author: FREDERICKA HOMBERG WICKER, Judge.

text:
    Juanita CHERAMIE v. Julie JOHNSON, Ted Johnson and David Gaspard.
    No. 12-CA-731.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      G. Patrick Hand, III, Attorney at Law, Gretna, LA, for PlaintiffiAppellee.
    Corey E. Dunbar, Attorney at Law, Belle Chasse, LA, for Defendants/Appellants.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, JUDE G. GRAVOIS, and STEPHEN J. WINDHORST.
   FREDERICKA HOMBERG WICKER, Judge.

| ¡¿Defendants, Ted and Julie Johnson, appeal the trial court’s judgment awarding plaintiff, Juanita Cheramie, $6,756.00 for property damages resulting from the construction of the Johnsons’ camp built adjacent to plaintiffs property. The trial court entered judgment against the Johnsons and dismissed their contractor, David Gas-pard. We find the record supports the trial court’s conclusion that Gaspard relied on the Johnsons’ misrepresentation of the property line during construction, which resulted in the unintentional damage to plaintiffs property, and affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendants, Ted and Julie Johnson, hired defendant-contractor Gaspard to construct a camp in Grande Isle on Lot 9, Square C, Sexton Subdivision (“the property”) on September 23, 2009. Plaintiff owns the adjacent property, Lots 10 and 11, in the same subdivision in Grande Isle.

|3Prior to construction, the Johnsons failed to obtain a recent survey or stake the property to mark its boundaries. Rather, the Johnsons pointed Gaspard to where they believed the property line to be — even with a culvert. Based on the Johnsons’ representation of the property boundaries, Gaspard began construction.

Plaintiff testified that on October 9, 2009, she noticed Gaspard with a tripod and poles working approximately 75 feet onto her side of the property line. Gas-pard used his cell phone to contact Mr. Johnson and inform him of plaintiffs complaints. Plaintiff and Gaspard both testified that Mr. Johnson did not instruct Gaspard to stop working. Mr. Johnson contradicted that testimony, stating that he immediately told Gaspard to stop working. Days later, on October 12, 2009, plaintiff again noticed Gaspard on her property and again complained to him. Plaintiff testified that Gaspard then told her he was not on her property, based on the Johnsons’ representations, and continued working. On October 15, 2009, plaintiff again saw Gaspard on her property and also noticed that her cesspool had been damaged and that large pieces of concrete from the cesspool had been dragged to the street. Plaintiff testified that she then called Mrs. Johnson, who told her that she had done plaintiff “a favor” by breaking up the cesspool because the local Grand Isle code no longer permits property owners to have cesspools. Subsequently, plaintiff hired a land survey- or to flag or mark her property boundaries. The survey results showed that the property line was not even with the culvert, as the Johnsons had represented to Gaspard; rather, the survey results showed that Gaspard in fact had been delivering materials, operating machinery, and working on plaintiffs side of the property line.

As a result of Gaspard performing work on her side of the property line, plaintiff sustained damages. Plaintiff filed suit on April 21, 2010, against the Johnsons and Gaspard, alleging that: (1) large ruts had been dug into her property | ¿causing the need for replacement dirt and sand to re-level her property; (2) her sewer system or cesspool had been completely demolished; and (3) she incurred the cost of a land survey to identify the accurate property boundaries and show that Gaspard performed work on her side of the property. After a judge trial, the trial court found that Gaspard relied solely on the Johnsons’ misrepresentation of the property line in performing his work and thus dismissed plaintiffs claim against Gaspard. The trial court rendered judgment against the Johnsons, awarding plaintiff $6,756.00 in damages. Defendants, Mr. and Mrs. Johnson, appeal that judgment.

DISCUSSION

On appeal, defendants claim that plaintiff failed to prove that they caused the alleged property damages. Defendants assert that Gaspard, as an independent contractor, and/or his subcontractors, caused the resulting damages to plaintiffs property and that defendants cannot be held liable for Gaspard’s actions.

As a general rule, a principal is not liable for the negligence of an independent contractor while performing his contractual duties. Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972). Two exceptions to this general rule exist: (1) where the work is ultra hazardous; and (2) if the principal reserves the right to supervise or control the work of the independent contractor. Arroyo v. R. Jefferson Gen. Hosp., 06-799 (La.App. 5 Cir. 3/13/07), 956 So.2d 661, 664, writ denied, 07-0784 (La.6/1/07), 957 So.2d 179.

At trial, the parties presented substantial evidence and testimony to prove lfithat the Johnsons supervised or controlled Gaspard’s work in constructing the camp as it relates to the location or property on which the Johnsons instructed him to build. The trial judge remarked that the building contract did not contain a municipal address or property description and that Gaspard relied solely on the Johnsons’ instructions as to the location of construction. Because the pivotal issue in this case turns on where Gaspard performed his work, we find that the John-sons supervised and controlled that aspect of Gaspard’s work, ie., the location of the construction; therefore, we find the John-sons can be held liable for Gaspard’s actions if plaintiff successfully proved that Gaspard’s actions caused plaintiffs damages in accordance with La. C.C. art. 2315.

In this appeal, defendants challenge plaintiffs claim for damages, asserting that the repairs made were unnecessary or not caused by the construction at issue. We discuss each item of damages separately:

Cost of Dirt/Sand to Level Ruts in Land

At trial, the parties introduced into evidence photographs of plaintiffs property. These photographs reflect large ruts on plaintiffs land, where water accumulated when it rained. Plaintiff testified that those ruts were not present prior to the Johnsons’ construction. Gaspard further confirmed that either he, his employees, or others that he hired, “tore up” plaintiffs grass with large machinery and caused ruts on her property. Gaspard again testified that he was unaware at that time that he had been working on plaintiffs side of the property line.

Plaintiff produced the testimony of David Michel, owner of Michel Construction, LLC. Mr. Michel testified that plaintiff hired him following | (¡Hurricane Katrina to spread dirt and raise her property to a level 18 inches high. Mr. Michel testified that, in late 2009, plaintiff again hired him to spread additional dirt and sand to re-level the property following construction on the adjacent property. Plaintiff introduced into evidence an invoice from Mr. Michel, reflecting that she paid him $3,181.00 to purchase and spread dirt and sand on her property in December of 2009.

Based on the evidence and testimony presented, which clearly reflects that plaintiff sustained ruts on her land due to the Johnsons’ misrepresentations to Gas-pard of the property line, we find plaintiff satisfactorily proved damages for the loads of dirt and sand necessary to re-level her property to the same height as prior to the Johnsons’ construction project.

Damage to Cesspool

The evidence at trial reflects that, during construction, Gaspard demolished and covered up a cesspool or sewerage treatment plant located on plaintiffs property. Plaintiff testified that on October 15, 2009, she noticed that large pieces of concrete from her cesspool had been removed and placed out on the street. At trial, Gaspard confirmed that he had in fact demolished the cesspool but that he did so pursuant to the Johnsons’ instructions.

Plaintiff testified that the cesspool was still in good working condition and that family members and other visitors would occasionally come to her property for the weekend to visit and would hook up campers to the cesspool. Plaintiff testified that she did not intend to demolish the cesspool and did in fact use it occasionally. Plaintiff presented an invoice from LeBlanc Sewerage and Plumbing in the amount of $3,000.00 that she paid to have a new sewer treatment plant installed. She testified that, following Hurricane Katrina, the Grade Isle building |7codes no longer permit the installation of cesspools and only permit the installation of a sewer treatment plant.

Based upon the testimony and evidence indicating that Gaspard demolished plaintiffs cesspool pursuant to the Johnsons’ instructions during construction, we find no error in the trial court’s judgment awarding plaintiff damages for the installation of a new sewer treatment plant on her property.

Land Survey

Plaintiff hired Mr. Charles McDonald, a land surveyor, to perform a survey of her property and to stake or mark the property boundaries to prove that Gas-pard had in fact been working on her side of the property line. Mr. McDonald testified that he performed a land survey of plaintiffs property, which revealed that the property line was in fact not even with the culvert as represented by the John-sons.

Defendants complain that plaintiffs survey was unnecessary because prior to plaintiff hiring Mr. McDonald, he had in fact already performed a survey and staked or marked the property line for the Johnsons. Therefore, defendants argue that plaintiff unnecessarily incurred the $575.00 cost for the survey of her property-

The Johnsons introduced the land survey into evidence, which indicates that Mr. McDonald conducted a survey on September 20, 2009, prior to the alleged date of trespass or beginning of construction. However, Gaspard, the Johnsons, and plaintiff all testified that the property had not been staked or marked off in October of 2009 when construction began. Further, Mr. McDonald could not testify as to the date on which the survey was contracted or performed with certainty, thus leaving the possibility of a typographical or office error.

The trial judge clearly accepted the overwhelming testimony that the property had not been staked or marked prior to the beginning of construction. |sOn appellate review, the reviewing court may not set aside the factfinder’s findings of fact in the absence of manifest error or unless they are clearly wrong. Johnson v. State Farm Mut. Auto. Ins. Co., 95-1027 (La.App. 5 Cir. 5/15/96), 675 So.2d 1161, 1162-63. The issue to be resolved by the reviewing court is not whether the factfin-der was right or wrong, but whether his conclusion was a reasonable one. Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Based upon the overwhelming testimony that the property had not yet been staked or marked off in October of 2009, the trial court found plaintiffs decision to hire Mr. McDonald to perform a survey of her property appropriate under the circumstances. We find the trial court did not err in awarding $575.00 to plaintiff for the cost to survey her property to show that Gaspard in fact had been working on her side of the property line. Therefore, defendants’ argument that plaintiff failed to meet her burden to prove the damages sustained as a result of the Johnsons’ construction project is without merit.

Defendants further assign as error the trial court’s allocation of fault, claiming that the trial court erred in not assigning a particular percentage of fault to Gaspard or Mr. and Mrs. Johnson individually pursuant to La. C.C.P. art.1917. |3The judgment at issue clearly dismisses plaintiffs claim against Gaspard; therefore, the trial court found Gaspard not liable and assigned him 0% fault. The remaining defendants, Mr. and Mrs. Johnson, are married. We find the judgment rendered against them is a community obligation that may be satisfied from the matrimonial community. Although the record reflects that Mrs. Johnson solely owns the property at issue, all testimony and evidence indicates that Mr. and Mrs. Johnson jointly hired Gaspard to construct a camp on the property and the construction contract thus is a community obligation. Further, all evidence indicates that the Johnsons constructed the camp together for the benefit of the community. The testimony presented at trial shows that both Mr. and Mrs. Johnson pointed Gaspard to the inaccurate property line and instructed him to continue construction on land later determined to be plaintiffs property.

Accordingly, the judgment at issue against the Johnsons, arising out of damages caused incident to their community obligation — the contract with Gaspard — is a community debt or obligation to be satisfied with community funds. This assignment is without merit.

Defendants further assign as error the trial court’s denial of its motion for summary judgment prior to trial. Because we find plaintiff presented sufficient |inevidence to prevail at trial, we find the trial court did not err in denying defendants’ motion for summary judgment.

CONCLUSION

Accordingly, for the reasons provided herein, the judgment of the trial court is affirmed.

AFFIRMED

      .In her petition, plaintiff also alleged that a water line had been broken by large machinery during the construction; that water line was repaired and plaintiff did not introduce any evidence at trial to claim the broken water line as an item of damages. Plaintiff further alleged in her petition unspecified emotional damages, which the trial court did not award. Plaintiff has not appealed the trial court's judgment and thus those issues are not before this Court.

      . The trial court identified the damages as follows: $575.00 for the land survey performed; $1,046.00 for two loads of dirt; $910.00 for two loads of sand; $1,225.00 for labor to spread and level the two loads of dirt and two loads of sand; and $3,000.00 for the replacement of a new sewer system.

      . The parties stipulate that this exception does not apply to the facts of this case.

      . Louisiana courts have adopted a duty-risk analysis in determining whether liability exists under the facts of a particular case. Under this analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care; (2) the defendant failed to conform his or her conduct to the appropriate standard of care; (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff’s injuries; (4) the defendant's substandard conduct was a legal cause of the plaintiff’s injuries; and (5) actual damages. Christy v. McCalla, 11-0366 (La. 12/6/11), 79 So.3d 293, 299.

      . La. C.C.P. art. 1917(B) provides:
      In nonjury cases to recover damages for injury, death, or loss, whether or not requested to do so by a party, the court shall make specific findings that shall include those matters to which reference is made in Paragraph C of Article 1812 of this Code. These findings need not include reasons for judgment.
      La. C.C.P. art. 1812(C) provides:
      In cases to recover damages for injury, death, or loss, the court at the request of any party shall submit to the jury special written questions inquiring as to:
      (1) Whether a party from whom damages are claimed, or the person for whom such party is legally responsible, was at fault, and, if so:
      (a) Whether such fault was a legal cause of the damages, and, if so:
      (b) The degree of such fault, expressed in percentage.
      (2)(a) If appropriate under the facts adduced at trial, whether another party or nonparty, other than the person suffering injury, death, or loss, was at fault, and, if so:
      (i) Whether such fault was a legal cause of the damages, and, if so:
      (ii) The degree of such fault, expressed in percentage.
      (b) For purposes of this Paragraph, nonparty means a person alleged by any party to be at fault, including but not limited to:
      (i) A person who has obtained a release from liability from the person suffering injury, death, or loss.
      (ii) A person who exists but whose identity is unknown.
      (iii) A person who may be immune from suit because of immunity granted by statute.
      (3) If appropriate, whether there was negligence attributable to any party claiming damages, and, if so:
      (a) Whether such negligence was a legal cause of the damages, and, if so:
      (b) The degree of such negligence, expressed in percentage.
      (4) The total amount of special damages and the total amount of general damages sustained as a result of the injury, death, or loss, expressed in dollars, and, if appropriate, the total amount of exemplary damages to be awarded.

      . La. C.C. art. 2360 provides:
      An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation. See also Manno v. Manno, 01-2138 (La.App. 1 Cir. 10/2/02), 835 So.2d 649, 651-52.

      . La. C.C. art. 2345 provides that ‘‘[a] separate or community obligation may be satisfied during the community property regime from community property ...”

      . See Hopkins v. American Cyanamid Company, et al., 95-1088 (La. 1/16/96), 666 So.2d 615 (instructing that the appellate court, on review of the denial of a motion for summary judgment following a full trial on the merits, should consider all evidence presented at trial — not just evidence presented at the summary judgment level.)


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Chief Judge.

license: Public Domain

text:
    HURRICANE FENCE COMPANY, INC. and DHS Marketing, Inc. v. JENSEN METAL PRODUCTS, INC. d/b/a Real Flame.
    No. 12-CA-956.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      Michael A. Britt, Attorney at Law, Ken-ner, LA, for Plaintiffs/Appellants, Hurricane Fence Company, Inc. and DHS Marketing, Inc.
    Jerome M. Volk, Jr., Law Offices of Jerome M. Volk, Jr., LLC, Kenner, LA, for Defendant/Appellee, Jensen Metal Products, Inc. d/b/a Real Flame.
    Panel composed of Judges SUSAN M. CHEHARDY, ROBERT A. CHAISSON, and HANS J. LÍLJEBERG.
   SUSAN M. CHEHARDY, Chief Judge.

|2This is a suit for injunction, in which the plaintiffs appeal a judgment that granted exceptions of no cause of action, no right of action, and lack of subject matter jurisdiction, and dismissed the lawsuit. We affirm in part, reverse in part, and remand.

PROCEEDINGS BELOW

On April 29, 2011, Hurricane Fence Company, Inc. (“Hurricane”) and DHS Marketing, Inc. (“DHS”) filed suit in the 24th Judicial District Court, Jefferson Parish, Louisiana, for injunctive relief or, alternatively, for damages against Jensen Metal Products, Inc. d/b/a Real Flame (“Real Flame”).

The plaintiffs alleged that they are Louisiana corporations with their offices and places of domicile in Jefferson Parish and the defendant is a foreign corporation doing business in Jefferson Parish, which has an office and does business in Racine, Wisconsin. They alleged jurisdiction and venue are proper in the 24th Judicial District Court because the plaintiffs have offices and do business in the Parish of Jefferson and are dealers and/or distributors and/or sellers of Real Flame’s products, sold by the plaintiffs in or through the Parish of Jefferson. The petition was served on Real Flame under the Long Arm Statute.

|sThe plaintiffs alleged that for approximately five years they had been selling products manufactured by Real Flame (including fireplaces and fireplace gel) via eBay, Amazon, and/or other Internet outlets, with the sales made through advertisements and/or listings by the plaintiffs on eBay and Amazon. They asserted they had always maintained their accounts with the defendant in good standing and had complied with all the defendant’s requirements and procedures for the purchase and sale of the products. They also alleged the defendant had instituted requirements for certain minimum advertised prices, which required its dealers, distributors, and/or sellers of its products to advertise the defendant’s products only at a specific price. They complained that the defendant had recently prohibited the plaintiffs from selling its products on eBay, and had closed the plaintiffs’ accounts.

The plaintiffs asserted that the defendant’s actions breached their free trade rights, restricted competition on the open market, and violated their rights of free commerce. They sought a preliminary injunction prohibiting the defendant from refusing to allow them to sell its products on eBay and from taking any actions to affect the accounts and/or ratings of the plaintiffs with eBay and Amazon. Alternatively, the plaintiffs averred they would suffer substantial losses of sales if not allowed to sell the defendant’s products on eBay, and requested they be granted damages for the loss of sales and income and other damages to be demonstrated at trial.

Real Flame raised various exceptions: first, the declinatory exceptions of insufficiency of citation and insufficiency of service of process; second, the dilatory exceptions of vagueness or ambiguity of the petition and improper cumulation of actions; and third, the peremptory exceptions of no cause of action, no right of action, and lack of subject matter jurisdiction.

_|/The trial court denied the declina-tory and dilatory exceptions. Those rulings are not before us on this appeal.

In support of the peremptory exceptions, the defendant asserted that the plaintiffs did not allege any contractual obligation between themselves and Real Flame, nor did they allege they ever entered into any kind of agreement for the sale of the goods.

After the exceptions were raised, the plaintiffs filed a supplemental petition, adding a claim for declaratory judgment regarding allegations of fraud by Real Flame against them, arising from the deposition of a Real Flame corporate representative, John Ridgeway.

After a hearing, the trial court rendered judgment on September 13, 2012, granting the exceptions of no cause of action, no right of action, and lack of subject matter jurisdiction, but denying all the other exceptions.

The trial judge gave the following oral reasons for the rulings:

The exceptions that seem to strike at the heart of all of the allegations contained in the petition would be the ones, more particularly or specifically indicated as no cause of action.
The Court finds ... that essentially what the plaintiff is seeking in this case from this Court is a permanent order ordering a non-resident defendant to continue to do business with it....
[T]he plaintiff does so without establishing or pleading that there was and/or is, in fact, an agreement, a specific agreement whereby the defendant commits itself under terms and conditions to service plaintiffs request to “sell its products.”
The Court is aware that the plaintiff in this case does not have ... “an actual store front” ... in which people can walk in, view products, etc.
|sFor those reasons as well as the reasons contained in the arguments supporting the exceptions I grant the exceptions of no cause, no right.
Should there be some misunderstanding I’m not going to simply say that moots ... a discussion of all of the other exceptions....
Okay, all of the others are denied, except subject matter jurisdiction, I grant that. But again, I repeat that once the exception of no cause of action is granted that, in my estimation, moots the rest of them.

ARGUMENTS AND ANALYSIS

On appeal, the plaintiffs assert the district court erred in granting the exceptions of no cause of action, no right of action and lack of subject matter jurisdiction.

The defendant’s arguments on appeal are directed to the merits of the plaintiffs’ claims rather than to the substance of the exceptions that are the subject of this appeal.

The objections that' may be raised through the peremptory exception include but are not limited to no cause of action and no right of action, or no interest in the plaintiff to institute the suit. La. C.C.P. art. 927(A)(5) — (6).

No Cause of Action

The plaintiffs argue the district court erred in granting the exception of no cause of action and in holding that a contract was required between the parties in order for there to be a cause of action. They contend the issue is whether their allegations stated a cause of action for unfair trade practices or other causes of action.

An exception of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the | pleading. La. C.C.P. art. 927; Moreno v. Entergy Corp., 2010-2268, p. 3 (La.2/18/11), 64 So.3d 761, 762.

In the trial court, the only basis the defendant stated for the exceptions of no cause of action and no right of action was the following:

Plaintiffs have not alleged any contractual obligation between plaintiffs and Real Flame, and only provide that it has sold the products over the internet. It does not allege that plaintiffs have entered into any kind of agreement for the sale of the goods, nor does it allege that it has a “real store” so that the flammable products could be delivered to the customers, via mail or courier in accordance with postal and courier regulations.

In opposition to the exception of no cause of action, the plaintiffs asserted their allegations sufficiently stated causes of action for “breach of the verbal agreements between the parties for five years” for the sale by the defendant and the purchase by the plaintiffs of the defendant’s products “and the accounts set up by Defendant for Plaintiffs”; for the restriction of the plaintiffs’ right to sell the defendant’s products on eBay when other companies were being allowed to sell defendant’s products on eBay; and for the validity of Real Flame’s minimum advertised prices requirement.

Sale is a contract, which requires the consent of the parties for the perfection of a sale. La. C.C. art. 2439.

The four requisites of a valid contract are capacity of the parties, their consent, a certain object and a lawful purpose. C.C. art. 1779. Particular types of contracts, such as a contract of sale, may have other requisites, and if the requisite is missing there is either no contract or a contract of another description. C.C. art. 1764.

Benglis Sash & Door Co. v. Leonards, 387 So.2d 1171, 1172 (La.1980).

Despite the plaintiffs’ allegations that they had made numerous purchases from Real Flame in the past, there is no allegation of a contract between the parties |7that would require Real Flame to continue to sell its products to the plaintiffs. On that basis the trial court did not err in finding a failure to state a cause of action.

The Louisiana Unfair Trade Practices and Consumer Protection Law, usually abbreviated as LUTPA, “grants a right of action to any person, natural or juridical, who suffers an ascertainable loss as a result of another person’s use of unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.” Cheramie Servs., Inc. v. Shell Deepwater Prod., Inc., 2009-1633, p. 6 (La.4/23/10), 35 So.3d 1053, 1057.

To sustain a cause of action under LUTPA, the petition must pass a two-prong test: (1) it must allege the plaintiff suffered an ascertainable loss; and (2) the loss must have resulted from another’s use of unfair methods of competition and unfair or deceptive acts or practices. See NOLA 180 v. Treasure Chest Casino, LLC, 11-853, p. 6 (La.App. 5 Cir. 3/27/12), 91 So.3d 446, 450, writ denied, 2012-0949 (La.6/15/12), 90 So.3d 1066.

We note that the petition is styled “Petition for Injunctive Relief or, Alternatively, for Damages.” However, the right to injunctive relief under LUTPA is available solely to the state through the Attorney General. See La. R.S. 51:1407; Lafreniere Park Foundation v. Friends of Lafreniere Park, Inc., 97-152, p. 9 (La.App. 5 Cir. 7/29/97), 698 So.2d 449, 453, writ denied, 97-2196 (La.11/21/97), 703 So.2d 1312; Family Resource Group, Inc. v. Louisiana Parent Magazine, 00-1986, p. 8 (La.App. 1 Cir. 11/9/01), 818 So.2d 28, 33.

Reviewing the allegations in the petition, we find they do not adequately state a cause of action under LUTPA. Therefore, the trial court did not err in granting the exception of no cause of action.

|sLa. C.C.P. art. 934, however, provides that when the grounds of an objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment.

We cannot say that the petition could not be amended to state a cause of action under LUTPA, if nothing else. Accordingly, we shall order the district court to allow the plaintiffs an opportunity to amend.

No Right of Action

Real Flame’s exception of no right of action was predicated on its assertion that the plaintiffs had no cause of action.

The exceptions of no cause of action and no right of action are separate and distinct, with each serving a particular purpose with different procedural rules. Ferguson v. Dirks, 95-560, p. 4 (La.App. 5 Cir. 11/28/95), 665 So.2d 585, 587. See La.C.C.P. art. 927(4), (5).

Although these two exceptions are often confused or improperly combined with the same exception, the peremptory exceptions of no right of action and no cause of action are separate and distinct .... [T]he focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant. [Citations omitted.]

Badeaux v. Sw. Computer Bureau, Inc., 2005-0612, p. 6 (La.3/17/06), 929 So.2d 1211, 1216-1217. A plaintiff may have a right of action, yet fail to state a cause of action in the petition. See, e.g., Badeaux, supra; Perque Floor Covering of New Orleans, Inc. v. L. Cambre Enterprises, Inc., 593 So.2d 407, 411 (La.App. 1 Cir.1991).

We find the trial court erred in finding the plaintiffs had no right of action.

Lack of Subject Matter Jurisdiction

On appeal the plaintiffs state,

| gAlthough Real Flame apparently filed an exception of lack of subject matter jurisdiction, and the trial court granted same, the memorandum of Real Flame contained no facts and no citations to support such an exception. Real Flame’s memorandum simply states ... that Code of Civil Procedure Article 925 provides for the exception and that counsel is raising that exception. The [trial] judge gave no reason for his granting of this exception.

There is no written exception of lack of subject matter jurisdiction in the appellate record. At the hearing, the trial judge listed the exceptions he thought were at issue, stating, “It’s my understanding that the following exceptions are at issue: vagueness or ambiguity; improper cumu-lation; no cause, no right of action; improper venue; lack of jurisdiction [over] the defendant and lack of jurisdiction of subject matter.” (Emphasis added.) Counsel for both parties agreed those were before the court. The trial court granted the exception of lack of subject matter jurisdiction, although there had been no argument directed to that issue and the court did not discuss subject matter jurisdiction.

On appeal, the plaintiffs assert the court erred in finding lack of subject matter jurisdiction, because they have alleged claims under the Louisiana Unfair Trade Practices and Consumer Protection Law.

Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. La. C.C.P. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties. La. C.C.P. art. 3. A judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. Id.

|in“The issue of subject matter jurisdiction addresses the court’s authority to adjudicate the cause before it; the issue may be considered at any time, even by the court on its own motion, at any stage of an action.” Boudreaux v. State, Dep’t of Transp. & Dev., 2001-1329, pp. 7-8 (La.2/26/02), 815 So.2d 7, 12-13. “Moreover, it is the duty of a court to examine subject matter jurisdiction sua sponte, even when the issue is not raised by the litigants.” Id.

The 24th Judicial District Court is a court of general jurisdiction, with the power to hear cases involving claims in contract, tort, or for violation of civil statutes. Accordingly, we find that the trial court erred in finding a lack of subject matter jurisdiction.

DECREE

For the foregoing reasons, the judgment is affirmed as to the granting of the exception of no cause of action. The judgment is reversed as to the granting of the exceptions of no right of action and lack of subject matter jurisdiction. The case is remanded and the district court is ordered to grant the plaintiffs an opportunity to amend their petition within 30 days of the date of this opinion. Costs of this appeal are assessed equally against the appellants, Hurricane Fence Company, Inc. and DHS Marketing, Inc., and the appellee, Jensen Metal Flame Products, Inc. d/b/a Real Flame.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

      . Denial of an exception is an interlocutory ruling; hence, for review of those rulings the defendant would have had to file a writ application, or file a cross-appeal following the dismissal of the claims against it. The defendant did not seek review in any form.

      . As stated above, the declinatory and dilatory exceptions are not before us for review.


author: STEPHEN J. WINDHORST, Judge.

text:
    STATE of Louisiana v. Carl DOMANGUE.
    No. 12-KA-760.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      Ricky L. Babin, District Attorney, Don-aldsonville, LA, Donald D. Candell, Assistant District Attorney, Gonzales, LA, for PlaintiffiAppellee.
    Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, MARC E. JOHNSON and STEPHEN J. WINDHORST.
   STEPHEN J. WINDHORST, Judge.

12Pefendant, Carl Domangue, was charged with sexual battery, in violation of La. R.S. 14:43.1 (Count One), and molestation of a juvenile, in violation of La. R.S. 14:81.2 (Count Two). Defendant waived his right to a jury trial. A bench trial was held, after which the trial judge found defendant not guilty as to Count One, and guilty of the lesser included offense of indecent behavior with a juvenile as to Count Two. The trial court sentenced defendant to eight years imprisonment with the Department of Corrections; the first two years of defendant’s sentence to be served without benefit of parole, probation, or suspension of sentence. This appeal followed. For the reasons that follow, we affirm defendant’s conviction and sentence and remand with instructions.

FACTS

In December 2009, Amy Laiche, Assistant Principal at Paulina Elementary School, called J.L., the victim’s mother, to discuss R.L.’s (victim) absences from school. At that time, J.L. informed Ms. Laiche that she thought R.L. was being fondled by the defendant. Ms. Laiche advised J.L. that she would speak with R.L. about the situation. Pursuant to her conversation with R.L., Ms. Laiche prepared a report documenting the alleged child abuse.

]sOn December 23, 2009, Detective Sonya Taylor, of the St. James Parish Sheriffs Department, was contacted by “OCS” in LaPlace regarding a report of alleged sexual abuse involving a juvenile and her “step-father” filed by Paulina Elementary School. Detective Taylor contacted J.L. and R.L. in reference to the report. On January 27, 2010, J.L. and R.L. met with Detective Taylor at the Sheriffs Office where R.L. was interviewed in private. R.L. told Detective Taylor that while her mother was at work, her “step-father” would use his finger to “play with her private area.” She stated that the defendant would place his finger underneath her clothing. R.L. further said that the defendant made her sit on his lap and he would throw her up and down. R.L. stated that on one occasion the defendant made her “put his penis back into his pants.” Detective Taylor determined that R.L. was between seven or eight years old at the time of the alleged abuse and the alleged perpetrator was 24 years old.

In April 2010, Lieutenant Pat Boudin, of the St. Charles Parish Sheriffs Office Child Advocacy Center, conducted a forensic interview with R.L. The video interview was introduced and played at trial. In the interview, R.L. told Lt. Boudin that her “step father” used “his finger” to touch her “privates.” She told Lt. Boudin that the defendant would put her on top of him on the bed and “bounce” her on him while “rubbing her privates up and down.” R.L. also stated that the defendant called his “private part, pokey” and he would make her sit on it. On one occasion, the defendant “took it out and made her put it back in.”

The victim, R.L., testified that she was born on January 8, 2000. R.L. testified that the defendant is the father of her younger sister. R.L.’s mother, J.L., worked the night shift and the defendant would babysit her and her younger sister when her mother was at work. R.L. testified that the defendant touched her |, “private part” and put her “on top of him and he called his private part, pokey.” R.L. testified that the defendant did this to her approximately five to ten times while her mother was at work. She described one incident when she was in bed with her sister and when her sister was turned away from her, the defendant began touching her. R.L. testified that these incidents by the defendant started in 2008 when she was eight or nine years old. She recalled that the first time the defendant touched her private part was when she had come home from school and had put on a movie for her sister to watch. The defendant told her to go the bedroom where he put her on top of him and moved back and forth. She testified that the defendant touched her on top and underneath her clothing, and that she was told to touch his private parts. R.L. further testified that the defendant told her not to tell her mother. She testified that she was scared but finally told her grandmother about the incidents.

R.L. testified that at one point, her mother questioned her about the inappropriate touching in front of defendant. The defendant and her mother got into an argument because defendant denied touching R.L. To stop the argument, R.L. told her mother that the defendant “might have just been playing.” She testified that she told her mother that because she was scared and did not want to hurt her mom. R.L. testified that sometime in 2009, the defendant and her mother got into a fight and the defendant moved out.

J.L., the victim’s mother, testified that she and the defendant lived together between 2008 and 2009. At that time, the defendant was approximately 24 years old. The defendant would watch R.L. and her other daughter while she was at work. J.L. questioned R.L. about being touched inappropriately by the defendant in the beginning of 2009. J.L. approached R.L. about whether she had ever been inappropriately touched by the defendant. R.L. told J.L. that the defendant touched |fiher vagina and showed her his “private part.” J.L. testified that she confronted defendant about the incident in front of R.L. J.L. conceded she should not have questioned the defendant while R.L. was present. The defendant denied touching R.L. and a fight ensued. At that time, R.L. told J.L. that maybe the defendant was just playing. J.L. testified that after their argument she asked defendant to leave. She testified she did not report the incident to the police because she was in denial. J.L. further testified that R.L.’s grandmother called her and stated that she was informed by R.L. that she was scared to tell J.L. about the inappropriate acts. J.L. testified that she eventually-informed R.L.’s school about the inappropriate touching after R.L. had missed a few days of school.

A.C., R.L.’s cousin, testified that she would occasionally babysit for R.L. In 2006 when she was 15 years old and babysitting R.L., A.C. testified that she went to sleep and when she woke up, defendant was on top of her. A.C. testified that the defendant put his penis inside of her and that she told him to stop but he would not stop. A.C. testified that she did not report this incident to the police, but in 2008 she told her boyfriend and J.L. about the incident with the defendant. A.C. admitted that the defendant was not the only person she ever accused of raping her.

Defendant testified at trial that he would occasionally watch R.L., but denied touching R.L. Defendant testified that R.L. only alleged these incidents occurred after she saw her mother, J.L., report him for domestic abuse. Defendant further testified that after an argument with J.L. about whether he inappropriately touched R.L., R.L. recanted her allegations. Defendant further testified that he had | f,consensual sex with A.C. in 2007 or 2008, but he did not know how old A.C. was at the time.

V.L., R.L.’s grandmother, testified that R.L. informed her that the defendant was “fondling her in the bed while her mother was working.” R.L. told her that the defendant rubbed her private parts and pulled her on top of him. R.L. told V.L. that the defendant performed these acts several times. V.L. further testified that R.L. wrote some words down on a piece of paper regarding the incident while she was with V.L. because she was too ashamed and embarrassed to talk about it. V.L. testified that she contacted J.L. and told her that she needed to speak with R.L. V.L. testified that she did not contact the police because R.L. was crying and R.L. thought it was her fault.

DISCUSSION

In his sole assignment of error, the defendant claims that the evidence was insufficient to support his conviction of indecent behavior with a juvenile.

In reviewing the sufficiency of evidence, an appellate court must determine that the evidence, whether direct or circumstantial, viewed in the light most favorable to the prosecution was sufficient to convince any rational trier of fact that all of the elements of the crime have been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); See State v. Ortiz, 96-1609 (La.10/21/97), 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Bailey, 04-85 (La.App. 5 Cir. 5/26/04), 875 So.2d 949, 954-55, writ denied, 04-1605 (La.11/15/04), 887 So.2d 476, cert. denied, 546 U.S. 981, 126 S.Ct. 554, 163 L.Ed.2d 468 (2005). The evidence must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Harrell, 01-841 (La.App. 5 Cir. 2/26/02), 811 So.2d 1015, 1019. A reviewing court is required to consider the whole record and | vdetermine whether a rational trier of fact could have found the State proved the essential elements of the crime beyond a reasonable doubt. State v. Price, 00-1883 (La.App. 5 Cir. 7/30/01), 792 So.2d 180, 184.

“Circumstantial evidence is evidence of facts or circumstances from which one might infer or conclude, according to reason and common experience, the existence of other connected facts.” State v. Kempton, 01-572 (La.App. 5 Cir. 12/12/01), 806 So.2d 718, 722. “The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” La. R.S. 15:438. The reviewing court is not required to determine whether another possible hypothesis of innocence suggested by the defendant offers an exculpatory explanation of events. The reviewing court must determine whether the possible alternative hypothesis is sufficiently reasonable that a rational juror could not have found proof of guilt beyond a reasonable doubt. State v. Mitchell, 99-3342 (La.10/17/00), 772 So.2d 78, 83.

After a bench trial, the trial judge found defendant not guilty on count one, sexual battery, and guilty of the lesser included offense of indecent behavior with a juvenile on count two.

To convict a defendant of indecent behavior with a juvenile under La. R.S. 14:81, the State must prove that (1) there was an age difference of greater than two years between the accused and the victim, who was not yet seventeen; (2) the accused committed a lewd or lascivious act upon the person of, or in the presence | sof, a child; and (3) that the accused intended to arouse or gratify either his own or the victim’s sexual desires. State v. Battaglia, 03-692 (La.App. 5 Cir. 11/25/03), 861 So.2d 704, 708, writ denied, 04-1701 (La.4/29/05), 901 So.2d 1058. Specific intent need not be proven as a fact, but may be inferred from the circumstances and actions of the defendant. Battaglia, supra.

“A lewd or lascivious act is one which tends to excite lust and to deprave the morals with respect to sexual relations and which is obscene, indecent, and related to sexual impurity or incontinence carried on in a wanton manner.” State v. Stec, 99-633 (La.App. 5 Cir. 11/30/99), 749 So.2d 784, 787. Lewd and lascivious acts include not only the physical touching of the victim in an indecent manner, but also “indecent sexual displays in the presence of children under the age of seventeen.” State v. Interiano, 03-1760 (La.2/13/04), 868 So.2d 9, 15. Thus, it is not necessarily the act in and of itself that has to be lewd and lascivious. Id. The statute gives notice “that a person knowingly engaged in any overt sexual activity performed in the physical proximity of a child enters a zone of danger in which he runs the risk that a trier of fact may later find that activity criminal in nature.” Id. In determining whether an act is lewd or lascivious, the trier of fact must consider the time, the place, and all of the circumstances surrounding its commission, including the actual or implied intention of the actor. State v. Sturdivant, 27,680 (La.App. 2 Cir. 2/28/96), 669 So.2d 654, 659.

In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’ testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Turner, 05-75 (La.App. 5 Cir. 5/31/05), 904 So.2d 816, 823, writ denied, 05-2591 (La.5/26/06), 930 So.2d 20. The victim’s testimony alone can be sufficient to establish the elements of a sexual offense, even if the State does not introduce medical, scientific or | nphysical evidence to prove the commission of the offense. State v. Hotoph, 99-243 (La.App. 5 Cir. 11/10/99), 750 So.2d 1036, 1045, writs denied, 99-3477 (La.6/30/00), 765 So.2d 1062, and 00-0150 (La.6/30/00), 765 So.2d 1066.

In this case, the defendant only disputes that he touched R.L.’s genitalia or that he caused her to touch his private parts. Defendant claims that R.L. fabricated the story about being sexually abused to convince her mother to leave him.

R.L. testified that defendant touched her on her “private part,” which she described as her “bottom parts,” on five or more occasions while defendant babysat her when her mother was at work. R.L. testified that defendant would put her on top of him and he would call his “private part, pokey.” She explained in detail that defendant touched her both underneath and on top of her clothing, and that she was told by him to touch his private parts. R.L. also testified that on one occasion while her sister was watching a movie, defendant called her into the bedroom where he put her on top of him and moved back and forth. She further testified that on one occasion while she was sleeping in bed with her sister, the defendant touched her.

Defendant’s actions as described by R.L. constitute a lewd and lascivious act. See State v. Guillory, 07-422 (La.App. 3 Cir. 10/31/07), 970 So.2d 670. The requisite element of specific intent to arouse or gratify the sexual desires of either person may be inferred from the circumstances and the actions of the offender. See State v. Blanchard, 00-1147 (La.4/20/01), 786 So.2d 701. The defendant touched R.L.’s private parts, both outside and inside her clothing, and placed R.L. on top of him while he moved back and forth. A rational trier of fact could infer that defendant intended to arouse his sexual desire by committing these sexual acts.

Despite defendant’s assertions to the contrary, R.L. did not “recant” her claims of sexual abuse. R.L. testified that her mother and defendant were arguing 1 mabout the incidents in front of her. R.L. testified that she was scared and did not want to hurt her mom. She further testified that she told her mom that the defendant “might have just been playing” in order to stop the argument. R.L.’s testimony was also consistent with her account of events as relayed to R.L.’s grandmother, Detective Taylor, and as depicted on the video with the child advocacy representative, Lt. Boudin.

The trial court obviously accepted R.L.’s testimony and rejected the defendant’s testimony. There was no internal contradiction or irreconcilable conflict within R.L.’s testimony. Furthermore, all of the witnesses’ testimonies were consistent with each other and with R.L.’s testimony as to the defendant’s behavior. The trial court could have found that the State proved the essential elements of the crime of indecent behavior with a juvenile beyond a reasonable doubt. The evidence presented is sufficient to support the defendant’s conviction for indecent behavior with a juvenile. This assignment of error is without merit.

ERRORS PATENT

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).

Both the transcript and the commitment reveal that the trial court did not provide defendant with complete advice of the time limitation provided in La.C.Cr.P. art. 930.8, in that the court did not inform the defendant that he has two years from the date his conviction and sentence become final to file for post-conviction relief.

|nIf a trial court fails to advise or provides incomplete notice pursuant to La. C.Cr.P. art. 930.8, this Court may correct said error by informing the defendant of the applicable delay period for post-conviction relief by means of its opinion. See State v. Jacobs, 07-887 (La.App. 5 Cir. 5/24/11), 67 So.3d 535, writ denied, 11-1753, (La.2/10/12), 80 So.3d 468; State v. Thomas, 10-221 (La.App. 5 Cir. 11/9/10), 54 So.3d 688, writs denied, 10-2758 (La.4/25/11), 62 So.3d 89 and 10-2752 (La.5/20/11), 6 So.3d 974;

Thus, the defendant is hereby informed that no application for post-conviction relief, including an application for an out-of-time appeal, shall be considered if it is filed more than two years after the judgment of conviction and sentence have become final under the provisions of C.Cr.P. art. 914 or C.Cr.P. art. 922.

Furthermore, the trial court failed to inform the defendant of the sex offender registration requirements in accordance with La. R.S. 15:540, et seq. Defendant’s eonviction of indecent behavior with a juvenile, a violation of La. R.S. 14:81, is defined as a sex offense under La. R.S. 15:541(14.1). La. R.S. 15:542 outlines the mandatory registration requirements for sex offenders. La. R.S. 15:543(A) requires the trial court to notify a defendant charged with a sex offense in writing of the registration requirements of La. R.S. 15:542. The trial court’s failure to provide this notice is an error patent that requires remand. See State v. Bryant, 12-591 (La.App. 5 Cir. 2/21/13), 110 So.3d 1191, 1198-99; State v. Lande, 06-24 (La.App. 5 Cir. 6/28/06), 934 So.2d 280, 300-301, writ denied, 06 1894 (La.4/20/07), 954 So.2d 154, citing State v. Stevenson, 00-1296 (La.App. 5 Cir. 1/30/01), 778 So.2d 1165, 1166-1167.

Additionally, there is a more stringent notification process for child predators. The defendant fits the definition of a child predator pursuant to La. R.S. 15:541. La. R.S. 15:542.1 provides for a person defined as a sexual predator to be notified of the registration requirements for child predators. See State v. Thompkins, 04-1062 (La.App. 5 Cir. 2/15/05), 896 So.2d 1165, 1170-1172; State v. Polizzi, 05-478 (La.App. 5 Cir. 2/14/06), 924 So.2d 303, 316, writs denied, 06-1052 (La.11/3/06), 940 So.2d 660 and 08-2006 (La.1/30/09), 999 So.2d 751.

Thus, we remand this ease to the trial court with instructions to the trial judge to inform the defendant of the general sex offender and child predator registration provisions by sending appropriate written notice to defendant, within ten days of this Court’s opinion, and to file written proof in the record that the defendant received such notice. See State v. Starr, 08-341 (La.App. 5 Cir. 11/25/08), 2 So.3d 451, 460-61, writ denied, 08-2991 (La.9/18/09), 17 So.3d 384; State v. Borden, 07-396 (La.App. 5 Cir. 5/27/08), 986 So.2d 158, writ denied, 08-1528 (La.3/4/09), 3 So.3d 470; State v. Morgan, 06-529 (La.App. 5 Cir. 12/12/06), 948 So.2d 199, 214.

CONCLUSION

For the reasons stated above, the defendant’s conviction and sentence are affirmed and the proceeding is remanded for the trial court to provide the defendant with the required notifications consistent with this opinion.

AFFIRMED AND REMANDED

      . The victim's initials, as well as the initials of the victim's family members, are used under the authority of La. R.S. 46:1844(W)(3), which allows this Court to identify a crime victim who is a minor, or a victim of a sex offense, by using his or her initials.

      . In the interview when asked what her ‘‘privates” was by Lt. Boudin, R.L. pointed to her vagina.

      . J.L. testified that she confronted defendant about the incident with R.L. in May of 2009.

      . Defendant was previously convicted of first degree robbery, forgery, unauthorized use of a motor vehicle, and domestic abuse battery. Defendant testified that J.L. was the victim of the domestic abuse battery conviction and that he was in jail for that offense from April 24, 2009 until July 1, 2009. Thus, defendant testified that he could not have had a fight with J.L. in May of 2009, as J.L. claimed, since he was incarcerated.

      . Indecent behavior with a juvenile, La. R.S. 14:81, is a lesser included responsive verdict of molestation of a juvenile. The primary difference between La. R.S. 14:81.2 and La. R.S. 14:81 is that the molestation statute, La. R.S. 14:81.2, requires something more than the mere exertion of physical effort necessary to commit the lewd act. The so-called "use of force" element in the molestation statute refers to the forcible means of overcoming the will or the resistance of a victim. See State v. LeBlanc, 506 So.2d 1197 (La.1987). This added element of force or intimidation must be greater or substantially different from the effort necessary to commit the lesser offense of indecent behavior with a juvenile, La. R.S. 14:81. See State v. Carper, 47,409 (La.App. 2 Cir. 11/14/12), 107 So.3d 118.

      . The transcript and commitment indicate that the trial court advised defendant as follows: "It is further ordered that you be given two (2) years to request any post-conviction relief, including any out of time appeals according to Article 930.8.”

      . The law in effect at the time of the commission of the offense is determinative of the penalty that the convicted accused must suffer. State v. Johnson, 08-1156 (La.App. 5 Cir. 4/28/09), 9 So.3d 1084, 1094 n. 9, writ denied, 09-1394 (La.2/26/10), 28 So.3d 268 (citing State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518).

      . A red flag appears when key citing this statute. However, the flag is inapplicable to this case.


author: ROBERT M. MURPHY, Judge.

text:
    STATE of Louisiana v. Kevin ALEXANDER.
    No. 12-KA-836.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      Thomas F. Daley, District Attorney, Philip Prescott, Assistant District Attorney, Edgard, LA, for Plaintiff/Appellee.

      Prentice L. White, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant,
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and STEPHEN J. WINDHORST.
   ROBERT M. MURPHY, Judge.

12Pefendant, Kevin Alexander, Jr., appeals his March 21, 2012 conviction for one count of armed robbery with a firearm, in violation of La. R.S. 14:64 and La. R.S. 14:64.3, alleging that the evidence adduced at trial was insufficient to find him guilty of armed robbery with a firearm beyond a reasonable doubt. Specifically, defendant contends that it was manifestly erroneous for the jury to find him guilty based upon the testimony of the victim, where the evidence established that the victim is a known drug addict with a history of reporting people for committing crimes. For the reasons that follow, we find defendant’s assignment of error to be without merit and affirm his conviction and sentence.

FACTS AND PROCEDURAL HISTORY

Defendant, Kevin Alexander, Jr., was charged by bill of information with armed robbery with a firearm, in violation of La. R.S. 14:64 and 14:64.3. He pled not guilty at arraignment. Prior to trial, defendant filed a motion to suppress identification, which was denied by the trial court on December 1, 2011. On |3March 20, 2012, the case proceeded to a two-day jury trial. The following evidence was admitted at trial.

The victim, Ronald Joseph, recalled that on March 18, 2011, while on his way home from work, he stopped at an “In & Out” store in Reserve, Louisiana to cash his paycheck. Once Mr. Joseph arrived at his trailer home, he used approximately $220.00 of his paycheck to pay his rent and placed the remaining amount of $524.00 underneath the sofa in his trailer. Mr. Joseph gave his rent money to his neighbor, “McGuffy,” because his landlord was not home. When he dropped his rent money off to McGuffy, they had a “couple of beers” and then Mr. Joseph went home.

When Mr. Joseph arrived at his trailer, he found defendant in his trailer. Mr. Joseph testified that defendant put a gun to his head and said “give me your money.” He told defendant he did not have any money, at which point defendant cocked his gun and replied “yeah, you got money cause you just got paid.” Mr. Joseph then went and retrieved the $524.00 from underneath his sofa and gave it to defendant. The victim testified that defendant told him he needed «the money to buy his “little girl some stuff,” to which the victim responded “why didn’t you come just ask because I know you all of my life?” Mr. Joseph testified that he has known defendant and his family since defendant was a small child. Before leaving Mr. Joseph’s trailer, defendant told Mr. Joseph “I ought to kill you because I know you usually calling the police on, on people anyway.” Mr. Joseph explained that this statement must have been related to the fact that he had been robbed on three prior occasions by his nephew, his brother and a man named Mr. Tuco, and that he had reported all three crimes to the police at the time they occurred.

After defendant left, Mr. Joseph remained in his trailer for some time because he feared for his life and did not know if defendant was waiting outside for |4him. Mr. Joseph did not call the police while in his trailer because he did not own a phone. When he finally left his trailer, he went to McGuffys house to use his phone to call the police; however, since McGuffy was not home, he went down the street to his cousin’s house and called the police using her phone.

Deputy Christopher Powell, patrol deputy for the St. John Sheriffs Office, testified that he was dispatched to Mr. Joseph’s residence on the night of the incident, at which time Mr. Joseph identified defendant as the individual who entered his trailer, put a gun to his head and took money from him. Mr. Joseph was taken to the police station where he gave a statement and identified defendant from a photographic lineup. During the trial, Mr. Joseph again identified defendant as the individual who robbed him during the incident in question.

Mr. Joseph also testified that he ran into defendant’s father, Kevin Alexander, Sr., before trial and Mr. Alexander apologized for what had happened between him and his son and offered to pay Mr. Joseph $500.00 to drop the charges against his son, which Mr. Alexander confirmed at trial.

On cross-examination, Mr. Joseph was questioned repeatedly about whether he used crack cocaine, which Mr. Joseph consistently denied. Kevin Alexander, Sr., defendant’s father, testified that he has known Mr. Joseph for sixteen years and that he is known as a crack addict. However, Mr. Alexander admitted that he has never observed Mr. Joseph use drugs.

Defendant called two additional witnesses to testify as to Mr. Joseph’s alleged crack addiction. The first witness was Terrell Noel, an inmate at the Phelps Correctional Center who, at the time of trial, testified that he was currently serving a two-year sentence for his third marijuana conviction. Mr. Noel testified that he had known Mr. Joseph his “whole life” and that he has seen Mr. Joseph use |fidrugs. Mr. Noel further testified that Mr. Joseph told him that defendant did not rob him, only that defendant “took his money from him.”

Defendant also called Dedrick Labranch to testify regarding Mr. Joseph’s alleged crack addiction. When asked whether he has known Mr. Joseph to be a crack addict, Labranch answered affirmatively and stated that Mr. Joseph’s reputation in the community is that he smokes crack and is a drug addict. However, Mr. Labranch admitted that he had never actually witnessed Mr. Joseph smoke crack. Mr. La-branch also testified that he has been friends with defendant his entire life, and that defendant’s mother asked him to testify in court. He also admitted that while visiting defendant in jail, he told defendant that he “hopes he beats” the charge.

After the conclusion of the evidence on March 21, 2012, a 12-person jury found defendant guilty as charged. On May 14, 2012, the trial court denied defendant’s Motion for Judgment of Acquittal or Alternatively for a New Trial. On that same date, the trial court sentenced defendant to 27½ years at hard labor without the benefit of parole, probation, or suspension of sentence, with credit for time served. The trial court later clarified that five years of the 27½ sentence was imposed pursuant to the five-year firearm enhancement provided in La. R.S. 14:64.3. Defendant now files the instant appeal challenging his conviction on sufficiency grounds.

DISCUSSION

In his sole assignment of error, defendant contends that the district court erred when it accepted the jury’s guilty verdict because the evidence was insufficient to find him guilty of armed robbery with a firearm due to the State’s failure to prove beyond a reasonable doubt that defendant was the perpetrator of the armed robbery reported by Mr. Joseph, or that an armed robbery even occurred. | ^Specifically, defendant contends that it was manifestly erroneous for the jury to find him guilty based upon the testimony of Mr. Joseph where the evidence establishes that Mr. Joseph is a known drug addict, and has a history of reporting people for committing crimes.

In response, the State argues that through the eyewitness testimony of the victim, Mr. Joseph, it proved beyond a reasonable doubt that defendant was the perpetrator of the armed robbery at issue. The State further asserts that Mr. Joseph’s credibility is to be determined by the trier of fact, who, in this case, chose to believe Mr. Joseph despite defendant’s attempts to discredit his testimony. The State also maintains that all of the elements of the charged crime were proven and that the evidence was sufficient to support defendant’s conviction for armed robbery with a firearm.

The appropriate standard of review for determining the sufficiency of the evidence was established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). According to Jackson, the standard is whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. Under the Jackson standard, a review of a criminal conviction record for sufficiency of evidence does not require the court to ask whether it believes that the evidence at trial established guilty beyond a reasonable doubt. State v. Flores, 10-651 (La.App. 5 Cir. 5/24/11); 66 So.3d 1118, 1122.

Rather, the reviewing court must decide, after viewing the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.; Jackson, 443 U.S. at 319, 99 S.Ct. 2781; See also State v. Ortiz, 96-1609, p. 12 (La.10/21/97); 701 So.2d 922, 930, cert. denied, 524 U.S. 943, 118 S.Ct. 2352, 141 L.Ed.2d 722 (1998); State v. Holmes, 98-490, p. 3 (La.App. 5 Cir. 3/10/99); 735 So.2d 687, 690. It is not the function of the appellate court to assess credibility or re-weigh the evidence. State v. Smith, 94-3116, p. 2 (La. 10/16/95); 661 So.2d 442, 443. The trier of fact shall evaluate credibility, and when faced with a conflict in testimony, is free to accept or reject, in whole or in part, the testimony of any witness. State v. Bradley, 03-384 (La.App. 5 Cir. 9/16/03); 858 So.2d 80, 84, writ denied, 2003-2745 (La.2/13/04); 867 So.2d 688.

Evidence may be either direct or circumstantial. Circumstantial evidence consists of proof of collateral facts and circumstances from which the existence of the main fact can be inferred according to reason and common experience. State v. Williams, 05-59, p. 5 (La.App. 5 Cir. 5/31/05); 904 So.2d 830, 833. When circumstantial evidence is used to prove the commission of an offense, La. R.S. 15:438 provides that “assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.” State v. Wooten, 99-181, p. 4 (La.App. 5 Cir. 6/1/99); 738 So.2d 672, 675, writ denied, 99-2057 (La.1/14/00); 753 So.2d 208. This is not a separate test from the Jackson standard, but rather provides a helpful basis for determining the existence of reasonable doubt. Id. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. Wooten, 99-181 at 4-5, 738 So.2d at 675.

In order to prove the charged offense of armed robbery with a firearm under La. 14:64.3, the State must prove beyond a reasonable doubt that the defendant took “anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon,” and that “the dangerous weapon used in the commission of the crime of armed robbery is a firearm.” State v. Duncan, 09-232, pp. 7-8 (La.App. 5 Cir. 11/10/09); 28 So.3d 410, 415; See also La. R.S. 14:64 and La. R.S. 14:64.3.

Property that is taken is considered under the victim’s control when the victim could have prevented the taking had he not been subjected to the robber’s violence or intimidation. State v. Martin, 07-1035, p. 6 (La.App. 5 Cir. 10/28/08); 996 So.2d 1157, 1160 (citing State v. Mason, 403 So.2d 701, 704 (La.1981)). The State need not prove that the property taken was owned by the victim, but only that the accused was not the owner and the victim had a greater right to the item than the accused. Martin, supra. Furthermore, the act of pointing a gun at a victim is sufficient to prove the element of force or intimidation for purposes of armed robbery. Id.

In addition to proving the statutory elements of the charged offense at trial, the State is required to prove defendant’s identity as the perpetrator. State v. Draughn, 05-1825, p. 8 (La.1/17/07); 950 So.2d 583, 593, cert. denied, 552 U.S. 1012, 128 S.Ct. 537, 169 L.Ed.2d 377 (2007); State v. Ingram, 04-551, p. 6 (La.App. 5 Cir. 10/26/04); 888 So.2d 923, 926. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.

A positive identification by only one witness is sufficient to support a conviction. State v. Williams, 08-272, p. 4 (La.App. 5 Cir. 12/16/08); 3 So.3d 526, 529, writ denied, 09-0143 (La.10/16/09); 19 So.3d 470. In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient to support a requisite factual finding. State v. Caffrey, 08-717, p. 5 (La.App. 5 Cir. 5/12/09); 15 So.3d 198, 202, writ denied, 09-1305 (La.2/5/10); 27 So.3d 297 (citation omitted).

lain this case, defendant challenges his identity as the perpetrator of the offense, as well as whether the crime was actually committed. Defendant argues that Mr. Joseph’s testimony regarding the alleged robbery should be discredited based upon the testimony of several witnesses at trial regarding Mr. Joseph’s alleged drug addiction. Defendant contends that the testimony regarding Mr. Joseph’s alleged drug use supports his claim that Mr. Joseph fabricated the alleged armed robbery. Additionally, although defendant acknowledges that Mr. Joseph identified him as the robber, he argues that the evidence shows that Mr. Joseph only did so to avoid paying a debt owed to defendant. We find no merit in defendant’s assignment.

In State v. Cowart, 01-1178 (La.App. 5 Cir. 3/26/02); 815 So.2d 275, writ denied, 02-1457 (La.5/9/03); 843 So.2d 387, there was no physical evidence linking the defendant to the crime and a single witness identified the defendant as the perpetrator of a shooting. At trial, the reliability of the eyewitness was attacked because the witness was a convicted felon, had been under psychiatric care, had initially lied to the police, gave a description that did not match the defendant, had perjured herself during motion hearings, and had changed her story about the crime scene and the number of shots she heard. Despite this lengthy list of deficiencies, this Court held that it was within the jury’s discretion to believe the witness’s testimony. Id. at 285.

In the present case, Mr. Joseph testified that after he returned from his neighbor, McGuffys, house on March 18, 2011, he found defendant inside his trailer. Mr. Joseph testified that defendant put a gun to his head, cocked it, and demanded his money. In fear for his life, Mr. Joseph gave defendant the $524.00 he had hidden under the sofa. When the police arrived, Mr. Joseph told Deputy Powell that defendant had robbed him. Mr. Joseph testified that he has known |10defendant since defendant was a small child. Additionally, while at the police station, Mr. Joseph immediately identified defendant from a photographic line-up as the person who robbed him at gun point.

Defendant called the following three witnesses to testify as to Mr. Joseph’s alleged crack addiction: (1) Terrell Noel (a convicted felon); (2) Dedrick Labranch (defendant’s close friend); and (3) Kevin Alexander, Sr. (defendant’s father). However, Mr. Noel, a convicted felon, was the only witness who could testify that he actually witnessed Mr. Joseph use crack. Mr. Noel also testified that Mr. Joseph told Mr. Noel that defendant did not rob him, only that defendant “took his money from him.”

The jury was presented with the evidence regarding Mr. Joseph’s alleged drug use and chose to believe Mr. Joseph’s testimony despite defendant’s attempt to discredit him. The jury’s conclusion regarding the credibility of the witnesses is dependent upon its in-court observation, and when faced with a conflict in testimony, the jury is free to accept or reject, in whole or in part, the testimony of any witness. As we have stated previously, it is not the role of this Court to assess credibility or re-weigh evidence. Because a positive identification by one witness is sufficient to support a conviction, we find that despite the testimony regarding Mr. Joseph’s alleged drug use, the jury was within its discretion to believe Mr. Joseph’s testimony regarding the armed robbery.

Accordingly, after viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have found defendant guilty of armed robbery with a firearm beyond a reasonable doubt.

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La.App. 5 Cir.1990). No errors requiring corrective action were found.

^CONCLUSION

For the foregoing reasons, we affirm defendant’s conviction and sentence for armed robbery with a firearm.

AFFIRMED


author: MARC E. JOHNSON, Judge.

text:
    Kerwinn TEMPLE v. GLOBAL CONSTRUCTION.
    No. 13-CA-38.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      J. Jacob Goehring, Attorney at Law, Metairie, LA, for Plaintiff/Appellee.

      Patrick H. Patrick, Attorney at Law, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Pefendants/Appellants, Global Construction and its compensation carrier, Louisiana Commerce & Trade Association-Self Insurer’s Fund, (hereinafter collectively referred to as “Global”), appeal the workers’ compensation judge’s findings and awards in favor of Plaintiff/Appellee, Kerwinn Temple, from the Office of Workers’ Compensation, District “7”. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The following pertinent facts are adduced from the pleadings and record.

Mr. Temple was an employee of Global on February 26, 2011. Global provided labor in converting the Mandeville Street Wharf to a tourism facility. While working in the early morning hours, Mr. Temple fell or stepped off of a “pick board” or concrete support underneath the wharf, while accessing a concrete pier support. Mr. Temple injured his left elbow and his back in the fall. Craig Rink, Mr. Temple’s supervisor, took Mr. Temple to the hospital after the fall.

| oOn July 8, 2011, Mr. Temple filed his Disputed Claim for Compensation. In the claim, Mr. Temple alleged he injured his back and left elbow “while trying to secure roofing.” Mr. Temple verified that no wage benefits had been paid to him and no medical treatment was authorized by his employer. In his amended claim filed on July 18, 2011, Mr. Temple provided that he injured his left elbow, low back, neck, left hip and left leg on cement piling while walking down a pick board.

The trial on the merits was held on September 7, 2012, and the record was left open until September 27, 2012 for post-trial submissions. In her judgment rendered on October 23, 2012, the trial judge ordered Global to pay Mr. Temple temporary total disability benefits in the amount of $579.00 per week, retroactive to February 26, 2011 through the date of judgment, for a total of $49,794.00 together with legal interest; Global was ordered to continue to pay Mr. Temple temporary total disability benefits until modification; Global was given a credit of $384.00 for past indemnity paid; Global was ordered to pay Mr. Temple’s medical expenses and was ordered to approve and pay for recommended injections; Global’s La. R.S. 23:1208 and 1208.1 claims were denied; and Global was ordered to pay Mr. Temple $8,000.00 in penalties and $10,000.00 in attorney fees pursuant to La. R.S. 23:1201(1).

The instant appeal followed that judgment.

ASSIGNMENTS OF ERROR

On appeal, Global raises the following assignments of error: 1) the workers’ compensation judge erred as a matter of law by not correctly applying the burden that Mr. Temple had to prove immediate objective findings that the workplace accident produced the alleged injury; and 2) the workers’ compensation judge erred as a matter of law by summarily awarding penalties and attorney fees pursuant to La. R.S. 23:1201(1).

FLAW AND ANALYSIS

Burden of Proof

Global alleges the trial judge did not apply the correct legal standard in concluding that Mr. Temple proved entitlement to workers’ compensation benefits and failing to cite La. R.S. 23:1021(1). Global argues that Mr. Temple failed to prove any immediate objective medical findings of his injuries, despite the fact that Mr. Temple injured himself during a fall on concrete. Global contends that an objective medical finding of a bruise or a mark of some type on Mr. Temple’s back should have been visible during his first couple of medical examinations, especially during his first emergency room visit. Global further contends the only positive objective medical finding for Mr. Temple was an MRI performed on April 14, 2011, which showed a pre-existing degenerative finding that pre-dated Mr. Temple’s February 26, 2011 fall and does not show impingement that would account for Mr. Temple’s subjective complaints. As such, Global concludes that Mr. Temple failed to prove a back injury as required by La. R.S. 23:1021(1).

Conversely, Mr. Temple argues the trial judge properly applied the correct legal standard in that objective medical findings are cited throughout the Written Reasons. Mr. Temple asserts the record supports the trial judge’s findings in that every single doctor that he has seen since his February 26, 2011 workplace accident has opined that he injured his back on the date in question. Additionally, Mr. Temple asserts that no medical evidence was presented to indicate that he suffered from a pre-existing back condition prior to his workplace accident. Furthermore, Mr. Temple notes that in order for him to be entitled to receive workers’ compensation benefits, he only needed to prove by a preponderance of the evidence that a work-related accident occurred and that an injury was sustained. Mr. Temple contends that he sufficiently discharged his burden.

Is An employee seeking workers’ compensation benefits must prove “personal injury by accident arising out of and in the course of his employment.” La. R.S. 23:1031(A). The Louisiana Workers’ Compensation Act defines an accident as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1). Where the employee is able to identify an event marking the time the injury occurred or the symptoms arose or suddenly or markedly increased in severity, even if such event occurs during the performance of customary or routine work activities, the employee has established an “accident” within the meaning of La. R.S. 23:1021(1). Begue v. Crossover, Inc., 03-267 (La.App. 1 Cir. 11/21/03); 868 So.2d 100, 105.

The employee in a workers’ compensation action has the burden of proving a work-related accident by a preponderance of the evidence. Marange v. Custom Metal Fabricators, Inc., 11-2678 (La.7/2/12); 93 So.3d 1253, 1257. An employee may prove that an unwitnessed accident occurred in the course and scope of his employment by his testimony alone if the employee can prove (1) no other evidence discredits or easts serious doubt upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Id. Corroboration of the worker’s testimony may be provided by the testimony of fellow workers, spouses, or friends, or by medical evidence. Ardoin v. Firestone Polymers, L.L.C., 10-245 (La.1/19/11); 56 So.3d 215, 219.

In determining whether a worker has discharged his burden of proof, the fact-finder “should accept as true a witness’s uncontradicted testimony, although the witness is a party, absent ‘circumstances casting suspicion on the reliability of Ifithis testimony.’ ” Marange, supra. The fact-finder’s determination as to whether the worker’s testimony is credible and whether the worker has discharged his burden of proof are factual determinations that should not be disturbed on appellate review, unless clearly wrong or manifestly erroneous. Marange, 11-2678; 93 So.3d at 1257-58. If the trial court’s findings are reasonable in light of the entirety of the record, the appellate court may not reverse. Ricks v. Odyssey Health Care, 10-1099 (La.App. 5 Cir. 10/25/11); 77 So.3d 386, 389. Consequently, when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Id.

In the present case, Mr. Temple claimed he sustained injuries to his back and left elbow during a fall on a slab of concrete underneath the wharf on February 26, 2011. Although no one testified to actually witnessing the accident occur, Brian Rick-son, a fellow employee of Mr. Temple, testified that he and another employee, Mr. Gregory Martin, helped pick up Mr. Temple from the ground after the accident and helped Mr. Temple walk back to the barge. In a written statement dated February 28, 2011, Mr. Martin also stated that he helped pick Mr. Temple up after his fall. No evidence was presented to discredit Mr. Temple’s version of the occurrence of the accident.

Dr. Geoffrey Smith, an emergency room physician at West Jefferson Medical Center, testified that he examined Mr. Temple on February 26, 2011. During that examination, Mr. Temple indicated that his back was non-tender without deformity or spasm, and there was no sign of contusion. Dr. Smith diagnosed Mr. Temple with a back strain and stated that there was no reason to doubt Mr. Temple’s subjective complaints of pain.

Mr. Temple followed up his emergency room examination with a visit to Dr. Brian Bourgeois, a physician practicing occupational and industrial medicine, on 17March 1, 2011. Mr. Temple had reported pain primarily in his lower back. Dr. Bourgeois’ examination showed tenderness along both iliac crests, but no bruising or abrasions were visible on Mr. Temple’s back. However, Dr. Bourgeois did testify that Mr. Temple had a very small abrasion on his left elbow, but it was not swollen and had a normal range of motion. Dr. Bourgeois diagnosed Mr. Temple with a back strain and abrasion and contusion to his left elbow. Dr. Bourgeois released Mr. Temple to light duty on that visit.

Mr. Temple visited Dr. Bourgeois again on March 4, 2011 and March 14, 2011. On the March 4th visit, Dr. Bourgeois had no new findings and still diagnosed Mr. Temple with a back strain. At the March 14th visit, Dr. Bourgeois noted that Mr. Temple reported having varying pain degrees, yet, the exam was negative. As a result, Dr. Bourgeois noted that Mr. Temple would need an MRI. Dr. Bourgeois did not assign any physical restrictions to Mr. Temple on that visit. Mr. Temple did not return to Dr. Bourgeois after March 14th.

On November 3, 2011, Mr. Temple saw Dr. Alan Kaye for pain management. Dr. Kaye testified that Mr. Temple had four symptoms: left elbow pain, left shoulder pain, lower back pain, and left leg numbness. Dr. Kaye noted Mr. Temple had severe bilateral facet loading pain and had a very pure and precise Si distribution when lifting his left leg. Dr. Kaye also testified that Mr. Temple’s MRI showed an SI nerve root impingement or stenosis or foraminal narrowing. Dr. Kaye believed that Mr. Temple’s pinched nerve and bulging disc were related to Mr. Temple’s February 26, 2011 accident, and that Mr. Temple’s complaints coincided with what he read in the MRI report.

Mr. Temple’s medical reports from Dr. Ralph Gessner, an orthopedic surgeon, were admitted into evidence. The first medical report dated March 21, 2011 indicated Mr. Temple presented with an injury to his lower back from anj^injury on February 26, 2011. During that visit, Mr. Temple gave a history of a lower back injury from twenty years prior. Dr. Gess-ner noted Mr. Temple’s limited range of motion and spasm in the lumbar spine, and he restricted Mr. Temple’s activities. In several subsequent visits, Dr. Gessner noted Mr. Temple’s continuous low back pain and spasms. Dr. Gessner did not relate the injuries complained of on March 21st to the injury Mr. Temple had twenty years ago.

From the evidence presented at trial, we do not find the trial judge was manifestly erroneous in finding Mr. Temple discharged his burden of proof that he sustained injuries from an accident while working on the job on February 26, 2011. Mr. Temple’s testimony was not discredited, and the circumstances following the accident were corroborated by Mr. Rick-son’s testimony and Mr. Martin’s written statement. Furthermore, the medical evidence presented established objective findings that Mr. Temple had a back strain from his fall on February 26, 2011. Therefore, we will not disturb the trial judge’s findings.

Penalties and Attorney fees

Global alleges the trial judge committed legal error in imposing penalties and fees under La. R.S. 23:1201(1). First, Global avers Mr. Temple failed to prove his back injury. Second, Global avers that, even with Mr. Temple visiting numerous doctors, there remained a rational basis for it to conclude that benefits were not owed to him because of a lack of immediate objective findings of an injury. In addition, Global contends Mr. Temple was offered light-duty in accordance with Dr. Bourgeois’ work-release of Mr. Temple, but Mr. Temple refused to return to work. Thus, Global asserts that its basis for defending this case was not unreasonable and did not disregard the facts and circumstances presented.

Mr. Temple argues Global did not have a reasonable basis on which to controvert Mr. Temple’s claim for compensation. Mr. Temple asserts that, despite |flDr. Bourgeois’ interpretation of his condition, other doctors found him to be suffering from an objectively diagnosed back pain that rendered him unable to work. Mr. Temple notes that, while Dr. Bourgeois did state that he could perform light-duty work at his initial visit, Dr. Bourgeois restricted him from all work activity during his final visit and opined an MRI was necessary. Hence, under the manifest error standard of review, the trial judge’s awards should be left undisturbed.

La. R.S. 23:1201(1) provides,

Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims. The provisions as set forth in R.S. 23:1141 limiting the amount of attorney fees shall not apply to cases where the employer or insurer is found liable for attorney fees under this Section. The provisions as set forth in R.S. 22:1892(C) shall be applicable to claims arising under this Chapter.

In Williams v. Rowe-Treaudo, 11-46 (La.App. 5 Cir. 9/27/11); 75 So.3d 502, 508, this Court held the following regarding failure to pay workers’ compensation benefits:

When an employer has failed to pay worker’s compensation benefits, the proper standard for review of that decision is whether the employer reasonably controverted the claim. A claim for worker’s compensation is reasonably controverted if the employer has some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right to benefits has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under LSA-R.S.23:1201, a court must ascertain whether the employer engaged in a non-frivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay the benefits allegedly owed. Whether the refusal to pay benefits warrants the imposition of penalties and attorney fees is a factual question, which we will not disturb in the absence of manifest error. (Citations omitted).

| mHere, Global raised defenses under La. R.S. 23:1208 and 1208.1 for denying Mr. Temple’s benefit claims. The trial judge found both of those claims to be meritless and found the refusal of Mr. Temple’s benefits to be arbitrary and capricious. The trial judge awarded Mr. Temple $8,000.00 in penalties and $10,000.00 in attorney fees pursuant to La. R.S. 23:1201(1).

During her testimony, Michelle Hebert, the owner of Global, stated that she stopped paying Mr. Temple’s benefits after he was released to light-duty by Dr. Bourgeois, was offered light-duty work, and denied it. Yet, Ms. Hebert could not testify as to who actually spoke with Mr. Temple to inform him of the light-duty work offer or the date of the offer. Later during the testimony, Ms. Hebert testified that she could not recall why she stopped paying Mr. Temple’s benefits, and the payments may have been “overlooked.”

After review of the evidence presented, we cannot find the trial judge was manifestly erroneous in finding Global’s refusal to pay Mr. Temple’s benefit claims was arbitrary and capricious. Therefore, we cannot find the trial court was manifestly erroneous in awarding the penalties and attorney fees.

DECREE

For the foregoing reasons, we affirm the workers’ compensation judge’s findings, penalties and awards in favor of Kerwinn Temple and against Global Construction and the Louisiana Commerce & Trade Association-Self Insurer’s Fund. Global Construction and the Louisiana Commerce & Trade Association-Self Insurer’s Fund are assessed the costs of this appeal.

AFFIRMED


text:
    STATE of Louisiana in the Interest of J.S.A.
    No. 12-CA-785.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 23, 2013.

      Cheryl A. Carter, Department of Public Safety and Corrections, Baton Rouge, LA, for Plaintiff/Appellant.
    Panel composed of Judges FREDERICKA HOMBERG WICKER, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   FREDERICKA HOMBERG WICKER, Judge.

l?.The narrow issue presented in this appeal is whether the juvenile court exceeded its authority in ordering the Office of Juvenile Justice (OJJ) to provide educational tutoring to a juvenile placed in its custody. For the reasons provided herein, we find the juvenile court did exceed its authority. Accordingly, we vacate the judgment appealed.

On December 15, 2010, the Jefferson Parish Juvenile Court adjudicated J.S.A. delinquent and committed him to OJJ’s custody for a period of two years for the offense of Battery of a Correctional Facility Employee in violation of La. R.S. 14:34.5 and Unauthorized Entry of an Inhabited Dwelling in violation of La. R.S. 14:62.3. On July 19, 2012, the Honorable Irl R. Silverstein, judge ad hoc presiding, conducted a review hearing, during which he ordered that OJJ provide tutoring services to J.S.A.

In its sole assignment of error, OJJ contends that the juvenile court exceeded its authority in this ordering.

This Court has previously addressed the respective roles of the juvenile court and the state in the treatment of delinquent juveniles committed to the state’s custody. This Court has explained:

[T]he legislature set up a system of juvenile correction and rehabilitation in which, both courts exercising juvenile jurisdiction, Rand the state departments responsible for the custody of these juveniles, serve specific roles. Put succinctly, the role of the juvenile court judge is to oversee the general plan for the correction and rehabilitation of the child, while the role of the state is to provide the details for the implementation of that plan.

State in the Interest of V.N., 97-1190 (La.App. 5 Cir. 4/15/98), 712 So.2d 954, 959.

Furthermore, La. Ch.C. art. 908(A) provides that the state “shall have sole authority over the placement, care, treatment, or any other considerations deemed necessary from the resources that are available for children judicially committed to the department.” Likewise, La. R.S. 15:901D(1) provides, in part, that “[u]pon commitment to the Department of Public Safety and Corrections, the department shall have sole custody of the child and ... shall determine the child’s placement, care, and treatment, and the expenditures to be made therefor, through appropriate examinations, tests, or evaluations conducted under the supervision of the department.” Therefore, after a juvenile has been adjudicated delinquent and committed to the state’s custody, the state, or responsible department, retains authority to determine which services or treatment programs the department provides.

However, “the juvenile court retains jurisdiction to review the disposition and the power to change that disposition when warranted.” State in the Interest of V.N., 712 So.2d at 959; La. Ch.C. art. 912. Additionally, the trial court may make recommendations regarding the services provided for the child and “can insist that the state formulate an individualized plan for the child, and meet certain minimum | requirements consistent with R.S. 15:901.” State in the Interest of V.N., 712 So.2d at 959.

This Court has considered the sole issue presented in this appeal, i.e., whether a juvenile court exceeds its authority when it orders the state to provide specific educational services or tutoring to a juvenile placed in its custody. This Court has instructed that, once a juvenile has been committed to state custody, the juvenile court may not order the state to provide a specific type of treatment or service, such as educational tutoring, to the juvenile placed in its custody. See State in the Interest of R.F., 97-1056 (La.App. 5 Cir. 3/16/99), 733 So.2d 84, 85 (wherein this Court determined the juvenile court had exceeded its authority by ordering “one hour of tutoring per day” for a juvenile placed in state’s custody) and State in the Interest of V.N., 712 So.2d 954 (wherein this Court found the juvenile court had exceeded its authority in ordering that a juvenile placed in state’s custody spend more educational time working toward his GED).

Therefore, in this case, we find the juvenile court exceeded its authority in ordering that OJJ provide educational tutoring for J.S.A., a juvenile who had been committed to OJJ’s custody. Accordingly, the portion of the July 19, 2012 judgment ordering OJJ to provide educational tutoring to J.S.A. is hereby vacated.

JUDGMENT VACATED

      . The First Circuit Court of Appeal has also examined the scope of the juvenile court's authority and explained that, once a juvenile has been committed to the state's custody, "the court may not order the Department to provide a particular type of treatment or placement.” State in the Interest of L.A.H., 02-1867 (La.App. 1 Cir. 12/20/02), 836 So.2d 447, 449, quoting State in the Interest of D.B., 98-1188, (La.App. 1 Cir. 6/25/99), 739 So.2d 918, 920.

      . La. R.S. 36:408(H) provides that the Office of Juvenile Justice is an office of the Department of Public Safety and Corrections that is responsible for the "care, custody, security, and treatment of children adjudicated delinquent!.]”

      . La. R.S. 15:90,1 (F) provides:
      The Department of Public Safety and Corrections shall have an individualized plan for each child committed to the department except for a child committed to the department following adjudication for contempt. The plan shall be developed after consultation with the child and the family, if feasible. A copy may be forwarded to the court.