author: JUDE G. GRAVOIS, Judge.

text:
    In re M.S.E. (Minor Child).
    No. 12-CA-553.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      M. Suzanne Montero, Attorney at Law, New Orleans, LA, for M.S.E. (Minor Child).
    William H. Beaumont, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Richard G. Perque, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and JUDE G. GRAVOIS.
   JUDE G. GRAVOIS, Judge.

|2This appeal involves the custody of an orphaned child, M.S.E. His maternal grandfather petitioned the court for custody. His paternal uncle and aunt also jointly petitioned the court for custody. After much discovery and a two-day trial, custody was awarded to the paternal uncle and aunt. For the reasons that follow, we affirm.

PROCEDURAL BACKGROUND AND FACTS

Michael Evans, II (“Mikey”) and Melissa Hebert (“Missy”) were married on July 6, 2004. At that time, Mikey was on active duty with the Louisiana National Guard. Missy became pregnant shortly before Mi-key was deployed to Iraq. Tragically, Mi-key was killed in Iraq on January 28, 2005. Their son, M.S.E., was born on June 7, 2005. On February 20, 2011, Missy took her own life.

Dennis Hebert (“Mr. Hebert”), Missy’s father, filed a petition seeking custody of M.S.E. and was granted temporary custody of M.S.E. pending a | .-¡determination of permanent custody. Davin Evans, Mi-key’s older brother, and his wife, Heather (“the Evanses”), also filed a petition seeking custody of M.S.E. An attorney was appointed to represent the minor child, and a custody evaluation was ordered to be performed by James Klein, Ph.D. Dr. Klein eventually issued a report recommending that M.S.E. remain in the custody of Mr. Hebert. After several delays, the matter finally proceeded to trial on May 7-8, 2012.

At trial, thirty-six year old Davin Evans testified that he and his thirty-two year old wife Heather had been married for thirteen years and had two sons, ages 5 and 10. Both Davin and Heather are employed by the U.S. Department of Defense as information security specialists, having a combined annual income of approximately $155,000. In connection with their jobs, the Evanses have been granted high level security clearances. The Evans family resides in Chesapeake, Virginia, in a two-story house surrounded by neighbors with young children. Pictures of their home introduced into evidence show it to be comfortably furnished with a fenced-in yard containing play equipment. Other family members, with whom they enjoy outings, including camping, boating, fishing, and swimming, live nearby. The Ev-anses’ oldest child attends public school, which is reportedly part of one of the best public school systems in the nation. Mr. Evans testified, however, that although he and his wife are not Catholic, they would be willing to send M.S.E. to Catholic schools, since he was enrolled in a local Catholic school at the time of trial. In the event they would receive custody of M.S.E. and send him to a Catholic school, they had looked into possibly sending their two sons to the same school. If custody of M.S.E. were granted to them, they would strive to maintain and continue the relationship M.S.E. has had with his grandfather, Mr. Hebert.

|4Mr. Evans testified that he did not meet Missy until Mikejfs funeral. He remained in close contact with her until the time of her death. She and M.S.E. stayed with him and his wife in Virginia after Hurricane Katrina. Further, Missy and M.S.E. had visited them several times in Virginia. He and Missy even discussed the possibility of her and M.S.E. moving to Virginia. While Mr. Evans admitted that he did not see or talk to M.S.E. on a daily or weekly basis, M.S.E. did spend ten days with his family during the summer of 2011. M.S.E. got along well with his sons and they all enjoyed family visits to a nearby lake. Pictures of these visits to the lake were also introduced into evidence. Mr. Evans stated that he sold his boat to help finance the cost of this custody proceeding. All of his vacation days and sick leave days had been used for trips related to the custody evaluation and proceedings.

Heather Evans’ testimony corroborated that of her husband. Although she did not have as close of a relationship with Missy as her husband did, she did speak to her at times regarding child-rearing practices. She had not been able to visit with M.S.E. on a regular basis, mainly because of her family and employment responsibilities. She called to speak to M.S.E. on several occasions, but he did not want to talk on the phone; rather, he would not respond or other times would just “scream.” She occasionally spoke to Mr. Hebert regarding M.S.E.’s well-being, and he would always tell her that M.S.E. was doing “fine.” Once the custody proceeding was initiated, the interaction between her and her husband and Mr. Hebert was “fairly uncomfortable,” it being apparent to her and her husband that Mr. Hebert was angry at them. If she and her husband were to obtain custody of M.S.E., they would place pictures of Mr. Hebert around their home, and would look into using Skype, an Internet communications network, for communicating with Mr. Hebert. She has a friend whose father is a Catholic deacon and she has | sspoken to him about the Catholic faith and what would be required to raise M.S.E. in the Catholic faith. If she and her husband were to obtain custody of M.S.E., he would share a bedroom with their younger son. They have looked into purchasing a four-bedroom home, but have yet not found “the right one.” She testified as to their family routines, such as eating dinner together every night and the rules for watching television and using the computer. She testified that she had reviewed all of the documents that had been presented to them as part of this proceeding concerning M.S.E., including his school records. She was aware that there were some behavior issues regarding M.S.E. She and her husband had spoken to a friend who is a child psychologist regarding these issues and what would be required to help M.S.E. deal with them.

Mrs. Evans testified that they had picked up M.S.E. the night before the trial began and took him to a children’s-themed restaurant and to view airplanes at the local National Guard airbase. M.S.E. exhibited no anxiety whatsoever being with them and was anxious to leave with them when they arrived to pick him up.

Mr. Hebert testified that he was born in June of 1950. He worked for the U.S. Postal Service for approximately thirty years. Twenty-eight of those years were spent working the night shift. He was married to Missy’s mother, Debra, from 1981 until 1990. When he married Debra, she had a young daughter, Shawn, whom Mr. Hebert adopted when she was ten. Missy, who was born in 1982, was their only child together.

Mr. Hebert testified that in 1985, Shawn told a school counselor that she had been sexually molested by an uncle. Mr. Hebert and his wife did not believe Shawn. She ran away from home several times. The Office of Family Services (“OCS”) received a report from a neighbor that Shawn was being physically abused. OCS began an investigation and ultimately Shawn was removed from the | (¡Hebert home. In due course, the He-berts relinquished custody of Shawn and she remained in foster care until she was emancipated at the age of seventeen. Mr. Hebert denied knowledge that his wife was physically abusing Shawn. He testified that this was a very traumatic time for the family and he did not recall many of the specifics surrounding Shawn’s removal from the home or his contact with Shawn after her removal. Mr. Hebert denied knowledge that his wife had told OCS that their lives were much calmer with Shawn out of the home and they did not want to work to have her return to their home.

It was evident at the time of trial that Mr. Hebert and Shawn resumed their relationship at some point. Shawn lives in the New Orleans area and has three children, ages 16,19 and 20.

Mr. Hebert testified that when he and Debra divorced, he obtained sole custody of Missy. He described in general terms their regular living routine. He would bring Missy to his parents’ house at night for her to sleep and he would pick her up in the morning and bring her to school. Missy graduated from high school in 2000. She continued to live with Mr. Hebert after graduation. She briefly attended Delgado Community College in New Orleans and had a series of part-time jobs, but it was generally unclear from Mr. Hebert’s testimony as to what Missy did after graduation from high school until she married Mikey.

Mr. Hebert testified that in 2002, Missy took an overdose of pills in an attempt to commit suicide. She was taken to the hospital and spent a week at a mental health facility. Missy was diagnosed at that time as being “bipolar” and was placed on medication. Approximately one year later, Missy again took an overdose of pills. She was taken to another hospital for a period of time, where her medication was changed.

|7Mr. Hebert testified that a few days after Missy returned from a vácation with friends in July of 2004, she told him she was married. She then handed him the telephone so that he could talk to Mikey, her new husband. Mr. Hebert later found out that Missy had met Mikey in February of 2004 and had gone to Texas on a trip with friends where she and Mikey got married. Mr. Hebert first met Mikey in September 2004 when he stayed with Missy at the Hebert residence while on leave. Shortly after that visit, Mikey went to Iraq and Missy discovered that she was pregnant. Mikey ' came home again around Christmas and was excited about the pregnancy. Mr. Hebert was at home with Missy when two members of the National Guard came to his house and informed them that Mikey had been killed in action. Missy was devastated.

Mr. Hebert was at the hospital when M.S.E. was born and Missy and M.S.E. came home from the hospital to his house. Missy received about $500,000 in solder’s benefits after the death of Mikey. In December 2005, Missy used a portion of this money to purchase and remodel a house in Kenner. After Missy and M.S.E. moved into this house, Mr. Hebert would often pick M.S.E. up from school. Further, M.S.E. often stayed with him on weekends while Missy went out with friends.

Mr. Hebert indicated that Missy was involved with many men following Mikey’s death. A relationship with a man named Patrick became violent one night when Patrick assaulted Missy and held a knife to her throat; this attack purportedly occurred in front of M.S.E. Mr. Hebert’s testimony indicates that Missy summoned Mikey’s mother after this incident, and soon thereafter, Missy and M.S.E. relocated to Florida and lived with Mikey’s family for several months. In the fall of 2008, Missy began a relationship with A.J., whom she had dated before she married Mikey. In due course, Missy returned to Louisiana and moved into |8A.J.’s home. She paid for a swimming pool which was installed at A.J.’s home. This relationship between Missy and A.J. soon ended, with Missy moving back into her Kenner home.

Mr. Hebert testified that just prior to Missy death, Missy’s friends and Shawn told him of things that Missy posted on Faeebook, an Internet social networking service, apparently indicating that she had no money and was considering harming herself. He spoke to Missy about these things, but Missy told him that she was fine. In January 2011, Mr. Hebert went to Missy’s home and she told him that she had taken a number of sleeping pills. He described Missy as being in “fairly bad condition” and found a couple of empty pill bottles at the home. Mr. Hebert stayed at Missy’s home until “late” that night. He left Missy in the care of a friend, “Kline,” who was a recovering drug addict. Although medical help was not sought that night, Kline took Missy to her treating psychiatrist, Dr. Poole, the next day. Mr. Hebert testified that he called Dr. Poole and spoke to him for about an hour about the Facebook postings and Missy’s overdose of pills. Dr. Poole assured him that Missy was not suicidal. Missy continued under Dr. Poole’s care until she committed suicide in February 2011. At the time of Missy’s death, M.S.E. was with Mr. Hebert.

Mr. Hebert testified that after Missy’s death, his eighty-eight year old mother moved into his home with him and M.S.E. At that time, he was still working nights shifts for the Postal Service, but retired in June 2011. M.S.E. has his own room at the Hebert house, along with a computer and video games. Pictures of the home introduced into evidence depicted a swing set in the back yard, which Mr. Hebert admitted he had recently purchased at the suggestion of his attorney. He testified that he was not concerned about his age (sixty-one at the time of trial) as being an impediment to raising M.S.E. His daughter Shawn comes [ nover to take M.S.E. to the zoo, the park, and movies. In his view, his mother and Shawn are “maternal figures” for M.S.E. Mr. Hebert testified that he is financially able to meet the obligations of raising M.S.E., explaining that he gets an annual pension of approximately $33,000 and will be getting an additional $3,000 per year in social security benefits when he turns sixty-two. He further testified that he had paid M.S.E.’s school tuition and that M.S.E. had been offered a scholarship to a local Catholic school from seventh through twelfth grades as long as he keeps his grades up. He takes M.S.E. to mass on Sundays. He has set up a schedule for M.S.E. to follow after school in order to get him to bed on time.

Mr. Hebert testified that prior to Missy’s death, he was not involved with assisting Missy regarding where M.S.E. would attend school and matters concerning his healthcare. M.S.E. continued at the same school after Missy’s death. He brings M.S.E. to school and picks him up every day. Mr. Hebert testified regarding behavior issues M.S.E. has experienced at school, including striking another student and threatening to kill two students when they tattled on him. He spoke to the school’s counselor and teachers about these incidents. M.S.E. plays with the two children next door and likes to go to the playground to play with other children. M.S.E. has also played on sports teams at the playground.

Although he claims he had not seen any behavior problems in M.S.E., after giving a deposition in this matter, Mr. Hebert started taking M.S.E. to Dr. Vincent Car-bone for counseling. Mr. Hebert stated that he wanted M.S.E. to be comfortable with a counselor in the event that he developed problems later on.

Mr. Hebert testified that when Missy received the large sum of money after Mike/s death, he assisted her with opening an investment account. After Missy’s death, he learned that Missy had spent most of this money. Aside from her | ^purchasing and remodeling of the home in Kenner and her paying for the installation of the pool at A.J.’s house, he was generally unsure of what the money was used for. He later learned that Missy had made numerous ATM cash withdrawals. Missy’s Kenner home has been sold and Mr. Hebert has put the proceeds from the sale into an account for M.S.E.

Mr. Hebert testified that he had no objections to M.S.E. spending extended periods of time with the Evans family, as long as M.S.E. is comfortable with doing so.

Shawn Hebert, Mr. Hebert’s adopted daughter and Missy’s half-sister, testified that although prior to Missy’s death, she only had sporadic visits with M.S.E., she had begun to see him on a more regular basis after Missy’s death. She stated that M.S.E. and Mr. Hebert are extremely close and that he had done a good job of caring for M.S.E. since Missy’s death.

Ms. Hebert testified that she ran away from home due to her mother’s physical abuse and molestation by her uncle. The physical abuse by her mother started before her mother married Mr. Hebert and continued after the marriage; however, Mr. Hebert was not aware of the abuse. She was placed in foster care at the age of twelve and never returned to live with her family. Once she had grown up and was out on her own, Mr. Hebert had “always been there” for her and always made her feel welcome and like she was part of the family.

Evelyn Hebert, Mr. Hebert’s mother, testified that she currently lives with her son, Mr. Hebert. She has various health problems, including diabetes and cancer, as well as a recent stroke, from which she has recovered. Mr. Hebert does the cooking and she cleans the house and does whatever she can to help out. She watches M.S.E. for short periods of time, but never for extended periods.

InWynette Evans, Mikey’s mother, testified that Mikey called her the day he and Missy were married to let her know of the marriage. She and her husband were living in the New Orleans area at the time and they met Missy about a week after she returned to New Orleans after the marriage. She and her husband moved to Jacksonville, Florida, in December 2004. At the time she married her husband, she had two children, Davin and Dana, whom he adopted. She and her husband had two additional children, Mikey and Marybeth.

Mrs. Evans testified that Missy visited with them every week before they moved to Florida. After the move, they often talked on the phone. Missy requested that Mrs. Evans be in the delivery room for the birth of M.S.E., which she attended. When Hurricane Katrina struck in August 2005, Missy and M.S.E. evacuated to Mrs. Evans’ home in Jacksonville and later stayed with Davin and Heather in Virginia.

Mrs. Evans testified that she visited with Missy and M.S.E. quite often and Missy allowed M.S.E. to visit her and her husband alone in Florida. On these occasions, they would meet Missy halfway between New Orleans and Jacksonville to transfer M.S.E.

Mrs. Evans testified that in 2008, Missy called her in the middle of the night and said that her flaneé had attacked her in front of M.S.E. Mrs. Evans immediately drove to New Orleans and brought Missy and M.S.E. to Jacksonville to live with them. Missy and M.S.E. lived with Mrs. Evans and her husband for some time. They later moved into an apartment with Marybeth. At some point, Mrs. Evans spoke to Missy about her concern over Missy’s exposing M.S.E. to various men that she had brought into her home. This angered Missy, prompting her to leave Jacksonville soon afterwards. During this time, Missy “reconnected” with A.J., whom she had dated before she married Mikey, and soon moved in with |12him in Louisiana. A month or so later, Missy wrote to Mrs. Evans and apologized for her actions and their close personal relationship resumed. Mrs. Evans read a letter into the record from Missy which spoke of the love and high opinion Missy had for the Evans family.

Mrs. Evans testified that she had considered seeking custody of M.S.E. after Missy’s death, but later realized that such was not a good idea, mainly because of her age. She also realized that her household and routine did not include any young children and she could not provide other children for M.S.E. to be raised with. She explained that if M.S.E. were allowed to live with Davin and Heather, he would be part of a family with a mother and father and siblings, and would not be alone in the world.

Mrs. Evans testified that on the night before the trial, she and her family took M.S.E. for an outing and when they brought him back to Mr. Hebert’s house, he stated that he did not want to go home.

Shala Waguespaek testified that she and Missy had been friends since Missy was seven years old. Although Ms. Wagues-pack was ten years older than Missy, they became close friends. Ms. Waguespaek was Missy’s dancing teacher. She stated that Missy had told her on several occasions that if anything ever happened to her, she wanted Mr. Hebert to have primary custody of M.S.E. because he had done a good job of raising her.

Ms. Waguespaek testified that the week before Missy committed suicide, she called Mr. Hebert because she was concerned about the text messages she had received from Missy. In these messages, Missy told Ms. Waguespaek not to be upset if something happened to her.

Dr. Vincent Carbone was accepted by the court as an expert in child psychology. He testified that Mr. Hebert brought M.S.E. to him in June of 2011 |isand told him that M.S.E.’s parents were deceased and he did not see “a great deal of emotion” from M.S.E. Mr. Hebert related to Dr. Carbone that M.S.E. was reluctant to show affection with adults and he was concerned that he was “holding back from dealing with things that had gone on in his life.” Dr. Carbone testified that at the time of trial, he had seen M.S.E. a total of thirty-three sessions and that M.S.E.’s progress had been very slow. He explained that he had not performed any diagnostic testing on M.S.E.; rather, he was engaging M.S.E. in “play therapy.” He attempted to have M.S.E. alone in the therapy sessions, but because this was not working, it was necessary for Mr. Hebert to attend all of the therapy sessions with M.S.E. Dr. Carbone explained that M.S.E. exhibited signs of aggression and he was reluctant to deal with his emotions. M.S.E. had become less resistant over time and was beginning to allow him to work on “some of the feelings.” At the time of trial, Dr. Carbone had diagnosed M.S.E. as having oppositional defiant disorder and anxiety disorder. These diagnoses were based on M.S.E.’s resistance to follow commands and to “almost panic” when he is confronted with something that was uncomfortable to him.

With regards to the relationship between M.S.E. and Mr. Hebert, Dr. Car-bone testified that M.S.E. relies on Mr. Hebert as a parent and that M.S.E. views Mr. Hebert as his father. Dr. Carbone described the interaction between M.S.E. and Mr. Hebert as jovial. He explained that the strong bond between them is evidenced by the fact that M.S.E. wants Mr. Hebert next to him when he becomes anxious during the therapy sessions. Mr. Hebert has been very receptive to his suggestions and follows through with them. Dr. Carbone had no concerns about M.S.E. remaining in Mr. Hebert’s care. Mr. Hebert is the only adult M.S.E. has connected with and trusts. He opined that if M.S.E. were to be taken away from Mr. Hebert’s home, it would be very disruptive psychologically for M.S.E.

|140n cross-examination, Dr. Carbone admitted that he had not read any of the depositions that had been taken in connection with this matter. He admitted that initially he was not told that M.S.E. witnessed the attack on Missy by Patrick. He stated that he became aware of this incident later, but this incident was not reflected in his notes. His impression was that M.S.E. had not actually witnessed the attack. Dr. Carbone further admitted that his notes also did not reflect that M.S.E. had recently been involved in a situation at school in which M.S.E. threatened to kill two children at school who had tattled on him. Dr. Carbone admitted that he had no information regarding M.S.E.’s relationship with the Evans family, explaining that he had not been asked to perform a custody evaluation. Dr. Carbone also testified that he had not performed any testing on Mr. Hebert to determine whether or not he has qualities for proper parenting. He further elaborated that he feels M.S.E. has “some genetic predisposition to some emotional issues.” Dr. Carbone explained that if M.S.E. were to go and live with the Evans family, he would enjoy having the other children around him, but he felt that M.S.E. would have a great deal of trouble trying to understand what had happened and why another parent figure had been taken away from him.

Dr. Alan James Klein, who was accepted by the court as an expert in the field of clinical psychology, testified that he was appointed by the court to perform a custody evaluation in this case. Although he has performed an estimated two hundred custody evaluations, none of them have involved an orphaned child. In order to perform this evaluation, Dr. Klein interviewed Mr. Hebert, M.S.E., and Davin and Heather Evans. He generally likes to see each person three times, but since Mr. & Mrs. Evans lived out of town, he did not have that luxury in this case. He also spoke to Dr. Carbone and one of M.S.E.’s teachers. He performed the Minnesota Multiphasic Personality Inventory (“MMPI”) on Mr. Hebert and on Mr. 11fiand Mrs. Evans. This test is used to determine whether there are any psychological disturbances that would concern him with regards to their being able to parent a young child. Dr. Klein acknowledged that this test does not assess parenting skills or parenting abilities. The results of the MMPI on Mr. Hebert indicated some mild anxiety, and the results of the Evanses’ tests were within the normal range.

Dr. Klein testified that during the process of this evaluation, it became clear to him that Mr. Hebert had been involved in M.S.E.’s life from his early years, while Mr. Evans had been involved with M.S.E. for only a total of approximately forty-five days. He concluded that Mr. Hebert was a secondary attachment figure for M.S.E., with Missy being the primary attachment figure. Dr. Klein testified that M.S.E. had some “fairly significant emotional and social issues.” He opined that if M.S.E. were removed from Mr. Hebert’s home, there is the potential to exacerbate these issues. He concluded that Mr. Hebert was the only person M.S.E. was connected to and it would be devastating to break that connection. He explained that Mr. Hebert was doing an adequate job of parenting M.S.E., although he noted that Mr. Evans was also well equipped to parent M.S.E. Dr. Klein testified that his opinion is bolstered by the testimony of Dr. Carbone in that he explained that Mr. Hebert plays a vital role in meeting M.S.E.’s needs.

On cross-examination, Dr. Klein admitted that he had not performed any testing to determine the parenting skills of Mr. Hebert or the Evanses. In performing the evaluation, Dr. Klein testified that he had spent between two and three hours alone with Mr. Hebert and less than one hour with Mr. Hebert and M.S.E. together, and had spent “up to three hours [alone] with Davin Evans” and only had a “brief observation” of Davin and M.S.E. together. Dr. Klein explained that during the brief observation of Davin.and M.S.E. together, M.S.E. was acting 11fiout and difficult to manage. He admitted, however, that this behavior' was “possibly due to [M.S.E.’s] having been at day camp in the morning, not having had time for lunch, and he was tired.” Dr. Klein did not observe M.S.E. interacting with Heather Evans, as he felt that this was not necessary because he had all of the information he needed to make a recommendation. He spoke to Dr. Carbone regarding M.S.E.’s extended visit with the Evans family and it was reported to him that this had been a pleasant experience for M.S.E. Dr. Klein admitted that there are objective tests available to measure parenting abilities, but he did not use any of these in this case. He stated that the Evans family had a “good environment with two normal healthy children. It seemed like they were doing a good job.” Dr. Klein explained that he was not trying to determine who was going to be the best parent; rather, he was trying to determine M.S.E.’s needs and who would best be able to meet those needs. Dr. Klein opined that Mr. Hebert was able to meet those needs and was meeting them. Dr. Klein admitted that if custody of M.S.E. were to be granted to the Evanses, they would probably do an “adequate job” of meeting M.S.E.’s needs. In Dr. Klein’s view, M.S.E. needs the “continuity of his family situation rather than disrupting the only thing that he knows.” He testified that M.S.E. has a secure attachment to Mr. Hebert, but admitted that if custody were to be granted to the Evanses, over time M.S.E. would get attached to them.

Dr. Klein admitted that he had actually performed ■ an evaluation for OCS when Shawn was removed from the Hebert home, but he had not reviewed the OCS file during the present evaluation, although it was available to him. He stated, however, that Mr. Hebert’s skills as a parenting figure could riot be measured by “what may have happened in a troubled dysfunctional home setting 25 years — 27 years ago.” Dr. Klein opined that M.S.E.’s emotional and social | tissues stem from the kind of parenting he experienced with his mother, rather than from the death and loss of his mother.

Dr. Seth Kunen, who was accepted by the court as an expert in clinical psychology and forensics, testified that he is a board certified child custody evaluator. He explained that he was asked to present his opinion as to the evaluation completed by Dr. Klein, not to make a recommendation on custody. In formulating his opinion, Dr. Kunen had not met with any of the parties, nor had he spoken to Dr. Klein or Dr. Carbone.

Dr. Kunen testified; that the American Psychological Association guidelines state that the MMPI, the test given to the parties by Dr. Klein, provides no assessment of parenting ability. He explained that a custody evaluation is to assess the child’s needs, strengths and weaknesses, as well as the parent’s strengths and weaknesses, and to determine how they fit together. Dr. Kunen stated that there are standardized tests available to determine these strengths and weaknesses that provide objective results and are combined with the clinical evaluation to determine what the parenting capacities are. Dr. Kunen testified that he would have used the Child Abuse Potential Inventory, the Adult-Adolescent Parenting Inventory, and the Parenting Stress Index in this case. He was critical of the evaluation performed by Dr. Klein due to his failure to use these tests. Dr. Kunen also explained that there are tests available to assess attachment that could have been used in this case. He stated that another way to assess attachment is to spend four hours at a minimum watching the child interact with the individual. He emphasized that is it important to spread these periods of observation weeks apart. With regards to M.S.E.’s attachment to Mr. Hebert (which appears to have been the primary basis for Dr. Klein’s recommendation to maintain custody in Mr. Hebert), Dr. Kunen testified that there was no empirical evidence of this | ^attachment. Dr. Klein’s conclusions as to how much time M.S.E. spent with Mr. Hebert before Missy’s death were based on hearsay. Dr. Kunen testified that he was surprised at Dr. Klein’s recommendation to continue custody with Mr. Hebert, given that the Evanses presented an “ideal home” and Mr. Hebert’s history with his daughters, which was indicative of mal-adoptive parenting. Dr. Kunen testified that Dr. Klein’s conclusion to continue custody with Mr. Hebert was not consistent with the information presented in his report.

Dr. Kunen testified that there are professional guidelines for child custody evaluations, and while these are not required to be followed, one gets the best outcome if the guidelines are followed. He stated that Dr. Klein did not follow these guidelines in his evaluation in this case. Dr. Kunen explained that when these guidelines are not followed, “our own personal opinions, our own biases, our own personal histories can greatly influence our recommendations and hence the need for objective testing.”

Dr. Kunen further testified that Dr. Carbone should not make a recommendation as to custody because he did not evaluate Mr. Hebert or the Evanses. Dr. Kunen testified that there are many tests available that Dr. Carbone could have used to determine exactly what issues M.S.E. is dealing with and to make a diagnosis. Dr. Kunen opined that the aggressive, uncooperative, and defiant behavior described by Dr. Carbone were indicative of depression, yet Dr. Carbone had not performed any tests to determine what the “real issues are.” Dr. Kunen testified that if Dr. Car-bone had only made very little progress with M.S.E. after thirty-three sessions, it was time for a new therapist. Dr. Kunen expressed surprise that the insurance company was continuing to pay for the sessions with Dr. Carbone based on Dr. Car-bone’s trial testimony.

11SAt the conclusion of the trial, the trial judge took the matter under advisement. On May 29, 2012, giving extensive reasons for judgment, the trial court ordered that permanent custody of M.S.E. be awarded to Davin and Heather Evans with liberal visitation privileges in favor of Mr. Hebert. On June 1, 2012, Mr. Hebert filed a motion for a devolutive appeal.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Mr. Hebert argues that the trial court erred in not finding Louisiana Civil Code art. 133 applicable in this case. While acknowledging that Article 133 provides an order of preference in custody proceedings in which non-parents are seeking custody from a parent, appellant argues that the legislative intent of this article is to provide guidance to the court for an order of preference for custodial placement when there is no suitable parent. Article 133 provides that if an award of joint custody or sole custody to either parent would result in harm to the child, the court shall award custody to another person with whom the child has been living in a wholesome and stable environment. Appellant points out that it is undisputed that M.S.E. has been living with appellant since his mother’s death and that he had spent a substantial amount of time with appellant prior to his mother’s death. Appellant argues that no other party in this proceeding has provided a home environment to M.S.E. Appellant contends that the record is replete with examples of his having provided a stable home environment for M.S.E., citing his school record, his relationship with his friends and teacher, his extracurricular activities, and his church attendance.

Counsel for M.S.E. responds that Article 133 is not applicable to this matter because that article applies solely to custody disputes between a parent and a non-parent. The Evanses agree that Article 133 is inapplicable, also arguing that [ 2ftArticle 133 provides that a non-parent shall be awarded custody over a parent only when there is a showing that substantial harm would result to the child. The Evanses further argue that appellant has not provided a wholesome and stable environment for M.S.E., citing appellant’s history of parenting his daughters. Appellees both contend that case law addressing custody disputes between non-parents apply the “best interest of the child” standard.

Our review of the jurisprudence pertinent to this issue indicates that in cases involving an orphaned child, the courts have employed the best interest of the child standard to award custody between two non-parents. Stephens v. Smith, 30,-028 (La.App. 2 Cir. 12/10/97), 704 So.2d 943, 945. We accordingly find this assignment of error to be without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In his second assignment of error, Mr. Hebert argues that the trial court erred in not applying and in wholly disregarding the factors presented in Louisiana Civil Code art. 134. In this assignment, appellant argues that although custody decisions must turn on the best interest of the child, the courts are not permitted to overlook the factors the legislature enacted to guide them or to point to one factor over the others which may favor contrary placement. Appellant contends that the trial court made no mention of his care and upbringing of M.S.E. and the reasons for judgment are silent as to the lack of any significant time spent between M.S.E. and the Evanses, and failed to consider that M.S.E. had little substantial contact with the Evanses since his birth. Appellant then goes through an examination of each factor and concludes that the trial court abandoned Article 134 in reaching its decision.

12iCounsel for M.S.E. responds that the trial court is not required to perform a mechanical evaluation of the statutory factors. She contends that while the trial court did not outline each and every factor in its detailed reasons for judgment, the court addressed findings of fact which are relevant to each of the factors. In its reasons for judgment, the court noted that while it had done a critical review of the facts and that both parties have the capacity to provide a loving home for M.S.E., the court had grave concerns over appellant’s ability to address the challenges M.S.E. will probably face as he grows up. The Evanses agree that the trial court is not required to make a mechanical evaluation of all of the factors listed in Article 134; they argue, however, that the trial court most certainly considered the factors contained in Article 134, in light of its extensive reasons for judgment. They contend that appellant is actually arguing that the Evanses are not entitled to custody because they have not had as much contact with M.S.E. as appellant has had.

Louisiana Civil Code article 134 provides that in- awarding custody, the court shall consider all relevant factors in determining the best interest of the child; these 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.
|¾>(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 respec- ' tive residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in Article 134; rather, the court should decide each case on its own facts in light of those factors. Robertson v. Robertson, 10-926 (La.App. 5 Cir. 4/26/11), 64 So.3d 354, 363. The factors listed in Article 134 are not exclusive, but are provided as a guide to the court, and the relative weight given to each factor is left to the discretion of the trial court. Id. Every child custody case must be decided in view of its own particular set of facts and circumstances with the paramount goal of reaching a decision that is in the best interest of the child. Id. On appellate review, the determination of the trial court in establishing custody is entitled to great weight and will not be disturbed on appeal absent a clear showing of an abuse of discretion. Id.

In its extensive reasons for judgment, the trial court noted that M.S.E. lived with appellant as an infant, that appellant frequently babysat for M.S.E. after he "and Missy moved into the Kenner home,- and that M.S.E. went to live with appellant following his mother’s death. The court noted that appellant’s adopted daughter, Shawn, was removed from his home following an investigation by OCS and that the Heberts never reunited with this daughter. The court noted that ^following his divorce from Missy’s mother, appellant had sole custody of Missy. As a young adult while living with appellant, Missy developed a mental illness and attempted suicide on two occasions. Appellant seemed to know very little about Missy’s mental illness and how it affected her. Although Missy lived in his home, it was not until after Missy was married that appellant discovered that Missy had met Mikey and had gone to Texas to marry him.

The trial court also noted the unstable life Missy lived following the birth of M.S.E. This included live-in relationships with a number of men and reckless spending of a large sum of money. Although appellant had frequent contact with Missy during this time, his testimony indicated that he was generally unaware of what she was doing. The testimony indicates that when one of these relationships became violent, Missy sought help from Mrs. Evans who lived in Jacksonville, Florida, rather than from appellant who lived nearby. Despite her history of mental illness, including two suicide attempts, when Missy took an overdose of sleeping pills in January 2011, appellant did not immediately seek medical help for her. Reportedly a friend took Missy to her psychiatrist the next day.

The trial court further noted that although appellant has sought counseling for M.S.E., appellant failed to inform this counselor of M.S.E.’s behavioral issues and unsavory incidents at school.

The reasons for judgment indicate that the trial court was fully aware that M.S.E. had spent much more time with appellant than with the Evanses. The trial court noted that M.S.E. had spent an extended stay with the Evans family, as well as having an outing with them the night before trial, and there was no evidence presented that M.S.E. was uncomfortable with the Evanses. Evidence was introduced that the Evans family made efforts to continue to be a part of M.S.E.’s life after the death of his parents. The trial court noted that Davin and Heather | ^Evans had been married for thirteen years, had two young boys, and live in a house and neighborhood geared towards families raising children. The Evans family has frequent contact with other family members who live nearby. The Evans children attend school in a highly regarded public school system, but the Evanses would be willing to send M.S.E. to Catholic schools and to raise him in the Catholic faith, as per the desires of Mr. Hebert. They also indicated that they were aware of M.S.E.’s. behavioral issues, had reviewed his records, and had spoken to a counselor about these issues. They testified that if they obtained custody of M.S.E., they would facilitate a continued relationship between appellant and M.S.E.

The reasons for judgment refer to the testimony of Dr. Carbone that M.S.E. had made little progress in therapy, as he was still defiant, uncooperative, and inattentive. The court noted that Dr. Carbone agreed that these characteristics can result from the child being “poorly disciplined.”

The trial court acknowledged that Dr. Klein, the court-appointed custody evaluator, opined that it was in the best interest of M.S.E. to remain with appellant. The court noted that this opinion was based on Dr. Klein’s belief that M.S.E. is attached to appellant. The court also noted that Dr. Klein met with appellant for approximately three, hours and with Davin Evans for approximately two hours. Although Dr. Klein met with Heather Evans, he did not observe any interaction between her and M.S.E. Further, the court noted that Mi*. Evans had attempted to contact Dr. Klein after M.S.E.’s extended visit, but Dr. Klein did not return his calls. Dr. Klein was aware of appellant’s prior history with OCS and the removal of Shawn from the home, but explained that he did not hold this prior history against appellant. Further, the court noted that Dr. Klein did not perform any tests to measure parenting skills on any of the parties. The court also noted that DrJ^Klein acknowledged that M.S.E. has the capacity to attach to other adults, and that with time, he expected that M.S.E. would attach to the Evanses. Finally, the court noted that Dr. Klein testified that he did not find anything that would prevent the Evanses from providing a loving, caring, and nurturing home for M.S.E.

The reasons for judgment go on to list the factors of Article 134 and states that “after a critical review of the facts presented, and with a concern for [M.S.E.’s] emotional well-being as he grows up[,] the court finds that it is in the best interest of [M.S.E.] that sole custody be awarded to Davin and Heather Evans.” The court stated that it had grave concerns regarding appellant’s parenting abilities to address the challenges M.S.E. will face as he grows up.

The overriding consideration in a child custody case is always the best interest of the child. La. C.C. art. 134. In determining the best interest of the child, there must be a weighing and balancing of factors favoring or opposing custody in the respective competing custodians on the basis of the evidence presented in each particular case. Stephens v. Smith, 30,028 (La.App. 2 Cir. 12/10/97), 704 So.2d 943, 945. Contrary to appellant’s argument, the reasons for judgment indicate that the trial court did consider the factors listed in Article 134 and weighed and balanced the specific facts of this case to determine the best interest of M.S.E. A review of the testimony indicates that although appellant has a strong bond with M.S.E. and has the means to provide for his physical needs, the Evanses can provide an overall better environment to address the issues faced by M.S.E. now and in the future.

After thoroughly reviewing the record before us, we find no abuse of discretion in the trial court’s award of permanent custody of M.S.E. to Davin and Heather Evans. [ ^ASSIGNMENTS OF ERROR NUMBER THREE AND FOUR

In his final assignments of error, Mr. Hebert argues that the trial court erred in completely disregarding the findings and recommendations by Dr. Klein, the court-appointed evaluator, in determining custody of M.S.E. He further argues that the trial court erred in disregarding the psychological damage to M.S.E. as opined by Dr. Klein in determining custody of M.S.E. Because these assignments both relate to the trial court’s consideration of Dr. Klein’s findings and recommendations, we will consider them together.

The long-standing rule of law is that the trial court is not bound by the testimony of an expert; rather, expert testimony is to be weighed the same as any other evidence. McFall v. Armstrong, 10-1041 (La.App. 5 Cir. 9/13/11), 75 So.3d 30, 36. The opinion of any expert may be accepted or rejected in whole or in part by the trial court. Id. The effect and weight accorded to expert testimony is within the broad discretion of the trial court. Id.

First, we find appellant’s argument that the trial court completely disregarded the findings and recommendations by Dr. Klein in determining custody of M.S.E. to be without merit. The reasons for judgment, discussed in detail supra, indicate that the trial court did in fact consider Dr. Klein’s findings and evaluated these findings in light of the other evidence presented to the court. Further, this argument completely ignores the testimony presented by Dr. Kunen, which was very critical of Dr. Klein’s evaluation. Moreover, as stated by the jurisprudence cited above, the trial court was well within its discretion to reject the findings of Dr. Klein.

Appellant is also critical of the .trial court for referring to the OCS investigation which resulted in the removal of Shawn Hebert from the Hebert home, but at the same time ignoring the testimony of Shawn herself, the subject of 127this investigation. Appellant points out that Shawn testified that her mother had abused her and she had hid this from appellant. Our review of the testimony presented at trial indicates that Shawn did testify that her mother had abused her and that appellant was unaware of this abuse. However, Dr. Klein’s report clearly states that appellant also struck Shawn. Appellant contends that the testimony indicates that following Shawn’s removal from the home, appellant continued to attempt to contact her. Our review of the testimony indicates that appellant could not recall many specifics regarding his contact with Shawn after she was removed from the home. The record was also unclear as to when or how the reconciliation between Shawn and appellant actually took place, but it was clear that this reconciliation took place after Shawn reached the age of majority. Thus, this argument is likewise without merit.

Appellant further argues that the trial court failed to consider the psychological damage to M.S.E. if custody is transferred to the Evanses, as testified to by Dr. Klein and Dr. Carbone. A reading of the trial court’s reasons for judgment indicates that the trial court did consider the testimony regarding this issue. In his reasons for judgment, the court stated: “While there are legitimate concerns for removing [M.S.E.] from his grandfather’s house, Dr. Klein indicates that the Evans’ (sic) have the capacity to provide the necessary emotional support to make this transition as smooth as possible. Further, Dr. Klein testified that with time, [M.S.E.] has the capacity to bond with and attach to other adults.”

As with the testimony of Dr. Klein, the weight' to be given to the testimony of Dr. Carbone was within the sound discretion of the trial court. In its reasons for judgment, with regard to the testimony of Dr. Carbone, the trial court noted that absent from Dr. Carbone’s notes were significant events in M.S.E.’s life, including M.S.E.’s witnessing of the attack on his mother and M.S.E.’s threatening to kill |2Stwo children at school. Additionally, Dr. Carbone testified that he had no information regarding the Evans family. Further, Dr. Kunen was critical of Dr. Carbone’s treatment of M.S.E., explaining that Dr. Carbone had not performed the necessary testing on M.S.E. to reach a diagnosis, and that M.S.E.’s lack of progress in therapy indicates M.S.E.’s need for a different therapist.

These assignments of error are likewise without merit.

CONCLUSION

While it is very unfortunate that M.S.E. has lost both of his parents at such a young age, he is very fortunate to have these adults in his life who love him very much and are willing to make numerous sacrifices for his well-being. The record is clear that Mr. Hebert has a tremendous love and strong bond with M.S.E. This transfer of custody does not remove Mr. Hebert from M.S.E.’s life; rather, the trial court’s decision provides M.S.E. with a structured environment consisting of two parental figures and two siblings in a setting geared towards young children, with the added benefit of liberal visitation privileges reserved to a loving grandfather. Having found that the trial court did not abuse its discretion in determining that the transfer of custody is in the best interest of M.S.E., the judgment of the trial court awarding permanent custody of M.S.E. to Davin and Heather Evans, with liberal visitation privileges reserved in favor of Mr. Hebert, is affirmed.

AFFIRMED

      . In consideration of his privacy, we will refer to the minor by his initials in this opinion.

      . Heather, although not an original petitioner, later joined her husband as a petitioner for custody.

      . At the time of trial, the Evanses’ younger child had not yet started school.

      . Davin Evans testified that he attempted to contact Dr. Klein several times in order to have another interview with him, Heather, and M.S.E. together, but Dr. Klein did not return his calls.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Chief Judge.

license: Public Domain

text:
    Joan W. POWELL v. GRAMERCY INSURANCE COMPANY, Akeisha N. Dorsey, Joseph T. Robinson and RaceTrac Petroleum, Inc.
    No. 12-CA-564.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.
    James B. Guest, Attorney at Law, Ken-ner, LA, for Plaintiff/Appellant, Joan W. Powell.
    Quentin F. Urquhart, Jr., Douglas J. Moore, Stephen G.A. Myers, Elizabeth R. Richard, Attorneys at Law, New Orleans, LA, for Defendant/Appellee, RaceTrac Petroleum, Inc.

      Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   SUSAN M. CHEHARDY, Chief Judge.

|2This is a personal injury suit by a service station customer who was struck by a car driven by an employee of the service station. The customer sued the employee, the service station company, and others. The trial court granted the service station’s motion for summary judgment, finding that the employee driver was not in the course and scope of her employment, so there was no vicarious liability of the service station. The customer appeals. We dismiss the appeal as premature and remand the matter to the trial court.

PROCEEDINGS BELOW

Joan W. Powell filed suit against Race-Trac Petroleum, Inc. (“RaceTrae”), Akei-sha N. Dorsey, and others, for damages resulting when Powell was struck by a car driven by Dorsey in the parking lot of the RaceTrae service station on Almeida Road in St. Rose, Louisiana. Dorsey was an employee of RaceTrae, and was returning to work from a personal errand. Powell was at the store to purchase a propane tank.

Powell alleged that RaceTrae was vicariously liable under the theory of respondeat superior for the negligence of Dorsey, its employee, and also that |sRaceTrac was negligent in failing to adequately supervise and train Dorsey, and in failing to provide plaintiff a safe place to purchase propane.

RaceTrae filed a Motion for Summary Judgment, asserting it should be dismissed from the case on the issue of vicarious liability because Dorsey was not in the course and scope of her employment at the time of the incident.

After a hearing, the trial court took the matter under submission. On March 27, 2012, the court granted the motion for summary judgment and dismissed Powell’s claims against RaceTrae with prejudice. In written reasons for judgment, the court concluded:

Based on the foregoing, the Court finds that the actions of Ms. Dorsey were not in the course and scope of her employment at the time of the alleged incident. Thus, the Court has no recourse but to grant the Motion for Summary Judgment. For an employee’s conduct to be within the course and seope of his employment, it must be the kind of conduct that the employee is employed to perform, must occur substantially within the authorized limits of time and space and must be activated, at least in part, by a purpose to serve the employer.

The plaintiff appeals. She contends, first, the trial court erred in finding that Dorsey was not in the course and scope of her employment at the time of the accident. Second, she asserts the trial court erred in dismissing RaceTrae when the petition also alleged that RaceTrae was negligent in failing to adequately supervise and train Dorsey, and in failing to provide the plaintiff a safe place to purchase propane, when this cause of action was not included in the motion for summary judgment before the trial court.

In opposition to the appeal, RaceTrae asserts the trial court did not err by granting the motion for summary judgment because Powell failed to establish a genuine issue of material fact as to whether the accident between Dorsey and Powell occurred within the course and scope of Dorsey’s employment at RaceTrac. |4Further, RaceTrac argues the trial court did not err by granting the motion for summary judgment notwithstanding Powell’s untimely argument (made on appeal) that RaceTrac failed to adequately “supervise and train” Dorsey, because this argument was not raised in the trial court and, even if it were, there is no legal responsibility to “supervise and train” an employee who is not in the course and scope of their employment.

LAW AND ANALYSIS

The appellate court must review the trial court’s grant of a summary judgment de novo and must use the same criteria that govern the trial court in considering whether summary judgment is appropriate: i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Supreme Sens. & Specialty Co., Inc. v. Sonny Greer, Inc., 2006-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638.

This Court cannot determine the merits of an appeal unless our jurisdiction is properly invoked by a valid final judgment. La. C.C.P. art. 2083. Creighton, Richards & Higdon, L.L.C. v. Richards Cleaniew, L.L.C., 09-247, p. 4 (La.App. 5 Cir. 10/29/09), 28 So.3d 391, 393.

A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court grants a motion ■ for summary judgment, as provided by Articles 966 through 969, but not including a summary judgment granted pursuant to Article 966(E). [Emphasis added.]

La. C.C.P. art. 1915(A)(3).

A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case; however, a summary judgment shall be rendered or affirmed only as to those issues set forth in \fthe motion under consideration by the court at that time. [Emphasis added.]

La. C.C.P. art. 966(E)(1).

Thus, a judgment granted pursuant to La. C.C.P. art. 966(E) is not a final judgment. See La. C.C.P. art. 1915(A)(3). In order for a partial summary judgment to constitute a final judgment for the purpose of an immediate appeal, it must be designated a final judgment by the court after an express determination that there is no just reason for delay. La. C.C.P. art. 1915(B)(l)-(2). Absent such a determination and designation, “any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal.” La. C.C.P. art. 1915(B)(2).

In Robein v. Assadedo, 10-538, p. 7 (La. App. 5 Cir. 12/3/10), 54 So.3d 1151, 1155, the trial judge rendered a partial summary judgment on only one aspect of liability raised in this litigation — causation—but there were outstanding liability issues that remained to be decided before liability could be determined. Thus, the judgment was not immediately appealable.

The instant case presents a similar situation. The trial court granted defendant RaceTrae’s motion for summary judgment on the issue of vicarious liability, but did not address the issues of RaceTrac’s negligence in training and supervision of Dorsey and in providing a safe place for Powell to purchase propane. RaceTrac did not mention these claims either in its motion for summary judgment or during the motion hearing and, hence, they remain undetermined. With claims against RaceTrac still remaining, RaceTrac should not have been dismissed as a party to the litigation, and the judgment is not yet final.

| ^DECREE

For the foregoing reasons, the appeal is dismissed as premature and the matter is remanded. Costs of this appeal are assessed against the appellant, Joan W. Powell.

APPEAL DISMISSED; MATTER REMANDED

      . Akeisha Dorsey married after the accident and changed her last name to Cherry. For uniformity in the lawsuit, however, we continue to refer to her as Dorsey because that was her name at the time of the accident.


author: MARC E. JOHNSON, Judge.

text:
    Danny ALLDAY v. NEWPARK SQUARE I OFFICE CONDOMINIUM ASSOCIATION, INC. and Hanover Insurance Company.
    No. 12-CA-577.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      Christopher S. Mann, Mary K. Jones, Attorneys at Law, New Orleans, LA, for Defendant/Appellee.
    Caleb H. Didriksen, III, Diane R. Co-senza, Attorneys at Law, New Orleans, LA, for Plaintiffs/Appellants.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

12Plaintiffs, Danny Allday and The All-day Consulting Group, L.L.C. (“ACG”), appeal the sustaining of an exception of prescription dismissing ACG’s claims against defendant, Newpark Square I Office Condominium Association, Inc. (“Newpark”), with prejudice. For the reasons that follow, we reverse and remand for further proceedings.

On September 28, 2007, Mr. Allday filed a petition for breach of contract and damages against Newpark and its insurer, Massachusetts Bay Insurance Co. (“Massachusetts Bay”), alleging Newpark failed to promptly and properly repair damages to a building located at 2901 Causeway Blvd. caused by Hurricanes Katrina and Rita. He further alleged Massachusetts Bay failed to timely pay Newpark’s insurance claims and that it acted arbitrarily and capriciously in doing |sso. Mr. Allday asserted he owned four units in the building and that the delayed and improper repairs caused him property damage, loss of rents, loss of profits, additional expenses, inconvenience and attorney’s fees.

Newpark responded by filing a dilatory exception of prematurity claiming that Mr. Allday’s claims against it were subject to mandatory and binding arbitration under the Condominium Agreement that was in effect between the parties. Mr. Allday initially did not object to the exception and requested a stay of his claims rather than a dismissal pending arbitration. However, he later filed an opposition to the exception of prematurity claiming the Condominium Agreement did not require arbitration. After a hearing, the trial court sustained the exception of prematurity and issued a judgment on November 25, 2008, dismissing Mr. Allday’s claims against Newpark without prejudice; but, the judgment specifically stated the trial court would retain jurisdiction to address any issues relating to the details of arbitration.

Meanwhile, Massachusetts Bay filed an exception of no right of action to Mr. All-day’s petition claiming Mr. Allday lacked standing to pursue any claims against it because he was not a named insured and that he assigned any potential causes of action to Newpark. The exception was denied after a hearing, and Massachusetts Bay remained in the lawsuit.

On August 18, 2010, almost three years after the original petition was filed and almost two years after Newpark was dismissed from the lawsuit, Mr. Allday amended his petition to add ACG, his solely owned limited liability corporation, as a plaintiff. In the amended petition, plaintiffs again named Newpark as a defendant and asserted claims against Newpark and Massachusetts Bay. ACG alleged it leased one or more condominium units owned by Mr. Allday at the Causeway address where it conducted business activities, including tax return ^preparation and business consulting. ACG alleged that Newpark’s failure to make prompt and proper repairs to the building and Massachusetts Bay’s arbitrary and capricious failure to timely pay Newpark’s insurance claims caused ACG to suffer property damage and economic losses, including a decrease in its value, lost profits, and loss of its business reputation and good will.

In response to plaintiffs’ amended petition, Newpark filed an exception of prescription as to ACG’s claims and an exception of no right of action as to Mr. Allday’s reasserted claims. A hearing was held on November 5, 2010, and the trial court took the exceptions under advisement. Prior to ruling on the exceptions, the trial court issued a stay in the proceedings at plaintiffs’ request pending a ruling on a consolidation hearing in another division of court where ACG had a separate lawsuit pending against its own insurer, as well as Newpark and Massachusetts Bay, for damage it suffered as a result of Hurricanes Katrina and Rita. The request for consolidation was denied on February 17, 2011.

On August 5, 2011, plaintiffs filed a second amended petition in response to an earlier exception of vagueness filed by Massachusetts Bay. Newpark again filed an exception of prescription and exception of no right of action. A hearing on the exceptions was held on December 16, 2011. During the hearing, reference was made to the original exceptions of prescription and no right of action that had been argued on November 5, 2010, and taken under advisement by the trial court. Newpark submitted its exceptions based on the arguments it had made during the November 2010 hearing. Plaintiffs argued their position, but submitted no new evidence. At the conclusion of the hearing, the trial court sustained both exceptions.

liiMr. Allday and ACG timely filed this appeal seeking review of the trial court’s judgment sustaining Newpark’s exception of prescription and dismissing ACG’s claims against Newpark with prejudice.

Newpark maintains ACG’s claims are in tort and, thus, are subject to a one-year prescriptive period. Under La. C.C. art. 3492, delictual actions are subject to a liberative prescription of one year which commences to run from the day the injury or damage is sustained. Prescriptive statutes are strictly construed against prescription and in favor of the obligation sought to be enforced. Of two possible constructions of a prescription statute, one barring the action and one maintaining it, the statute will be read in such manner as to maintain the obligee’s claim. Huth v. Pickering, 07-181 (La.App. 5 Cir. 8/28/07), 966 So.2d 652, 653, writ denied, 07-1889 (La.11/21/07), 967 So.2d 1157.

The burden of proof in an exception of prescription lies with the party asserting it; however, where the petition shows on its face that it has prescribed, the burden shifts to the plaintiff to prove that the prescriptive period has been interrupted or suspended. Monson v. Travelers Property & Casualty Ins. Co., 09-267 (La.App. 5 Cir. 12/8/09), 30 So.3d 66, 69, unit denied, 10-43 (La.3/12/10), 28 So.3d 1030. Plaintiffs contend ACG’s claims against Newpark were not prescribed on the face of the petition and, thus, Newpark bore the burden of proof. Conversely, Newpark asserts ACG’s claims were prescribed on their face and, thus, the burden shifted to plaintiffs to prove an interruption or suspension of prescription.

Upon review of the amended petition, we do not find that it is prescribed on its face. The only dates listed in the amended petition are August 2005 and | (¡September 2005, the dates Hurricanes Katrina and Rita initially damaged the building. In the amended petition, ACG asserts Newpark failed to make prompt and proper repairs to the building and that this failure caused ACG damage; however, neither the amended petition nor the original petition allege when these repairs were made. It would appear prescription would begin to run from when the dilatory and improper repairs were made, but nothing in the petition indicates that date.

Newpark suggests that repairs were made at least by 2007, because that is when Mr. Allday filed his lawsuit and alleged damages based on the same dilatory and improper repairs. We find Newpark’s argument unpersuasive. Mr. Allday owned four different units in the building and alleged damages relating to all four units. From the petition, it is unknown what and when repairs were made or attempted to be made and to which units. Further, additional repairs could have been made to ACG’s unit after Mr. Allday filed his lawsuit. Admittedly, plaintiffs’ original and amending petitions are vague as to when the actions or omissions occurred that form the basis of their causes of action. However, vague pleadings do not necessarily equate to being prescribed on their face for purposes of prescription.

Because ACG’s amended petition was not prescribed on its face, the burden of proving prescription was on Newpark as mover of the exception. Although evidence may be introduced to support or controvert an exception of prescription, Newpark did not offer any evidence in support of its exception at either the November 2010 or December 2011 hearings. On the other hand, during the November 2010 hearing, to controvert the exception of prescription ACG offered the affidavit of Deborah Jones, which showed certain damage caused by the 17hurricanes had yet to be repaired as of November 2010, and a May 17, 2010 letter from Robert Roth, which showed insurance money had been received by Newpark on May 12, 2010 and Newpark intended to complete certain “projects.”

Upon review, we find Newpark failed to carry its burden of proving ACG’s claims had prescribed. Newpark never definitively showed when prescription started to run. The amended petition was silent as to the when the dilatory and improper repairs upon which ACG based its claims were made, and Newpark failed to offer any evidence to show when such repairs were made so as to trigger the running of prescription. For these reasons, we find the trial court erred in sustaining New-park’s exception of prescription.

DECREE

Based on the record before us, we find Newpark failed to carry its burden of proving ACG’s claims in the amended petition were prescribed. Accordingly, we reverse the trial court’s January 5, 2012 judgment sustaining Newpark’s exception of prescription and dismissing ACG’s claims with prejudice, and remand the matter for further proceedings. Costs of this appeal are assessed against Newpark.

REVERSED AND REMANDED

      . Massachusetts Bay was erroneously named as Hanover Insurance Company in the petition.

      . Massachusetts Bay filed an exception of vagueness to the amended petition. Plaintiffs subsequently filed a second amending petition to address the vagueness claims. Thereafter, Massachusetts Bay filed an answer.

      . Plaintiffs had submitted two documents into evidence during the November 5, 2010 hearing.

      . Plaintiffs do not appeal the trial court’s ruling sustaining the exception of no right of action relating to Mr. Allday’s reasserted claims against Newpark.

      . Unlike Mr. Allday, ACG does not allege any contractual relationship with Newpark.

      . La. C.C.P. art. 931; Jensen v. City of New Orleans ex rel. New Orleans Aviation Bd., 10-917 (La.App. 5 Cir. 3/29/11), 64 So.3d 298, 301.


author: SAUNDERS, J.

text:
    Mary O. SIMON v. COMMUNICATIONS CORP. OF AMERICA.
    No. 12-1086.
    Court of Appeal of Louisiana, Third Circuit.
    March 20, 2013.

      Michael B. Miller, Jacqueline B. Ma-necke, Crowley, LA, for PlaintiffiAppel-lant, Mary O. Simon.
    Jeff R. Rytlewski, Attorney at Law, Me-tairie, LA, for DefendanVAppellee, Communications Corp. of America, Sentinel Insurance Co.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and JIMMIE C. PETERS, Judges.
   SAUNDERS, J.

| ,This case involves the payment of penalties and attorney fees under La.R.S. 23:1201(F) after an employer allegedly failed to timely investigate or pay weekly medical benefits to its former employee. Plaintiff-employee appeals the lack of attorney fees awarded. We reverse and award attorney fees.

FACTS AND PROCEDURAL HISTORY

Mary O. Simon (“Simon”) developed an ulnar nerve entrapment as a result of her job duties as a receptionist while employed by Communications Corporation of America (“CCA”). Simon made a claim for benefits on April 27, 2010. No indemnity or medical benefits were paid to Simon. Subsequently, Simon obtained legal counsel in January 2011.

On January 3, 2011, a letter of representation was sent to both CCA and its insurer. In the correspondence, a request was made for the employer/insurer to guarantee medical treatment by a physician of Simon’s choice. CCA did not respond to this correspondence.

A motion to compel medical treatment was filed and, after a hearing with the workers’ compensation judge (“WCJ”), CCA was ordered to pay for an examination by Simon’s choice of physician, Dr. Robert Morrow (“Dr. Morrow”). Dr. Morrow issued a report on May 24, 2011, which indicated Simon should discontinue performing her job as a receptionist. This report was submitted to CCA by correspondence dated June 14, 2011. CCA did not request that Simon see a second physician during this period.

On August 4, 2011, CCA attempted to obtain medical evidence regarding causation and Simon’s ability to work. Another report by Dr. Morrow, where he again indicated Simon’s ulnar never condition resulted from her job and that she was unable to return to work as a receptionist, was sent to CCA on October 3, |⅞2011. CCA scheduled a deposition of Dr. Morrow for October 28, 2011. Dr. Morrow confirmed his previous findings that he felt Simon’s ulnar never damage resulted from her employment and that he felt Simon was not capable of returning to her prior duties.

On November 9, 2011, CCÁ requested Simon appear for a Second Medical Examination (“SME”) to be performed by Dr. Stanley Foster (“Dr. Foster”). This examination was set for December 20, 2011; however, Dr. Foster refused to see Simon because she would not sign and fill out all documents presented to her by Dr. Foster. CCA filed a motion to compel a SME. The WCJ judge found that Simon was not required to sign all the documents provided to her by Dr. Foster. The SME was not completed until after the trial on the merits.

A trial on the merits was held on January 17, 2012. The WCJ found that Simon sustained an occupational disease in the course and scope of her employment with CCA. As such, Simon was entitled to indemnity benefits as well as medical treatment resulting from the ulnar nerve injury. Simon was also entitled to supplemental earning benefits and all necessary medical treatment and diagnostic testing for her ulnar nerve condition. The WCJ did not award penalties or attorney fees, instead the WCJ held that CCA reasonably controverted the claim and investigated the claim in a reasonable manner.

Simon appeals the denial of penalties and attorney fees.

ASSIGNMENTS OF ERROR

On appeal, Simon asserts the WCJ erred in failing to award penalties and attorney fees due to CCA’s lack of reasonable basis in denying indemnity and medical benefits.

| ?LAW AND ANALYSIS

Standard of Review

The decision of the WCJ to award penalties and attorney fees in a workers’ compensation case is entitled to great discretion and will not be reversed on appeal absent an abuse of that discretion. McClain v. Pinecrest Dev. Ctr., 00-1622 (La.App. 3 Cir. 2/28/01), 779 So.2d 1112. In the instant case, there are no factual disputes; rather, the present matter involves purely a question of law. Consequently, in deciding whether Simon is entitled to a separate penalty for each late payment of indemnity benefits, we must determine whether the WCJ was legally correct in her application of La.R.S. 23:1201(F).

Availability of Penalties & Attorney Fees under La.R.S. 23:1201(F)

It is undisputed that Simon has an occupational disease as a result of her employment with CCA. It is also undisputed that Simon is entitled to indemnity benefits and all necessary medical treatment for her injury. These facts were not appealed.

There are delays set forth in the Workers’ Compensation Act requiring that employers/insurers respond within a certain period of time for requests for weekly compensation benefits and medical benefits. An employer/insurer has fourteen days from the receipt of notice of the employee’s disability to pay indemnity benefits. Louisiana Revised Statutes 23:1201(B), in pertinent part, states,

The first installment of compensation payable for temporary total disability, permanent total disability, or death shall become due on the fourteenth day after the employer or insurer has knowledge of the injury or death, on which date all such compensation then due shall be paid.

Louisiana Revised Statutes 23:1201(E) provides that “[mjedical benefits payable under this Chapter shall be paid within sixty days after the employer or insurer receives written notice thereof.” The employer/insurer must guarantee and/or pay Rail medical benefits within sixty days of notice. Furthermore, the employer/insurer has an obligation to timely investigate the claim and determine the compensability of the claim. Louisiana Revised Statutes 23:1122, in pertinent part, states, “[t]he employer shall cause the examination provided for in the proceeding section to be made immediately after knowledge or notice of the accident.” La.R.S. 23:1122.

An employer cannot refuse to investigate a claim in order to avoid payment of benefits. Simon worked for CCA for over three years and presented medical evidence that her injury was related to employment duties and that she was disabled. Simon first reported her injury to CCA on April 27, 2010. CCA failed to investigate the medical condition of Simon for over eighteen months despite their obligation to have an examination done immediately after knowledge of Simon’s claim. Thus, CCA failed to timely request an examination of Simon.

Dr. Morrow’s reports clearly indicated his opinion that Simon suffered a work-related injury and that she should not return to her duties as a receptionist. A report from University Medical Center (“UMC”), along with interrogatory answers, was also sent to CCA on August 2, 2011. The UMC report stated that Simon “has bilateral ulnar neuropathy that requires surgery probably due to repetitive work and subsequent nerve entrapment and the damage is likely permanent.” Even after receipt of Dr. Morrow’s report on June 14, 2011, and the responses to discovery in August 2011, CCA failed to further investigate the causation or disability issue or pay benefits. Furthermore, Dr. Morrow’s second report submitted on October 3, 2011, was also clear.

“The employer has a continuing duty to investigate, assemble, and assess factual information before it denies benefits.” Mitchell v. Alliance Compressors, 05-1186, p. 8 (La.App. 3 Cir. 4/5/06), 926 So.2d 127, 133. CCA failed to do a proper investigation and was unreasonable in its delays. CCA had fourteen days to 15respond to the multiple reports or pay disability benefits. See La.R.S. 23:1201(B). CCA failed to do so. CCA did not obtain factual or medical information to controvert Simon’s claim and, therefore, CCA lacked a reasonable basis for not paying weekly benefits to Simon.

It was not until after the deposition of Dr. Morrow was taken on October 28, 2011, that CCA requested a SME on November 9, 2011. The SME was scheduled for December 20, 2011, long after the legal delays for payment of indemnity benefits for providing medical treatment had passed, as well as past the fourteen-day period for paying weekly benefits and the sixty-day deadline for approving medical treatment. See La.R.S. 23:1201(B), (E). An SME was finally obtained by Dr. Bernard after the trial held on January 17, 2012. Dr. Bernard believed that Simon’s injuries were not related to her work activities with CCA. Had this medical information from Dr. Bernard been available sooner, it may have provided a reasonable basis for denying Simon’s benefits. However, the law is clear that a defendant cannot use facts obtained after a denial as a reasonable basis for denying the claim. See Regan v. Eunice Superette, Inc., 04-227 (La.App. 3 Cir. 9/29/04), 884 So.2d 1209.

Louisiana Revised Statutes 23:1201(F) requires that the defendant either provide the medical treatment or have a reasonable basis for not providing the treatment. Without a reasonable basis for denying medical treatment, the employer will owe penalties of $50.00 per day up to $2,000,000 or 12% of all amounts due, whichever is greater. La.R.S. 23:1201(F). A workers’ compensation claim is “reasonably controverted” by an employer, for purposes of avoiding a claim for penalties and attorney fees, if the employer has sufficient factual and medical information to counter that presented by the claimant. LeJeune v. Bell Tower Corp., 09-1222 (La. App. 3 Cir. 4/7/10), 34 So.3d 464.

IfiCCA had no factual or medical basis to withhold indemnity and medical treatment to Simon. CCA had no medical evidence that Simon’s ulnar nerve condition was unrelated to her employment or that she was not disabled. At the time of the trial on January 17, 2012, CCA still had failed to pay any benefits to Simon. CCA did not reasonably controvert Simon’s claim, so an award of penalties and attorney fees is appropriate. The WCJ was manifestly erroneous in not awarding penalties and attorney fees under La.R.S. 23:1201(F).

Calculation of Penalties & Attorney Fees under La.R.S. 23:1201(F)

There are several factors to be considered when determining the amount of attorney fees to be awarded in a workers’ compensation case. These factors include “the degree of skill and ability exercised by the attorney, the amount of the claim, the amount recovered for the claimant, and the amount of time the attorney devoted to the case.” Langley v. Petro Star Corp. of La., 01-198, p. 11 (La.6/29/01), 792 So.2d 721, 727, citing McCarroll v. Airport Shuttle, Inc., 00-1123 (La.11/28/00), 773 So.2d 694. We have examined the record and find that awards of $7,000.00 in attorney fees — for work done at the trial level — and $5,000.00 in attorney fees — for work done on this appeal — are reasonable.

Louisiana Revised Statutes 23:1201(F) provides that a penalty shall not exceed a maximum of two thousand dollars in the aggregate for any claim, with an eight-thousand-dollar maximum amount regardless of the number of penalties available. The Louisiana Supreme Court in Fontenot v. Reddell Vidrine Water Dist, 02-0439, p. 13 (La.1/14/03), 836 So.2d 14, 24, held that La.R.S. 23:1201(B), (C), (D), and (E) impose a continuing obligation on the employer/insurer: “(1) to pay all compensation and medical benefits due,” and “(2) to pay for compensation and medical benefits within the time limit specified. Should the employer/insurer not abide by those dictates, the Legislature has made |7available to the employee the provisions of La.R.S. 23:1201(F), which provide for penalties and attorney fees, to encourage compliance.” Id. “An employer/insurer may make multiple errors in this regard and may have two or more claims under La.R.S. 23:1201(F).” Id.

Under La.R.S. 23:1201(F), it is the “[fjailure to provide payment in accordance with this Section [La.R.S. 23:1201]” that “shall result in the assessment of a penalty.” Pursuant to La.R.S. 23:1201(B), the first installment of “all compensation then due” is due on the fourteenth day after the employer or insurer has knowledge of the injury. Additionally, pursuant to La.R.S. 23:1201(E), “[m]edical benefits payable” must be paid within sixty days after the employer receives written notice.

Fontenot makes it clear that the Office of Workers’ Compensation and appellate courts have a duty to “ferret” out penalties for which an award should be made. Fon-tenot v. Reddell Vidrine Water Dist, 836 So.2d at 26.

For employers/insurei's, the need to provide for injured workers is a continuing obligation, one recognized in the legislative enactments as a duty to pay the employee or dependent the maximum percentage of wages to which the employee is entitled, to make compensation payments timely, and to provide needed medical care in conformity with statutory guidelines.

Id. The record reflects that CCA did not pay compensation due within the requisite time periods. Simon made a claim for benefits on April 3, 2010, and no benefits were subsequently paid. CCA was aware of Simon’s injury and did not pay the compensation owed within the requisite fourteen days. Furthermore, CCA did not pay medical benefits that were payable within sixty days of written notice. Written correspondence with a report by Dr. Morrow was submitted to CCA on June 14, 2011. CCA did not pay medical benefits payable until after the trial in January of 2012.

|SCCA failed to abide by both continuing obligations — to pay all compensation due and to pay medical benefits due and to do both within the appropriate time limits imposed on an employer/insurer for each obligation. Simon is entitled to $4,000.00 in penalty fees under La.R.S. 23:1201(F).

CONCLUSION

CCA did not reasonably controvert Simon’s claim and, therefore, had no reasonable basis for withholding indemnity and medical treatment to Simon. CCA acted unreasonably in its failure to investigate Simon’s claims and in withholding medical payments. We award $4,000.00 in penalties and $12,000.00 in attorney fees under La.R.S. 23:1201(F).

Costs of this appeal are assessed to CCA.

REVERSED AND RENDERED.