author: COOKS, Judge.

text:
    Willie Mae AMBROSE v. CITY OF NEW IBERIA.
    No. 08-1197.
    Court of Appeal of Louisiana, Third Circuit.
    April 1, 2009.
    Rehearing Denied July 8, 2009.

      S. Marie Johnson, New Iberia, LA, for Plaintiff/Appellant, Willie Mae Ambrose.
    Karen Day White, Louisiana Municipal Association, Baton Rouge, LA, for Defendant-Appellee, City of New Iberia.
    Court composed of SYLVIA R. COOKS, J. DAVID PAINTER, and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

| plaintiff, Willie Mae Ambrose, appeals the trial court’s judgment dismissing with prejudice her suit against the City of New Iberia for damages suffered as the result of a fall.

FACTS AND PROCEDURAL HISTORY

On December 4, 2001, Plaintiff alleged she tripped when her shoe became lodged in a broken portion of street curbing along Louisiana Highway 675, also known as Hopkins Street, in New Iberia, Louisiana. Plaintiff sought medical attention that same day at a local hospital, discovering she sustained a Grade II femoral neck fracture of the left hip. She underwent surgery to repair the fracture on December 5, 2001. Plaintiff alleged, six years after the accident, she still suffers from a noticeable limp and experiences weakness in the injured area.

On November 27, 2002, Plaintiff filed a Petition for Damages against the City of New Iberia, through the Department of Public Works (the City). The petition was amended to include the State of Louisiana, through the Department of Transportation and Development (DOTD). Eventually, Plaintiff and DOTD filed a joint motion, which was granted, dismissing DOTD from the lawsuit.

Plaintiffs suit against the City proceeded to a bench trial. The trial court found Plaintiff failed to meet her burden of proof under La.R.S. 9:2800 and dismissed her suit with prejudice. Specifically, the trial court found Plaintiff failed to establish the City had actual or constructive knowledge of the defect in question. Plaintiff moved for a devolutive appeal of that judgment, which was granted by the trial court.

ANALYSIS

We recognize that La. R.S. 9:2800 requires actual or constructive notice of the defect as a prerequisite to claims against public entities such as the City for damages | 2caused by the condition of things within its care and custody. La. R.S. 9:2800 provides in pertinent part:

A. A public entity is responsible under Civil Code Article 2817 for damages caused by the condition of buildings within its care and custody.
B. Except as provided for in Subsection A of this Section, no person shall have a cause of action based solely upon liability imposed under Civil Code Article 2317 against a public entity for damages caused by the condition of things within its care and custody unless the public entity had actual or constructive notice of the particular vice or defect which caused the damage prior to the occurrence, and the public entity has had a reasonable opportunity to remedy the defect and has failed to do so.

As such, the plaintiff must prove (1) the defendant owned or had custody of the thing that caused the damage; (2) the thing was defective in that it created an unreasonable risk of harm to others; (3) the defendant had actual or constructive knowledge of the defect or unreasonable risk of harm and failed to take corrective action within a reasonable time; and (4) causation. Wilson v. City of New Orleans, 95-2129 (La.App. 4 Cir. 4/3/97), 693 So.2d 344, writ denied, 97-1701 (La.10/13/97), 703 So.2d 613. A municipal authority is deemed to have constructive notice if the defect existed for such a period of time that by exercise of ordinary care and diligence, the municipal authority must have known of its existence, and the municipal authority had a reasonable opportunity to guard the public from injury by remedy of the defect. Dawson v. City of Bogalusa, 95-0824 (La.App. 1 Cir. 12/15/95), 669 So.2d 451.

An appellate court may not overturn a jury’s finding of fact “in the absence of ‘manifest error’ or unless it is ‘clearly wrong.’ ” Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La.1993). Even if the court of appeal believes that its own findings are more reasonable, the finder of fact’s “reasonable evaluations of credibility and reasonable inferences of fact should not be |sdisturbed upon review where conflict exists in the testimony.” Id. “Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong.” Stobart, 617 So.2d at 883.

The record establishes Hopkins Street and its curbing are owned and maintained by DOTD. That right of way extends beyond the curbing to the back of the sidewalk, and DOTD’s engineering directives impose a duty on it to maintain and repair the sidewalks adjacent to Hopkins Street. The City had an agreement with DOTD to perform grass cutting and litter abatement along the sidewalks of Hopkins Street. There was no agreement for the City to maintain or repair the roadway, curbing or sidewalks. Mark Delcambre, the City’s Assistant Public Works Director, testified the City would occasionally undertake minor repair work on the sidewalks and the neutral ground if there were complaints. Michael Moss, a civil engineer for DOTD, noted DOTD’s directives technically require it to maintain the sidewalks within its right of way. Despite this directive, Moss stated DOTD has historically shirked its duty in performing repairs on sidewalks, which are usually undertaken by the local authorities. Moss stated that “[fit’s understood by every local governing body that they are responsible for maintenance of sidewalks within state right-of-way.” Moss noted the curbing such as that which allegedly caused the injury is considered part of the roadway, and DOTD would be responsible for its maintenance.

However, Plaintiff argues the jurisprudence reveals the owner of a thing is not always its custodian. Liability is imposed based on custody or garde, not just ownership. Under La.C.C. art. 2317, strict liability is based on the relationship between the parties with custody and the thing posing an unreasonable risk of harm to others. The article imposing liability is based on custody and not ownership. Custody, distinct from - ownership, refers to a person’s supervision and control (garde) |4over a thing posing an unreasonable risk of harm. Thumfart v. Lombard, 613 So.2d 286, 290 (La.App. 4 Cir.), writ denied, 617 So.2d 1182 (La.1993). Garde is the obligation imposed by law on the proprietor of á thing, or on one who avails himself of it, to prevent it from causing damage to others. The fault of the person thus liable is based upon failure to prevent the thing from causing unreasonable injury to others. Loescher v. Parr, 324 So.2d 441 (La. 1975).

Plaintiff points out the record establishes the City performed repairs to curbing on Hopkins Street in the past. Thus, she argues the City exercised custody over the thing which presented the unreasonable risk of harm in this case. It is unnecessary to reach this issue because, like the trial court, we find Plaintiffs claim must fail because the record convincingly establishes that the City lacked actual or constructive notice of the alleged defect.

La.R.S. 9:2800(D) provides: “Constructive notice shall mean the existence of facts which infer actual knowledge.” Constructive notice may be shown by facts demonstrating that the defective condition existed for such a period of time that the public body would have discovered and repaired it had the public body exercised reasonable care. Laird v. City of Oakdale, 04-767 (La.App. 3 Cir. 11/10/04), 886 So.2d 1262. A public body cannot be charged with knowledge of every defect on its roadways and shoulders, yet, neither can it escape liability by negligently failing to discover that which is easily discoverable. Brown v. Louisiana Indem. Co., 97-1344 (La.3/4/98), 707 So.2d 1240. The cases have interpreted constructive knowledge as meaning the municipal authority “must have had actual notice of the condition or that its existence continued over a period and, under such circumstances, in the exercise of due diligence, the parish or municipality would have had notice.” Prudhomme v. Iowa, 99-1386, p. 5 (La.App. 3 Cir. 2/9/00), 758 So.2d 275, 278, citing Pickens v. 5St. Tammany Parish Police Jury, 323 So.2d 430 (La.1975). The question of whether or not the public body had actual or constructive notice of a hazardous condition creating a risk for motorists is a factual issue and is reviewed under the manifest error standard. Murphree v. Daigle, 02-1935, p. 3 (La. App. 1 Cir. 9/26/03), 857 So.2d 535, writ denied, 03-2927 (La.1/9/04), 862 So.2d 990.

Plaintiff contends the trial court erred in failing to find she established the City had constructive knowledge of the defect in the curbing. Plaintiff argues the record, and in particular the work orders, established “the City, on numerous occasions, performed various forms of maintenance on [Hopkins Street] — from fixing sidewalks, filling potholes, to replacing worn down limestone on the neutral ground.” Plaintiff also points out that the City received approximately forty complaints of this nature on Hopkins Street in a six-year period. Because of this, Plaintiff maintains this shows the walkway/curbing in that area were in “a constant state of disrepair.” Plaintiff testified that a significant portion of the walkways/eurbing in the area around her home were in poor condition.

The trial court found there were no work orders in the time period near the accident date which indicated any disrepair of the curbing or concrete. The trial court gave the following oral reasons for finding Plaintiff failed to prove constructive knowledge on the part of the City:

The plaintiff must prove that the city had actual constructive knowledge of the defect in the sidewalk and it failed to take corrective action within a reasonable period of time.
I think the plaintiff relied heavily on the work orders, but there is no report, nor did Mr. Delcambre testify about reports warning of the particular defects, which the plaintiff claims caused her injury.
The only report near the time of the accident that occurred on October 22, 2001, which was an order to cut the grass.
There was also an order completed on July 25, 2001 which the |fiCity of New Iberia filled pot holes at Hopkins and Main Street.
Since there are no reports of a broken sidewalk, or a broken curb of this nature to the City of New Iberia, the plaintiff has not proven that defendant had actual knowledge of the defect. [Plaintiff] had the opportunity to prove constructive knowledge, but I find that the plaintiff failed to do so.

After a thorough review, we find the record supports the trial court’s finding. Although the work orders showed repairs and complaints were made in the general area of the accident, there were none made in the months preceding the accident, other than the work order to cut the grass referenced by the trial court. Mark Del-cambre, the Assistant Public Works Director for the City, testified there were no complaints or prior falls regarding the area where Plaintiff fell. Michael Moss, DOTD’s engineer, testified DOTD physically inspects Hopkins Street and its curbing every two weeks and there was no notation of a problem or defect in the curbing where Plaintiff fell. Mr. Moss also testified there were no complaints or notifications made to DOTD about any falls in that area prior to Plaintiffs accident. Further, Plaintiff testified, although she frequently walked the path she took on the day of the fall and was aware the sidewalk in that area was “all messed up,” she had never noticed the area of curbing at issue in this case.

Therefore, we cannot say there is no reasonable factual basis in the record for the trial court’s finding that the City did not have actual or constructive notice of the condition of the curbing in question. The absence of evidence establishing notice is fatal to a plaintiffs cause of action under La.R.S. 9:2800. Hebert v. Southwest Louisiana Electrical Corp., 95-405 (La.App. 3 Cir. 12/27/95), 667 So.2d 1148.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant, Willie Mae Ambrose.

AFFIRMED.


source: Caselaw Access Project

author: WILLIAMS, J. CARAWAY, J.,

license: Public Domain

text:
    Perry B. WOLFE, Plaintiff-Appellant v. TOWN OF HOMER and Thomas Ridley, Jr., Defendant-Appellee.
    No. 44,086-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 15, 2009.
    Rehearing Denied May 7, 2009.

      Bobby L. Culpepper, Jonesboro, for Appellant.
    James H. Colvin, Pamela N. Breedlove, Shreveport, for Appellee, Town of Homer.
    Thomas Ridley, Jr., In Proper Person.
    Before WILLIAMS, CARAWAY and PEATROSS, JJ.
   WILLIAMS, J.

pThe plaintiff, Perry Wolfe, appeals a judgment in favor of the defendant, Town of Homer. The trial court granted the defendant’s motion for involuntary dismissal, finding that the Town of Homer was not vicariously liable for the acts of the co-defendant, Thomas Ridley, Jr. For the following reasons, we affirm.

FACTS

On June 6, 2005, Perry Wolfe entered a scrap yard located on land owned by the Town of Homer (“the Town”) to obtain sawdust. As Wolfe was shoveling sawdust into a trash can, Ridley approached and said that Wolfe could not take the sawdust without permission and that he needed to leave the premises. Wolfe suggested that Ridley should call the police and continued shoveling. At that point, there was a physical altercation in which Ridley grabbed Wolfe, who shoved Ridley backward with the shovel handle. Ridley then hit Wolfe in the head with a pipe, knocking him to the ground. Wolfe was taken to the hospital for treatment of a large cut on his forehead.

Subsequently, the plaintiff, Wolfe, filed a petition for damages against the defendants, Town of Homer and Ridley, alleging that the Town was liable for the injuries caused by its employee, Ridley. At trial, after plaintiff rested, the Town moved for involuntary dismissal on the grounds that plaintiff had failed to present evidence concerning the course and scope of Ridley’s job with the Town. The trial court granted the Town’s motion, finding that plaintiff failed to present evidence showing that Ridley was an employee of the Town. The court rendered judgment dismissing plaintiffs |2claims against the Town and preserving his claims against Ridley. The plaintiffs motion for new trial was denied. Plaintiff appeals the judgment.

DISCUSSION

The plaintiff contends the trial court erréd in granting the motion for involuntary dismissal. Plaintiff argues that the testimony and exhibits presented at trial constitute sufficient circumstantial evidence that Ridley was acting within the course and scope of his employment with the Town when he injured plaintiff.

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party may move for a dismissal of the action as to him on the grounds that upon the facts and law, the plaintiff has not shown a right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render a judgment until the close of all the evidence. LSA-C.C.P. art. 1672(B). A motion for involuntary dismissal requires the trial court to evaluate the evidence and render a decision based on a preponder-anee of the evidence, without any special inference in favor of the party opposing the motion. Davies v. Johnson Controls, Inc., 36,498 (La.App.2d Cir.10/23/02), 830 So.2d 462; Gordon v. Century 21, 04-654 (La.App. 3rd Cir.11/17/04), 888 So.2d 385.

In this case, the Homer Police Department incident report was admitted into evidence. The investigating officer reported that he spoke with Ridley, who stated that he was operating the Town’s backhoe when he saw plaintiff inside the scrap yard. Ridley said that he informed plaintiff |sthat he was not allowed on the property without the mayor’s permission and asked plaintiff to leave several times. The plaintiff provided police with a written statement which was admitted into evidence. Plaintiff stated that on Monday, June 6, 2005, at approximately 1:00 p.m., he was on the Town’s property to get sawdust when he was approached by Rid-ley, who told plaintiff that he needed to leave if he did not have permission to take the sawdust.

The trial testimony and exhibits admitted into evidence demonstrate that Ridley was present on town property and that he exercised control over town equipment by operating the backhoe. In addition, the Town’s amended answer acknowledged that Ridley was an employee of the Town. Thus, the record contained evidence showing that more probably than not Ridley was an employee of the Town and was working at the scrap yard at the time of his altercation with plaintiff. Consequently, the trial court erred in finding that there was no evidence of Ridley’s employment status with the Town. However, in order to recover damages from the Town, plaintiff was required to present evidence that Ridley was acting within the course and scope of his employment when he committed the intentional tort.

An employer is answerable for the damage caused by its employee in the exercise of the functions in which the worker is employed. LSA-C.C. art. 2320. An employer’s vicarious liability for conduct not his own extends only to the employee’s tortious conduct which occurs within the course and scope of that employment. Orgeron v. McDonald, 93-1353 (La.7/5/94), 639 So.2d 224; Alford v. State Farm Automobile Ins. Co., 31,763 (La. App.65 42d Cir.5/5/99), 734 So.2d 1253, units denied, 99-1435, 99-1595 (La.9/3/99), 747 So.2d 544, 548. In order for the plaintiff to recover under Article 2320, he was required to prove that defendant was an employee of the employer, in the course and scope of his employment for that entity, when the tort occurred. Reed v. House of Decor, Inc., 468 So.2d 1159 (La.1985).

The employer will not be vicariously liable merely because the employee commits an intentional tort while on the business premises during work hours. Vicarious liability will attach in such a case only if the employee is acting within the ambit of his assigned duties and in furtherance of his employer’s objectives. Wearrien v. Viverette, 35,446 (La.App.2d Cir.12/5/01), 803 So.2d 297. The employee’s tortious conduct must be so closely connected in time, place and causation to his employment duties as to be regarded a risk of harm fairly attributable to the employer’s business, as compared with conduct motivated by purely personal considerations extraneous to the employer’s interests. Orgeron, supra; Wearrien, supra; Eichelberger v. Sidney, 34,040 (La. App.2d Cir.11/3/00), 771 So.2d 863.

Thus, in order to withstand a motion for involuntary dismissal on the issue of whether the employee’s conduct is employment related, the plaintiff bears the burden of presenting evidence to prove the following elements of the prima facie case: (1) the tortious act was primarily employment rooted; (2) the act was reasonably incidental to the performance of the employee’s duties; and (3) the act occurred on the employer’s premises (4) during the hours of employment. LeBrane v. Lewis, 292 So.2d 216 (La.1974); 5Wearrien, supra. The particular facts of each case must be examined to determine whether an employee’s act is within the scope of his employment. Eichelberger, supra.

In the present case, although the plaintiff presented evidence indicating that Ridley committed the intentional tort while on the premises of the Town’s scrap yard during business hours, the Town would not be vicariously liable absent evidence that Ridley’s tortious act was primarily employment rooted or reasonably incidental to the performance of his job duties. Thus, to recover against the employer, plaintiff bore the burden of proving that Ridley’s tortious conduct was so closely connected to his employment duties that the risk of harm was fairly attributable to the Town.

However, because neither the plaintiffs testimony nor the exhibits that plaintiff entered into evidence addressed Ridley’s particular job duties, the record does not support a finding that Ridley’s tort was employment rooted. The plaintiff did not call Ridley as a witness to question him about the nature of his employment duties or about his intentions with respect to the incident. The police report noted Ridley’s statement that he struck plaintiff only after being insulted with racial slurs and being hit with a shovel. Based on this record, the plaintiff failed to satisfy his burden of proving that Ridley was acting in furtherance of the Town’s objective.

To the contrary, the paltry evidence that was presented demonstrated instead that Ridley’s tortious conduct was based upon his own personal considerations or emotions, rather than a desire to further his employer’s interests. Thus, at the time plaintiff rested, he had failed to prove a prima | (¡facie case that Ridley was acting in the course and scope of employment when he hit plaintiff.

In his appellate brief, the plaintiff contends the trial court should have considered the pretrial conference order and the Town’s pretrial memorandum in ruling on the motion for involuntary dismissal. We note that plaintiffs position is not supported by the pretrial conference order, in which the Town denies that Ridley was acting in the course and scope of his employment at the time of the incident. Regarding the pretrial memo, this court has previously stated that memoranda and exhibits not filed into evidence are not part of the record on appeal. Titlesite, L.C. v. Webb, 36,437 (La.App.2d Cir.12/11/02), 833 So.2d 1061.

Here, the plaintiff did not file the case record into evidence and this court cannot consider the pretrial memorandum. Even if we were to consider that document, the contents would not satisfy plaintiffs evi-dentiary burden. The memorandum described Ridley as a general laborer whose duties included cleaning roads, cutting grass on town property and maintaining town equipment. Without further eviden-tiary explanation, which plaintiff failed to provide, such a description would indicate that Ridley’s job duties did not include confronting trespassers, such as plaintiff, who entered onto the Town’s property. Thus, contrary to plaintiffs assertion, the pretrial memorandum provides additional evidence tending to show that Ridley was not acting within the ambit of his assigned job duties when he hit plaintiff with a metal pipe.

In this case, the plaintiff was given the opportunity at trial to present 17any and all evidence to meet his burden of proving that Ridley was acting within the course and scope of his employment when he committed the intentional tort. Based upon this record, the plaintiff failed to present any evidence to demonstrate how the nature of Ridley’s employment with the Town reasonably involved the risk that Ridley would physically confront and injure the plaintiff. By failing to produce such evidence at trial, the plaintiff was unable to satisfy his burden of proof. Consequently, the trial court did not err in granting the motion for involuntary dismissal. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellant, Perry Wolfe.

AFFIRMED.

CARAWAY, J., dissents with written reasons.

CARAWAY, J.,

dissenting.

pThe trial court in this case erroneously and prematurely dismissed the plaintiffs case on the finding that Ridley was never proven to be an employee of the Town. Therefore, the trial court never made any fact ruling concerning the Town’s vicarious liability for its employee’s intentional tort. Instead of remanding to the trier-of-fact for the trial’s continuance, the majority, outside of the authority of an appellate court, has now stepped in as factfinder and made a fact sensitive ruling against vicarious liability. Under any common sense analysis, the plaintiff certainly proved that after riding into the scrap yard on the Town’s backhoe, Ridley could be expected by his employer to act to confront any person misusing the Town’s scrap yard or trespassing on his employer’s property. Out of that employment-rooted undertaking, the intentional tort occurred.

At the time of this encounter, Perry Wolfe was an 87-year-old who had hearing and vision problems. He testified that he had lived across the street from the scrap yard for eighteen years. The gate to the scrap yard was open, and Wolfe had been in the scrap yard on numerous occasions in the past.

Wolfe testified to two encounters with Ridley that day. While Wolfe was digging sawdust, Ridley first approached him, “fussing” about Wolfe's activities and advising Wolfe to leave the property. Wolfe, who was well acquainted with the mayor and believed he was allowed in the scrap yard, told Ridley to call the police. Ridley then grabbed Wolfe’s shovel, turned Wolfe around, but said nothing as the men were first face to face. Wolfe 12states that Rid-ley then left the area as Wolfe continued digging, retrieved a long scrap pipe from another part of the yard, and returned for a second encounter with Wolfe. Again, Ridley grabbed Wolfe’s shovel, turning him around. At that point, Wolfe admits pushing Ridley back to regain control of his shovel. As Wolfe turned back to shovel the sawdust, he was hit by Ridley with the pipe and lmocked to the ground. Wolfe denied making any racial slur toward Ridley.

While the majority cites the four-factor test of this state’s leading case, LeBrane v. Lewis, 292 So.2d 216 (La.1974), it seems to elevate the concept of a person’s employment duties to a measure where no employer could ever be vicariously liable for an employee’s on-the-job intentional tort. To be clear, an employee never has an employment duty to be an intentional tort-feasor. Therefore, what Ridley did to this elderly man was not owed as Ridley’s duty to the Town. Ridley did owe a duty to recognize any trespasser abusing his employer’s property and to deal with the problem in some manner on the Town’s behalf. Ridley chose to confront Wolfe and ask him to leave. I believe that such initial confrontation and inquiry are reasonably expected employee actions in many employment settings. Therefore, I believe that a finder-of-fact might reasonably conclude that Ridley was acting primarily in an employment-rooted setting, carrying out an action for his employer’s benefit that was not motivated by purely personal considerations before the changeover to violence. The intentional tort was arguably incidental to Ridley’s performance in his job.

Various cases involving a similarly overzealous defense of the |semployer’s business have resulted in vicarious liability under the LeBrane test. In Williams v. Tastee Donuts, Inc., 93-883 (La.App. 5th Cir.5/11/94), 638 So.2d 255, writ denied, 94-1530 (La.9/23/94), 642 So.2d 1299, the cook left the kitchen upon hearing a sharp exchange between two customers and his co-employee working the counter. The cook continued the argument before shooting the unarmed customers. Affirming a judgment which assessed the employer with vicarious liability, the court of appeal observed:

Palmer’s duties went beyond cutting donuts. He was authorized to assist with customers and to help the counter girl when needed.

Id. at 257.

In Campbell v. Mouton, 412 So.2d 191 (La.App. 3d Cir.1982), writ denied, 415 So.2d 954 (La.1982), the employee was a bartender who fought a patron and injured him with a knife. The employer argued that the bartender had no employment duty to be the bouncer for the bar. Nevertheless, the appellate court affirmed the jury’s conclusion for vicarious liability, stating that “[i]t is not unusual for a bartender to be charged with the responsibility of maintaining order in the bar as part of his duties.” Id. at 194.

In an early case from this court, Starnes v. Monsour’s No. 4, 30 So.2d 135 (La.App. 2d Cir.1947), another bartender forcefully ejected a patron causing serious injury. In that employment setting, the bartender disobeyed his employer’s order to always call a policeman in the case of unruly patrons. Nevertheless, the court determined that the employee was acting to |4promote the business interests of his employer and affirmed the trial court’s finding of vicarious liability.

The trial court did not address the fact issue of whether Ridley’s intentional tort stemmed from actions which were primarily employment rooted. The majority now makes that fact determination when the evidence reasonably suggests that Ridley was acting to protect his employer’s property. I would remand the case and let the appropriate trier-of-faet decide.

APPLICATION FOR REHEARING

Before WILLIAMS, STEWART, CARAWAY, PEATROSS and DREW, JJ.

Rehearing denied.

CARAWAY and DREW, JJ., would grant rehearing.


author: PAUL A. BONIN, Judge.

text:
    Catherine Corley, Wife of Wayne Anthony WESTCOTT v. Wayne Anthony WESTCOTT.
    No. 2008-CA-1339.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 17, 2009.

      Walter R. Woodruff, Jr., Edward S. Bopp-A Law Corporation, Mandeville, LA, for Catherine Corley.
    Overton T. Harrington, Jr., Gretna, LA, for Wayne Westcott.
    Mary Beoubay Petruccelli, Tracy Ann Petruccelli, Petruccelli Law Offices, LLC, Covington, LA, In Proper Person, Interve-nors/Appellees.
    (Court Composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, Judge PAUL A. BONIN).
   PAUL A. BONIN, Judge.

|,Ms. Catherine Corley appeals the judgments of the trial court which distributed some community assets between her former husband, Mr. Wayne Westcott, and herself, awarded her former attorneys, Mary B. Petruccelli and Tracy Ann Pe-truccelli, their fees and costs, and condemned her to repay Mr. Westcott the value of a diamond she removed from his ring. Mr. Westcott appeals from the judgment of the trial court denying his claim for damages against Ms. Corley occasioned by the effects of Hurricane Katrina on his uninsured property. The Petruccellis moved for a dismissal of Ms. Corley’s appeal and for damages pursuant to La. C.C.P. art. 2168 for a frivolous appeal. For the reasons which follow, we affirm in part, reverse in part, and remand the matter for further proceedings.

| important Reference Dates

The parties were married on July 15, 1985. Together they operated a construction business and acquired several immovable properties in St. Bernard Parish. On January 13, 2004, Ms. Corley filed a suit for divorce against Mr. Westcott. While the suit was pending, the parties, both represented by counsel, entered into a Consent Judgment on September 9, 2004. This Consent Judgment distributed some of the immovable property in St. Bernard between them and set forth the intended dispositions of the remaining immovable properties owned by them.

On November 29, 2004, Ms. Corley filed her petition to partition the community property, along with her sworn descriptive list, as provided for by La. R.S. 9:2801. Several weeks later, Mr. Westcott filed his sworn descriptive list. Neither party’s list included the immovable properties previously distributed between them in the Consent Judgment. Both parties’ lists included movable property and identified which party was in possession of those movables.

On February 11, 2005, the judgment of divorce was signed. The community existing between the parties was therefore terminated as of January 13, 2004. La. C.C. art. 159.

On August 29, 2005, Hurricane Katrina devastated St. Bernard Parish. Two properties distributed to Mr. Westcott in the Consent Judgment of September 9, 2004 were uninsured. The former family home occupied by Ms. Corley pending |3its sale by virtue of the Consent Judgment was insured. The insurance paid $77,000 for contents destroyed in the home.

On May 12, 2006, Mr. Westcott sued Ms. Corley in a separate lawsuit. That lawsuit was consolidated with the pending partition suit. In his principal demand, he sought damages from Ms. Corley for her alleged failure to notify him that the flood insurance policies had lapsed on the two properties distributed to him and for her failure to respond to his requests for insurance coverage information. Ms. Corley reconvened, seeking to have the entirety of the insurance proceeds recovery of $77,000 awarded to her.

On April 13, 2007, the Petruccellis filed their intervention, seeking payment of their fees and expenses for services rendered to Ms. Corley post-divorce. They attached their itemized statement to their petition.

By agreement of all parties, the trial of the partition suit, the consolidated damage suit, and the intervention were to be tried on the same date. Trial was held on December 13, 2007.

The Four Resulting Judgments

Four judgments were issued by the trial court. The first judgment was rendered on March 4, 2008. This judgment addressed issues raised in the partition suit and the consolidated damage suit. The second judgment was rendered on March 10, 2008 and addressed the Petruccellis’ intervention. The third judgment was rendered on June 10, 2008 and purported to correct a mathematical calculation |4in the March 4, 2008 judgment. The fourth judgment was rendered on June 19, 2008 and was based upon Mr. Westcott’s motion for new trial. It reaffirmed the trial court’s earlier judgment of March 4, 2008 denying Mr. Westcott’s claim against Ms. Corley regarding notification of the lapse of insurance.

Ms. Corley suspensively appealed and Mr. Westcott devolutively appealed. The Petruccellis, as previously noted, moved to dismiss Ms. Corley’s appeal.

Appeal from the Intervention Judgment

The trial court granted judgment on the intervention in favor of the Petruc-cellis and against Ms. Corley in the amount of $7,003.50, with interest from date of demand until paid. The sole evidence before the court was the stipulation that if the Petruccellis were called to testify at the trial, they would testify in accord with the billing statement attached to their petition. Tracy Petruccelli was present in the courtroom during the trial. Ms. Cor-ley neither took the opportunity to cross-examine Tracy Petruccelli on the billing nor did Ms. Corley testify regarding the Petruccellis’ services.

A stipulation has the effect of a judicial admission or confession and binds all parties and the court. Miller v. LAMMICO, 07-1352, p. 24 (La.1/16/08), 973 So.2d 693, 709, citing R.J. D’Hemecourt Petroleum, Inc. v. McNamara, 444 So.2d 600, 601 (La.1983). Because the only evidence before the trier of fact was the uncontradicted stipulation, the trial judge acted within his discretion in awarding the Petruccellis the full amount of their claim. Moreover, a trial judge is permitted | fito call upon his own experience and expertise in determining the amount of time and effort that a lawyer has put into the preparation of a case. McCartney v. Orleans Parish School Board, 99-0515, p. 9 (La. App. 4 Cir. 9/29/99) 743 So.2d 821, 827, citing Louque v. Eckerd Drug Store No. 523, 405 So.2d 1097 (La.App. 4 Cir.1980). The trial court did not err in its judgment and, therefore, we affirm the judgment of March 10, 2008.

Appeal from the Judgments on the Consolidated Damage Suit

Mr. Westcott assigns an error related to the two pieces of immovable property on Gladiator Drive distributed to him in a Consent Judgment executed by the parties and signed by the trial court dated September 9, 2004. In that judgment, Ms. Corley agreed to transfer all of her interest in and to those properties to Mr. West-cott, that he was entitled to collect all those rents and revenues, and under the express terms of the Consent Judgment, he was “responsible for all the debts and taxes” on those Gladiator Drive properties.

After the execution of the Consent Judgment, Mr. Westcott, through counsel, requested that Ms. Corley furnish him with the insurance coverage information on his properties. Ms. Corley responded that Mr. Westcott had the information. Mr. Westcott contends that is untrue and that she willfully refused to furnish the information. When the storm struck almost one year after the Consent Judgment, Mr. Westcott still had not ascertained, either on his own or from Ms. Corley, whether the properties were insured. They were not.

IfiMr. Westcott admits that he knew Fal-lon Lorenz, an insurance agent whom the parties had used to secure insurance on their properties during the marriage. Mr. Westcott excuses his failure to directly and timely contact this insurance agent to ascertain the insurance status on his properties because Mr. Lorenz was not the only agent they had used. However, Mr. West-cott knew enough to contact Mr. Lorenz post-Katrina to inquire about the status of his coverage as well as to arrange for Mr. Lorenz’s production of evidence that the renewal notices were sent to both the Gladiator Drive addresses as well as to the former family home where Ms. Corley was living.

Mr. Westcott urges us to apply the holding of Lococo v. Lococo, 462 So.2d 893 (La.App. 4 Cir.1984), to find that Ms. Cor-ley had undertaken the duty to manage Mr. Westcott’s insurance affairs, and to hold that she breached a fiduciary duty to him. He alternatively argues that Ms. Corley is liable to him under La. C.C. art. 2315 in tort or under La. C.C. art.1953 on account of fraud. He complains that the trial judge erred in relying upon La. C.C. art. 2369.3, which provides:

A spouse has a duty to preserve and to manage prudently former community property under his control, including a former community enterprise, in a manner consistent with the mode of use of that property immediately prior to termination of the community regime. He is answerable for any damage caused by his fault, default, or neglect.
A community enterprise is a business that is not a legal entity.
(emphasis added)

|7This article was added to the Civil Code in 1995, well after the Lococo holding.

Mr. Westcott’s contentions are founded upon the notion that the Gladiator properties were still owned in indivisión with Ms. Corley. Whether Lococo or article 2369.3 is applied, the factual condition which must be satisfied to impose liability upon a former spouse is that the former spouse has the property under his or her control. The trial court determined that it was Mr. Westcott, and not Ms. Corley, who by virtue of his consent to the judgment of September 9, 2004, affirmatively undertook the duty to manage the properties under his control, which included management of the insurance affairs for those properties. “By its very nature, a consent or compromise judgment is a bilateral contract wherein the parties adjust their differences by mutual consent, thereby putting an end to litigation (or anticipated litigation) with each party balancing the hope of gain against the fear of loss.” Braning v. Braning, 449 So.2d 670, 672 (La.App. 4 Cir.1984).

The trial judge’s determination is, moreover, supported by Mr. Westcott’s version of events. According to him, Ms. Corley was refusing to manage the insurance matters. She insisted that she did not have the insurance documents. She claimed that she had already delivered the materials to him or his counsel. At no time did she represent to him that she was handling the insurance affairs for his properties nor did she ever represent to him that she paid the premiums or that the premiums were due.

|8We agree with the trial judge that Ms. Corley had no fiduciary duty to Mr. West-cott for the Gladiator Drive properties distributed to him in the Consent Judgment because those properties were under his control. Additionally, under these facts we discern no other legal duty arising in tort, including fraud, which Ms. Corley owed to Mr. Westcott.

The trial court’s denial of Mr. Westcott’s claim is affirmed.

Appeal on the Partition Issues

The partition issues involved in this appeal are the calculations and conclusions by the court appointed CPA, the parties’ respective interests in a whole life insurance policy with MetLife, the parties’ interest in insurance proceeds for personal contents damaged as a result of the storm, and the valuation of the diamond which Ms. Corley removed from Mr. Westcott’s ring. We address these issues below.

Court appointed expert. The trial judge exercised his authority under La. R.S. 9:2801(A)(3), which provides:

The court may appoint such experts pursuant to Articles 192 and 873 of the Louisiana Code of Civil Procedure as it deems proper to assist the court in the settlement of the community and partition of community property, including the classification of assets as community or separate, the appraisal of community assets, the settlement of the claims of the parties, and the allocation of assets and liabilities to the parties.

La. C.C.P. art. 191(A) provides that the “appointment of expert witnesses is controlled by Louisiana Code of Evidence Article 706.” La. C.E. art. 706(A) provides in pertinent part that a court-appointed expert witness “shall advise the ^parties of his findings, if any; his deposition may be taken by any party; and he may be called to testify by the court or any party.” The trial judge appointed Mr. Steve Kissee, a certified public accountant, as the expert witness to assist the court. The expert issued a report (“the Kissee Report”) upon which the trial court expressly relied and which it adopted as a part of its judgments.

At trial, the judge learned for the first time that Mr. Kissee had not furnished a copy of his report to the parties or their counsel. The judge noted several times during the proceedings that the trial would be reset so that Mr. Kissee could be examined on his report. However, trial was not reset prior to the appealed judgments being issued so that the parties could examine or cross-examine Mr. Kissee, as they were statutorily entitled to do. Moreover, in its judgments of March 4, 2008 and June 19, 2008, the trial court specifically incorporated and relied upon the Kissee Report to partially partition certain community property and determine what reimbursements were due the parties.

Ms. Corley assigns as error the failure of the trial judge to permit her the opportunity to examine the court appointed expert before the issuance of the judgments relating to the partition. Because the Kis-see Report and its findings are material to the trial court’s determination of partition issues, we remand this matter for a hearing before the trial judge at which the parties may examine Mr. Kissee | ,nand receive any other evidence required to complete the partition. Thereafter, the trial court is to make legal and evidentiary findings as to all community property, community debts, and reimbursements due the parties, consistent with this decision, La. R.S. 9:2801, La. C.C. arts. 2358 et seq., and other applicable law.

To aid the expert and the parties on remand, we clarify the legal principles applicable to the other partition issues claims which the trial court passed upon.

The MetLife Policy. During the existence of the marriage, the parties acquired and maintained a whole life insurance policy with MetLife in the name of and on the life of Mr. Westcott. During the marriage, the premiums on this policy were paid for with community funds. The trial court judgment awarded Ms. Corley a reimbursement of one-half of the premiums paid prior to the termination of the community, but did not calculate the amount of the reimbursement in its judgments or credit Ms. Corley with a specific sum for this item.

Errors of law are reviewed de novo. Lasha v. Olin Corp., 625 So.2d 1002, 1006 (La.1993), citing Rosell v. ESCO, 549 So.2d 840, 844 n. 2 (La.1989). Appellate review of a question of law is simply a decision as to whether the trial court’s decision is legally correct or incorrect. Miller v. Southern Baptist Hospital, 00-1352 p. 10 (La.App. 4 Cir. 11/21/01), 806 So.2d 10, 18. If the trial court’s decision is based upon its erroneous application of law, rather than on the valid exercise of discretion, that decision is not entitled to deference by the reviewing court. Kevin Associates, L.L.C. v. Crawford, 03-0211, p. 15 (La.1/30/04) 865 So.2d11 34, 44, citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983). We find that the judgments partially misapplied the law as to the Met-Life policy.

The Louisiana Supreme Court in Talbot v. Talbot, 03-0814, pp. 19-20 (La.12/12/03), 864 So.2d 590, 604 explained the correct treatment of a life insurance policy with a value in a community property partition proceeding:

Under Louisiana law, life insurance policies are treated as unique contracts governed by their own rules rather than by the Civil Code.... According to the rules of privity of contract, “the contracting spouse is the sole manager of the contractual rights that are provided under the policy.” ... In principle, contracts produce effects as between the contracting parties only. La. Civ.Code art 2346, cmt. (b) (2003).
Upon termination of the community, a life insurance policy purchased with community funds during the community is “a co-owned asset subject to partition by the co-owners.” ... Under the privity principle, the policy should be awarded to the owner of the policy, with the other spouse receiving property of an equal value.... To provide otherwise would interfere with the contractual relationship between the insurer and the owner of record.
In this case, the parties do not dispute that the Great Southern Life Insurance policy is community property, nor is it disputed that Mr. Talbot is the owner of the policy. As community property upon termination, the life insurance policy became a co-owned asset subject to partition by the co-owners. In accordance with the privity principle, the community property must be partitioned allowing Mr. Talbot to retain ownership of the policy, with Mrs. Talbot receiving property of an equal value.
(citations omitted in ellipses)

Because this whole life policy was acquired and maintained during the community and community funds paid the premiums, the policy is a community asset. La. C.C. art. 2338. Under Talbot, the trial court was legally correct in allocating the MetLife policy to Mr. Westcott. However, the trial court erred as a matter of law in awarding Ms. Corley reimbursement for one-half of the premiums 112paid during the community. A “policy acquired during the existence of the community is a community asset, liable to the community for its value at the time of the dissolution of the community. No reimbursement is due the community for premiums paid on this policy.” Connell v. Connell, 331 So.2d 4, 8 (La.1976).

Therefore, on remand, the trial court is to determine the “cash surrender value at the time of the partition.” See Katherine S. Spaht & Richard D. Moreno, 16 Louisiana Civil Law Treatise, Matrimonial Regimes § 3.32, at 191-92 (3rd ed.2007); La. R.S. 9:2801(A)(4)(a). Once the trial court determines the cash surrender value it shall award “property of equal value” to Ms. Corley. Talbot, supra; La. R.S. 9:2801(A)(4)(b).

Contents Coverage. Ms. Corley answered Mr. Westcott’s petition for damages with a reconventional demand requesting that she be awarded 100% of the flood insurance proceeds for the contents of the Palmisano house. Those insurance proceeds were placed in a joint bank account pending partition. Her contention is that she prayed for sole use of the Palmi-sano house and its contents, that she was awarded sole use of the Palmisano house by court order, and that the parties agreed to that in the September 9, 2004 Consent Judgment. Additionally, she contends that they had already partitioned the movable property prior to the |1sstorm, and therefore the remaining movables were her separate property, either because those expensive items insured were purchased by her after the termination of the community, or the property had already been partitioned by the parties. In support of her contention, Ms. Corley argues that she lived at the Palmisano residence approximately one year prior to the storm with her new husband, Mr. Westcott had already removed the movables of his choosing, and in all the contentious litigation and exchange of letters, neither of the parties mentioned the movables any further.

Mr. Westcott admitted that the parties had divided the family cars and that he had taken some movables from the home but those were of meager value. Ms. Cor-ley countered that Mr. Westcott took the more valuable vehicle which was unencumbered and she was left with a vehicle that was almost fully mortgaged. The judgment awarded Mr. Westcott one-half of those insurance proceeds.

Importantly, both parties were named insureds on the flood insurance policy, and the policy was paid for by the mortgage escrow account into which each party paid after the termination of the community. The insurance proceeds check was made payable to the order of both parties.

After testimony and review of available documents, the judge made a factual determination that the parties had not yet partitioned the movables remaining at the Palmisano home and that finding will not be disturbed on appeal. Since the damages occurred after the termination of the community, at the time of the loss, the parties were then co-owners in indivisión of the movables belonging to the 114former community. La. C.C. art. 2369.2 (“Each spouse owns an undivided one-half interest in former community property and its fruits and products”) “After termination of the community property regime, the provisions governing co-ownership apply to former community property, unless provided by law or by juridical act.” La. C.C. art. 2369.1.

Within the provisions governing co-ownership, La. C.C. art. 797 provides that “[i]n the absence of other provisions of law or juridical act, the shares of all co-owners are presumed to be equal.” In the absence of other provisions of law or juridical act, Mr. Westcott and Ms. Corley are presumed to be equal co-owners. The record does not contain a judgment or juridical act between the parties pártitioning the movable property at Palmisano. Likewise, the record does not contain appropriate evidence that the parties adopted a community property regime by matrimonial agreement that altered their fractional ownership interests in the insured movables. La. C.C. art. 2369.2, comment (b) (as added by 1995 La. Acts, No. 433, § 1). Therefore, as to the proceeds of the insurance payment, Ms. Corley has not overcome the presumption that she is only entitled to an equal share in such proceeds. See La. C.E. arts. 302(3) and 304.

While Ms. Corley offered some evidence that there were some movables at the Pal-misano residence that were acquired by the community existing between her and her new husband, in its March 4, 2008 judgment the trial court concluded that “[t]he insurance coverage limit was substantially less than the value of the items of the inventory for the insurance contents claim and far exceeded the true value of | ifithose lost items.” The trial judge reasonably applied the insurance proceeds first to the co-owned property of the parties, which they had insured, and determined that the coverage was exhausted on the co-owned items. The trial judge’s determination that each party is entitled to one-half of the insurance proceeds is affirmed.

Valuation of the diamond.

The parties dispute the value of a 2.3 carat diamond that Ms. Corley removed from a ring which she had given to Mr. Westcott during the marriage. There is no dispute that the ring was a donation inter vivos by Ms. Corley to her then-husband and therefore his separate property. La. C.C. arts. 2341 and 2343. Ms. Corley removed the diamond and replaced it with a cubic zirconium to deceive Mr. Westcott. Based upon the seller’s description, Bou-dreaux’s Jewelers valued the diamond at $17,500. Ms. Corley testified that the price of the entire ring was only $5,500 when she purchased it several years earlier. She offered no written appraisals of her own. Trial court factual determinations may not be reversed unless manifestly erroneous. Adams v. Rhodia, Inc., 07-2110, p. 10 (La.5/21/08), 983 So.2d 798, 806. The trial judge expressly accepted the Boudreaux valuation and was not manifestly erroneous in doing so. “The determination of an expert’s credibility is also a factual question subject to the manifestly erroneous/clearly wrong standard of review.” Galem-Med, Inc. v. Porter, 05-0788, p. 14 (La.App. 4 Cir. 3/29/06), 928 So.2d 681, 688-89, citing Rosell v. ESCO, 549 So.2d 840, 844 (La.1989) and Martin v. East 16Jefferson General Hosp., 582 So.2d 1272, 1276-1277 (La.2005). “The rule that questions of credibility are for the trier of fact applies to the evaluation of expert testimony, unless the stated reasons of the expert are patently unsound.” Galen-Med, Inc., 05-0788, p. 14, 928 So.2d at 689, citing Lasyone v. Kansas City Southern R.R., 00-2628 (La.4/3/01), 786 So.2d 682. That the trial judge was more persuaded of the value of the diamond by the expert appraisal of a jeweler than by its purchase price years earlier cannot be clearly wrong.

Similarly, the trial court’s credibility determination accepting Mr. Westcott’s testimony that he did not take the diamond back from Ms. Corley’s residence over Ms. Corley’s contrary testimony is not manifestly erroneous. Where findings are based on credibility determinations, the manifest error standard demands greater deference to the finder of fact. Adams, 07-2110, p. 10, 988 So.2d at 806. Ms. Corley alternatively argues that she was entitled to retrieve the diamond from the ring because of the “ingratitude” of Mr. Westcott. “A donation inter vivos may be revoked because of ingratitude ...” La. C.C. art. 1556. Revocation on account of ingratitude may take place in the case where the donee “has been guilty towards [the donor] of cruel treatment, crimes, or grievous injuries.” La. C.C. art. 1557(2). “In case of revocation for ingratitude, the donee shall return the thing given....” La. C.C. art. 1560. The trial judge restricted Ms. Corley’s testimony in which she was attempting to establish the legal grounds to revoke the donation on account of Mr. Westcott’s ingratitude towards her. A trial court is afforded great discretion in admitting evidence and its decision to admit or | ,7exclude evidence may not be reversed on appeal absent abuse of that discretion. Miller v. Southern Baptist Hospital, 00-1352, p. 21, 806 So.2d at 15.

Moreover, the trial judge did not abuse his discretion in restricting her testimony because she had never instituted the necessary action to revoke the donation on the grounds of Mr. Westcott’s ingratitude. La. C.C. art. 1558 provides, in pertinent part, that “[a]n action of revocation for ingratitude shall be brought within one year from the day the donor knew or should have known of the act of ingratitude.” Neither did she give Mr. Westcott notice in her pleadings of her contention. La. C.C.P. art. 1154. Undoubtedly the trial judge evaluated Ms. Corley’s bona fides in light of the circumstances in which she surreptitiously removed the real diamond and substituted in its place the fake diamond. Ms. Corley gave Mr. Westcott a diamond ring; she only took back the diamond.

In the settlement of the partition claims, Mr. Westcott is entitled, as the trial court correctly ruled, to full reimbursement from Ms. Corley of the $17,500 value for the missing diamond.

Decree

The judgment on the intervention rendered on March 10, 2008 in favor of the Petruccellis and against Ms. Corley granting the relief requested in the intervention is affirmed.

Only insofar as they dismissed with prejudice Mr. Westcott’s petition for damages for Ms. Corley’s failure to forward the insurance notices, the judgments rendered on March 4, 2008 and June 19, 2008 are affirmed.

| 18The judgment rendered on March 4, 2008 is reversed in part, and the partition proceedings are remanded to the trial court to reopen the trial for the limited purpose of permitting the parties to cross-examine the court-appointed expert witness, Mr. Kissee, to testify themselves regarding the issues in the Kissee Report, including the cash surrender value of the MetLife policy, and for the trial court to render a final judgment of partition as provided by La. R.S. 9:2801 (A)(4).

The judgment rendered on June 10, 2008 is vacated.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

LOVE, J., Concurs in the result.

      . The motion to dismiss has been denied in an order separate from this decision. As to their motion for damages for frivolous appeal, the Petruccellis neither appealed nor answered the appeal. In the absence of an appeal or an answer to the appeal, the Petruccellis are not entitled to the relief sought. La. C.C.P. arts. 2121; 2133(A). HCNO Services, Inc. v. Secure Computing Systems, Inc., 96-1753, 96-1693 (La.App. 4 Cir. 4/23/97) 693 So.2d 835, 847.

      . On November 7, 2006, the parties executed a "Partial Act of Partition and Settlement of Community” which tracked the dispositions made in the Consent Judgment.

      . Earlier, the insurer had paid an initial $3,000 on the Katrina claim which the parties evenly divided. The $77,000 was deposited in a joint interest bearing account pending the final partition.

      . Ms. Corley only requested to reserve her right to testify further in connection with the expected testimony of the court-appointed expert, Mr. Steve Kissee, CPA, which reservation was approved by the court.

      . Mr. Westcott had resided for some time at one of the Gladiator properties after the divorce but before the storm. The properties were also occupied by tenants before the storm.

      . "I will tell you what we will do with Mr. Kissee. I am going to have him come back and testify ..." "I am going to have Mr. Kissee come in, and you can come back with your clients and take his statement.... I got a report from him that you didn't get a chance to see until this morning, ... But I will give you a chance to cross-examine Mr. Kissee. I am going to re-set that portion of the matter.” "You all understand what I am doing? It’s just not fair. Mr. Kissee has made a conclusion, and I assumed that he sent you all the report.... I thought he sent it to you all." "I will set up, right after the first of the year, another hearing, and we are going to be limited to what items are in Mr. Kissee’s report. I am not going — this case will not be open on all issues. It will be limited strictly to those issues."

      . After Ms. Corley filed her petition for divorce, she paid two annual premiums, totaling $17,900. After the divorce, Mr. Westcott paid an annual premium in the amount of $8,950.00.

      . Mr. Westcott argues that he owes Ms. Corley one-half of the premiums paid during the community on the policy and relies upon White v. Broussard, 98-428 (La.App. 3 Cir. 10/7/98), 720 So.2d 392, 393. However, the policy at issue in White was the separate property of the spouse. In White, the Third Circuit noted that "[t]he effect of article 2366 is to legislatively overrule Connell." Id., p. 4, 720 So.2d at 394. We note that in Connell the Supreme Court was discussing multiple policies, some separate and one community. La.- C.C. art. 2366 deals with reimbursement to the community for the funds used for separate properly and does not "overrule" the holding of Connell regarding tire policy which is a community asset.

      . In Talbot, 03-0814, p. 20, 864 So.2d at 604, the Supreme Court, "[bjased upon the economic situation of the parties and the division of other property in the case”, approved the award to the non-owner spouse of a "share in the cash surrender value of the policy." See also Robert C. Lowe, 2 Louisiana Practice Series, Divorce § 9:24 (2009 ed.).

      . The Kissee Report did not give either party credit for the insurance proceeds.

      . The parties agreed that on one occasion they exchanged gifts of diamond rings during the marriage to celebrate a good year in business.


author: MICHAEL E. KIRBY, Judge.

text:
    Dorothy Anderson MERCADEL v. Mary Tate DOYLE and Edward Doyle.
    No. 2008-CA-1189.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 21, 2009.
    James E. Stovall, Covington, LA, for Plaintiff/Appellant.
    Val Patrick Exnicios, Amy C. Fontenot, Liska, Exnicios & Nungesser, New Orleans, LA, for Defendants/Appellees.

      (Court composed of Judge MICHAEL E. KIRBY, Judge DAVID S. GORBATY, Judge ROLAND L. BELSOME).
   MICHAEL E. KIRBY, Judge.

| plaintiff, Dorothy Anderson Mercadel, appeals the trial court judgment granting the Motion to Dismiss for Lack of Prosecution filed on behalf of defendants, Mary Tate Doyle and Edward Doyle.

On October 30, 2001, plaintiff filed a petition in Orleans Parish Civil District Court against the defendants. In her petition, plaintiff alleged that on October 30, 2000, she purchased from defendants property located at 7231 West Haven Road in New Orleans for a price of $300,000.00. Plaintiff further alleged that the property contains substantial defects that existed at the time of the sale, but which were not discoverable upon simple inspection. Plaintiff also claimed that defendants had agreed to fix certain known defects, but failed to properly do so. She alleged that defendants were allowed to remain in the home for a couple of weeks following the Act of Sale, and stripped the home of certain improvements during that time. In her petition, plaintiff claimed that she is entitled to a reduction in the purchase price sufficient to repair the latent defects, replace the items taken |2and repair the items promised. She also asked to be awarded attorney’s fees, interest from date of judicial demand and all costs of the proceedings.

Defendants filed an answer and. recon-ventional demand on December 18, 2001. On January 17, 2002, plaintiff filed a rule to show cause on exceptions of no cause of action and prematurity. On April 19, 2002, the trial court held a hearing on plaintiff exceptions. In a consent judgment signed by the trial court on May 7, 2002, the parties agreed that defendants’ reconventional demand for defamation and malicious prosecution was premature, and was dismissed, without prejudice, to be refiled at defendants’ option as an independent new action only after the conclusion of plaintiffs main demand. On May 4, 2005, plaintiff filed a motion and order to set status conference.

Also on May 4, 2005, defendants filed a Motion to Dismiss for Lack of Prosecution. In that motion, defendants alleged that from April 19, 2002 to May 4, 2005, plaintiff took no step in the prosecution of this action. Citing Louisiana Code of Civil Procedure article 561, defendants alleged that the lack of any activity designed to hasten this matter to trial for a three year period renders this matter abandoned. The hearing on this motion was originally scheduled for October 7, 2005 but did not take place as scheduled due to the temporary closure of the court following Hurricane Katrina, which struck Louisiana on August 29, 2005. On May 22, 2008, defendants filed a motion to reset the hearing on their Motion to Dismiss for Lack of Prosecution.

| ¡(Plaintiff filed a memorandum in opposition to the Motion to Dismiss for Lack of Prosecution. In this memorandum, plaintiff argued that the exceptions were set for hearing on April 19, 2002, and that on April 22, 2002, plaintiff forwarded a signed consent judgment to defendants for filing into the record, securing a signature from the trial court and returning a copy to plaintiff. Plaintiff further claimed that sometime between April 22, 2002 and May 7, 2002, defendants submitted the consent judgment to the court for signature. The trial court signed the consent judgment on May 7, 2002. Plaintiff argues that submitting the consent judgment to the trial court and awaiting signature is a step in the prosecution under La. C.C.P. article 561.

At the hearing on the Motion to Dismiss for Lack of Prosecution, the defendants argued that the last step taken in the prosecution of this case by plaintiff before the filing of the motion to set a status conference on May 4, 2005 was the January 17, 2002 filing of the rule to show cause on exceptions. Defendants stated that the consent judgment was filed into the record in April 2002, but the record does not show the exact date of that filing. According to defendants, there was no step in the prosecution of this action between April 2002 and May 2005.

When asked by the trial court about what activity occurred between April 2002 and May 2005, plaintiff responded that the consent judgment was signed on May 7, 2002 and plaintiff filed a motion to set a status conference on May 4, 2005. Plaintiff argued that counsel for plaintiff and defendants conferred after that date as to discovery issues, and that defendants essentially waived the provisions of La. 4C.C.P. article 561 by taking actions inconsistent with the article, such as agreeing to participate in discovery. The trial court rejected that argument, stating that article 561 is automatic once the three year period has elapsed without a step in the prosecution. The trial court agreed with defense counsel’s argument that article 561 is only waived by the filing of something into the record, which is a step in the prosecution.

In granting the motion to dismiss, the trial court stated that the last step in the prosecution prior to the May 4, 2005 filing of the motion to set a status conference was the joint submission of the consent judgment to the trial court for signature in April 2002. The court found that the trial court’s action on May 7, 2002 in signing the consent judgment did not constitute a step in the prosecution according to the provisions of La. C.C.P. article 561. Plaintiff now appeals the trial court judgment granting the defendants’ Motion to Dismiss for Lack of Prosecution.

On appeal, plaintiff argues that the trial court erred in finding that plaintiff abandoned this case by taking no steps in the prosecution for more than three years. La. C.C.P. article 561 states, in pertinent part:

An action ... is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding ... (Emphasis ours.)

5In Clark v. State Farm Mutual Automobile Insurance Company, 2000-3010, pp. 5-6 (La.5/15/01), 785 So.2d 779, 784, the Louisiana Supreme Court explained the requirements of La. C.C.P. article 561 as follows:

Article 561 has been construed as imposing three requirements on plaintiffs. First, plaintiffs must take some “step” towards prosecution of their lawsuit. In this context, a “step” is defined as taking formal action before the court which is intended to hasten the suit toward judgment, or the taking of a deposition with or without formal notice. Second, the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record of the suit. Third, the step must be taken within the legislatively prescribed time period of the last step taken by either pa7iy; sufficient action by either plaintiff or defendant will be deemed a step.

The Court further stated:

Article 561 provides that abandonment is self-executing; it occurs automatically upon the passing of three-years without a step being taken by either party, and it is effective without court order.

Id. at pp. 5-6, 785 So.2d at 784.

Article 561 is to be liberally construed in favor of maintaining a plaintiffs suit. Causey v. Caterpillar Machinery Corp., 2002-0746, p. 4 (La.App. 4 Cir. 6/26/02), 822 So.2d 188, 191. Appellate courts review an abandonment action, pursuant to La. C.C.P. article 561, by determining if the trial court was legally correct, as it is a question of law. Fontenot v. Tidewater, Inc., 2008-0180, p. 2 (La.App. 4 Cir. 7/30/08), 990 So.2d 1280, 1281. Once abandonment occurs, no action by the plaintiff or inaction by the defendant can revive the abandoned action. Springer v. Louisiana Board of Registration, 2005-0878, p. 4 (La.App. 4 Cir. 3/15/06), 929 So.2d 152, 154.

Plaintiff argues that the parties’ submission of a consent judgment to the trial court in April 2002 does not evidence intent to abandon this case. However, it is | (;the lack of action for more than three years following the submission of that judgment for signature that prompted defendants to ask to have this case dismissed as abandoned in accordance with the provisions of La. C.C.P. article 561. Plaintiff argues that awaiting the trial court’s signature on the consent judgment was part of the step in the prosecution beginning with the submission of the judgment for filing and signature. We disagree. The filing of the consent judgment in April 2002 was the last step in the prosecution by either of the parties until May 2005. The trial court’s signing of the consent judgment on May 7, 2002 was not a step in the prosecution sufficient to defeat an abandonment motion because it was not a step taken by a party to the action. Additionally, the record shows that defendants did not take any action constituting a step in the prosecution of this matter between April 2002 and May 2005 so as to waive their right to claim the action was abandoned.

The record establishes that there was no step in the prosecution of this matter taken by any of the parties between April 2002 and May 2005. Because more than three years elapsed between steps in the prosecution, the trial court correctly granted the defendants’ Motion to Dismiss for Lack of Prosecution pursuant to La. C.C.P. article 561.

For the reasons stated above, the trial court judgment is affirmed.

AFFIRMED.


author: ROLAND L. BELSOME, Judge.

text:
    STATE of Louisiana In the Interest of W.B.
    No. 2008-CA-1458.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 22, 2009.

      Hector A. Linares, Juvenile Regional Services, New Orleans, LA, for Appellant, W.B.
    Leon A. Cannizzaro, Jr., District Attorney, Alyson Graugnard, Assistant District Attorney, New Orleans, LA, for State of Louisiana.
    (Court composed of Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

hln juvenile court, W.B. was found guilty of La. R.S. 14:81, relative to indecent behavior with a juvenile and La. R.S. 14:62.2, relative to simple burglary of an inhabited dwelling. W.B. filed a motion to vacate adjudication which was denied. W.B. appeals his adjudication based on the insufficiency of the evidence.

W.B.’s sole assignment of error on appeal is that the State failed to meet its burden of proof at trial to sustain an adjudication as to the charges. The State’s burden of proof in a juvenile delinquency proceeding, just as in a criminal proceeding against an adult, is to prove every element of the offense alleged beyond a reasonable doubt. La. Ch.C. art. 883. As a court of review, we grant great deference to the juvenile court’s actual finding, credibility determination and assessment of witness testimony. State in the Interest of J.N., 2007-1229, p. 8 (La.App. 4 Cir.), 984 So.2d 910 at 915.

At the proceeding of this matter, the juvenile court judge heard the testimony of Officer Patrick Hartman, Joyce Nash and her daughter, Marneisha Nash. The facts elicited at trial was that on May 12, 2008, between approximately 3:00 and 4:00 p.m., W.B. appeared at Marneisha’s bedroom window asking for Marneisha’s sixteen year old sister, who also shared the bedroom. Marneisha, thirteen at the time, informed W.B. that her sister was not home. She heard her mother, Joyce |2Nash, calling her and exited the room. She further claimed that at no time did she invite W.B. inside. According to her testimony she helped her mother and then returned to her bedroom where she saw W.B. sitting on the sofa in the bedroom with “nothing” on.

Shortly, thereafter her mother approached and also witnessed W.B. sitting on the sofa. Ms. Nash stated that she walked over to Marneisha because she was just standing and staring in her bedroom, that’s when she claims she saw W.B. “sitting on my couch with a sheet on and his underwear was on the floor and he didn’t have no shirt on.” At that point, the mother said she demanded that he leave her house, but he did not move until she got her cell phone to call the police. Ms. Nash testified that prior to that day she had told W.B. that she did not want him knocking at the door or window of her house looking for her daughter. W.B. was arrested the next day.

In State v. Brown, 2003-0897 (La.4/12/05), 907 So.2d 1, the Louisiana Supreme Court reiterated the standard for determining a claim of insufficiency of evidence. The appellate courts must follow the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Id. Thus, this Court must view the evidence in the light most favorable to the prosecution, and determine if it was sufficient to convince a rational trier of fact that all of the elements of the crime were proven beyond a reasonable doubt. Id.

La. R.S. 14:81 states in pertinent part: The commission of any of the following acts with the intention of arousing or gratifying the sexual desires of either person: (1) any lewd or lascivious act upon the person or in the presence of any child under the age of seventeen, where there is an age difference of greater than two years between the two persons. La.R.S. 14:81(A) (West 2008).

|sThe juvenile court judge found that W.B.’s disrobing in Marneisha’s bedroom and waiting for her to return to the room rose to the level of a lewd or lascivious act in the presence of a child whose age was established to be in excess of two years younger than that of W.B.’s. Based on the fact that no evidence was presented to refute the testimony given at trial, we cannot find that the juvenile court judge was clearly wrong in his finding that W.B. was guilty of indecent behavior with a juvenile.

As for the charge of simple burglary of an inhabited dwelling, La. R.S. 14:62.2 states:

The unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60.

On appeal W.B. argues that because there was insufficient evidence of the indecent behavior with a juvenile, the underlying felony does not exist to support the charge of simple burglary of an inhabited dwelling. However, this Court’s affirmation of the juvenile court judge’s determination of guilt as to the indecent behavior charge causes that argument to fail. Additionally, the uncontested testimony provided by Ms. Nash and Marneisha confirmed that W.B.’s entrance into the bedroom was unauthorized.

Accordingly, the juvenile court’s adjudication is hereby affirmed.

AFFIRMED.

      . Lewd is defined as obscene or indecent; tending to moral impurity or wantonness. Black’s Law Dictionary 927 (8th ed.2004)

      . Lascivious is defined as tending top excite lust; lewd; indecent; obscene. Black’s Law Dictionary 897 (8th ed.2004).

      .The record establishes that W.B.'s birth date is July 30, 1992 and Marneisha's birth date is September 22, 1994.


text:
    Edith S. DAVIS, Plaintiff-Appellee, v. WAL-MART STORES, INC., Defendant-Appellant.
    No. 44,621-WCA.
    Court of Appeal of Louisiana, Second Circuit.
    April 22, 2009.
    Writ Denied June 19, 2009.
    Street & Street, by C. Daniel Street, Monroe, for Appellee/Movant.
    Allen & Gooch, by Frank A. Flynn, Desiree C. Williams, Lafayette, for Appellant/Respondent.
    Before STEWART, CARAWAY and LOLLEY, JJ.
   | Jfhe claimant, Edith Davis, has filed a motion to dismiss as untimely this appeal by Wal-Mart from a judgment of the Office of Workers’ Compensation (OWC). In this matter, the OWC signed a judgment in favor of the claimant on December 8, 2008, and notice of that judgment was mailed to the parties on December 10, 2008. Wal-Mart did not file a motion for new trial; it filed a motion for appeal on February 13, 2009. The claimant urges that this motion was untimely under the provisions of La. R.S. 23:1310.5.

Wal-Mart’s memo in opposition to the motion to dismiss cites Jones v. General Motors, 37,167 (La.App.2d Cir.4/9/03), 847 So.2d 6, reversed in part on other grounds; Jones v. General Motors Corp., 2003-1766 (La.4/30/04), 871 So.2d 1109, as authority for the proposition that the ordinary rules of civil procedure apply in workers’ compensation cases and the seven day delay allowed for filing a motion for new trial is added to the delay for taking a devolutive appeal. As a general proposition, the ordinary rules of civil procedure do apply in the OWC. LAC 40:I:6601 provides:

Unless otherwise provided for in these rules, any practice or procedure not in conflict with either the Workers’ Compensation Act or these rules will be guided by practice and procedure provided for in the Louisiana Code of Civil Procedure.

However, the Workers’ Compensation Act and the OWC rules differ in a number of ways from the ordinary rules of civil procedure, and one of those differences is in the appeal delay period. La. R.S. 23:1310.5 provides, in part:

B. The decision of the workers’ compensation judge shall be final unless an appeal is made to the appropriate circuit court of appeal. An appeal which suspends the effect or execution of an ap-pealable judgment or order must be filed within thirty days. An appeal which does not suspend the effect or execution of an appealable judgment or order must be filed within sixty days. The delay for filing an appeal commences to run on the day after the judgment was signed or on the day after the district office has mailed the notice of judgment as required by Louisiana Code of Civil Procedure Article 1913, whichever is later. Motions for new trial shall be entertained in disputes filed under this Chapter. The delay for filing an appeal when a motion for new trial has been filed shall be governed by the Louisiana Code of Civil Procedure.

| ⅞At the time Jones was decided in early 2003, the OWC had only recently begun to allow parties to file motions for new trial. Up until August 15, 2001, motions for new trial were expressly forbidden in workers compensation cases. However, the rule for the time for appeal under La. R.S. 23:1310.5 did not address the effect of the delay for filing the motion for new trial; and jurisprudence, including Jones, supra, and Girard v. Courtyard by Marriott, 2002-105 (La.App. 3rd Cir.3/27/02), 813 So.2d 595, interpreted La. R.S. 23:1310.5 as applying the ordinary delays supplied by the Code of Civil Procedure taking into consideration the time delay during the pendency of a motion for new trial.

After those cases, the legislature responded in 2003 [Acts 2003, No. 709] by adding the last sentence to La. R.S. 23:1310.5, as follows:

The delay for filing an appeal when a motion for new tried has been filed shall be governed by the Louisiana Code of Civil Procedure.

Emphasis added. The amended law, which partly legislatively overruled the Jones and Girard interpretations of La. R.S. 23:1310.5(B), now makes a clear distinction between cases where no motion for new trial is filed and those where a party files a motion. The customary delays-allowed for new trials and appeals in ordinary civil cases only apply in a workers’ compensation case when a party actually files a motion for new trial. In workers’ compensation eases where no motion for new trial is filed, the delay for appealing does not incorporate any delay for filing a motion for new trial.

Notice of judgment was mailed to the parties on December 10, 2008. Thereafter, Wal-Mart did not file a motion for new trial. Therefore, starting the count on the day after December 10, the sixty days for this devolutive appeal under La. R.S. 23:1310.5(B) elapsed on February 8, 2009. Because that day was a Sunday, the employer had until February 9, 2009, to file an appeal. Since the motion for appeal was not filed until February 13, 2009, it was untimely. Accordingly, Wal-Mart’s appeal is hereby dismissed.