author: WILLIAMS, J. CARAWAY, J.,

text:
    James E. RICHARDSON, Plaintiff-Appellant v. Asi LLOYDS, et al, Defendant-Appellee.
    No. 48,715-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 2014.
    Rehearing Denied May 8, 2014.
    Anthony J. Bruscato, Monroe, for Appellant.
    Jason P. Foote, for Appellee.
    Before WILLIAMS, STEWART, CARAWAY, PITMAN and GARRETT, JJ.
   WILLIAMS, J.

hThe plaintiff, James Richardson, appeals a summary judgment in favor of the defendants, ASI Lloyds and Cash Clay. The district court found there were no genuine issues of material fact concerning the question of whether Clay was negligent in allowing his girlfriend, who could not swim, to host a children’s pool party in his absence. For the following reasons, we reverse and remand for further proceedings.

FACTS

On June 27, 2011, 12-year-old Jamarcus Hilliard attended a birthday party at the Sterlington residence of Cash Clay. During the party, Jamarcus, who could not swim, and eleven other children were permitted to play in and around the swimming pool located on the property owned by Clay. In addition to Clay, the other residents of the household were his girlfriend, Kinsha Walton, and her three children, Kimberly Walton, Derek Walton and Alexis Walton. Kinsha and Alexis did not know how to swim, but Kimberly and Derek apparently could swim. Clay allowed Kinsha to host the children’s party in his absence. During the party, Jamarcus drowned in the pool.

In an affidavit, Michael Douglas, the father of three children who were at the party, stated that he had arrived at the house shortly before the accident and that Kinsha was the only adult that he saw in the pool area. Douglas further stated as follows: that while he was speaking with Kinsha, some of the children began yelling that Jamarcus was in the deep end of the pool and wasn’t coming up; Kinsha said she could not swim and asked Douglas to get the boy; although Douglas could not swim either, he jumped |ginto the pool in an attempt to assist Jamarcus, but Douglas was unable to reach the boy and returned to the surface; someone then ran into the house to get Derek, who jumped into the pool and pulled Jamarcus out of the water, but he was already dead.

In her deposition, Kinsha Walton testified that when Douglas arrived, Derek, who was 20 years old, had just left the pool area and that Kimberly, who was deaf and in her 20s, was still near the pool. Walton stated that she was in the pool and speaking to Douglas when the children began yelling that Jamarcus didn’t come up. Walton testified that after Douglas could not reach the boy, she asked Kimberly to get Jamarcus, but she indicated in sign language that she did not know what to do. Walton stated that Alexis called Derek, who removed Jamarcus from the pool and attempted CPR, but Jamarcus did not respond. Jamarcus was transported to St. Francis North Hospital, where he was pronounced dead.

Subsequently, the plaintiff, James Richardson, the father of Jamarcus, filed a petition for damages against the defendants, Cash Clay and his homeowner’s insurer, ASI Lloyds. The defendants filed a motion for summary judgment and an exception of no right of action. The district court subsequently denied the defendants’ exception of no right of action.

After a hearing on the summary judgment motion, the district court issued written reasons finding that Kinsha Walton was not an insured under the insurance policy. The court further found that plaintiff failed to present evidence that the pool was defective or that Clay was negligent in allowing Kinsha Walton to host the party in his absence. The court rendered judgment granting the defendants’ motion for summary judgment and | ¡¡dismissing plaintiffs claims. The plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the trial court erred in granting the defendants’ motion for summary judgment. Plaintiff argues that there is a genuine issue of fact as to whether Clay was negligent in relying on a non-swimming adult to supervise a pool party with a group of young children who could not swim.

To determine liability in a negligence case, we apply the duty-risk analysis, which requires the plaintiff to prove that the defendant’s conduct was a cause-in-fact of the resulting harm, that defendant owed a duty of care to the plaintiff, that the duty was breached and that the risk of harm was within the scope of protection afforded by the duty breached. Roberts v. Benoit, 605 So.2d 1032 (La.1991); St. Hill v. Tabor, 542 So.2d 499 (La.1989). Cause-in-fact is generally a “but for” inquiry, which requires plaintiff to show he would not have sustained injury but for the defendant’s conduct. Roberts, supra.

Duty is defined as the obligation to conform to the standard of conduct associated with a reasonable person in like circumstances. Wiley v. Sanders, 34,923 (La.App.2d Cir.8/22/01), 796 So.2d 51. The test to determine if a breach of a landowner’s duty has occurred is whether, in the management of his property, he has acted as a reasonable person in view of the probability of injury to others. Wiley, supra; Collins v. Whitaker, 29,324 (La.App.2d Cir.4/2/97), 691 So.2d 820. In a negligence action, each inquiry must be affirmatively answered in order for plaintiff to recover. Roberts, supra.

14Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The burden of proof remains with the mover. However, if the mover will not bear the burden of proof at trial on the matter before the court, then the mover is not required to negate every essential element of the adverse party’s claim, action or defense; rather, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim or defense. If the adverse party fails to produce factual support to show that he will be able to satisfy his evidentiary burden of proof at trial, then there is no genuine issue of material fact. LSA-C.C.P. art. 966(C).

Summary judgment is seldom appropriate when the particular circumstances of the case call for credibility evaluations and the weighing of testimony. Hooker v. Wal-Mart Stores, Inc., 38,350 (La.App.2d Cir.4/7/04), 870 So.2d 1131, writ denied, 2004-1420 (La.9/24/04), 882 So.2d 1142. Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Argonaut Great Central Ins. Co. v. Hammett, 44,308 (La.App.2d Cir.6/3/09), 13 So.3d 1209, writ denied, 2009-1491 (La.10/2/09), 18 So.3d 122.

In the present case, the record contains the deposition of Cash Clay, who testified that he knew that Kinsha Walton was going to have a swimming party at his residence. Clay stated that Kinsha could not swim, but that her adult children, Derek and Kimberly, knew how to swim. Clay |stestified that Kinsha had not told him Derek and Kimberly would be at the swimming party, but he knew they were always there when Kinsha hosted a pool party. Clay stated that Derek and Kimberly were there “to swim with the kids.” Clay testified that he did not know how many children had been invited or whether any could swim, but there were sufficient life vests in the pool area. Although he stated that Derek helped his mother supervise the other children, Clay acknowledged he was told that Derek had been in the house and not at the pool when Jamar-cus was seen underwater.

The evidence presented demonstrates that Clay’s act of allowing young children who could not swim to use his pool was a cause of the injury, that the pool itself was not unreasonably dangerous and that Clay’s duty was to act as a reasonable person under the circumstances. Thus, we must first consider whether the evidence in the record creates a genuine issue of fact regarding Clay’s breach of this duty.

The deposition testimony shows that even though Clay knew young children would be using his pool, but did not know if they could swim, he decided not to be present during the party, thereby relying primarily on Kinsha to satisfy his duty to provide reasonable supervision. As the district court stated, Clay testified that he knew Derek and Kimberly, both in their twenties and able to swim, would be present at the pool party. However, Clay’s deposition testimony shows that although he expected Derek and Kimberly to be swimming at the party, Clay had not asked them to help Kinsha supervise the group of children in his absence. Nor had Derek and Kimberly told him they would help provide supervision. A trier of fact could reasonably determine that Clay’s knowledge that a 20-year-old will be 16swimming during a pool party is not the same as having that young adult be responsible for supervising the activity of young children in and around the pool.

Additionally, Kinsha testified that Derek and Kimberly were around the pool during the entire party, not that they were helping her supervise the children. We note that Kimberly is deaf and would have needed to maintain visual contact to supervise the children. There was no evidence that Derek and Kimberly were monitoring the children to make sure they were wearing life vests. Apparently, Kinsha, Derek and Kimberly all failed to notice Jamarcus enter the pool without a life vest. Based upon this record, an issue of fact exists as to whether Clay acted reasonably in relying on Kinsha, a non-swimmer, to supervise a group of young children who needed life vests to enter the pool, with the mere expectation that Derek and Kimberly would be present at the party.

If Clay relied on Derek’s presence to assist Kinsha with supervising the children, then part of her duty to supervise includes keeping Derek, who could swim, at the scene. However, the evidence demonstrates that at the time of the emergency when his help was needed, Derek was absent from the pool area and was in the house. The testimony shows that as a result of Derek’s absence, there was a critical delay between the time Kinsha was told of the drowning child and the time Derek returned to the pool to assist. The testimony shows that this delay occurred because Kinsha did not know how to swim and Kimberly did not know what to do in that emergency situation. Thus, in Derek’s absence, neither Kinsha nor Kimberly could act to rescue the drowning child during that last, brief period of time when the child |7might have had a chance to survive.

The scope of duty inquiry involves the question of how easily the risk of injury can be associated with the duty sought to be enforced. Roberts, supra. It is not necessary for the defendant to have foreseen the particular injury that occurred. A risk may be included in the scope of the duty if the injury is easily associated with other risks that are foreseeable. Forest v. State DOTD, 493 So.2d 563 (La.1986). The injury involved here, the drowning of a child before timely aid was provided because a person supervising the children could not swim, can reasonably be considered within the scope of protection afforded by Clay’s duty to provide adequate supervision for the safety of children using his pool.

Based upon our consideration of the evidence presented and the applicable law, we conclude that genuine issues of material fact exist as to whether Clay breached his duty to provide reasonable supervision for young children using his pool and whether this duty encompasses the risk and harm that occurred. Consequently, the district court erred in granting the defendants’ motion for summary judgment. Accordingly, we shall reverse the summary judgment in favor of the defendants and remand this matter for further proceedings.

CONCLUSION

For the foregoing reasons, the district court’s judgment granting the defendants’ motion for summary judgment and dismissing plaintiffs claims is reversed. This matter is remanded for further proceedings. Costs of this appeal are assessed to the appellees, ASI Lloyds and Cash Clay.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

|¶ Cash Clay entrusted his home and pool in this case to Kinsha Walton (“Kinsha”) who he described as his girlfriend and living companion. They had resided together for about 5 years. Kinsha had adult children who also were familiar with their mother’s and Clay’s home. The home and pool are not claimed to have been defective in any manner. Therefore, Clay’s alleged negligence does not rest upon his property presenting an unreasonable risk of harm. With regard to the swimming pool itself, this court has observed:

A swimming pool, when properly used, is not unreasonably |?,dangerous and does not constitute an unreasonable risk of harm in most circumstances. The danger presented, the risk of drowning, is an open and obvious one.

Collins v. Whitaker, 29,324 (La.App.2d Cir.4/2/97), 691 So.2d 820, 823.

Clay, therefore, may be negligent because he breached a duty of care to the children at the party and their parents who dropped them off that day with Kin-sha. Before expressing that duty, it is important to understand that Clay’s pool had life jackets for the children, which in fact were used that day for the party. The victim was reported to have had one on, but had taken it off. The evidence also is undisputed that two other adults, Kinsha’s son and daughter, were at Clay’s home and present at the party. Additionally, the evidence shows that Kinsha had hosted prior parties for children at the residence.

Clay’s duty was to act reasonably in leaving his home and pool in the care of another person who also lives in the house. The undisputed facts are that he left his home in the care of his girlfriend and co-resident. In entrusting his home to Kin-sha, Clay knew that she had planned a swimming party, and he believed that her adult children would be present and that the children would wear life vests. All of these facts within Clay’s knowledge demonstrate to me that he was allowed to leave his residence under those circumstances. Such entrustment of the home to Kinsha for the party was not unreasonable. Clay’s choice for his actions is not unlike the choice of the children’s parents who believed Kinsha to be a responsible adult. Yet, the tragic accident happened.

The majority appears to define Clay’s duty as extending to the affirmative action of giving a directive to Kinsha’s son, Derek, to be ^responsible for supervising the children around the pool. Clay may also be at fault in the majority’s eyes for having only “the mere expectation that Derek and Kimberly would be present at the party.” Yet, in fact, the evidence was that Derek and Kimberly were actually present around the pool during the party. With this view of Clay’s duty, the majority indicates that he would be exonerated of fault had he merely instructed Derek to super-' vise the children before he left his home.

The facts show that three adults and Kinsha’s 15-year-old daughter, Alexis, were responsible supervisors who were there watching for distressed children in the water and otherwise directing their actions. Supervision by Kinsha was her duty as an adult, and Clay would reasonably have expected Kinsha to supervise the children with the help of Derek, Kimberly, and Alexis.

The scope of protection (legal cause) inquiry is a question of policy whether the particular risk falls within the scope of the duty. Faucheaux v. Terrebonne Consolidated Gov’t, 615 So.2d 289, 292 (La.1993). In a case such as this where Clay’s decision to entrust his home and pool to his companion and co-resident involves uncontested facts, reasonable minds cannot differ over the policy-related question of legal cause. See Pitre v. Opelousas General Hosp., 580 So.2d 1151, 1160-61 (La.1988) (where the court lists factors for policy consideration). In his concurring opinion in Roberts v. Benoit, 605 So.2d 1032, 1060 (La.1991), a leading Louisiana Supreme Court case involving a claim of negligent entrustment, Justice Lemmon observed:

The extent of the scope of the duty is primarily a policy |4decision. On the facts in this record viewed in the light most favorable to the prevailing party in the trial court, I cannot find any ease of association between the duty breached and the injury that occurred.

In other swimming pool-related accidents, Louisiana courts have likewise not held the owner of the pool at fault in somewhat similar circumstances where the inadvertence of other adults was more directly responsible for a tragic drowning. Jones v. Maryland Casualty Co., 256 So.2d 858 (La.App. 1st Cir.1971); Collins, supra.

Here, Kinsha’s act of negligence was her failure to see the victim remove his life vest and return to the pool. Kinsha’s act of negligence for failure to supervise is in my opinion not within the scope of Clay’s duty of entrusting the pool to Kinsha.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, PITMAN and GARRETT, JJ.

Rehearing denied.

CARAWAY, J., would grant rehearing.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Jonathan KENDRICK v. Ruthie Paul KENDRICK.
    No. 13-1278.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.

      Michael H. Davis, Alexandria, LA, for Plaintiff/Appellee: Jonathan Kendrick.
    Donald Wilson, Wilson & Wilson, Jena, LA, for Defendant/Appellant: Ruthie Paul Kendrick.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and J. DAVID PAINTER, Judges.
   AMY, Judge.

|TThe parties in this matter sought to partition community property. At issue was the former husband’s entitlement to reimbursement for one-half the amount of mortgage payments he had made on the former family home and the former wife’s entitlement to a set-off for the rental value of the former family home. The trial court granted the husband’s request for reimbursement and denied the wife’s request for a set-off. The wife appeals. For the following reasons, we affirm.

Factual and Procedural Background

The plaintiff, Jonathan Kendrick, was at one time married to the defendant, Ruthie Paul Kendrick. However, in 2008, Mr. Kendrick filed for divorce, and a judgment of divorce was granted in March of 2010. Thereafter, Mr. Kendrick filed a petition for partition of community property. According to the record, the parties stipulated that the community property regime was terminated as of November 14, 2008. The issues at the hearing included whether Mr. Kendrick was due reimbursement for one-half of the mortgage payments he had made on the former family home and whether Ms. Kendrick was entitled to an off-set for the rental value of the former family home due to Mr. Kendrick’s occupancy since August of 2009. After the hearing, among other issues, the trial court denied Ms. Kendrick’s request for an offset and ordered her to pay Mr. Kendrick $48,645.00 in reimbursement for one-half of the mortgage payments.

Ms. Kendrick appeals, asserting that the trial court erred in awarding reimbursement for one-half of the home mortgage payments.

^Discussion

Ms. Kendrick contends that the trial court erred in requiring her to reimburse Mr. Kendrick for one-half the amount of the mortgage payments made by Mr. Kendrick for the former family home. Ms. Kendrick contends that, because Mr. Kendrick constructively evicted her from the home and has been occupying the home with his current wife, she is entitled to a credit for the rental value of the home for the period that Mr. Kendrick was occupying it exclusively. According to Ms. Kendrick, the amount of the rent owed her is approximately equal to or exceeds the amount of the mortgage payments.

Upon termination of the community property regime, “[a] spouse may have a claim against the other spouse for reimbursement[.]” La.Civ.Code art. 2358. Further, “[i]f separate property of a spouse has been used either during the existence of the community property regime or thereafter to satisfy a community obligation, that spouse is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.” La.Civ.Code art. 2365. Thus, when a former spouse makes mortgage payments on a community residence after the termination of the community property regime, that spouse is entitled to reimbursement. Williams v. Williams, 07-541 (La.App. 3 Cir. 10/31/07), 968 So.2d 1234.

Pursuant to La.R.S. 9:374(C):

A spouse who, in accordance with the provisions of Subsection A or B of this Section, uses and occupies or is awarded by the court the use and occupancy of the family residence, ... shall not be liable to the other spouse for rental for the use and occupancy, except as hereafter provided. If the court awards use and occupancy to a spouse, it shall at that time determine whether to award rental for the use and occupancy and, if so, the amount of the rent. The parties may agree to defer the rental issue for decision in the partition proceedings. If the parties agreed at the time of the award of use and occupancy to |sdefer the rental issue, the court may make an award of rental retroactive to the date of the award of use and occupancy.

The seminal case addressing whether a former spouse may be assessed rent retroactively for occupying the former family home pending partition of the community property is McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280. Therein, the supreme court noted that the underlying principle behind La.R.S. 9:374 is that “a co-owner in exclusive possession may be liable for rent, but only beginning on the date another co-owner has demanded occupancy and has been refused.” Id. at 1290 (emphasis in original). The supreme court ultimately held that “rental payments may not be retroactively assessed under La.R.S. 9:374(C) unless otherwise agreed by the spouses or ordered by the court.” Id. at 1289.

The gist of Ms. Kendrick’s argument is that Mr. Kendrick forcibly evicted her from the former family home, and she therefore satisfies the requirements of McCarroll. At the hearing, Mr. Kendrick testified that Ms. Kendrick stayed in the former family home until March of 2009. According to Mr. Kendrick, he thought that she could not afford the utilities, so they were cut off. He testified that he got permission from Ms. Kendrick to move into the former family home in July of 2009 and moved in around September of that year.

Ms. Kendrick testified that she was allowed to stay in the former family home after she and Mr. Kendrick separated. However, she was not employed at the time. According to her testimony, at some point, Mr. Kendrick told her he could not afford to keep paying the electricity and other bills for the house. After the lights were turned off, she moved out. According to Ms. Kendrick, there was never any agreement that Mr. Kendrick would pay her rent. However, Ms. RKendrick testified that Mr. Kendrick agreed to “maintain the bills” for her and the children to stay in the former family home until the “divorce and everything was filed.”

In its reasons for judgment, the trial court applied the supreme court’s analysis in McCarroll and found that:

[Njeither Jonathan nor Ruth can be liable to the other for rent concerning their use and occupancy of the family residence. As mentioned above, for either to be liable for rent, the spouse must have demanded occupancy from the other and been refused. The demand component- is obvious. Both spouses demanded occupancy in their original filings with the court. For Jonathan, the inquiry ends here. No real issue of refusal of occupancy has been promoted by him in these proceedings. Thus, he cannot claim rents from Ruth for her use of the family home from October 29, 2008, until March of 2009.
For Ruth, the issue is vigorously more contested. It is clear that she received occupancy of the family home, in that, testimony was elicited that she and her children resided in the family home from November, 2008, until the following March, when she moved out because she could not pay the house note or utilities.
Counsel for Ruth argues that the vacating of the home by Ruth in this fashion is tantamount to an eviction of her and the children by Jonathan. However, no evidence was presented that Jonathan agreed to pay the house mortgage note and subsequently refused. Likewise, no evidence was adduced that Jonathan had agreed to maintain the utility obligation. Finally, no evidence exists that Ruth was forcibly removed from the family home by Jonathan. Ruth, by her own testimony, stated that she and the children simply moved out of the home because she could not pay the bills. Was it under duress? Certainly it was, if you consider not being able to pay your bills a situation of duress. However, it was not under duress or injury caused by Jonathan.
Therefore, one cannot liken this vacation of the family home by Ruth for this reason to being a refusal of their occupancy by Jonathan.
Therefore, since Louisiana Revised Statute 9:374 does not apply to the instant matter, no analysis must be performed under that article. Further, since no evidence was adduced that either spouse ever refused occupancy to the other of the family home, neither spouse is liable to the other for rent for their use and occupancy of the last matrimonial domicile subsequent to the separation of the parties.

|s Our review of the record indicates that the trial court further found in its reasons for judgment that both Mr. Kendrick and Ms. Kendrick demanded occupancy of the former family home but that “no contradictory hearing was ever held and no court order was ever confected. Further, no agreement to defer the rental issue existed.” Additionally, our review of the record reveals no evidence that Mr. Kendrick and Ms. Kendrick reached an agreement about any rental payments in connection with the exclusive use and occupancy of the former family home.

The trial court’s findings of fact in this matter are subject to the manifest error — clearly wrong standard of review. Philmon v. Philmon, 04-673 (La.App. 3 Cir. 11/10/04), 886 So.2d 1222. Thus, even if it would have weighed the evidence differently, the appellate court may not reverse so long as the trial court’s findings are reasonable in light of the record viewed in its entirety. Id. Further, the trial court has broad discretion in resolving community property disputes, and its judgment is presumed to be correct, absent any evidence in the record to the contrary. Williams, 968 So.2d 1234 (citing La.R.S. 9:2801).

With these principles in mind, we find no error in the trial court’s determination that no rent was due for either party’s occupation of the former family home. The record supports the trial court’s conclusion that both parties demanded occupancy of the former family home but that there was no judicial determination or agreement in connection with that demand. Further, the record supports the trial court’s conclusion that there was no judicial determination, agreement between the parties, or reservation of rights concerning the rental issue. See La.R.S. 9:374; Saacks v. Saacks, 05-365 (La.App. 5 Cir. 9/26/06), 942 So.2d R1130. Thus, we find no error in the trial court’s determination that Ms. Kendrick did not satisfy the requirements of La.R.S. 9:374.

Additionally, with regard to Ms. Kendrick’s contention that Mr. Kendrick forcibly evicted her from the former family home, thus making him liable for rent, we find no merit to this argument. Louisiana Civil Code Article 2369.1 provides that “[a]fter termination of the community property regime, the provisions governing co-ownership apply to former community property, unless otherwise provided by law or by juridical act.” In enacting La.R.S. 9:374, the legislature specifically provided for the situation in which former spouses seek rent for the former family residence. See McCarroll, 701 So.2d 1280; Kline v. Kline, 98-1206 (La.App. 3 Cir. 2/10/99), 741 So.2d 670. Compare with Cahill v. Kerins, 34,522, p. 4 (La.App. 2 Cir. 4/4/01), 784 So.2d 685, 689 (“We do note that Ms. Cahill may have been entitled to reimbursement for the monthly rental value had she made formal demand for occupancy and been refused. See McCarroll v. McCarroll, 96-2700 (La.10/21/97), 701 So.2d 1280; Juneau v. Laborde, 228 La. 410, 82 So.2d 693 (La.1955).”)

Notwithstanding the application of La. R.S. 9:374, we find no error in the trial court’s conclusion that Ms. Kendrick was not forcibly evicted from the former family home and therefore was not denied occupancy. Although Ms. Kendrick may not have left the former family home voluntarily, the record supports the trial court’s conclusion that she left because she did not have the financial wherewithal to pay the utility bills. Further, although Ms. Kendrick testified that Mr. Kendrick agreed to “maintain the bills” until “the divorce was filed,” it was within the trial court’s purview to either reject Ms. Kendrick’s testimony on this issue or determine that the time period for any such agreement had passed. Thus, the |7record supports the trial court’s conclusion that Mr. Kendrick had no obligation to pay the utility bills for the former family home.

Accordingly, we find no error in the trial court’s conclusion that Ms. Kendrick was not due an off-set for rent during Mr. Kendrick’s occupancy of the former family home and no error in the trial court’s award of reimbursement for one-half of the mortgage payments made by Mr. Kendrick.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the judgment of the trial court signed on July 29, 2013, is affirmed. Costs of this appeal are assessed to the appellant, Ruthie Paul Kendrick.

AFFIRMED.

      . Ms. Kendrick is also referred to as "Ruthy" and "Ruth” in the record. We use the spelling contained in the petition.


author: PETERS, J.

text:
    MC BANK AND TRUST CO., et al. v. ELYSIAN ENTERPRISE, LLC, et al.
    No. 13-1305.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.

      James S. Broussard, Gabe A. Duhon, LLC, Abbeville, LA, for Defendants/Appellants, Elysian Enterprise, LLC, Kenneth de la Vergne. .
    James R. Leonard, Jr., Lafayette, LA, for Defendant/Appellee, Succession of Ronald G. Brasseaux.
    Andrew Reed, Aycock, Horne & Coleman, Morgan City, LA, for Plaintiff/Appel-lee, MC Bank and Trust Company.
    Louis Simon II, Jones Walker LLP, Lafayette, LA, for Plaintiff/Appellee, MC Bank and Trust Company.
    Court composed of JIMMIE C. PETERS, BILLY HOWARD EZELL, and PHYLLIS M. KEATY, Judges.
   PETERS, J.

hThe defendants, Elysian Enterprise, LLC and Kenneth de la Vergne, appeal the trial court’s denial of a motion to continue the trial on the merits in this matter. For the following reasons, we amend the trial court judgment to increase the attorney fee award to $15,000.00 and affirm the judgment as amended.

DISCUSSION OF THE RECORD

This litigation has as its origin a January 24, 2012 petition for executory process filed by MC Bank & Trust Company (MC Bank), a St. Mary Parish bank, against Elysian Enterprise, LLC, a Lafayette, Louisiana limited liability company. In its petition, MC Bank sought the seizure and sale of Lafayette Parish immovable property belonging to Elysian Enterprise and mortgaged to MC Bank in exchange for loans totaling $225,839.10. Based on a trial court order, the Lafayette Parish Clerk of Court issued a writ of seizure and sale to the Lafayette Parish Sheriff.

Elysian Enterprise answered the petition and reconvened against MC Bank asserting that the four promissory notes were executed by Ronald G. Brasseaux, who, although a part owner of Elysian Enterprise, executed the notes in his individual capacity. Thus, Elysian Enterprise asserted that it did not owe the indebtedness evidenced by the notes. In its answer and reconventional demand, Elysian Enterprise sought and obtained an order temporarily restraining MC Bank from moving forward with the executory-pro-cess sale.

MC Bank responded to the answer and reconventional demand on April 18, 2012, by amending its petition to proceed under ordinary process to collect on the four promissory notes and to enforce the underlying mortgage. In its amended ^petition, MC Bank named Mr. de la Vergne and the Succession of Ronald G. Brasseaux as additional defendants based on the existence of continuing guaranty agreements Mr. de la Vergne and Mr. Brasseaux executed in favor of MC Bank, wherein they each unconditionally guaranteed payment of the indebtedness of Elysian Enterprise.

On June 22, 2012, pursuant to MC Bank’s motion, the trial court issued an order setting the matter for trial on November 26, 2012, as a fifth setting on that day’s docket. In conjunction with that order, the trial court issued a scheduling order wherein it set deadlines for joining additional parties, divulging expert witnesses who might testify, amending pleadings, exchanging witness and exhibit lists, completing discovery, filing pretrial memo-randa, marking and exchanging exhibits, filing objections to exhibits, and exploring settlement possibilities. The record before us reflects that MC Bank and the Succession of Brasseaux complied with the scheduling order to some extent by timely filing witness and exhibit lists in the record (MC Bank on September 27, 2010, and the Succession of Brasseaux on October 10, 2012).

The record reflects no steps by the remaining defendants to comply with the scheduling order. Instead, on November 19, 2012, counsel for Mr. de la Vergne and Elysian Enterprise filed a motion to withdraw as counsel of record and to continue the November 26, 2012 trial date. In that motion, he stated that Elysian Enterprise had notified him in writing on November 12, 2012, that it no longer required his services. He also stated in the motion that it was his opinion that an additional party needed to be added to the litigation and, therefore, “this case is not currently in a trial posture.”

|sThe trial court granted both the motion to withdraw and the motion for continuance by written order, but did not initially reset the matter for trial. On January 14, 2013, MC Bank filed a motion with the trial court requesting that the matter be reset. The trial court executed an order on that same day setting the matter for trial on April 1, 2013. On February 26, 2013, the trial court notified the parties that it would hold a pretrial conference on March 18, 2013.

In response to the pretrial-conference setting, MC Bank filed a five-page document on March 12, 2013, setting forth a series of facts which it proposed as either stipulations or as non-controversial to the issue; its lists of witnesses and exhibits; and the projected length of time of the trial. In its filing, MC Bank suggested that the only factual and legal issues remaining in the litigation evolved around the authority of Mr. Brasseaux in executing the promissory notes at issue and whether Elysian Enterprise had ratified the acts of Mr. Brasseaux. MC Bank supported this filing with a four-page pretrial memorandum containing eighteen attached exhibits. Neither the Succession of Brasseaux nor Mr. de la Vergne/Elysian Enterprise filed anything in response to the pretrial-conference setting.

On April 1, 2013, Mr. de la Vergne appeared for trial in proper person and orally requested a continuance based on his failure to hire counsel. Specifically, Mr. de la Vergne informed the trial court that it had been impossible for him to retain counsel. He stated that of the five attorneys he had approached for representation, three had conflicts and two declined to represent him because they had insufficient time to prepare for the scheduled trial. When counsel for MC Bank objected to the continuance based on the circumstances of the previous continuance (firing the trial counsel two weeks before trial) and the fact that [^months had passed since that lawyer was released without him retaining counsel, Mr. de la Vergne responded, “I tried before. I told /all I had medical issues, lots of surgeries, and I was not able to drive even to see him.”

The trial court denied the continuance and the matter proceeded to trial on the merits. Following the presentation of evidence, the trial court rendered judgment against the three defendants for the amounts evidenced by the promissory notes together with interest, recognized and maintained the mortgage executed by Elysian Enterprise in favor of MC Bank, and awarded MC Bank $5,000.00 in attorney fees. On April 18, 2018, the trial court executed a judgment in conformity with its ruling on the merits. Among other motions, Mr. de la Vergne’s new counsel filed a motion for new trial which the trial court rejected as not having been timely filed.

Mr. de la Vergne perfected this appeal, asserting that (1) the trial court erred in not granting him a continuance, and (2) he should be granted a new trial in the interests of justice. MC Bank answered Mr. de la Vergne’s appeal arguing that the trial court erred by awarding it only $5,000.00 in attorney fees and that the award should be increased to $44,178.22.

OPINION

Continuance Issue

The mandatory grounds for the grant of a motion for continuance are found in La.Code Civ.P. art. 1602, which provides:

A continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.

|fiThe grant or denial of all other motions for continuance are subject to the discretionary grounds of La.Code Civ.P. art. 1601, which simply provides that “[a] continuance may be granted in any case if there is good ground therefore.”

Additionally:

The trial court has wide discretion in ruling on a motion for continuance, and that ruling will not be disturbed absent a clear showing of abuse of discretion. Succession of Stark, 06-190 (La.App. 3 Cir. 7/5/06), 934 So.2d 901 (citing Sauce v. Bussell, 298 So.2d 832 (La.1974)). The decision to grant or deny a continuance is dependent on the facts of the case and may include consideration of such factors as diligence, good faith, reasonable grounds, fairness to both parties, and the need for the orderly administration of justice. Ardoin v. Bourgeois, 04-1663 (La.App. 3 Cir. 11/2/05), 916 So.2d 329. Another factor which may be considered is the defendant’s right to have his case heard as soon as practicable. Gilcrease v. Bacarisse, 26,318 (La.App. 2 Cir. 12/7/94), 647 So.2d 1219, writ denied, 95-0421 (La.3/30/95), 651 So.2d 845 (citing Lambert v. Heirs of Adams, 325 So.2d 331 (La.App. 3 Cir.1975), writ denied, 329 So.2d 458 (1976)). “However, this discretion may not be exercised arbitrarily, where a denial of a continuance founded on a good-faith ground may deprive a litigant of his day in court.” Powell v. Giddens, 271 So.2d 596, 597 (La.App. 1 Cir.1972).

Succ. of Harrell v. Erris-Omega Plantation, Inc., 12-696, pp. 7-8 (La.App. 3 Cir. 12/5/12), 104 So.3d 751, 757.

In his brief to this court, Mr. de la Vergne attempts to provide this court with his personal medical history between the original November 2012 trial date and the April 1, 2013 trial. At trial, his only reference to his medical situation is that which has been previously cited, and, although he suggests to this court that the issue was discussed extensively at the March 18, 2013 pretrial conference, nothing in the record supports that assertion. This court cannot consider on appeal any evidence not officially offered and introduced into the record at the trial level. See Adams v. Allstate Ins. Co., 01-1244 (La.App. 5 Cir. 2/26/02), 809 So.2d 1169. Considering 16only the record properly before us, we find no abuse of the trial court’s wide discretion in its denial of Mr. de la Vergne’s motion for continuance.

New Trial Issue

In his motion for new trial, Mr. de la Vergne asserted that the trial court should grant the motion “in the interest of justice because there is good ground therefor” and cites La.Code Civ.P. art. 1973 as authority for the grant. Louisiana Code of Civil Procedure Article 1973 provides that “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.”

With regard to the filing of a motion for new trial, La.Code Civ.P. art. 1974 provides:

The delay for applying for a new trial shall be seven days, exclusive of holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913.

The trial court signed the judgment at issue in this appeal on April 18, 2013, and the Clerk of Court mailed the notice of judgment to Mr. de la Vergne on Thursday, May 9, 2013. Thus, Mr. de la Vergne had until Monday, May 20, 2013, in which to file his motion for new trial. On that day, Mr. de la Vergne’s new counsel filed a motion for new trial by facsimile transmission and, at the same time, filed a written request, by facsimile transmission, asking the trial court to provide its findings of fact and reasons for judgment in this matter.

With regard to the facsimile transmission of pleadings for filing, La.R.S. 13:850 provides:

A. Any paper in a civil action may be filed with the court by facsimile transmission. All clerks of court shall make available for |7their use equipment to accommodate facsimile filing in civil actions. Filing shall be deemed complete at the time that the facsimile transmission is received and a receipt of transmission has been transmitted to the sender by the clerk of court. The facsimile when filed has the same force and effect as the original.
B. Within seven days, exclusive of legal holidays, after the clerk of court has received the transmission, the party filing the document shall forward the following to the clerk:
(1) The original signed document.
(2) The applicable filing fee, if any.
(3) A transmission fee of five dollars.
C. If the party fails to comply with the requirements of Subsection B, the facsimile filing shall have no force or effect. The various district courts may provide by court rule for other matters related to filings by facsimile transmission.
D. The clerk may purchase equipment and supplies necessary to accommodate facsimile filings out of the clerk’s salary fund.

On May 29, 2013, Mr. de la Vergne’s new counsel filed the original signed motion for new trial with the clerk of court. Thus, he complied with the seven-day filing requirement of La.R.S. 13:850(B). However, neither the facsimile transmission nor the original of the motion for new trial had an order attached for the trial court to execute.

Mr. de la Vergne’s new counsel supplied the trial court with an order for its signature by facsimile transmission to the clerk of court on Tuesday, June 25, 2013. On that same day, the trial court wrote “Denied No order and untimely” across the last page of the original motion (not the faxed order) and affixed his signature and the date below the handwritten notation. However, two days later on June 27, |82013, a duty judge executed the original order and set a show-cause hearing for August 5, 2013. This was followed by a July 9, 2013 letter from the trial judge to the clerk of court, which stated in pertinent part:

Please disregard the Order granting a hearing on August 5, 2013, in the above matter. It was signed on June 27,' 2013, by the duty Judge. This should have been routed to Division “J”. If copies have gone out, please sent [sic] a notice that it is not effective.

Based on the provisions of La.R.S. 13:850, we find that the trial court erred in finding that the motion for new trial was not timely filed. However, that was only part of the trial court’s reasons for denying the motion without setting it for a hearing as it also noted that the filing did not contain an order. With regard to the failure of a litigant to attach an appropriate order, La.Dist.Ct.R. 9.8(a) (emphasis added) provides in pertinent part:

Contradictory Exceptions and Motions. All exceptions and motions, including those incorporated into an answer, shall be accompanied by a proposed order requesting that the exception or motion be set for hearing. If the exceptor or mover fails to comply with this requirement, the court may strike the exception or motion, may set the matter for hearing on its own motion, or take other action as the court deems appropriate.

In this case, the motion was not accompanied by a proposed order and that order was not provided until thirty-six days later. While it is unclear from the record whether the trial court rejected the motion for new trial before or after the supplement order was filed by facsimile transmission, it is clear that the order was not provided within the time period for filing the motion. The trial court used one of the three courses of action provided for in La.Dist.Ct.R. 9.8(a) and dismissed the motion. We find no merit in this assignment of error.

Attorney Fee Issue

In its answer to the appeal, MC Bank sought an increase in the attorney fee award from $5,000.00 to $44,178.22.

|flThe promissory notes sued upon provide for the recovery of “reasonable attorneys’ fees in an amount not exceeding 25.000% of the principal balance due on the loan[s].” At trial, MC Bank requested an attorney fee award of twenty-five percent of the principal balance, and counsel for the Succession of Brasseaux objected to it being set at that amount. The trial court responded to the objection by stating, “I’ll set those as [sic] what I believe is reasonable.” At the end of the trial, the trial court orally granted MC Bank judgment as prayed for on all issues except the attorney fees. With regard to that issue, the trial court noted, “I will wait for your affidavit of attorney fees.”

Counsel for MC Bank did not provide the trial court with an affidavit. Instead, on April 9, 2013, he provided the trial court with a proposed judgment and copies of invoices representing services rendered to MC Bank attached to a letter, wherein he noted that twenty-five percent of the principal balance would be $56,036.48 and that MC Bank had incurred $44,278.22 in attorney fees. When the trial court executed the proposed judgment, it struck through the $44,278.48 figure and inserted the sum of $5,000.00 as the attorney fee award.

As stated in Helena Chemical Co. v. Nichols, 96-856, pp. 8-9 (La.App. 3 Cir. 12/26/96), 695 So.2d 990, 994, amended on reh’g on other grounds, 96-856, 96-857 (La.App. 3 Cir. 1/29/97), 695 So.2d 1000:

When determining the amount of attorney fees to be awarded, the court should consider the following factors: (1) the ultimate result obtained; (2) the extent and character of the work performed; (3) the responsibility incurred; (4) the number of court appearances made; (5) the intricacies of the facts involved; (6) the importance of the litigation; (7) the legal knowledge and the skill of the attorneys; and (8) the diligence and skill of the attorneys.

| inBecause the record before us does not contain any admissible evidence concerning the attorney fee issue, we must consider these factors in determining whether the trial court erred in awarding only $5,000.00. In doing so, we recognize that MC Bank’s attorneys were successful in obtaining the ultimate result initially sought although this required that they convert their original executory-process action to an ordinary action. As to the character of the work performed, we find nothing extraordinarily complicated about a suit on promissory notes secured by a mortgage on immovable property, and the litigation required only one court appearance and a number of appearances involving pretrial matters. We find that the facts underlying the litigation were not necessarily complicated, and, while certainly important to the litigants, the litigation itself carried no special meaning. Finally, MC Bank’s attorneys exhibited superior legal knowledge of the issues as they arose and were diligent and skillful in their representation.

Considering all of these factors and, without the benefit of any other admissible evidence, we do find that the attorney fee should be increased to $15,000.00.

DISPOSITION

For the foregoing reasons, we amend the trial court judgment in favor of MC Bank and Trust Company and against Elysian Enterprise, LLC, Kenneth de la Vergne, and the Succession of Ronald G. Brasseaux to increase the attorney fee award from $5,000.00 to $15,000.00 and affirm the judgment as amended. We assess all costs of this appeal to Elysian Enterprise, LLC and Kenneth de la Vergne.

AFFIRMED AS AMENDED.

      . The indebtedness secured by the mortgage is evidenced by four separate promissory notes dated July 20, 2010 ($60,075.00); September 17, 2010 ($85,614.10); November 4, 2010 ($20,075.00); and December 10, 2010 ($60,075.00). The executory process and ordinary process petitions reflect that at the time suit was filed, the principle on the $85,614.10 note had been paid down to $84,040.52. Therefore, the total principle amount due was $224,265.52.

      . This ground was actually an alternate ground in the motion for new trial. The primary grounds were that the judgment was contrary to the law and evidence and that Mr. de la Vergne had discovered new evidence which could not have been discovered with due diligence before or during trial. He cites La.Code Civ.P. art. 1972 as authority for this relief. However, he does not raise these grounds on appeal.

      . The other requirements of La.R.S. 13:850(B) are not at issue in this appeal.

      . This handwritten notation is found in the record immediately after the cover letter and order which comprised the facsimile transmission. However, neither the page containing the handwritten denial nor the cover letter and order contain a time stamp to suggest the timing of the denial versus the facsimile transmission.

      . The letter and proposed judgment was filed on April 18, 2013. The judgment bears the trial court's signature and is dated April 15, 2013.

      . In its subsequent reasons for judgment, the trial court did not mention the attorney fee award or the basis for awarding less than the requested amount.


author: GENOVESE, Judge.

text:
    STATE of Louisiana in the Interest of E.T.
    No. 13-1323.
    Court of Appeal of Louisiana, Third Circuit.
    April 2, 2014.

      Annette Roach, Louisiana Appellate Project, Lake Charles, Louisiana, for Juvenile/Appellant: E.T.
    J. Phil Haney, District Attorney Sixteenth Judicial District, Walter J. Senette, Jr., Assistant District Attorney, Franklin, Louisiana, for Appellee: State of Louisiana.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and SHANNON J. GREMILLION, Judges.
   GENOVESE, Judge.

| rThis is an appeal of a juvenile delinquency proceeding. E.T. (the juvenile) was adjudicated delinquent on the charge of simple burglary, a violation of La.R.S. 14:62. The disposition ordered the juvenile placed in secure custody for three years and ordered him to pay $500.00 in restitution to the victim.

A motion to modify disposition was granted, wherein the juvenile was placed in a less restrictive environment in order to get medical treatment. Thereafter, the juvenile filed a motion to reconsider his sentence, a motion to vacate the adjudication, and a motion for new trial, all of which were denied.

The juvenile has appealed, alleging insufficiency of the evidence and abuse of discretion in the trial court’s disposition. For the following reasons, we vacate the juvenile’s adjudication and disposition.

FACTS

On August 22, 2010, the home of Byron Smith (Byron) was burglarized while he was hospitalized. During the investigation of the burglary, a t-shirt was found inside the residence which contained the juvenile’s DNA. After a trial, the juvenile was adjudicated delinquent for the burglary.

ERRORS PATENT

Although the Louisiana Children’s Code is silent as to whether a juvenile criminal proceeding is entitled to an error patent review, this court has found that such a review is mandated by La.Ch.Code art. 104 and La.Code Crim.P. art. 920. See State in the Interest of J.C.G., 97-1044 (La.App. 3 Cir. 2/4/98), 706 So.2d 1081. In our error patent review, we note several errors patent; however, as a | {¡result of the adjudication and disposition being set aside, these errors patent have been rendered moot and need not be addressed.

ASSIGNMENTS OF ERROR

The juvenile presents the following three assignments of error for our review:

I.
The evidence introduced at the adjudication hearing was insufficient to prove the identity of E.T. as a participant/principal in the simple burglary beyond a reasonable doubt under the standard of review applicable in delinquency proceedings.
II.
The juvenile judge abused its discretion in imposing a disposition of three years in secure confinement as it is not the least restrictive alternative available, is nothing more than punishment and is, thus, constitutionally excessive.
III.
The juvenile judge abused its discretion in ordering restitution be paid when E.T.’s disposition is secure confinement and none of his disposition was suspended.

ASSIGNMENT OF ERROR NO. 1:

In his first assignment of error, the juvenile contends that the evidence introduced at the adjudication hearing was insufficient to prove beyond a reasonable doubt his identity as a participant/principal in the simple burglary under the standard of review applicable in delinquency proceedings.

In a juvenile proceeding, the state’s burden of proof is the same as in a criminal proceeding against an adult-to prove beyond a reasonable doubt every element of the offense alleged in the petition. La. Ch.Code art. 883; In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). “In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the United States Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).... [T]he appellate court must determine that the evidence, viewed in the light most favorable to the prosecution, was sufficient to convince a rational trier of fact that all of the elements of the crime had been proved beyond a reasonable doubt.” State v. Captville, 448 So.2d 676, 678 (La.1984).
State in the [I]nterest of D.P.B., 02-1742, pp. 4-5 (La.5/20/03), 846 So.2d 753, 756. “[AJppellate review in juvenile delinquency proceedings extends to both law and facts.” State in the [I]nterest of L.T., 99-487, p. 6 (La.App. 3 Cir. 10/13/99), 747 So.2d 148, 152.
In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and if such a basis does exist, (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. See Stobart v. State, through DOTD, 617 So.2d 880 (La.1993). If there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong. Id. However, where documents or objective evidence so contradict a witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the appellate court may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Id.
State in the [I]nterest of D.H., 04-2105, pp. 7-8 (La.App. 1 Cir. 2/11/05), 906 So.2d 554, 560.
[Wjhen the key issue is the defendant’s identity as the perpetrator, rather than whether the crime was committed, the State is required to negate any reasonable probability of misidentification. State v. Weary, 03-3067 (La.4/24/06), 931 So.2d 297; State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649. Positive identification by only one witness is sufficient to support a conviction. Weary, 03-3067 at p. 18, 931 So.2d at 311; Neal, 00-0674 at p. 11, 796 So.2d at 658; State v. Mussall, 523 So.2d 1305, 1311 (La.1988).
State v. Hughes, 05-0992, pp. 5-6 (La.11/29/06), 943 So.2d 1047, 1051.

State ex rel. T.W., 09-532, pp. 2-3 (La.App. 3 Cir. 10/7/09), 21 So.3d 465, 467-68.

|4In the case at bar, Byron’s brother, Warren Smith (Warren), testified that his father went to check on Byron’s home because Byron had been hospitalized. Warren’s father opened the home to place water that had been left on the porch inside and realized that the house had been vandalized. Warren’s father reported the incident to him. Warren then went to Byron’s home. Warren testified the back door of the home had been kicked in, and the house had been vandalized. Warren stated that guns and jewelry had been taken from the home.

Byron testified that he was hospitalized on August 22, 2010, and, while he was in the hospital, his home was burglarized. Byron further testified that when he arrived at his residence, the back door had been kicked in, and his belongings were strewn about. He started cleaning up and saw a t-shirt that did not belong to him on the floor of his bedroom. Byron stated he knew the shirt was not his because he wore a medium/large shirt, and the t-shirt found on the floor was an XL or an XXL. Byron further testified that he did not wear that type of shirt.

Byron was last at his home the Friday morning before being hospitalized. The break-in was discovered on Sunday. Byron indicated that he had locked the door to his home and that his father was the only other person who had a key. Byron testified the juvenile was distantly related to him but had never been to his home. Additionally, Byron stated that, to his knowledge, the juvenile’s family did not know that he had been hospitalized. Items missing from Byron’s home included fishing rods and reels, guns, a surround-sound stereo system, a safe, gaming devices, a laptop, a television, digital cameras, jewelry, a sword, clothes, DVDs, and CDs.

During the investigation, Sergeant Marva Areeneaux was informed by Byron that a t-shirt found inside the home did not belong to him. She put on ^disposable gloves, picked up the t-shirt, placed it in a brown paper bag, and put it in her patrol unit. The bag was subsequently logged into evidence. Sergeant Areeneaux placed the bag containing the t-shirt in the vault, where it remained until it was taken to the crime lab. She did not come into contact with the juvenile while wearing the gloves used to retrieve the t-shirt. Sergeant Ar-ceneaux additionally testified that no fingerprints were taken at the home and that there were neither shoe prints nor a trail leading to the home.

Officer Morman Alexander testified that he retrieved the sealed bag from the evidence vault and brought it to the crime lab; however, he never saw the contents of the bag. He then described the process of logging evidence with the crime lab. Officer Alexander knew the juvenile had a brother, but did not know if they were twins. Chief of Police Marvin Grogan took a DNA sample from the juvenile and transported it to the crime lab.

The juvenile testified that he was seventeen years old and denied having ever been to Byron’s home or having any knowledge of the burglary. The juvenile testified that he had no idea how the t-shirt got to Byron’s home or why it had his DNA on it. He testified that the t-shirt did not belong to him, as he did not “wear shirts like that.” He denied knowing Byron had been hospitalized and also denied having a twin. The juvenile acknowledged a prior burglary conviction.

The crime lab report that was admitted into evidence set forth the following:

A mixed DNA profile consisting of at least two contributors, most likely one major DNA contributor and one minor DNA contributor, was obtained from the swabbing of the [t]-shirt collar. The major and minor contributor DNA profiles were entered into the C[o]mbined DNA Index System (CODIS) database on 11/08/2012.
On 11/20/2012, a CODIS match was made between the major contributor DNA profile from the swabbing of the [t]-shirt collar and the reference DNA sample from [E.T.].... In the absence of identical [(¡twins, it can be concluded that to a reasonable degree of scientific certainty, [E.T.] is the source of the major contributor DNA profile from the swabbing of the [t]-shirt.

After listening to the testimony of the witnesses, reviewing the evidence submitted, and listening to the arguments of counsel, the trial court stated, in part:

As a result of the DNA sample being taken and the delinquency charge that is brought against E.T., the, uh, E.T. testified to the extent that after examining the t-shirt in court that it was not his t-shirt; which excludes the hypothesis that someone else may have taken some clothing that E.T. had worn and committed the burglary and left it in the home. Leading the court to believe that the only reasonable explanation which occurred is that E.T. directly possessed this t-shirt at the time of the commission of the offense of the burglary of Byron Smith’s house and that the DNA evidence that was found on the collar of the shirt doesn’t appear to be any type of incidental contact.
As such, the court believes that pursuant to the petition that was filed that E.T. did in fact commit a burglary of Byron Smith’s residence at some point in time between the Friday morning when Mr. Smith had left to go to the hospital and the Sunday, when ultimately the burglary was discovered by Mr. Smith’s father when he went to take a case of water that had been left by the Kentwood person, inside the home and that the evidence further goes on to show that this is in fact an actual burglary. The testimony leads the court to believe that the entry to the residence was gained by the individuals who committed the burglary; kicking open the back door that was not something that you could observe from the street. For the purposes of entering the residence to commit therein; an essential element of the burglary.

The juvenile alleges that, not withstanding his DNA found on the collar of a shirt located inside the residence, there was no eyewitness to the offense who identified him as the burglar, no one placed him near the scene during the weekend of August 20-22, 2010, he was not found in possession of any items alleged to have been taken during the burglary, and no fingerprint or footprint evidence placed him at the scene. In support of his argument that the evidence was insufficient to support his conviction, the juvenile cites State v. Oliphant, 13-473 (La.App. 3 Cir. 11/20/13), 127 So.3d 91. However, Oli-phant was just reversed by 17the supreme court in 13-2973 (La.2/21/14), 133 So.3d 1255; therefore, we need not address same.

In the present case, the juvenile avers that the trial court concluded that someone took off the t-shirt and put on clothes from the house, as clothing was listed as missing from Byron’s home. He suggests this is inconsistent with the testimony that Byron lived alone and that the t-shirt was an XXL, which was much larger than the medium/large worn by Byron. The juvenile argues that, if the burglar wore an XXL, it is unlikely that he would have fit into the clothing Byron kept in his home; thus, the trial court’s conclusion was not plausible.

The juvenile argues that, because the DNA of two people was found on the t-shirt, it is just as likely that the t-shirt was taken into the home by the other DNA contributor. He further argues that the trial court’s conclusion that, because the DNA was on the collar of the t-shirt, it was left by the person who wore the t-shirt is unreasonable. The juvenile asserts the DNA could have been left by other reasonable means, including his coming into contact with the t-shirt during a sporting event or fight, by handing the shirt to another, or by lifting the shirt at the collar to move it off other clothing. He asserts these reasonable explanations provide sufficient hypotheses of innocence and could explain why his DNA was on the t-shirt.

The juvenile also avers that the trial court’s conclusion that the DNA did not appear to be from incidental contact was unsupported by the record. He further asserts that the DNA report did not limit the number of contributors of DNA, but stated that there were “at least” two contributors; hence, it is just as likely that he touched a shirt belonging to someone else, either by wearing it or merely touching the collar, and left his DNA on the t-shirt. He further asserts the lab report did not | sindicate how long the DNA had been on the t-shirt. The juvenile notes the offense occurred in August 2010, and the petition was not filed until two-and-one-half years later.

The State contends there was more than just DNA evidence that supports the verdict in this case. The State asserts the following evidence supports the verdict:

(1) the testimony of the victim that the shirt found at his home was not his[;] (2) the finding by the trial judge [ ] who personally viewed [the body size of] both ET and the victim that the shirt was large enough to fit ET[;] (3) that ET probably had knowledge that the victim was in the hospital so that the Smith residence unoccupied [sic] and could be easily burglarized[;] and[,] (4) that the crime lab report stated that ET “is the source of the major contributor DNA profile from the swabbing of the shirt” clearly indicating that ET’s DNA did not come to be on the shirt as a result of accidental contact. Further, ET took the stand and testified in this case. He denied that the shirt belonged to him and denied ever wearing a white t-shirt and could not offer any explanation of how his DNA got on the shirt. As a result, the State argues that this [was] not a case which involves only DNA evidenced but a case in which the trial court gave no weight to ET’s testimony. Without ET’s testimony[,] there is no “reasonable hypothesis of innocence” in the record. This court should give this “credibility call” by the trial court great weight on appeal and find the evidence sufficient to sustain the conviction for simple burglary.

The State asserts the juvenile did not explain or offer a reasonable hypothesis explaining how his DNA got on the t-shirt. The State argues that the juvenile’s only explanation was that the t-shirt was not his, but that explanation was not accepted by the trial court. The State avers the trial court rationally concluded that the only reasonable explanation for the DNA was that the juvenile wore the t-shirt when he committed the burglary. The State then avers the trial court made a factual finding that the DNA evidence did not appear to be from any type of incidental contact and that the factual findings of the trial court involve credibility determinations and should not be disturbed on appeal. We note that the State merely admitted the lab report into evidence without calling any witnesses |9from the crime lab or an expert in DNA. There was no evidence presented on how the DNA was deposited onto the t-shirt; thus, the trial court’s finding that the DNA was not the result of incidental contact was not supported by the record.

The State argues it can be inferred that the fact that Byron was going into the hospital was communicated to the juvenile’s family and to the juvenile when Byron’s father visited the juvenile’s family. However, there was no proof that Byron’s father visited with or spoke to the juvenile’s family during Byron’s hospital stay. Neither Byron’s father nor members of the juvenile’s family were called to testify regarding this issue, and Byron testified that, to his knowledge, the juvenile’s family did not know he had been hospitalized.

The State cites State v. Scott, 11-999 (La.App. 5 Cir. 5/31/12), 97 So.3d 1046, in support of its arguments. In Scott, the defendant was convicted of second degree murder. The only evidence linking the defendant to the crime was his DNA, which was found under the fingernails of the victim’s grandmother, who allegedly scraped the defendant’s neck at the scene of the shooting. An expert in forensic DNA testified that the amount of DNA obtained from under the grandmother’s fingernails would not be expected to occur from casual contact. The lead detective extensively questioned the grandmother about how the defendant’s DNA could have gotten under her fingernails. She was questioned about social events she attended and whether she had fallen and been helped up by someone. There was no familial connection between the defendant and the grandmother, and she did not know the defendant. The detective concluded that the grandmother had not been in contact with the defendant other than the night of the murder. The detective could not determine an alternative explanation for the presence of the defendant’s DNA underneath the grandmother’s fingernails. The lmfifth circuit concluded that every reasonable hypothesis of innocence had been excluded and that the evidence was sufficient to convince a rational trier of fact that the defendant participated in the murder.

We find Scott distinguishable from the case at bar, as there was no testimony from a DNA expert in the case at bar, the juvenile was not questioned extensively about the presence of his DNA on the t-shirt by the State at the adjudication hearing, and there was no evidence that the juvenile was questioned about the t-shirt by police during their investigation.

The State also cites State v. Authorlee, 12-1179 (La.App. 3 Cir. 4/3/13), 111 So.3d 1170, unit denied, 13-1028 (La.11/15/13), 125 So.3d 1101. Therein, the defendant was convicted of killing a woman by cutting her throat. DNA was found on the handle of a knife in the victim’s possession and under the victim’s fingernails. The DNA was not a specific match to the defendant’s DNA, but the defendant could not be excluded as a source of the DNA.

This court affirmed the defendant’s conviction, stating: “Defendant’s argument alleges that potential evidentiary discrepancies in isolation rendered the totality of the evidence presented to the jury insufficient. Defendant’s argument fails to consider the vast amount of evidence, outside of the alleged discrepancies, that the jury considered to arrive at the verdict of second degree murder.” Id. at 1177.

We find the case at bar is distinguishable from Authorlee in that there was testimony in Authorlee regarding DNA evidence, hostility between the victim and the defendant, and the defendant’s presence at the home of the victim on the night of the offense. The only evidence in the case at bar was the juvenile’s DNA on the t-shirt found in Byron’s home — nothing more; nothing else.

I^The State also cites several “fingerprint” cases in support of the trial court’s adjudication in this case; however, all of the fingerprint cases cited by the State are distinguishable from the case at bar insofar as fingerprints at the scene of a crime only prove that the person who left the fingerprint was physically present at the crime scene at some point in time. Furthermore, there were no fingerprints taken at Byron’s home; therefore, the State’s reliance on fingerprint cases is misplaced. DNA on a t-shirt found at a crime scene does not conclusively prove that the person who left the DNA was ever physically present at the crime scene.

In the instant case, the juvenile’s DNA, along with DNA from an unidentified person, were found on a t-shirt located inside Byron’s home. Contrary to the trial court’s finding, there was no evidence presented regarding how the DNA came to be on the t-shirt. Additionally, there was no other direct or circumstantial evidence presented that linked the juvenile to the offense. The DNA evidence, by itself, does not prove beyond a reasonable doubt that the juvenile was the person who burglarized Byron’s home. The State failed to meet the requisite burden of proof in this case. For these reasons, we vacate the juvenile’s adjudication and disposition.

ASSIGNMENTS OF ERROR NOS. 2 AND 3:

Having vacated the juvenile’s adjudication and disposition, we need not and do not address these remaining assignments of error.

DECREE

The juvenile’s adjudication and disposition are vacated.

ADJUDICATION AND DISPOSITION VACATED.

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