text:
    Alvin JONES v. BUCK KREIHS MARINE REPAIR, L.L.C.
    No. 2013-CA-0083.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 21, 2013.

      George Warren Byrne, Jr. Evette E. Ungar, Ungar & Byrne, APLC, New Orleans, LA, for Plaintiff/Appellant.
    Sean T. McLaughlin, Bradley J. Schlot-terer, Kean Miller LLP, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiff, Alvin Jones (“Jones”), appeals the trial court’s judgment that dismissed his lawsuit against the defendant, Buck Kreihs Marine Repair, L.L.C. (hereinafter, “BKM”) on the defendant’s motion for summary judgment. For the reasons that follow, we reverse the trial court’s judgment and remand this matter for further proceedings.

I.

We review the granting of a motion for summary judgment utilizing the de novo standard of review. Hutchinson v. Knights of Columbus, Council No. 5717, 03-1533, p. 5 n. 2 (La.2/20/04), 866 So.2d 228, 232; Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. We utilize the same standard applied by the trial court in deciding the motion for summary judgment. Cusimano v. Port Esplanade Condominium Ass’n, Inc., 10-0477, p. 4 (La.App. 4 Cir. 1/12/11), 55 So.3d 931, 934; Lingoni v. Hibernia Nat’l Bank, 09-0737, p. 3 (La.App. 4 Cir. 3/3/10), 33 So.3d 372, 375. Because we review a motion for summary judgment de novo, we do not give deference to the trial ^court’s judgment or its reasons therefor. Cusimano, p. 4, 55 So.3d at 934. A trial court’s reasoning for granting a summary judgment may be informative, but it is not determinative of the issues to be resolved by this court. Cusimano, pp. 4-5, 55 So.3d at 935. If a genuine issue of material fact exists, then summary judgment is inappropriate. La. C.C.P. art. 966 B(2).

II.

Jones, an employee of U.S. United Bulk Terminal, L.L.C. (hereinafter, “UBT”), was severely injured, resulting in paralysis from the chest down, on 19 February 2010 at UBT’s vessel-loading and unloading facility in Davant, Louisiana. At the time of his injury, Jones was in the course and scope of his employment for UBT.

UBT employees had determined that the weight scales on one of its elevated conveyor systems required removal and replacement with new scales. UBT’s personnel contacted BKM, a company they had used before and with whom a related company had a contract, requesting two mechanics to assist in the job.

In the mid-morning of 19 February 2010, BKM boilermaker Virgil Landry (“Landry”) and BKM machinist Shadrach Coleman (“Coleman”) were dispatched to the UBT facility. They met with UBT supervisor in charge of managing electrical and engineering projects at UBT’s Davant facility, Layne Bennett (“Bennett”), for about 20 minutes about the work to be performed, whereupon Landry and Coleman proceeded to the conveyor that was mounted on an aerial | aboom approximately 35 feet above the facility floor. Safety issues or concerns were not addressed during the meeting. Bennett, Landry, and Coleman ascended to the boom work site. Landry and Coleman carried their own tools to the weight scale system on the conveyor system. Bennett directed Landry and Coleman to start removing the bolts that secured the old scale and counterweights, but he did not direct them how to do so.

Shortly thereafter, the new replacement scales were delivered to the boom and mechanically lifted to Bennett on the overhead boom. The scales were packaged in eight separate boxes, each weighing about 25 pounds. At Bennett’s request, Landry assisted Bennett in unloading the first few boxes. Bennett, however, decided to unload the remaining boxes himself, simultaneously directing Landry to resume changing out the old scales. As Landry and Coleman resumed working on the removal of the old scales, Bennett proceeded to unload the remaining boxes. Upon attempting to unload the final box, Bennett lost his grip on it. The box fell from the overhead boom, striking Jones, who was walking in an area under the boom that individuals regularly cross to go from one area of the UBT facility to another, on the head. No warning devices or tapes, safety cones, ropes or barricades, or other implements were in place to indicate the work overhead, and Jones was unaware of the overhead work.

|4On appeal, Jones assigns three errors which can be discussed and described as but one, to-wit, the trial court erred in granting BKM’s motion for summary judgment because genuine issues of material fact exist relating to whether BKM was negligent and whether such negligence caused or contributed to Jones’ injuries in view of the contractual duties that BKM’s on-site employees had relating to safety.

III.

OSHA regulations direct that the area beneath overhead work should be protected; the duty to protect falls upon both UBT and BKM. UBT’s duty is to its employees and BKM’s duty is to its employees. Regulation 1926.451(h) specifically places the burden upon an employer to secure heavy objects away from the surface’s edge to prevent their falling. Regulation 1926.501(c) places the burden upon the employer to barricade the area to which objects could fall. See Regulation 1926.501(c)(3). We do not find that this duty is delegable under the Regulations, but the duty may be contracted to another person. See generally Bujol v. Entergy Services, Inc., 03-0492, 03-0502 (La.5/15/04), 922 So.2d 1113.

IV.

In the record before us is a contract, “General Services Agreement” dated 3 February 2010 between U.S. United Ocean Services, L.L.C. (“USUOC”) and BKM. No evidence in the record before us establishes how UBT and USUOC are related. In oral argument before us, counsel represented that this agreement applied to this case. However, we find no stipulation or explanation as to why this | ¿agreement should be applied, especially because the contract states that USUOC is located in Tampa, Florida. The single provision relating to safety reads as follows:

SAFETY PRECAUTIONS. Contractor [BKM] agrees prior to the commencement of the work to make all necessary inspections and to ascertain the existence and extent of any actual or potential hazardous or dangerous or unsafe conditions, and to instruct its employees as to said conditions and as to the safety measures and precautions to be taken in connection therewith. Contractor further agrees to take all necessary safety precautions, to furnish and install all safeguards necessary for the prevention of accidents, and to otherwise fully comply with all laws, rules and regulations pertaining to safety and accident prevention. When so ordered by Representative [presumptively, UBT’s employee, Bennett], Contractor agrees to stop any part of the work that Representative deems unsafe until such time as corrective measures satisfactory to Representative have been taken by Contractor, and Contractor agrees to make no claim for damages arising out of such work stoppages. Contractor agrees that it will require its employees to abide by the provisions of Company’s “Contractor Safety Manual” policies regarding safe working practices. [Emphasis in original.]

Also appearing in the record of appeal is the “U.S. United Bulk Terminal Contractor Safety Manual” dated 3 March 2008 that applies to this case. Section IV of the manual signed by BKM’s president on 18 July 2008; therein BKM acknowledges receipt of the manual and agrees that BKM has the “expertise, experience and sole responsibility to safely perform the work exercising reasonable care.” But the manual is totally silent as to what “work” BKM is to perform. An examination of the manual discloses no provision that obligates BKM to provide direct safety to UBT personnel. Rather, the safety manual addresses primarily matters to protect BKM personnel from injury. The second page of the manual specifically states:

This handbook is provided to UBT contractors to inform them of the general safety and environmental [ ^requirements to be followed while working on UBT vessels or property. Although UBT expects its contractors to comply with these safety and environmental practices, UBT assumes no responsibility either expressed or implied for monitoring contractor’s personal safety or compli-ances with environmental regulations. These requirements are not meant to be a comprehensive list of safety or environmental requirements, nor are they meant to represent all applicable safety or environmental regulations of the United States Coast Guard, Occupational Safety and Health Administration, Environmental Protection Agency or any other applicable Federal, State or local agency.

However, Section 1, addressing “Contractor General Safety Rules” states in pertinent part (and obviously, in context, referring to BKM):

Remaining alert to potential safety and health hazards. Where possible eliminate all obvious hazards. Report all hazards and any corrective measures you have taken to Company Representative.

This language may reasonably be read to have required BKM’s employees to barricade the area beneath the overhead boom or placed other warnings such as would have prevented anyone being injured as the result of the dropping of anything on persons beneath them.

V.

We next look to the jurisprudence to ascertain whether any jurisprudential rule would assign duties to BKM and BKM on-site personnel to have barricaded the area beneath the overhead boom or placed other types of warnings in the area where the subject accident occurred.

Under a duty-risk analysis in a case involving La. C.C. arts. 2315 and 2316 negligence, a plaintiff must prove five elements: (1) that the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) that the defendant’s conduct failed to conform to the appropriate standard (the breach 17element); (3) that the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) that the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and (5) actual damages (the damages element). Long v. State ex rel. Dept. of Transp. and Development, 04-0485, p. 21 (La.6/29/05), 916 So.2d 87, 101, citing Bonin v. Ferellgas, Inc., 03-3024 p. 5 (La.7/2/04), 877 So.2d 89, 94; Perkins v. Entergy Corp., 00-1372, 96-1387, 00-1440, p. 7 (La.3/23/01), 782 So.2d 606, 611; and Boykin v. Louisiana Transit Co., Inc., 96-1932, pp. 8-9 (La.3/4/98), 707 So.2d 1225, 1230.

Further, as explained by the Supreme Court in the seminal case of Roberts v. Benoit, 605 So.2d 1032 (La.1991), to meet the cause-in-fact element, a plaintiff must prove only that certain conduct was “a necessary antecedent of an accident; that is, but for the defendant’s conduct, the incident probably would not have occurred.” [Emphasis supplied.] State Farm Mut. Auto. Ins. Co. v. LeRouge, 07-0918, p. 18 (La.App. 4 Cir. 11/12/08), 995 So.2d 1262, 1275. The critical test in Louisiana is phrased in terms of the “ease of association” which “melds policy and foreseeability into one inquiry: Is the harm which befell the plaintiff easily associated with the type of conduct engaged in by the defendant?” Id. The essence of the legal cause inquiry is whether the risk and harm encountered by the plaintiff fall within the scope of protection of the duty. Id., pp. 18, 995 So.2d at 1275-76. The analysis we employ in determining whether to impose liability under La. C.C. art. 2315 is the duty/risk analysis, which consists of the following inquiries:

(1) Was the conduct in question a substantial factor in bringing about the harm to the plaintiff, i.e., was it a cause-in-fact of the harm which occurred?
Is(2) Did the defendant owe a duty to the plaintiff?
(3) Was the duty breached?
(4) Was the risk, and harm caused, within the scope of protection afforded by the duty breached?

Mathieu v. Imperial Toy Corp., 94-0952, p. 4 (La.11/30/94), 646 So.2d 318, 321-22. The question of whether a duty exists in a particular set of circumstances is a question of law for the court to decide. Id., p. 4, 646 So.2d at 322.

Jones acknowledges that, absent a special relationship between the parties (here, UBT and BKM), Louisiana law imposes no affirmative duty upon a party to intervene in the unsafe acts of another, even if that intervention may prevent an accident from occurring, citing Herrington v. BP Products North America, Inc., 2003 WL 21362267 (E.D.La.6/10/03); Ainsworth v. Shell Offshore, Inc. 829 F.2d 548 (5 Cir.1987); Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982); and Strickland v. Ambassador, Insurance Co., 422 So.2d 1207 (La.App. 1st Cir.1982). Further, Jones argues that it is well-settled in Louisiana that a party, such as BKM, can by contract assume a duty to provide for the safety of an individual or a group of individuals which, in the case at bar, would include the plaintiff herein. This assumed duty, he asserts, may include a duty to inspect a work area for safety violations, citing Bujol v. Entergy Services, Inc., 03-1621 (La.App. 1 Cir. 8/14/02), 833 So.2d 947, 971-72, rev’d, 03-0492, 03-0502 (La.5/15/04), adhered to on rehearing (La.1/19/06), and a duty to correct unsafe conditions, citing Bujol, 03-0492, 03-0502, 922 So.2d at 1131; Cooper v. Louisiana Dept. of Public Works, 03-1074 (La.App. 3 Cir. 3/3/04), 870 So.2d 315; Smith v. State through Dept. of Public Safety, 620 So.2d 1172, 1185 (La.App. 1st Cir.1992).

| ^Further, Jones argues BKM employees Landry and Coleman gave no consideration to their own handling of tools and equipment that could drop or fall from the boom that was suspended many feet in the air in an area under which individuals would regular pass. From their own safety standpoint and the standpoint of protecting themselves and BKM from a potential suit for damages if their tools or a part of the machinery upon which they were working fell, barricades and/or other warning would put Jones and others on notice of the overhead work in progress.

In this instance, work was being done at an overhead site beneath which individuals were passing. OSHA regulations assign a duty that we recognized in Gatlin v. Entergy Corp., 04-0034, 04-1368, pp. 5-6 (La.App. 4 Cir. 5/4/05), 904 So.2d 31, 35:

OSHA specifically provides that “Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct.” 29 U.S.C. § 654(b). As the United States Fifth Circuit Court of Appeals has explained:
OSHA requires that all employees, as well as employers, to comply with safety standards and regulations. But the Act only imposes criminal liability on employers for willfully violating such standards or regulations. While employees have a duty to follow OSHA regulations, Congress has chosen not to criminalize employee abdications of that responsibility.
United States v. Shear, 962 F.2d 488, 492 (5th Cir.1992).
In addition, not only are OSHA regulations applicable to employees, violations of OSHA regulations are relevant to establishing the negligence of a party. See Manchack v. Willamette Industries, Inc., 621 So.2d 649, 652 (La.App. 2 Cir. 1993). Louisiana law is clear that “[w]hile statutory violations are not in and of themselves Imdefinitive of civil liability, they may be guidelines for the court in determining standards of negligence by which civil liability is determined.” Smolinski v. Taulli, 276 So.2d 286, 289 (La.1973).

In sum, we find that but for the failure of BKM’s employees to barricade the area beneath the boom or provide any of a number of possible warnings, thereby protecting BKM and its employees from their own direct liability for dropping something from above onto passersby beneath the boom, Jones probably would not have suffered injury from Bennett’s negligence. We find that based upon the facts of this case a duty existed as a matter of law. This creates a genuine issue of material fact that precludes the granting of BKM’s present motion for summary judgment.

VI.

We conclude, therefore, that we are required to reverse the trial court’s judgment dismissing Jones’ claims against BKM because genuine issues of material fact exist precluding summary judgment. We remand this case to the trial court for further proceedings.

REVERSED; REMANDED.

      . This matter is discussed in greater detail infra.

      . We note Bennett asserts that no BKM employee assisted him with any of the boxes. However, whether a BKM employee assisted Bennett is not a material fact to a resolution of the issue before us.


source: Caselaw Access Project

author: MAX N. TOBIAS, JR., Judge.

license: Public Domain

text:
    James and Rebecca WALLACE, Sandra Quillin, George and Dellarene Hodges, Raphael and Dianne Orgeron, Individually and on Behalf of all others Similarly Situated v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION, ANPAC Louisiana Insurance Company, Lafayette Insurance Company, Fireman’s Fund Insurance Company of Louisiana, et al.
    No. 2013-CA-0075.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 21, 2013.

      Roy F. Amedee, Jr., Law Offices of Roy F. Amedee, Jr., New Orleans, LA, Terrence Jude Lestelle, Andrea Suchermann Lestelle, Richard M. Morgan, Lestelle & Lestelle, APLC, Metairie, LA, for Plaintiffs/Appellants.
    Randall L. Kleinman, Keene R. Kelley, Kleinman and Kelley, LLC, New Orleans, LA, for Defendant/Appellee, ANPAC Louisiana Insurance Company.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MAX N. TOBIAS, JR., Judge.

| ;This case began as a putative class action representing an alleged class of Louisiana homeowners’ insurance policyholders in the parishes of Jefferson, Orleans, Plaquemines, St. Bernard, St. Tammany, Terrebonne, and Washington, regarding the scope of the Valued Policy Law, La. R.S. 22:1318, in connection with damages caused by Hurricane Katrina in August 2005. By the time the trial court denied class certification, only AN-PAC Louisiana Insurance Co. (“AN-PAC”) remained as a defendant, while the plaintiff/appellant herein, Dianne Landry (formerly Orgeron), remained the sole plaintiff.

Once the denial of class certification was final, Ms. Landry proceeded with her individual claim. Following a bench trial, the court dismissed her suit, from which she filed this timely appeal. After reviewing the record and the applicable law, we affirm the judgment of the court below.

In July 2001, Ms. Landry and her family moved into a one-story brick house at 7925 Dalton Street, Metairie, Louisiana. Part of the house was an addition built 12by the prior owners. According to Ms. Landry, the house had no structural defects when it was purchased by her and her then-husband. On 29 August 2005, Hurricane Katrina made landfall in southeast Louisiana, causing extensive property damage in the greater New Orleans area. Ms. Landry evacuated to Texas and returned to her Metairie home about 2-1/2 weeks later. The first thing she saw was a tree leaning against the roof of her house. She entered the home and found that the house was soaked with water and cracked. She testified that there were water stains on the ceiling. She estimated that her home had received about four feet of water. None of the documented cracks in the home were seen by Ms. Landry before the storm. All agree that the house was uninhabitable following the storm.

The ANPAC homeowners policy provided dwelling coverage of $155,000; $15,520 for “other structures” coverage; $116,400 for personal property/contents; and $38,800 for loss of use/additional living expenses.

ANPAC first inspected the damaged property within a month after the storm. Michael Petty, an independent claims adjuster, inspected the property and testified at trial. He issued a report on 13 October 2005, and took numerous pictures that were admitted into evidence. ANPAC and its counsel made numerous requests to reinspect the property, but the residence was demolished in August 2006 before a re-inspection could take place and without notice to ANPAC.

Mr. Petty stated that he observed a large tree on the property had fallen and was leaning on the tool shed and suspended over the house by its roots, which were still halfway in the ground. Most of the damage was caused to .the roof of the shed |3in the backyard. Branches landing on the roof resulted in superficial damage to the shingles within a 400 square-foot area. He also found that the wind had taken off about a six-foot span of shingles near the top of the angled roof. Another tree had fallen and damaged the chain link fence. He also inspected the inside of the house, finding a small water stain on the master bedroom ceiling.

Mr. Petty testified that he afforded Ms. Landry the opportunity to make or describe any claims for contents. He also relied on her to point out any additional wind damage he may have missed. Ms. Landry showed him numerous cracks in interior walls and the brick exterior of the house; in his opinion, he saw nothing wind-related with regard to these cracks. He measured the inside water line at 15 inches on a paneled wall surface.

Mr. Petty determined that the total amount of damage for cash value under the policy was $9,036.20. After subtracting the hurricane deductible of $7,760.00, the net paid to Ms. Landry was $1,726.20. Ms. Landry disagreed with Mr. Petty’s appraisal and, on 20 March 2006, requested a second appraisal. Another appraiser was never sent by ANPAC.

After ANPAC failed to respond, Ms. Landry hired Jim Conn of Coastal Construction Services to perform another inspection of the house. At trial, the plaintiff introduced his testimony from the class certification hearing at which the court accepted Mr. Conn as an expert in construction and insurance restoration. He admitted he was not an engineer and was not qualified to determine the amount of damages to Ms. Landry’s house due to any structural problems.

|4Mr. Conn inspected the property on 14 April 2006. He found that there was substantial wind damage to the house resulting in failure of the roofing system. His report, which addressed wind damage only, found that Ms. Landry had a net claim of $53,781.63. While he acknowledged seeing signs of structural damage, he was not qualified to render an opinion on whether the wind during Hurricane Katrina was sufficient to shift a house on its foundation.

Ms. Landry also entered into evidence the testimony of structural engineer, Donald Barnes, from the class certification hearing. Mr. Barnes stated that he was asked to determine whether the Dalton Street house was damaged by the hurricane, the severity of the damage, and if the house was inhabitable. He found the house had sustained significant wind-related damage from the hurricane. There was a separation of several inches in the brick veneer on the back of the house, the windows did not work, and there was a large tree lying on the east side of the roof. He also found significant flood damage in the house; walls were bowed, and he noted severe damage in the attic. In his opinion, the house was uninhabitable in its then-present condition, although he was not qualified to assign a dollar amount to the needed repairs. Under cross examination, Mr. Barnes admitted that the structural damage was in the vicinity of the addition to the house built before it was purchased by the Orgerons.

Ms. Landry testified that she received a letter from the Jefferson Parish Inspection and Code Enforcement Authority (“the Authority”) dated 1 June 2006 signed by Louis Savoye, the Authority’s director. His testimony from the class |ficertification hearing was admitted into evidence. By the letter, Ms. Landry was notified that her house was unsafe and should be demolished. Mr. Savoye stated that an independent engineering firm had inspected the house and found that the Dalton Street house was a “dangerous building” under the Jefferson Code and the engineers recommended that it be “abated by demolition.” Finally, the letter advised Ms. Landry that the house could be demolished with the assistance of FEMA and the Army Corp of Engineers. The letter did not, however, give any opinion regarding the cause of the damage, whether by flood or by wind.

The house was demolished in August 2006.

To support her argument that her house was rendered a total loss by the winds of Hurricane Katrina, Ms. Landry introduced the testimony given by Barry Keim, Ph.D., at the class certification hearing. Dr. Keim served as the official climatologist for the State of Louisiana and was accepted by the court as an expert in the field of climatology. He testified that the weather conditions during the hurricane varied among the parishes in the New Orleans area. At the New Orleans International Airport (which, like the Dalton Street property, is on the east bank of Jefferson Parish), the maximum sustained winds were 61 miles per hour (“m.p.h.”), with peak gusts at 74 m.p.h. He stated that the overall maximum sustained winds over the life of the storm were close to 115 m.p.h., most likely near the mouth of the Mississippi River. The highest recorded wind gusts in the | (¡metropolitan area were 120-123 m.p.h. in Eastern New Orleans; these wind gusts persisted for brief moments. Dr. Keim further testified that no tornados were recorded by the National Weather Service in southeastern Louisiana.

The defense’s expert witness, William Janowsky, a registered professional engineer, was accepted by the court as an expert in forensic and structural engineering. Mr. Janowsky was hired after the Dalton Street house was razed and, thus, based his facts and opinions, in part, on the photographs of the residence. He understood that there were claims that the house had received structural damage due to wind during the hurricane.

The trial court summarized Mr. Janow-sky’s testimony in its reasons for judgment:

Mr. Janowsky testified that based on the photographs, he determined there was limited structural damage due to wind. He explained that structural features of a building are those that hold it up or support it, whereas non-structural features are aesthetic in nature. Mr. Janowsky concluded that the cracks in the house’s brick veneer and concrete floor were consistent with foundation movement, and could not have been caused by wind. He explained that the effects of wind are greatest higher in the atmosphere. Accordingly, wind will cause more damage to the roof than to the lower portions of a building. The photographs showed that there was minimal damage to the roof coverings of the Dalton Street house. Based on the photographs, it appeared to Mr. Janowsky that the toppled tree did not come in contact with the roof; that it was suspended by its roots. The greatest damage was to the lower parts of the house. Mr. Janowsky opined that the damage to the brick veneer and the foundation was not consistent with wind damage. He testified that in the course of his career he has been asked to determine structural damage to buildings in about 5,000 cases. He has never come across an instance where wind was strong enough to knock a house off of its foundation, but left minimal 17damage to the roof. An exception to this would be where a house is built on piers.
Mr. Janowsky testified that he examined the soil at the site of the Dalton Street house. He found that the house was located in an area that was originally a swamp, there was a high instance of subsidence there. In fact, Mr. Janowsky found that some of the houses still standing near the former site of plaintiffs house showed signs of subsidence. He determined that during the life of a structure in that neighborhood, there can be as much as four feet of subsidence. In Mr. Janowsky’s opinion, this was a “textbook case” óf soil subsidence. Mr. Janowsky believed that, aside from the flood waters inside the house, there was no damage that would have made plaintiffs house uninhabitable. Due to soil conditions,

The trial court found that ANPAC had met its burden of proving the damage for which Ms. Landry sought to recover fell under the policy exclusions for water damage and/or settling of the foundation. The trial court was particularly persuaded by Mr. Janowsky’s testimony that the structural damage was due to soil subsidence and not the wind, in light of the fact that the house was built on a drained swamp. The court also noted that the structural problems occurred in the addition that the previous owner had built onto the original structure.

The court was persuaded that the four feet of water that entered Ms. Landry’s house was not wind-blown, but was flood water. As such, all damage was covered by flood insurance, not the homeowner’s policy. Consequently, the trial court ruled in favor of ANPAC and against Ms. Landry.

Ms. Landry has set forth three assignments of error for our review. The first assigned error is that the trial court was manifestly erroneous in relying on Mr. Ja-nowsky’s testimony while ignoring the testimony of Messrs. Barnes and Savoye, Because we find that the trial court was not manifestly erroneous, we discuss only the first assignment; the remaining two are moot. Rand Ms. Landry.

In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly erroneous standard, which precludes the setting aside of a district court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass’n, 02-2660, p. 9 (La.6/27/03), 851 So.2d 1006, 1023, citing Rosell v. ESCO, 549 So.2d 840 (La.1989). Thus, a reviewing court may not find reversible error if it merely decides that it would have found the facts of the case differently. Id. The reviewing court should affirm the district court where the district court’s judgment is not “manifestly erroneous” or “clearly wrong.” Id. at 9-10, 851 So.2d at 1023.

Louisiana law adopts- a two-part test for the reversal of the factfinder’s determinations: (1) the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). “The issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong but whether the factfinder’s conclusion was a reasonable one.” Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact-finder’s, reasonable evaluations of credibility and reasonable | conferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell, 549 So.2d at 844.

We find that the trial court was well within its discretion to rely on the opinion of Mr. Janowsky rather than that of the experts presented by Ms. Landry. While Ms. Landry points out that Mr. Janowsky never saw the actual house, we note that he reviewed numerous photographs and personally examined the lot and surrounding neighborhood to come to his conclusion that the structural damage was caused by soil subsidence and not wind. We find that the trial court considered all the testimony presented as evidenced by it’s lengthy and thoughtful reasons for judgment. Therefore, under our standard of review, because there is evidence in the record that supports the trial court’s findings of fact, they will not be disturbed on appeal.

Because we find that Ms. Landry’s first assignment of error has no merit, we pre-termit discussion of her remaining two assigned errors.

AFFIRMED.

      . At the time of Hurricane Katrina, Ms. Landry was married to Raphael Orgeron, who was also a plaintiff in this lawsuit. Later the couple divorced and Ms. Landry returned to her maiden name. Because Mr. Orgeron was not present at the trial, the court dismissed him from the suit.

      . "FEMA” stands for the Federal Emergency Management Agency.

      . The trial court states in its reasons for judgment that the house was demolished in August 2012, obviously a typographical error.

      . Ms. Landry also alleges that the trial court erred in dismissing Raphael Orgeron as a plaintiff and by failing to address her claims under Louisiana Valued Policy Law, La. R.S. 22:1318.

        . Mr. Janowsky testified in person, while Ms. Landry relied on transcribed testimony from the class certification hearing in 2007, over which the present judge did not preside.


author: MADELEINE M. LANDRIEU, Judge.

text:
    STATE of Louisiana in the Interest of D.F.
    No. 2013-CA-0547.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 21, 2013.

      Leon A. Cannizzaro, Jr., District Attorney, J. Bryant Clark, Jr., Assistant District Attorney, New Orleans, LA, for Ap-pellee/State of Louisiana.
    Tenee Felix, Juvenile Regional Services, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD, Judge MADELEINE M. LANDRIEU).
   MADELEINE M. LANDRIEU, Judge.

|tA petition was filed against D.F. charging him with one count of illegal possession of a handgun by a juvenile, in violation of Louisiana Revised Statute 14:95.8. D.F. filed a motion to suppress evidence. Following a hearing, the court denied the motion. D.F. then entered a Crosby plea to the petition, reserving his right to appeal the denial of the motion to suppress. For the reasons that follow, we affirm the ruling of the juvenile court.

FACTS

N.O.P.D. Officer Troy Pichón was the only witness called to testify during the suppression hearing. He testified that he and his partner were on perimeter patrol of the Bacchus Mardi Gras parade when they were called to the 1700 block of St. Charles Avenue to deliver a summons book to other officers for an incident involving “fighting or something of that nature.” Once at the scene, Officer Pichón observed D.F. and two other individuals walking together in the middle of the street. Officer Pichón made eye contact with D.F. who then split from the other two and walked around a police car instead of walking directly in front of Officer Pi-chon. As D.F. walked around the car, Officer Pichón observed D.F. with his 12hand on the right side of his waistband. D.F. then quickly moved his hand away from his waistband when he noticed that Officer Pichón was watching him.

Officer Pichón testified that, based on his experience with concealed firearm arrests, perpetrators tend to grab their waistbands and that “normal movement tends to dislodge or keep the firearm moving in their waistband[s], so they constantly have to readjust [them] in their waistband[s] to keep [them] from falling....” Officer Pichón further testified that, based on the aforementioned knowledge, D.F.’s movements were consistent with those in prior firearms arrests he had made in the past.

After D.F. walked past the police car, he rejoined the two individuals with whom he had been walking. D.F. then turned his head and noticed that Officer Pichón was still watching him. D.F. whispered to one of his friends, at which point they both turned around and looked at Officer Pi-chon.

Officer Pichón decided to approach the group and observed D.F. to be visibly nervous. As Officer Pichón got closer, he observed a bulge in D.F.’s right waistband and elected to perform a pat-down for a weapon. During the pat-down, Officer Pi-chon felt a hard object on the right side waistband where D.F. had previously held his hand as he was walking around the police car. Officer Pichón testified that the object he felt on the waistband was consistent with a firearm. Officer Pichón advised D.F. of his rights and ordered him to lift his shirt. A handgun was recovered from D.F.’s waistband. D.F. was then arrested and taken to the juvenile bureau for processing.

DISCUSSION

In his sole assignment of error, D.F. contends that the trial court erred in denying the motion to suppress evidence because the arresting officer lacked ^reasonable suspicion and/or probable cause to stop him and conduct a weapons frisk.

Article I, Section 5 of the Louisiana Constitution of 1974 as well as the Fourth Amendment to the United States Constitution protect individuals from unreasonable searches and seizures. State v. Morgan, 2009-2352, p. 4 (La.3/15/11), 59 So.3d 403, 405. Under these provisions, and as a general rule, a search warrant is required to conduct a constitutionally permissible search. Over time, however, the United States Supreme Court has carved out several exceptions to the warrant requirement that justify warrantless searches in limited circumstances. Id., 2009-2352, pp. 5-6, 59 So.3d at 406. At a hearing on a motion to suppress, the State has the burden of proving the admissibility of all evidence seized without a warrant. La.C.Cr.P. art. 703(D). A trial court judgment relative to the suppression of evidence is afforded great weight and only set aside for an abuse of discretion. State v. Hunt, 2009-1589, p. 7 (La.12/1/09), 25 So.3d 746, 752.

A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions. La.C.Cr.P. art. 215.1(A). Reasonable suspicion to justify an investigatory stop must be based on specific, articulable facts from which an officer can rationally infer that past, present or future criminal activity exists. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).

A police officer does not have to observe what he knows to be criminal behavior before investigating. The requirement is that the officer has a reasonable suspicion of criminal activity based on ar-ticulable facts. State v. Benjamin, 97-[3065,4 p. 3 (La.12/1/98), 722 So.2d 988, 989. Reasonable suspicion justifying an investigatory stop is something less than probable cause and is determined under the facts and circumstances of each case, looking to whether the officer had sufficient facts within his knowledge to justify an infringement of a citizen’s right to be free from governmental interference. State v. Vingle, 2001-0840, p. 4 (La.App. 4 Cir. 11/21/01), 802 So.2d 887, 890. Officers are allowed to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51, 151 L.Ed.2d 740 (2002) (citing United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695, 66 L.Ed.2d 621 (1981)).

A reviewing court must take into account the totality of circumstances, giving deference to the inferences and deductions of a trained police officer that “might well elude an untrained person.” Id.; Morgan, 2009-2352, p. 4, 59 So.3d at 406. The officer’s past experience, training, and common sense may be considered in determining if his inferences from the facts at hand were reasonable. State v. Cook, 99-0091, p. 6 (La.App. 4 Cir. 5/5/99), 733 So.2d 1227, 1232. Flight, nervousness, or a startled look at the sight of a police officer may be one of the factors leading to a finding of reasonable cause to stop under Louisiana Code of Criminal Procedure article 215.1. Id., 99-0091, p. 7, 733 So.2d at 1232. Additionally, in evaluating the totality of the circumstances, an individual’s nervous, evasive behavior is also a pertinent factor in determining whether an officer had reasonable suspicion. Morgan, 2009-2352, p. 5, 59 So.3d at 406.

In the present case, D.F.’s argument turns on the reasonableness of the Terry stop. More specifically, the question is whether or not Officer Pichón had sufficient articulable facts to form the reasonable suspicion necessary to justify a | astop of D.F. We find that Officer Pi-chon’s testimony stated sufficient facts to justify the stop.

Officer Pichón specifically stated that, based on his experience with prior firearm arrests, D.F.’s furtive gesture — grabbing at his waist — was consistent with someone attempting to conceal a firearm in his waistband. We recognize that D.F.’s grabbing at his waistband alone may not be sufficient to justify the stop. However, Officer Pichón also testified that D.F. made several furtive movements. D.F. quickly moved his hand away from his waistband when he noticed that Officer Pichón was watching him. D.F. also avoided walking in front of Officer Pichón by splitting from the group of people he was with in order to walk on the opposite side of the police car. D.F. further began whispering to the other individuals when he noticed that he was being watched. When viewed together, all of D.F.’s actions demonstrate sufficient articulable facts from which Officer Pichón could form reasonable suspicion to conduct an investigative stop.

Adding to the totality of circumstances to be considered is the fact that the incident took place during a Mardi Gras parade where there was a large amount of pedestrian foot traffic present. As a public safety issue, firearms are banned from parade routes. As presented through his testimony, Officer Pichón felt that D.F.’s actions were consistent with an individual carrying a firearm in his waistband. Considering that there was a potentially illegally armed juvenile on a parade route with a large amount of foot traffic, Officer Pichón, armed with the aforementioned ar-ticulable facts, clearly had information sufficient to form reasonable suspicion under the circumstances. Accordingly, there is no merit to this assignment of error.

\ ^CONCLUSION

Viewing the totality of the circumstances surrounding the investigatory stop of D.F. which led to the seizure of the evidence, the trial court did not err in denying the motion to suppress. The judgment of the juvenile court is affirmed.

AFFIRMED

      . State v. Crosby, 338 So.2d 584 (La.1976).


author: SANDRA CABRINA JENKINS, Judge. TOBIAS, J.,

text:
    Benjamin CROSBY and Bentex Associates, Inc. v. SAHUQUE REALTY COMPANY, INC., and Latter & Blum Property Management, Inc., ABC Insurance Company and XYZ Insurance Company. Benjamin Crosby and Bentex Associates, Inc. v. Sahuque Realty Company, Inc., Latter & Blum Property Management, ABC Insurance Co. and XYZ Insurance Co.
    Nos. 2012-CA-1537, 2012-CA-1538.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 21, 2013.

      Thomas H. Huval, Stefini W. Salles, Hu-val Veazey Felder & Renegar, L.L.C., Covington, LA, for PlaintiffiAppellant.

      Peter J. Wanek, Lynda A. Tafaro, Kevin P. Kress, Craig J. Canizaro, McCranie Sis-trunk Anzelmo Hardy McDaniel & Welch, PC, Gustave A. Fritchie, III, McDonald G. Provosty, Irwin Fritchie Urquhart & Moore, LLC, New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge MAX N. TOBIAS, JR., Judge ROSEMARY LEDET, Judge SANDRA CABRINA JENKINS).
   SANDRA CABRINA JENKINS, Judge.

| ]This case involves a landlord-tenant dispute over damages to movable property due to water intrusion in leased property. Plaintiffs, Benjamin Crosby and Bentex Associates, Inc., rented three apartments at 708 Orleans Avenue, owned by defendant Sahuque Realty Co., Inc. and managed by defendant Latter & Blum, Inc. (collectively “defendants”). During plaintiffs’ occupancy, from the mid-1990s until June, 2009, plaintiffs experienced water intrusion into the apartments that damaged plaintiffs’ furnishings, draperies, rugs, clothing, and artwork. Plaintiffs filed a petition for damages and argued that the defendants’ failure to properly weatherproof and make necessary repairs to the leased property constituted a continuing tort, because the operating cause of the injury was ongoing and gave rise to successive damages. Defendants argued that plaintiffs’ alleged damages resulted from separate weather-related occurrences of water intrusion into the apartments, rather than from continuous tortious conduct by the defendants. Defendants filed a peremptory exception of prescription alleging that the last water intrusion, during which plaintiffs could have sustained property damages, occurred on August 8, 2008, more than one year before the petition for damages was filed. The trial court granted the exception of prescription and dismissed plaintiffs’ 12property damage claims with prejudice. In further proceedings, the trial court dismissed all remaining claims asserted by plaintiffs against defendants.

Plaintiffs filed this devolutive appeal limited to the trial court’s judgment granting the exception of prescription and dismissing the property damage claims. At the trial on the peremptory exception of prescription no evidence was properly introduced into the record to demonstrate that plaintiffs’ property damage claim prescribed before the petition was filed. Based on the content of the record before this Court, we must conclude that defendants did not meet their burden of proof at the trial of the exception of prescription. For the reasons set forth below, we reverse the trial court’s January 28, 2011 judgment.

FACTS AND PROCEDURAL HISTORY

Benjamin Crosby (“Crosby”) is the sole owner and employee of Bentex Associates, Inc. (“Bentex”) (collectively “plaintiffs”). Between 1995 and 1996, Crosby entered into a lease for two apartments at 708 Orleans Avenue, owned by Sahuque Realty Co., Inc. (“Sahuque”). Several years later, Bentex entered into a lease with Sahuque for a third apartment at 708 Orleans Avenue. Latter & Blum, Inc. became the property management company for that property in June, 2008.

Between 1995 and 2009, plaintiffs experienced water intrusion leaks in all three apartments. Plaintiffs contend that the water intrusion leaks became progressively worse through the years, and resulted in significant water and mold damage to plaintiffs’ furnishings, draperies, rugs, clothes and artwork.

Plaintiffs maintain that they notified Sa-huque and Latter & Blum several times, during plaintiffs’ tenancy, that there was a problem with water intrusion in the apartments and that plaintiffs’ property was being damaged as a result. |sPIaintiffs contend that Sahuque made assurances to plaintiffs that steps would be taken to prevent further water intrusion.

In November, 2008, plaintiff Crosby was diagnosed with a sinus infection, and believing his physical condition was due to mold exposure in the apartments, plaintiffs ceased staying and working in the three apartments at 708 Orleans Avenue. Between December, 2008 and June, 2009, the parties attempted to negotiate terms for a continued lease agreement, including repairs and remediation to the apartments, but the parties failed to come to an agreement. Defendants issued a notice to vacate to plaintiffs in June, 2009, and plaintiffs vacated the apartments.

On October 26, 2009, plaintiffs filed a petition for damages against defendants. Plaintiffs alleged that defendants’ failure to weatherproof the apartments, make necessary repairs, and perform remediation caused damage to plaintiffs’ personal, movable property, for which plaintiffs sought damages. Plaintiffs argued that defendants’ failure to act constituted a continuing tort and led to successive damages that remained unaddressed and unalleviat-ed for the entire period that plaintiffs occupied the apartments.

In October, 2010, each defendant filed a peremptory exception of prescription as to the property damage claims in plaintiffs’ petition. Defendants argued that each water intrusion that caused damage to plaintiffs’ movable property gave rise to a separate property damage claim, subject to its own one-year liberative prescriptive period that commenced on the day the damage was Rsustained. Relying on plaintiffs’ responses to interrogatories and Crosby’s deposition, defendants averred that plaintiffs’ property sustained water damage during separate instances of water intrusion, on at least ten occasions between 1995 and 2005, once in June, 2005, once in October, 2007, and finally in August, 2008. Defendants asserted that plaintiffs’ last potential property damage claim had prescribed in August, 2009, one year after the last water intrusion and two months prior to the filing of plaintiffs’ petition for damages on October 26, 2009.

In opposition to the exception of prescription, plaintiffs maintained that the defendants’ ongoing failure to weatherproof the apartments and prevent further water intrusion was a continuing tort, for which the prescriptive period does not commence until the wrongful conduct causing damages is abated. Plaintiffs argued that defendants’ wrongful conduct continued unabated during the entire period of plaintiffs’ occupancy, which lasted until June, 2009.

At the trial on the peremptory exception of prescription, neither party formally introduced into evidence any supporting exhibits nor presented any arguments. The trial court granted defendants’ peremptory exception of prescription on the plaintiffs’ property damage claims. The trial court stated, “[u]pon review of the petition, case law and Plaintiffs deposition taken in August 2010, the Court finds that the undisputed facts demonstrate that the Plaintiff was aware of his property damage sustained in separate weather intrusions between 1995 and 2005.” The trial court found that the facts demonstrated the last water intrusion and damage occurred in August, 2008, and that the plaintiffs’ property damage claim prescribed in August, 2009. The trial court reasoned that the separate water intrusions provided a multiplicity of causes of action, each of which had a corresponding one-year liberative prescriptive period from the date on which Isplaintiffs acquired, or should have acquired, knowledge of the damage sustained. The trial court also stated that a series of injuries caused by separate wrongful acts does not constitute a continuing tort, which only applies when continuous conduct causes continuing damages. The trial court dismissed plaintiffs’ property damage claims with prejudice.

Plaintiffs filed a motion for new trial or, alternatively, for leave to amend the petition to set forth facts in support of a contra non valentum defense to prescription. In denying the motion, the trial court noted again its rejection of plaintiffs’ continuing tort argument and quoted the Louisiana Supreme Court case, Hogg v. Chevron USA, Inc., as follows: “the breach of a duty to right an initial wrong simply cannot be a continuous wrong that suspends the running of prescription, as that is the purpose of every lawsuit and the obligation of every tortfeasor.” 09-2632, p. 23 (La.7/6/10), 45 So.3d 991, 1007.

Subsequently, defendants filed motions for summary judgment on all claims asserted by plaintiffs in this matter, and the trial court granted the defendants’ motions for summary judgment dismissing all of plaintiffs’ remaining claims with prejudice. This devolutive appeal, filed by plaintiffs, followed.

DISCUSSION

In their one assignment of error, plaintiffs assert that the trial court erred in granting defendants’ peremptory exception of prescription. The only issue presented to this court for review is whether defendants’ failure to weatherproof |Bthe plaintiffs’ leased apartments constitutes a continuing tort, subject to a different prescriptive period, for which the damage claims have not prescribed. First, we must address the standard of appellate court review on a peremptory exception of prescription.

Exception of Prescription

Delictual actions are subject to a one-year liberative prescriptive period, which commences to run on the day the damage or injury is sustained. La. C.C. art. 3492. The party pleading an exception of prescription bears the burden of proving that the claim has prescribed on its face. Coston v. Seo, 2012-0216, p. 7 (La.App. 4 Cir. 8/15/12), 99 So.3d 83, 88. If the claim is prescribed on its face, then the burden shifts to the plaintiff to demonstrate that prescription was suspended or interrupted. Id.

On the trial of the peremptory-exception of prescription, evidence may be introduced to support or controvert any of the objections pleaded. La. C.C.P. art. 931. When evidence is introduced into the record and evaluated by the trial court at the trial of a peremptory exception, then the appellate court should not disturb the factual findings of the trial court absent manifest error. Coston, p. 8, 99 So.3d at 88. The appellate court is a court of record, and the court may not review evidence that was not properly introduced into the record. See La. C.C.P. art. 2164; Denoux v. Vessel Management Services, Inc., 07-2143, p. 6 (La.5/21/08), 983 So.2d 84, 88. “Evidence not properly and officially offered and introduced cannot be considered, even if it is physically placed in the record.” Denoux, p. 6, 983 So.2d at 88. In the absence of evidence, the exception of prescription must be decided on the facts alleged in the petition, which are accepted as true. Id. (citing Cichirillo v. Avondale Industries, Inc., 04-2894, 04-2918, p. 5 (La.11/29/05), 917 So.2d 424, 428).

Finally, we note that under Louisiana jurisprudence, prescriptive statutes are to be strictly construed in favor of the obligation sought to be extinguished, thereby allowing a plaintiff to proceed with the enforcement of a claim. Bustamento v. Tucker, 607 So.2d 532, 537 (La.1992); Coston, p. 8, 99 So.3d at 88.

The first issue we must consider regarding the exception of prescription is whether it is evident on the face of the petition that plaintiffs’ property damage claim has prescribed. A review of the petition reveals that plaintiffs alleged defendants’ wrongful conduct constituted a continuing tort. More specifically, plaintiffs alleged that defendants’ ongoing failure to weatherproof the apartments and perform mold remediation during the entire period of plaintiffs’ occupancy of the apartments caused continuous damages to plaintiffs’ personal property. Rather than allege any specific instances or examples of the wrongful conduct or sustained damages, plaintiffs maintained that defendants’ wrongful conduct and the resulting damages were ongoing from the mid-1990s, when plaintiffs originally leased the apartments, until June, 2009, when plaintiffs vacated the apartments. Plaintiffs’ petition for damages was filed on October 26, 2009. Based on the allegations in the petition, plaintiffs’ property damage claim was not prescribed at the time the petition was filed.

When defendants filed their peremptory exception of prescription, defendants submitted, attached to the memorandum as Exhibit A, plaintiffs’ responses to interrogatories and the deposition transcript of Benjamin Crosby. The factual background portion of defendants’ memorandum in support of the exception of prescription relies heavily on the information gathered by defendants 1 sduring discovery. Relying on plaintiffs’ responses to interrogatories and plaintiff Crosby’s deposition, defendants argued that plaintiffs’ property damages were sustained during separate, distinct weather-related water intrusions, the last of which occurred in August, 2008.

At the trial on the peremptory exception of prescription, the trial court asked if either party had anything to add to their memoranda, but neither party offered and introduced any supporting evidence, and neither party presented testimony or argument. The parties submitted the issue of prescription on their memoranda.

The transcript of the trial on the exception of prescription indicates that the trial court relied on the deposition testimony of plaintiff Crosby, which was not properly in evidence before the trial court. Exhibits attached to memoranda, but not filed into the record as evidence, cannot be considered as evidence on appeal. Coston, p. 10, 99 So.3d at 89 (citing In re Helm, 11-0500, p. 5 (La.App. 4 Cir. 11/2/11) 84 So.3d 601, 605); Denoux, p. 6, 983 So.2d at 88. No evidence was properly introduced into the record before us to demonstrate that plaintiffs’ property damage claim prescribed before the petition was filed. Based on the content of the record before us, we must conclude that defendants did not meet their burden of proof at the trial of the exception of prescription. Thus, we must reverse the trial court’s January 28, 2011 judgment, which granted the defendants’ exception of prescription and dismissed plaintiffs’ property damage claim with prejudice.

DECREE

For the reasons stated above, the trial court’s judgment granting defendants’ peremptory exception of prescription on plaintiffs’ property damage claims is | ¡¡reversed. This matter is remanded to the trial court for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

TOBIAS, J., Concurs and Assigns Reasons.

TOBIAS, J.,

Concurs and Assigns Reasons.

1,1 respectfully concur in the decision of the majority.

The plaintiffs’ petition is drawn so as to imply that the plaintiff, Mr. Crosby, did not know until 12 November 2008 of the damages sustained by Bentex and himself. Thus, on the face of the petition filed on 26 October 2009, the plaintiffs’ claims were not prescribed and at the hearing of the exception of prescription, the burden remained with the defendants to prove that liberative prescription had accrued.

La. C.C.P. art 852 states in part: “The pleadings allowed in civil actions, whether in a principal or incidental action, shall be in writing and shall consist of petitions, exceptions, written motions, and answers.” [Emphasis added.] La. C.C.P. art. 854 states in pertinent part: “A copy of any written instrument which is an exhibit to a pleading is part thereof for all purposes.” [Emphasis added.]

1 ¡.Specifically, Sahuque’s exception of prescription states that Sahuque “submits the following Peremptory Exception of Prescription and Memorandum in Support.” Latter & Blum’s exception states the same. The question becomes whether the exhibits upon which the trial court relied to render judgment in favor of the exceptors were attached to the exception (a pleading under article 852) or to the memorandum (which is not a pleading). Our jurisprudence clearly states, as the majority correctly notes, that attachments to a memorandum are not evidence unless formally introduced into evidence at the appropriate trial.

From the original record before us, one cannot determine whether the exception was physically attached to the memorandum and exhibits; whether the exception, memorandum, and attachments were all formally attached to one another; or whether the exhibits were attached to the exception, and the memorandum was submitted separately. The date-clocking stamps of the clerk of the district court show that the exception and the memorandum were clocked separately and both at 10:37 a.m., thereby implying that the exhibits (which appear in the record on appeal following the memorandum) were not attached to one another. The burden was upon the parties to correctly designate the record on appeal. La. C.C.P. art. 2128. All of this could have been avoided if, at the hearing on the exception, the exceptors (or, for that matter, the plaintiffs) formally introduced the exhibits that were attached to either the exception or memorandum; this they did not do.

Although we are being very technical in our analysis of this case, we note that similar problems have arisen in the past regarding motions for summary judgment, to-wit, what was and was not to be considered by the court. The legislature resolved the problem by amending La. C.C.P. art. 966 by adding paragraph E(2), which now requires a party to formally introduce at the hearing on lathe motion for summary judgment the exhibits attached and which the court-is to consider.

I find that requiring parties to pay attention to details is warranted.

      . The petition also alleged defendants’ failure to remediate the mold caused personal injury to plaintiff Crosby for which he sought medical expenses and damages.

      . Sahuque filed a peremptory exception of prescription on October 7, 2010, and Latter & Blum filed an exception of prescription on October 29, 2010. Latter & Blum adopted the facts, law and argument set forth in Sa-huque's memorandum in support of the exception.

      . On June 23, 2010, plaintiffs filed a second petition for damages arising out of wrongful eviction in a separate suit against the same defendants. Upon a motion to consolidate filed by defendant Sahuque, the trial court consolidated the two suits for damages. Defendants each filed motions for summary judgment on the claim for wrongful eviction, in June and July, 2011, respectively, which were granted by the trial court. On March 16, 2012, the trial court granted unopposed motions for summary judgment in favor of defendants on the final remaining claims for bodily injury asserted by plaintiffs.

      . Plaintiffs' motion for devolutive appeal listed three separate judgments from which plaintiffs were appealing, but plaintiffs limited their appeal to the January 28, 2011 judgment granting defendants' exception of prescription.


author: CARLTON, J.,

text:
    J.C. HIGGINBOTHAM, Appellant v. STATE of Mississippi, Appellee.
    No. 2012-CP-00204-COA.
    Court of Appeals of Mississippi.
    Feb. 26, 2013.
    Rehearing Denied July 23, 2013.
    Certiorari Denied Oct. 10, 2013.

      J.C. Higginbotham, appellant, pro se.
    Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.
    Before GRIFFIS, P.J., CARLTON, MAXWELL and FAIR, JJ.
   CARLTON, J.,

for the Court:

¶ 1. J.C. Higginbotham appeals the Winston County Circuit Court’s denial of his motion for post-conviction relief (PCR). Higginbotham raises the following issues: whether (1) he received effective assistance of counsel; (2) the circuit court erred by not granting a competency hearing; (3) he knowingly, voluntarily, and intelligently entered a guilty plea; (4) he gave an involuntary confession in violation of his constitutional rights; (5) the circuit court erred by denying his claim without an evidentia-ry hearing; and (6) he was denied due process of law when the circuit court refused to provide him a transcript of his guilty-plea hearing and other records for the filing of his PCR motion as well as all materials requested for this appeal. Finding no error, we affirm.

FACTS

¶ 2. In March 2008, a grand jury before the Winston County Circuit Court indicted Higginbotham for one count of capital murder under Mississippi Code Annotated section 97 — 3—19(2)(d) (Rev.2006) and for one count of armed robbery under Mississippi Code Annotated section 97-3-79 (Rev.2006). On May 1, 2009, Higginbotham entered a guilty plea to capital murder. Thereafter, on December 1, 2009, the circuit court sentenced Higginbotham to life without parole in the custody of the Mississippi Department of Corrections (MDOC). Upon motion of the State, and based upon Higginbotham’s guilty plea to capital murder in count one, the circuit court dismissed count two, the charge of armed robbery.

¶ 3. On November 14, 2011, Higginbotham filed a request for his plea transcript and other records, which was denied. Shortly thereafter, on November 22, 2011, Higginbotham filed his PCR motion, which the trial court also denied. The record shows that after filing his PCR motion, Higginbotham was granted in for-ma pauperis status and given a copy of his plea colloquy, plea petition, exhibits attached to his PCR motion, his motion for discovery, and the order denying the motion for discovery.

¶ 4. Higginbotham now appeals.

STANDARD OF REVIEW

¶ 5. “When reviewing a circuit court’s denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are ‘clearly erroneous’; however, we review the circuit court’s legal conclusions under a de novo standard of review.” Boyd v. State, 65 So.3d 358, 360 (If 10) (Miss.Ct.App.2011).

DISCUSSION

I. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 6. Higginbotham first contends that he received ineffective assistance of counsel. Higginbotham alleges that his trial counsel lacked diligence in investigating his history of mental retardation, and he suggests that his trial counsel had an obligation to request a competency hearing. Higginbotham also alleges that his attorney, and the trial court, improperly induced him into entering his guilty plea.

¶ 7. In order to succeed on an ineffective-assistance-of-counsel claim, Higginbotham must prove that his counsel rendered ineffective performance, which prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The record shows that the trial court found that Higginbotham testified at his plea hearing that he was satisfied with his trial counsel’s legal services and advice and that he understood his plea of guilty. Higginbotham’s plea colloquy indicates that his trial counsel did not exert any pressure on him to plead guilty, and that his decision to plead guilty was his own voluntary act. The trial court’s order denying post-conviction relief further reflects that the trial court inquired of defense counsel as to whether he was satisfied that Higginbotham possessed the mental capacity to comprehend, understand, and waive his constitutional rights in pleading guilty. The trial court also provided that it had reviewed Higginbotham’s petition to plead guilty, and his counsel also affirmed the physical and mental capacity of Higginbotham. The trial court cited to Henderson v. State, 89 So.3d 598 (Miss.Ct.App.2011), in finding that Higginbotham failed to submit sufficient evidence to support his asserted claim of incompetency. The trial court also found that, in addition to failing to provide sufficient evidence to support his bare assertion of incompetency to stand trial, the record contradicts Higginbotham’s claims of coercion.

¶ 8. Upon review, we find Higginbotham failed to present sufficient evidence on appeal to place his competency to stand trial in question to support approval by the circuit court of a request for a mental evaluation. Higginbotham, therefore, failed to present sufficient evidence that the outcome of the case would have been different had his trial counsel requested a mental evaluation prior to the entry of his guilty plea. Accordingly, we find Higginbotham failed to meet the first prong of Strickland by failing to show his trial counsel’s deficient performance in failing to request a competency hearing, and he failed to meet the second prong of Strickland in failing to show prejudice. This issue is without merit.

II. COMPETENCY HEARING

¶ 9. Higginbotham argues that the circuit court erred by failing to order a competency hearing prior to his guilty plea and prior to the denial of his PCR motion.

¶ 10. Uniform Rule of Circuit and County Court 9.06 states in part: “If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination.... ” The record shows that neither Higginbotham nor his defense counsel at trial asserted a request for a competency hearing before the trial court. The record reflects that Higginbotham displayed competency to stand trial and displayed in his plea colloquy by his responses to the trial court that his guilty plea was voluntary, knowing, and intelligent.

¶ 11. Higginbotham’s plea colloquy shows that the circuit court specifically questioned both Higginbotham and his trial counsel as to Higginbotham’s mental capacity. The circuit court questioned whether Higginbotham suffered from any disabilities of the mind and whether he had the mental capacity to comprehend, understand, and waive his constitutional rights. See Vanwey v. State, 55 So.3d 1133, 1136 (¶ 6) (Miss.Ct.App.2011); Lokos v. Capps, 625 F.2d 1258, 1264-69 (5th Cir.1980). The record shows that Higginbotham’s counsel indicated during the plea colloquy that he had read the plea petition to his client and that Higginbotham understood the consequences of pleading guilty to the charge. See, e.g., Harden v. State, 59 So.3d 594, 601-03 (¶¶ 14-19) (Miss.2011).

¶ 12. In Hearn v. State, 3 So.3d 722, 728 (¶¶ 14-15) (Miss.2008), the Mississippi Supreme Court addressed the test for competency to stand trial. In order to be deemed competent to stand trial, a defendant must be one:

(1) who is able to perceive and understand the nature of the proceedings; (2) who is able to rationally communicate with his attorney about the case; (3) who is able to recall relevant facts; (4) who is able to testify in his own defense if appropriate; and (5) whose ability to satisfy the foregoing criteria is commensurate with the severity of the case.

The United States Supreme Court had defined the competency standard to stand trial as being “whether a defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as factual understanding of the proceedings against him.” Id. (citation omitted). Additionally, in Billiot v. State, 655 So.2d 1, 11 (Miss.1995), the supreme court recognized its previous holding that

[w]hen the trial court has made a finding that the evidence does not show a probability that the defendant is incapable of making a rational defense, we will not overturn that finding unless we can say, from the evidence, that the finding was manifestly against the overwhelming weight of the evidence. The evidence must show more than a possibility that defendant is incompetent to stand trial — the evidence must go further until it appears to the trial court that there is a probability that defendant is incapable of making a rational defense. In this initial inquiry, the trial judge must weigh the evidence and be the trier of facts.

¶ 13. In Knox v. State, 901 So.2d 1257, 1266 (¶¶ 30-31) (Miss.2005), a similar case to the case at bar, the supreme court denied a petition for post-conviction relief where the appellant asserted that he lacked the requisite competency to stand trial based upon a head injury, as reflected in his attempt to gain Social Security disability benefits. The Knox court found that this evidence failed to show that the appellant was incompetent to stand trial, and, therefore, the appellant failed to present sufficient evidence for relief on the basis of lacking competency to stand trial. Id. at (¶ 30). The Knox court explained that the appellant failed to present any affidavits from a physician or other mental health professional, or other medical evidence showing he was insane or incompetent to stand trial. Id.; see Prater v. State, 18 So.3d 884, 894-95 (¶¶ 37-39) (Miss.Ct.App.2009) (mildly retarded defendant found competent to stand trial).

¶ 14. Higginbotham bears the burden of proof to show by substantial evidence that his competency to stand trial is in question. See Vanwey, 55 So.3d at 1136 (¶ 6). As acknowledged above, we will not overturn the trial court’s decision to deny relief unless the decision is against the overwhelming weight of the evidence. See Billiot, 655 So.2d at 11. Keeping this standard in mind, we find no abuse of discretion in the trial court’s determination that Higginbotham failed to present sufficient grounds to bring his competency reasonably in question, and thus failed to make the required showing that he lacked the requisite competency to enter a valid guilty plea. See Vanwey, 55 So.3d at 1136 (¶ 6) (providing guidance as to when a defendant must undergo a mental evaluation prior to standing trial or entering a guilty plea). Upon review of the record, we further find no abuse of discretion in the trial court’s determination that Higginbotham entered a voluntary, knowing, and intelligent guilty plea. See Richardson v. State, 767 So.2d 195, 203 (¶ 41) (Miss.2000) (“[OJnce the trial court has made a finding that the evidence does not show a probability that the defendant is incapable of making a rational defense, the decision will not be overturned unless the finding was manifestly against the overwhelming weight of the evidence.”). This issue is without merit.

III. VALID GUILTY PLEA

¶ 15. Higginbotham also contends that he failed to enter a knowing and voluntary guilty plea due to his trial counsel’s failure to investigate his mental capacity and advise him that even if he were convicted of capital murder, he would not be sentenced to death, because of his mental retardation. Higginbotham also claims that his plea was coerced, and that his trial counsel and the trial court misrepresented the sentences available to him. When considering whether a plea is entered freely and voluntarily, this Court looks to see if “the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.” Kelley v. State, 913 So.2d 379, 382 (¶ 5) (Miss.Ct.App.2005) (citation omitted). “Specifically, the defendant must be told ‘that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination.’ ” Id. (citation omitted).

¶ 16. The colloquy from the plea hearing shows that the circuit judge fully questioned Higginbotham on his understanding of the charge against him and his knowledge of the consequences of pleading guilty. Higginbotham indicated that he understood the charge and sentences available and, as a result, pled guilty with full knowledge of the consequences of his guilty plea. The record shows that Higginbotham indicated that he received no force or pressure to enter his guilty plea. The record clearly shows Higginbotham’s advisement of the factual basis for the charge, the maximum sentence he could face, and what he waived in entering his guilty plea. The plea colloquy also reflects that the trial judge advised Higginbotham that he understood that the State was going to recommend a sentence of life without parole if he cooperated with the State. The trial court specifically addressed Higginbotham’s claim of mental retardation and competency in his order denying the PCR motion, which states:

This court has reviewed the transcript of Higginbotham’s guilty plea proceedings, as well as his Petition to Enter Plea of Guilty. Higginbotham testified under oath that he did not have any mental disabilities that would affect his ability to understand the criminal proceedings that were being conducted. He stated the same thing under oath in the Petition to Enter Plea of Guilty. This court had an opportunity to observe Higginbotham during the plea proceedings and has read his responses to this court’s questioning of him during those proceedings. There is nothing from those proceedings that would suggest or in any way indicate that Higginbotham was not mentally competent to enter a guilty plea.

See Patton v. State, 96 So.3d 790, 792-93 (¶ 7) (Miss.Ct.App.2012); Vanwey, 55 So.3d at 1136 (¶ 6) (“The movant bears the burden of proof to demonstrate by sub^ stantial evidence that the defendant is mentally incompetent to stand trial.”). Based on the foregoing, we find that this issue is without merit.

IV. CONFESSION

¶ 17. Higginbotham argues that law-enforcement agents coerced him into making a confession by using threats of physical violence. We recognize, however, that “a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.” Swindoll v. State, 859 So.2d 1063, 1065 (¶ 6) (Miss.Ct.App.2003). When Higginbotham entered a valid guilty plea, he explicitly waived any right to suppress the allegedly coerced confession. This issue is without merit.

V. EVIDENTIARY HEARING

¶ 18. Higginbotham argues that the circuit court erred in denying his PCR motion without first conducting an eviden-tiary hearing. Mississippi Code Annotated section 99-39-11(2) (Supp.2012) provides that a circuit court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]” The circuit court’s denial of Higginbotham’s PCR motion is consistent with the evidence and testimony presented in the record. It follows that we find that this issue is without merit.

YI. WITHHOLDING OF RECORDS

¶ 19. Higginbotham argues that the trial court erred by denying his request for a copy of the transcript and for other records in order to draft his PCR motion and his appellate brief. The appellate record shows that after Higginbotham filed his PCR motion, he was granted in forma pauperis status and provided his plea petition, exhibits attached to his PCR motion, the motion for discovery, and the order denying the motion for discovery. The appellate record also includes Higginbotham’s guilty-plea transcript. We will briefly review the procedural history of his request for records.

¶ 20. On November 14, 2011, Higginbotham filed a “Motion for all Pertinent Records, Documents, and Especially Plea Hearing Transcript,” which the trial court denied, finding that Higginbotham failed to demonstrate a specific need and offered no good cause as to why he needed or was entitled to a free copy of the requested documents. Higginbotham then filed his PCR motion on November 22, 2011, which was also denied. After the trial court’s denial of his PCR motion, the trial court entered an order on February 7, 2012, allowing Higginbotham to proceed on appeal in forma pauperis. Then, on March 8, 2012, the trial court entered an order that granted in part and denied in part Higginbotham’s motion to supplement the appellate record with certain documents. On April 13, 2012, Higginbotham filed a “Motion to Supplement Record” with this Court, which we dismissed as moot since the record had been supplemented with certified copies as directed by the trial court. We further noted that the supplemental- record was filed with this Court and made available to Higginbotham.

¶ 21. “When a defendant pleads guilty, he bypasses the right to a direct appeal, and he forfeits the right to a free transcript.” Evans v. State, 61 So.3d 922, 926 (¶ 17) (Miss.Ct.App.2011) (citation omitted). “To obtain a free copy of a guilty-plea transcript, a movant has the burden of proving that he has been prejudiced on appeal by not having prior access to such transcript.” Id. “This prejudice can be proven by showing specific need or proving that the transcript was necessary to decide a specific issue.” Id. Because Higginbotham failed to demonstrate a specific need for his request or that the transcript was necessary to decide a specific issue, “the State was not required to furnish a free copy of the transcript from the guilty-plea hearing.” Id. at 927 (¶ 17). Accordingly, we find no merit to this issue.

¶ 22. THE JUDGMENT OF THE WINSTON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WINSTON COUNTY.

LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, MAXWELL, FAIR AND JAMES, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

      . The record shows that Higginbotham's trial counsel was court appointed.

      . See, e.g., Knox v. State, 901 So.2d 1257, 1266 (¶¶ 30-31) (Miss.2005).

      . See Martin v. State, 871 So.2d 693, 697-98 (¶ 17) (Miss.2004) ("The standard for competence to stand trial is whether the defendant has ‘sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and ‘has a rational as well as factual understanding of the proceedings against him.’ ”); Vanwey v. State, 55 So.3d 1133, 1136 (¶ 6) (Miss.Ct.App.2011) (recognizing that the ultimate decision as to whether defendants must undergo mental evaluations rests with the trial court).

      . See James v. State, 86 So.3d 286, 291 (¶ 17) (Miss.Ct.App.2012) (discussing the test for competency as previously established by the Mississippi Supreme Court): Henderson, 89 So.3d at 603 (¶ 23).

      . See also Staten v. State, 989 So.2d 938, 946 (¶ 18) (Miss.Ct.App.2008); Kelley v. State, 913 So.2d 379, 382 (¶ 5) (Miss.Ct.App.2005).

      . See Knox, 901 So.2d at 1266 (¶ 30) (discussing sufficiency of evidence required to raise question of lack of competency to stand trial in acknowledging the absence of any affidavits from a physician or mental health professional, or other medical evidence showing incompetency).

      . See Harden, 59 So.3d at 601-03 (¶¶ 14-19); Knox, 901 So.2d at 1266 (¶ 30).

      . As stated, the trial court found that Higginbotham’s plea petition, the exhibits attached to his PCR motion, the motion for discovery, and the order denying the motion for discovery should be included in the appellate record. The court, however, found that the docket sheet from Higginbotham's criminal case, the plea petitions of co-defendants, and the motions filed by counsel prior to sentencing should not be included in the appellate record, since these items were not considered by the trial court when ruling on the PCR motion. Additionally, the trial court stated that no pre-sentence investigation existed to include in the appellate record.


author: LEE, C.J., CARLTON, J.,

text:
    Diana Lynn Carter LARSON, Appellant v. Mark Alan LARSON, Appellee.
    No. 2011-CA-00305-COA.
    Court of Appeals of Mississippi.
    March 19, 2013.
    Rehearing Denied July 23, 2013.
    Certiorari Denied Oct. 10, 2013.

      James Roger Franks Jr., Jerry Wesley Hisaw, Southaven, William Rufus Wheeler Jr., attorneys for appellant.

      Thomas Alan Womble, Batesville, attorney for appellee.
    Before LEE, C.J., ISHEE and ROBERTS, JJ.
   LEE, C.J.,

for the Court:

¶ 1. Mark Alan Larson and Diana Lynn Carter Larson were married in February 1992. They separated in September 2008, and were granted a divorce in January 2011. Mark was granted a divorce on the ground of adultery. The chancellor awarded Mark custody of the couple’s minor son, Alan. Diana was awarded lump-sum alimony and an interest in certain marital property.

¶ 2. Diana appeals, asserting the following issues: (1) the chancellor erred in granting Mark a divorce on the ground of adultery; (2) the chancellor erred in classifying and dividing the marital estate; (3) the chancellor erred in not awarding permanent or rehabilitative alimony; and (4) the chancellor erred in not awarding her attorneys’ fees. Pertinent facts will be discussed as they relate to each issue.

STANDARD OF REVIEW

¶ 3. We afford chancellors much discretion in our review of domestic-relations cases. Steiner v. Steiner, 788 So.2d 771, 777 (¶ 18) (Miss.2001). This Court will not disturb a chancellor’s findings unless they are manifestly wrong or clearly erroneous, or the chancellor applied an erroneous legal standard. Mizell v. Mizell, 708 So.2d 55, 59 (¶ 13) (Miss.1998).

DISCUSSION

I. ADULTERY

¶ 4. In her first issue on appeal, Diana argues the chancellor erred in granting Mark a divorce on the ground of adultery. To prove adultery, the plaintiff “must show by clear and convincing evidence both an adulterous inclination and a reasonable opportunity to satisfy that inclination.” Atkinson v. Atkinson, 11 So.3d 172, 177 (¶ 20) (Miss.Ct.App.2009) (citation omitted). Adultery may be proven by either direct evidence or, because of the inherently secretive nature of the conduct, circumstantial evidence. Dillon v. Dillon, 498 So.2d 328, 330 (Miss.1986). Establishing an “adulterous inclination” requires proof of either the defendant’s infatuation with a particular person or general adulterous propensity. Lister v. Lister, 981 So.2d 340, 344 (¶23) (Miss.Ct.App.2008). The chancellor must set forth specific findings of fact and conclusions of law with regard to an allegation of adultery. Reynolds v. Reynolds, 755 So.2d 467, 469 (¶ 7) (Miss.Ct.App.1999).

¶ 5. The chancellor made specific findings regarding Diana’s adultery. Diana admitted under oath during a temporary hearing on September 26, 2008, that she engaged in sexual intercourse with Matt Lyle. Diana claims that this admission was actually a typographical error in the transcript, but the chancellor found this claim to be not credible. There was testimony that the security password to Diana’s cellular phone was Lyle’s birthday. There was further testimony regarding a trip to Chicago without Mark’s knowledge, and there were photographs of Diana and Lyle at dinner. Mark and Diana’s housekeeper, Ethel Clark, testified that she overheard a phone conversation between Diana and Lyle’s wife where Lyle’s wife asked Diana to cease contacting Lyle. Although not stated by the chancellor, there was also evidence of Diana’s relationships with other men besides Lyle. Clark testified Diana spoke to her of sexual acts she performed numerous times upon another man named Shot Bright. Diana admitted to having a relationship with another man but stated she was not having “physical sex” with him.

¶ 6. The chancellor found that Diana evidenced an adulterous inclination and had reasonable opportunities to satisfy her inclination. The record supports the chancellor’s findings. This issue is without merit.

II. CLASSIFICATION AND DIVISION OF MARITAL ESTATE

¶ 7. In her second issue on appeal, Diana contends the chancellor erred in classifying Mark’s grocery stores as his separate property and, thus, non-marital property. In 1989, Mark’s father gifted him one-half ownership in a grocery store in Water Valley, Mississippi, and one-third ownership in a grocery store in Oxford, Mississippi, with no consideration paid by Mark. The transfer of ownership was through a bill of sale dated March 5, 1989, three years before Mark and Diana were married. These grocery stores had been owned by Mark’s family for several decades.

¶ 8. The first step in property distribution as a result of divorce is to classify the property as either marital property or non-marital property based on Hemsley v. Hemsley, 639 So.2d 909, 915 (Miss.1994), in which the Mississippi Supreme Court defined marital property for divorce proceedings as “any and all property acquired or accumulated during the marriage.” Hemsley excludes from this definition assets “attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Id. at 914. This includes property obtained by a spouse through gift or inheritance. Johnson v. Johnson, 650 So.2d 1281, 1286 n. 2 (Miss.1994). However, separate property that has been “commingled with the joint marital estate” also becomes marital property subject to equitable distribution. Id. at 1286.

¶ 9. Furthermore, if any income or appreciation resulted from either spouse’s active efforts, then that income or appreciation becomes part of the marital estate. See Craft v. Craft, 825 So.2d 605, 609 (¶ 14) (Miss.2002). Appreciation that is merely passive and not a result of either spouse’s active efforts remains separate property. See Craft, 825 So.2d at 609 (¶ 14). We must also presume that spousal efforts “whether economic, domestic or otherwise are of equal value.” Hemsley, 639 So.2d at 915.

¶ 10. The chancellor determined that any contribution to these two grocery stores by Diana was minimal at best, and there was no increase in value during the marriage that was attributable to Diana. There was testimony that Diana worked occasionally at one of the family grocery stores in the floral department. However, this particular store had been acquired separately by Mark and closed in 2002. There was also testimony Diana refused to sign a personal guaranty required of all family members to do business with a grocery wholesaler. The chancellor found the interest in the two grocery stores to be Mark’s separate property and not subject to equitable distribution. We agree with the chancellor’s determination. Despite her assertions to the contrary, Diana did not actively participate in the business, did not participate in business decisions, and did not invest or contribute money to its ongoing operations.

¶ 11. After determining that the interest in the two grocery stores was non-marital property, the chancellor then proceeded with the equitable division of the property using the factors set forth in Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss.1994). These factors are:

1. Substantial contribution to the accumulation of the property. Factors to be considered to determine contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
' c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets;
2. The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise;
3. The market value and the emotional value of the assets subject to distribution;
4. The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
5. Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
6. The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
7. The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and
8.Any other factor which in equity should be considered.

Id. The chancellor analyzed each factor in determining how to divide the marital estate. The chancellor determined that Mark made the substantial contribution to the accumulation of the property and managed the household. In 2006, Mark paid for Diana to live in West Palm Beach, Florida, for several years under the guise of working in real estate. Diana lived an elaborate lifestyle while there but only earned $500 during the duration of her stay. There was testimony that Diana was, as the chancellor phrased it, “a continuous drain on marital assets” due to her extravagant lifestyle and sizeable gambling debts. There was also testimony that Diana prevented their condominium in Des-tín, Florida, from being rented, which was the reason the condominium was purchased in 2002.

¶ 12. The chancellor awarded Mark the following: the marital home, valued at $285,000 with a mortgage balance of $106, 500 and a second mortgage of $150,000; one-half the value of a Quiznos in Oxford, Mississippi, which was valued at $57,440.62; and two cars in his possession as well as debts associated them. Mark was further ordered to be responsible for the mortgages on the marital home as well as various other substantial debts. Diana was awarded $80,000 as her equity in the marital home; her IRA account; $25,000 for her one-half interest in the Quiznos; the car in her possession; her furs and jewelry; an annuity; and the condominium in Destín. The condominium had a mortgage balance of approximately $574,000. Based on her knowledge of the Florida real estate market, Diana testified the condominium was valued at $1,000,000. The chancellor stated that he awarded the condominium to Diana under the sixth Ferguson factor: “The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties.” The chancellor did order Diana to refinance the condominium in her name or sell it within six months, or it would become Mark’s property. Diana was ordered to be responsible for the mortgage and homeowner’s fees on the condominium as well as various other substantial debts.

¶ 13.' The chancellor considered all the applicable Ferguson factors in assessing and dividing the marital property. Although the chancellor discussed his reasons for dividing the majority of the marital state, we are unclear as to his decision to award Diana $80,000 in equity on the marital home when the two mortgages on the home added up to $256,500 and the marital home was valued at $285,000. Since we are reversing and remanding for the chancellor to make an on-the-record analysis regarding alimony as discussed below, the chancellor should also set forth his reasons for awarding that much equity in the house to Diana when the record does not support it. If necessary, the chancellor may need to make adjustments to his equitable-distribution award.

III. ALIMONY

¶ 14. In her third issue on appeal, Diana argues the chancellor erred in not awarding her permanent or rehabilitative alimony. Specifically, Diana contends the chancellor failed to make an on-the-record analysis of the factors enumerated in Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993). In the judgment of divorce, the chancellor simply says: “In regard to alimony, the Court finds that under the factors set out in Armstrong v. Armstrong, ... no periodic monthly alimony or rehabilitative alimony shall be paid to ... Diana.” The chancellor did award Diana $36,000 in lump-sum alimony. In the opinion attached to the judgment, the chancellor states: “With regard to alimony, this Court looks to the Armstrong factors. With due regard to the factors and the fact that this Court believes Diana is employable and has in fact been employed in the past, this Court [awards Diana] lump[-]sum alimony in the sum of $36,000....”

¶ 15. Diana is correct that our case law requires a chancellor to conduct an on-the-record analysis of the Armstrong factors to support an alimony award. Lowrey v. Lowrey, 25 So.3d 274, 280 (¶ 7) (Miss.2009) (“Failure to make an on-the-record Ami-strong analysis is manifest error.”). In Chmelicek v. Chmelicek, 51 So.3d 1000, 1008 (¶ 27) (Miss.Ct.App.2010), this Court reversed and remanded for the chancellor to make an on-the-record analysis of the Armstrong factors. The chancellor in the present case provided less of an explanation for his decision, as quoted above, than the chancellor in the Chmelicek case. It is unclear from the record why the chancellor considered $36,000 in lump-sum alimony to be equitable. The parties did have sizeable debts and a high standard of living. Diana did admit to committing adultery, but also had health problems. We need an explanation from the chancellor in order to determine whether there was error. This issue is remanded for an on-the-record determination of the Armstrong factors.

IV. ATTORNEYS’FEES

¶ 16. In her last issue on appeal, Diana contends she should have been awarded attorneys’ fees. The chancellor declined to award either party attorneys’ fees. We have held that “unless the chancellor is manifestly wrong, his decision regarding attorney[s’] fees will not be disturbed on appeal.” Dunn v. Dunn, 609 So.2d 1277, 1287 (Miss.1992) (citation omitted). In this case there was no itemized account of the attorneys’ fees or any testimony regarding the customary charge in the community, rendering the chancellor unable to make a determination under the McKee factors. See McKee v. McKee, 418 So.2d 764, 767 (Miss.1982). This issue is without merit.

CONCLUSION

¶ 17. We affirm in part and reverse and remand in part for the chancellor to conduct an on-the-record analysis of the Armstrong factors. In addition, the chancellor should discuss his reasoning in awarding Diana equity in the marital home and, if necessary, make any adjustments to the distribution of marital property.

¶ 18. THE JUDGMENT OF THE PA-NOLA COUNTY CHANCERY COURT IS AFFIRMED IN PART AND REVERSED AND REMANDED IN PART FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT AND ONE-HALF TO THE AP-PELLEE.

IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, MAXWELL AND FAIR, JJ., CONCUR. CARLTON, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. JAMES, J., NOT PARTICIPATING.

CARLTON, J.,

concurring in part and dissenting in part:

¶ 19. I respectfully submit that judicial efficiency is lost by reversing and remanding the chancellor’s judgment on the issue of alimony. I would affirm the judgment, including the chancellor’s decision not to award alimony. Substantial evidence exists in the record to support the decision and judgment of the chancellor, and the judgment explicitly reflects the chancellor’s consideration of the Armstrong factors in reaching the decision. See Goodin v. Dep’t of Human Sens., State of Miss., 772 So.2d 1051, 1054 (¶ 6) (Miss.2000). In declining to award rehabilitative and permanent alimony, the chancellor specifically referred to Diana’s past employment and future employability, inherently acknowledging a lack of need for such alimony.

¶ 20. On appeal, this Court presumes that the chancellor has taken all Armstrong factors into consideration, “[e]ven if the chancellor has failed to delineate all the factors on the record, where all the facts are available to us.” Voda v. Voda, 731 So.2d 1152, 1155 (¶ 11) (Miss.1999). In Voda, the supreme court cited to Lowry v. Lowry, 229 Miss. 376, 384, 90 So.2d 852, 856 (1956), clarifying:

This Court has the power to affirm, reverse, or modify the decree appealed from, or it may reverse in part and affirm in part, or remand for a new hearing, and where all the facts necessary to enable it to do justice are contained in the record, it may make such order with respect to alimony or allowances as the trial court should have made. The essential facts are in the record; and there is no need to remand the cause for a rehearing.

Voda, 731 So.2d at 1155 (¶ 11); see also Goellner v. Goellner, 11 So.3d 1251, 1258 (¶ 24) (Miss.Ct.App.2009).

¶ 21. I find that the record supports that the chancellor gave the Armstrong factors ample consideration in reaching his decision not to award alimony, and I respectfully submit that the chancellor’s findings were not manifestly wrong or clearly erroneous, nor did the chancellor apply an erroneous legal standard. See Mizell v. Mizell, 708 So.2d 55, 59 (¶ 13) (Miss.1998). Accordingly, I would affirm the chancellor’s judgment.

      . Armstrong v. Armstrong, 618 So.2d 1278, 1280 (Miss.1993).