text:
    Darcia [Dacia] Roseanne McCARTNEY v. Thomas A. McCARTNEY.
    No. 14-396.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      S. Christie Smith, IV, The Smith Law Firm, Leesville, LA, for Intervenors/Ap-pellees, Ronnie McCartney, Cindy McCartney.
    Thomas A. McCartney, Winnfield, LA, pro se, Thomas A. McCartney.
    Darcia [Dacia] Roseanne McCartney, Leesville, LA, pro se, Darcia [Dacia] Rose-anne McCartney.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| ;The defendant, Thomas A. McCartney, appeals the trial court’s judgment granting sole custody to the plaintiff, Dacia R. McCartney. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2011, Thomas was sentenced to serve ten years at hard labor for aggravated rape by engaging in oral sexual intercourse. He is scheduled to be released on May 5, 2021. Thomas had been on probation for illegal possession of stolen property greater than $500.00, which was revoked, and has been incarcerated since July 16, 2010.

Thomas and Dacia were married in September 2007. Thomas and Dacia are the parents of two children. Their first child, Amber Rose, was born in July 2008. In August 2009, Dacia filed a petition for divorce and requested that joint custody of Amber be granted. An October 2009 stipulated judgment allowed for joint custody of Amber with Thomas paying $220.00 per month in child support. Their second child, Izabella, was born in late October 2009. The trial court issued a judgment in December 2009, confirming the award of joint custody and awarding the payment of $150.00 per month in child support.

In March 2010, Dacia filed a rule to suspend visitation urging that Thomas’ visitation be terminated because of material changes in circumstances, to wit, that he used illegal drugs in the presence of the children and that he allowed persons of the opposite sex to stay overnight in the presence of the children. A judgment of 12divorce was granted in August 2010. It maintained the October 2009 stipulated judgment.

In April 2013, Thomas filed, pro se, a “Petition to Clarify Custodial Guardianship Rights,” admitting his incarceration and noting his release into society in May 2021. Thomas also filed a “Motion to Suspend Action on Child Support Order.”

In May 2013, Thomas’ parents, Ronnie and Cindy, intervened and requested reasonable visitation with the children. In June 2013, Dacia filed a rule to modify custody and rule for contempt requesting sole custody of the children and noting Thomas’ failure to pay child support for three years. In July 2013, Thomas filed a Rule to Modify Custody and Rule for Contempt complaining that Dacia had blocked his access to his children. Following an August 2013 hearing, the trial court rendered a judgment in September 2013, denying Thomas’ motion to modify custody, denying his motion to terminate child support, finding Dacia in contempt for having overnight guests of the opposite sex, finding Thomas in contempt for non-payment of child support, and granting Dacia sole custody of the minor children with no visitation in favor of Thomas unless Dacia agrees to permit visitation. The judgment further granted Ronnie and Cindy visitation one Saturday every other month.

In September 2013, Thomas filed various notices of intent to seek writs with this court, which were procedurally defective for a variety of reasons. However, Thomas successfully filed a writ application with this court on December 20, 2013. We denied the writ but allowed the writ application to serve as an appeal in the interest of justice because time delays to file an appeal had expired.

TISSUES

Thomas assigns as error:

1. The court failed to give good cause why joint custody was not granted.
2. The court failed to recognize the ex parte R-8542-2009 as the active child support plan and not find him in contempt for not paying child support.

DISCUSSION

Dacia testified that Thomas made three child support payments and none since his arrest and incarceration in July 2010. She further stated that she had provided all care for her two children since said time. At the time of the hearing, Dacia testified that she and her husband, Michael, had lived together for six months before being married in July 2012.

Dacia said that Thomas had visited the girls a few times before his arrest in 2010, but had not seen them since. She said she had received no correspondence from him since he had been imprisoned. In 2012, Dacia removed the children from the approved visitation list at the prison because she did not want her young girls visiting “a man they hardly knew” in a prison setting. However, she said that Thomas’ parents brought them anyway. Dacia said that she originally allowed the visitations to the jail on a trial basis starting in November 2011, but by May 2012, she did not believe it was in her daughters’ best interest to visit the jail when Thomas’ parents claimed to be taking the girls to the zoo but brought them to the prison instead.

Thomas testified on his own behalf in narrative form, stating that before his incarceration Dacia put his phone number on an automatic block. He further testified that she did not let him -visit according to the schedule and that since his | ¿incarceration he had sent letters to the kids every three months. However, he produced only one copy of a letter that he claims to have sent.

Thomas further testified that he felt qualified to make important decisions regarding his children because he had obtained his GED, was “currently and successfully completing the sex offender treatment program,” and had completed Bible study through the mail. Thomas admitted that when the girls visited him in prison he told them that he was “at work . temporarily.” He admitted that he had only seen Izabella about twelve times since she was born, and she would be four in October.

Thomas denied that the only reason his parents were requesting visitation was so that they could bring the children to see him in prison. He admitted that he had been unable to exercise his visitation according to the plan because of his incarceration. The plan specified that if Thomas is unable to pick up the children he forfeits his visitation. However, he claims he can send his mother to pick up the children in order to exercise his visitation.

JOINT CUSTODY

The best interests of the children are the primary consideration in making a child custody determination. La.Civ.Code art. 181, Deason v. Deason, 99-1811 (La.App. 3 Cir. 4/5/00), 759 So.2d 219. A parent seeking sole custody must prove by clear and convincing evidence that sole custody is in the best interest of the children. La.Civ.Code art. 132. A parent who is not granted custody or joint custody is entitled to visitation with the children unless the trial court finds that such visitation would not be in their best interest. La.Civ.Code art. 136. It is well-settled that the trial court is in a superior position to assess the best interests of the children based on the testimony of the witnesses and the parties. AEB v. JBE, 99-26685 (La.11/30/99), 752 So.2d 756. A trial court’s decisions about custody matters will not be reversed in the absence of a clear abuse of discretion. Id.

Pursuant to La.Civ.Code art. 134, the trial court shall consider all relevant factors in determining the best interest of the children such as:

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.

The trial court offered extensive oral reasons for judgment at the conclusion of the trial stating that it was denying Thomas’ rule for modification because “certainly it hasn’t been proven that he [Thomas] would be able to be a significant | (¡party in any kind of arrangement regarding these two children on a regular basis while he’s incarcerated and will be incarcerated for approximately the next ten years or so — eight to ten years.” Thomas argues that this assertion is false because:

1. [Thomas] can have physical custody as granted by the plan and when not able to have the children over night, comply with the plan and give the mother first choice to have the children. The plan does not specify daytime hours and when not in the father’s physical custody the Grandparents or the fathers [sic] choosing will be watching the children during daytime hours just as the mother would do if she was unable to watch the children in the daytime hours.
2. [Thomas] can maintain supervised visitation of the children every other weekend while incarcerated.
3. All information and descisions [sic] regarding the childrens [sic] welfare, education, etc. can be communicated between the parties by phone or mail while incarcerated.
4. [Thomas] is required to provide transportation and has proven that to be provided by Mrs. McCartney [presumably his mother]. The plan does not require [Thomas] to be present or to be the driver. Just as a child is put on a plane to see the other parent.
5. The tutorship and education of the children can also be obtained through mail or phone. Just as two - parents that live a long distance apart.
6. [Thomas] can and will be able to comply to all requirements by the plan while incarcerated.

Thus, it appears that Thomas argues that he can maintain visitation at the prison every other weekend because his mother can bring the children to visit him for several hours and that he can make decisions regarding their welfare via the phone or the mail. We agree with the trial court’s reasoning for finding that Dacia proved by clear and convincing evidence that sole custody in her favor was in her children’s best interests:

The Court is of the opinion that being isolated in that facility and not being able to interact with his children on a regular and frequent basis essentially makes him ineffective to be involved in that way with his children. By doing what he did and getting the sentence that |7he did, he frittered away all the opportunity that he had to be that involved with his children. And, therefore, I find by clear and convincing evidence that the sole custody is the best interest of the children to be given to the mother in this case.

It was clear from the record that Thomas has been absent for the majority of these young girls’ short lives since he has been incarcerated since 2010. Dacia has been their primary caregiver. Further, the trial court did not err in finding that visitation at the prison with a man they hardly know was not in their best interests. Thomas has no capacity to provide for these children due to his incarceration. He can provide neither financial nor emotional support to them. It is both impractical and against the children’s best interests to require Dacia to attempt to confer with Thomas in prison regarding their daughters’ educational, medical, social, and financial needs. Additionally, his conviction for aggravated rape calls into question his moral character. Accordingly, we find the trial court did not abuse its discretion in awarding Dacia sole custody of the children.

CHILD SUPPORT

The trial court refused to terminate the child support award Thomas is required to pay, noting his obvious inability to pay while he is incarcerated, but finding that arrearages will continue to accrue while he is in prison.

We are unsure of what Thomas is attempting to argue in this assignment of error. He states that the trial court failed to recognize a particular order as being the correct one and that he was found in contempt for an order that was not active. He claims the trial court erred in that it did “not find him in contempt for not paying child support.” The trial court did find him in contempt but ordered no punishment since Thomas is incapable of being gainfully employed. In his brief, Thomas states that he “is still obligated to pay arrears and is more than willing to | scomply with payments when his income is sufficient to do so.” Accordingly, we find this assignment of error to be-moot since Thomas admits that he will be obligated to pay for child support that accrues while he is in prison.

In his conclusory paragraph, Thomas requests that Dacia “be punished for her contemptuous behavior.” However, he does not assign any error regarding the contempt finding pertaining to Dacia. Although the trial court found Dacia in contempt for disobeying the court order by having her now-husband sleep over, it did not order any punishment. Although we need not address it, we find no error in that ruling.

CONCLUSION

The judgment of the trial court granting the plaintiff-appellee, Darcia [Dacia] R. McCartney, sole custody of the two minor children, is affirmed. All costs of this appeal are assessed against the defendant-appellant, Thomas A. McCartney.

AFFIRMED.

      . Plaintiff is referred to as Darcia, Dacia, and Dasha throughout the record. Plaintiff testified at trial that the correct spelling is Dacia. Dacia remarried in July 2012, taking the surname of her husband, Michael Spadafina.


source: Caselaw Access Project

author: PICKETT, Judge.

license: Public Domain

text:
    Ed GRABOWSKI, et ux. v. SMITH & NEPHEW, INC., et al.
    Nos. 14-433, 13-1409.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Charles Schrumpf, Schrumpf & Schrumpf, Sulphur, LA, Steven Broussard, Broussard & Hart, LLC, Lake Charles, LA, for Plaintiffs/Appellants, Ed Grabow-ski, Patsy Grabowski.
    Kim E. Moore, Leila A. D’Aquin, Irwin Fritchie Uquhart & Moore, New Orleans, LA, Benjamin J. Guilbeau, Jr., Stoekwell, Sievert, Viccellio, Clements & Shaddock, L.L.P., Lake Charles, LA, for Defendants/Appellees, Smith & Nephew, Inc., PUREPLAY Orthopaedic Sales 1, Ltd., Daniel Forrest.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

| r This ⅛ a suit for damages resulting from a total knee replacement in which one component of a two-part interlocking knee implant device was not the proper size. The.plaintiffs filed a writ application after no action was taken in the trial court on a Motion to Substitute Counsel and Motion for Recusal they filed. They filed this appeal after their claims against the defendants were dismissed on summary judgment. The writ application was consolidated with this appeál. For the reasons that follow, we find no error with the trial court’s failure to act on the Motion to Substitute Counsel and Motion for Recusal but reverse the grant of summary judgment in favor of the defendants. The matter is remanded to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On July 18, 2007, Patsy Grabowski underwent a total knee replacement by Dr. Geoffrey Collins at West Calcasieu Cameron Hospital (West Cal). Dr. Collins used a Genesis II interlocking knee implant to replace Mrs. Grabowski’s right knee. The implant was manufactured by Smith & Nephew, Inc. and distributed by PUREPLAY Orthopaedic Sales 1, Ltd. (PUREPLAY). Daniel Forrest, a sales representative for Smith <& Nephew and PUREPLAY, was in the operating room (OR) during the surgery to make available different sizes of the implant because measurements to determine the proper size implant for Mrs. Grabowski had to be made by Dr. Collins during the surgical procedure.

The implant consists of two parts: a tray that fits into the center of the femur and a polyethylene (poly) insert that fits into the tray and into the center of the [gtibia. After using a trial implant, Dr. Collins determined that Mrs. Grabowski required a size 5 implant and stated that out loud. Dr. Collins was given a size 5 tray then a poly insert. He inserted the tray into Mrs. Grabowski’s femur, then inserted the poly insert into the tray and tested it to verify that the dovetail mechanism of the implant held the tray and insert together in place as designed by Smith & Nephew. Dr. Collins then completed the surgery.

Two months earlier, Mrs. Grabowski had undergone a total knee replacement on her left leg and recovered with no problems. Mrs. Grabowski’s recovery after the July surgery went well initially, but she later developed problems. Believing that the insert in the right knee might have come out of place, Dr. Collins performed surgery on October 24, 2007, to replace the insert. During that surgery, a sales representative being trained by Mr. Forrest determined, while reviewing Mrs. Grabowski’s medical records, that a size 3/4 poly insert had been used in the July 18 surgery. A size 5 tray requires a size 5 or size 6 poly insert. According to Dr. Collins, use of the wrong size poly insert caused damage to Mrs. Grabowski’s patella tendon which necessitated additional surgeries and medical procedures to repair the damage. After completing the October 24 surgery, Dr. Collins informed Mrs. Grabowski’s husband that the Smith & Nephew representative had given him the wrong size insert during the July 18 surgery which caused the insert to come out of the tray and damage the patella tendon.

Believing that Mr. Forrest was employed by Smith & Nephew, Mr. and Mrs. Grabowski filed suit against Smith & Nephew and Mr. Forrest. They alleged that Mr. Forrest negligently provided Dr. Collins the wrong poly insert for the size 5 fytibial tray and that he was in the course and scope of his employment with Smith & Nephew when he did so. Thereafter, the Grabowskis learned that Mr. Forrest had signed a contract identified as Sales Representative Agreement with PUREPLAY and added PUREPLAY as a defendant. They asserted that PUREPLAY was also liable for Mr. Forrest’s negligent acts. After some discovery was conducted, the defendants filed a Motion for Summary Judgment, seeking to have the Grabow-skis’ claims dismissed.

A hearing on the Motion for Summary Judgment was held April 23, 2013. After the hearing, the trial court granted summary judgment in favor of Smith & Nephew because Smith & Nephew showed that on July 18, 2007, Daniel Forrest was not its employee and no contract existed between it and Mr. Forrest. The trial court also granted summary judgment in favor of PUREPLAY and dismissed the Gra-bowskis’ claims against it, finding that Mr. Forrest was an independent contractor; therefore, PUREPLAY was not liable for any negligent acts by him.

The trial court deferred ruling on Mr. Forrest’s request for summary judgment and allowed the Grabowskis additional time to depose Dr. Collins because their attorney had been allowed only a few minutes to question Dr. Collins after counsel for the defendants had questioned him a total of seven hours over the course of two days. A judgment dismissing Smith & Nephew and PUREPLAY was not signed at that time because the parties decided that in order to avoid having issues addressed piecemeal on appeal, they would wait until the trial court ruled on Mr. Forrest’s Motion for Summary Judgment before having a judgment signed.

In early August 2013, the Grabowskis reset Dr. Collins’ deposition for August 30. Then on August 6, they rescheduled the deposition, at Dr. Collins’ ^request, for October 11. On September 20, the Gra-bowskis notified Mr. Forrest’s counsel that Dr. Collins’ October 11 deposition was being cancelled because attorney Steven Broussard was enrolling as additional counsel for the Grabowskis and he needed additional time to prepare for the deposition.

On September 24, Mr. Forrest had the trial court sign a Motion and Order for Status Conference setting a status conference in the matter for October 3. Later that same day, Charles Schrumpf, the Gra-bowskis’ original attorney, submitted a Motion and Order to Withdraw and Substitute Counsel to the trial judge, Judge Rit-chie, for signature. Judge Ritchie refused to sign the order. On September 26, Mr. Broussard submitted a Motion to Substitute Counsel and Motion for Recusal to Judge Ritchie for his signature. On September 30, Mr. Broussard hand delivered a letter to Judge Ritchie regarding the Motion to Substitute and Motion for Recu-sal in which Mr. Broussard stated that he believed no further proceedings could be conducted until a ruling had been made on the Motion to Substitute Counsel. Mr. Broussard opined that his enrollment necessitated a Motion for Recusal as the result of Judge Ritchie’s sua sponte recu-sal of himself in October 2012 in another matter because he was counsel in a suit that involved Judge Ritchie’s assistant.

Mr. Broussard sent another letter to Judge Ritchie on October 1 regarding Judge Ritchie’s indication that he would not sign the order recusing himself or the |sorder setting the Motion for Recusal for hearing in which counsel asked Judge Rit-chie to grant or deny the motion. The letter also indicated that Judge Ritchie should not proceed with the October 3 status conference because Mr. Broussard had no standing to attend the conference and original counsel had a conflict and could not attend the conference. The status conference was not held.

The defendants filed a Motion to Close the Record on October 10, that requested the record be closed and summary judgment be granted in favor of Mr. Forrest. The hearing was set for hearing November 21. On November 5, Mr. Broussard directed another letter to Judge Ritchie referencing the hearing on the Motion to Close the Record and asked Judge Ritchie to grant or deny the Motion to Substitute Counsel and Motion for Recusal. Judge Ritchie did not act on the motions.

During the course of the November 21 hearing on the Motion to Close the Record, Judge Ritchie outlined his reasons for not signing the Motion to Substitute Counsel and Motion for Recusal and for not setting a hearing on the motion. He observed that a litigant’s right to counsel of his choice is a very substantial right; however, that right is not absolute. Judge Ritchie also opined that to allow substitution of counsel at that time was not in the interest of justice because if the substitution was allowed and Mr. Broussard had a valid ground for recusal, the reassignment of the case to a new judge would give the Grabowskis a “second bite at the apple” when summary judgment had been granted in favor of two of three defendants but no judgment had been signed, and the record had been held open to allow the Grabowskis to depose Dr. Collins. Judge Ritchie further noted this would be prejudicial to Smith & Nephew and PURE-PLAY.

| fiJudge Ritchie next considered the requirements of the articles governing recu-sal and pointed out that judgment had been rendered in favor of Smith & Nephew and PUREPLAY during the April 23 hearing; therefore, the Motion for Recusal was not timely under La.Code Civ.P. art 154. Additionally, he observed that a ground for recusal must be stated and that Mr. Broussard apparently assumed he would recuse himself based on his recusal in a previous case. Judge Ritchie also voiced his concern that when the Motion to Substitute Counsel and Motion for Recusal was brought to him for signature, he had already signed an order setting a status conference.

Of great importance to Judge Ritchie was that Mr. Broussard made no effort to determine the accuracy of the information contained in the motion. Judge Ritchie specifically noted two such statements. First, the motion stated, “For unknown reasons, Judge Ritchie refused to sign the motion.” However, Judge Ritchie explained that he had informed the runner from Mr. Schrumpf s office who presented the Motion and Order to Withdraw and Substitute Counsel for his signature that he was not signing the Order because a status conference had already been set in the matter. Second, the motion stated that Judge Ritchie had a standing order of recusal in all matters involving Mr. Brous-sard or other members in his firm, but no such order existed.

At the conclusion of the hearing, Judge Ritchie granted the Motion to Close the Record then granted summary judgment in favor of the Mr. Forrest. Thereafter, a judgment granting summary judgment in favor of all three defendants and dismissing the Grabowskis’ suit against them was signed.

| gWrit Application

In their writ application, the Grabowskis urged that the trial court erred in not acting on their Motion to Substitute Counsel and Motion for Recusal before the hearing On the defendants’ Motion to Close the Record and in denying the motions without a hearing. We have reviewed the record together with the law and jurisprudence and find no error with the trial court’s denial of the Motion to Substitute Counsel and Motion to Recuse..

Pertinent to the Grabowski’s Motion for Recusal is La.Code Civ.P. art. 151 which provides, in part, that a trial judge “shall be recused when he ... [i]s biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys or any witness to such an extent that he would be unable to conduct fair and impartial proceedings.” La.Code Civ.P. art. 151(A)(4).

Article 154 of the Louisiana Code of Civil Procedure sets forth the procedure for having a trial court judge recused; it provides:

A party desiring to recuse a judge of a district court shall file a written motion therefor assigning the ground for recu-sation. This motion shall be filed prior to trial or hearing unless the party discovers the facts constituting the ground for recusation thereafter, in which event it shall be filed immediately after these facts are discovered, but prior to judgment. If a valid ground for recusation is set forth in the motion, the judge shall either recuse himself, or refer the motion to another judge or a judge ad hoc, as provided in Articles 155 and 156, for a hearing.

The Grabowskis cite Disaster Restoration Dry Cleaning, L.L.C. v. Pellerin Laundry Machinery Sales Co., Inc., 05-715 (La.4/17/06), 927 So.2d 1094, arguing that Judge Ritchie should have either granted their Motion for Recusal ex pro-prio motu or referred it to another judge for a hearing. Specifically, they rely on this statement in Disaster: “Once confronted with valid grounds of recusal, the judge | Sis obligated to either order recusal or refer the case to another judge for a hearing on the motion to recuse.” Id. at 1097.

The supreme court discussed at length the issue of recusal in Disaster, 927 So.2d 1094. Ultimately, however, the court determined that the issue of recusal was premature until a determination had been made regarding the defendant’s motion to enroll co-counsel because the issue of recu-sal would not arise unless the defendant was allowed to enroll co-counsel. The Grabowskis focus their attention primarily on their Motion for Recusal, rather than their Motion to Substitute Counsel.

In Disaster, 927 So.2d at 1101, the supreme court addressed the issue of right to counsel of choice, stating:

The United States Supreme Court has recognized that there is a presumption in favor of a party’s right to choose counsel. Wheat v. United States, 486 U.S. 153, 158, 160, 108 S.Ct. 1692,1696, 1697-1698,100 L.Ed.2d 140 (1988). The Fifth Circuit Court of Appeals found that depriving a party of his choice of counsel is a penalty that must not be imposed without careful consideration. FDIC v. United States Fire Insurance Company, 50 F.3d 1304, 1313 (5th Cir.1995). In civil matters as well as criminal matters, the right to counsel includes the right to legal representation of one’s choice. McCuin v. Texas Power, 714 F.2d 1255, 1257. This right is “one of constitutional dimensions and should be freely exercised without impingement.” The right to counsel of choice is not absolute. Id. at 1262, 1263. This right can be overridden only if it can be proven that there is a compelling reason to do so. Id.
There must be a balance between allowing a party the right to engage an attorney of that party’s choice versus enrolling a particular attorney which would result in recusal of the judge to whom the case was randomly allotted. This right must be balanced in cases in which it is called into question against the right to prosecute the lawsuit without question of taint and undue influence and society’s right to maintain the highest ethical standards of professional responsibility, as well as judicial integrity. Id. Moreover, this right must not be exercised without thought also to the needs of effective administration of justice. Id.

1 ;,We are mindful of the importance of a litigant’s right to counsel of choice; however, as Judge Ritchie noted, the litigation in Disaster, 927 So.2d 1094, was at a much earlier stage than this litigation is, and summary judgment had been granted in favor of two of the three defendants in this litigation when the Motion to Substitute Counsel was filed. Moreover, Judge Ritchie granted additional time to the Gra-bowskis to depose Dr. Collins as a courtesy to their counsel after counsel realized that Judge Ritchie was inclined to grant summary judgment in favor of Mr. Forrest as he had for the other defendants. Additionally, we note that Dr. Collins had been deposed by the defendants almost seven months before they filed their Motion for Summary Judgment and approximately eleven months before the hearing on the Motion for Summary Judgment was held, yet the Grabowskis did not reschedule his deposition in that time. Lastly, the Gra-bowskis had more than five months after they were granted additional time to depose Dr. Collins when they cancelled his rescheduled deposition and sought to change counsel.

We conclude that the posture of this case when the Motion to Substitute Counsel and Motion for Recusal was filed was compelling reason for Judge Ritchie not to act on it. Allowing Mr. Broussard to be substituted as counsel for the Grabowskis may have resulted in the recusal of Judge Ritchie to whom the case had been randomly allotted. Also, it could have possibly reversed the summary judgment that had been granted in favor of two defendants and resulted in prejudice to all the defendants. Additionally, as Judge Rit-chie observed, the Grabowskis did not seek different counsel on their own; Mr. Schrumpf sought the assistance of additional counsel after the Motion for Summary Judgment had been heard which led to the Motion to Substitute Counsel and Motion for Recusal. Lastly, the lapse of five months to bring in Mr. Broussard that led to the Motion to [ ^Substitute Counsel was not addressed in the Motion to Substitute Counsel and Motion for Recusal.

For these reasons, we find no error with Judge Ritchie’s failure to act on the Gra-bowskis’ Motion to Substitute Counsel and Motion for Recusal, and we deny the writ.

Summary Judgment

Mr. Forrest signed a contract with Smith & Nephew in 2004, as a sales representative. In June 2007, Smith <& Nephew required him to sign a contract with PU-REPLAY. After that time, Mr. Forrest no longer had a contract with Smith & Nephew. The trial court granted summary judgment in favor of Smith & Nephew because it had no contract with Mr. Forrest when Mrs. Grabowski’s right knee replacement surgery was performed. It granted summary judgment in favor of PUREPLAY because it determined that pursuant to its contract with Mr. Forrest, Mr. Forrest was an independent contractor, and PUREPLAY was not liable for any negligent acts committed by him. The trial court concluded that Dr. Collins and the nurses in the OR had the ultimate responsibility to insure that the correct implant components were used in Mrs. Grabowski’s surgery and that Mr. Forrest had no duty to do so. Therefore, it granted summary judgment dismissing the claims against him.

In their appeal, the Grabowski’s present the following issues for review:

1) Does the manufacturer’s representative in the operating room owe a duty not to harm the patient?
2) Do the contracts between the manufacturer and distributor and distributor and representative create a stipulation pour autrui or [third] party beneficiary contract with the patient being the beneficiary?
3) Do the manufacturer and distributor owe an independent duty to train and supervise their representative so he does not harm the patient?

| nAppeIlate courts apply the de novo standard of review, which requires that “the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate” be used, when reviewing a trial court judgment on a motion for summary judgment. Supreme Servs. & Specialty Co., Inc. v. Sonny Greer, Inc., 06-1827, .p. 4 (La.5/22/07), 958 So.2d 634, 638. The motion for summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any ... show that there is no genuine issue of material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B)(2).

When a motion for summary judgment is supported by an affidavit, “an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial.” La.Code Civ.P. art. 967(B). If the adverse party fails to show a genuine issue of material fact exists, “summary judgment, if appropriate, shall be rendered against him.” Id.

Did Mr. Forrest Owe a Duty to the Grabowskis?

The Grabowskis assert that the trial court erred in granting summary judgment in favor of Mr. Forrest because he owed them a duty to insure the proper implant was used in Mrs. Grabowski’s surgery. They argue that the improper use of incompatible different sizes of the two parts of the Smith & Nephew knee replacement implant and the resulting damages to them were caused, at the least in part, from Mr. Forrest’s negligence.

Mr. Forrest argues he did not owe a duty to the Grabowskis because he is not a physician and did not actually perform Mrs. Grabowski’s implant surgery. 112He asserts that Dr. Collins is the “captain of the ship” in surgery and is solely responsible for insuring that the proper size implant was used on Mrs. Grabowski.

Pursuant to La.Civ.Code art. 2315(A), “Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.” If one fails to use- reasonable care in his actions and causes damage to another, his actions are deemed negligent. Meany v. Meany, 94-251 (La.7/5/94), 639 So.2d 229. There are four elements of negligence; they “include duty, breach, a causal relationship between the defendant’s alleged negligent act and the plaintiffs injuries (which includes both cause in fact and legal cause), and damages.” Id. A plaintiff who brings a negligence claim must prove these four elements to recover from a defendant. Id. Accordingly, whether the defendant owed the plaintiff a duty must be determined at the outset. Id. This is a legal question for the court to decide. Id. To answer this question, the court must determine “whether the plaintiff has any law— statutory, jurisprudential, or arising from general principles of fault — to support his claim.” Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289, 292 (La.1993).

In Bonds v. SAPA Extrusions, LLC, 48,760, p. 4 (La.App. 2 Cir. 2/26/14), 135 So.3d 799, 802 (citations omitted), unit-denied, 14-667 (La.5/2/14), 138 So.3d 1249, the court explained the process for determining whether a duty is owed:

In deciding whether to impose a duty in a given case, the court must make a policy decision in light of the unique facts and circumstances presented. In Meany v. Meany, 94-0251 (La.07/05/94), 639 So.2d 229, 233, the Louisiana Supreme Court determined that certain policy considerations are to be taken into account in analyzing whether a duty is owed, stating:
In determining whether to impose a duty in a particular situation, the court may consider various moral, social, and economic factors, including whether the imposition of- a duty would result in an unmanageable flow of | ^litigation; the ease of association between the plaintiffs harm and the defendant’s conduct; the economic impact on society as well as the economic impact on similarly situated parties; the nature of the defendant’s activity; moral considerations, particularly victim fault; and precedent as well as the direction in which society and its institutions are evolving.
Further, Professor Crawford has noted that the notion of duty used by Louisiana courts is identical to the duty articulated in Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (N.Y.1928), where duty is viewed “as necessarily contemplating the person or interest to whom the alleged duty was owed. If the injured party were unforeseeable to the defendant, then no duty of care existed because as a matter of definition one owes no duty to that which is unforeseen.” William Crawford, Louisiana Civil Law Treatise, Tort Law, § 4:2, p. 91 (2009).

In Milbert v. Answering Bureau, Inc., 13-22 (La.6/28/13), 120 So.3d 678, the supreme court addressed the issue of whether a duty was owed in a context similar to the one presented here: can a health care provider and a non-health care provider each owe a duty to the plaintiff patient and be joint tortfeasors for harm the plaintiff patient suffered? The plaintiffs in Milbert sued a physician answering service, alleging the service’s failure to inform the appropriate physician of a message left by the plaintiff patient regarding his complaints and symptoms when his physician’s office was closed resulted in a serious worsening of the plaintiff patient’s condition that his physician was treating. After not being contacted by his physician or the physician on call, the plaintiff patient sought treatment at an emergency room where the staff failed to properly evaluate and treat his condition.

As here, the non-health care provider defendant in Milbert argued that it could not be a joint tortfeasor with a health care provider as a matter of law because it did not owe the same duties to the plaintiff patient that the defendant health care providers owed him. In addressing the issue, the supreme court determined that the defendant answering service “had a duty to act as a reasonable 114physician answering service” which duty required at a minimum “accurately obtaining and recording the messages from its clients’ patients, some of whom may have recently undergone surgery, and accurately and promptly communicating such messages to the appropriate treating physician or physician on-call.” Id. at 688. Consequently, the court found that it is not “unreasonable to expect that a physician answering service’s duties would include the risk that a delay or inaccuracy in conveying a message from one of its clients’ patients could result in a medical emergency or the worsening of a patient’s medical condition.” Id. Specifically, the supreme court held that the answering service’s alleged negligence “necessarily included the foreseeable risk that its failure to contact an on-call doctor for an emergency situation could encompass subsequent negligent delay in his treatment by the hospital’s nurses and emergency room physicians.” Id.

Addressing the issue from the perspective of joint tortfeasors, the supreme court explained (footnotes omitted):

“A joint tortfeasor is one whose conduct (whether intentional or negligent) combines with the conduct of another so as to cause injury to a third party.” Greer v. Johnson, 37,655 p. 5 (La.App. 2 Cir.9/24/03); 855 So.2d 898, 901. The term “joint tortfeasor” may be applied both to the situation where two or more persons are acting together in concert, or where “[t]he negligence of concurrent tortfeasors ... occurs or coalesces contemporaneously,” to produce an injury. [Frank L. Maraist & Thomas C. Galli-gan, Jr., Louisiana Tort Law § 12.04, at 12-6 (2004).] When joint tortfeasors conspire to commit an intentional or willful act, they are solidarily liable for the damage they cause. If liability is not solidary for damages caused by joint tortfeasors because the actions are not intentional or willful, then liability for damages caused by two or more persons is a joint and divisible obligation. Under Louisiana’s pure comparative fault system, “the fault of every person responsible for a plaintiffs injuries [must] be compared, whether or not they are parties, regardless of the legal theory of liability asserted against each person.” Dumas v. State 15ex rel. Dept. of Culture, Recreation & Tourism, 2002-0563, p. 11 (La.10/15/02); 828 So.2d 530, 537; see La. C.C. art. 2323.

Id. at 688-689.

To avoid having to maintain an inventory of such medical devices, West Cal and other hospitals allow sales representatives, such as Mr. Forrest, to attend surgeries and provide medical devices required by different doctors for various surgeries. The day of surgery, Mr. Forrest brought with him different sizes of the Genesis II knee implant that Dr. Collins might need for Mrs. Grabowski’s knee replacement because the proper size implant required could not be determined until surgery was being performed.

Mr. Forrest had been providing implants to Dr. Collins and other doctors at West Cal and another local hospital for approximately three years prior to the July 2007 replacement of Mrs. Grabowski’s left knee. Dr. Collins testified that the procedure followed during implant surgeries at West Cal and another local hospital in July 2007 was: the doctor performed a sizing trial to determine the appropriate size of the implant required for the surgery then stated the size implant needed; the sales representative retrieved the required implant in the size called out by the doctor; the sales representative opened the box containing the implant and delivered it to the circulating nurse who in turn delivered it to the doctor or his surgical assistant/nurse in a manner that insured the implant remained sterile until it was received within the sterile field. Dr. Collins further testified that the procedure utilized at West Cal was the customary procedure followed through his training and thereafter in every facility that he had ever been in and that the representative was present to help with things related to implants, including the handing off of the required implants.

11fiKristal Connor, Director of Surgical Services at West Cal, corroborated Dr. Collins’ explanation of the OR procedure utilized during implant surgeries as of July 18, 2007. She described the procedure employed at West Cal in implant surgeries: the doctor stated what implant he needed; the sales representative retrieved the stated implant from his supply and brought it into the OR and opened the outer unsterilized portion of the packaging before handing it over to a circulating nurse. Mrs. Connor further testified that West Cal had no written policy on this practice; however, there was an understanding of the procedure to be followed that was known by the OR staff and sales representatives. She agreed that the procedure was the “normal day-to-day operations of the West-Cal O.R.”

Mrs. Connor stated that West Cal’s policy considered the sales representative as a “resource regarding the representative’s products” who would provide the implant devices being used and also assist in troubleshooting with a complication or something else that may have gone wrong. She testified that the sales representatives are the experts with regard to the devices they represent and sell. She clarified that the sales representatives do not assist in the medical care of the patients, but they are the experts with regard to “everything it takes to do a particular procedure” utilizing the devices they sell.

Mr. Forrest had a duty to act as a reasonable sales representative. Dr. Collins’ and Mrs. Connor’s testimonies established that a reasonable medical sales representative at West Cal attended implant surgeries to provide the products he sold and his technological assistance to doctors performing surgery and that his duties included providing the surgical team the proper size implant components as determined by the surgeon.

| ^Considering the factors outlined by the supreme court in Meany, 639 So.2d 229 and the testimonies of Dr. Collins and Mrs. Connor, we find Mr. Forrest had a duty to provide the appropriate size poly insert for the size 5 implant that Dr. Collins determined Mrs. Grabowski required. We do not see that imposition of this duty will result in an unmanageable flow of litigation. There is a clear association between the harm to Mrs. Grabowski and Mr. Forrest’s conduct. Moreover, the nature of Mr. Forrest’s activities, his experience, and his expected conduct in the OR made it clearly foreseeable that his failure to provide the proper size implant and corresponding poly insert would result in harm to the patient in whom it was being implanted. Mrs. Grabowski was not at fault. The economic impact is that all parties that contributed to Mrs. Grabow-ski’s harm share in the responsibility for her damages. Surgeries, especially ones like Mrs. Grabowski’s, are becoming more and more technologically advanced, requiring technological assistance from sales representatives who are specially educated and trained with respect to the medical devices they sell. Accordingly, it is reasonable for these sales representatives to be responsible for their negligent acts.

Mr. Forrest testified that he did not recall if he handed the poly insert to the OR personnel or simply opened two or three different sized implants and poly inserts and left them available on a table in the OR while he went to and from other surgical suites. Under the facts of this case, the determination of whether Mr. Forrest’s actions combined with actions or inactions of Dr. Collins and the West Cal OR staff to cause injury to the Grabowskis such that he is a joint tortfeasor with the health care providers is a question of material fact that must be resolved by the trier of fact at a trial.

| isThe defendants supported their Motion for Summary Judgment- with the affidavit of Dr. William Cenae, an orthopedic surgeon in New Iberia, Louisiana, who averred that the procedure described by Dr. Collins and followed by West Cal with regard to implant surgeries is below the standard of care. Dr. Cenac supported his affidavit with statements published by the American College of Surgeons dated May 2000 and Association of Registered Nurses regarding the role of health care industry representatives (HCIR), such as Mr. Forrest, in the perioperative setting.

Pursuant to Milbert, 120 So.3d 678, the fact that these publications provide, in part, that HCIRs are not part of the per-ioperative team and their activities should be monitored does not preclude an HCIR from being responsible for his failure to provide the proper size of a medical device when that HCIR has been told the proper size of the device required and he knows, and has been subject to, procedures such as those followed in the OR at West Cal and another local hospital in which he sells medical devices and provides assistance during surgery for those medical devices. Therefore, the issues raised by Dr. Cenac’s affidavit create genuine issues of material fact that preclude summary judgment in favor of Mr. Forrest; the grant of summary judgment in favor of Mr. Forrest is reversed.

Do Smith & Nephew and PUREPLAY Owe a Duty to the Grabowskis?

The Grabowskis assert that the trial court erred in granting summary judgment in favor of Smith & Nephew and PUREPLAY. They argue that the contracts among the defendants create a stipulation pour autrui or third party beneficiary contract in their favor and that the relationships among the defendants clothed Mr. Forrest with apparent authority to act on their behalf thereby rendering them liable for his negligent acts. They also argue that even if Mr. Forrest is |19neither an employee of Smith & Nephew nor PUREPLAY, they can be liable for his negligent acts.

Stipulation pour autrui

Louisiana Civil Code Article 1978-provides: “A contracting party may stipulate a benefit for a third person called a third party beneficiary.” Our jurisprudence has developed three criteria for determining whether contracting parties have provided a benefit for a third party. Joseph v. Hosp. Serv. Dist. No. 2 of Parish of St. Mary, 05-2364 (La.10/15/06), 939 So.2d 1206. It must be clear that the claimed benefit is stipulated for the benefit of a third party; it must be certain “as to the benefit provided the third party;” and the benefit cannot be “a mere incident of the contract between the promisor and the promisee.” Id. at 1212. Review of the criteria must establish that the contract “stipulate^] a benefit for a third person,” as required by La.Civ.Code art. 1978. Id.

A stipulation pour autrui is never presumed, and the party claiming to benefit of a stipulation pour autrui bears the burden of proving it. Id.

The Grabowskis contend that language in two provisions of the contract between Smith & Nephew and PURE-PLAY create a stipulation pour autrui that benefits them. The first provision states, in part: “Smith & Nephew shall indemnify its agents or employees ... against any and all third party claims and demands for losses, damages and injuries.” The second provision states:

Territory Manager shall indemnify and hold harmless S & N and its affiliates and their agents and employees from and against all claims, damages, losses, and expenses ... arising out of any breach of this Agreement, any negligence, or any other misconduct, on the part of Territory Manager or its agents or employees.

1 roA reading of the first provision in its entirety shows it is not a stipulation pour autrui and that it does not benefit the Grabowskis. The provision states, in pertinent part:

Smith & Nephew shall indemnify its agents or employees ... against any and all third party claims and demands for losses, damages and injuries arising out of any claim of a defect in the manufacture or design of a Product or written representation or omission in S & N’s promotional literature concerning the Product.

Rather than providing a benefit to a third party, like the Grabowskis claim, this provision clearly limits indemnification to Smith & Nephew’s agents or employees and no one else. Furthermore, it provides indemnification for claims “arising out of any claim of defect in manufacture or design or written representation of omission,” and the Grabowskis have neither asserted nor shown that their claims satisfy these criteria.

The second provision also does not provide a stipulation pour autrui because the relief provided therein is specific and personal to Smith & Nephew, its affiliates, their agents, and employees.

The distinction between these two provisions and a stipulation pour autrui is evident when they are compared to contract provisions that do benefit the third party seeking to enforce it. In Duck v. Hunt Oil Co., 13-628 (La.App. 3 Cir. 3/5/14), 134 So.3d 114, writs denied, 14-703, 14-709, 14-715, 14-735 (La.6/13/14), 140 So.3d 1189, 1190, another panel of this court determined that a contract providing, in pertinent part: “Lessee shall be responsible for all damages caused by Lessee’s operations,” was a stipulation pour autrui that benefitted a subsequent purchaser of the property affected by the lease. In reaching that conclusion, the panel considered other contractual provisions that had been held to be stipulations in favor of third parties, e.g., “Grantee shall be responsible for all |2i damages caused by his operations[,]” Hazelwood Farm, Inc. v. Liberty Oil & Gas Corp., 01-345, 1 (La.App. 3 Cir. 6/20/01), 790 So.2d 93, 95, writ denied, 01-2115 (La.7/26/01), 794 So.2d 834; and “The lessee shall be responsible for all damages caused by lessee’s operations.” Andrepont v. Acadia Drilling Co., 255 La. 347, 231 So.2d 347, 348 (1969).

The deciding factor for the court in Duck, 134 So.3d 114, was the fact that the damage clauses in Hazelwood, Andrepont, and therein did not restrict liability to only the damages suffered by the lessors or the parties to the contracts. The provisions relied upon by the Grabowskis restrict liability for indemnification to Smith & Nephew’s agents or employees and to Smith & Nephew, its affiliates, their agents, and employees. Accordingly, neither provision is a stipulation pour autrui that benefits them.

Apparent Authority

The Grabowskis also contend that Mr. Forrest had the apparent authority of Smith & Nephew to act on their behalf; therefore, Smith & Nephew and PURE-PLAY are individually liable for his acts of negligence. This argument is based on La.Civ.Code art. 3021 which provides: “One who causes a third person to believe that another person is his mandatary is bound to the third person who in good faith contracts with the putative manda-tary.”

The Louisiana Supreme Court outlined the concept of apparent authority in Tedesco v. Gentry Development, Inc., 540 So.2d 960, 963 (1989) (citations and footnotes omitted):

Apparent authority is a doctrine by which an agent is empowered to bind his principal in a transaction with a third person when the principal has .made a manifestation to the third person, or to the community of which the third person is a member, that the agent is authorized to engage in the particular transaction, although the ^principal has not actually delegated this authority to the agent. In an actual authority situation the principal makes the manifestation first to the agent; in an apparent authority situation the principal makes this manifestation to a third person. However, the third person has the same rights in relation to the principal under either actual or apparent authority. Further, apparent authority operates only when it is reasonable for the third person to believe the agent is authorized and the third person actually believes this.
Louisiana courts have utilized the doctrine of apparent authority to protect third persons by treating a principal who has manifested an agent’s authority to third persons as if the principal had actually granted the authority to the agent.

Pursuant to the apparent authority doctrine, “an agency relationship may be formed even without the intent to do so.” Lifetime Constr., L.L.C. v. Lake Marina Tower Condo. Ass’n, Inc., 12-487,12-488, p. 7 (La.App. 4 Cir. 8/27/13), 117 So.3d 109, 115. The application of this principle of estoppel is considered “both fair and equitable to govern mutual rights and liabilities by the apparent scope of an agent’s authority because third persons, who are not privy to the actual terms of the agency agreement, must rely entirely upon the indicia of authority with which the agent is vested.” Broadway v. All-Star Ins. Corp., 285 So.2d 536, 538 (La.1973).

The party seeking to bind the principal has the burden of proving apparent authority. Eakin v. Eakin, 07-693 (La.App. 3 Cir. 12/19/07), 973 So.2d 873. When determining whether a principal’s actions have created an apparent agency, courts must consider the evidence from the vantage point of the third party. Verstichele v. Marriner, 04-354 (La.App. 3 Cir.9/29/04), 882 So.2d 1265.

In Independent Fire Insurance Co. v. Able Moving and Storage Co., Inc., 94-1982 (La.2/20/95), 650 So.2d 750, the supreme court determined that a national moving company, Bekins, clothed Able Moving and Storage Co., Inc., a | ^moving company operating in Baton Rouge, with actual and apparent authority to conduct business on its behalf. Facts considered by the court as showing that Able had Bekins’ apparent authority to operate on its behalf as a moving company were: 1) Bekins published and paid for an advertisement which gave the erroneous impression that third parties dealing with Able were actually dealing with Bekins; 2) the plaintiff responded to a Bekins ad and testified that the telephone must have been answered by a person purporting to represent Bekins; 3) the movers arrived in a van marked with Bekins’ name, wearing hats, and shirts with Bekins’ logo; and 4) the plaintiffs check was made out to Be-kins. Moreover, the plaintiff testified that she believed throughout that she was dealing with Bekins. The supreme court held that because the plaintiff reasonably relied on representations that she was dealing with Bekins, Bekins was responsible for the Abie’s employee’s negligence.

Grabowskis point out that PUREPLAY provided Mr. Forrest busi-busicards with his name as Smith & Nephew’s representative. Pursuant to Smith & Nephew’s contract with PURE-PURE-Smith & Nephew had to consent in writing to all advertising and participation in public exhibitions relating to its prod-prodincluding the use of its name and its trademark. Mr. Forrest testified that he had to have a Smith & Nephew badge to enter the OR. Dr. Collins’ testimony shows he believed that Mr. Forrest represented Smith & Nephew. Dr. Collins opined that Smith & Nephew was responsible for Mr. Forrest’s actions because it did not proper-propertrain him.

The Grabowskis further argue that PU-REPLAY’s contract was not known to them or to others who dealt with Mr. Forrest; therefore, third parties had no way of knowing that Mr. Forrest was not representing Smith & Nephew. The Gra-bowskis also argue that Mr. Forrest was not identified by Smith & Nephew as an ^independent contractor such that they or any other persons who purchased implants from him would know he was not an agent of Smith & Nephew but an independent contractor. These facts are sufficient to create a genuine issue of material fact as to whether Mr. Forrest had apparent authority to act for Smith & Nephew. Accordingly, the grant of summary judgment in favor of Smith & Nephew is reversed.

Independent Contractor

The trial court held that because PU-REPLAY’s contract with Mr. Forrest identified him as an independent contractor PUREPLAY had no responsibility for his actions.

Pursuant to La.Civ.Code art. 2320, employers are answerable for the damage occasioned by their employees “in the exercise of the functions in which they are employed.” For an employer to be held liable under Article 2320, “the plaintiff must show that (1) a master-servant relationship existed between the tortfeasor and the employer, and (2) the tortious act of the tortfeasor was committed within the scope and during the course of his employment with the employer.” Hughes v. Goodreau, 01-2107, pp. 5-6 (La.App. 1 Cir. 12/31/02), 836 So.2d 649, 656, writ denied, 03-232 (La.4/21/03), 841 So.2d 793.

Louisiana Revised Statutes 23:1021(7) defines “[independent contractor,” in part, as “any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished.”

The fact that a contract delineates an individual as an independent contractor is not the only factor in determining whether that individual is an employee or | ^independent contractor. McGrew v. Quality Carriers, Inc., 11-440 (La.App. 3 Cir. 10/5/11), 74 So.3d 1253. The supreme court addressed independent contractor status in Hickman v. Southern Pacific Transport Co., 262 La. 102, 117-18, 262 So.2d 385, 390-91 (La.1972) (emphasis added) (citations omitted), stating:

It is well understood by the courts of this State that the term independent contractor connotes a freedom of action and choice with respect to the undertaking in question and a legal responsibility on the part of the contractor in case the agreement is not fulfilled in accordance with its covenants. The relationship presupposes a contract between the parties, the independent nature of the contractor’s business and the nonexclusive means the contractor may employ in accomplishing the work. Moreover, it should appear that the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction, in the performance of the service, of his employer, except as to the result of the services to be rendered. It must also appear that a specific price for the overall undertaking is agreed upon; that its duration is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach.
The law further recognizes that inquiry to determine whether a relationship is that of independent contractor or that of a mere servant requires, among other factors the application of the principal test: the control over the work reserved by the employer. In applying this test it is not the supervision and control which is actually exercised which is significant, the most important question is whether, from the nature of the relationship, the right to do so exists.

PUREPLAY’s contract with Mr. Forrest is for a term of one year with a provision that it can be renewed for one-year periods which periods shall automatically renew if either party fails to provide written notice to the other of their election not to renew the agreement. The contract also provides: “Notwithstanding, [the automatic renewal provision], this Agreement may be terminated at any time prior to May 31, 2008, May 31, 2009 or May 31, 2010, pursuant to Section 8 of this Agreement.” Section 8 identifies seven grounds for PUREPLAY to terminate Mr. Forrest.

|gi;The contract further provides that Mr. Forrest is an independent contractor responsible for essentially all expenses associated with his sales and marketing activities, including travel, and. food, lodging; payment of his own taxes and insurance; costs associated with meeting physicians, sales meetings, and conventions; telephone expenses; home office expenses; automobile expenses; discounts taken by customers or allowed by him that are not approved by PUREPLAY; office equipment; loss or damage to any products, samples, implants and/or instrumentation; and literature, promotional materials, and catalogue costs in excess of an annual amount provided by PUREPLAY. The contract also delineates Mr. Forrest’s and PUREPLAY’s obligations under the contract and provides for Mr. Forrest to be paid commissions which are based on sales and calculated as provided in the contract.

The Grabowskis argue that pursuant to its contract, PUREPLAY has the right to control enough aspects of Mr. Forrest’s work that a genuine issue of material fact exists as to whether or not PUREPLAY is his employer. The contract does not provide how Mr. Forrest is to conduct his sales meetings or which doctors he must contact. The contract does, however, identify and limit the area in which he can solicit sales; set performance standards; require him to be true, accurate, and complete in his communications regarding the products he sells; provide he will not modify or alter packaging or labeling of the products he sells; provide that he will act in compliance with all laws, rules, and regulations, and not enter any agreement on behalf of PUREPLAY.

The contract also provides that Mr. Forrest will not enter into a relationship with any company that competes with PURE-PLAY and will not share trade secrets or confidential information. Moreover, the contract also provides that Mr. Forrest [ 27will submit all product ideas he receives from his customers and that such ideas developed or discovered by him “are and shall remain the sole property” of PURE-PLAY because it provided him “with special knowledge and has placed him in a position to formulate ideas concerning products.” By the terms of the contract, Mr. Forrest “assigns such ideas to PURE-PLAY and hereafter shall acquire no right or interest in such ideas.” The contract does not include a provision that it is “not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach,” as contemplated by Hickman, 262 La. at 117, 262 So.2d at 391.

The Grabowskis cite Webb v. Roofing Analytics, LLC, 48,248 (La.App. 2 Cir.7/24/13), 121 So.3d 756, as support for their position that a genuine issue of material fact exists as to whether Mr. Forrest is an independent contractor or an employee. In Webb, a salesman sued for non-payment of wages after he ended his employment with the defendant. The defendant denied owing the plaintiff wages on the basis that he was an independent contractor. The contract in Webb contained specific provisions for an increase in the salesman’s commissions; his business cards identified him as an insurance claims specialist with the defendant, rather than an independent contractor; and outlined actions, such as failure to return customer calls or emails, that could lead to “negative counseling” and “hinder advancement.” The contract did not provide for “specific piecework as a unit,” did not provide a specific price, and had no agreed upon time or duration for such work. Additionally, neither party was subject to liability for breach upon termination of their relationship.

The court in Webb noted, “In addition to the power of control, other factors indicative of an employer-employee relationship include selection and | ^engagement, the payment of wages, and the power of dismissal.” Id. at 764. The court further observed, “Notably, our courts have regarded commissioned salespeople as employees, not as independent contractors.” Id.

Our review of PUREPLAY’s contract leads to the conclusion that genuine issues of material fact exist as to whether Mr. Forrest is an employee and not an independent contractor, including the payment of commissions for his sales, the number of causes for termination of Mr. Forrest, the lack of consequences in the event PURE-PLAY breaches the contract, and the ownership of Mr. Forrest’s product ideas without evidence of what training PUREPLAY provided Mr. Forrest that equipped him with special knowledge needed to formulate product ideas. For these reasons, the grant of summary judgment in favor of PUREPLAY is reversed.

DISPOSITION

Finding no error with the trial judge’s failure to act on the Grabowskis’ Motion to Substitute Counsel and Motion for Recu-sal, the writ application is denied. The judgment of the trial court granting the Motion to Close the Record is affirmed. The grants of summary judgment in favor of Daniel Forrest, Smith & Nephew, Inc., and PUREPLAY Orthopaedic Sales 1 Ltd. are reversed, and the matter is remanded to the trial court for further proceedings. Costs of the writ application are assessed to the Grabowskis. Costs of the appeal are assessed to Smith & Nephew, Inc., PUREPLAY Orthopaedic Sales 1 Ltd., and Daniel Forrest.

WRIT DENIED. JUDGMENT AFFIRMED IN PART; REVERSED IN PART; AND REMANDED FOR FURTHER PROCEEDINGS.

      . Pursuant to West Cal policy, medical sales representatives are allowed in the OR during surgery, though not in the sterile field, to provide medical devices and assistance regarding the devices they sell. The sales representatives do not assist in direct care to patients but do provide informational assistance regarding the devices and procedures utilizing those devices.

      . Each part of the implant has a sticker identifying that part’s size; the sticker is removed from each part before it is implanted in the patient and placed in the record of the surgical proceeding.

      . Judge Ritchie stated at a hearing held on November 21 that he notified the runner for the Grabowskis' attorney that he would not sign the order because a status conference had been set in the matter.

      . The Motion to Substitute Counsel and Motion for Recusal was submitted to Judge Rit-chie for his signature before being filed with the Clerk of Court. Therefore, the dates referenced in this discussion are based on the dates of correspondence associated with the motions rather than the dates these motions and/or correspondence were filed with the Clerk of Court.


author: AMY, Judge.

text:
    STATE in the Interest of S.D.
    No. 14-439.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.

      Michael Harson, District Attorney, Lafayette, LA, Aimee F. Hebert, Assistant District Attorney, Abbeville, LA, for Ap-pellee, State of Louisiana.
    Jermaine D. Williams, Lafayette, LA, for Defendani/Appellant, S.D.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   AMY, Judge.

b The defendant was adjudicated a juvenile delinquent for the commission of an armed robbery. A panel of this court affirmed that adjudication on appeal. However, the panel vacated the disposition imposed upon a finding that the juvenile judge erred in concluding that a disposition of secure placement until the juvenile’s twenty-first birthday was required. On remand, the juvenile judge again placed the juvenile in the custody of the State until his twenty-first birthday and ordered that the disposition be served without the benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence. The juvenile appeals. For the following reasons, we affirm and remand with instructions discussed below.

Factual and Procedural Background

In January 2013, the State filed a petition alleging that S.D. (age 16 at the time of the offense), committed a delinquent act with a dangerous weapon. See La.R.S. 14:64. As more fully set forth in the prior appeal in this matter, State in the Interest of S.D., 13-1028 (La.App. 3 Cir. 2/12/14), 2014 WL 576265 (an unpublished opinion), the offense involved the allegation that S.D. arranged to meet the victim after S.D. indicated interest in purchasing a cellular telephone. The State asserted that the meeting occurred in the parking lot of an apartment complex and that, upon the victim lowering the window of his vehicle, S.D. placed a gun to his neck. The victim explained that he knew S.D. and identified him as the perpetrator. The victim also explained that another individual who approached the car with S.D. entered the passenger side of the victim’s vehicle and began hitting him about the |2face. The victim explained that S.D. demanded an iPad. Although the victim explained that he did not have an iPad, his cellular phone and a hat he purchased earlier in the day were taken. He thereafter left the scene and reported the offense to the authorities. A resident of the apartments testified that she witnessed the altercation and provided her recollection at the juvenile proceeding.

Following the hearing, the juvenile judge adjudicated S.D. a juvenile delinquent for the commission of armed robbery and ordered him to be placed in the custody of the Louisiana Department of Public Safety and Corrections. The juvenile judge further ordered that the disposition be served without benefit of parole, probation, suspension of imposition or execution of sentence, or without modification. In the original appeal, a panel of this court affirmed the adjudication, finding, in part, that the State presented sufficient evidence to support the juvenile judge’s determination. See State in the Interest of S.D., 13-1028. However, in review of S.D.’s assertion that the disposition was excessive, the panel concluded that the juvenile judge erred in concluding “that the only disposition available in this matter was a secure placement in the custody of DPSC until S.D.’s twenty-first birthday.” Id. at p. 12, 2014 WL 576265. Rather, the panel noted that, while La.Ch.Code art. 897.1(B) prescribes that “the disposition imposed for the offense of armed robbery is without benefits, the length of confinement under [the Article] is subject to the discretion of the juvenile judge.” Id. Thus, the panel vacated the disposition and remanded the matter “with instructions to impose a new judgment of disposition^]” Id.

On remand, the juvenile judge conducted a new disposition hearing and ordered that S.D. be placed in the custody of DPSC until his twenty-first birthday. Once again, the juvenile judge ordered that the disposition be without benefit of Isparole, probation, suspension of imposition of sentence, suspension of imposition of execution of sentence, or modification of sentence. S.D. appeals, questioning “[wjhether the sentence imposed by the trial court was excessive.”

Discussion

Errors Patent

Pursuant to La.Code Crim.P. art. 920, we have reviewed this matter for' errors patent on the face of the record. After review, we note that the custody order does not reflect that the juvenile judge imposed the disposition .without the benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence, as indicated in the transcript of the disposition proceeding. Accordingly, we remand this matter with instructions for correction of the custody order to reflect that the disposition was imposed without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence, as indicated in the transcript of the disposition proceeding.

Disposition

As stated above, a panel of this court affirmed the underlying adjudication of S.D. as a delinquent for the commission of an armed robbery. That adjudication is not now before the court. Rather, in S.D.’s sole assignment of error, he challenges the disposition imposed on remand and contends that it is excessive. In particular, he suggests that the juvenile judge failed to adequately consider mitigating factors. S.D. argues that, upon a finding of excessiveness, this court should not remand the matter for resentencing, but that it should impose an appropriate disposition on appeal.. But see La.Code Crim.P. art. 881.4(A) (which provides that: “If the appellate court finds that a sentence must be set aside on any |4ground, the court shall remand for resentence by the trial court. The appellate court may give direction to the trial court concerning the proper sentence to impose.”).

Louisiana Children’s Code Article 897.1(B) provides as follows with regard to the adjudication of juvenile delinquency for the offense of armed robbery:

After adjudication of a felony-grade delinquent act based upon a violation of R.S. 14:64, armed robbery, the court shall commit the child who is fourteen years of age or older at the time of the commission of the offense to the custody . of the Department of Public Safety and Corrections to be confined in secure placement for the length of the term imposed by the court at the disposition hearing without benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence.

As noted by the panel conducting the initial review in this matter, supreme court jurisprudence indicates that Article 897.1(B) allows a juvenile judge’s discretion in determining the term of commitment to the custody of the DPCS of juveniles adjudicated guilty of armed robbery. See State in the Interest of AM. and T.K., 98-2752 (La.7/2/99), 739 So.2d 188. However, that discretion is subject to a review on a claim of excessiveness of the sentence. See La.Ch.Code art. 808 (providing that “All rights guaranteed to criminal defendants by the Constitution of the United States or the Constitution of Louisiana, except the right to jury trial, shall be applicable in juvenile court proceedings brought under this Title.”); See also U.S. Const, amend. VIII; La. Const, art. 1, § 20; State, in the Interest of D.L.S., 30,-322 (La.App. 2 Cir. 1/21/98), 706 So.2d 187.

Generally, in a claim for exces-siveness of a disposition in a juvenile matter, an appellate court must first ascertain whether the juvenile judge took cognizance lfiof the general guidelines of La.Ch.Code art. 901 and whether the record reflects an adequate basis for the commitment imposed. State in the Interest of M.N.H., 01-1218 (La.App. 3 Cir. 2/6/02), 807 So.2d 1149, writ denied, 02-1041 (La.5/24/02), 816 So.2d 857. Thereafter, the appellate court considers the claim of constitutional excessiveness in light of the circumstances of the case and the background of the juvenile. Id. The disposition will not be set aside on such a claim of excessiveness “[ajbsent a showing of manifest abuse of the wide discretion afforded in such cases.” Id. at 1155, quoting State in the Interest of T.L., 28,564 (La.App. 2 Cir. 5/8/96), 674 So.2d 1122.

In his excessiveness claim, S.D. references La.Ch.Code art. 901(D) and asserts that the juvenile judge did not consider a number of mitigating factors listed therein. S.D. suggests that in imposing of a new sentence this court should |ficonsider that: he did not have prior adjudication; he had been out of custody on bond prior to the adjudication and disposition without incident; his mother indicated that she could adequately care for him and assure the court that there would be no further problems; he had a sizeable support system of relatives; his mother could facilitate an order of home incarceration; there is no indication that he will commit another delinquent act or crime; that his character/support structure indicate that he would respond well to probationary treatment; and that confinement would present an excessive hardship on him and his family.

However, we find no merit in the argument that the juvenile judge failed to consider the factors of La.Ch.Code art. 901(D). Rather, La.Ch.Code art. 901(E) clearly states that “[t]he general disposition guidelines set forth in Paragraphs A through D of this Article do not apply when a child has been adjudicated a delinquent for the violation of ... R.S. 14:64, armed robbery in accordance with Article 897.1.” Notably, the panel of this court reviewing S.D.’s sentence in the prior appeal recognized the inapplicability of Paragraph (D) to the disposition in the present armed robbery matter. See State in the Interest ofS.D., 13-1028.

Thus, we turn to consideration of the constitutional excessiveness claim. This court has previously explained that:

The Eighth Amendment to the United States Constitution and La. Const, art. 1, § 20 prohibit the imposition of cruel or excessive punishment. “ ‘[T]he exces-siveness of a sentence becomes a question of law reviewable under the appellate jurisdiction of this court.’ ” State v. Dorthey, 623 So.2d 1276, 1280 (La.1993) (quoting State v. Sepulvado, 367 So.2d 762, 764 (La.1979)). Nevertheless, the trial court is given wide discretion in imposing a sentence, and, absent a manifest abuse of that discretion, we will not deem as excessive a sentence imposed within statutory limits. State v. Pyke, 95-919 (La.App. 3 Cir. 3/6/96), 670 So.2d 713. “Maximum sentences are reserved for the most serious violations and the worst offenders.” State v. Farhood, 02-490, p. 11 (La.App. 5 Cir. 3/25/03), 844 So.2d 217, 225. The only relevant question for us to consider on review is |7not whether another sentence would be more appropriate, but whether the trial court abused its broad discretion in sentencing a defendant. State v. Cook, 95-2784 (La.5/31/96), 674 So.2d 957, cert. denied, 519 U.S. 1043, 117 S.Ct. 615, 136 L.Ed.2d 539 (1996).

See State v. Davenport, 07-254, pp. 3-4 (La.App. 3 Cir. 10/3/07), 967 So.2d 563, 565.

In this case, and given S.D.’s age, the juvenile judge imposed a period of detention until the age of twenty-one. The juvenile judge explained:

Just to make it clear, in considering what an appropriate disposition is for the juvenile. I’ve considered that he may be sentenced to disposition that is less than juvenile life. I’ve also considered the seriousness of the offense. The fact that it was carefully planned. The fact that there was a firearm involved. The fact that the juvenile planned the offense to the extent that he attempted to recruit his cousin to participate in the crime. And the callousness of his putting a gun to his victim’s head for a cell phone. All of these factors convince me that it wasn’t a momentary lapse in judgment, but a planned and premeditated armed robbery. I’ve considered the following in mitigation. The juvenile’s youth. The fact that he was a student. The fact that he came from a single parent, hard working [sic] home. After having considered all of the aggravating and mitigating circumstances, I find that the appropriate disposition is secure placement in the custody of the Department of Public Safety and Corrections to be confined in secure placement until the juvenile attains the age of twenty-one years, without benefit of parole, probation, suspension of imposition or execution of sentence or modification of sentence. A lessor sentence would diminish the seriousness of the offense.

After review of the record in light of the excessiveness criteria, we find no abuse of discretion in the juvenile judge’s imposition of disposition. As noted by the judge, the commission of this offense involved advanced planning and resulted in the placement of a firearm to the victim’s head/neck in order to take personal property. Additionally, the juvenile acted in concert with another perpetrator who repeatedly struck the victim. In light of these factors, we find that the record supports the juvenile judge’s characterization of this offense as a callous one, and the determination that a lesser disposition would diminish the seriousness of the |soffense. We note here too, that the juvenile judge imposed sentence following a statement indicating that she had considered all mitigating factors, including the juvenile’s age, school status, and family factors.

This assignment of error lacks merit.

DECREE

For the foregoing reasons, the juvenile judge’s imposition of disposition is affirmed. The matter is remanded to the Abbeville City Court for the correction of the custody order to reflect that the disposition was imposed without the benefit of parole, probation, suspension of imposition or execution of sentence, or modification of sentence, as indicated in the transcript of the disposition proceeding.

AFFIRMED. REMANDED WITH INSTRUCTIONS.

      . We reference the juvenile by use of initials per Uniform Rules-Courts of Appeal, Rule 5-2.

      . The record reports that S.D., who was born in August 1996, was over the age of fourteen years of age at the time of the underlying offense in January 2013.

      . Louisiana Children's Code Article 901(D) provides that:
      The following grounds, while not controlling the discretion of the court, shall be accorded weight in its determination of suspension of the disposition or probation:
      (1) The child’s delinquent conduct neither caused nor threatened serious harm.
      (2) The child did not contemplate that his delinquent conduct would cause or threaten serious harm.
      (3) The child acted under strong provocation.
      (4) There were substantial grounds tending to excuse or justify the child’s delinquent conduct, though failing to establish a defense.
      (5) The victim of the child’s delinquent conduct induced or facilitated its commission.
      (6) The child or his family has compensated or will compensate the victim of his delinquent conduct for the damage or injury that the victim sustained.
      (7) The child has no history of prior delinquency or has led a law-abiding life for a substantial period of time before the commission of the instant delinquent act.
      (8) The' child’s delinquent conduct was the result of circumstances unlikely to recur.
      (9) The character and attitudes of the child indicate that he is unlikely to commit another delinquent act or crime.
      (10) The child is particularly likely to respond affirmatively to probationary treatment.
      (11) The commitment of the child would entail excessive hardship to himself or his family.


author: GREMILLION, Judge.

text:
    STATE in the Interest of D.J.
    No. 14-509.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.
    Michael Harson, District Attorney, Sonia Gupta, Assistant District Attorney, Fifteenth Judicial District Court, Lafayette, LA, for Appellee:' State of Louisiana.
    Jane Hogan, Fifteenth Judicial District Public Defender’s Office, Lafayette, LA, for Defendant/Appellant: D.J.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

hD.J. was adjudicated delinquent for disturbing the peace by publicly engaging in a fistic encounter with another student at his school in February 2013, a violation of La.R.S. 14:103(A)(1). The juvenile court ordered that D.J. be placed in the custody of the Department of Corrections, Division of Juvenile Justice, for ninety days. The commitment was suspended, and D.J. was placed on six months active, supervised probation. D.J. now appeals and contends that the juvenile court erred by adjudicating him guilty of disturbing the peace despite insufficient evidence. We find that the evidence is insufficient to support D.J.’s adjudication and vacate his disposition.

SUFFICIENCY OF THE EVIDENCE

D.J. contends that the testimony of the State’s sole witness was not sufficient to sustain an adjudication of guilty. We agree.

In State In Interest of T.W., 09-532, p. 2 (La.App. 3 Cir. 10/7/09), 21 So.3d 465, 467-68, this court discussed the standard of review in juvenile matters as follows:

In a juvenile proceeding, the state’s burden of proof is the same as in a criminal proceeding against an adult-to prove beyond a reasonable doubt every element of the offense alleged in the petition. La. Ch.Code art. 883; In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a ^reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).
State in the interest of D.P.B., 02-1742, pp. 4-5 (La.5/20/03), 846 So.2d 753, 756. “[Ajppellate review in juvenile delinquency proceedings extends to both law and facts.” State in the interest of L.T., 99-487, p. 6 (La.App. 3 Cir. 10/13/99), 747 So.2d 148,152.
In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its. entirety and (1) find that a reasonable factual basis does not exist for the finding, and if such a basis does exist, (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. See Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). If there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. However, where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the appellate court may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Id.
State in the interest of D.H., 04-2105, pp. 7-8 (La.App. 1 Cir. 2/11/05), 906 So.2d 554, 560.

In State v. Heck, 307 So.2d 332, 334 (La.1975), the supreme court stated, “The phrase ‘engaging in a fistic encounter’ also appears to be reasonably clear. Taking the words in their usual sense, the phrase means engaging in a fistfight.” The supreme court further stated that La.R.S. 14:103 “proscribes only those fistic encounters, or fistfights, that foreseeably disturb or alarm the public.” Id.

Corporal Dennis Labure testified that he was an off-duty police officer working security at a school on February 28, 2013. He was notified via campus radio about a disturbance. Upon his arrival at the location of the disturbance, Labure saw “[D.J.] and another subject being held back by the other students in ^between classes. [D.J.] was yelling with his shirt off at the other subject.” Labure testified that twenty-five students were present, and it took several students to hold “him” back. When asked about D.J.’s demeanor at the scene, La-bure testified that he was aggressive and yelling at the other subject. He further indicated that D.J. was tense and being held back by other students, whom he was struggling against. Labure subsequently placed D.J. in handcuffs and escorted him and the other student involved to the Assistant Principal’s office, where they were placed under arrest. At that time, the Assistant Principal questioned D.J. and the other subject. Labure testified that D.J. stated “he was involved in a physical altercation with the other subject.” La-bure was asked, “did you believe that [D.J.] had been fighting with the other child” and Labure replied, “[y]es.” On cross-examination, Labure testified that he did not see D.J. engaged in a fistic encounter. Labure did not obtain written statements from anyone present on the date in question, and no other witnesses were called to testify.

D.J. contends that neither his behavior nor his statement in the Assistant Principal’s office proved beyond, a reasonable doubt that he engaged in a fistic encounter. Additionally, D.J. argues that La-bure’s opinion that D.J. was involved in a fight did not prove beyond a reasonable doubt that he was involved in a fistic encounter. The State contends that it met its burden of proof because D.J. admitted that he had been involved in a physical altercation. The State further argues that La-bure’s testimony regarding his observations and D.J.’s statement were weighed by the trial court and determined to be credible.

We find that the State did not prove the elements of the offense beyond a reasonable doubt. The State failed to set forth any evidence of a “fistic encounter,” instead relying on hearsay testimony of the officer who arrived on the scene after |4the event took place. Labure did not witness D.J. engaged in a fist fight nor did D.J. elaborate as to the details of the “physical altercation.” There simply was no evidence of a fistic encounter beyond the hearsay testimony of Corporal Labure. Of the many alleged witnesses to the encounter, none were called to testify. Accordingly, D.J.’s adjudication and disposition are vacated.

DECREE

DJ.’s adjudication and disposition for publicly engaging in a fistic encounter, a violation of La.R.S. 14:103, is hereby vacated.

ADJUDICATION AND DISPOSITION VACATED.

      . The juvenile's initials are used in accordance with Uniform Rules-Courts of Appeal, Rule 5-2.

      . Labure never gave the name of the school.