at any time regarding rent, maintenance or other common lessor/lessee issues.”

Louisiana Civil Code Article 2000 allows damages in the form of interest “for delay in performance ... on that sum from the time it is due.” The evidence in the record and the trial court’s ruling on the issue of unpaid back rent reflect that there was never a specific due date for payment of rent, as payments were erratic at best. Likewise, the amount of rent due was also in dispute until the actual sum of the monthly rent was determined at trial as $1,000.00, and not $500.00 per month as urged by the appellees.

Whitney Nat. Bank of New Orleans v. Poydras Center Assoc., 557 So.2d 422 (La. App. 4 Cir.1990), affirmed a trial court’s award of judicial interest from the date of judicial demand. In Whitney, the court stated, “the determination of when legal interest begins to run turns upon when the existence of the debt becomes certain. The scope of the PCA’s [Poydras Center Association] obligation to 17Whitney did not become ascertainable until Whitney filed its suit for breach of contract. Accordingly, the trial court was correct in awarding legal interest from the date of judicial demand.” Id. at 427. In Helena Chemical Co. v. Nichols, 96-856, p. 2 (La.App. 8 Cir. 1/29/97), 695 So.2d 1000 (per curiam), this circuit cites Whitney for the proposition that interest should be awarded pursuant to La.Civ.Code art. 2000, based on an agreement by the parties for “an annual interest rate that would be paid for delay in performance (18% per annum from the date the payments were due which was 30 days from the date of each monthly statement).” Here, there was no agreement as to the amount of rent, the date it was due, how much, if any, back due rent was owed, and no history indicating that interest had ever been contemplated on rental payments.

For the forgoing reasons, we find the facts of this case do not support an award of pre-petition interest to the Estates pursuant to La.Civ.Code art. 2000. We therefore affirm the trial court’s determination that interest was “never intended to be a component in the rent calculation between the parties.” Thus, this assignment of error is without merit.

Assignment of Error Two

The Estates raise three separate issues in assignment of error two: the trial court erred in finding that MACI was not required to use the total amount of insurance proceeds received to repair the Property; the trial court erred in failing to award damages for the condition of the Property when it was vacated by MACI | sin February 2012; and the trial court erred when it failed to award any damages for loss of rental opportunity due to the condition of the Property.

In its ruling under the heading “Damages to the property [,]” the trial court addresses issues one and two of assignment of error two, as well as the implications of the Act of Partition on the Estates’ ability to sue for damages of any kind for the condition of the Property. The ruling further addresses under a separate heading issue three “Lost rental opportunity ” as an additional claim for damages.

The record reflects that the trial court carefully reviewed the January 2012 Act of Partition and ultimately found it barred the Estates from claiming any further damages relating to the Property. The trial court stated:

There is also the issue of the Act of Partition agreed to and filed of record only days before the Plaintiffs initiated the 2012 suit. It is entirely inconsistent with the intent reflected in that document that the Plaintiffs would turn around a few days later and sue the Defendants for damages to the improvements at East Napoleon Street in an amount that exceeded the value of the property. The fact that the parties to the partition were exchanging properties “equivalent in value” makes ambiguous the reservation of rights to seek “claims for damages” arising during the co-ownership, when those claims attack the very values agreed upon. The Defendants’ argument is well taken that the Plaintiffs accepted David Bordelon’s evaluation of the property at the time of the partition. The Act of Partition bars the Plaintiffs’ claims for damages.
Lost rental opportunity
In their pre and post trial memoran-da, Plaintiffs have outlined this claim, but fail to explain their theory of when the loss began or the extent of their loss. The Court can guess that when MACI vacated the premises in 2012, Plaintiffs then had no opportunity to lease the premises because of the condition of the structure at that time. Again, however, the time needed to bring the structure up to a marketable condition was known or should have been known to the Plaintiffs |9during the process of negotiating the partition agreement. Prior to vacating the premises, the Plaintiffs were content with the rental agreement in place.

The Act of Partition, signed in multiple counter-parts by the parties on January 23 and 24, 2012, was designed to equally partition three properties co-owned by Willie/Patsy and the Estates. The agreement provided that the Camilyn Apartments and Moreno’s Air Conditioning property at 1721 East Napoleon Street, Sulphur, Louisiana, went to the Estates in exchange for the Moss Bluff Lumberyard’s ownership reverting to Willie/Patsy.

The trial court specifically found that the partition agreement was ambiguous on the issue of whether the agreement was intended to fully resolve all issues related to the Property. The determination of ambiguity in a contract is a question of law. Watkins v. Schexnider, 09-744 (La. App. 3 Cir. 2/10/10), 31 So.3d 609, writ denied, 10-922 (La.6/25/10), 38 So.3d 341.

Having determined that the Act of Partition was ambiguous as to the reservation of rights clause, the trial court properly allowed testimony to ascertain the true intent of the parties. Beno’s, Inc. v. Prof'l Gaming Tech., 01-436 (LaApp. 3 Cir. 10/03/01), 796 So.2d 856, writ denied, 01-2959 (La.1/25/02), 807 So.2d 842. Based on the testimony and documentary evidence received, the trial court determined that the parties intended, by executing the Act of Partition, to preclude any further damage claims related to the Property by the Estates against both MACI and Willie/Patsy.

The trial court’s factual finding that the Act of Partition was intended to preclude any further claim for damages related to the Property is supported by a series of email communications between counsel for the parties. The emails in |inevidence reflect that, at the suggestion of counsel for the Estates, all parties relied on the property evaluations.

Counsel for the Estates hired Mr. Bor-delon to appraise the Property and stated in an email, “We feel very comfortable with his valuations. He was aware of the potential problems with all the properties.” It is also significant that the Act of Partition was drafted by counsel for the Estates.

Evelyn, as executrix of the Estates, testified that she was aware of the problems with the Property during the negotiations, as she had access to the Property. She failed to include in the value assigned to the Property by Mr. Bordelon any “damages” for the alleged needed repairs to the Property. In addition, Evelyn, on behalf of the Estates, refused to have an environmental assessment of the fuel storage tank on the Property, despite the urging of the appellees. It is worth noting that the Moss Bluff property that Willie/Patsy received in the transaction had similar problems with a fuel storage tank.

We find that, based on the testimony and evidence presented in connection with the intent of the parties, the trial court correctly determined that the Act of Partition was intended to preclude any further damage claims by the Estates related to the Property. We pretermit as moot any further discussion of the remaining issues in assignment of error two seeking additional damages for the Property. Assignment of error two has no merit.

Assignment of Error Three

In assignment of error three, the Estates urge that the trial court erred in failing to assess the award for unpaid back rent against Willie/Patsy individually for their alleged mis-management of the property as 50% co-owners. The award Infer $75,000.00 in unpaid back rent was rendered against MACI only, and the amount of that award has not been appealed.

In Campbell v. Pasternack Holding Co., Inc., 625 So.2d 477, 480 (La.1993) (citations omitted), the supreme court held that there was no duty for co-owners, such as Willie/Patsy, to agree with other co-owners, in this case Evelyn on behalf of the Estates, about the use of the property:

The need to partition stems from the inconvenience of co-management, namely the requirement of unanimous consent of co-owners in managing commonly held property. With certain exceptions, each owner has the right to oppose the use of the property by the other. Consequently, co-owners who cannot agree on the use of the property are by the Civil Code specifically afforded the right to seek partition. Needless to say, then, partition is favored under Louisiana law and this Court’s jurisprudence.

Considering the Act of Partition between the parties and applying Campbell, there is no legal basis to impose individual liability on Willie/Patsy as co-owners of the Property for the award for unpaid back rent in favor of the Estates against MACI.

As previously discussed, the trial court’s determination to award unpaid back rent against MACI only was bolstered by the “blurred lines” under which the business of the closely held family corporation was conducted. Thus, we find assignment of error three to be without merit.

Assignments of Error Four, Five, and Six

The final three assignments of error urged by the Estates involve the denial by the trial court of the Estates’ claim of fraud, and attorney fees for both fraud and discovery abuse by the appellees pursuant to La.Code Civ.P. art. 1466, et seq. In 1 ^connection with the allegations of fraud, the Estates also urge that the trial court erred in excluding evidence at trial pursuant to La.Code Evid. art. 404(B) relating to Willie’s failure to communicate with Evelyn about other co-owned businesses.

The record reflects that on December 27, 2012, the Estates filed a reconventional demand alleging fraud. The Estates claimed that MACI, and/or Willie in conjunction with MACI, committed fraud by claiming an increase in MACI’s monthly expenses to offset rental payments and avoid paying rent to the Estates. Prior to trial, the trial court granted the appellees’ exception of no cause of action, dismissing the Estates’ initial claim for fraud. The trial court then granted the Estates the option to amend their pleadings to attempt to state a cause of action for fraud.

In response to the trial court’s instructions, the Estates amended their petition, once again claiming fraud and seeking damages in the form of “market rent.” The amended claim was based on the alleged misrepresentations of Kenneth Moreno (“Kenneth”), then Manager, co-owner of the stock of MACI, and Evelyn’s brother, that MACI intended to make up the unpaid back rent and did not do so. Kenneth claimed that only $500.00 per month in unpaid back rent was due to the Estates, and because the rent had been overpaid in the past, no back rent was due.

Fraud is defined in La.Civ.Code art. 1953 as “a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.”

In support of the proposition that attorney fees should be awarded for the alleged fraud of Kenneth and Willie, the Estates urge the application of the recent supreme court case of Stutts v. Melton, 13-557 (La.10/15/13), 130 So.3d 808. The | ^Louisiana Supreme Court in Stutts allowed attorney fees to the Stutts based on fraud pursuant to La.Civ.Code art. 1958. The Stutts did not seek rescission of the entire purchase agreement for their home, but instead only sought the value of replacement of the roof. We find Stutts, which involved a purchase agreement, is not applicable to this case based on the trial court’s determination that the relationship between the Estates and MACI was “under a verbal month-to-month lease.” This case is governed by the long line of cases in which “Louisiana courts have long held that attorney fees are not allowed except where authorized by statute or contract.” Stutts, 130 So.3d at 814.

Kenneth’s testimony supports the trial court’s determination that his actions relating to his discussions with Evelyn concerning the unpaid back rent did not “rise to the level of fraud.” The trial court stated:

Kenneth was quite straight-forward in his testimony that he told his sister that the estates would be “paid up” eventually, and he did so as late as 2009. The only issue is whether Kenneth meant rent of $500 or $1,000 per month. For the reasons noted above, the preponderance of the evidence weighs clearly in favor of the $1,000 a month rate. Furthermore, if one accepts Willie’s testimony that Fred set the rent unilaterally and changed it without telling anyone, Kenneth would not have known to tell Evelyn in 2009 and earlier that “paid up” meant at a rate of $500 a month. To conclude otherwise would be to find Kenneth guilty of fraud for giving false assurances to Evelyn. Again, it was not until 2011, and in the midst of litigation, that MACI alleged overpayments to the estates.
It also cannot be overlooked that Kenneth and Evelyn are brother and sister. There is no evidence of animosity between these two; thus, when Kenneth told Evelyn the rent would be “paid up” she could feel assured this meant the $1,000 a month she had received on so many occasions.

Evelyn’s allegations of fraud against Willie stem from his lack of communication on behalf of MACI with respect to the unpaid back rent after rental | upayments ceased in 2009, and from Kenneth and Willie’s failure to discuss any of MACI’s dealings with her. Fraud may also result from silence or inaction that is calculated to produce a misleading effect. La.Civ.Code art. 1953, Comment (b). “Two elements essential to establishing legal fraud are intent to defraud or gain an unfair advantage and a resulting loss or damage.” First Downtown Dev. v. Cimochowski, 613 So.2d 671, 677 (La.App. 2 Cir.1993), unit denied, 615 So.2d 340 (La.1993). In connection with the Estates’ claims of fraud, the trial court specifically found:

A fraud allegation is difficult to prove. While there has been much posturing in this case on both sides and some of the positions taken by Willie Moreno may seem implausible, the Court does not find the actions of Kenneth or Willie in regard to their management of the property or their positions regarding rent rise to the level of fraud.

Based on the record before us, we will not second guess the trial court’s considered determination on the claim that the actions of Kenneth and Willie regarding the payment of rent to the Estates and the management of MACI did not “rise to the level of fraud.” In making this determination, the trial court concluded that the silence of Willie was not intended to gain an “unjust advantage” over the Estates.

We affirm the trial court’s finding that the Estates did not prove fraud, and hence, no damages or attorney fees based on fraud are owed. We affirm the trial court’s ruling on this issue.

We also affirm the trial court’s ruling concerning the admissibility of evidence pursuant to La.Code Evid. art. 404(B). The trial court sustained an 1^objection and ruled that the evidence concerning Willie’s failure to communicate with Evelyn with respect to other co-owned businesses was not relevant to the issue of fraud as to the Estates’ claim for unpaid back rent. It was undisputed that Willie did not communicate with Evelyn concerning the unpaid back rent; and it was undisputed that there was no payment of rent after 2009. Therefore, any other dealings between Willie and Evelyn concerning other co-owned properties were not relevant to the issue of fraud for the nonpayment of back rent by MACI or by Willie in his capacities as owner of stock in MACI and co-owner of the Property. We agree with the trial court’s evidentiary ruling on this issue and find no abuse of the trial court’s vast discretion. Bellsouth Telecomm., Inc. v. City of Lafayette, 05-1478 (La.App 3 Cir. 1/5/06), 919 So.2d 844.

In its reasons, the trial court further addressed the issue of attorney fees based on proving at trial matters denied by the Appellees in response to requests for admissions pursuant to La.Code Civ.P. art. 1466, and stated:

The Court has previously awarded sanctions in favor of the Plaintiffs because of the Defendants’ less-than-forthcoming discovery responses. The Plaintiffs now complain of having to go to trial to Improve that: MACI made improvements on the property, the rent was $1,000 per month and interest payments were made on the Willie Moreno promissory note from 1993 to 2000. For example, in response to Request for Admission No. 7, Defendants admitted no payments were made by Willie Moreno on the note; however, it was later proven that Willie had made interest payments, clearly a payment on the note. Likewise, Defendants could not bring themselves to directly admit (or deny), as they must do, in response to Request for Admission No. 6 (Joint Exhibit C — 3). Instead, the Defendants’ response had qualifications, which qualifications were ultimately abandoned.
There is no place in the conduct of litigation for discovery responses that fail to err on the side of candor. However, in reviewing La. C.C.P. art. 1472,[] the Court finds that some of these responses were “of no substantial importance, or the party failing to admit had reasonable ground to believe that he might prevail on the matter, or there was other good reason for the failure to admit.” The Court exercises its discretion to not again award attorneys’ fees, but not without reminding counsel of their professionalism obligation.

In regulating pretrial discovery, “Trial courts have broad discretion in ruling on discovery matters that are presented during the course of litigation, including the scope of discovery. Such discretion will not be disturbed on appeal absent a clear showing of abuse.” Trahan v. State ex rel Dep’t of Health and Hosp., 04-743, p. 2 (La.App. 3 Cir. 11/10/04), 886 So.2d 1245, 1248-49 (citing Moak v. Ill. Cent. R.R. Co., 93-783 (La.1/14/94), 631 So.2d 401) (other citations omitted). Finding no abuse of the trial court’s broad discretion, we affirm the denial of attorney fees |17as sanctions sought in connection with the Estates’ claim of discovery abuse by the appellees.

CONCLUSION

For the foregoing reasons, and after careful review of the record in this case, we conclude that there are no grounds for reversal or modification of the trial court’s well-reasoned ruling, and we affirm the judgment in its entirety. All costs of this appeal are assessed to Evelyn Moreno Anderson, Succession Representative of the Estates of Fred M. Moreno and Elsie Mae Savant Moreno.

AFFIRMED.

      . On June 4, 2012, Louis Norman Moreno was discharged as a succession representative for the Estate of Fred M. Moreno, and Evelyn Anderson was appointed as the Provisional Administratrix for the Estate of Fred M. Moreno.

      . Following Hurricane Rita, an insurance payment was made to MACI in the amount of $50,399.93, and MACI spent $20,072.78 of those proceeds on repairs to the Property. The Estates’ claim that MACI was required to spend all of the insurance proceeds to make proper repairs to the Property.

      . The Estates' Petition instituting this lawsuit was filed on January 31, 2012.

      . At oral argument, counsel for the defendants/appellees indicated that the judgment for unpaid back rent has been fully satisfied by MACI, and the issue is now moot. We will nevertheless address the issue.

      . Louisiana Civil Code Article 1958 provides, "The party against whom rescission is granted because of fraud is liable for damages and attorney fees.”

      . Louisiana Code of Evidence Article 404(B) states:
      Other crimes, wrongs, or acts. (1) Except as provided in Article 412, evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

      . Louisiana Code of Civil Procedure Article 1466 provides:
      A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of Articles 1422 through 1425 set forth in the request or of the truth of any relevant matters of fact, including the genuineness of any documents described in the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. The request may, without leave of court, be served Upon the plaintiff after commencement of the action and upon any other party with or after service of the petition upon that party.

      . Louisiana Code of Civil Procedure Article 1472 states:
      If a party fails to admit the genuineness of any document or the truth of any matter as requested under Article 1466, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that the request was held objectionable pursuant to Article 1467, or the admission sought was of no substantial importance, or the party failing to admit had reasonable ground to believe that he might prevail on the matter, or there was other good reason fpr the failure to admit.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Rodney L. JOHNSON, Sr.
    No. 14-82.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.
    Rodney M. Rabalais, Marksville, Louisiana, for Defendant/Appellant, Rodney L. Johnson, Sr.

      Charles A. Riddle, III, District Attorney-Twelfth Judicial District, Norris J. Greenhouse, Assistant District Attorney, Marksville, Louisiana, for Appellee, State of Louisiana.
    Court composed of JOHN D. SAUNDERS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

Lin this criminal case, Defendant, Rodney L. Johnson, Sr., appeals his conviction by a jury of the responsive verdict of attempted unauthorized use of withdrawal of collateral securities and his accompanying sentence. He alleges insufficiency of the evidence and trial court error in its instruction to the jury and in ordering $40,000.00 in restitution. For the following reasons, we reverse and vacate Defendant’s conviction and sentence.

FACTUAL AND PROCEDURAL HISTORY

On February 5, 2003, Defendant and his then wife, Christina Johnson, doing business as Quality Tank Service, executed a Master Note in favor of the Simmesport State Bank (Bank). That note was modified and/or extended on several occasions over the years by various agreements between the parties. On July 11, 2007, a separate promissory note was executed, again in favor of the Bank. This promissory note was secured by a Commercial Security Agreement (CSA) of even date and contained the signatures of Defendant and Christina; however, Defendant did not personally sign either document. Christina signed both documents on her behalf d/b/a Quality Tank Service and on behalf of Defendant. The CSA listed items of equipment as collateral for the note and listed Defendant’s address as 123 Choupique Road in Plaucheville, Louisiana.

On December 9, 2009, Defendant individually executed another CSA securing the February 5, 2003 Master Note, which was renewed annually. This 12CSA included a lengthy list of equipment (approximately 105 items), prepared by Defendant as collateral and listed his same address as the July 11, 2007 CSA.

Although Defendant repaid some of the money borrowed pursuant to the two CSAs, the obligations were not paid in full. Due to Defendant’s delinquency, the Bank instituted two civil actions to collect and/or repossess Defendant’s property given as collateral. The Bank was unable to recover several items of property given as collateral, including the Hero paint pot and the portable air compressor given as collateral pursuant to the July 11, 2007 CSA, or approximately 71 of the 105 items given as collateral pursuant to the December 9, 2009 CSA.

Steve Lacombe, President of the Bank, and Brandon Newsome, the Bank’s collections officer, spoke to Defendant about the equipment. Defendant told them that he had sold some of the items. On June 29, 2011, they went with Defendant to look at the items Defendant still had and tagged and photographed them, using the list of collateral set out on the CSAs to identify the secured property.

When Mr. Newsome returned with Deputy Guillory of the Avoyelles Parish Sheriffs Department to physically seize the items at the Choupique Road address, they located only 29 of the 142 items listed on the two CSAs. They then went to another location owned by Jan Clark in Plaueheville and saw similar items, but they did not have permission to go on the property. After contacting Mr. Clark, they returned, but the items were no longer there. Additionally, when they returned to Defendant’s residence on Chou-pique Road, the majority of the items they had tagged there were gone. Ultimately, the Bank was able to recover only about half of the secured items. The Bank sold the recovered items after the civil Ceases were completed, but the sale did not generate sufficient funds to satisfy Defendant’s indebtedness to the Bank. At that point, the Bank reported the matter to the Avoyelles Parish Sheriffs Department as a crime.

Defendant was charged with a violation of La.R.S. 14:201, entitled “Collateral securities, unauthorized use of withdrawal prohibited[,]” dealing with the unauthorized use of property placed by him as collateral with the Bank. On March 14, 2013, a jury convicted him of the lesser offense of attempted violation of La.R.S. 14:201. On August 22, 2013, the trial court sentenced Defendant to thirty-six months with the Department of Corrections, suspended, with forty-eight months of probation. The trial court also ordered restitution in the amount of $40,000.00 to be paid during the period of probation along with a fine of $100.00, costs of prosecution of $100.00, and court costs of $399.00. The amounts were ordered payable at the rate of $846.00 per month plus a $71.00 per month probation supervision fee for a monthly total of $917.00. The trial court stayed the sentence pending the outcome of this appeal and indicated that it would not oppose an early termination of probation upon payment of the restitution. Defendant has appealed his conviction and sentence.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we find one error patent relative to post-conviction relief which is rendered moot due to our reversal of Defendant’s conviction.

I ¿ASSIGNMENTS OF ERROR

Defendant presents the following assignments of error for our review:

1. The jury erred by convicting Johnson of attempting to violate [La. ]R.S. 14:201.
2. The trial court erred by refusing to instruct the jury on the law.
3. The trial court erred in denying the motion for post verdict judgment of acquittal.
4. The trial judge erred in ordering restitution of $40,000.00.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant alleges the jury erred by convicting him of attempting to violate La.R.S. 14:201 because he did not pledge collateral to the Bank and then withdraw it on a trust or other receipt. The standard of review in a sufficiency of the evidence claim is “whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found proof beyond a reasonable doubt of each of the essential elements of the crime charged.” State v. Leger, 05-11, p. 91 (La.7/10/06), 986 So.2d 108, 170, cert. denied, 549 U.S. 1221, 127 S.Ct. 1279, 167 L.Ed.2d 100 (2007) (citing Jackson v. Virginia, 448 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984)). The Jackson standard of review is now legislatively embodied in La.Code Crim.P. art. 821. It does not allow the appellate court “to substitute its own appreciation of the evidence for that of the fact-finder.” State v. Pigford, 05-477, p. 6 (La.2/22/06), 922 So.2d 517, 521 (citing State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165; State v. Lubrano, 563 So.2d 847 (La.1990)). The appellate court’s function is not to assess the credibility of witnesses or reweigh the evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So.2d 442.

IsOther than insuring the sufficiency evaluation standard of Jackson, the appellate court should defer to the rational credibility and evidentiary determinations of the jury. State v. Lambert, 97-64 (La. App. 3 Cir. 9/30/98), 720 So.2d 724. Our supreme court has stated:

In determining the sufficiency of the evidence supporting a conviction, an appellate court must preserve “ ‘the fact-finder’s role as weigher of the evidence’ by reviewing ‘all of the evidence ... in the light most favorable to the prosecution.’” McDaniel v. Brown, 558 U.S. [120], [133], 130 S.Ct. 665, 674, 175 L.Ed.2d 582 [ (2010) ] (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). When so viewed by an appellate court, the relevant question is whether, on the evidence presented at trial, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789.

State v. Strother, 09-2357, p. 10 (La.10/22/10), 49 So.3d 372, 378.

In the instant case, Defendant was convicted of attempted unauthorized use of withdrawal of collateral securities. The relevant criminal statutes are La.R.S. 14:201 and La.R.S. 14:27.

The pertinent parts of La.R.S. 14:201 state:

No customer ... of any bank ... who is allowed to withdraw any collateral pledged by him ... on a trust receipt or other form of receipt, shall:
(1) Use, sell, repledge, or otherwise dispose of the collateral so withdrawn, for any other purpose other than that of paying the indebtedness for the security of which the collateral was pledged....
Proof of any of the acts set forth in this Section shall be considered prima facie evidence of criminal intent.
The pertinent part of the attempt statute, La.R.S. 14:27(A), states:
Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the | (¡offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.

A defendant may be convicted of an attempt to commit a crime even when the evidence at trial shows the attempted or intended crime was actually committed. La.R.S. 14:27(C). “Attempt” is a responsive verdict to the charge of unauthorized use of collateral security. State v. Ackal, 290 So.2d 882 (La.1974).

Also pertinent is Louisiana Revised Statutes 1:59, titled “Definitions of mortgage, chattel mortgage and pledge to include security interests,” which states:

Whenever the context so requires, the terms “mortgage”, “chattel mortgage”, and “pledge” as used in the Louisiana Revised Statutes additionally mean and include the granting of a security interest under Chapter 9 of the Louisiana Commercial Laws (R.S. 10:9-101, et seq.) or under the corresponding provisions of Article 9 of the Uniform Commercial Code as adopted in any other state, to the extent applicable. Whenever the context so requires, the terms “mortgage”, “chattel mortgage” or “pledge” agreement further mean and include a security agreement subject to Chapter 9 of the Louisiana Commercial Laws or to the corresponding provisions of Article 9 of the Uniform Commercial Code as adopted in any other state, to the extent applicable.

Based on this statute, the term “any collateral pledged” in La.R.S. 14:201 could be interpreted to mean collateral on which a security interest has been granted, and a “ ‘pledge’ agreement” could be interpreted to include the CSA.

Mr. Lacombe testified that Defendant was a customer of the Bank for “some ten or twelve years at least” and had made “numerous” loans from the Bank. He explained that the CSA was “basically a mortgage which lists specific equipment ... and ... attaches to the Promissory Note or it is pledged to the Promissory Note.” He further explained that the CSA granted the Bank a continuing security interest in the property listed in it to secure the payment and performance of the obligation described in the CSA. Mr. Lacombe also testified about the different types of mortgages, including lines of credit, security agreements, assignments, Land pledges. Although he testified the CSA was not a pledge, he explained it was “basically the same thing as a consumer type pledge agreement security agreement except that it is done for commercial purposes and by businesses.” The Bank chose the CSA to secure Defendant’s line of credit. The Bank’s security interest began immediately upon Defendant’s signature. Mr. Lacombe described a pledge of property as “you[’re] offering it as collateral to the bank for money that you borrow[.]” The CSA itself states that Defendant grants a security interest in the listed collateral by signing it. Thus, the State argues that it sufficiently established that Defendant granted the Bank a security interest and thereby pledged collateral according to La.R.S. 1:59 by entering into the CSAs.

However, Defendant contends the term “collateral pledged” in La.R.S. 14:201 refers to the term “pledge” as defined in the Civil Code. Louisiana Civil Code Article 3133 defines “pledge” as “a contract by which one debtor gives something to his creditor as a security for his debt.” Louisiana Civil Code Article 3152 states, “[i]t is essential to the contract of pledge that the creditor be put in possession of the thing given to him in pledge, and consequently that actual delivery of it be made to him, unless he has possession of it already by some other right.”

Evidence at trial established that Defendant disposed of numerous items of the collateral. Mr. Lacombe testified the Bank did not recover the Hero paint pot or the portable air compressor given as collateral on July 11, 2007, or approximately 71 of the 105 items given as collateral on December 9, 2009. Detective Jeremiah Honea of the Avoyelles Parish Sheriffs Department testified that Mr. Newsom and Deputy Guillory located only 29 of 142 items listed on the paperwork to be seized at Defendant’s property on Choupique Road. They went to | ^another location in Plaucheville and saw similar items, but they did not have permission to go on the property. After they contacted the property owner, they returned, but the items were no longer there. Additionally, when they returned to the Choupique Road residence, the items they had tagged there “were for the most part gone ... a few small items [were] left but the majority of the larger items that they had tagged were gone.”

On September 12, 2011, Detective Ho-nea attempted to interview Defendant. After speaking with his attorney and learning of the investigation, Defendant declined to answer any questions. However, Defendant did tell Detective Honea “he knew what the investigation was about”; he said he had sold the items previously put up as collateral “because he was going under financially.” The evidence at trial clearly established that Defendant used, sold, or otherwise disposed of the collateral.

For sufficiency of the evidence purposes, the essential elements of La.R.S. 14:201 require Defendant to be a customer of a bank, who was allowed to withdraw collateral pledged by him on a form of receipt, and who disposed of the collateral so withdrawn for a purpose other than paying the indebtedness secured by that collateral. In the instant case, a review of the evidence in the record clearly establishes that Defendant was a customer of the Bank, that he borrowed money from the Bank, that he entered into a CSA as security for that indebtedness, and that he was in default on his loan to the Bank. The evidence in the record also establishes that Defendant was allowed to use the items of collateral in the course of his business and that a number of the items listed in the CSA were never located and/or disposed of when the Bank filed suit to collect on Defendant’s debt. Crucial to this case is the fact that the record is void of any evidence of delivery of any [ {¡collateral by Defendant to the Bank or any statutorily-required receipt given to Defendant by the Bank.

Notwithstanding La.R.S. 1:59, without delivery, there can be no pledge. La.Civ. Code art. 3152. There was no delivery in this case. However, the State argues that even if there was no delivery of the thing pledged, that La.R.S. 1:59 creates a valid pledge when there is the granting of a security interest and that a pledge is subsumed in that security agreement. Assuming arguendo that to be true, La.R.S. 14:201 still required the Bank to issue to Defendant “a trust receipt or other form of receipt” for collateral pledged by him which is allowed to be withdrawn. There is no such “receipt” in the record.

Under either scenario, the State has failed to meet its burden of proving the essential elements of La.R.S. 14:201. Louisiana Revised Statutes 14:201 requires a pledge of some sort. Under our civil law of pledge, there must be delivery, and there is no proof of any actual delivery of any of the items listed as collateral in the CSA. On the other hand, even applying La.R.S. 1:59 to satisfy the legal requirements of a pledge, La.R.S. 14:201 requires “a trust receipt or other form of receipt” when a customer (such as Defendant) is allowed by any bank “to withdraw any collateral pledged by him.”

In the instant case, there is neither delivery nor any such receipt, or proof thereof, in the record of these proceedings. Therefore, the State has failed to prove beyond a reasonable doubt the essential elements of the crime of attempted unauthorized use of withdrawal of collateral securities; hence, Defendant’s conviction and sentence must be reversed and vacated.

Had the State so desired to prosecute Defendant for the unauthorized use of withdrawal of collateral securities, it could have readily and easily prosecuted |inDefendant under La.R.S. 14:72.4, which addresses the disposal of encumbered property with fraudulent or malicious intent and does not require the mandates of a pledge. It did not do so.

ASSIGNMENTS OF ERROR NUMBERS TWO, THREE, AND FOUR:

Having found that the State failed to prove beyond a reasonable doubt the essential elements of attempted unauthorized use of withdrawal of collateral securities as required by La.R.S. 14:201 thereby warranting a reversal of Defendant’s conviction and sentence therefor, these remaining assignments of error have been rendered moot.

DISPOSITION

Defendant’s conviction and sentence on attempted unauthorized use of withdrawal of collateral securities are reversed and vacated.

REVERSED; CONVICTION AND SENTENCE VACATED.

      . Though Defendant did not sign the CSA himself, he did not object to the introduction of the July 11, 2007 CSA at trial or raise the issue on appeal. Therefore, we do not address this on appeal.

      . According to the marital status declaration in the December 9, 2009 CSA, Defendant (at this time) was legally separated from Christina; hence, he appeared individually.

      .We note that neither of the CSAs introduced into evidence at trial was signed by a representative of the Bank. However, Defendant did not object to the introduction of either CSA at trial or raise the issue on appeal. Therefore, we do not address this issue on appeal.

      . The record does not indicate that the trial court advised Defendant of the prescriptive period for filing post-conviction relief as required by La.Code Crim.P. art. 930.8.

      . Louisiana Revised Statutes 72.4(A) provides:
      It is unlawful for any person, who having executed a security agreement under Chapter 9 of the Louisiana Commercial Laws (R.S. 10:9 through 101 et seq.) on movable property, to sell, assign, exchange, injure, destroy, conceal, or otherwise dispose of all or any part of the encumbered property with fraudulent or malicious intent to defeat the mortgage or security interest, or remove the encumbered property from the location designated in the security agreement, if any, or from the parish where it was located at the time of the granting of the security interest without written consent of the secured party, with fraudulent or malicious intent to defeat the security interest.


author: GENOVESE, Judge. CONERY, J.,

text:
    Darlene VITAL v. LANDMARK OF LAKE CHARLES.
    No. 14-96.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.

      Lawrence B. Frieman, Bradley P. Nac-eari, Juge, Napolitano, Guilbeau, Ruli & Frieman, Covington, Louisiana, for Defendant/Appellant, Landmark of Lake Charles.
    Tina L. Wilson, Cox, Cox, Filo, Camel & Wilson, Lake Charles, Louisiana, for Plaintiff/Appellee, Darlene Vital.
    Court composed of JOHN D. SAUNDERS, JAMES T. GENOVESE, and JOHN E. CONERY, Judges.
   GENOVESE, Judge.

|TIn this workers’ compensation case, Defendant/Employer, Landmark of Lake Charles (Landmark), appeals the judgment of the Workers’ Compensation Judge (WCJ) overturning the decision of the Medical Director of the Office of Workers’ Compensation (Medical Director) and ordering Landmark to provide Plaintiff/Claimant, Darlene Vital, with the shoulder surgery recommended by her physician. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Ms. Vital sustained a work-related injury during her employment with Landmark when she slipped and fell on October 10, 2011, injuring her left shoulder. Shortly following her accident, Ms. Vital was seen by Dr. Clark Gunderson who ordered an MRI of her shoulder. The MRI, done November 23, 2011, indicated a possible labrum tear. Dr. Gunderson ordered physical therapy and excused Ms. Vital from work. Ms. Vital participated in physical therapy and received an injection to her shoulder, neither of which provided relief.

Ms. Vital then saw Dr. Brent Cascio on February 16, 2012. Dr. Cascio diagnosed Ms. Vital’s shoulder injury as a partial rotator cuff tear and adhesive capsulitis for which he recommended arthroscopic repair and ordered her to remain off work.

Ms. Vital underwent a second medical evaluation with Dr. Gregory Gidman on March 15, 2012. Dr. Gidman examined Ms. Vital, reviewed the MRI, and concluded that the surgical recommendation was not medically necessary. In his opinion, Ms. Vital was in need of a psychological evaluation. Dr. Gidman opined that there was no need for physical therapy and that Ms. Vital was able to return to light duty work.

I ¡When Landmark denied the surgical recommendation, Ms. Vital sought approval for the procedure from the Louisiana Workers’ Compensation Administration Medical Director, Dr. Christopher Rich, as required by La.R.S. 23:1203.1(J)(1). After considering the matter, on July 24, 2012, the Medical Director issued a decision denying the arthroscopic surgery recommended by Dr. Cascio, finding that the medical documentation did not support the approval of the requested surgery in accordance with the Louisiana Medical Treatment Guidelines (Guidelines).

In the interim, on June 26, 2012, Ms. Vital returned to Dr. Cascio, who again recommended arthroscopic repair of her left shoulder. Dr. Cascio opined that she was unable to return to work.

When Landmark denied the surgical recommendation for the second time, Ms. Vital again sought review of the denial by the Medical Director. The Medical Director issued a decision denying the requested procedure for the second time on December 11, 2012. Again, the Medical Director found that the medical records did not support the approval of the requested surgery in accordance with the Guidelines.

|sMs. Vital appealed the Medical Director’s decision denying the surgical recommendation to the WCJ. The WCJ found that there was not clear and convincing evidence that the recommendation for the arthroscopic surgery met the- Guidelines; therefore, the denial of the procedure by the Medical Director was upheld.

Ms. Vital returned to Dr. Cascio, who, on May 9, 2013, made his third recommendation that Ms. Vital have the arthroscopic surgery to her left shoulder. Landmark again denied the surgical procedure.

Ms. Vital again sought review of the denial by the Medical Director. The Medical Director found that the medical records had not changed from his previous two denials of the procedure; thus, on June 17, 2013, he issued his third decision, again denying the requested procedure, finding the requested surgery was not in compliance with the Guidelines.

Thereafter, Ms. Vital sought another review of the Medical Director’s decision by the WCJ. The WCJ issued a judgment on September 23, 2013, overturning the Medical Director’s denial of Ms. Vital’s requested shoulder surgery. From that judgment, Landmark appeals.

ASSIGNMENT OF ERROR

In its sole assignment of error, Landmark asserts that “[t]he trial court committed legal error in failing to correctly apply the clear and convincing evidence standard which is required to overturn the decision of the Medical Director of the Office of Workers’ Compensation denying the shoulder surgery.”

LAW AND DISCUSSION

Landmark argues that “[a] review of the trial court’s Judgment overturning the decision of the Medical Director demonstrates that the trial court failed to properly apply the standard of “clear and convincing evidence” in reaching its | ¿decision.” It concludes that this constitutes legal error, requiring this court to conduct a de novo review of the record on appeal. We disagree.

The Judgment with Reasons provided by the WCJ expressly states her finding that “[t]he claimant, Darlene Vital, has shown by clear and convincing evidence, that the decision was not in accordance with the provisions of R.S. 23:1203.1.” Thus, undisputedly, the WCJ was cognizant of the standard of proof required to be met by Ms. Vital. Although Landmark may disagree that the evidence was sufficient to meet this heightened burden, the WCJ did not legally err by applying an incorrect standard.

Relative to the evidence presented, the Judgment with Reasons sets forth the following:

Ms. Vital’s accident occurred on October 11, 2011, nearly two years ago. In addition, this is the third time this matter has been submitted to the Medical Director. Conservative treatment has failed. The treating physician, Dr. Brent Cascio[,] opined that arthroscopic lysis of adhesion is warranted for Darlene Vital to regain functionality, due to failure of all conservative therapy; therefore!,] he has identified functional operative goals and the likelihood of achieving improved ability to perform activities of daily living or working activities.

Reviewing these findings on appeal under the manifest error standard of review, this court is required to “review the record in .its entirety to determine not whether the WCJ was wrong, but whether the record reflects a reasonable basis for the WCJ’s decision.” Vital v. Landmark of Lake Charles, 13-842, p. 1 (La.App. 3 Cir. 2/12/14), - So.3d -, -, 2014 WL 550912. In this case, we find that the record contains a reasonable basis for the WCJ’s reversal of the Medical Director’s decision. The evidence demonstrates that Ms. Vital’s injury and treatment satisfy the relevant criteria of the Guidelines and supports Dr. Cascio’s recommendation for shoulder surgery.

Ms. Vital underwent four months of physical therapy and received an injection to her left shoulder. Thus, the conservative, non-operative treatment options of medication, physical therapy, and injections required by the Guidelines have been met by Ms. Vital without success.

Additionally, upon examination, Dr. Cas-cio found Ms. Vital’s range of motion to be a seventy degree abduction, a seventy degree forward flexion, and a forty-five de■gree internal and external rotation. Ms. Vital also had a positive response to the Hawkins and “empty can” tests, which are also addressed in the Guidelines. Therefore, Dr. Cascio’s findings, based upon his physical examination of Ms. Vital, meet the provisions of the Guidelines regarding functional deficits warranting surgical intervention.

The Guidelines requirements relative to functional operative goals and the likelihood of Ms. Vital achieving improved ability to perform activities of daily living or work were also addressed by Dr. Cascio. It was his opinion that the shoulder surgery is warranted in order for Ms. Vital to regain functionality due to the failure of prior conservative therapy.

Lastly, we note that despite referencing the section of the Guidelines relative to psychological treatment, the Medical Director failed to mention same in his | (-.decision. However, the record does contain evidence that Ms. Vital has participated in such treatment.

For the foregoing reasons, we find that the WCJ did not commit legal error in failing to apply the clear and convincing evidence standard in reaching its decision. Additionally, we find that the evidence of record contains a reasonable basis for the WCJ’s judgment overturning the Medical Director’s decision denying Ms. Vital the shoulder surgery recommended by her physician.

DECREE

For the reasons assigned, the judgment of the Office of Workers’ Compensation in favor of Darlene Vital ordering Landmark of Lake Charles to provide the shoulder surgery recommended by Dr. Brent Cascio is affirmed. Costs of this appeal are assessed to Landmark of Lake Charles.

AFFIRMED.

CONERY, J. dissents and assigns reasons.

CONERY, J.,

dissenting.

IH respectfully dissent. The WCJ conflated her reasons for ruling with her judgment in a one paragraph ruling. Her one sentence conclusion stated:

The treating physician, Dr. Brent Cascio opined that arthroscopic lysis of adhesion is warranted for Darlene Vital to regain functionality, due to failure of all conservative therapy; therefore he has identified functional operative goals and the likelihood of achieving improved ability to perform activities of daily living or work activities.

The Medical Director’s decision cannot be overturned unless Plaintiff has shown by “clear and convincing evidence” that the decision was improper. La.R.S. 23:1203.1(K). See also Church Mut. Ins. Co. v. Dardar, 13-2351 (La.5/7/14), — So.3d —, 2014 WL 1800067; Matthews v. La. Home Builder’s Ass’n Self Insurer’s Fund, 13-1260 (LaApp. 3 Cir. 3/12/14), 133 So.3d 1280; Usie v. Lafayette Parish Sch. Sys., 13-294 (LaApp. 3 Cir. 10/9/13), 123 So.3d 885. The WCJ’s “findings” do not rise to the heightened standard of “clear and convincing evidence” sufficient to overturn the decision of the Medical Director and should be reversed.

      . Louisiana Revised Statutes 23:1203.1(J)(1) provides:
      After a medical provider has submitted to the payor the request for authorization and the information required by the Louisiana Administrative Code, Title 40, Chapter 27, the payor shall notify the medical provider of their action on the request within five business days of receipt of the request. If any dispute arises after January 1, 2011, as to whether the recommended care, services, or treatment is in accordance with the medical treatment schedule, or whether a variance from the medical treatment schedule is reasonably required as contemplated in Subsection I of this Section, any aggrieved party shall file, within fifteen calendar days, an appeal with the office of workers’ compensation administration medical director or associate medical director on a form promulgated by the director. The medical director or associate medical director shall render a decision as soon as is practicable, but in no event, not more than thirty calendar days from the date of filing.

      . Ms. Vital appealed that decision, but the appeal was later dismissed.

      . Louisiana Revised Statutes 23:1203.1(K), provides as follows:
      After the issuance of the decision by the medical director or associate medical director of the office, any party who disagrees with the decision, may then appeal by filing a "Disputed Claim for Compensation”, which is LWC Form 1008. The decision may be overturned when it is shown, by clear and convincing evidence, the decision of the medical director or associate medical director was not in accordance with the provisions of this Section.

      . In this opinion, this court affirmed the judgment of the WCJ requiring Landmark to provide Darlene Vital with recommended lumbar epidural steroid injections.


author: THIBODEAUX, Chief Judge.

text:
    Melinda L. Cardenas OWENS v. Kevin R. OWENS.
    No. 14-165.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.
    Elvin Clemenee Fontenot, Jr., Leesville, LA, for Plaintiff/App.ellee, Melinda L. Cardenas Owens.
    Scott Westerchil, Leesville, LA, for Defendant/Appellant, Kevin R. Owens.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

hThe defendant, Kevin R. Owens, appeals the judgment granting the request of the plaintiff, Melinda L. Cardenas Owens Spears, to relocate the parties’ daughter to Johnson City, Tennessee. Finding no abuse of discretion in this relocation dispute, we affirm the judgment of the trial court.

I.

ISSUE

We must decide whether the trial court abused its discretion or manifestly erred in granting the mother’s request to relocate the minor child to Tennessee and in modifying the father’s visitation accordingly.

II.

FACTS AND PROCEDURAL HISTORY

Kallee Owens is the daughter of Kevin Owens and Melinda Owens Spears. After their divorce, Melinda married Dr. Thomas Spears and sought relocation of Kallee to Johnson City, Tennessee from Hornbeck, Louisiana. The trial court granted the request.

We adopt the well-written reasons of the trial court in our discussion below of the further particulars of the case.

III.

STANDARD OF REVIEW

A trial court’s determination in a relocation dispute is entitled to great weight and will not be overturned absent a clear showing of abuse of discretion. [Curole v. Curole, 02-1891 (La.10/15/02), 828 So.2d 1094], Further, a reviewing court may not set aside a trial court’s factual findings in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the trial court’s findings: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the trial court’s findings, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Richardson v. Richardson, 09-609 (La. App. 3 Cir. 11/18/09), 25 So.3d 203, citing Mart v. Hill, 505 So.2d 1120 (La.1987). On review, if the trial court’s findings are reasonable based upon the entire record, the reviewing court may not reverse even if it is convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Id.

Perez v. Perez, 11-537, p. 6 (La.App. 3 Cir. 2/29/12), 85 So.3d 273, 278, writ denied, 12-743 (La.5/18/12), 89 So.3d 1195.

The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses but also upon the proper allocation of trial and appellate functions between the respective courts. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

IV.

LAW AND DISCUSSION

Mr. Owens contends that the trial court manifestly erred in granting the relocation request of Mrs. Spears. We disagree. Mrs. Spears met her burdens of proving by a preponderance of the evidence that the relocation is being done in good faith and is in the best interest of the parties’ daughter. Additionally, the modification of the visitation/custody arrangement is in the best interest of the child.

|sThe Title 9 child relocation statutes are La.R.S. 9:355.1 to 9:355.19. “The person proposing relocation has the burden of proof that the proposed relocation is [1] made in good faith and is [2] in the best interest of the child.” La.R.S. 9:355.10. “Although the person proposing relocation has the burden to prove that the relocation attempt is made both in good faith and in the best interest of the child, there is no presumption in favor of or against relocation of the child’s residence.” La.R.S. 9:355.10, Comment (a) — 2012 Revision. “If an objection to the relocation is made in accordance with R.S. 9:355.7, the person wishing to relocate must prove by a preponderance of the evidence, on contradictory hearing, that relocation meets the good faith and best interest standards.” Id.

Under La.R.S. 9:355.14, the court is given twelve factors to consider in determining whether the requested relocation is in the best interest of the child:

A. In reaching its decision regarding a proposed relocation, the court shall consider all relevant factors in determining whether relocation is in the best interest of the child, including the following:
(1) The nature, quality, extent of involvement, and duration of the relationship of the child with the person proposing relocation and with the non-relocating person, siblings, and other significant persons in the child’s life.
(2) The age, developmental stage, needs of the child, and the likely impact the relocation will have on the child’s physical, educational, and emotional development.
(3) The feasibility of preserving a good relationship between the non-relocating person and the child through suitable physical custody or visitation arrangements, considering the logistics and financial circumstances of the parties.
(4) The child’s views about the proposed relocation, taking into consideration the age and maturity of the child.
|4(5) Whether there is an established pattern of conduct by either the person seeking or the person opposing the relocation, either to promote or thwart the relationship of the child and the other party.
(6) How the relocation of the child will affect the general quality of life for the child, including but not limited to financial or emotional benefit and educational opportunity.
(7) The reasons of each person for seeking or opposing the relocation.
(8) The current employment and economic circumstances of each person and how the proposed relocation may affect the circumstances of the child.
(9) The extent to which the objecting person has fulfilled his financial obligations to the person seeking relocation, including child support, spousal support, and community property, and alimentary obligations.
(10) The feasibility of a relocation by the objecting person.
(11) Any history of substance abuse, harassment, or violence by either the person seeking or the person opposing relocation, including a consideration of the severity of the conduct and the failure or success of any attempts at rehabilitation.
(12) Any other factors affecting the best interest of the child.
B. The court may not consider whether the person seeking relocation of the child may relocate without the child if relocation is denied or whether the person opposing relocation may also relocate if relocation is allowed.

As with the factors in the custody statute, La.Civ.Code art. 134, the court “need not make a factual finding on every factor.” La.R.S. 9:355.14, | .^Comment (a)-2012 Revision. Nor does the relocation statute “direct the court to give preferential consideration to certain factors.” Curole, 828 So.2d at 1097.

Here, the trial court’s well-written reasons accurately reflect the facts and accounts in the record; they address the factors of La.R.S. 9:355.14; and the narrative is one upon which we need not improve:

The mother, Melinda Owens, now Spears, hereinafter referred to as Spears, and the father, Kevin Owens, hereinafter referred to as Owens, are the parents of Kallee, age 7. The parents divorced December 17, 2012. In a prior judgment on rule, on December 19, 2011, the parents agreed to joint custody, designating the other as domiciliary parent. The father obtained physical custody on the days he was off of work as an offshore oil | (¡worker. Essentially this amounted to twelve days each month. He worked shifts of fourteen days on and fourteen days off. He used two of the fourteen days off for travel to and from his required work location.
Both parents lived in Vernon Parish. The child has resided here since birth in the same residence. Since the separation the physical custody by the father has been exercised at the residence of his parents where he also resides.
All of the grandparents reside in the same area of Hornbeck, Louisiana in Vernon Parish. The child has a close relationship with relatives on both sides of the family.
The mother has been the primary care provider for the child since birth. During the marriage, the father provided some care when he was in. Since the separation he has provided care for the ten to twelve days he is not working each month.
The child has a close relationship with each parent. The mother has had more involvement with the child regarding educational, religious, and social activities.
The father has provided for and met all of his financial obligations to the child. He has not been held in qontempt for any reason.
Each parent remained single until August 29, 2013 when the mother remarried. She married Dr. Thomas Spears, a dentist at Bayne Jones Army Community Hospital at Ft. Polk, Louisiana. She had a relationship with Dr. Spears for quite some time prior to their marriage. The mother was employed there as an oral surgeon assistant. They were both civil service employees.
Due to recent cuts in financial budgeting from the Federal government, the hospital was required to temporarily cut back on hours worked by employees. This affected both the mother and Dr. Spears. As a result, Dr. Spears sought a transfer to the Veteran’s Administration facility in Johnson City, Tennessee and was able to obtain employment there. His job there has resulted in an increase in income. He is also about two hours away from his parents and other relatives.
17Mrs. Spears, the mother, has indicated in the notice of relocation that a primary reason she wants to relocate is to seek more secure employment with the V.A., however, in her testimony she indicated that was not a major factor. As a result of her new husband’s increase in income, she may have the opportunity to become a stay at home parent.
The home in Tennessee is very adequate and appears to be in an upper middle class area. The school in the district is apparently of a good quality, however, the Court is not convinced that it is of a significant difference from those here in Vernon Parish. The area around the new location provides greater opportunities than Vernon Parish for cultural and educational experiences for the child.
As stated above, the physical custody arrangement has worked well. The mother has not sought to thwart the relationship of the child with the father. There have been some problems recently about the number of days the father had the child, however, that started about the same time the relocation issue arose. Prior to that there were no issues. The mother appears to be willing to continue to foster a relationship between the child and father.
The child is of a young age, however, she is genuinely excited about the relocation and the opportunity to make new friends. Of course, she is saddened by the prospect of not seeing her father and other relatives as frequently as she has if she does move. That is overcome] by the very strong bond between the mother and the child. The Court feels the child will be able to adapt without much difficulty to her new surroundings.
The Court cannot conclude that the proposed relocation would have any negative impact on the child and her development, physically, educationally, or emotionally.
One of the requirements that the Court must consider in this relocation case is whether the mother is seeking to relocate in good faith. The Court is convinced that the reason she is seeking this move is to move on with her life, post-divorce, with her new husband. As noted above, his reasons for relocating were legitimate and for good reasons. The Court is unable to find that |sany proof has been presented to indicate this move is being made for any other reason, particularly to deny reasonable access of the father with his child. Her reasons are in good faith.
The Court, after reviewing and considering the factors in R.S. 9:355.14 and for the reasons previously stated finds the proposed relocation by the mother is in good faith and in the best interest of the child. The proposed relocation is approved.

Under La.R.S. 9:355.14(1), the quality and duration of Kallee’s involvement with her mother as the primary caregiver has been close, constant, and loving since birth. Though she has a close relationship with her father, his daily presence with Kallee was less than half of the mother’s involvement during the marriage because of his offshore job. Since the divorce, the father has lived with his parents, and while this arrangement has provided an opportunity for Kallee to see more of her extended family, the one-on-one time for father and child has been further reduced. Because of travel time, he sometimes sees Kallee only ten days a month. Under La.R.S. 9:355.14(9), however, the father has met his financial support obligations to Kallee, and he has indicated his plans to buy a double-wide modular home for them.

The impact of the move to Tennessee and the emotional and quality-of-life changes resulting from the relocation, pursuant to La.R.S. 9:355.14(2) and (6), are positive and support the relocation. The schools are reportedly good; the Spears already have a nice house and neighborhood for Kallee, and she is enjoying diverse cultural experiences. The exhibits contain numerous pictures of family outings with Kallee, her mother, and her new stepfather that depict a strong bond between a genuinely happy threesome enjoying the area and each other. Kallee indicated that Dr. Spears, whom she calls “Big Papa,” is funny and likes to do silly 1 things with her. Dr. Spears testified that Kallee loves magic and stories; thus, they have magic shows and he reads her a lot of stories, in addition to going to movies and parks. The exhibits contain numerous crayon notes and pictures that confirm a creative and loving relationship between Kallee and Dr. Spears. There are also pictures showing a loving relationship between Kallee and her father.

Under La.R.S. 9:355.14(3) and (5), the mother appears more willing than the father to foster a relationship between Kal-lee and the other parent. The father has openly disparaged the new marriage in his brief to this court, which indicates an intolerant and negative outlook for fostering Kallee’s relationship with her mother. While the twelve-hour driving distance created by the relocation will decrease the frequency of the father-child visitation during the school year, the longer summer visits will allow Mr. Owens and his family members extended opportunities to maintain a quality relationship with Kallee. Further, there is an airport within fifteen minutes of Johnson City, and Dr. Spears testified that he would assist and facilitate the father and child visitation. Dr. Spears is from a nearby area and has family less than two hours away.

Mr. Owens points out Dr. Spears’s prescription addiction, which we will address as it falls under La.R.S. 9:355.14(11). Dr. Spears candidly testified that he was being treated with the prescription drug, Xanax, and that he became addicted to it and underwent treatment around 2003, pursuant to the Board of Dentistry requirements. He stated that, after four months of inpatient care, he attended group sessions, completed the program around 2004, and that he currently takes no medication except for hypertension. Under the statute, there is no evidence of a severe addiction, and the rehabilitation ten years ago was apparently successful since Dr. Spears, a medical professional, passed the federal |ingovernment’s stringent background check before being offered the new position in Tennessee.

As for Kallee’s views on the relocation under La.R.S. 9:355.14(4), the trial judge interviewed her privately in chambers and has accurately summarized the transcription of the interview. Kallee clearly loves both of her parents but also is clearly looking forward to her new future in Tennessee with positive anticipation. The record further indicates that, pursuant to La. R.S. 9:355.14(7) and (8), the relocation to Tennessee was requested in good faith and is based upon occurrences in the job market for the mother and her new husband, who met through their employment. The changes indicate a positive outcome for Kallee. Dr. Spears testified to an increase in income and benefits in Tennessee, and Kallee’s mother anticipates not only better employment opportunities for herself eventually but also the possibility of being a stay-at-home parent for Kallee.

While Mr. Owens attempts to make an issue of Dr. Spears’s age (forty-nine) compared to Kallee’s mother’s age (thirty-six), this issue is not covered by the statute, and the trial court did not find it an additional factor to include in its written analysis. We note that the age difference is not great; Dr. Spears does not have any children of his own; and the record indicates that there is already a special bond that benefits the child in this case. We find no abuse of discretion in the trial court’s conclusions under La.R.S. 9:355.14 that the relocation is requested in good faith and that it is in the best interest of the child to grant it.

JilV.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court and assess costs of this appeal to the defendant/appellant, Kevin R. Owens.

AFFIRMED.

      . The court shall consider all relevant factors in determining the best interest of the child.
      Such factors may include:

        (1) The love, affection, and other emotional ties between each party and the child.
      (2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
      (3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
      (4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
      (5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
      (6) The moral fitness of each party, insofar as it affects the welfare of the child.
      (7) The mental and physical health of each party.
      (8) The home, school, and community history of the child.
      (9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
      (10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
      (11) The distance between the respective residences of the parties.
      (12) The responsibility for the care and rearing of the child previously exercised by each party.
      La.Civ.Code art. 134 (emphasis added).


author: GREMILLION, Judge.

text:
    Ben William MEAUX v. Leonard GUIDRY.
    No. 14-155.
    Court of Appeal of Louisiana, Third Circuit.
    June 4, 2014.
    Ike Huval, Duhon Law Firm, Lafayette, LA, for Defendant/Appellee, Leonard Gui-dry.
    Ashley W. Phillips, The Phillips Law Firm LLC, Lafayette, LA, for Plaintiff/Appellant, Ben William Meaux.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, BILLY HOWARD EZELL, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

11 Plaintiff, Ben William Meaux, appeals the trial court’s judgment granting exceptions of preemption and no right of action in favor of defendant, Leonard Guidry. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Meaux, born August 25, 1980, filed a petition to establish paternity and motion and order for paternity testing on September 3, 2013, seeking to establish the paternity. of Guidry. Meaux alleged that Guidry and his mother, Tammy Broussard, consummated their relationship but never married. Meaux was later adopted by Huey Meaux, who is deceased.

On September 19, 2013, Guidry filed an exception of peremption and no right of action. Following an October 2013 hearing, the trial court granted Guidry’s exceptions of peremption and no right of action and dismissed Meaux’s action. Meaux now appeals.

ASSIGNMENTS OF ERROR

1. The trial court erred in sustaining the Defendant’s exception of prematurity as the exception of prematurity was not pled and evidence was not introduced in support of the exception.

2. The trial court erred in sustaining the Defendant’s exception of no right of action, as Defendant-Appellant did not carry his burden and evidence was not introduced that warranted the granting of the exception of no right of action.

|,3. The trial court erred in sustaining the Defendant’s exception of [per-emption] and no right of action, as the court’s ruling directly conflicts with La. C.C. art. 197, as the article is clear and unambiguous as written and its application does not result in absurd consequences, pursuant to La. C.C. art. 9.

4. The trial court erred in sustaining the Defendant’s exceptions of [per-emption] and no right of action, as the court’s ruling directly conflicts with the legislative intent and public policy concerns which led to the revision of former La.C.C. art. 209, as evidenced by comment (e) of La. C.C. art. 197.

5. The trial court erred in apply La. C.C. art. 197 prospectively and not retroactively.

DISCUSSION

The sum of Meaux’s assignments of error is that La.Civ.Code art. 197 grants him a right of action against Guidry. Louisiana Civil Code Article 197 was enacted in 2005, and replaced La.Civ.Code art. 209.

Louisiana Civil Code Article 197 states:

A child may institute an action to prove paternity even though he is presumed to be the child of another man. If the action is instituted after the death of the alleged father, a child shall prove paternity by clear and convincing evidence.
For purposes of succession only, this action is subject to a peremptive period of one year. This peremptive period commences to run from the day of the death of the alleged father.

Louisiana Civil Code Article 209 required that a paternity action be brought within nineteen years of the child’s birth, or within one year of the death of the alleged parent, whichever comes first. Comment (e) to La.Civ.Code art. 197 states that this “was a harsh result not justified by any policy consideration.” Louisiana Civil Code Article 197 substantively changed the law, providing for no time limit in filing a paternity action, except in the case of successions.

This court and others have addressed the retroactive application of La.Civ.Code art. 197 to revive a paternity action that has prescribed. In sum, because the | ^change in the law is a substantive change affecting a defendant’s right to plead per-emption that would defeat the plaintiffs claim, La.Civ.Code art. 197 applies prospectively only. Succession of McKay, Jr., 05-603 (La.App. 3 Cir. 2/1/06), 921 So.2d 1219, writ denied, 06-504 (La.6/2/06), 929 So.2d 1252; Thomas v. Roberts, 47,411 (La.App. 2 Cir. 9/26/12), 106 So.3d 557. Louisiana Civil Code Article 209 was per-emptive, meaning that once the time period has passed, a cause of action has been extinguished and the party relying on the peremptive defense has a vested right that is substantive in nature. Id.

In Succession of McKay, the plaintiffs, one who was fifty-four years old and one who was thirty-six years old, filed an action to establish paternity for succession purposes. A panel of this court stated:

The enactment of Article 197 obviously changes the law in that a paternity action no longer has to be instituted within nineteen years of the child’s birth or within one year from the parent’s death, whichever occurred first. There is a time limit of one year from the parent’s death for succession purposes. Now, regardless of age, the child has one year from his father’s death to institute the action. See comments (e) and (f) to Article 197. The effective date of [the enactment of Article 197] was June 29, 2005.
Since [the plaintiffs] claims have already prescribed, the issue is whether the passage of Article 197 revived their prescribed claims. The supreme court addressed the issues of revival of prescribed claims by the legislature in Chance v. American Honda Motor Co., Inc., 93-2582 (La.4/11/94), 635 So.2d 177. Explaining the issue the supreme court stated:
Although prescriptive statutes are generally procedural in nature, the revival of an already prescribed claim presents additional concerns. For while the defendant does not acquire anything during the running of the prescriptive period, once the time period has elapsed, the legislature grants the defendant the right to plead the exception of prescription in order to defeat the plaintiffs claim. La.Code Civ.P. arts. 927 & 934. Because the defendant acquires the right to plead the exception of prescription, a |4change in that right constitutes a substantive change in the law as applied to the defendant. See St. Paul Fire & Marine Ins. Co. v. Smith, 609 So.2d 809, 817 (La.1992)(“Substantive laws either establish new rules, rights, and duties or change existing ones.”); Thomassie v. Savoie, 581 So.2d 1031, 1034 (La.App. 1st Cir.1991), (“[I]f a statute which is remedial or procedural also has the effect of making a change in the substantive law, it must be construed to operate prospectively only.”). Thus, were we to interpret the amendment at issue to allow the revival of prescribed causes of action, the substantive rights of the defendant would be materially changed because he would be stripped of this acquired defense. Guided by the principles established in [La.Civ.Code] article 6, we require, at the very least, a clear and unequivocal expression of intent by the legislature for such an “extreme exercise of legislative power.”
[ ], 2005 La.Acts No. 192 § 3, provides that “[t]he provisions of this Act shall be applicable to all claims existing or actions pending on its effective date and all claims arising or actions filed on and after its effective date.” We find no “clear and unequivocal” expression by the legislature that Article 197 revives filiation claims which have already prescribed. It is clear that the intent of the legislature was to ensure that the provisions of the Act applied to causes of actions that had not prescribed but were existing or already in litigation on June 29, 2005, the effective date of the Act. We, therefore, find that Article 197 is not applicable to these already-prescribed claims.
McKay, 921 So.2d at 1222-23 (footnote omitted).

Meaux argues that this situation is different because Guidry is not deceased. We disagree. The same result was reached in Thomas, 106 So.3d 557, where the alleged father was not deceased. Meaux argues that Guidry failed to produce evidence of Meaux’s date of birth at the hearing. However, Meaux’s own petition admits his date of birth. While we agree with Meaux that the legislature clearly intended to remove the nineteen-year peremptive period, that does not negate the fact that the substantive rights of defendants under Article 209 were affected and, therefore, the revision will not be retroactively applied. Under the former La.Civ.Code art. 209, any claim that Meaux has to establish paternity against | BGuidry was perempted the day after he attained the age of nineteen, August 26, 1999.

CONCLUSION

The judgment in favor of the defendant, Leonard Guidry, granting his exceptions of peremption and no right of action, is affirmed. All costs of this appeal are assessed against the plaintiff, Ben William Meaux.

AFFIRMED.

      . Guidry notes in his brief that he erroneously used the word “prematurity" instead of "per-emption” when preparing the judgment for the trial court. He notes that all counsel and the trial court understood that the issue was whether Meaux's claim was perempted, not premature. After review of the record, we agree and review the issue of peremption and not prematurity. We further grant Guidry’s request to correct the typographical error in the judgment pursuant to our authority under La.Code Civ.P. art. 2164.

      . We will not address this assignment of error as it is based on a typographical error as noted above.