author: ROBERT A. CHAISSON, Judge.

text:
    Arron J. LIGGIO v. POPEYE’S DIVERSIFIED FOODS & SEASONING and LWCC.
    No. 12-CA-587.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.
    Anthony L. Marinaro, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.

      Jeffrey J. Warrens, Attorney at Law, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges MARC E. JOHNSON, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST. .
   ROBERT A. CHAISSON, Judge.

1 gThis is an appeal by Louisiana Workers’ Compensation Corporation (LWCC) and Popeye’s Diversified Foods and Seasonings, Inc., from a judgment awarding Arron J. Liggio workers’ compensation benefits. For the following reasons, we amend the judgment to eliminate the awards for penalties, attorney fees, and future medical expenses. In all other respects, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

Arron Liggio was hired in late 2007 by Popeye’s Diversified Foods and Seasonings, Inc., to work as a welder and fabricator in a division of the company involved in the building and operation of racing boats. The job required heavy lifting on occasions, as well as frequent bending and stooping. Mr. Liggio claimed to have been injured on December 20, 2009, when the boat on which he was working was being moved by trailer. Specifically, he claims that while inserting bilge plugs in the transom of the boat, he was struck on his back by the boat rudder and knocked to the ground, falling on his shoulder. No one else witnessed the accident.

|oMr. Liggio testified that he did not immediately inform his supervisor, Scott Barnhardt, of the incident, but did do so after a lunch break. Mr. Barnhardt testified that he was never told of the accident. However, Daniel Suazo, a co-worker, testified that he heard Mr. Liggio tell Mr. Barnhardt that he was struck by the rudder. Mr. Liggio’s wife testified that she saw bruises on his back when he returned home later in the day.

Mr. Liggio continued working at the job until January 28, 2010. He was fired at that time for allegedly failing to report to work. He received unemployment compensation beginning on March 1, 2010, and was still receiving these benefits at the time of trial.

Mr. Liggio first sought medical treatment for his alleged injury on April 16, 2010, after consulting counsel. On that date, he was seen at the Louisiana Primary Care Consultants office by Dr. Ash-faq Qureshi. A report of this visit, signed by Dr. Norman Ott, the director of the facility, states the clinical impression as lumbar and left buttock trauma from the rudder, with pain radiating into the right leg. The report also notes left shoulder and upper back and neck pain and strain, due to a forward slip-and-fall on the left shoulder. After a second visit on May 21, 2010, the impression was “headaches twice a week, cervical strain, lumbar strain, left shoulder symptoms-essentially all the same,” with tingling of an unknown origin. An MRI was recommended.

The MRI was performed six months later, on December 21, 2010, at the East Jefferson Imaging Center at Dr. Ott’s request. Dr. Daniel Johnson, Jr. interpreted the results as a “subtle central posterior herniation of the L4-5 disc.” On January 17, 2011, Mr. Liggio was seen at the office of Dr. Allen Johnson by Dr. Johnson’s physician’s assistant, Paul Piccione. The impression of that visit was chronic neck pain and chronic back pain with L4-5 herniation. After a second Lvisit to that office on February 23, 2011, Dr. Johnson gave an April 18, 2011, opinion as follows: “[biased on his history, physical findings and the mechanism of injury, it is my opinion that the herniated lumbar disc by MRI dated 12/21/2010 is more probably than not related to the work injury of December 20, 2009.” As to work restrictions, Dr. Johnson said he “would limit him to light duty, avoid repetitive bending or twisting at the waist, carrying more than 20 pounds, [and] prolonged sitting or standing without changing positions [every 25 to 30 minutes].”

The defendants requested an independent medical examination. Dr. Andrew Todd, a spinal surgeon, examined Mr. Lig-gio on April 18, 2011, and reviewed all of his records, including the December 20, 2010 MRI. His opinion as to the MRI was that, although it showed a slight bulge, it did not indicate herniation, but rather only a minor irregularity which would not be unusual for someone of Mr. Liggio’s age. His extensive physical examination revealed no objective evidence of any problems and was considered to be normal. Dr. Todd did not find any objective evidence of problems which would warrant placing limitations on Mr. Liggio’s activities. He further noted that if the complaints of pain were legitimate, some restrictions on lifting and bending might be in order; but, he would not consider such restrictions over the long term. As to causation, he said that it would have been necessary to have had an MRI prior to the accident to compare to the one done after the accident, to see if they differed. Otherwise, he could not say what effect the accident might have had.

Based on the above evidence and testimony, the Office of Workers’ Compensation (OWC) judge initially ruled that although there had been an accident on December 20, 2009, Mr. Liggio failed to prove that his subsequently diagnosed problems were causally related to the accident. She therefore denied benefits. Mr. Liggio filed a motion for a new trial, which was granted solely for |sre-argument. After re-argument, the judge reversed herself, found that the injuries were causally related to the accident, and awarded benefits. She ordered payment of Supplemental Earnings Benefits (SEB) for all times when claimant was not receiving unemployment benefits, as well as all medical expenses related to the injury. She further found that defendants had not reasonably controverted the claim and awarded $8,000 in penalties and $8,000 in attorney fees. This appeal followed.

LAW AND ANALYSIS

The defendants’ first four assignments of error all raise the issue of whether Mr. Liggio proved the occurrence of an accident with compensable injuries. In workers’ compensation cases, as in all other cases, the standard of review of factual matters is manifest error. In Woodruvi v. Olive Garden Restaurant, 99-130 (La.App. 5 Cir. 5/19/99), 735 So.2d 911, this court further explained that even though the appellate court believes that had it been sitting as the trier of fact it would have made different findings, as long as the findings of the actual trier of fact are based upon reasonable credibility determinations and reasonable inferences of fact, such findings may not be set aside on appeal.

Here, the OWC judge apparently found Mr. Liggio’s version of the accident credible. The fact that Mr. Liggio’s wife saw bruises on his back the afternoon of the incident corroborated that he was struck by something. There was further corroboration in the testimony of Mr. Sua-zo, who said that he heard Mr. Liggio report the accident to Mr. Barnhardt on the day it allegedly happened. Although Mr. Barnhardt denied that this conversation took place, the OWS judge found otherwise. These are clearly reasonable credibility determinations, and as such they may not be set aside.

|fiThere is similarly conflicting evidence as to whether any injury immediately resulted from the accident. Mr. Liggio testified that he had no pains in his back before the accident, but did afterward. He further testified that he did not go to a doctor immediately or shortly after the accident because of financial constraints and because he was afraid it might jeopardize his job. He said that this latter apprehension arose because when he told Mr. Barnhardt about the accident, Mr. Barnhardt said “welcome to the boat business,” and that he had to “suck it up.” The defendants put on evidence to show that Mr. Liggio’s medical insurance would have paid for any medical treatments, except for a small co-payment. They also showed that numerous employees of Popeyes, including some from the boat operation, had been treated for work-related injuries and had made compensation claims without any negative repercussions from the company, and therefore there were no grounds for Mr. Liggio’s fears. Again, the trier of fact apparently believed that Mr. Liggio’s fears, although subjective, were sufficient reasons to justify his not immediately seeking medical treatment. She further found that Mr. Liggio was injured when the boat rudder struck him. We find no manifest error in this finding.

The medical evidence was equally contradictory. Dr. Qureshi found problems in the back, neck and shoulder areas during the first visit of April 16, 2010. He also restricted Mr. Liggio from activities involving lifting over 25 pounds. An MRI of December 21, 2010, was interpreted as showing a herniated disc at the L4-5 level. Dr. Johnson was of the opinion that the herniation was the result of the December 20, 2009, accident. He thought that work restriction to light duty was in order. Dr. Todd, on the other hand, was not convinced that there was a herniated disc. He further stated that it would be impossible to determine whether the accident caused the problem without having access to an MRI from before the incident, so that the two test results could be compared. He saw no real need for |7work restrictions, except perhaps on a temporary basis. Again, resolution of these issues depended on credibility determinations. A decision to credit Mr. Liggio’s doctors, rather than the defendants’ doctor, was a reasonable one, and we are thus precluded from setting aside these findings.

Defendants next contend that it was manifest error to find that they had not reasonably controverted the claim for benefits and thus the imposition of penalties and attorney fees has no proper basis. In Brown v. Texas-La Cartage, Inc., 98-1063 (La.12/1/98), 721 So.2d 885, 890, the supreme court stated that:

In general, one can surmise from the plain meaning of the words making up the phrase “reasonably controvert” that in order to reasonably controvert a claim, the defendant must have some valid reason or evidence upon which to base his denial of benefits. Thus, to determine whether the claimant’s right has been reasonably controverted, thereby precluding the imposition of penalties and attorney fees under La. R.S. 23:1201, a court must ascertain whether the employer or his insurer engaged in a nonfrivolous legal dispute or possessed factual and/or medical information to reasonably counter the factual and medical information presented by the claimant throughout the time he refused to pay all or part of the benefits allegedly owed.

Here, the issue is whether the defendants possessed factual and medical information to reasonably counter the information presented by Mr. Liggio. As the synopsis of the evidence above shows, Mr. Liggio’s version of whether he reported the accident was contradicted by the testimony of Mr. Barnhardt, his supervisor. There is no question that Mr. Liggio did not seek medical attention until several months later, after he had been fired from the job. The medical reports generated in March and April of 2010, were based only on Mr. Liggio’s representations of his symptoms. It was not until December 2010 that an MRI was interpreted as showing a herniated disc, thus providing objective evidence of an injury. Yet even that interpretation was disputed by the opinion of Dr. Todd, and this latter expert did not believe that Mr. Liggio showed objective evidence of an injury.

|sIt must further be noted that the OWC judge first ruled that Mr. Liggio had failed to show any injury which could be attributable causally to the alleged accident of December 20, 2009. In this view, then, the defendants must necessarily have shown that there was a reasonable and nonfrivo-lous legal dispute as to the claim because they prevailed. On rehearing, only for purposes of argument, the judge reversed her position and ruled in Mr. Liggio’s favor. That reversal did not, in this court’s opinion, support a finding that the defendants’ dispute of the claim was unreasonable. After a thorough review of the entire record, it is our opinion that the OWC judge was manifestly erroneous in finding that the claim was not reasonably controverted. We therefore set aside the awards of penalties and attorney fees.

The next assignment of error concerns the interpretation of the portion of the judgment awarding medical expenses. Defendants correctly point out that to the extent that the judgment includes future medical expenses, it is in error because in the workers’ compensation context medical expenses come due only as they arise. Lester v. Southern Cas. Ins. Co., 466 So.2d 25 (La.1985). Mr. Liggio does not dispute this assertion. Therefore, we vacate that portion of the judgment that awards future medical expenses, recognizing that Mr. Liggio retains the right to claim such expenses as they arise.

The final question is whether a video re-enactment of the incident proffered by the defendants should have been admitted into evidence. In excluding the evidence, the OWC judge noted that the video was not made by anyone who had witnessed the accident and was not made by an expert in accident reconstruction. She therefore found that it was mere speculation on the defendants’ part as to what had actually happened.

19Trial judges are given wide discretion in ruling on the admissibility of evidence, and those determinations will not be disturbed absent a clear showing of abuse of that discretion which has prejudiced substantial rights of a party. Terrebonne v. Goodman Mfg. Corp., 96-450 (La. App. 5 Cir. 12/30/96), 687 So.2d 124. We find no abuse of discretion in the decision to exclude the video, and neither do we see any substantial rights of defendants which might have been affected thereby. There were photographs of the boat and trailer introduced, as well as aerial photographs of the scene. The video would not have contributed to a clearer understanding of the accident even had it been produced by a reconstruction expert. In this circumstance, we decline to hold that it was an abuse of discretion to prohibit introduction of the video.

CONCLUSION

For the foregoing reasons, the awards of attorney fees and penalties, and the award of future medical expenses, are set aside. In all other respects, the judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART


source: Caselaw Access Project

author: MARC E. JOHNSON, Judge.

license: Public Domain

text:
    BERNARD, CASSISA, ELLIOTT AND DAVIS v. The ESTATE OF Robert J. LAPORTE, CPA and Galliand and Hoblack, CPAS, LLC.
    No. 12-CA-758.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      B. Frank Davis, Howard B. Kaplan, Attorneys at Law, Metairie, LA, for Plaintiff/Appellant.
    Richard G. Duplantier, Jr., Peter A. Bourgeois, Attorneys at Law, New Orleans, LA, for Defendants/Appellees.
    Panel composed of Judges JUDE G. GRAVOIS, MARC E. JOHNSON and ROBERT A. CHAISSON.
   MARC E. JOHNSON, Judge.

| gin this accounting malpractice action, plaintiff, Bernard, Cassisa, Elliot & Davis, A Professional Law Corporation (“Bernard, Cassisa”), appeals the sustaining of an exception of prescription dismissing its claims with prejudice. For the reasons that follow, we affirm.

FACTS & PROCEDURAL HISTORY

On March 14, 2011, Bernard, Cassisa filed a Petition for Damages in the 24th Judicial District Court against defendants, The Estate of Robert Laporte, CPA (“La-porte”), and Galliand & Hoblack, CPAs, L.L.C., for accounting malpractice. Bernard, Cassisa alleged Laporte was retained by the law firm to perform services relating to the firm’s financial affairs, including the prevention of fraud, theft or embezzlement. In May 2010, Bernard, Cassisa learned that its bookkeeper had been stealing from the firm since 2003, and had misappropriated over $50,000. Bernard, Cassisa asserted that but for defendants’ negligence, it would not have sustained the financial loss.

| ^Defendants responded on April 28, 2011, by filing an exception of prematurity asserting that plaintiffs claims must first be presented to a public accountant review panel before the claims could proceed in court. The parties subsequently entered into a consent order on July 1, 2011, wherein Bernard, Cassisa agreed that defendants’ exception of prematurity was correct, and the lawsuit was dismissed without prejudice.

In the interim, on May 31, 2011, Bernard, Cassisa filed a complaint with the Society of Louisiana Certified Public Accountants (“the Society”) requesting a review of its claims against Laporte and Galliand & Hoblack by a public accountant review panel. The Society acknowledged the request on June 3, 2011, and the review panel process was instituted. Approximately two months later, defendants filed a Petition to Institute Discovery in the 24th Judicial District Court under the authority of La. R.S. 37:116, and, subsequently, took the deposition of Paul Cassi-sa, Sr. on December 19, 2011.

On April 11, 2012, defendants filed an exception of prescription to plaintiffs accounting malpractice claim on the basis Bernard, Cassisa had knowledge of the alleged malpractice on May 3, 2010, but failed to file a request for review by a public accountant review panel within one year of discovering the alleged malpractice. After a hearing, the trial court sustained the exception of prescription and dismissed plaintiffs claims with prejudice. Plaintiff timely appealed.

LAW & DISCUSSION

Louisiana Revised Statute 9:5604(A) contains the time limitations applicable to actions concerning professional accounting liability and provides:

No action for damages against any accountant duly licensed under the laws of this state, or any firm as defined in R.S. 37:71, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide professional accounting service shall be | ^brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

The one-year and three-year periods of limitation are peremptive and may not be renounced, interrupted, or suspended. La. R.S. 9:5604(B).

Five years after the legislature amended La. R.S. 9:5604 to specify that the statute’s time limitations are peremptive, the legislature enacted statutes in Title 37 relating to claims against certified public accountants or firms. Relevant to this appeal, the legislature imposed a requirement that claims of accounting malpractice must first be presented to a review panel before they can be commenced in any court. Specifically, La. R.S. 37:102 provides that all claims against certified public accountants or firms shall be reviewed by a public accountant review panel. It further provides that a review by the panel “shall not take place unless, within the time limitations provided for in R.S. 9:5604, a claimant files with the society a written request for review of the claim.” La. R.S. 37:102(B).

Additionally, La. R.S. 37:105(A) states that “no action against a certified public accountant or firm ... may be commenced in any court before the claimant’s request for review has been presented to a public accountant review panel established pursuant to this Part and the panel has issued a written opinion.” Further, La. R.S. 37:105(B) states that the claimant’s request for review “shall be deemed that claimant’s exercise of his right to seek judicial cognizance of the claims described in the written request for review for purposes of R.S. 9:5604.” Upon the claimant’s receipt of the final report of the review panel or upon termination of the review process, the claimant has “a minimum of ninety days | .^prescription remaining” to file an action in court “regardless of any statute to the contrary.” La. R.S. 37:105(B).

Bernard, Cassisa argues that its claims are not prescribed because its Petition for Damages, filed on March 14, 2011, was timely filed within one year of its discovery of defendants’ failure to detect the theft and embezzlement. Defendants, however, contend that the filing of a premature lawsuit does not interrupt prescription or per-emption. Bernard, Cassisa maintains that La. R.S. 9:5604, which provides for a per-emptive period, and La. R.S. 37:105, which provides a minimum of 90 days prescription remaining after the review panel renders its decision or termination of the review process, are internally inconsistent.

By the plain language of the statute, the one-year and three-year time periods of La. R.S. 9:5604 are peremptive as opposed to prescriptive. The difference between prescription and peremption is that prescription prevents the enforcement of a right by legal action but does not terminate the natural obligation, whereas peremption extinguishes or destroys the cause of action itself. La. C.C. arts. 3447, 3458; Naghi v. Brener, 08-2527 (La.6/26/09); 17 So.3d 919, 923. Because the rights to which peremptive periods attach are extinguished after the passage of a specified period of time, nothing may interfere with the running of a peremptive period. Id. As such, peremptive periods may not be interrupted, suspended or renounced. La. C.C. art. 3461.

In Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., 04-1227 (La.App. 1 Cir. 6/10/05); 916 So.2d 252, 255, the First Circuit recognized the seeming confusion between La. R.S. 9:5604 and the provisions in Title 37 relating to accountants. The court noted that while La. R.S. 9:5604 clearly provides that the time periods set forth therein are peremptive, the various provisions in Title 37 refer to a prescriptive time period. The court ^observed that the review panel requirement for accounting malpractice claims was similar to the procedure applicable to medical malpractice claims, which are subject to prescriptive time periods. The court then noted that the legislature applied the review panel procedure for accountants to actions subject to peremptive time periods. Despite the confusion, the First Circuit applied the laws on statutory construction and concluded that peremption under La. R.S. 9:5604 is avoided when a claimant files a request for review of its accounting malpractice claim within one year of the negligent act, or one year of discovering the negligent act, but not more than three years after the negligent act. Ascension School Employees Credit Union, 916 So.2d at 259.

We agree. Under La. R.S. 37:105(B), the filing of a request for review is deemed to be a claimant’s exercise of his right to seek judicial cognizance of his claim for purposes of La. R.S. 9:5604. Thus, the issue before us is whether Bernard, Cassisa timely filed a written request with the Society. By its own admission, Bernard, Cassisa discovered the acts of malpractice on May S, 2010. However, it did not file a written request for review with the Society until May 26, 2011, which was more than one year from the discovery of defendants’ alleged acts of negligence. Thus, Bernard, Cassisa’s claims against defendants were untimely.

17Bernard, Cassisa argues that it complied with La. R.S. 9:5604 because it filed its Petition for Damages within one year of its discovery of the acts of malpractice. We find the premature filing and subsequent dismissal of the Petition for Damages had no effect on the peremp-tive period of La. R.S. 9:5604, as the per-emptive period cannot be interrupted or suspended. See Washington v. Fustok, 01-1601 (La.9/21/01); 797 So.2d 56. Only the timely filing of a written request for review under La. R.S. 37:105 prevents per-emption under La. R.S. 9:5604. Furthermore, when Bernard, Cassisa voluntarily dismissed the Petition for Damages in response to defendants’ exception of prematurity, it was as if the lawsuit had never been filed. See La. C.C. art. 3463.

Bernard, Cassisa also argues that defendants waived their right to a review panel by filing a petition to institute discovery and conducting discovery. We find no merit in this argument. Louisiana Revised Statute 37:116 provides that evidence may be submitted to the public accountant review panel. Subsection (D) specifically provides that “[u]pon request of any party or of any two panel members, the clerk of any district court shall issue subpoenas and subpoenas duces tecum in aid of the taking of depositions and the production of documentary evidence for inspection and copying.” Thus, the conducting of discovery and the use of the district court to aid in discovery are parts of the review panel process and do not constitute a waiver of the review panel.

DECREE

Based on the above, we find the trial court properly sustained defendants’ exception of prescription dismissing Bernard, Cassisa’s claims with prejudice. Costs of this appeal are assessed against plaintiff/appellant.

AFFIRMED

      . The rules for statutory construction were summarized as follows:
      1) it is presumed that every provision of law was intended to serve some useful purpose; 2) it is not presumed that the lawmaker intended for any part of a law to be meaningless; 3) the lawmaker is presumed to have enacted the law with full knowledge of all other laws pertaining to the same subject matter; 4) it is the duty of the courts to interpret a provision of law which harmonizes and reconciles it with other provisions pertaining to the same subject matter; and 5) when a law is susceptible to two or more interpretations, that which affords a reasonable and practical effect to the entire act is preferred to one that renders part of the act nugatory. Additionally, rendering the whole, or a part, of a law meaningless is the last option available to a court when it interprets a law. Where a statute is ambiguous and susceptible of two constructions, the courts will give that construction which best comports with the principles of reason, justice, and convenience, for it is to be presumed that the legislature intended such exceptions to its language as would avoid its leading to injustice, oppression, or absurd consequences. [Internal citations omitted.]

        Ascension School Employees Credit Union v. Provost, Salter, Harper & Alford, L.L.C., 916 So.2d at 258.

      . The request for review is deemed filed on the date it is received, stamped, and certified by the Society or on the date of its mailing, if mailed by certified or registered mail. La. R.S. 37:102(C). The record shows Bernard, Cassisa mailed its request for review by certified mail on May 26, 2011.


author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana in the Interest of E.S.P.
    No. 12-CA-786.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      Sherry A. Watters, Tilden H. Green-baum, III, Attorneys at Law, New Orleans, LA, for Plaintiff/Appellee Department of Children and Family Services.
    Hester R. Hilliard, Attorney at Law, Jefferson, LA, for Defendant/Appellee Minor Child, E.S.P.
    Nelson Bowman, Attorney at Law, Harvey, LA, for Defendant/Appellant Michelle Leydon.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   JUDE G. GRAVOIS, Judge.

| ?M.L. has appealed a juvenile court judgment terminating her parental rights. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On June 19, 2007, 39-year-old M.L. gave birth to E.S.P. The record reflects that A.P. is listed on E.S.P.’s birth certificate as her father. Apparently, he has not been involved in her life. On April 1, 2010, E.S.P. was living with her mother and grandmother in a home with several animals. On that date, E.S.P.’s grandmother summoned police because an intoxicated M.L. had dug up the corpses of two animals that had died about six months earlier and brought the corpses into their house. This incident resulted in M.L.’s being committed to a psychiatric hospital. Authorities deemed the house unsafe for E.S.P. due to animal excrement and urine found in the house. E.S.P. was placed in foster care.

|sOn June 1, 2011, the Department of Children and Family Services (“DCFS”) filed a Petition for Termination of Parental Rights seeking to terminate M.L.’s parental rights of E.S.P. pursuant to La. Ch.C. art. 1015(5). An attorney was appointed to represent E.S.P. in the proceeding. M.L. retained private counsel, and denied the allegations of the petition.

The termination hearing was set for September 19, 2011. However, on August 16, 2011, M.L. was granted a continuance because she was being evaluated by a privately-retained psychologist.- At a status conference held on September 13; 2011, M.L.’s attorney requested a continuance in order to allow him to review the DCFS file. On September 29, 2011, DCFS requested a continuance because a key witness was unavailable.

On January 17, 2012, DCFS' and M.L. entered into a consent judgment. The judgment provided that the trial on the termination of parental rights petition was continued without date on the motion of DCFS, and that M.L. had to; (1) find appropriate child care for E.S.P.; (2) have two two-hour home visits per week, supervised and progressing to unsupervised; (3) attend E.S.P.’s weekly speech therapy; (4) obtain a bed, clothing, and storage for E.S.P.’s things; (5) develop a budget for E.S.P.’s return; and (6) have adequate food for - E.S.P. The judgment further provided that a review hearing would be held on February 28, 2012. On February 28, 2012, the trial court ruled that the status of the matter was to remain the same. . On March 6, 2012, M.L.’s private attorney withdrew from the case and M.L. was appointed counsel. On March 20, 2012, M.L.’s appointed attorney moved for a continuance because he had been unable to contact M.L.

On April 10, 2012, a hearing was held in which testimony was taken from Samantha Barker, the DCFS case worker, Brittney Bergeron of Court Appointed Special Advocates for Children (“CASA”), and Priscilla Plummer, the foster | ^mother of E.S.P. A transcript of this testimony is not contained in the appellate record. M.L. and her attorney were present for this hearing. According to the minute entry for this hearing, the court ordered that visitation of E.S.P. by M.L. be supervised by the “infant team” and that a termination hearing be held on June 18, 2012. A judgment signed on April 10, 2012 in connection with this hearing noted the case plan goal to be adoption and that this permanent plan is the most appropriate and in the best interest of E.S.P.

After several continuances, a termination hearing was held on August 13, 2012. At the hearing, Samantha Barker testified that she was the case manager for M.L. and E.S.P. She explained that E.S.P. was taken into custody on April 1, 2010 because of neglect and inadequate shelter. She prepared the case plan to work towards reunification. She informed M.L. that her failure to comply with the case plan could result in termination of her parental rights. M.L. was compliant with attendance and participation with all aspects of the case plan with the exception of removing the carpeting from the home and successfully completing the Tulane Infant Team program. When Ms. Barker “inherited” this case from the initial worker in August 2010, she went to M.L.’s home and it smelled of urine and feces. The case plan was modified to require removal of carpet from the home. M.L. did not remove the carpeting until June 2011. M.L. told Ms. Barker that her attorney stated that she did not have to remove the carpet, and that she and friends who come over to the house “[did] not smell anything.”

The last visit Ms. Barker observed between M.L. and E.S.P. took place at a children’s-themed restaurant. During the middle of this visit, E.S.P. was observed running around with pizza in her hand. She also had pizza all over her face. When asked about this by Ms. Barker, M.L. stated that E.S.P. wanted to play and did not want to sit down. Ms. Barker observed that M.L. was failing to set down any [¿parental constraints for E.S.P. Ms. Barker testified that one of the concerns with the experts on the Infant Team was that M.L. did not have the ability to set limits for E.S.P. It was apparent to Ms. Barker that after over twenty months of therapy with the Infant Team, M.L. was still dependent on a lot of directions during her visits with E.S.P.

Ms. Barker visited M.L.’s home on a monthly basis to monitor her progress. She continued to detect the strong odor of feces and urine on her visits to the home. She described one visit in which she actually slipped on a substance on the floor that she thought to be animal urine. Ms. Barker testified that the agency met and determined that it was in E.S.P.’s best interest for M.L.’s rights to be terminated and for E.S.P. to be freed for adoption.

On cross-examination, Ms. Barker admitted that she was not always able to visit the home on a monthly basis because sometimes when her visits were unannounced, M.L. would not answer the door. The last time she had visited M.L.’s home was in March 2012.

Ms. Barker also testified that E.S.P. made tremendous improvement in her developmental delays since receiving speech and language therapy, as well as occupational and play therapy. E.S.P. was in a foster home that had two older adopted girls. She had bonded to these girls and they included her in their activities.

Dr. Madeleine Blancher, a pediatrician, testified that she worked with the Tulane Infant Team as a child psychiatric fellow from July 2010 through June 2011. In her intake interview with M.L., she described the episode that precipitated E.S.P.’s being taken into custody. M.L. admitted to her that she was depressed at that time and had been drinking and taking pills when she brought the animal corpses into their house. M.L.’s mother summoned the police. M.L. stated | fito Dr. Blancher that contrary to the police report stating there was excrement and urine all over the house, there were only two piles of dog feces in the home at that time, which in her opinion was the result of the dogs being excited because there were new people in the house.

M.L. advised Dr. Blancher that years earlier, someone had complained to authorities about the number of cats she had at her home. Due to this complaint, M.L. voluntarily gave custody of her three other children to her sister. These children have not returned to live with M.L.

Dr. Blancher testified that, in her opinion, E.S.P.’s obvious developmental delays when she was taken into custody were not caused by any inherent deficits of E.S.P.

Dr. Blancher worked with M.L. for eleven months as part of the Tulane Infant Team. The first program M.L. was enrolled in through the Infant Team was Toddler Talk, which Dr. Blancher described as a basic parenting program. Since E.S.P. was not speaking at the time she was taken into custody, M.L. was enrolled in this program because it has been shown that speech development comes from interaction with parents. This program included parents imitating the child’s play and sharing things. As evidenced by her lack of interaction with E.S.P. during visits, it was apparent to the Infant Team that M.L. did not understand the concepts presented. According to Dr. Blancher, when M.L. visited with E.S.P., there was parallel play with very little interaction. M.L. was then moved to a program called Circle of Security, an eight-week parenting course with the goal of the parent learning the child’s needs and learning how to respond to those needs. M.L. could describe the principles introduced, but during her visits with E.S.P., she had difficulty putting these principles into practice. A concept would be explained to M.L. one week, but she seemed to have forgotten the concept by the next week. [7Pr. Blancher testified that “this went on for months.” During this time, M.L. would visit with E.S.P. as part of the program and would also visit with E.S.P. one time per week at the DCFS office. M.L. was not able to complete this program, nor was there was any reasonable expectation that she would be able to complete the program in the future. Because M.L. was neither able to describe E.S.P.’s needs, nor fulfill those needs, in April 2011 it was decided that visit-coaching for M.L. would be attempted. Dr. Blancher was not involved in the visit-coaching with M.L. On cross-examination, Dr. Blancher testified that in her opinion, M.L. did not have anxiety over the controlled nature of the settings of the visits; rather, M.L.’s anxiety was in dealing with E.S.P.

Dr. Anna Smyke, an associate professor at Tulane, was accepted as a developmental psychologist expert by the court. She testified that at the time E.S.P. was taken into custody, she would “go around on all fours” and would bark from time to time. She was delayed in terms of communication, fine motor skills, gross motor skills, and problem solving. She was impaired in terms of imitating play and mastering motivation and other things that would be expected of a child who was almost three years old. She was also “stuffing food” and was aggressive with other children in the foster home. She screamed at the sound of a vacuum cleaner. E.S.P. was immediately placed in therapy. Dr. Smyke opined that there was nothing in E.S.P.’s medical records to indicate that she had any inherent deficits; rather, the developmental delays she had were a response to her environment. Dr. Smyke testified that, after completing sixteen months of speech and language therapy and thirteen months of occupational therapy, E.S.P. had met all of the goals of her therapy.

Dr. Smyke also testified that M.L. participated in visit-coaching, which is to give a parent concrete directions as to how to identify the child’s needs and then |smeet those needs. Visit-coaching for M.L. started in April 2011. The purpose of visit-coaching was to make sure that the parent can identify the child’s needs and problem-solve about meeting those needs in order to keep the child safe. The ease worker would meet with M.L. for fifteen to twenty minutes to prepare her for her one-hour visit with E.S.P., and then meet with her again for fifteen minutes after the visit for debriefing. Although M.L. came to almost every appointment, she did not make progress in being able to identify E.S.P.’s needs and then figure out how to meet those needs. Dr. Smyke occasionally had to go into the room with M.L. to help with her visits with E.S.P. According to Dr. Smyke, all of these programs had worked with other parents who did not have a lot of child-rearing insight. When M.L. visited with E.S.P., M.L. would either be too intrusive and ask too many questions, or would “shut down” when the visit got overwhelming.

Dr. Smyke explained that M.L. could follow their suggestions, but there were concerns as to whether M.L. could care for E.S.P. if she was unsupervised. She related a visit in which E.S.P. ran into a wall with a scooter and M.L. did nothing about this behavior. During some visits, Dr. Smyke would have to go into the room and calm E.S.P. down, but stated that this was supposed to be M.L.’s job. During the last three visits, Dr. Smyke had to go into the room to assist M.L. for 30-45 minutes out of the one-hour visits. When M.L. was debriefed after these visits, she did not have the- insight to say what she should have done differently. In Dr. Smyke’s opinion, M.L. did not have the insight into the issues that brought E.S.P. into custody, despite the issues having been clearly pointed out to her.

Dr. Smyke participated in thirty-six sessions with M.L. and E.S.P. They tried visits both at the Infant Team facility and at home, and determined that the -home environment was not safe for E.S.P. Dr. Smyke concluded that M.L. loves E.S.P., and even though she tried her best, she could not safely parent E.S.P. 19Pespite her participation in programs that have helped other parents with impairments, M.L. had not gotten to the point where she could meet E.S.P.’s needs. Dr. Smyke explained that M.L. did not have the capacity to put into practice the techniques discussed in therapy. Dr. Smyke opined that if E.S.P. were returned to M.L., M.L. would quickly become overwhelmed and would neglect E.S.P. Dr. Smyke testified that there was no reasonable expectation of a significant improvement in M.L.’s conduct in the near future.

Dr. Alan James Klein, an expert psychologist, was called to the stand by M.L. Dr. Klein first examined M.L. in August 2011 on referral from her attorney. He saw M.L. a total of twenty times. He found that she had psychotic depression which had led to the removal of E.S.P. He opined that M.L. was depressed during this event because her teenagers had been removed from her home, she was in dire financial straits, and she felt responsible for the death of her dog and wanted to die. Dr. Klein stated that this was an acute disorder, and as long as M.L. does not drink and takes her medicine, an incident such as this would not happen again. He opined that M.L. did not have any addictions, noting that she had been going to Alcoholics Anonymous and all of her drug screens had been negative. He diagnosed M.L. as having anxiety disorder.

Dr. Klein testified that he did not find anything that would compromise M.L.’s ability to parent and her ability to provide a reasonable standard of care for E.S.P. The results of testing performed on M.L. were consistent with someone who has a high school education. Dr. Klein stated that M.L. had worked hard to get E.S.P. returned to her. This included taking several buses to numerous appointments and removing the carpet in her home. He admitted that over the course of therapy, he observed E.S.P. and M.L. together on only one occasion. During this encounter, E.S.P. sat in M.L.’s lap and he did not see anything unusual |inor problematic. Dr. Klein related one visit in which E.S.P. asked for her grandmother and started to cry when she was told that her grandmother could not come to visit her. Dr. Klein opined that this shows E.S.P.’s attachment to M.L., as well as to her grandmother.

M.L. testified as to the events leading up to E.S.P.’s removal from her home. She explained that several months earlier, she had a Pekingese and then rescued a pit bull. In her view, the stress of having the pit bull around caused the Pekingese to have a heart attack and die. Six months later, because she was feeling guilty and was still depressed over this, she bought beer and vodka and consumed them with her medications — Ativan and Celexa. At that time, she had four Pekingese and five cats. The animals stayed outside during the day and slept in the storage room at night. She admitted that on the day of the incident when E.S.P. was removed from the home, the carpet in her home was probably soiled. She stated that E.S.P. sometimes had “accidents” on the carpet. She explained that she cleaned the carpet, but the carpet cleaner did not always work. Her understanding of the case plan was that she was not required to remove the carpet; rather, in response to the ease plan, she had the carpet steam-cleaned and the house sprayed for fleas every three months. Also, she removed the carpet in June of 2011 and replaced it with new tile. She no longer has any dogs, and only two outside cats. She stated that she has paid support, has gone to parenting classes, has gone to Alcoholics Anonymous, and has been sober for twenty-eight months. She purchased games and videos for visits with E.S.P. and they would cuddle and watch movies during the visits. She acknowledged that on one visit, E.S.P. rode her bike into a wall, explaining, however, that the collision was “not hard.” Before E.S.P. was removed from her home, she provided all of her care, including taking her to the doctor. All lnof E.S.P.’s vaccinations were up to date. She felt that she could be a competent parent and would do everything that she has to do to take care of E.S.P.

Priscilla Plummer testified that she was the foster mother of E.S.P. When E.S.P. first came into her care, she was not talking, would save food in one side of her mouth, and “just stared.” She testified that E.S.P. is presently a cheerful child who talks, plays, rides her bike, skates, and swims. Ms. Plummer’s extended family treats E.S.P. as part of the family and buys her Christmas and birthday gifts, just as they do for other children in the family. E.S.P. accompanies them on family outings. Ms. Plummer testified that she loves E.S.P., and if she is freed for adoption, intends to adopt her.

Jane Briscoe, E.S.P.’s CASA worker for just under two years, testified that at first E.S.P. did not respond when spoken to, but now is friendly, talkative, and playful. Ms. Briscoe had seen E.S.P. with M.L. multiple times over these two years, and based on these observations as well as on information she obtained from the Infant Team and DCFS, it was her opinion that it would be in E.S.P.’s best interest for M.L.’s parental rights to be terminated and for E.S.P. to be adopted by Ms. Plum-mer.

At the conclusion of the hearing, the trial judge stated:

[M.L.,] there is no doubt in the court’s mind that you love this child very much and that you’ve done everything you could do to try to have the child returned, but the court is convinced that you are not able to parent this child based on your inability to translate into action what you’ve learned in these parenting classes and for me to return that child would place the child at risk. And for these reasons, the court is going to terminate your rights. I find that the State has — The court believes that the State has proven the case by clear and convincing evidence.
This timely appeal by M.L. followed.

| ^ASSIGNMENT OF ERROR

In her only assignment of error, M.L. argues that she has substantially complied with her case plan. In support of this argument, she refers to the testimony of Dr. Smyke that she participated fully with everything the Tulane Infant Team requested of her, and that she was always open to suggestions and willing to try different techniques that were offered to her. M.L. states that Dr. Smyke believed that M.L.’s behaviors during visits could have been the result of M.L.’s feeling that she needed to perform in front of the doctors.

M.L. also cites to the testimony of Dr. Klein who found that she had no substance abuse issues and that the incident that led to E.S.P.’s coming into State care was an acute disorder that would not happen again. Dr. Klein testified that the Infant Team and DCFS perceived M.L. as being uncaring because of her lack of emotion towards her daughter. However, Dr. Klein testified that M.L. had told him that she felt she had to be strong in front of DCFS and the Infant Team. Dr. Klein testified that M.L. had done everything she could to comply with the case plan.

M.L. then points to her own testimony that she was not originally required to remove the carpets, just to clean them. She has had her house sprayed for flees every three months. She participates in Alcoholics Anonymous and has been sober for twenty-eight months. She presently has no dogs and only two outside cats. She has purchased books, video games, and educational videos for her daughter to play with during unsupervised visits. She has purchased a bed and clothing and has been saving money for two years to prepare for the day when E.S.P. was returned to her.

11SM.L. also points out that in early 2012, the case plan goal was changed from adoption to reunification and contends that had she not been making progress, the case plan would not have been changed to recommend reunification. M.L. concludes that there was no testimony that she did not comply with her case plan as she did everything that was asked of her by DCFS and the Tulane Infant Team. M.L. argues that because Ms. Barker had not visited the home since March 2012, there was no evidence presented at trial as to the condition of the home at the time of trial. In support of this argument, she points to Ms. Barker’s testimony in which she was unable to state whether any home visits had been conducted between March 2012 and the termination hearing in August 2012.

DCFS responds that the trial court’s finding that it proved the grounds for termination is not manifestly erroneous. DCFS argues that the “psychotic break” that M.L. experienced in April 2010 revealed serious neglect of E.S.P. DCFS contends that the developmental delays suffered by E.S.P. were the result of long term, chronic neglect. E.S.P. had no social skills, crawled on all fours, barked, and became upset at loud noises. She stared into space and made no attempt to communicate. After extensive therapy, however, she was now thriving. In contrast, after two years of intensive services and hands-on training, in which M.L. “tried her hardest,” she was unable to internalize, generalize, or apply any of the parenting skills she was taught. DCFS contends that the causes that brought E.S.P. into foster care still exists. DCFS concludes that M.L. cannot show manifest error in the trial court’s decision or that the trial court’s decision was clearly wrong.

| ¡¿ANALYSIS

The petition to terminate M.L.’s parental rights was filed pursuant to La. Ch.C. art. 1015(5), which provides:

The grounds for termination of parental rights are:

(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

While parents have a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with their children, the State has a legitimate interest in limiting or terminating parental rights under certain conditions. State in the Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292 (1995). To terminate parental rights, one of the grounds for termination set forth in La. Ch.C. art. 1015 must be established by clear and convincing evidence, and termination must be found to be in the child’s best interest. State ex rel. D.L.R., 08-1541 (La.12/12/08), 998 So.2d 681, 688.

The manifest error standard applies to appellate review of the trial court’s findings as to whether parental rights should be terminated. State ex reí. K.G., 02-2886 (La.3/18/03), 841 So.2d 759, 762. Whether a parent has complied with a case plan is a question of fact that may not be set aside in the absence of manifest error or unless clearly wrong. State ex rel. J.T. v. J.M., 46,090 (La.App. 2 Cir. 12/12/10), 56 So.3d 1009,1012.

115Our review of the record indicates that DCFS proved by clear and convincing evidence that there is no reasonable expectation of significant improvement in M.L.’s condition or conduct in the near future, considering five-year-old E.S.P.’s need for a safe, stable, and permanent home. Dr. Blancher testified that she worked with M.L. for a period of eleven months using two different parenting classes to teach M.L. how to identify and meet her child’s needs. It was apparent to Dr. Blancher that M.L. did not understand the concepts presented because when M.L. visited with E.S.P., there was parallel play with very little interaction between M.L. and E.S.P. M.L. was then enrolled in an eight-week parenting course called Circle of Security in which the parent is to learn the child’s needs and learn how to respond to them. Dr. Blancher explained that M.L. could describe the principles introduced, but had difficulty putting these principles into practice in her visits with M.L. A concept would be explained to M.L. one week, but by the next week, she had forgotten the concept. Dr. Blancher explained that “this went on for months.” During this time, M.L. would visit with E.S.P. as part of the program and would also visit with E.S.P. one time per week at the DCFS office. The evidence indicates that M.L. was not able to complete this program, nor was there was any reasonable expectation that she would be able to complete the program in the future. Because M.L. was neither able to describe E.S.P.’s needs, nor fulfill those needs, in April 2011 it was decided to try visit-coaching for M.L.

Dr. Smyke testified that she participated in thirty-six visit-coaching sessions with M.L. and E.S.P. Visit-coaching gives direct, concrete instructions to help the parent learn how to identify the child’s needs and meet those needs. Dr. Smyke explained that the purpose of visit-coaching is to make sure that the parent can identify the child’s needs and problem-solve about meeting those needs in order to |1fikeep the child safe. Dr. Smyke stated that she met with M.L. for fifteen to twenty minutes to prepare her for her one-hour visits with E.S.P., then for fifteen minutes after each visit for debriefing. Dr. Smyke explained that M.L. came to almost every appointment, but she did not make progress in identifying what E.S.P. needed and then figuring out what to do about it.

Dr. Smyke explained that M.L. could follow them suggestions, but there was a question of whether M.L. could care for E.S.P. if she was unsupervised. Dr. Smyke testified that during the last three visits, she had to go into the room for BO-45 minutes of the one-hour visit. When M.L. was debriefed after these visits, she did not have the insight to say what she should have done. Dr. Smyke stated that M.L. did not have the insight into the issues that brought E.S.P. into custody, despite the issues having been pointed out to her.

Dr. Smyke further explained that they tried visits both at the Infant Team facility and at home, but determined that the home environment was not safe for E.S.P. Dr. Smyke concluded that M.L. loves E.S.P., but even though she tried her best, she could not safely parent E.S.P. Despite her participation in these programs that have helped other parents with impairments, M.L. had not gotten to the point where she could meet E.S.P.’s needs. Dr. Smyke explained that M.L. did not have the capacity to put the techniques discussed in therapy into practice. She opined that if E.S.P. were returned to the home, M.L. would quickly become overwhelmed and would neglect E.S.P. Dr. Smyke testified that there was no reasonable expectation of a significant improvement in M.L.’s conduct in the near future.

While we acknowledge that Dr. Klein ■ testified that he did not find anything that would compromise M.L.’s ability to parent and provide a reasonable standard of care for E.S.P., we note that Dr. Klein only observed a visit between M.L. and E.S.P. on one occasion. Further, Dr. Klein’s testimony focused on his opinion that |17the events surrounding E.S.P.’s removal from the home were unlikely to reoccur. However, Dr. Klein did not address the severe developmental delays suffered by E.S.P., which were reportedly the result of neglect by M.L.

M.L. argues that she must have been making progress in treatment because the case plan changed from adoption to reunification in early 2012. A review of the record indicates that a consent judgment was entered into on January 17, 2012 which required M.L. to perform certain tasks with a plan for a gradual return of E.S.P. to her. On February 28, 2012, a permanency hearing was held in which M.L., Ms. Barker, the case manager for DCFS, Ms. Briscoe, the CASA worker, and Ms. Plummer the foster mother testified. This testimony is not part of the appellate record. The record indicates that the permanent plan for E.S.P. was reunification, with a gradual return to M.L.’s home, but if this was unsuccessful, DCFS would proceed with termination of M.L.’s rights.

The record reflects that at a status hearing on March 20, 2012, M.L.’s attorney moved for a continuance because the attorney was unable to contact M.L. On April 10, 2012, a hearing was held in which testimony was taken from Ms. Barker, Brittany Bergeron from CASA, and Ms. Plummer. This testimony is also not part of the appellate record. At the conclusion of this hearing, the trial court ordered supervised visitation and set a date for the termination hearing. Consequently, although M.L. may have made some type of improvement for DCFS to attempt to work towards reunification, clearly the testimony taken at the April 10, 2012 hearing indicated that something had occurred which prompted the court to order supervised visitation and change the permanent plan from reunification to adoption.

Finally, the testimony taken as a whole indicates that it is in the child’s best interest for M.L.’s parental rights to be terminated. Ms. Barker, the case manager |lsfor DCFS, testified that it is in the child’s best interest for the parental rights to be terminated and the child be freed for adoption. The CASA worker, Ms. Briscoe, testified that it is in E.S.P.’s best interest for M.L.’s parental rights to be terminated and for E.S.P. to be adopted by Ms. Plum-mer. Ms. Plummer testified that E.S.P. had been in her custody for approximately three years and had remarkable improvement in her communication and social skills, and was thriving. Ms. Plummer testified that she and her family loved E.S.P. and she planned to adopt her if M.L.’s rights were terminated.

In sum, after a thorough review of the record and the evidence in this case, we find that DCFS proved by clear and convincing evidence that there is no reasonable expectation of significant improvement in M.L.’s condition or conduct in the near future, considering five-year-old E.S.P.’s need for a safe, stable, and permanent home. Further, termination of M.L.’s parental rights is in the best interest of E.S.P., who has bonded with her foster family with whom she has been living for over three years. Despite DCFS’s providing intensive programs for M.L. in an attempt to teach her to identify and meet her daughter’s needs, M.L. was unable to gain any insight into her daughter’s needs. The testimony indicates that M.L. did not actually grasp the reason E.S.P. was removed from her care, thus she was unable to make any changes so as to allow the child to be returned to a safe environment. Adults can take years to improve their functioning, but developing children do not have such time, as children’s lives are significantly disrupted while their parents attempt to deal with their own problems. State in the Interest of C.D., 558 So.2d 806 (La.App. 5 Cir.1990).

| ^CONCLUSION

For the foregoing reasons, the judgment of the juvenile court terminating M.L.’s parental rights is affirmed.

AFFIRMED

      . In order to protect the minor’s identity, we will refer to her and her parents by their initials in this opinion. La. Ch.C. art. 412.

      . A.P.’s whereabouts are unknown. Further, E.L., Jr., who was alleged to be E.S.P.’s "natural father,” has voluntarily surrendered his rights to E.S.P.


author: HANS J. LILJEBERG, Judge.

text:
    STATE of Louisiana v. Michael R. BATES.
    No. 11-KA-721.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      Harry J. Morel, Jr., District Attorney, Louis G. Authement, Assistant District Attorney, Hahnville, LA, for Plaintiff/Appel-lee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges ROBERT M. MURPHY, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

|2On April 29, 2010, the St. Charles Parish District Attorney filed a bill of information, charging defendant, Michael Bates, with one count of molestation of a juvenile in violation of LSA-R.S. 14:81.2 (count one) and one count of sexual battery in violation of LSA-R.S. 14:43.1 (count two). On May 4, 2010, defendant was arraigned and entered pleas of not guilty to both charges. Trial commenced on.January 12, 2011, and on January 13, 2011, a 12-person jury found defendant guilty as charged. On February 28, 2011, defendant filed a motion for new trial/judgment notwithstanding the verdict, which the trial court heard and denied on March 15, 2011.

On April 19, 2011, the trial court sentenced defendant to concurrent sentences of 75 years at hard labor without benefit of parole, probation, or suspension of sentence. The court also notified defendant of the' sex offender registration requirements. Defendant’s motion for appeal was granted on April 26, |s2011. On May 13, 2011, defendant filed a motion to reconsider sentence, which the trial court denied on May 19, 2011.

ERROR PATENT DISCUSSION

On appeal, defendant raises four assignments of error for review. We pretermit review of the errors assigned, as we note reversible error discoverable by mere inspection of the pleadings and proceedings and without inspection of the evidence. LSA-C.Cr.P. art. 920.

The record reveals that the instant prosecution was instituted by bill of information, charging the defendant with molestation of a juvenile, a violation of LSA-R.S. 14:43.1, and sexual battery, a violation of LSA-R.S. 14:81.2.

Article' 1, section 15 of the Louisiana Constitution of 1974 provides that no person shall be held to answer for a capital crime or a crime punishable by life imprisonment except on indictment by a grand jury. Similarly, LSA-C.Cr.P. art. 382(A) provides that a prosecution for an offense punishable by death, or for an offense punishable by life imprisonment, shall be instituted by indictment by a grand jury.

At the time of the offenses, the crimes of molestation of a juvenile and sexual battery were punishable by life imprisonment, where the juvenile was proven to be under the age of thirteen. In the instant case, the victim was nine years old at the time of these offenses. Therefore, prosecution for either or both Roffenses with which the defendant is charged can be instituted only by grand jury indictment.

As such, the institution of prosecution by bill of information in this case as to either or both charges constitutes reversible error. It is well-settled that this is not a right which may be waived by a defendant’s failure to raise it at trial or on appeal. In State v. Stevenson, 334 So.2d 195 (La.1976), the Louisiana Supreme Court, on patent error review, found that institution of prosecution by a bill of information for possession with intent to distribute heroin, punishable by life imprisonment at the time, constituted reversible error. The fact that a defendant does not raise this issue in a pre-trial motion to quash does not preclude appellate review and reversal on this ground, which is discoverable by inspection of the record, without review of the evidence. Stevenson, 334 So.2d at 196. The failure to institute prosecution by indictment where required is reversible error which can be raised at any time. State v. Donahue, 355 So.2d 247, at 249 n. 3 (La.1978). This is a right which guarantees that no person shall be charged of certain crimes except by a group of his fellow citizens acting independently of the district attorney or a judge. State v. Davis, 385 So.2d 193 (La.1980). See also, State v. Green, 347 So.2d 229 (La.1977); State v. Thomas, 461 So.2d 332 (La.App. 2 Cir.1984); State v. Gary, 445 So.2d 200 (La.App. 3 Cir.1984); State v. Lott, 434 So.2d 1274 (LaApp. 1 Cir.1983); State v. Smith, 542 So.2d 175 (La.App. 1 Cir.1989).

DECREE

We are mindful of the inconvenience to the parties as well as the renewed trauma to the victim; however, because the State has failed to properly institute prosecution, we are compelled to set aside defendant’s convictions and sentences and remand the matter to the district court. It is further ordered that, pursuant to La.C.Cr.P. art. 538, defendant be held in custody or his bail be continued for a | .¡¡period of thirty days from the date the judgment of this Court becomes final, pending the filing of a grand jury indictment, absent which defendant should be discharged.

CONVICTIONS & SENTENCES REVERSED & REMANDED

      . At the time of the offenses, LSA-R.S. 14:81.2(E)(1) provided:
      Whoever commits the crime of molestation of a juvenile when the victim is under the age of thirteen years shall be imprisoned at hard labor for not less than twenty-five years nor more than life imprisonment. At least twenty-five years of the sentence imposed shall be served without benefit of probation, parole, or suspension of sentence.
      And LSA-R.S. 14:43.1(C)(2) provided: ■
      Whoever commits the crime of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than life imprisonment. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

        (Emphases added).


author: ROBERTA. CHAISSON, Judge.

text:
    Christy DAVIS, Individually and on Behalf of her Deceased Child Terance Augustine v. Steve CARAWAY in His Capacity as Chief of Police of the City of Kenner, City of Kenner, Lasonya Lathers, Individually and on Behalf of her Minor Child, Charles Lathers, Nicole Wilson, Individually and on Behalf of her Minor Child, Tory Clark.
    No. 12-CA-643.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      Sharry I. Sandler, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.
    Patricia S. LeBlanc, Deborah A. Villio, Attorneys at Law, Metairie, LA, for Defendant/Appellee.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT A. CHAISSON, and STEPHEN J. WINDHORST.
   ROBERTA. CHAISSON, Judge.

12This is an appeal by Christy Davis from a judgment dismissing without prejudice her suit against Steve Caraway, Chief of Police for the City of Kenner, for plaintiffs failure to request service of process within 90 days of filing suit. For the following reasons, we reverse the judgment.

FACTS AND PROCEDURAL HISTORY

On June 26, 2010, Christy Davis’s son was fatally shot at a location several blocks away from a block party for which Chief Caraway’s office had issued a permit. Ms. Davis filed this suit on June 27, 2011, on her own behalf and as tutrix of the deceased victim, and named Chief Caraway and the City of Kenner, as well as the perpetrators of the crime, as defendants.

On August 30, 2011, Chief Caraway urged the declinatory exceptions of improper citation and service of process, and the dilatory exception of vagueness. A hearing was set on the exceptions for February 2, 2012, but it was continued until March 12, 2012, at the request of Ms. Davis’s new counsel, who had been retained on January 31, 2012. The exception of vagueness was directed to questions about Ms. Davis’s relationship to the victim. The exception relating to the adequacy of citation raised the question of whether service had been accomplished in accordance with the requirements of La. C.C.P. art. 1265. That ^article requires that service on a public official be made on him personally or at his office. Here, service was made at the Kenner Mayor’s Office, rather than on Chief Caraway personally or at his office.

The trial judge sustained the exception of insufficiency of service and granted Ms. Davis reasonable time within which to perfect service. She then made an additional request for service on Chief Caraway, which service was made on March 22, 2012. Chief Caraway then urged a motion for involuntary dismissal, alleging that Ms. Davis had failed to request service within 90 days of filing her suit as required by La. C.C.P. art. 1201(C), and asking that the case against him be dismissed without prejudice as provided in La. C.C.P. art. 1672(C). The motion was granted and the suit was dismissed without prejudice. This appeal followed.

LAW AND ANALYSIS

Pursuant to La. C.C.P. art. 1201(C), “service of the citation shall be requested on all named defendants within ninety days of commencement of the action.” This statute further provides that “[t]he requirement provided by this Paragraph shall be expressly waived by a defendant unless the defendant files, in accordance with the provisions of Article 928, a decli-natory exception of insufficiency of service of process specifically alleging the failure to timely request service of citation.” Further, La. C.C.P. art. 1672(C) provides that “[a] judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested.... ” A third statute, La. R.S. 13:5107(D), makes the 90-day service rule applicable to suits in which a political subdivision is made a defendant. Section (D)(2) of this latter statute provides that L“the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, upon whom service was not requested within the [90 day period].” All three statutes use the mandatory shall.

We note initially that our supreme court has repeatedly held that the “good cause” requirement of La. C.C.P. art. 1672(C) is to be strictly construed. See e.g. Barnett v. Louisiana State Univ. Med. Ctr.-Shreveport, 02-2576 (La.2/7/03), 841 So.2d 725. It is also the rule that confusion as to how or upon whom service must be made is not “good cause” for not properly requesting service timely, especially where any uncertainty could have been resolved by reference to the controlling statute. Taylor v. LSU Medical Center, 38,944 (La.App. 2 Cir. 10/14/04), 892 So.2d 581, writ denied, 05-0480 (La.5/20/05), 902 So.2d 1049. Although the rule of strict construction in the above cases has involved the narrow issue of “good cause,” our appreciation of these cases is that the entire statutory scheme relating to the 90-day request for service is subject to the same rule of strict construction.

In the present case, there is no question that proper service was not requested within 90 days of filing suit. Neither is there any evidence to establish “good cause” as to why proper service could not have been requested timely. The only remaining issue, therefore, is whether Chief Caraway complied with La. C.C.P. arts. 1201(C) when he filed his motion for involuntary dismissal. According to that article, if Chief Caraway wished to raise the issue of failure to request service within 90 days of filing suit, he was required to urge the declinatory exception of insufficiency of service of process specifically alleging failure of Ms. Davis to timely request service. Instead, Chief Caraway urged a motion for involuntary | ¡^dismissal. Strict construction of the applicable statutes mandates that this pleading be deemed ineffectual to raise the issue of failure to request service within the 90-day window. Thus, the judgment dismissing the suit without prejudice, based on this pleading, was error, and must be vacated.

CONCLUSION

For the foregoing reasons, the judgment dismissing without prejudice the suit against Steve Caraway, Chief of Police of the City of Kenner, is hereby vacated, and the matter is remanded to the district court for further proceedings consistent with this opinion.

VACATED AND REMANDED

      . We are aware of Filson v. Windsor Court Hotel, 04-2893 (La.6/29/05), 907 So.2d 723, holding that the versions of La. C.C.P. art. 1201(C) and 1672(C) in effect when the case was decided required that the proper procedure to raise the issue of failure to request service within 90 days of filing suit was by way of a motion for involuntary dismissal. However, that case has been legislatively superseded. See Acts 2006, No. 750, sec. 1.


text:
    Saint K. KNOWLES v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Erica Emma Rubio, Children’s Medical Clinic, Inc., and Traveler’s Property Casualty Company of America.
    No. 12-CA-806.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.

      James B. Guest, Attorney at Law, Ken-ner, LA, for Plaintiff/Appellant.
    David J. Bourgeois, Jaime M. Cambre, Duplass, Zwain, Bourgeois, Phister, Wein-stock, Attorneys at Law, Metairie, LA, for Defendants/Appellees.
    Panel composed of Judges SUSAN M. CHEHARDY, MARC E. JOHNSON, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

12Plaintiff/AppeIlant appeals the trial court’s grant of summary judgment in favor of defendants/ appellees, Children’s Medical Clinic, Inc. and Travelers Property Casualty Company of America.

Factual and Procedural History

On September 16, 2010, at approximately 8:00 a.m., defendant, Erica Rubio, arrived at her place of employment, Children’s Medical Clinic, located at 829 Bar-ataría Boulevard in Marrero, Louisiana. While driving through the parking lot, Ms. Rubio struck plaintiffs person, causing severe injuries.

Plaintiff subsequently filed suit against Ms. Rubio, State Farm Mutual Automobile Insurance Company, Children’s Medical Clinic, Inc. and Travelers Property Casualty Company of America. Plaintiff alleged that Children’s Medical Clinic and its insurer, Travelers, were liable for the actions of its employee, Ms. Rubio, under the theory of respondeat superior. Plaintiff specifically alleged that |aMs. Rubio was in the course and scope of her employment with Children’s Medical Clinic at the time of the accident.

Thereafter, Children’s Medical Clinic and Travelers filed a motion for summary judgment on the basis that there is no genuine issue of material fact that its employee, Ms. Rubio, was not acting in the course and scope of her employment on the morning of the accident. The trial court granted the motion for summary judgment. This timely appeal followed.

Discussion of Law

Appellate courts review the granting or denial of a motion for summary judgment de novo using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Migliore v. Gill, 11-407 (La.App. 5 Cir. 12/13/11), 81 So.3d 900, 902, writ denied, 12-94 (La.3/9/12), 84 So.3d 555; Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. Summary judgment shall be rendered if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Richard v. Hall, 2003-1488 (La.4/23/04), 874 So.2d 131,137. The mov-ants, Children’s Medical Clinic and Travelers, have the burden of proof. La. C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial, the movant need only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter, if the adverse party fails to produce factual support sufficient to establish they will be able to satisfy their evidentiary burden of proof at trial, there is no genuine issue of material fact La. C.C.P. art. 966(C)(2). Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is “material” for summary judgment purposes can be seen only in light of the substantive law applicable to the case. Richard, supra, at 187.

|4La. C.C. art. 2320 states, “employers are answerable for the damages occasioned by their servants and overseers, in the exercise of the functions in which they are employed.” Therefore, Children’s Medical Clinic will be held vicariously liable for the actions of Ms. Rubio only if she was in the course and scope of her employment with the Children’s Medical Clinic at the time of the accident.

Generally, an employee’s conduct is within the course and scope of his employment if the conduct is the kind that he is employed to perform. Gill, supra, at 903 (citing Orgeron v. McDonald, 93-1353 (La.7/5/94) 639 So.2d 224, 226). An employer will be responsible for the negligent acts of its employee when the conduct is so closely connected in time, place and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer’s business. Id.

An employee going to and/or from work is generally not in the course and scope of employment. White v. Canonge, 01-1227 (La.App. 5 Cir. 3/26/02), 811 So.2d 1286, 1289 (citing Fasullo v. Finley, 00-2659 (La.App. 4 Cir. 2/21/01), 782 So.2d 76, 81). The rationale of this principle is that an employee usually does not begin work until he reaches his employer’s premises. Id. So, unless the employee has a duty to perform a task en route, the employee’s commute to and from work is usually not in the course and scope of employment. Id. Exceptions may apply, however, when the employer provides the transportation, if the employer provides expenses or wages for the time spent traveling or if the operation of the vehicle is incidental to some employment responsibility. White, supra, at 1290.

None of the exceptions apply to this case, and the evidence does not support a finding that Ms. Rubio was acting in the course and scope of her employment when the accident occurred. On the morning of the accident, Ms. Rubio was | ^traveling to work in her privately owned vehicle, when she pulled into the parking lot of her employer, striking plaintiffs person. Children’s Medical Clinic does not compensate Ms. Rubio for travel expenses or mileage, nor does it require her to use her vehicle to perform her duties. Moreover, Erica Wing, the clinic’s payroll manager, testified that Ms. Rubio was a part-time employee who was paid an hourly rate, and that on the morning of the accident, Ms. Rubio had not yet reported for work. Plaintiff argues that it was a Children’s Medical policy that its employees park in a specific location. This fact, without more, simply is not grounds upon which to find that Ms. Rubio was acting in the course and scope of her employment. See, Davis v. Green, 44,033 (LaApp. 2 Cir. 2/25/09), 5 So.3d 291.

Considering the foregoing, we find that Ms. Rubio was not in the course and scope of her employment at the time of the accident. Therefore, Children’s Medical Clinic and its insurer, Travelers, are not liable for the alleged negligent acts of Ms. Rubio.

Decree

Accordingly, the judgment of the trial court granting summary judgment in favor of Children’s Medical Clinic, Inc. and Travelers Property Casualty Company of America is affirmed.

AFFIRMED


text:
    WELLS FARGO BANK, N.A. v. Larry Joe LUGO and Rhonda Myers Lugo.
    No. 12-CA-481.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 27, 2013.
    Kent A. Lambert, Katie Dysart, Baker, Donelson, Bearman, Caldwell & Berkow-itz, New Orleans, LA, for Plaintiff/Appel-lee.
    Donald G. Cassels, III, Tucker & Cas-sels, New Orleans, LA, for Defendants/Appellants.
    Panel composed of Judges ROBERT A. CHAISSON, STEPHEN J. WINDHORST, and HANS J. LILJEBERG.
   HANS J. LILJEBERG, Judge.

| ¿This appeal arises out of an attempt to upset a final money judgment rendered against the defendants/appellants, Mr. & Mrs. Lugo, in favor of the plaintiff/appel-lee, Wells Fargo Bank.

In January 2010, Wells Fargo Bank initiated suit against the Lugos in the 24th Judicial District Court, Parish of Jefferson to enforce an assigned security interest in immovable property owned by the Lugos at 8401 Bridgewater Drive in Harvey, Louisiana. Wells Fargo ultimately obtained a final default judgment against the Lugos on March 12, 2010. In that judgment, Wells Fargo was awarded money damages in the amount of $185,486.35, plus interest and attorney’s fees in the amount of $2,500.00. No motion for appeal was filed. After all applicable delays for appeal expired, Wells Fargo instituted execution proceedings to enforce its March 12, 2010 final money judgment via the issuance and execution of a writ of fieri facias against the Bridgewater Drive property. The property was thereafter seized and scheduled for sale in 2011, without objection. Prior to a re-scheduled April 11, 2012 judicial sale date, Donald G. Cassels, III, initiated proceedings in the previously adjudicated case, seeking to annul Wells Fargo’s March 12, 2010 final judgment and prevent execution thereof. More particularly, Mr. Cassels, initially claiming to represent the Lugos, filed an “Action to Nullify the Default Judgment of Foreclosure and Petition Lfor Injunctive Relief and Verified Petition for a Temporary Restraining Order,” wherein Mr. Cassels prayed for (1) an order granting an action for nullity with prejudice or, in the alternative, to set a date for contradictory hearing; (2) the issuance of a temporary restraining order precluding execution of the final judgment; and (3) an award of damages for loss and suffering, attorney’s fees and sanctions.

On April 10, 2012, the trial court denied Mr. Cassels’ prepared ex parte judgments, issuing written reasons on April 19, 2011. The trial court’s reasons included, but were not limited to, the fact that Mr. Cas-sels did not actually represent the Lugos, but instead represented a Mr. Jackson, the Lugos’ real estate broker.

On April 24, 2012, Mr. Cassels moved for the instant appeal, which was granted by the trial court on May 3, 2012.

Mr. Cassels now seeks review of the trial court’s judgments of April 10, 2012, denying relief. We, however, do not have jurisdiction to entertain these matters on appeal. We find that the rulings complained of are interlocutory judgments, which are only appealable when expressly provided by law. La. C.C.P. art. 2083. We know of no law that provides for appellate review of the judgments herein.

As such, the present appeal is hereby dismissed. Accordingly, plaintiffs motion to strike is denied as moot.

APPEAL DISMISSED & MOTION TO STRIKE DENIED

      . Appellee represents in brief that no formal service of process of this filing was requested, attempted or made upon Wells Fargo. Instead, Mr. Cassels mailed a copy of the pleading to Wells Fargo's former counsel of record in the foreclosure proceeding.

      . Mr. Cassels advised the trial court that he represented Mr. Jackson, who was given power of attorney by the Lugos. Mr. Cassels, however, did not have the power of attorney in his possession to provide to the court.