author: KUHN, J.

text:
    Randall C. RUSH v. Lynn Peuschold RUSH.
    No. 2012 CW 1502.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2013.

      Mitchell J. Hoffman, Suzette Marie Smith, New Orleans, LA, for Plaintiff-Appellee Randall C. Rush.
    Edith H. Morris, Suzanne Ecuyer Bayle, Bernadette R. Lee, Monica Hof Wallace, New Orleans, LA, for Defendant-Appellant Lynn Peuschold Rush.
    Before KUHN, PETTIGREW, and McDonald, jj.
   KUHN, J.

| jjThis appeal was taken by appellant, Lynn E. Peuschold, from a judgment declaring a purported matrimonial agreement to be valid as to form. For the following reasons, we convert this appeal into a supervisory writ, reverse the trial court judgment, and render declaratory judgment in favor of appellant.

PROCEDURAL BACKGROUND

On January 30,1993, Ms. Peuschold, and appellee, Randall C. Rush, signed a matrimonial agreement purporting to establish a separation of property regime between them during their contemplated marriage. The document was executed before a notary, but was not signed by witnesses. Thereafter, the parties were married on February 18, 1993, and two children were born of the marriage.

On August 31, 2011, Mr. Rush filed a petition for divorce in which he alleged that the parties were separate in property due to the prenuptial matrimonial agreement they executed. On September 30, 2011, over eighteen years after the parties married, Mr. Rush executed an acknowl-edgement by authentic act of his signature on the 1993 matrimonial agreement. In response to Mr. Rush’s request for admission of facts, Ms. Peuschold admitted that she signed the matrimonial agreement, but stated that her response was not “deemed an acknowledgement of any nature or kind under oath.”

In her answer to the divorce petition, Ms. Peuschold denied that a separate property regime existed, and she filed a reconventional demand asserting that the matrimonial agreement was invalid as to form. Additionally, on January 13, 2012, she filed a petition for declaratory judgment seeking a declaration that the matrimonial agreement was invalid and that a community of acquets and gains existed between the parties. Ms. Peuschold asserted that the agreement was invalid as to form because it was neither an authentic act due to the lack of |switnesses, nor was it an act under private signature duly acknowledged by both spouses. She further alleged that the agreement was invalid due to vices of consent.

At a hearing limited to the issue of the alleged vices of form, the trial court considered the dispositive issue to be whether Ms. Peuschold’s admission that she signed the matrimonial agreement operated as an acknowledgement of the agreement under La. C.C. art. 1836, which sets forth the manner in which private acts may be acknowledged. Concluding that it did, the trial court rendered judgment that the matrimonial agreement was valid as to form. Without reasons, the trial court designated the judgment as a final judgment pursuant to La. C.C.P. art. 1915(B)(1). Ms. Peuschold now appeals, alleging in three assignments of error that the trial court erred in finding the matrimonial agreement valid as to form.

APPELLATE JURISDICTION

Initially, we note that appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. Motorola, Inc. v. Associated Indemnity Corporation, 02-0716 (La.App. 1st Cir.4/30/03), 867 So.2d 715, 717. Even when a trial court has designated a partial judgment as being a final judgment under Article 1915(B) that designation is not |4determinative of this Court’s jurisdiction. Van ex rel. White v. Davis, 00-0206 (La.App. 1st Cir.2/16/01), 808 So.2d 478, 480. This Court must still ascertain whether it has appellate jurisdiction to review the partial judgment from which the appeal was taken. See R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113, 1122. We cannot determine the merits of an appeal unless our appellate jurisdiction is properly invoked by a valid final judgment. Texas Gas Exploration Corporation v. Lafourche Realty Company, Inc., 11-0520 (La.App. 1st Cir.11/9/11), 79 So.3d 1054, 1061, writ denied, 12-0360 (La.4/9/12), 85 So.3d 698. In the instant case, Ms. Peuschold’s petition for declaratory judgment sought a declaration that the alleged matrimonial agreement was invalid and that a community of acquets and gains existed between the parties. However, the judgment rendered by the trial court dealt only with Ms. Peuschold’s claim that the agreement was invalid for vices of form. Having found the agreement to be valid as to form, the trial eourt was still required to adjudicate the claim that the agreement was invalid due to vices of consent before it could determine whether Ms. Peuschold was entitled to the declaratory relief she sought.

Given the circumstances, allowing an immediate appeal of a decision deciding one, but not all, of the issues raised in attacking the validity of the alleged matrimonial agreement only serves to encourage multiple appeals and piecemeal litigation, causing delay and judicial inefficiency. Thus, we find that the trial court erred and abused its discretion in certifying the instant judgment as a final judgment pursuant to Article 1915(B). Nevertheless, we choose to exercise our discretionary jurisdiction to convert this appeal of a non-final judgment into a supervisory writ application and review the trial court’s judgment, since it appears arguably incorrect and a reversal of the judgment would terminate Ms. Peuschold’s suit for declaratory judgment regarding the validity of the | ^matrimonial agreement. See Herlitz Construction Company, Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La.1981) (per curiam).

VALIDITY OF THE MATRIMONIAL AGREEMENT

Ms. Peuschold argues that, in finding the matrimonial agreement valid as to form, the trial court ignored the requirements of La. C.C. art. 2329. Specifically, she argues that La. C.C. art. 2331, which sets forth the form requirements for matrimonial agreements, must be read in conjunction with the temporal requirement of Article 2329 that spouses who wish to enter into a matrimonial agreement during marriage modifying or terminating a matrimonial regime must obtain court approval. Since the matrimonial agreement at issue was not acknowledged until over eighteen years after the parties’ marriage and no court approval was obtained, she asserts it was invalid as to form. We agree.

Under Articles 2329 and 2331, parties may enter into a matrimonial agreement either before or during marriage concerning all matters not prohibited by public policy. Article 2331 requires that such matrimonial agreements be “made by authentic act or by an act under private signature duly acknowledged by the spouses.” Additionally, although Article 2331 does not impose a temporal requirement for the spousal acknowledgements, Article 2329 requires that, in order for spouses to enter into a matrimonial agreement that modifies or terminates a matrimonial regime during marriage, the spouses must file a joint petition and obtain court approval for the agreement.

Since both Articles 2329 and 2331 deal with the execution of matrimonial agreements, they must be read in pari materia. See La. C.C. art. 13. When two statutes can be reconciled by a fair and reasonable interpretation, the court must read the statutes so as to give effect to each. In re First Columbia Life Insurance Company, 97-1083 (La.App. 1st Cir.9/29/98), 724 So.2d 790, 794, writ not considered, 98-2789 (La.1/8/99), 734 So.2d 1222. Further, due to the strong legislative policy against spouses giving up their community rights during marriage without judicial supervision, the formalities of Article 2329 must be construed stricti juris. Poirier v. Poirier, 626 So.2d 868, 870 (La.App. 3d Cir.1993), writ denied, 94-0161 (La.3/11/94), 634 So.2d 389.

In the instant case, it is undisputed that the matrimonial agreement is not in authentic form due to the absence of witnesses. See La. C.C. art. 1833. Nevertheless, the trial court accepted Mr. Rush’s argument that the 1993 matrimonial agreement was valid as to form under Article 2331 because it was an act under private signature duly acknowledged by both spouses, Mr. Rush’s acknowledgement being an authentic act executed on September 30, 2011, and Ms. Peuschold’s acknowledgement consisting of her admission during discovery that she signed the agreement. The trial court erred in doing so.

Regardless of whether Ms. Peuschold’s admission that she signed the matrimonial agreement operated as an acknowledgement, that admission occurred during the existence of the marriage, as did Mr. Rush’s own acknowledgement. Thus, even though the parties executed the matrimonial agreement by private act prior to their marriage, they did not perfect all of the elements of form required by Article 2331 prior to their marriage. Therefore, no valid matrimonial agreement existed at the time that the parties entered into marriage, and a community of acquets and gains was created by operation of law. See La. C.C. arts. 2327 & 2334. Nor could the mere acknowledgement of the private act during the marriage validate the matrimonial agreement, since Article 2329, which must be strictly construed, mandates that spouses can only modify or terminate a matrimonial [7regime during marriage by filing a joint petition and obtaining court approval. No such joint petition was filed or court approval obtained in the instant case. Accordingly, we find that the 1993 matrimonial agreement was invalid as to form due to the failure of the parties to comply with the requirements of Articles 2329 and 2331.

CONCLUSION

For the reasons assigned, we grant this writ and reverse the judgment of the trial court. Additionally, we hereby render judgment in favor of Lynn E. Peuschold, and against Randall C. Rush, declaring that a community of acquets and gains existed between the parties during their marriage because the January 30, 1998 matrimonial agreement they executed is invalid due to lack of proper form. All costs of this appeal are assessed to Mr. Rush.

WRIT GRANTED; REVERSED AND RENDERED.

      . Louisiana Code of Civil Procedure article 1915(B) provides:
      (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories, whether in an original demand, reconventional demand, cross-claim, third party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
      (2) In the absence of such a determination and designation, any order or decision which adjudicates fewer than all claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties and shall not constitute a final judgment for the purpose of an immediate appeal. Any such order or decision issued may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.

      . We do not believe any conflict exists between Articles 2329 and 2331. Article 2331 provides the general requirements of form for a matrimonial agreement and Article 2329 provides the additional requirement of court approval when the legal regime is altered or modified during marriage. However, to the extent that any conflict arguably exists, Article 2329, being the more specific provision dealing with matrimonial agreements during the existence of a marriage, governs the instant situation. See Arabie v. CITGO Petroleum Corporation, 10-2605 (La.3/13/12), 89 So.3d 307, 320 (when two statutes apply to the same subject matter and their language cannot be harmonized, the language of the more specific statute applies).


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    STATE of Louisiana v. Shawn E. HAMMOND.
    No. 2012 KA 1559.
    Court of Appeal of Louisiana, First Circuit.
    March 25, 2013.
    Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn W. Landry, Special Appeals Counsel, Baton Rouge, LA, for State of Louisiana.

      Powell Miller, New Orleans, LA, for Defendant-Appellant, Shawn E. Hammond.
    Before KUHN, PETTIGREW, and McDonald, jj.
   PETTIGREW, J.

LThe defendant, Shawn E. Hammond, was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1 (count 1) and attempted second degree murder, a violation of La. R.S. 14:27 and 14:30.1 (count 2). He pled not guilty and, following a jury trial, was found guilty of second degree murder. He filed a motion for postverdict judgment of acquittal and a motion for new trial, both of which were denied. He was then sentenced to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. The defendant now appeals, designating two assignments of error. For the following reasons, we affirm the defendant’s conviction and sentence.

FACTS

On November 26, 2007, Annette Gordon and Eric Frick were on the front porch of their home when Gordon saw two men, later identified as the defendant and Brandon Davis, standing on the sidewalk. The defendant approached the house, said his truck had broken down, and asked to use a phone, while Davis stood a few steps behind him on the walkway leading to the porch. Gordon gave her cell phone to the defendant and went inside the house. After entering the house, she heard what she thought was a firecracker. She ran to the front of the house, opened the front door, and saw Frick lying on the front porch steps. Frick died shortly thereafter from a gunshot wound. Gordon went back into the house and locked the door. She then looked down, saw blood, and discovered that she had been shot in the hand, apparently by a bullet that entered the home through a side window. She immediately called 9-1-1. The defendant and Davis left the scene. Investigations led the police to the defendant and Davis, and Gordon identified the defendant as the man who approached her home and asked to use her |sphone. After a jury trial, the defendant was convicted of second degree murder by a ten to two non-unanimous verdict.

NON-UNANIMOUS JURY VERDICT

In two related assignments of error, the defendant argues that Louisiana Constitution article I, § 17 A, that allows for non-unanimous jury verdicts, violates the right to a jury trial and the right to equal protection of the laws guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution. Specifically, the defendant argues that the enactment of its source provision in the Louisiana Constitution of 1898 was motivated by an express and overt desire to discriminate on the basis of race.

The punishment for second degree murder is life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. See La. R.S. 14:30.1 B. Article I, § 17 A and Louisiana Code of Criminal Procedure article 782(A) provide that in cases where punishment is necessarily at hard labor, the case shall be tried by a jury composed of twelve jurors, ten of whom must concur to render a verdict. Under both state and federal jurisprudence, a criminal conviction by a less than unanimous jury does not violate the right to trial by jury specified by the Sixth Amendment and made applicable to the states by the Fourteenth Amendment. See Apodaca v. Oregon, 406 U.S. 404, 406, 92 S.Ct. 1628, 1630, 32 L.Ed.2d 184 (1972); State v. Belgard, 410 So.2d 720, 726-27 (La.1982); State v. Shanks, 97-1885, pp. 15-16 (La.App. 1 Cir. 6/29/98), 715 So.2d 157, 164-165.

This court and the Louisiana Supreme Court have previously rejected the argument raised in defendant’s assignments of error. See State v. Bertrand, 2008-2215, pp. 6-7 (La.3/17/09), 6 So.3d 738, 742-43; State v. Smith, 2006-0820, pp. 23-24 (La.App. 1 Cir. 12/28/06), 952 So.2d 1, 16, writ denied, 2007-0211 (La.9/28/07), 964 So.2d 352. In \ ¿Bertrand, the Louisiana Supreme Court specifically found that a non-unanimous twelve-person jury verdict is constitutional and that Article 782 does not violate the Fifth, Sixth, and Fourteenth Amendments. Moreover, the Bertrand court rejected the argument that non-unanimous jury verdicts have an insidious racial component and pointed out that a majority of the United States Supreme Court also rejected that argument in Apo-daca, Although Apodaca was a plurality rather than a majority decision, the United States Supreme Court has cited or discussed the opinion various times since its issuance and, on each of these occasions, it is apparent that its holding as to non-unanimous jury verdicts represents well-settled law. Bertrand, 2008-2215 at 6-7, 6 So.3d at 742-743. Thus, Louisiana Constitution article I, § 17 A and Louisiana Code of Criminal Procedure article 782(A) are not unconstitutional and, therefore, not in violation of the defendant’s federal constitutional rights.

Accordingly, these assignments of error are without merit.

CONVICTION AND SENTENCE AFFIRMED.

      . Co-defendant Brandon Davis was charged by the same bill of information, tried with the defendant, and convicted of second degree murder. He has filed a separate appeal with this court. See State v. Davis, 2012-1391 (La.App. 1st Cir.3/22/13) (unpublished opinion).

      . The state nol-pressed count 2.

      .We question whether the defendant properly raised the issue in the court below, reserving it for appellate review, because he did not file any pretrial motions to declare the complained-of provision to be unconstitutional. Nevertheless, because the issue was raised in the district court in the defendant’s supplemental motion for new trial, we will address its merit.

      . In Bertrand, the court only considered Article 782, while the defendant in the instant case attacks Article I, § 17 A itself. We find this approach to be a distinction without a difference because Article 782 closely tracks the language of Article I, § 17 A.

      . Apodaca involved a challenge to the non-unanimous jury verdict provision of Oregon’s state constitution. Johnson v. Louisiana, 406 U.S. 356, 360, 92 S.Ct. 1620, 1623-1624, 32 L.Ed.2d 152 (1972), decided with Apodaca, also upheld Louisiana’s then-existing constitutional and statutory provisions allowing nine-to-three jury verdicts.


author: JAMES F. McKAY, III Chief Judge.

text:
    Elizabeth GARCIA v. CITY OF NEW ORLEANS (N.O. Police Department).
    No. 2012-CA-1459.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 3, 2013.

      C. Theodore Alpaugh, III, Guste Barnett Schlesinger Henderson & Alpaugh, L.L.P., New Orleans, LA, for Plaintiff/Appellant.
    Kiana M. Mitchell, Craig B. Mitchell, Michael S. Rodriguez, Mitchell & Associates, APLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge ROLAND L. BELSOME, Judge SANDRA CABRINA JENKINS).
   JAMES F. McKAY, III Chief Judge.

|! Plaintiff, Elizabeth Garcia (“Ms. Garcia”), appeals the judgment of the Office of Workers’ Compensation granting a motion for summary judgment in favor of her employer, the City of New Orleans (“City”). For the reasons that follow, we affirm.

STATEMENT OF FACTS/PROCEDURAL HISTORY

The City employed Ms. Garcia as a police officer. Ms. Garcia filed a disputed claim for compensation, alleging that she sustained an injury after falling while coming down a stairwell at, the police station. Approximately sixteen hours after the incident, Ms. Garcia appeared at the emergency room and was hospitalized with acute appendicitis. Dr. Gary Danos performed an appendectomy on Ms. Garcia. Complications required Ms. Garcia to undergo a prolonged hospital stay and convalescence. Ms. Garcia averred that the fall at the police station caused the appendicitis.

The City filed a motion for summary judgment, wherein it argued that Ms. Garcia would not be able to establish a causal connection between the fall and the appendicitis. In support of the motion for summary judgment, the City introduced |2the deposition of Dr. Danos. Ms. Garcia also relied on Dr. Danos’ deposition testimony in opposition to the summary judgment.

Dr. Danos testified that adults generally require an appendectomy when there is an obstruction, such as fecalith (a hard piece of fecal matter), tumors, or parasites. Dr. Danos stated that Ms. Garcia’s records did not mention an obstruction. However, Dr. Danos admitted that normally he is not looking for a cause of acute appendicitis when the surgery is performed. Dr. Da-nos recalled that the appendix was falling apart when he picked it up as it was gangrenous. Dr. Danos explained that the appendix becomes gangrenous when the blood supply is cut off, but he did not know what caused the blood supply to be cut off to Ms. Garcia’s appendix.

Dr. Danos testified that he did not know if he could give a cause to Ms. Garcia’s acute appendicitis, but noted that the proximity of the fall makes one feel that they had to consider the fall as a possibility. Dr. Danos acknowledged that there, is medical literature, which provides that blunt trauma can be a cause of acute appendicitis, though it is rare. Dr. Danos also explained that acute appendicitis can be idiopathic, in that you cannot find the cause. He stated that in this case, it was possible that Ms. Garcia’s appendicitis could have been idiopathic, and the trauma was coincidental.

After taking the matter under consideration, the workers’ compensation judge granted the City’s motion for summary judgment, dismissing Ms. Garcia’s claim with prejudice. From that judgment, Ms. Garcia filed the instant appeal.

STANDARD OF REVIEW

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. | Samaha v. Rau, 2007-1726, pp. 3-4 (La.2/26/08), 977 So.2d 880, 882-83. “Generally, material facts are those that potentially ensure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute.” Safeway Ins. Co. of Louisiana, 2009-0074, pp. 2-3 (La.App. 4 Cir. 5/27/09), 13 So.3d 236, 238 (citing Prado v. Sloman Neptun Schiffahrts, A.G., 611 So.2d 691, 699 (La.App. 4 Cir.1992)).

Appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the district court’s consideration of whether summary judgment is appropriate. Greemon v. City of Bossier City, 2010-2828, p. 6 (La.7/1/11), 65 So.3d 1263, 1267 (citing Schroeder v. Bd. of Supervisors of Louisiana State University, 591 So.2d 342, 345 (La.1991)). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Martinez v. American Steelway Industries, L.L.C., 2009-0339, p. 3 (La.App. 4 Cir. 9/2/09), 20 So.3d 526, 528 (citing Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490). The burden of proof does not shift to the party opposing summary judgment until the moving party presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the opposing party “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof 14at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted. Martinez, 2009-0339, p. 4, 20 So.3d at 528 (citing Lomax v. Ernest Morial Convention Center, 2007-0092, pp. 2-3 (La.App. 4 Cir. 7/11/07), 963 So.2d 463, 465).

DISCUSSION

An employee is entitled to compensation benefits if he or she suffers a personal injury by an accident arising out of and in the course of employment. La. R.S. 23:1031. The Supreme Court has stated that under this statute a successful claimant’s proof must show personal injury which is the result of an accident, which accident arises out of and in the course of employment. Buxton v. Iowa Police Department, 2009-0520, pp. 11-12 (La.10/20/09), 23 So.3d 275, 283. The chain of causation required by the statutory scheme as adopted by the legislature in La. R.S. 23:1031 is that the employment causes the accident, the accident causes injury, and the injury causes disability. The employee has the burden of proving, by a preponderance of the evidence, that the resulting disability is related to an on-the-job injury. Id. at p. 12, 23 So.3d at 283.

In this appeal, Ms. Garcia asserts that the workers’ compensation judge erred in granting the motion for summary judgment on the issue of causation. Ms. Garcia argues that she only had to show a reasonable possibility that the appendicitis was caused by the fall at the police station, which she maintains was established through Dr. Danos’ deposition testimony.

In support of her argument, Ms. Garcia cites Walton v. Normandy Village Homes Ass’n, Inc., 475 So.2d 320 (La.1985). Specifically, Ms. Garcia points to the portion of the decision wherein the Court stated:

lsAs in other civil suits the employee in a worker compensation proceeding initially has the burden of establishing his disability and its causal relation with the employment accident by a preponderance of the evidence. Lucas v. Ins. Co. of N.A., 342 So.2d 591 (La.1977); Prim v. City of Shreveport, 297 So.2d 421 (La.1974). Malone & Johnson, 13 Louisiana Civil Law Treatise, Worker’s Compensation (2d ed.) § 256, p. 562. In order for the employee to recover, it must be determined that the employment somehow caused or contributed to the disability, but it is not necessary that the exact cause be found. Lucas v. Ins. Co. of N.A., supra; Malone & Johnson, supra. A claimant’s disability is presumed to have resulted from an accident, however, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing either that there is sufficient medical evidence to show there to be a reasonable possibility of causal connection between the accident and the disabling condition, Altor v. Belden Corp., 393 So.2d 1233 (La.1981); Lucas v. Ins. Co. of N.A., supra, or that the nature of the accident, when combined with the other facts of the case, raises a natural inference through human experience of such a causal connection. Haughton v. Fireman’s Fund American Ins. Cos., 355 So.2d 927 (La.1978); Cf. Thomas v. U.S. Cas. Co., 218 Ga. 493, 128 S.E.2d 749 (1962); Malone & Johnson, supra.

Walton, 475 So.2d at 324.

Citing Prim, supra at 422, the Supreme Court further noted in Buxton:

Although procedural rules are construed liberally in favor of workmen’s compensation claimants, the burden of proof, by a preponderance of the evidence, is not relaxed. Thus, the testimony as a whole must show that more probably than not an employment accident occurred and that it had a causal relation to the disability. If the testimony leaves the probabilities equally balanced, the plaintiff has failed to carry the burden of persuasion. Likewise, the plaintiffs case must fail if the evidence shows only a possibility of a causative accident or leaves it to speculation or conjecture.

Buxton, 2009-0520, p. 12, 23 So.3d at 283.

First, we note that there is no evidence in the record regarding the state of Ms. Garcia’s health prior to the fall. Additionally, the testimony of Dr. Danos provided that the probabilities were left equally balanced between the fall causing the appendicitis and the appendicitis being idiopathic. It is evident from his |fitestimony that Dr. Danos could not say that Ms. Garcia’s appendicitis was more probably than not caused by the fall. Thus, Ms. Garcia failed to carry her burden.

Ms. Garcia further argued before the trial court that Dr. Danos provided a differential diagnosis during his testimony, i.e., he eliminated every other possibility then determined that the fall was the most likely cause. We disagree. “Differential diagnosis” has been defined as:

[a] standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated. A reliable differential diagnosis typically, though not invariably, is performed after “physical examinations, the taking of medical histories, and the review of clinical tests, including laboratory tests,” and generally is accomplished by determining the possible causes for the patient’s symptoms and then eliminating each of these potential causes until reaching one that cannot be ruled out or determining which of those that cannot be excluded is the most likely. This technique “has widespread acceptance in the medical community, has been subject to peer review, and does not frequently lead to incorrect results.”

Keener v. Mid-Continent Cas., 2001-1357, pp. 10-11 (La.App. 5 Cir. 4/30/02), 817 So.2d 347, 354 (quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262-263 (4th Cir.1999)). The Keener court further noted that a “review of Louisiana cases shows that physicians’ use of differential diagnosis is usual and customary to evaluate a patient’s symptoms, and a physician’s failure to employ this method to arrive at a diagnosis has been found to breach the standard of care.” Keener, 2001-1357, p. 11, 817 So.2d at 354.

Dr. Danos testified that because the more common causes of appendicitis were not present in Ms. Garcia’s case, the fall had to be considered because it was the only thing that was left. However, upon further questioning, Dr. Danos testified that it is possible that the appendicitis was idiopathic, and that the fall sustained by Ms. Garcia was coincidental. After reviewing the testimony, we find |7that Dr. Danos did not perform a differential diagnosis, i.e., he did not isolate the fall as the most probable cause of Ms. Garcia’s appendicitis.

CONCLUSION

Following our de novo review of the record, we conclude that Ms. Garcia failed to produce factual support sufficient to establish that she will be able to satisfy her evidentiary burden of proof at trial. Therefore, there is no genuine issue of material fact, and the motion for summary judgment was properly granted. The judgment of the trial court is affirmed.

AFFIRMED

      . We note that La. C.C.P. art. 966(B) was amended in 2012 to delete "on file.” However as this case was filed prior to the amendment the former version is applicable.


author: DANIEL L. DYSART, Judge.

text:
    Shawn Tiffany BRENNAN and Samantha Scott Brennan, in their capacity as Independent Co-Executors of the Succession of James Charles Brennan v. BRENNAN’S INC.
    No. 2012-CA-1419.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 3, 2013.
    Philip A. Franco, Margot Lilly Kramer Want, Diana Cole Surprenant, Adams and Reese LLP, New Orleans, LA, for Plaintiffs/Appellee.
    Gustave A. Fritchie, III, Edward W. Trapolin, David W. O’Quinn, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Intervenors/Appellant.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

|,Edward Tuck Colbert and Kenyon & Kenyon, LLP appeal the denial of a Motion for Leave to Intervene filed in the captioned lawsuit. For the following reasons, we affirm the judgment of the trial court.

FACTUAL BACKGROUND:

Shawn Tiffany Brennan and Samantha Scott Brennan, independent coexecutors of the succession of James Charles Brennan (collectively “the Succession”), filed a petition for declaratory judgment against Brennan’s, Inc. (“Brennan’s”), seeking to have an outstanding loan made by the decedent set off against an amount due to the Succession from a stock redemption agreement between the decedent and Brennan’s.

Subsequently, the Succession filed a motion for summary judgment in which it argued that there were no issues of material fact as to what was owed by Brennan’s to the Succession, and what was owed by the Succession to Brennan’s, and that as a matter of law, the amounts were set off against one another. Brennan’s filed an opposition and a hearing was set.

|2Prior to the hearing, appellants attempted to intervene in the underlying lawsuit by filing a Motion for Leave to Intervene. The trial court set the motion for the same date as the hearing on the motion for summary judgment. In the Petition for Intervention, appellants explained that they were judgment creditors of Brennan’s, and sought to intervene in the defense of Brennan’s against the requested offset sought by the Succession. Lastly, appellants sought to continue the hearing set on the motion for summary judgment to allow discovery to be conducted.

At the hearing on June 29, 2012, Brennan’s acquiesced in the granting of summary judgment. Without addressing appellants’ request for a continuance, the trial court denied the Motion for Leave to Intervene. The trial court also granted the Succession’s motion for summary judgment.

On August 8, 2012, appellants filed a Motion for Devolutive Appeal of the denial of their Motion for Leave to Intervene, and filed a separate Motion for Devolutive Appeal of the summary judgment granted in favor of the Succession. The trial court signed both motions. However, on August 13, 2012, the trial court vacated the previous order granting an appeal to appellants of the summary judgment, and denied the motion, stating that “Edward Tuck Colbert is not a party to this litigation, and thereby does not have an interest in this Motion.”

Appellants thereafter filed a supervisory writ in this Court, which was denied.

|sAppelIants are now before this Court seeking to reverse the trial court’s ruling denying them the right to intervene in the underlying lawsuit. For the following reasons, we affirm.

DISCUSSION:

The sole assignment of error is that the trial court erred in denying appellants’ motion to intervene.

Article 1091 of the Louisiana Code of Civil Procedure provides:

A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demands; or
(8) Opposing both plaintiff and defendant.

The parties agree that the intervenor must have both a justiciable right in, and d eonnexity to, the principal demand. Diefenthal v. Longue Vue Found., 02-1470, p. 11-12 (La.App. 4 Cir. 1/7/04), 865 So.2d 863, 872.

Appellants argue that they have a justi-ciable right to execute on a $4,000,000.00 judgment they obtained against Brennan’s in an unrelated lawsuit. They argue that they are connected to the underlying suit because the outcome of the suit directly impacts their right to collect the debt. More specifically, they argue that if the Succession is allowed to improve its position by “stepping ahead” |4of appellants for payment of the debt owed by Brennan’s to the Succession, it will have a detrimental effect on appellants’ ability to collect its debt from Brennan’s.

In support of their argument, the appellants cite In re Savoie’s Childrens Trust, 11-0698 (La.App. 5 Cir. 3/13/12), 90 So.3d 1183. In that case, Deutsche Bank appealed a judgment annulling the dissolution of a trust. The trust, established by parents for their minor children, purchased a piece of property in St. Tammany Parish. When payments were not made on the mortgage, the trustee (mother) filed a petition to dissolve the trust and transfer its assets to the trustee and her husband. The parents then used the property to secure a loan from Deutsche Bank.

When they defaulted on the loan, the parents filed in Jefferson Parish a petition to nullify the judgment dissolving the trust, thereby making the children (who had reached majority), the putative owners of the property. Deutsche Bank, which was not served or otherwise notified of the petition filed in Jefferson Parish, appealed the judgment nullifying the dissolution of the trust.

The appellate court found that Deutsche Bank had standing to appeal, although it was not a party to the underlying litigation, because the action for nullity placed in question ownership of the property on which Deutsche Bank had a security interest. The court stated:

The relief sought by the petitioners [parents] in annulling the 2001 judgment dissolving the trust could potentially have an impact on the bank’s right to pursue executory relief under the terms of its mortgage. Therefore, until such time as the executory proceedings in St. Tammany Parish are resolved, the bank has a justiciable interest in |5opposing the relief that the plaintiffs seek in the Jefferson Parish nullity proceeding. Under these circumstances, the bank clearly had a right to intervene in the trial court, and it therefore has a right to appeal the judgment.

Id., 11-698, p. 4, 90 So.3d at 1186.

The Succession argues that the right appellants assert is not directly related to the principal demand between the Succession and Brennan’s. The Succession does not deny that the appellants have a money judgment against Brennan’s, but argues that the fact that appellants have a right to collect a debt against Brennan’s does not establish that the right is connected to the main demand.

We agree. The Savoie case is distinguishable from the case below. The instant case involves debts owed by Brennan’s to the Succession, debts that were established at the death of Jimmy Brennan and the terms of the stock redemption agreement. Appellants’ right to execute on the money judgment is separate and distinct from the subject of the principal demand, and therefore not enforceable through intervention.

Accordingly, we affirm the trial court’s judgment denying appellants’ Motion for Leave to Intervene.

AFFIRMED

      . Neither of the original parties has appealed this judgment.

      . Appellants filed a motion for summary judgment on a suit on open account against Brennan's relative to legal services provided in connection with a totally unrelated lawsuit filed in federal court. The summary judgment was rendered June 14, 2011, in favor of appellants. Brennan’s filed a devolutive appeal in this Court, but the appeal was dismissed and remanded with instructions to correct and complete the record. The appeal has not been re-lodged in this Court as of this date.

      . The Succession suggests that the judgment appellants seek to enforce is not final because it is on appeal. We note that briefs in this matter were filed prior to the decision in the referenced appeal. See fn. 2, infra.


text:
    STATE of Louisiana v. Joseph TAYLOR.
    No. 2012-KA-0889.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 3, 2013.
    Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, New Orleans, LA, for Appellant/State of Louisiana.
    Patrick A. Joseph, Orleans Public Defenders, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge PAUL A. BONIN, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

LThe State of Louisiana appeals the ruling of the district court quashing the charge of armed robbery with a firearm, La. R.S. 14:64.3, on the basis of “double jeopardy.” For the reasons set forth below, we reverse the ruling of the district court and remand this matter to the district court for further proceedings.

BACKGROUND:

Defendant, Joseph M. Taylor, was charged by bill of information "with two counts of armed robbery with a firearm, in violation of La. R.S. 14:64.3. The bill of information alleged separate victims— McKinley Baptiste (count one) and Lamide Infanse (count two).

Both counts were tried together before a jury, which found Taylor not guilty of count two (Lamide Infanse), and returned a hung verdict as to count one (McKinley Baptiste). The State retried the defendant on the Baptiste count, but during the subsequent trial a 911 tape of both victims was played before the jury resulting in a mistrial. This Court and the Louisiana Supreme Court denied subsequent writs brought by the State. State v. Taylor, unpub. 2011-0809 (La.App. 4 Cir. 6/20/11), writ denied State v. Taylor, 11-1287 (La.6/21/11), 64 So.3d 204.

| .¿Thereafter, defendant Joseph Taylor filed a motion to quash the bill of information, which was granted by the district court. In its ruling, the district court issued a written opinion granting the motion based upon the principles of double jeopardy holding in part that: “Since both alleged offenses stem from the same incident, conduct, and occurred simultaneously, the State should be barred from having a third opportunity to prosecute the Defendant for the armed robbery of M.B. [Mr. Baptiste] after being acquitted of committing Count 1, the armed robbery of L.I. [Ms. Infanse], on May 16, 2011.”

The State timely appealed the district court’s ruling.

FACTUAL BACKGROUND:

Ms. Infanse did not testify at trial; however, Mr. Baptiste testified that he was robbed at gunpoint in the pre-dawn hours of May 24, 2009. After getting off work, Mr. Baptiste went to the Sandpiper Lounge, which is located on Louisiana Avenue in New Orleans. He dropped his girlfriend off at the front door and went to park his car. While he was parking, he observed three men, one of whom he later identified as Taylor, standing on the corner. He was able to see the men as the headlights of his vehicle shown in their direction as he turned to park.

When Mr. Baptiste attempted to enter the lounge, he was refused entry as he was not wearing a collared shirt. He returned to his vehicle, and as he returned to the lounge, Ms. Infanse, a woman he did not know, began walking behind him travelling in the same direction.

At that time, Mr. Baptiste and Ms. In-fanse were approached by Taylor and another man, both of whom were wearing all black clothing and pointing guns, instructing Mr. Baptiste to lie on the ground. They robbed Mr. Baptiste of his |sceIlphone and wallet, then fled the area in a grey vehicle. Mr. Baptiste did not see Ms. Infanse get robbed.

Mr. Baptiste returned to the lounge, and using another person’s cellphone, called 911. Ms. Infanse called 911 also, and the 911 tape played to the jury at the second trial contained her voice.

Soon thereafter, Mr. Baptiste and his girlfriend were waiting outside the bar for the police when Taylor returned, wearing another shirt. According to Mr. Baptiste, defendant Taylor glared at him, then walked inside. When the police arrived, Mr. Baptiste and Ms. Infanse pointed out Taylor and he was arrested. Thereafter, Ms. Infanse, who was from out of town, refused to cooperate. One of the investigating detectives testified that he called Ms. Infanse about a month after the incident and she denied identifying the defendant.

DISCUSSION:

In its sole assignment of error the State asserts the district court erred in granting the motion to quash the bill of information based upon Taylor’s double jeopardy assertion because: 1) Taylor failed to show that the jury “necessarily determined” any ultimate fact at the first trial, and 2) the evidence necessary to convict Taylor of armed robbing the male victim, Mr. Baptiste, is not the same evidence necessary to convict him of the armed robbery of Ms. Infanse.

The United States Constitution Amendment V and Louisiana Constitution Art. 1, § 15 protect citizens from being twice placed in jeopardy of punishment for the same offense. La.Code Crim. Proc. art. 591 provides:

No person shall be twice put in jeopardy of life or liberty for the same offense, except, when on his own motion, a new trial has been granted or judgment has been arrested, or where there has been a mistrial legally bordered under the provisions of Article 775 or ordered with the express consent of the defendant.

Pursuant to La.Code Crim. Proc. art. 775(2), mistrial may be ordered where “[t]he jury is unable to agree upon a verdict.” Such a situation is commonly referred to as a “hung jury,” which is the verdict that has led to the State’s current effort to retry Taylor for the first count of armed robbery. The State is not prosecuting Taylor for count two of the bill of information, as the jury found him not guilty of that count.

In Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), the U.S. Supreme Court held that the constitutional protection against double jeopardy embodies the principles of collateral estoppel. Under the collateral estop-pel doctrine, “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot be litigated between the same parties in any future suit.” Id., 397 U.S. at 443, 90 S.Ct. at 1194. In applying this rule, the Court provided the'following guidance:

Where a previous judgment of acquittal was based upon a general verdict, as is usually the case, this approach requires a court to ‘examine the record of a proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.’

Id., 397 U.S. at 444, 90 S.Ct. at 1194, quoting Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv. L.Rev. 1, 38-39.

Ashe was accused of being one of three or four perpetrators who robbed six men at the same time. Ashe, 397 U.S. at 438, 90 S.Ct. at 1191. The State initially tried Ashe for armed robbery of one of the six victims. Id. According to the Court, “[t]he proof that an armed robbery had occurred ... was unassailable.” Id. However, the Court also noted, “the State’s evidence that [Ashe] had been one of | sthe robbers was weak.” Id. The jury in that trial “found [Ashe] not guilty due to insufficient evidence.” Id., 397 U.S. at 439, 90 S.Ct. at 1192. The Court noted that the only “conceivable issue in dispute before the jury was whether petitioner had been one of the robbers.” Id., 397 U.S. at 445, 90 S.Ct. at 1195. Thus, the Court based its holding that double jeopardy barred further prosecution for the armed robbery of the other victims on the fact that the jury in the first trial could have only returned a not guilty verdict based upon a finding that Ashe was not the perpetrator. In doing so, the Court reasoned:

The question is not whether Missouri could validly charge the petitioner with six separate offenses for the robbery of the six poker players. It is not whether he could have received a total of six punishments if he had been convicted in a single trial of robbing the six victims. It is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.

Ashe, 397 U.S. at 446, 90 S.Ct. at 1195.

This case is distinguishable from Ashe in that the current record does not indicate that the current prosecution raises the issue of ultimate fact that led to the first jury’s acquittal of Count two. Here, the evidence presented to prove count two was weak. The alleged victim of count two did not testify. The only eyewitness testimony was that provided by Mr. Baptiste. Under these circumstances, it appears the jury’s “not guilty” verdict for count two was the result of the failure of the victim to testify. Admittedly, Det. Si-son testified that the victim of count two failed to positively identify Taylor as the armed robber. However, the totality of the record indicates it was failure to produce the victim of the armed robbery in count two that resulted in the not guilty verdict — not Taylor’s identity. However, Mr. Baptiste provided a very clear and convincing identification of Taylor at the first trial.

10In its ruling, the district court also cited the “same evidence” test. Under that test:

If the evidence required to support a finding of guilt of one crime would also have supported conviction of the other, the two are the same offense under a plea of double jeopardy, and a defendant can be placed in jeopardy of only one. The test depends on the evidence necessary for conviction, not all the evidence introduced at trial.

State v. Steele, 387 So.2d 1175, 1177 (La.1980) (citation omitted).

In this case, the same evidence test does not apply because the counts charged are completely separate — two armed robberies of two victims occurred. In order to prove count two, the state needed to prove the armed robbery of Ms. Infanse. To prove the current retrial of count one, the State will have to prove the armed robbery of Mr. Baptiste. Although the two crimes occurred at the same time, different evidence is required for conviction of each offense.

Therefore, we find that the district court abused its discretion in granting the motion to quash, reverse that decision, and remand the case for further proceedings.

REVERSED AND REMANDED


author: JAMES F. McKAY III, Chief Judge. BELSOME, J., BONIN, J.,

text:
    SUCCESSION OF Thomas DEAN, Sr.
    No. 2012-CA-0832.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 3, 2013.

      Roderick Christopher Patrick, Patrick & Associates, New Orleans, LA, for Appellee, Melba Dean.
    Allen H. Borne, Jr., Ryan P. Reece, Allen H. Borne and Associates, New Orleans, LA, for Appellants, Thomas Dean, Jr., Cyril Dean and Angela Dean.
    (Court composed of Chief Judge JAMES F. McKAY III, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge PAUL A. BONIN, Judge ROSEMARY LEDET).
   JAMES F. McKAY III, Chief Judge.

Ixln this succession case, the trial court found that a valid will existed but certain heirs could no longer inherit due to a change in the law of forced heirship. For the following reasons, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On March 12, 1983, Thomas Dean, Sr. executed his last will and testament. In that will, Mr. Dean left his three adult children, Thomas Dean, Jr., Angela Dean, and Cyril Dean, the forced portion of his estate, subject to the legal usufruct of his wife, Melba S. Dean. Mr. Dean left the disposable portion of his estate to Melba Dean. Melba Dean was not the mother of Mr. Dean’s children. Thomas Dean, Sr. died on May 9, 2004.

On December 6, 2004, Melba Dean and her daughter from a previous marriage, Karen Owens, filed a petition for possession, an affidavit of death and heirship, a sworn detailed descriptive list, and a judgment of possession. A petition for probate was not filed. The original will was not in the possession of the clerk of court, who possessed only copies. That same day, the duty judge, | gJudge Michael Bagneris, signed a judgment of possession placing Melba Dean in possession of all of the decedent’s property.

In June of 2006, Melba Dean filed an amended judgment of possession and memorandum in support thereof. Mrs. Dean argued that the decedent’s children were above the age of majority and were not forced heirs at the time of their father’s death. The memorandum also reiterated that Melba Dean was the decedent’s sole heir and was granted ownership and possession of all of the decedent’s property. On June 19, 2006, Judge Sidney H. Cates, TV signed the amended judgment of possession.

In May of 2008, the decedent’s three children filed a petition to annul judgment of possession and probated testament on the grounds that there were irregularities as to form and content in the alleged testament. Among other things, they allege they received no notice of Melba Dean’s intent to open the succession or probate a copy of the purported will; the petition for possession and the judgment of possession do not reflect the decedent’s intentions regarding the disposal of the estate; the petition for possession does not state that the will being submitted for probate is a copy; there are no allegations in the judgment of possession that the decedent did not revoke the original will by destroying it; the will was probated without giving them an opportunity to object; the judgment of possession incorrectly excludes them and delivers the entire estate to the decedent’s widow; and the property transferred by the alleged testament was the | ^separate property of the decedent and in the absence of a testament, decedent’s estate is governed by the laws of intestacy.

In June of 2009, Mr. Dean’s children filed a motion for summary judgment on the petition to annul the judgment of possession. Following a hearing, the trial court granted the motion in part and annulled the two judgments of possession in September of 2009. The court also granted Angela Dean Burbank’s request to be appointed administrator of the succession.

In March of 2010, Ms. Burbank filed a petition for declaratory judgment seeking to have the document purporting to be the last will and testament of her father de-dared to be invalid. She contended that there was no evidence to rebut the presumption that her father destroyed the original will. Ms. Burbank moved for summary judgment on her petition for declaratory judgment, but the trial court denied the motion for summary judgment in December of 2010.

Trial on the motion for declaratory judgment was held on January 12, 2012. At trial, Melba Dean’s adult daughters, Karen Owens and Novella Sheppard, testified that following the death of Mr. Dean, they found his original will with a raised seal on it in a file cabinet in his home. They testified that they gave the will to the decedent’s attorney, Michael J. Phillips. Mr. Phillips testified that he filed the original will and several copies when he filed Melba Dean’s original pleadings. According to Mr. Phillips, he then presented the original will and other pleadings to Judge Bagneris, who signed the judgment of possession. Mr. Phillips further ^testified that he brought the pleadings, including the original will, to the clerk’s office and left them with an unknown female clerk.

Ms. Tina Seghers, a long-time docket clerk at Civil District Court, testified that she received only copies of the will. She documented this by writing “copy of wills in vault (no original filed)” on the petition for possession and “copy of will (no original filed)” on the envelope placed in the vault containing the wills. Ms. Seghers also testified that no will had ever been lost during her thirty-five years as a clerk. Judge Michael Bagneris and Thomas Dean, Jr. also testified at trial.

The trial court considered the testimony but was unable to explain what happened to the decedent’s will from the time the original will was given to Mr. Phillips and the pleadings made their way to Ms. Segh-ers. However, the trial court found that there was sufficient evidence to conclude that the original will existed at the time of the decedent’s death and was not destroyed by the testator.

The next issue that the trial court considered was how to interpret Mr. Dean’s will. In his will, Mr. Dean left the forced portion of his estate to his children, but at the time of death his children were not forced heirs under the law. For guidance, the trial court looked to La. C.C. art. 870 and In re Succession of Collette, 2009-70 (La.App. 3 Cir. 6/3/09), 11 So.3d 724. Based on its analysis, the | r,trial court concluded that succession rights are governed by the law in effect on the date of the decedent’s death. Furthermore, the trial court reasoned that by using language such as “forced portion” and “disposable portion” rather than a numerical value, the testator employed language that had a specific legal meaning and that language should be interpreted according to the law in effect at the time of the decedent’s death. Therefore, the trial court found that Melba Dean was the decedent’s sole heir. It is from this judgment that Mr. Dean’s three children now appeal.

DISCUSSION

On appeal, the appellants raise the following assignments of error: 1) the trial court committed legal error by not applying the correct burden of proof, clear and convincing, to appellee’s chore of overcoming the presumption that the testator revoked the will by disposing of the original; 2) appellee did not overcome the presumption of revocation by showing through clear and convincing proof that the testator did not revoke the will by disposing of the original prior to his death; and 3) even if appellee overcame the presumption of revocation by clear and convincing proof, the Dean children are entitled to fifty percent (50%) of their father’s estate in accordance with their father’s intentions as expressed in the will.

The presumption, that a testator destroyed a missing will with the intent to revoke, may be rebutted by clear proof: that the testator made a valid will; of the contents and substance of the will; and that will though not found at testator’s death, was never revoked by the testator. Succession of Justice, 28,363 (La.App. 2 Cir. 8/23/96), 679 So.2d 597. In' the instant case, Mr. Dean made a valid will on March 12, 1983. The contents and substance of this will is known because copies of the will exist. Unlike Succession of Justice, the original will was actually found after Mr. Dean’s death; it only later disappeared. Melba Dean’s daughters testified that they found the original will and gave it to Mr. Dean’s attorney, Michael Phillips, who testified that he filed the original will along with other pleadings at Civil District Court. This testimony was not controverted and there is no evidence that the will was destroyed by Mr. Dean. Therefore, based on the clear evidence before it, the trial court concluded that a valid will existed at the time of Mr. Dean’s death.

The trial court’s conclusion that Mr. Dean’s will existed at the time of his death is a factual finding subject to the manifest error/clearly wrong standard of review. See Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). An appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Id. There is no indication that the trial court was clearly wrong or manifestly erroneous in finding that Mr. Dean’s original will existed at the time of his death. Accordingly, we find no error as to the appellants’ first two assignments of error.

In their final assignment of error, the appellants contend that they are entitled to fifty percent (50%) of their father’s estate in accordance with his intentions as expressed in the 1983 -will. When Mr. Dean executed his will, he left his “beloved” children the “forced portion” of his estate. Considering that he had [7three children (Thomas Dean, Jr., Cyril Dean, and Angela Dean Burbank), the forced portion would have been fifty percent (50%) of his estate at the time the will was made. However, the trial court ruled that Mr. Dean’s children were entitled to nothing because under the law in effect at the time of Mr. Dean’s death, they were no longer forced heirs. As stated earlier, the trial court relied on La. C.C. art. 870 and In re Succession of Collett, 2009-70 (La.App. 3 Cir. 6/3/09), 11 So.3d 724.

Louisiana Civil Code Article 870(B) states: “Testate and intestate succession rights, including the right to claim as a forced heir, are governed by the law in effect on the date of the decedent’s death.” In Collett, the Third Circuit held that the decedent’s adult children were entitled to nothing because in his will, the testator used the term “forced portion” instead of a numerical value. The Court reasoned that because the testator used the language “forced portion” there was no intent to leave his children anything more than required by the law.

The Third Circuit’s reasoning is very subjective in its attempt to delve into the mind of the deceased testator. How can they know that the decedent would choose to leave his children nothing based on his use of the term “forced portion” instead of a numerical value? The decedent was layman and the term “forced portion” had a specific legal meaning at the time of he made his will. The decedent may or may not have been aware of the change in the law of forced heirship between the time his will was made and the date of his death. To assume that the testator was aware of the change in law and by not making a new will he intended to leave nothing to his children is a stretch in judgment. He could just as lseasily have been ignorant of the change in law and assumed that his will meant exactly the same thing it meant on the day he made it.

Accordingly, we disagree with the Third Circuit’s holding in Collett According to La. C.C. art. 1611:

A. The intent of the testator controls the interpretation of his testament. If the language of the testament is clear, its letter is not to be disregarded under the pretext of pursuing its spirit. The following rules for interpretation apply only when the testator’s intent cannot be ascertained from the language of the testament. In applying these rules, the court may be aided by any competent evidence.
B. When a testament uses a term the legal effect of which has been changed after the date of execution of the testament, the court may consider the law in effect at the time the testament was executed to ascertain the testator’s intent in the interpretation of a legacy or other testamentary provision.

La.C.C. art. 1611.

La. C.C. art. 1612 states: “A disposition should be interpreted in a sense in which it can have effect, rather than in one in which it can have none.” It is also important to note that the cardinal principle of the interpretation of acts of last will is to ascertain and honor the intent of the testator ascribing meaning to the disposition so that it can have effect. Derouen v. Derouen, 2003-623 (La.App. 3 Cir. 1/28/04), 865 So.2d 940.

As evidenced by the Civil Code and our jurisprudence, there is a longstanding principle of trying to honor the testator’s intent if at all possible. In addition, the clear language of La. C.C. art. 1611(B) expressly authorizes this Court to consider the law in effect at the time Mr. Dean’s made his will in order to ascertain his intent toward his children. When Mr. Dean made his will his three children were forced heirs and entitled to fifty percent (50%) of his estate. There is |9no evidence or other indication that Mr. Dean intended to leave nothing to his children if the law had not required him to leave them their forced portion. To the contrary, Mr. Dean refers to his children as “beloved” in the will. When we consider the language of Mr. Dean’s will along with La. C.C. aits. 1611 and 1612, it favors leaving Mr. Dean’s children what would have been their forced portion at the time he made the will, i.e., fifty percent (50%) of his estate.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s finding that a valid will existed at the time of Mr. Dean’s death. However, we reverse the trial court’ finding that Mr. Dean’s children were entitled to nothing and hold that they are entitled to fifty percent (50%) of their father estate, i.e. their forced portion at the time the will was made.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

BELSOME, J., dissents with reasons.

BONIN, J., concurs in part and dissents in part and assigns reasons.

BELSOME, J.,

dissents with reasons.

LI respectfully dissent from the majority’s findings regarding Mr. Dean’s intent. “When the words of the testament are plain and unambiguous, the testator’s intent should be ascertained from the language used in the testament, giving the words used their usual significance.” Montgomery v. Administrators of Tulane Educational Fund, 09-1670, p. 6 (La.App. 4 Cir. 10/13/10), 51 So.3d 60, 63 (citing Derouen v. Derouen, 03-623 (La.App. 3 Cir. 1/28/04), 865 So.2d 940, 942). The bequest at issue in Mr. Dean’s testament states:

I give, devise and bequeath the forced portion of my estate to my beloved children, THOMAS DEAN, JR., ANGELA DEAN and CYRIL DEAN, subject to the legal usufruct in favor of MELBA SEABERRY DEAN, which I confirm.

At the time the testament was drafted, the testator was required by Louisiana law to leave a portion of his estate to his children. Thus, Mr. Dean’s bequest as written provides to his children only that which is mandated by law.

“Testate and intestate succession rights, including the right to claim as a forced heir, are governed by the law in effect on the date of the decedent’s death.” La. C.C. art. 870(B). I find the trial court’s reliance on In Re Succession of Collett to be sound. Just as in Collett, Mr. Dean’s testament does not provide for any [ numerical value, but rather, uses only language with a specific legal meaning. At the time of his death, Louisiana no longer guaranteed each child a forced portion of the parent’s estate. Thus, the legal term “forced portion” in Mr. Dean’s testament had no legal effect at the time of his death.

The majority relies on La. C.C. art. 1611(B) to remedy the result created by the change in the law. Provision B of art. 1611 allows this Court to “consider the law in effect at the time the testament was executed to ascertain the testator’s intent in the interpretation of the legacy or other testamentary provision.” Id. Even giving consideration to the law at the time the testament was drafted, I cannot find that the trial court was clearly wrong or manifestly erroneous in its determination. Therefore, I dissent from the majority’s finding that the Mr. Dean’s children are entitled to fifty percent of their father’s estate.

BONIN, J.,

concurs in part and dissents in part and assigns reasons.

hlf I were required to reach the issue of the decedent’s testamentary intent, I would concur with the Majority Opinion, as I explain in Part 2. But because I find clear error with the trial judge’s resolution that the proponent of the purported testament overcame the presumption that the lost original will was revoked by its destruction, I respectfully dissent from the Majority Opinion in that respect and explain my view in Part 1.

1

The critical inquiry in this case is whether Mrs. Dean, the proponent of probating the copy of a will, had the burden of showing by clear and convincing evidence that the original -will was lost (or destroyed) by the clerk’s office after it was found following Mr. Dean’s death in order to overcome the legal presumption that it was destroyed by the testator.

Because one means of revoking a testament is by the testator physically destroying it or directing its destruction, see La. Civil Code art. 1607(1), the Louisiana Supreme Court “has adopted the uniformly adhered to rule that the failure to find a will which was duly executed and in possession of or readily accessible to, the testator, gives rise to a legal presumption of revocation by ^destruction”. Succession of Talbot, 530 So.2d 1132, 1134-1135 (La.1988). The presumption is rebuttable and may be overcome by sufficient evidence. Id. “A presumption shifts the burden of producing evidence and, under the preferable view, serves to assign the burden of persuasion as well.” Id. at 1135.

The onus of rebutting this presumption is upon Mrs. Dean, who seeks to establish the will, by clear proof that the lost will was never revoked by the testator. See Succession of Nunley, 224 La. 251, 256-257, 69 So.2d 33, 35 (1953). “Clear and convincing proof that a person other than the testator destroyed the will without the direction, consent or permission of the testator would be sufficient to overcome the presumption that the testator revoked the will by destroying it.” Succession of Doucet, 42,963, p. 7 (La.App. 2 Cir. 2/6/08), 975 So.2d 738, 741-742.

While the Talbot court made plain that the “presumption may be weak or strong, and more or less easily rebuttable depending upon the clarity of the evidence,” Talbot, 530 So.2d at 1135, we are not here dealing with a situation where the lost original will was in a house destroyed by Hurricane Katrina. See Succession of Dalier, 09-0393 (La.App. 4 Cir. 8/12/09), 19 So.3d 8. Here, Mrs. Dean contends that she, her daughters, and her lawyer all had possession of the original will after the decedent’s death but that it was lost after it had been filed with the clerk of court and presented to the first district judge in connection with the initiation of these succession proceedings. That contention, in my view, is subject to proof by clear and convincing evidence and fails on that account.

First and foremost is the testimony (not contradicted by the will’s proponent) of Tina Seghers, who was a deputy clerk -with primary responsibility for succession pleadings and wills for over thirty-five years, that not a single original last will and testament has been lost by the clerk’s office in all of that time. At the time the pleadings were returned to the clerk’s office after the signing of a judgment of | .^possession (more about that later), she noted on the original petition for possession, at the time it was submitted for safekeeping, that there was only a “copy of wills in vault (no original filed).” “[T]he risk of failure of proof is often placed upon the party who contends that the more unusual event has occurred.” Talbot, 530 So.2d at 1132. And certainly the claim that the original will was found after Mr. Dean’s death but lost by the clerk is “the more unusual event.”

Next for consideration are the initial succession pleadings filed on behalf of Mrs. Dean. The pleadings offer no documentary support that the original will was submitted to the first district judge. The petition for possession merely states that “[t]he deceased left a will leaving property to his wife” and that the decedent “left his entire estate to” Mrs. Dean. The petition makes no reference to the kind of will or the date of the will and, oddly, does not even have a prayer seeking execution or probate of the will. There is no order to execute the will or to probate the will. See La. C.C.P. art. 2856. The original judgment of possession makes absolutely no reference whatsoever to a will and decrees, inaccurately, Mrs. Dean as “heir” to the estate of the decedent. Not surprisingly, this judgment (as well as an amended judgment of possession) was later annulled by summary judgment. Thus, we cannot ascertain from her pleadings that the will, which she minimally describes, is the original of the copy of the will which she is now seeking to probate. And, judging by the bare description of its disposition, we would have to conclude that it was, if accurate, referencing a different will, because to conclude that it was^ the original of this will we would have to allow that it was poorly and misleadingly described.

| ¿Third, and importantly, even though Mrs. Dean was seeking a declaration that the decedent’s children had no rights under the will, the children were not notified about the proceedings at the time Mrs. Dean claims to have been in possession of the original.

As the proponent of the will, Mrs. Dean offered the testimony of her daughters and her lawyer. The daughters’ testimony about finding the original will after Mr. Dean’s death is forceful in its insistence but weak and inconsistent in detail. The lawyer’s testimony must surely be discounted in light of the pleadings he prepared and the procedures he followed. And we need not linger over his remarkable recollection several years after the incident that he had definitely not given this particular original will to Ms. Seghers (but could not remember to which deputy clerk he had entrusted it).

Thus, I find that Mrs. Dean failed to overcome the legal presumption of destruction by the testator by clear and convincing evidence that, the will was found after the de'ath but subsequently lost by the clerk’s office. See Doucet, supra. I would reverse the probate of the copy of the will, conclude that Mr. Dean died intestate, and remand for further proceedings.

2

As I indicated earlier, however, if I were required to reach the intent of the testator, I concur in the Majority Opinion’s resolution of that issue.

Mrs. Dean argues that the children’s inclusion in her late husband’s testament was simply a reflection of the now-revised requirements of the forced heirship law. This notion arises from a fundamental misunderstanding of the forced heirship laws then and now. The forced heirship law did not and does not compel any testator to provide by testament (i.e. bequeath) any portion of his estate | Bto a forced heir; the failure to provide by testament for a forced heir does not invalidate a testament nor make the bequests to others null. See La. Civil Code art. 1508 (“A donation inter vivos or mortis causa, that impinges upon the legitime of a forced heir is not null but is merely reducible to the extent necessary to eliminate the impingement”); see also Succession of Dancie, 191 La. 518, 531, 186 So. 14, 18 (1939), and Jarel v. Moon’s Succession, 190 So. 867, 868 (La.App. 2nd Cir.1939) (“It is a well settled rule of law that any will in which a bequest exceeds the disposable portion is not void; the legacy is only subject to reduction.”)

The reduction of the excessive donation is not automatic and does not occur by operation of law. See Quantum Resources Management, LLC v. Pirate Lake Oil Corp., 12-256, p. 12 (La.App. 5 Cir. 11/13/12), 105 So.3d 867, 873. A forced heir must bring an action to reduce an excessive donation. Id.; see also, e.g., Succession of Guerre, 197 So.2d 738, 745 (La.App. 4th Cir.1967). And the action to reduce an excessive donation can be lost by liberative prescription. See Succession of Dancie, 191 La. at 532, 186 So. at 18.

Thus, Mr. Dean did not “have to” name his children in his will. Their inclusion as named legatees and as his “beloved” indicates an intent that a share of his property (or its equal value) be theirs in full ownership upon the death of his second wife. If he had any other intent, he could have simply and validly declared that he wanted all he died possessed of to go to his wife.

      . This was apparently done because Fidelity Homestead Association had refused to release and deliver certain funds to Mrs. Dean.

      . Thomas Dean, Jr. testified that his father told him that he needed to make a will shortly before he died. However, there is no evidence that his father ever made a new will or destroyed his existing will. Louisiana Civil Code Article 1607 provides the requirements for the revocation of the entire testament by the testator. La. C.C. art. 1607 states:
      Revocation of an entire testament occurs when the testator does any of the following:
      (1)Physically destroys the testament, or has it destroyed at his direction.
      (2) So declares in one of the forms prescribed for testaments or in an authentic act.
      (3) Identities and clearly revokes the testament by a writing that is entirely written and signed by the testator in his own handwriting.
      Thomas Dean, Jr.’s testimony that his father intended to make a new will is insufficient to satisfy these requirements of La. C.C. art. 1607. No other evidence of revocation was introduced.

      . In Re Succession of Collett, 09-70 (La.App. 3 Cir. 6/3/09), 11 So.3d 724.

      . If the intention was to execute an original notarial will, Mrs. Dean would be properly described as a ''legatee.” See La. Civil Code 876.

      . When a financial institution refused to hon- or the original judgment of possession, Mrs. Dean submitted an amended judgment of possession in which she inaccurately represented that the decedent's will had been "properly probated” and by way of a memorandum (no petition was filed) suggested that the decedent’s children were all majors and thus, according to the averment, there were no forced heirs. Cf. La. Civil Code art. 1493.

      .Mrs. Dean also called the first judge as a witness, which was questioned by the trial judge. The only fair reading of the judge’s testimony is that he had no recollection of what will, if any will, was shown to him. For her part, Mrs. Dean admitted to confusion and loss of memory.


author: MARC E. JOHNSON, Judge.

text:
    Richard ROSTROP v. The GRAY INSURANCE COMPANY and Sharp Electric, Inc.
    No. 12-CA-554.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 10, 2013.

      Lloyd N, Frischhertz, Jr., Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Richard S. Vale, Pamela Noya Molnar, Attorneys at Law, Metairie, LA, for Defendants/Appellees.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

12Claimant, Richard Rostrop, appeals the trial court’s judgment denying his claim for workers’ compensation after it determined he did not sustain a compensable work-related injury. For the following reasons, we affirm.

Mr. Rostrop filed a Disputed Claim for Compensation on April 4, 2011 against his employer, Sharp Electric, Inc. (“Sharp”), and its insurer, Gray Insurance Company, claiming he suffered a work-related injury on December 28, 2010, and that Sharp had not paid any indemnity or medical benefits. After a trial on March 29, 2012, the workers’ compensation judge ruled in favor of defendants and dismissed Mr. Ros-trop’s workers’ compensation claims with prejudice. In her reasons for judgment, the trial judge explained that she did not find Mr. Rostrop credible and concluded there was no corroborating evidence that he hurt his arm, shoulder or back on December 23, 2010.

FACTS

At trial, Mr. Rostrop testified that he started working for Sharp in October 2010 as a journeyman wireman. On December 23, 2010, he was working with a | ¡¡crew at the Charity Hospital complex, where he had been working for several days. According to Mr. Rostrop, he and an apprentice, Dwight, were installing four-inch rigid conduits that weighed approximately 100 pounds between and above existing pipework. Mr. Rostrop explained that he was on a ladder when Dwight handed him a pipe that he had to lift and slide down the pipe rack. At some point, Mr. Rostrop felt a twinge or stabbing pain in his lower back and told Dwight that he had just hurt his back. Mr. Rostrop subsequently restricted himself from lifting and running the conduits for the remainder of the day.

Mr. Rostrop further testified that later that same day, he almost fell on top of a cart that flipped over in front of him. He stated that the cart incident was witnessed by another worker, Mark Weinhold. After the cart incident, Mr. Rostrop told Mark that he thought he had hurt his back. Mark testified that he did not witness any incident where claimant was injured on the job. When Sharp investigated the alleged incidents, Mark told Sharp that Mr. Ros-trop might have said his back was hurting that day, but added that everyone was complaining of back pain that day because of the nature of the work and the fact the conduits weighed 120 pounds.

Mr. Rostrop did not report the accident to his immediate supervisor, Esop Jordan, before going home that day because he thought he had just strained his muscles. However, after he went home, the pain in his lower back and shoulder increased. Mr. Rostrop was supposed to work the next day, Friday, but called into the shop around 6:20 a.m. and left a voicemail that he hurt his back and shoulder at work the day before. The voicemail was received by the office manager, Stephanie Richards, but she did not inform Mr. Jordan that day of Mr. Rostrop’s call.

Because Saturday was Christmas, Monday was the next work day. Mr. Rostrop was still hurting on Monday, so he called the shop again and left another 14message indicating he had injured himself on the job and would not be in. Ms. Richards again received the voicemail. This time, she informed both her boss and Mr. Jordan about Mr. Rostrop’s message. Mr. Jordan advised that he was unaware of any injury. He further indicated Mr. Ros-trop had been “flaky,” and he would lay him off. On Tuesday, Mr. Rostrop called into the shop again and spoke to the comptroller, Charlie Payne. The record does not indicate what Mr. Rostrop told Mr. Payne, who was deceased at the time of trial, on that day.

Mr. Rostrop testified he went into the shop on Wednesday, told Mr. Payne that he hurt his back on the job at Charity, and asked Mr. Payne what the company wanted to do about it. According to Mr. Ros-trop, Mr. Payne told him to help out in the back of the shop, which consisted of checking orders and straightening shelves. On Thursday, Sharp had Mr. Rostrop driving a truck and making deliveries. Because Friday was New Year’s Eve, Mr. Ros-trop’s next work day was Monday. When he reported to work on Monday, he made a small delivery before Sharp terminated him, citing “lack of work.”

Mr. Rostrop testified his pain progressively worsened. He consulted with his union, which advised him to obtain an accident report from Sharp. Mr. Rostrop went to Sharp on January 11, 2011 to get an accident report, at which time Ms. Richards told him to write down what happened. Ms. Richards advised claimant that the information would be given to the insurance company.

Thereafter, Mr. Rostrop consulted an attorney, who referred him to Dr. Jerome Kurpel. Mr. Rostrop began treating with Dr. Kurpel on January 14, 2011. In May 2011, an MRI revealed bilateral foraminal narrowing with diffuse bulging and annular fibrosis at L5-S1 and a right paracen-tral annular fissure with some bulging at L4-5. Throughout Dr. Kurpel’s treatment, Mr. Rostrop’s disability status fluctuated between light duty and temporary total disability. Dr. Kurpel ^recommended epidural steroid injections, and referred Mr. Rostrop to an orthopedist.

In June 2011, Mr. Rostrop was seen by Dr. Ralph Katz for a second medical opinion at defendants’ request. Dr. Katz agreed with the recommendation for epidural steroid injections and light duty restrictions, but opined that Mr. Rostrop’s medical condition was usually caused by natural wear and tear of the body.

Mr. Rostrop began treating with Dr. Warren Bourgeois, an orthopedic surgeon, in December 2011. Dr. Bourgeois noted that claimant had neurological changes with decreased sensation in the right L-5 distribution. At the time of his deposition, which was taken approximately two weeks before trial, Dr. Bourgeois agreed with the recommendation for epidural steroid injections and opined that Mr. Rostrop could perform light duty work. Dr. Bourgeois did not believe Mr. Rostrop was at maximum medical improvement and stated that he was not ready for a functional capacity examination.

ISSUES

Claimant essentially argues two issues on appeal. First, he asserts the trial court’s judgment is defective because the trial court failed to consider the entire record before making its decision. Second, he argues that he made a prima facie case of a work-related disability and that the trial court committed manifest error in denying him benefits.

LAW & ANALYSIS

Defective Judgment

In deciding whether a claimant in a workers’ compensation action has proven his claimed disability, the trial court must consider the totality of the evidence, both medical and lay. Sevin v. Chevrolet, 08-1362 (La.App. 1 Cir. 4/30/09); 24 So.3d 879, 884.

| ^Claimant contends the trial judge failed to consider all the evidence before reaching her conclusion. Mr. Rostrop claims the trial judge reviewed her notes and drafted -written reasons for her decision during lunch before hearing the testimony of Tolmas Sarduy, a warehouse manager for Sharp, and Stephanie Richards, the office manager, and before considering any of the exhibits introduced into evidence. The record does not support Mr. Rostrop’s claim.

At the beginning of trial, the parties presented a bench book of exhibits to the trial judge. Defendants had no objection to any of the exhibits offered by claimant which included claimant’s payroll and personnel records from Sharp; the medical records and depositions of Dr. Kurpel, Dr. Bourgeois, and Dr. Katz; and documentation relating to Sharp’s investigation of the alleged accident. Defendants offered many duplicative exhibits including the medical records and depositions of the doctors. Claimant objected to several of defendants’ exhibits, and the trial judge reserved her ruling until the exhibits were offered during trial. Most of the objected-to exhibits were not offered during trial or were ruled inadmissible during trial.

After the defense rested, the trial judge indicated she had used most of her lunch break going through the records submitted by the parties and was prepared to render a decision following a short break. Thereafter, a recess was taken. When court resumed, the trial judge gave her ruling along with reasons for her ruling. Contrary to claimant’s assertion, there is no indication the trial judge did not take into consideration all the evidence, both lay and medical, before rendering her decision. Further, there is absolutely no evidence, as argued by claimant, that the “Administrative Judge stated, in open court to counsel, that she had made up her decision at lunch and had written reasons for her decision.” Rather, the record |7clearly shows the trial judge used her lunch break to review exhibits already submitted and agreed upon by the parties. The trial judge’s oral reasons for judgment demonstrate that she carefully considered all evidence presented. She specifically referred to the testimony of Ms. Richards, who claimant contends testified after lunch. As such, we find claimant’s assertion completely unfounded.

Entitlement to Benefits

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 (LWCA) 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 casts 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 |sbe 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, citing Bruno v. Harbert International, Inc., 593 So.2d 357, 361 (La.1992).

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 this 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, 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. Consequently, when there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Ricks v. Odyssey Health Care, 10-1099 (La.App. 5 Cir. 10/25/11); 77 So.3d 386, 389.

Upon review of the record, we find no manifest error in the trial court’s conclusion that Mr. Rostrop failed to sustain his burden of proof. The trial court concluded that Mr. Rostrop, who it did not find credible, failed to prove he sustained a work-related injury. The trial court noted that Mr. Rostrop called the office on the day of the accident, December 23, 2010,-but did not report an accident or an injury. Instead, Mr. Rostrop and Ms. Richards both testified that Mr. Rostrop called the office that afternoon to inquire about a Christmas party. The trial court also questioned Mr. Rostrop’s claim that he did not know how to report an injury, despite the fact he had had a prior workers’ compensation claim. The trial court noted that claimant’s supervisor, Mr. Jordan, was at the jobsite all 19day, with the exception of lunch, and claimant could have and should have reported the accident that day.

It also observed that although Mr. Ros-trop stated he told his co-worker, Dwight, that he hurt his back, Dwight did not testify. Also, his co-worker Mark, who claimant said witnessed him almost fall over the cart and whom he told he hurt his back, testified that he never saw an accident and that he did not recall claimant saying he was hurt.

The trial court further pointed out several inconsistencies and contradictions regarding Mr. Rostrop’s testimony. First, it noted that Mr. Rostrop testified that he did not call his supervisor, Mr. Jordan, to tell him he was not coming into work because he did not have his phone number. However, Mr. Jordan testified that claimant had called him the Monday before the alleged accident to get directions to the jobsite. Next, the trial court observed that Mr. Rostrop stated he did not lift anything when making deliveries after his accident. But, Mr. Jordan testified that Mr. Rostrop helped unload a heavy junction box from the back of the pickup truck by lifting it approximately eight inches. The trial court further questioned Mr. Rostrop’s credibility by referring to records from claimant’s prior employment with Sara Lee, which indicated Mr. Ros-trop was terminated because of attendance and tardiness. However, claimant testified he quit his employment with Sara Lee and denied that he had been terminated.

As discussed above, a claimant can meet his burden of proving a work-related accident by his own uncontradicted testimony “absent circumstances casting suspicion on the reliability of this testimony.” Ricks v. Odyssey Health Care, 10-1099 (La.App. 5 Cir. 10/25/11); 77 So.3d 386, 388. The record shows several inconsistencies in and contradictions to Mr. Rostrop’s testimony so as to cast suspicion on the reliability of his testimony. Thus, we cannot say the trial |incourt was manifestly erroneous in finding Mr. Rostrop did not carry his burden of proving that his back pain resulted from a work-related accident.

DECREE

For the foregoing reasons, the trial court’s judgment finding claimant, Richard Rostrop, failed to carry his burden of proving a work-related accident and denying him workers’ compensation benefits is affirmed. Each party is to bear his own costs for this appeal.

AFFIRMED

      . The record does not indicate at what point lunch was taken during the trial.