author: DREW, J.

text:
    STATE of Louisiana, Appellee v. Calvin Kentrell HOUSLEY, Appellant.
    No. 48,273-KA.
    Court of Appeal of Louisiana, Second Circuit.
    June 26, 2013.

      Louisiana Appellate Project, by Carey J. Ellis, III, for Appellant.
    John Schuyler Marvin, District Attorney, John Michael Lawrence, Andrew C. Jacobs, Assistant District Attorneys, for Appellee.
    Before BROWN, STEWART and DREW, JJ.
   DREW, J.

liA unanimous jury found Calvin Kent-rell Housley guilty as charged for the crime of aggravated rape, La. R.S. 14:42(A)(4). Sentenced to life imprisonment at hard labor without benefit of probation, parole, or suspension of sentence, he now appeals. We affirm in all respects.

FACTS

On July 23, 2010, the defendant was living in Bossier City with his aunt and her five children, plus the aunt’s roommate. He had lived there for over a year because no other family members would care for him. The 19-year-old defendant suffered from mental health issues and received SSI. His aunt was his caregiver.

On the date of the crime, his aunt checked on the children and could not locate S.F. When the aunt entered the defendant’s room, he jumped from his bed in a state of undress. The aunt turned to see an unclothed S.F. She screamed at the defendant and hit him while trying to determine what he had done.

Jaumard Seay was visiting at the time and heard the commotion. He held the defendant until the police arrived.

The defendant was interviewed that day and confessed to inserting his penis into S.F.’s vagina. He was arrested and indicted for aggravated rape.

A sanity commission was appointed and submitted on reports from the physicians. The defendant was found competent to stand trial.

TESTIMONY

The defendant’s aunt testified that:

12* the defendant lived with her and her daughters and her friend Crystal;

• S.F. was four years old at the time of the incident;

• when this event happened, everyone was at home and there were several girls there whom she was babysitting, plus Mr. Seay, who was visiting Crystal;

• in searching for S.F., she looked into the defendant’s bedroom, and saw the defendant’s boxer shorts around his knees, and the child completely naked;

• she grabbed S.F. and took her out of the defendant’s room;

• she reentered defendant’s room, screamed for Crystal, and began beating him;

• she never discussed the incident with the victim;

• in subsequent months, she did notice that S.F., who was six years old at the time of the trial, would sometimes appear sad and needed comforting;

• the defendant received SSI because of mental problems;

• he could dress himself and do other things, but he did not cook;

• he understood when she talked to him;

• when she entered the bedroom, she was unable to see his genitals; and

• she never saw S.F. in the bed with the defendant.

Kierra Wilson testified that she was at P.H.’s house with several others, including the defendant, whom she identified in open court. When she looked into defendant’s room, she saw the defendant in bed, on top of the naked child.

Jaumard Seay testified that:

• he was visiting P.H.’s roommate, Crystal, on the day of the incident;

• he was in Crystal’s room watching television when he heard P.H. calling him;

|s* he went to the defendant’s room and saw a naked S.F. standing in the middle of the defendant’s bed, while the defendant was hiding under the covers;

• the defendant was wearing only boxer shorts;

• he stopped the defendant from running out the back door;

• he restrained the defendant until the police arrived;

• other children were playing around the house that day; and

• he admitted on cross that he did not see anything that happened in the room between the defendant and S.F., acknowledging that he told detectives Crystal reprimanded S.F. for running around the house in her panties.

Detective Jeffery Ross testified that:

• he was responsible for processing the crime scene for evidence;

• he took pictures of the various pieces of evidence collected including S.F.’s panties as well as a bedspread, a pillow, bed sheets, and a comforter;

• he also collected a pair of the defendant’s boxer shorts;

• in addition to photographing and collecting evidence, he used an ultraviolet light and orange goggles to examine the mattress for bodily fluids; but

• he found none, though the lighting was bad in the room.

Olivia Thornhill Jones was qualified as an expert “sexual assault examiner.” She testified that:

• she was called in to collect evidence from and examine S.F.;

• she swabbed S.F.’s labia, perineum, and anus;

• she collected a reference DNA sample from S.F.’s cheek;

• she collected the shirt and panties that S.F. wore to the hospital;

• her full examination of S.F. revealed redness on her labia majora;

• she was unable to pinpoint the exact cause of the redness;

14* the redness could be caused by various things besides sexual assault;

• the child’s hymen was still intact and was not torn or bruised;

• this lack of bruising or tearing is not uncommon, even with penetration; and

• she read statistics from several scholarly studies which concluded that young children would not always show signs physical of sexual assault.

Monnie Malakhai was qualified as an expert in the field of DNA analysis. She testified that:

• she tested oral, external genital, peri-neal, and anal swabs collected from S.F., searching for the presence of spermatozoa and prostate specific antigen (PSA) which can be found in semen;

• neither substance was found on the swabs collected from S.F.;

• the swabs were tested for male DNA, but none was found;

• an alternative light examination was done on the victim’s panties and shirt;

• stains characteristic of semen were present;

• other items, such as urine and vaginal secretions can fluoresce or glow under the alternative light source;

• it was more likely that the stains were caused by something other than semen;

• her primary focus was on the items identified as belonging to the victim;

• other items found in the defendant’s room may have revealed semen;

• testing would not have shown when the semen had been deposited; and

• it would be reasonable that the defendant’s DNA would be found in his room.

1 sKevin Little, a detective in the “crimes against juveniles” division of the Bossier City Police Department, testified that:

• he investigated the case, spoke with the aunt, but collected no evidence;

• the persons present were asked to report to the police station for interviews;

• he took statements from the aunt and Kierra;

• he interviewed the defendant at the station;

• he advised the defendant of his Miranda rights and the defendant signed a “rights card” acknowledging that he understood and agreed to waive his rights;

• he recorded the interview with the defendant, though approximately 20 minutes of the conversation took place prior to the audio recording;

• it was a common practice to conduct a “pre-interview” to ascertain the facts and make sure the conversation stays on the subject of that particular crime;

• the recorded interview was played for the jury;

• he asked the defendant to tell him about his sexual problems with his girlfriends, a subject having apparently been discussed prior to the recording;

• after the interview, he collected buccal (DNA) swabs from the defendant, who then had a seizure, requiring treatment by the fire department;

|fi* the Bossier City Police Department did

not have video capabilities for interviews:

• he got the impression that the defendant was “a little slow”;

• the defendant said he had been threatened;

• the defendant denied a police officer threatened him;

• he believed the defendant was talking about the aunt’s threats;

• only interviewer and child were in the room for the Gingerbread House video; and

• during the interview, he could speak with the interviewer via headphones.

The defendant testified that:

• he was 21 years old at the time of the trial;

• he left school in the ninth grade, and had been in Special Ed classes;

• he was bullied at school by other students because he wore glasses;

• he was living with his aunt and her daughters when this happened;

• his aunt was responsible for his care and support;

• his aunt received an SSI check for him, which he thought was for seizures;

• he could not live on his own;

• he took medicine for seizures and for depression;

• he had no friends and would play video games all day in his room;

• he did not rape, touch, kiss, or penetrate the child;

• he denied getting on top of her or her getting on top of him;

• he denied removing any of S.F.’s clothing;

17« his aunt was accusing him because of his SSI check;

• his answer to many questions was that he didn’t know or didn’t remember;

• he knew right from wrong, most of the time;

• he knew how to manipulate the rules during his schooling;

• he could read and write, a little;

• he knew what he did that day was “a little” wrong;

• he didn’t know the difference between a lie and the truth; and

• he had trouble knowing when people were lying to him.

The DVD of the Gingerbread House interview was shown.

S.F. testified that she did not remember anything about the incident, but that what she said in the interview was true. She confirmed that Uncle Joe put his d* *k in her “tootie” (her term for vagina).

DISCUSSION OF SUFFICIENCY

The defendant argues that the evidence was insufficient to support his conviction. He points out that much of the testimony against him was contradictory.

Our law on appellate scrutiny of sufficiency claims is clear.

| ^Louisiana law clearly defines the crime of rape.

|3When viewed in the light most favorable to the prosecution, there was sufficient evidence presented to convict the defendant of the aggravated rape of S.F.

Though there was some variance in the testimony of the witnesses, these minor inconsistencies do not undermine the overwhelming weight of the evidence against this defendant.

The state proved that the defendant, at age 18, sexually penetrated a four-year-old child, an abomination admitted by the defendant in his initial interview. At trial, he admitted confessing, but denied committing the act.

The jury apparently did not believe the defendant.

The victim admittedly provided little probative testimony at trial.

The circumstantial evidence, however, as well as the direct evidence presented, was sufficient to establish the essential elements of the offense.

The resolution of minor testimonial inconsistencies essentially requires the jury to determine witness credibility. As such, the matter is one of the weight of the evidence, not its sufficiency. The evidence presented | inby the state was sufficient for the jury to conclude that the defendant was guilty of the aggravated rape of S.F.

DECREE

The defendant’s conviction and sentence are AFFIRMED.

      . The defendant’s aunt, P.H., is the mother of the victim, S.F.

      . This examination consists of shining a light, similar to a black light, on the items. If semen is present on the items, it will glow or fluoresce.

      . The card was introduced into evidence.

      . The "pre-interview” leaves an issue possibly for post conviction relief as to compliance, vel non, with the holding of Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004).

      . The CD of defendant’s interview was allowed into evidence. In it, he said that: he had trouble getting a woman; he masturbated every night; S.F. was in the room and pulled down her underwear; he penetrated the child, though not full penetration; it was the first time this happened with S.F.; the aunt burst into the room and began yelling at him and fighting with him; and Mr. Seay held him while P.H. and Crystal beat and threatened him.

      . The defendant mistakenly thought that his aunt would continue receiving his SSI check, should he remain incarcerated.

      . The defendant did not make an insanity claim. He was found competent to stand trial.

      . The DVD was admitted into evidence as D-1.

      . The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, 2001-1658 (La.5/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Carter, 42,894 (La.App.2d Cir. 1/9/08), 974 So.2d 181, writ denied, 2008-0499 (La. 11/14/08), 996 So.2d 1086. This standard, now legislátively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, 2005-0477 (La.2/22/06), 922 So.2d 517; State v. Dotie, 43,819 (La.App.2d Cir. 1/14/09), 1 So.3d 833, writ denied, 2009-0310 (La. 11/6/09), 21 So.3d 297. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La. 10/16/95), 661 So.2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Bason, 43,788 (La.App.2d Cir.2/25/09), 3 So.3d 685; State v. Hill, 42,025 (La.App.2d Cir.5/9/07), 956 So.2d 758, writ denied, 2007-1209 (La. 12/14/07), 970 So.2d 529.

        Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Speed, 43,786 (La.App.2d Cir.1/14/09), 2 So.3d 582, writ denied, 2009-0372 (La.11/6/09), 21 So.3d 299; State v. Allen, 36,180 (La.App.2d Cir.9/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So.2d 566, 2002-2997 (La.6/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004). The fact finder is charged with making a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 1999-0023 (La.1/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).
      In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness’s testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Gullette, 43,-032 (La.App.2d Cir.2/13/08), 975 So.2d 753; State v. Burd, 40,480 (La.App.2d Cir. 1/27/06), 921 So.2d 219, writ denied, 2006-1083 (La. 11/9/06), 941 So.2d 35.
      The trier of fact is charged to make a credibility determination and may, within the bounds of rationality, accept or reject the testimony of any witness; the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, supra; State v. Robinson, 36,147 (La.App.2d Cir. 12/11/02), 833 So.2d 1207; State v. Ponsell, 33,543 (La.App.2d Cir.8/23/00), 766 So.2d 678, writ denied, 2000-2726 (La. 10/12/01), 799 So.2d 490. Such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, supra; State v. Ponsell, supra. See also State v. Johnson, 96-0950 (La.App.4th Cir.8/20/97), 706 So.2d 468, writ denied, 98-0617 (La.7/2/98), 724 So.2d 203, cert. denied, 525 U.S. 1152, 119 S.Ct. 1054, 143 L.Ed.2d 60 (1999).
      An appellate court reviewing the sufficiency of the evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Jacobs, 504 So.2d 817 (La. 1987); State v. Adkins, 39,724 (La.App.2d Cir.6/29/05), 907 So.2d 232, writ denied, 2006-2514 (La.5/4/07), 956 So.2d 607; State v. Lott, 535 So.2d 963 (La.App. 2d Cir. 1988).

      . La. R.S. 14:41 provides, in pertinent part:
      A. Rape is the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person's lawful consent.
      B. Emission is not necessary, and any sexual penetration, when the rape involves vaginal or anal intercourse, however slight, is sufficient to complete the crime.
      La. R.S. 14:42 provides, in pertinent part:
      A. Aggravated rape is a rape committed upon a person sixty-five years of age or older or where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
      (4) When the victim is under the age of thirteen years. Lack of knowledge of the victim’s age shall not be a defense.

      . The defendant argues that no witness saw him committing the act, and that testimony varied as to the location of the victim when discovered. The defendant also argues that there was no physical evidence to connect him to the aggravated rape of the victim. The defendant argues that the physical examinations and testing did not corroborate his confession. He ignores that physical evidence is not necessary to convict for rape.

      . This leads to some concern about the defendant’s right of confrontation under the Sixth Amendment.


source: Caselaw Access Project

author: EDWIN A. LOMBARD, Judge.

license: Public Domain

text:
    Bruce L. FEINGERTS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al. Bruce L. Feingerts v. State Farm Mutual Automobile Insurance Company, Joseph W. Rogers, and American Manufactures Mutual Insurance Company.
    Nos. 2012-CA-1598, 2013-CA-0023.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 26, 2013.
    Rehearing Denied Aug. 7, 2013.

      Michael Charles Darnell, Edwin Rene Murray, Murray, Darnell & Associates, L.L.C., Paul Edward Mayeaux, Robert Lynn Manard, III, Robert L. Manard, PLC, New Orleans, LA, for PlaintiffiAp-pellant.
    Irving Jay Warshauer, Gainsburgh Benjamin David Meunier & Warshauer, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge EDWIN A. LOMBARD, Judge TERRI F. LOVE).
   EDWIN A. LOMBARD, Judge.

liThe Appellant, Bruce Feingerts, seeks review of two judgments of the district court granting motions to enforce a settlement agreement in favor of the Appellees, Robert L. Manard, PLC, and Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C., respectively. Finding that the district court did not err in determining that a compromise was reached, we affirm the judgments of the district court.

Facts and Procedural History

This Consolidated appeal involves a dispute for attorneys’ fees and costs stemming from Mr. Feingerts’ personal injury suit in the district court. Mr. Feingerts was injured in a car accident in February 2001. He initially retained the law firm of Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C. (“the Gainsburgh Firm”), to represent him in his personal injury suit, which was filed in the district court in December 2001. Mr. Feingerts also filed a claim with the Office of Workers’ Compensation (“OWC”) related to the 2001 accident; however, the instant appeal does not involve Mr. Feingerts’ workers’ compensation claim.

|2The Gainsburgh Firm later withdrew as counsel for Mr. Feingerts in his personal injury suit, and the following law firms have since represented him in the order listed:

• the Robert L. Manard Firm, PLC (“the Manard Firm”)
• Cossich, Sumich, Parsiola & Taylor (“the Cossich Firm”) and
• currently, Murray, Darnell & Associates, L.L.C.

In April 2010, the Gainsburgh Firm filed a Petition of Intervention in Mr. Feingerts’ personal injury suit to recover professional fees and unreimbursed expenses. Later that month, Mr. Feingerts’ personal injury suit was settled against all defendants for the sum of $784,000.00. At the time of the settlement, he was represented by the Cossich Firm.

Mr. Feingerts was unable to reach an agreement on attorneys’ fees and costs with the Gainsburgh Firm and the Manard Firm (collectively referred to as “the Ap-pellees”) or with the Cossich Firm. On July 21, 2011, representatives of the Ap-pellees and the Cossich Firm, Mr. Fein-gerts, and his attorney Michael Darnell participated in mediation to resolve the attorneys’ fee and costs issue. A handwritten document was executed by all the participants and witnessed by the mediator at the end of the mediation. The document states in pertinent part:

Fee Dispute Settlement Agreement

In the matter of Feingerts v. State Farm, Civil Action No. 01-20552, CDC, Bruce Feingerts agrees to pay legal fees to the following attorneys in the following amounts:
^Robert Manard and Paul Mayeaux $75,000.00
Gainsburgh, Benjamin, David, Meunier & Warshauer $75,000.00
Additionally, Feingerts agrees to pay the following costs to the following attorneys:
Manard, et al . $7,359.82 (Exclusive of work comp costs)
Gainsburgh, et al $24,386.29
Nevertheless, following the mediation, Mr. Feingerts declined to compensate any of the attorneys.

The Appellees, thereafter, separately filed motions to enforce the purported settlement agreement. In November 2011, the Manard Firm filed a Motion to Enforce Attorney Fee Settlement, which the district court granted on January 12, 2012. The Gainsburgh Firm filed a “Motion to Enforce Settlement Agreement and to Authorize the Disbursement of Settlement Funds” on February 8, 2012. The district court granted the Gainsburgh Firm’s motion to enforce on April 80, 2012. In response to the January 12, 2012 judgment in favor of the Manard Firm, Mr. Fein-gerts filed a motion for new trial, which the district court denied on April 2, 2012. The Appellant timely appealed both judgments of the district court, and the appeals were later consolidated.

|4Mr. Feingerts’ sole assignment of error on appeal is that the district court erred by granting enforcement of a handwritten document that allegedly fails to satisfy the legal requirements of a valid and enforceable settlement agreement.

Standard of Review

A district court’s “interpretation of an alleged compromise agreement is subject to manifest error/elearly wrong review.” Hancock Bank of Louisiana v. Holmes, 09-1094, p. 6 (La.App. 5 Cir. 5/25/10), 40 So.3d 1131, 1134 (citations omitted); Rosell v. ESCO, 549 So.2d 840 (La.1989). “This is because the existence or validity of a compromise depends on a finding of the parties’ intent, an inherently factual finding.” Id. Furthermore, we use the manifest error standard in reviewing judgments granting motions to enforce settlements. Sileo v. Berger, 11-0295, p. 8 (La.App. 4 Cir. 9/28/11), 74 So.3d 753, 758.

Argument of Mr. Feingerts

In his sole assignment of error, Mr. Feingerts argues that the district court erred by granting enforcement of a handwritten document that allegedly fails to satisfy the legal requirements of a valid and enforceable settlement agreement.

Mr. Feingerts argues that the purported settlement document executed at the end of the mediation is deficient under Louisiana law such that it is not a valid and enforceable settlement agreement. He argues that a distinct set of criteria must be met by a settlement agreement; thus, the criterion for ordinary contracts is inapplicable. He further argues that a compromise agreement extends solely to those matters that the parties expressly intended to settle and the scope of the transaction cannot be extended by implication.

Mr. Feingerts argues that the document signed at the end of the mediation was not a substantive settlement agreement because it does not contain language [5releasing any claims and it does not contain reciprocal promises of the settling parties and it does not represent a meeting of the minds.

Mr. Feingerts argues that the district court committed a legal error when it granted the motions to enforce of the Ap-pellees because the disputed document fails to meet substantive standards for valid and enforceable settlement agreements. He avers that settlement contracts are to be interpreted according to the general principles of contract interpretation found in La. Civ.Code articles 2045-57, but more specifically, there are additional rules of construction unique to settlements that must be considered which are set forth in Title XVII of the Louisiana Civil Code, entitled Compromise, in articles 3071-3083. He argues that the because the document signed by the parties did not meet the criteria set forth in Title XVII, the district court erred when it granted the two motions to enforce.

Mr. Feingerts notes that the Supreme Court in Trahan v. Coca Cola Bottling Co., United, Inc., 04-0100, p. 10 (La.3/2/05), 894 So.2d 1096, 1104, upheld a partial settlement recited on the record in the OWC. Id. (citing Brown v. Drillers, Inc., 93-1019, p. 6 n. 8 (La.1/14/94), 630 So.2d 741, 747 n. 8). Pursuant to the oral settlement, an injured employee agreed to accept from his employer a lump sum payment for past benefits, payment of medical expenses, and a reservation of the employee’s rights to future compensation. Id., 04-0100, pp. 2-3, 894 So.2d at 1100. The Supreme Court upheld the finding of. the OWC that a settlement had been reached between the parties in open court pursuant to La. Civ. Code art. 3071. Id., 04-0100, pp. 13-14, 894 So.2d at 1105-06.

He argues that the differences between the agreement recited by the parties in Trahan and the document executed by the parties herein are striking. In Trahan they stated which claims were being resolved, which were being reserved, and the | (¡amount of the partial settlement. They also promised to execute a dismissal without prejudice.

By contrast, he maintains that the handwritten document that the district court erroneously enforced does not reference which claims are being resolved. There is no operative language of release, or waiver. He argues that both of the Appellees had entirely different types of claims as the Gainsburgh Firm had a pending intervention in the personal injury suit, whereas the Manard Firm had “an inchoate claim that had not been asserted in court yet”. Nevertheless, the document does not delineate what was being resolved and what claims were still viable. Further, Mr. Feingerts asserts that he had potential claims of his own, including those arising out of the wrongful actions of the Manard Firm and attorney James Babst, who represented Mr. Feingerts in connection with his workers’ compensation claim. The document in question does not address any such claims. He contends that he also has a separate verbal agreement with some of all of the lawyers to the settlement agreement regarding claims related to his OWC claim that he was assured would be addressed later, but never was. Thus, the intent to resolve the various disputes between Mr. Feingerts and his prior attorneys simply is not manifest in the functional language of the document.

Mr. Feingerts also relies upon the case of Brown v. Drillers, Inc., to juxtapose the settlement reached in that case to the purported settlement reached in the instant matter. 630 So.2d 741 (La.1994). In Brown, the Supreme Court upheld a written settlement executed by an injured worker and his wife wherein the couple agreed to accept $900,000.00 in satisfaction of their personal injury claim and granted the defendants a full release and discharge in exchange. Id. at 746. The Court further held that at the time the agreement was executed it was intended that |7the release would bar wrongful death claims that were later brought by the injured worker’s widow on behalf of herself and her daughter. Id. at 757. In doing so, the Supreme Court reasoned that “differences which the parties do not intend to settle are unaffected by a compromise.” Id. (citing Matthew v. Melton Truck Lines, Inc., 310 So.2d 691, 693 (La.App. 1 Cir.1975)).

Mr. Feingerts differentiates the settlement upheld in Brown from the instant document at issue. He argues that the settlement document executed in Brown was entirely different from the one at issue herein because the plaintiffs in Brown specifically stated that they were releasing their claims against the defendants in their suit in exchange for a lump-sum payment. However, in the instant matter, the Appel-lees were promised a sum of money by Mr. Feingerts, but they made no return promise of any sort. The Gainsburgh Firm did not promise to dismiss its intervention in the Mr. Feingerts’ personal injury suit, nor did the Manard Firm agree to dismiss its claims for fees and costs. He argues that there was no quid pro quo because the Appellees did not agree to release him from their claims.

Lastly, he argues that in Trahan, the Louisiana Supreme Court held that La. Civ. Code art. 3071 sets forth two requirements of a compromise: (1) mutual intention of preventing or putting an end to the litigation, and (2) reciprocal concessions of the parties to adjust their differences. 04-0100, p. 10, 894 So.2d at 1104.

Regarding mutual intention to end litigation, Mr. Feingerts avers that the handwritten document does not indication a mutual intention of preventing or putting an end to litigation because the document does not contain language showing that both of the Appellees were releasing him from their claims. He further argues that nothing in the document indicated that he had any intention of pending litigation. For instance, he states that he is releasing his former attorneys from possible malpractice claims or waiving raising such a claim in the future. He argues that the document does not contain operative language demonstrating that the parties are settling anything. The lack of an express mutual intention to end litigation within the document demonstrates that the alleged agreement is without legal effect and cannot be enforced. Mr. Feingerts argues that La. Civ. Code art. 3076 states “[a] compromise settles only those differences that the parties clearly intended to settle, including the necessary consequences of what they express.”

Mr. Feingerts contends that all of the terms of a settlement agreement must be read as a whole and in light of attending events and circumstances. Thus, he argues that the title of the purported agreement is not controlling of the interpretation on the whole document in light of its substantive deficiencies.

Additionally, Mr. Feingerts argues that there is a lack of reciprocal concessions by the parties. The handwritten agreement states twice therein that Mr. Feingerts agrees to pay the respective Appellees, but neither of the Appellees, or any other signatory, undertook an obligation to do anything.

The Appellees argue that the cases relied upon by Mr. Feingerts are factually distinguishable because the settlement agreement at issue did not memorialize the settlement of a personal injury case or a workers’ compensation suit. They argue that the title of the instant agreement clearly states that the document is a fee dispute settlement; thus, it was unnecessary to include release language in the agreement. The written agreement memorialized a settlement of the Appellees’ claim for fees and costs in connection with their representation of the Appellant in the personal injury lawsuit. Mr. Feingerts agreed to pay each of the Appellees $75,000.00 as well as $24,386.29 in costs to the Gainsburgh Firm and $7,359.82 in Iflcosts to the Manard Firm. The Appel-lees agreed to accept the respective amounts “in satisfaction, or compromise” of their respective claims “for fees and costs.” The Appellees aver that there was a clear meeting of the minds as evidenced by the signatures of the Appellees and Mr. Feingerts.

Additionally, they argue that the agreement meets the definition of a compromise in La. Civ.Code art. 3071 and the writing requirement of La. Civ.Code art. 3072, as it is handwritten. The Appellees further contend that pursuant to La. Civ.Code art. 2046, the words of this contract were clear and explicit and lead to no absurd consequences; thus, the language of the agreement clearly expressed Mr. Feingerts’ intent to settle their respective claims for attorney’s fees and costs related to their representation of Mr. Feingerts in the personal injury lawsuit. They further maintain that the scope of the agreement is not at issue, and Mr. Feingerts’ attempt to introduce parol evidence concerning a disputed fee in his workers’ compensation matter clearly is inadmissible to contradict the clear terms of the settlement agreement.

The Appellees rely upon the case of Walk Haydel & Associates, Inc. v. Coastal Power Prod. Co., 98-0193 (La.App. 4 Cir. 9/30/98), 720 So.2d 372, as demonstrating a similar example of an instance where a handwritten settlement executed at the conclusion of the mediation was reached and signed by all parties and evidenced a meeting of the minds by these parties. In Walk, the parties participated in a full day of mediation which concluded with the parties executing a memorandum of settlement that set forth several handwritten terms upon which they agreed. Id. Thus, the Appellees argue that when Mr. Fein-gerts signed a document after a full day of mediation, his signature also creates a presumption that he saw and understood that he was settling the fee and cost dispute.

ImThey further assert that Mr. Fein-gerts’ contention that the agreement is not valid because he had a separate verbal agreement with some of the lawyers to the settlement agreement is not valid because such allegations of a side agreement are false, and parol evidence is inadmissible to prove an agreement between the parties pursuant to Chalmette Retail Center, LLC v. Lafayette Insurance Company, 09-0217 (La.App. 4 Cir. 10/16/09), 21 So.3d 485.

Additionally, they aver that Mr. Fein-gerts argument that the settlement agreement is unenforceable because the Appel-lees did not give anything in consideration is also without merit. The Manard Firm argues, for instance, that it had a claim for 25% of Mr. Feingerts settlement, or $196,000.00; yet, it settled with Mr. Fein-gerts for $75,000.00 in fees plus costs. Thus, it clearly had consideration to settle. Lastly, the Appellees argue that Mr. Fein-gerts’ claim, that the settlement agreement does not release him from the Appel-lees’ claims for attorney’s fees, is false. The Appellees argue that mediations throughout Louisiana are settled when one party agrees to pay a sum and the other party agrees to accept the same. Thereafter, upon payment, receipt and releases are mutually executed. They argue that Mr. Feingerts is legally protected by the agreement because the document shows that the fees and costs were negotiated. We agree with arguments of the Appel-lees.

Law and Analysis

Article 3071 of the Louisiana Civil Code provides:

A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship.

1 t ,Additionally, La. Civ.Code art. 3072 states “[a] compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings.” In order for a valid compromise to exist, we have explained that a meeting of the minds must be reached:

A compromise is valid if there is a meeting of the minds of the parties as to exactly what they intended when the compromise was reached. Walk Haydel & Associates, Inc. v. Coastal Power Production Co., 1998-0193, p. 3 (La.App. 4th Cir.9/30/98), 720 So.2d 372, 373 (citing Pat O’Brien’s Bar, Inc. v. Franco’s Cocktail Prods., Inc., 615 So.2d 429 (La.App. 4 Cir.1993), writ denied, 617 So.2d 909 (La.1993)). Indeed, a compromise is a contract. Stern v. Williams, 365 So.2d 1128 (La.App. 4th Cir.1978), writ denied, 368 So.2d 143 (La.1979).

Elder v. Elder & Elder Enterprises, Ltd., 06-0703, p. 3 (La.App. 4 Cir. 1/11/07), 948 So.2d 348, 350-51.

We further reasoned that no specific form is required for written compromises:

The law requires the compromised settlement to be reduced to writing; however, “this Court has said ‘there is no sacrosanct form which must be followed’ and ‘it is not necessary that everything intended to be compromised be in one document.’ ” Walk Haydel & Associates, Inc., 1998-0193, p. 3, 720 So.2d at 374 (quoting Charbonnnet v. Ochsner, 236 So.2d 86, 88 (La.App. 4 Cir.1970), aff'd, 258 La. 507, 246 So.2d 844 (La.1971)).

Id., 06-0703, p. 4, 948 So.2d at 351. “The whole purpose of C.C. 3071’s requirement that compromise be in writing is to avoid swapping a new dispute for an old-to avoid the necessity of credibility evaluations.” Tucker v. Atterburg, 409 So.2d 320, 322 (La.App. 4 Cir.1981). “[T]he writing requirement aims at avoiding litigation over what the terms of a settlement are.” Id.

|1gThe jurisprudence requires that an agreement “must be unambiguous, perfect and complete in itself so that nothing is left for ascertainment by parol proof.” Flowers v. U.S. Fid. & Guar. Co., 367 So.2d 107, 110 (La.App. 4 Cir.1979) (citations omitted). “The meaning and intent of the parties to a written instrument, including a compromise, is ordinarily determined from the four corners of the instrument, and extrinsic (parol) evidence is inadmissible either to explain or to contradict the terms of the instrument.” Chalmette Retail Ctr., L.L.C., 09-0217, p. 9, 21 So.3d at 492-93 (citations omitted).

Furthermore, with regard to mediations, La.Rev.Stat. 9:4111 provides

A. If, as a result of a mediation, the parties agree to settle and execute a written agreement disposing of the dispute, the agreement is enforceable as any other transaction or compromise and is governed by the provisions of Title XVII of Book III of the Civil Code, to the extent not in conflict with the provisions of this Chapter.

In the matter sub judice, both of the Appellees had claims for attorneys’ fees and costs pending against Mr. Feingerts in the district court. The parties were unable to reach an extrajudicial settlement amongst themselves and attempted to resolve their dispute in mediation. At the conclusion of the mediation, the parties signed a document, entitled “Fee Dispute Settlement Agreement” which specifies that Mr. Feingerts agrees to pay each of the Appellees a respective amount of attorneys’ fees and costs in connection with the personal injury suit. Indeed, the scope of this agreement is revealed from the parties designation of the district court case number, and the listing of all of the law firms that represented Mr. Feingerts through the settlement of his personal injury suit.

| ^Additionally, we note that after the Trahan and Brown decisions, relied upon by Mr. Feingerts, the Louisiana Legislature amended the wording of the art. 3071 in the 2007 legislative session. Article 3071, as stated above, notes that a compromise may be reached through concessions made by at least one of the parties. It is clear at the very least within the four corners of this document that Mr. Fein-gerts was making concessions with both of the Appellees in order to compromise the ongoing dispute over attorneys’ fees and costs solely in his personal injury suit. The fact that he made these concessions and signed this document at the end of mediation further evidences his assent to the terms of this agreement.

Without evidence of duress, a mediation agreement signed by the parties constitutes a legal and binding compromise. Norwood v. Garber, 09-956, pp. 2-3 (La.App. 3 Cir. 2/3/10), 29 So.3d 735, 736-37 (citing LeBlanc v. State Farm Ins. Co., 03-1522, p. 8 (La.App. 3 Cir. 5/26/04), 878 So.2d 715, 720). Furthermore, as pointed out by the Appellees, we reasoned in Walk, supra, that there is a clear meeting of the minds at mediation, when mediation ends with the execution of a document memorializing an agreement between the parties. We explained:

This Court has held that a compromise is valid if there is a meeting of the minds of the parties as to exactly what 114they intended when the compromise was reached. Pat O’Brien’s Bar, Inc. v. Franco’s Cocktail Prods., Inc., 615 So.2d 429 (La.App. 4th Cir.1993), writ denied, 617 So.2d 909 (La.1993). In the instant case the parties were involved in a full day of mediation at the end of which they signed a memorandum of settlement which contained several handwritten terms upon which the parties had agreed. The fact that a whole day of negotiations was capped off by the signing of a document which memorialized the agreement between the parties signifies that there had been a meeting of the minds. Otherwise the document would not have been signed, particularly considering who signed.

Walk, 98-0193, p. 3, 720 So.2d at 373.

Similarly, in the instant matter, Mr. Feingerts actions signified that he intended to compromise his dispute over attorneys’ fees and costs with the Appellees as evidenced by him signing the agreement at the conclusion of the mediation. There was a clear meeting of the minds by the parties to resolve their dispute at mediation. Indeed, Mr. Feingerts, himself, is protected by the agreement pursuant to La. Civ.Code art. 3080 which provides that “[a] compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised.” Therefore, we do not find that the district court manifestly erred in holding that the parties reached a valid compromise at the mediation. Thus, Mr. Feingerts’ assignment of error is without merit.

DECREE

For the foregoing reasons, the judgments of the district court granting the motions to enforce a settlement agreement filed by Robert L. Manard, PLC, and Gainsburgh, Benjamin, David, Meunier & Warshauer, L.L.C., respectively, are affirmed.

AFFIRMED

      . The Manard Firm represented Mr. Feingerts from June 2006 to March 2008. Additionally, at separate times, both the Gainsburgh Firm and the Manard Firm also represented Mr. Feingerts in his OWC claim; nevertheless, neither of those firms is currently representing Mr. Feingerts in his OWC claim.

      . The Gainsburgh Firm initially filed a “Motion to Enforce Settlement Agreement and to Authorize Disbursement or the Withdrawal of Settlement Funds" on September 16, 2011. Later, the Gainsburgh Firm filed a motion to withdraw its motion to enforce, which the district court granted.

      . Case number 2013 -CA-0023 is the appeal filed by Mr. Feingerts seeking review of the district court's judgment granting the Manard Firm’s motion to enforce judgment. Upon Mr. Feingerts’ motion, 2013-CA-0023 was consolidated with the instant appeal of the judgment granting the Motion to Enforce of the Gainsburgh Firm.

      . Prior to the 2007 regular session of the Louisiana Legislature, La. Civ.Code art. 3071 stated:
      A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.
      This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more convenient form.


author: AMY, Judge. THIBODEAUX, Chief Judge,

text:
    Thomas LEMELLE v. ST. CHARLES GAMING COMPANY, INC.
    No. 11-255.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 4, 2012.
    Robert E. Morgan, James A. Blanco, Allen J. Mitchell, II, Mitchell & Blanco, LLC, James F. DeRosier, DeRosier Law Firm, L.L.C., Lake Charles, LA, for Plaintiff/Appellee, Thomas Lemelle.
    Brian D. Wallace, Evans Martin McLeod, Clay Bland, Jr., Phelps Dunbar, L.L.P., New Orleans, LA, for Defendant/Appellant, St. Charles Gaming Company, Inc. d/b/a Isle of Capri Casino— Lake Charles.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, MARC T. AMY, SHANNON J. GREMILLION and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

The defendant gaming company claims that the trial court erred in granting a summary judgment in favor of the plaintiff, who was injured while intoxicated aboard a riverboat casino owned by the defendant. Although the trial court determined that the riverboat casino was a vessel for purposes of general maritime law in its ruling, the defendant again urges its own motion for summary judgment on the issue of vessel status. For the following reasons, we reverse the summary judgment entered by the trial court and render summary judgment in favor of the defendant. We remand for further proceedings.

Factual and Procedural Background

The plaintiff, Thomas Lemelle, alleges that he sustained injury when he fell on a flight of stairs of the M/V Crown Casino, a riverboat casino owned by the defendant, St. Charles Gaming Company, Inc. It is undisputed that Mr. Lemelle was a patron of the Crown at the time of the April 22, 2008 accident and that subsequent testing revealed that he was intoxicated when he fell. It is also undisputed that the Crown has been moored dockside in Westlake, Louisiana since 2001.

Mr. Lemelle filed this suit, alleging negligence on the part of St. Charles in its service of alcohol to patrons. He sought damages under the general maritime laws of the United States, asserting that the application of maritime law pre-empts the application of La.R.S. 9:2800.1, which limits liability for loss connected with the service of alcoholic beverages.

Thereafter, St. Charles filed an exception of no cause of action and/or motion for summary judgment asserting, among other things, that the Crown was not a vessel for maritime purposes and, therefore, Mr. Le-melle’s claim must be dismissed. Mr. Le-melle responded with a motion for summary judgment seeking a declaration that the Crown was a vessel for his maritime claim.

The parties’ cross motions on the issue of vessel status focused on the fact that the Crown entered into its service as a riverboat casino carrying passengers on gaming cruises. However, in 2001, well before the 2008 accident at issue, the Louisiana legislature amended La.R.S. 27:65 to prohibit a licensee of a gaming boat in the locale at issue from conducting excursions. The parties’ evidence indicates that the Crown has been docked since that time, with no further cruises conducted. Instead, the Crowii has been moored in Westlake, secured to a concrete wharf by a system of lines and cables. It is serviced by landside connections for cable, electricity, surveillance, water, and sewage. The Crown is also connected to a shoreside pavilion by way of a guest entrance consisting of a large steel structure controlled by hydraulic ramps, which are attached to the pavilion.

Ultimately, the trial court heard arguments on the issue of whether the Crown continued to be a vessel after it ceased excursion operations in 2001. The trial court granted the motion filed by Mr. Le-melle, finding the Crown to be a vessel and general maritime law applicable. It denied the motion for summary judgment filed by St. Charles. Recognizing the partial nature of the summary judgment entered, the trial court designated the partial final judgment as immediately appealable pursuant to La.Code Civ.P. art. 1915(B)(1).

St. Charles appeals.

Discussion

In support of its contention that the Crown is not a vessel for maritime purposes, St. Charles points out that the Crown has been indefinitely docked at its Westlake location since the 2001 legislative amendment. It further points to jurisprudence indicating that this same riverboat casino has been found not to be a vessel. See Breaux v. St. Charles Gaming Co., Inc., 10-1349 (La.App. 3 Cir. 6/22/11), 68 So.3d 684, writ denied, 11-1661 (La.10/7/11), 71 So.3d 322 and De La Rosa v. St. Charles Gaming Co., 474 F.3d 185 (5th Cir.2006). Further, it also asserts that this court should take notice that the Crown’s function is casino gaming rather than maritime commerce.

As explained in Giorgio v. Alliance Operating Corp., 05-0002 (La.1/19/06), 921 So.2d 58, a party asserting admiralty tort jurisdiction must establish that the incident 1) occurred on navigable waters, i.e., a maritime locale, and that 2) it had a maritime connection or flavor, i.e., a maritime nexus. In order to establish the location component of this requirement, the inquiry considered in the present case, the plaintiff must demonstrate “that the tort ‘occurred on navigable water’ or that ‘an injury suffered on land was caused by a vessel on navigable water’ De La Rosa, 474 F.3d at 187 (quoting Strong v. B.P. Explor. & Prod., Inc., 440 F.3d 665 (5th Cir.2006)). The parties question the Crown’s vessel status in this context.

As a starting point, we refer to 1 U.S.C. § 3 which provides that the term “ ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”

The United States Supreme Court interpreted this definition of “vessel,” in its determination of whether a dredge was a vessel for purposes of the Longshore and Harbor Workers’ Compensation Act in light of its limited propulsion capabilities. Stewart v. Dutra Constr. Co., 543 U.S. 481, 125 S.Ct. 1118, 160 L.Ed.2d 932 (2005). In conducting its analysis, the Supreme Court observed that “a watercraft is not ‘capable of being used’ for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement.” Id. at 1127 (emphasis added). The parties’ arguments and evidence in this case center upon whether the Crown was practically incapable of transportation or movement at the time of the 2008 accident.

Notably, both a panel of the United States Court of Appeals, Fifth Circuit and a panel of this court have concluded that the Croum does not qualify as a vessel as interpreted in Stewart. In De La Rosa, 474 F.3d at 187, the Fifth Circuit observed that Stewart framed the critical inquiry as whether a watercraft’s use “ ‘as a means of transportation on water’ is a practical possibility or merely a theoretical one.’ ” The Fifth Circuit concluded that the Croton’s circumstances rendered it only theoretically capable of sailing and, therefore, it was not a vessel for purposes of admiralty jurisdiction. Instead, the Fifth Circuit observed that the Crown was:

indefinitely moored to the land by lines tied to steel pilings. It receives water, telephone lines, sewer lines, cable television and data processing lines from land-based sources. It has not been used as a seagoing vessel since March 28, 2001, when it was moored at its present location on Lake Charles, and the Defendants do not intend to use it as such. Rather, their intent is to use it solely as an indefinitely moored floating casino. Its operations are entirely gaming-related and not maritime in nature.

Id. at 187.

Similarly, in Breaux, 68 So.3d 684, a panel of this court recently considered the Crown’s status as a vessel in a case involving a 2004 accident. The panel resolved the case in keeping with De La Rosa and remarked that the plaintiff “was injured while on a gaming boat permanently attached to the shore, not used in navigation, and not performing any traditional maritime activity.” Id. at 687.

It is of no small moment that the Crown, the riverboat casino at issue in this case, was the same riverboat casino involved in De La Rosa and in Breaux. While Mr. Lemelle contends that additional facts were developed in this case that were not available in the previous two cases, we do not find these facts warrant a different outcome. Chiefly, Mr. Lemelle argues that the evidence demonstrates the Crown's actual capacity to navigate insofar as testimony and log entries reveal that the riverboat’s engines were operated periodically around the time period of this accident. However, reviewing this evidence, we find no evidence warranting a departure from De La Rosa and Breaux.

Instead, the evidence leads to the conclusion that the Crown was practically incapable of transportation or movement as described in Stewart, 543 U.S. 481, 125 S.Ct. 1118, 160 L.Ed.2d 932. The Crown has been affixed in its dockside location, to some degree, since 2001 by lines and cables. It has not sailed since the 2001 legislation prohibiting it from conducting cruises or excursions. In fact, since 2001, its crew size has been reduced due to the lack of need to tie and untie the Croum onto the dock. According to the testimony of the Croum’s captain, the Coast Guard no longer inspects the Croum. Rather, at the time of the captain’s deposition, inspections were performed by a state entity.

Mr. Lemelle asserts that the Croum’s practice of operating its engine and thrusters should be viewed as indicative of its actual capacity for transportation or movement. Similarly, its navigation equipment is intact. However, the practice referenced by Mr. Lemelle is not, in fact, used for navigation or transportation purposes. Instead, the Crown’s captain explained that the engines are used to ensure that the riverboat casino will remain affixed to the dock when large tankers are nearby. Similarly, the engines have been operated and the electrical sources have been disconnected during hurricanes when the boat has been evacuated. However, according to the captain, these practices are for safety purposes. While the captain suggested that the numerous lines connecting the Croum to the land for utility purposes could be disconnected within a short period of time, these impediments undermine the practicality of the Crown returning to service as a means of transportation or movement.

We further note that both De La Rosa and Breaux commented upon the interplay of La.R.S. 27:65 and the physical barriers to movement. Pursuant to that legislation, the Croum, as a gaming licensee, may only conduct its business while docked. It may not conduct cruises or excursions. It is appropriate to consider this legislation as bearing on the question of whether, under these facts, the Crown is practically capable or incapable of either transportation or movement uses.

Furthermore, and while we follow De La Rosa and Breaux as authoritative jurisprudence, we are aware that, in Board of Commissioners of the Orleans Levee Dist. v. M/V BELLE OF ORLEANS, 535 F.3d 1299 (11th. Cir.2008), the United States Court of Appeals, Eleventh Circuit rejected the reasoning of De La Rosa, instead finding that the Fifth Circuit inappropriately focused on the intent of the shipowner. As an intermediate state appellate court, we are mindful that this court is situated within the geographical confines of the Fifth Circuit. We also note that both De La Rosa and Breaux only reference the legislation and the owner’s intent as one of several factors in determination of whether the riverboat casino is practically incapable of movement or transportation. We find no reason to deviate from that reasoning here. Rather, we conclude that De La Rosa and Breaux are sufficiently consistent with 1 IJ.S.C. § 3, as interpreted by the Supreme Court in Stewart, to adhere to those decisions in light of the facts developed in this case.

For these reasons, we reverse the trial court’s determination that the Crown was a vessel for general maritime law purposes and its entry of a partial final judgment in this regard. Accordingly, we find it appropriate to grant St. Charles’ motion for summary judgment insofar as it sought a declaration that, in this ease, the Crown is not a vessel for general maritime law purposes. As the parties’ presentation to the trial court focused on this issue, we remand this matter for further proceedings consistent with this opinion rather than granting St. Charles’ request that Mr. Le-melle’s claim be dismissed.

DECREE

The partial summary judgment entered in favor of the plaintiff, Thomas Lemelle, is reversed. The denial of the motion for summary judgment filed by the defendant, St. Charles Gaming Company, Inc., is also reversed. Summary judgment is rendered in favor of St. Charles Gaming Company, Inc., declaring that the M/V Crown Casino is not a vessel for general maritime purposes under the facts of this case. This matter is remanded for further proceedings consistent with this opinion. Costs of this proceeding are assessed to Mr. Le-melle.

REVERSED AND RENDERED. REMANDED.

THIBODEAUX, Chief Judge,

dissenting.

These facts are undisputed. Crown was constructed as a completely functional riverboat. Prior to 2001, the period during which Louisiana laws prohibited dockside gambling, Crown with passengers regularly cruised the waters. When in 2001 the gaming laws changed to allow dockside gambling, Crown was moored on Calcasieu River, and it has remained moored ever since.

Crown is connected to an adjacent concrete wharf by nylon mooring lines and steel cables. Crown is also connected to land by utility lines that supply electricity, water, telephone, sewerage, cable television, and computer access. There is also a guest entrance walkway — a steel structure controlled by hydraulic ramps attached to the land-based pavilion. Despite all of the above-described attachments to land, Crown can be ready to sail on its own in less than one hour.

Crown has a captain and a marine crew who maintain the riverboat in proper operating order. All of the navigational tools and equipment as well as Crown’s engines are constantly checked and maintained in proper working order. In short, Crown is a completely functional riverboat.

At the time of the incident, as was required by then-existing legislation, Crown held a certifícate of inspection issued by the United States Coast Guard (USCG). Crown floats on its own in the Calcasieu River. In fact, Crown can and, at times, does operate under its own power free from the shore-side systems for as long as eight hours.

Once or twice a week, the Crown’s captain activates and operates both the port and starboard main engines of the vessel. This is done to hold Crown against its dock because when large ocean-going ships dock at or leave from the adjacent shipyard, it creates a significant disturbance of the waters.

Admiralty Jurisdiction

Admiralty jurisdiction in tort cases is conferred by 28 U.S.C. § 1333(1). See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995); De La Rosa v. St. Charles Gaming Co., 474 F.3d 185 (5th Cir.2006). The party seeking admiralty jurisdiction “must satisfy conditions both of location and of connection with maritime activity.” Strong v. B.P. Exploration & Prod., Inc. 440 F.3d 665, 669 (5th Cir.2006) (citation omitted). There are two alternative ways to satisfy the location test: “the plaintiff must show that the tort ‘occurred on navigable water’ or that an ‘injury suffered on land was caused by a vessel on navigable water.’ ” De La Rosa, 474 F.3d at 187 (citation omitted). The connection test involves two additional inquiries: (a) whether the incident had the potential to disrupt maritime commerce; and, (b) whether the general character of the tortfeasor’s activity giving rise to the incident had a substantial relationship to traditional maritime activity. Jerome B. Grubart, Inc., 513 U.S. 527, 115 S.Ct. 1043; Quinn v. St. Charles Gaming Co., Inc., 01-794 (La.App. 3 Cir. 2/6/02), 815 So.2d 963, writ denied, 02-694 (La.4/12/02), 813 So.2d 412.

The first inquiry is whether Crown is a vessel. The next inquiry is whether the location test can be satisfied by determining whether the tort occurred on a navigable waterway. Finally, it is necessary to examine whether the test of connection to traditional maritime activity has been satisfied.

(1) The Location Test

(a) Is Crown a Vessel?

There are two sources of law in Louisiana: legislation and custom, with legislation superseding custom in every instance. Doerr v. Mobil Oil Corp., 00-947 (La.12/19/00), 774 So.2d 119 (citing La.Civ. Code arts. 1, 3). “Judicial decisions, on the other hand, are not intended to be an authoritative source of law in Louisiana.” Id. at 128 (citing A.N. Yiannopoulos, Louisiana Civil Law System § 35 (1977)). Because “‘one of the fundamental rules of [the civil law tradition] is that a tribunal is never bound by the decisions which it formerly rendered: it can always change its mind,’ 1 Marcel Planiol, Treatise on the Civil Law § 123, (La. State Law Inst. trans.1959) (12th ed.1939), prior holdings by this court are persuasive, not authoritative, expressions of the law.” Id. at 128-29 (citing A.N. Yiannopoulos, Louisiana Civil Law System § 35 (1977)). Thus, “a prior judicial (mis)construetion of a statute does not ‘insulate ’ the Louisiana judge ... from returning to the legislation itself to ascertain its correct meaning and application.” Albert Tate, Jr., Civilian Methodology in Louisiana, 44 Tul. L.Rev. 673, 678(1976).

As Justice Dennis explained, in Louisiana, legislation “is the primary source of law, and precedent serves merely as an example of a prior judge’s interpretation and application of legislated law.” James L. Dennis, Interpretation & Application of the Civil Code & the Evaluation of Judicial Precedent, 54 La. L.Rev. 1, 3 (1993). Thus, “[i]t should be evident that the common-law or case-law theory of precedent is incompatible in many ways with the legal method of deciding a case.... ” Id. at 14. Furthermore, the civil law method should be applied to determine “whether the case should be imitated in a subsequent decision.” Id. at 15. Therefore, “if a judge ignores a clearly applicable Code rule and follows another jurisdiction’s case, his example of using the wrong starting point or source of law should not be influential at all.” Id.

For the purposes of admiralty jurisdiction, “[t]he word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U.S.C. § 3. See also Stewart v. Dutra Constr. Co., 543 U.S. 481, 125 S.Ct. 1118, 160 L.Ed.2d 932 (2005). “A watercraft is not ‘capable of being used’ for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement.” Id., 543 U.S. at 494, 125 S.Ct. at 1127 (emphasis added). Even though 1 U.S.C. § 3 requires that the watercraft is capable of being used as a means of transportation on water, “[i]t does not require that a watercraft be used primarily for that purpose.” Stewart, 543 U.S. at 495, 125 S.Ct. at 1128 (citation omitted).

A ship does not move in and out of admiralty jui’isdiction depending on whether the ship is at an anchor, docked for loading or unloading, or berthed for minor repairs. Id. Similarly, ships that are taken permanently out of the water do not remain vessels because of the remote possibility that they may sail again in the future. Id.

The following cases provide some guidance as to whether something is or is not a vessel. A dredge, a massive floating platform that had a captain and a crew, navigational lights, ballast tanks, and a crew dining area, but lacked self-propulsion and was moved by a tugboat, was a vessel for maritime law purposes when it lay idle because one of its scows had suffered an engine malfunction and the other was at sea. Stewart, 543 U.S. 481, 125 S.Ct. 1118.

In De La Rosa, 474 F.3d 185, a case involving the same riverboat whose vessel status is disputed in our case, the court held that Crown was not a vessel. The Fifth Circuit reasoned that while Crown “was still physically capable of sailing, such a use was merely theoretical” because “Defendants do not intend to use it” as a sailing vessel and, instead, intend “to use it solely as an indefinitely moored floating casino.” Id. at 187 (emphasis added).

A riverboat casino that conducted gaming cruises on Lake Pontchartrain until 2001 and conducted all gambling dockside from 2001 until Hurricane Katrina in 2005, was held to be a vessel for the purposes of establishing admiralty jurisdiction. Bd. Of Comm’rs of Orleans Levee Dist. v. M/V Belle of Orleans, 535 F.3d 1299 (11th Cir.2008). There, the vessel was subject to USCG certification and inspection. The riverboat had a captain and a crew, and they maintained the boat’s engines, generators, and equipment in working order at all times prior to Katrina. After 2001, the riverboat was attached by steel cables to the mooring system, and it was also connected to the shore-side source by electrical, computer, and telephone cables.

The Eleventh Circuit distinguished its decision from that of the Fifth Circuit’s in De La Rosa, 474 F.3d 185. It reasoned that the Fifth Circuit articulated an inappropriate test by focusing on the intent of the shipowner “rather than [on] whether the boat has been ‘rendered practically incapable of transportation or movement’ ” M/V Belle of Orleans, 535 F.3d at 1311 (quoting Stewart, 543 U.S. at 494, 125 S.Ct. at 1127). The Eleventh Circuit explained that courts should not consider the owner’s intentions regarding the vessel because owner’s intentions were analogous to the boat’s “purpose.” Id. Because the Supreme Court specifically rejected any definition of “vessel” that relies on such purpose, the owner’s intentions were irrelevant. Id.

The Eleventh Circuit pointed out that under the Fifth Circuit’s reasoning, a boat may enter and leave admiralty jurisdiction on the basis of state law and the individual thoughts of the boat owner. Id. Yet this conclusion is untenable:

As the Louisiana legislature demonstrated by its actions in 2001, state law can change. Further, if legal navigability is the test for vessel status, any ship with an expired Coast Guard certification becomes a non-vessel, and those working upon it and around it lose their protection under the Jones Act or the LHWCA. Such a result is clearly not what the Supreme Court intended.

Id. at 1311-12 (citation omitted).

I also note the thoughts of David Robertson, the W. Page Keeton Chair in Tort Law and University Distinguished Teaching Professor, University of Texas at Austin:

In 1 U.S.C. § 3 Congress states that “every description of watercraft ... capable of being used as a means of transportation on water” is a vessel.... [T]he Stewart Court effectively inserted the word “practically” into the statute. But it inserted it immediately before the word “capable,” not immediately before the word “used.” That is, the Stewart Court did not say that merely theoretical future use can prevent vessel status; rather it indicated that merely theoretical present capability can.

David W. Robertson, How the Supreme Court’s New Definition of “Vessel” is Affecting Seaman Status, Admiralty Jurisdiction, and Other Areas of Maritime Law, 39 J. Mar. L. & Com. 115, 135 (2008) (footnote omitted).

The primary and binding legal authority for this court is 1 U.S.C. § 3. To be a vessel, the statute requires merely that a watercraft be capable of being used as a means of transportation on water. It is the jurisprudence, a secondary and nonbinding authority in this state, which added considerations of practicality to the statutory test. Among these secondary authorities, the Supreme Court’s guidance is certainly more persuasive than that of the Fifth Circuit. As dictated by the Supreme Court in Stewart, our focus should be on whether Crown has been “rendered practically incapable of transportation or movement.” 543 U.S. at 494, 125 S.Ct. at 1127 (emphasis added). While I agree with the Fifth Circuit that Crown’s use as a means of transportation over water may be theoretical, I conclude that Crown’s capability of use as a means of transportation over water at the time of the accident was a practical one.

As the Eleventh Circuit correctly observed, a boat does not enter and leave admiralty jurisdiction on the basis of state law or the individual thoughts of the boat owner. M/V Belle of Orleans, 535 F.3d 1299. This is why that Crown has been attached to the dock since 2001 is of limited, if any, consequence. If St. Charles decides to sell Crown and move it somewhere, which it is in the process of doing at this very time, there would be no dispute that Crown would become a vessel immediately. Or, if Crown were to move with its crew to avoid a hurricane, for example, would there be any question regarding its status as a vessel if a member of its crew injured himself? Certainly, the question of whether something is or is not a vessel cannot depend on the subjective whim of the owner. Moreover, as the Eleventh Circuit also pointed out, a ship does not become a non-vessel if its Coast Guard certification expires. Id. For the same reason, that Crown may only conduct gambling dockside under the Louisiana statute has little bearing, if any, on whether it is a vessel.

Finally, I am aware of this court’s recent decision in Breaux v. St. Charles Gaming Company, Inc., 10-1349, 11-128 (La.App. 3 Cir. 6/22/11), 68 So.3d 684. Breaux relied heavily on the Fifth Circuit’s decision in De La Rosa 474 F.3d 185. As explained above, the De La Rosa court applied an incorrect test to determine whether a watercraft is a vessel. Thus, Justice Dennis’s sentiments are especially germane: “if a judge ignores a clearly applicable Code rule and follows another jurisdiction’s case, his example of using the wrong starting point or source of law should not be influential at all.” James L. Dennis, Interpretation & Application of the Civil Code & the Evaluation of Judicial Precedent, 54 La. L.Rev. 1, 15 (1993). I also note with approval and adopt Judge Saunders’s reasoning he so brilliantly articulated in his dissent in which I joined.

Moreover, the record in Breaux regarding the facts indicating that Crown is a vessel was not nearly as developed as it is in this case. This may have contributed to the conclusion in that case. Finally, as pointed out previously, Louisiana is a state where jurisprudence has no binding authority on the court. Thus, our main inquiry should be whether Crown is “capable of being used ... as a means of transportation on water.” 1 U.S.C. § 3. (Emphasis supplied).

The maintenance of a captain and a crew, the constant maintenance of navigational tools and equipment, the regular operation of the engines, all point to Crown’s practical capability of being used as a means of transportation over water. It is true that Crown is attached by various cables to land. Nevertheless, according to Crown’s captain, all of these attachments to land can be removed, and Crown can be ready to sail in less than one hour. Thus, neither Crown’s inherent characteristics nor external barriers (such as those that would exist if, for example, Crown were placed in dry dock) impede Crown’s practical capability of being used as a means of transportation over water. Based on these considerations, I find no error in the trial court’s conclusion that Crown is a vessel. The majority errs when it concludes otherwise.

(b) Did the Tort Occur on Navigable Water?

There is no dispute that Crown was floating on the Calcasieu River at the time Lemelle was served with allegedly excessive amounts of alcohol, which, allegedly, caused his injuries. Calcasieu River is a navigable waterway. See W. Cameron Port v. Lake Charles Harbor & Terminal Dist., 09-509 (La.App. 8 Cir. 5/12/10), 38 So.3d 577, writ denied, 10-1800 (La.11/19/10), 49 So.3d 393. Therefore, the location test is also satisfied in this alternative fashion.

(2) The Connection Test

The connection to traditional maritime activity test involves a consideration of whether (a) the incident had the potential to disrupt maritime commerce; and, (b) the general character of the tortfeasor’s activity giving rise to the incident had a substantial relationship to traditional maritime activity. Jerome B. Grubart, Inc., 513 U.S. 527, 115 S.Ct. 1043.

(a) Potential to Disrupt Maritime Commerce

This inquiry requires the consideration of the incident giving rise to the claim at an intermediate level of generality. Jerome B. Grubart, Inc., 513 U.S. 527, 115 S.Ct. 1043. This means that the court does not consider the particular facts of the case but examines the general features of the incident to determine whether this type of incident is likely to disrupt commercial activity. Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990).

The connection test was discussed ably and extensively in Quinn, 815 So.2d 963. There, the estate of a motorist who was killed in collision with an intoxicated casino patron sued the casino for providing excessive amounts of alcohol to the patron. Quoting Jerome B. Grubart, Inc., 513 U.S. at 538-39, 115 S.Ct. at 1051, and applying the intermediate level of generality, this court ruled that the provision of alcohol to passengers aboard a vessel without adequate supervision could have a disruptive effect on maritime commerce as intoxicated passengers fall overboard requiring search and rescue operations. Quinn, 815 So.2d 963.

Like the plaintiff in Quinn, Lemelle argues that he sustained injuries as a result of excessive provision of alcohol aboard Crown. Applying the intermediate level of generality, I have no difficulty concluding that there is a potential to disrupt maritime commerce. Thus, this prong of the connection test has been met.

(b) Substantial Relationship to Traditional Maritime Activity

The Quinn court also found the substantial relationship to the maritime activity: “[t]he duties owed by vessel owners to their passengers have long been found a traditional maritime concern.” Id. at 968 (citations omitted).

Having previously decided that Crown is a vessel, as in Quinn, 815 So.2d 963, Crown’s owners owed a duty to Lemelle to ensure his safety, which is a traditional maritime concern. Therefore, this prong of the connection test has also been met.

For the foregoing reasons, I dissent. The trial court’s summary judgment in favor of Thomas Lemelle should be affirmed.

      . Mr. Lemelle also named St. Charles’ insurer, American Guarantee and Liability Insurance Company, as a defendant.

      . Although St. Charles' pleading extended beyond the issue of vessel status, it appears that the hearing conducted and the ruling rendered were focused solely on the issue of vessel status. We consider that to be the sole issue before the court at this time.

      . Stewart’s interpretation of the term occurred within the context of the Longshore and Harbor Workers' Compensation Act.

      . The trial court decision now under review was rendered prior to the release of Breaux, in June 2011.

      . Again, the parties' evidence and argument focused upon the Crown’s status as a vessel. The trial court’s judgment did as well. To the extent that St. Charles filed an exception of no cause of action and a motion for summary judgment that extended beyond this issue, we do not consider those issues. Accordingly, we remand this matter so that the parties and the trial court might consider any issues and procedural questions that remain.

      . While the De La Rosa court states that the examination of whether a watercraft is a vessel needs to be performed in cases where the injury occurred on land, it applies this test in the case where the plaintiff "was a customer on board ... [Crown] when he tripped and fell.” 474 F.3d at 186 (emphasis added). By implication, the De La Rosa court applies the "vessel" test as opposed to the "navigable water” test even though the accident occurred on a navigable waterway. Therefore, for completeness purposes, I will address the issue of whether Crown is a vessel.

      . See the article for an excellent summary of the history and jurisprudence on this subject.


author: KEATY, Judge.

text:
    STATE in the Interest of J.K.G. and J.L.G.
    No. 11-908.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 11, 2012.

      Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, Lloyd Dangerfield, Attorney at Law, Lafayette, LA, for Appellant, S.K.G. (father).
    Michael Harson, District Attorney, Michelle Breaux, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Vivian Veron Neumann, Attorney at Law, Lafayette, LA, for Appellees, J.K.G. (child), J.L.G. (child).
    Diane E. Cote, Lafayette, LA, for Ap-pellee, State of Louisiana, Department of Social Services.
    Allyson M. Prejean, Attorney at Law, Lafayette, LA, for Appellee, V.M.G. (mother).
    Court composed of OSWALD A. DECUIR, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

|tIn this involuntary termination of parental rights case, the trial court found that an incarcerated father of two minor children who were in the State’s custody had been given numerous chances to work his case plan, visit with his children, and provide some amount of support for them and that, ultimately, the father chose not to take advantage of those opportunities. On the State’s motion, and after a hearing, the trial court terminated the father’s parental rights. The father appeals that judgment. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On November 20, 2008, a caseworker discovered J.K.G. and J.L.G. asleep on the floor inside the front door of their mother’s home, without blankets or clothing, even though it was cold outside. The mother was not home. The caseworker asked the mother’s roommate where the children’s clothes or diaper bags were and was told that they did not have any; they only had the diapers they were wearing and their clothing was soiled with urine. They had been left with the mother’s roommate for over twenty-four hours without clean clothes, diapers, baby wipes, or ointment for diaper rash. The caseworker noticed that the older child had a diaper rash that rendered him nearly unable to walk. Both children had bruises and abrasions on their bodies, dirty fingernails and toenails, and smelled like urine.

An oral instanter order was obtained at 1:20 a.m. on November 21, 2008, and the children were taken into the State’s custody. They were adjudicated children in need of care on January 27, 2009. The parents, S.K.G. and V.M.G., were served with that judgment to which a case plan seeking permanency through reunification was attached. The judgment also contained informative paragraphs explaining that a petition to terminate their parental rights could be filed if they [2failed to comply with the requirements of the case plan. Counsel was appointed for each of the parents and for the minor children through the Fifteenth Judicial District Public Defender’s Office. A review hearing was set for May 19, 2009.

The trial court ultimately conducted four review hearings, and, during that time, the case plan changed from reunification to freeing the children for adoption, as neither parent had made significant efforts at working their plans. On November 29, 2010, the State filed a petition for termination of parental rights and certification for adoption, alleging that it would be in the best interest of the minor children to terminate their parents’ parental rights pursuant to La.Ch.Code art. 1015(4), (5), and (6).

The termination hearing began on February 15, 2011. At that time, the caseworker indicated that the mother had taken some steps toward completing her case plan and that she wanted to reunify with her children. The mother was not present at the hearing because she had transportation problems that morning. The trial court recessed the hearing until May 3, 2011, because the mother had made efforts at working her case plan and was only absent because of transportation issues.

The father, S.K.G., was present at the May 3, 2011 hearing. At the May 3 hearing, the caseworker testified that the mother no longer wanted to reunify with her children and had expressed a desire to surrender her parental rights, but had not completed that process. The mother’s attorney indicated that her client, who was not present at the hearing, wanted her parental rights to the minor children terminated. S.K.G.’s attorney argued that S.K.G. wanted his children and was shocked because he thought the mom was going to work her case plan to keep custody of the children.

|aThe caseworker testified that S.K.G. was incarcerated, and although he had indicated to her that he would be released at the end of December 2011, his probation officer indicated that he was sentenced to serve three years beginning on August 16, 2010. She further testified that S.K.G. had been issued a case plan requiring him to maintain housing and employment and participate in a substance abuse treatment program and a parenting program. During the two and one-half years that the children were in the State’s custody, S.K.G. had not maintained stable housing, as he had been incarcerated for the majority of that time. She testified that even when S.K.G. was released from jail, he “did not participate or complete any of the components of his case plan” and “[h]e did not contact the agency to work any component or receive assistance to his case plan component.” Although he was in a work release program at the time of the hearing, he had not paid parental contributions to the children and had only visited with the children twice during the pendency of the case: once in November 2009 and once before the May 3 hearing. He did not make any attempts to visit with the children during the time periods that he was out of jail.

When he was presented with a TPR-2, indicating that the agency was moving towards termination, S.K.G. provided the agency with the names of two potential placements, his mother and his sister, but neither returned the agency’s calls concerning the children. The caseworker testified that she told S.K.G. that neither his mother nor his sister returned her calls after a February 15, 2011 hearing, and he did not provide her with the names of any other potential placements. She testified that S.K.G. indicated that he could not work his case plan while in jail but that he planned to begin working it once he was released. She further testified that the children ran up and hugged their father when they saw him before the May 3 hearing.

|4FinaIIy, the caseworker indicated that the children’s foster parent, who is also an adoptive placement, was open to “continued contact according to the agency’s guidelines” between the children and their biological parents.

The trial court decided to terminate S.K.G. and V.M.G.’s parental rights. In its oral reasons for ruling, the trial court stated:

And with regards to the dad, I mean, I think these children are also entitled to have resolution in their life; and this has been going on for many years now. The father has had opportunities on several occasions to become involved in their life, to do visits, to work a case plan. He has chosen not to do so; and based on that, the Court is going to terminate his parental rights at this time.

On May 24, 2011, the trial court signed a judgment that terminated the parental rights of the minor children’s parents, S.K.G. and V.M.G., finding that they failed to substantially comply with their case plan for services, failed to provide significant contributions to their children’s care and support for a consecutive six-month period, that there was no reasonable expectation of significant improvement in the parents’ condition or conduct in the near future, and that termination of the parents’ parental rights is in the best interest of the minor children.

S.K.G. appeals, asserting two assignments of error for our review: 1) the trial court erred in finding that the State proved, by clear and convincing evidence, that S.K.G. was able to comply with the case plan but voluntarily had not done so, and that his incarceration would prohibit him from caring for the minor children for an extended period of time, and 2) the trial court erred in determining that the termination was in the best interest of the minor children.

^STANDARD OF REVIEW

A trial court’s findings on whether or not parental rights should be terminated are subject to the manifest error standard of review. State ex rel. K.G., 02-2886 (La.3/18/03), 841 So.2d 759.

DISCUSSION

The Supreme Court has stated that “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599. This liberty interest is “perhaps the oldest of the fundamental liberty interests.” State ex rel. SNW v. Mitchell, 01-2128, p. 8 (La.11/28/01), 800 So.2d 809, 814 (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49).

In termination proceedings, that fundamental interest must be balanced with the interest of the child, and “courts of this state have consistently found the interest of the child to be paramount over that of the parent.” State ex rel. J.M., 02-2089, p. 8 (La.1/28/03), 837 So.2d 1247, 1252. Often at odds with those of its parents, the child’s interest is “in terminal ing parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care.” Id. When determining whether a parent’s rights should be involuntarily terminated, the trial court must exercise “great care and caution ... because the permanent termination of the legal relationship existing between children and their biological parents is one of the most severe and drastic actions the State can take against its citizens.” Id.

Louisiana Children’s Code Article 1015 sets forth eight grounds for termination of parental rights. Although the State need only establish one ground for termination, the trial court must also find that the termination is in the best | interest of the child in order to meet the statutory requirement of La.Ch.Code art. 1035(A), which requires that grounds for termination be proven by clear and convincing evidence. State ex rel. M.H. v. K.W.H., 40,332 (La.App. 2 Cir. 9/23/05), 912 So.2d 88.

In the instant case, the State sought termination of S.K.G.’s and V.M.G.’s parental rights based on La.Ch.Code art. 1015(3), (5), and (6), and the trial court granted it based on Article 1015(5), which states:

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.

In his first assignment of error, S.K.G. argues that the trial court erred in finding that the State proved, by clear and convincing evidence, that S.K.G. was able to comply with the case plan but voluntarily had not done so and that his incarceration would prohibit him from caring for the minor children for an extended period of time. “A lack of parental compliance may be shown with proof of either failure to visit the child, to communicate with the child, failure to contribute to the cost of the child’s foster care or failure to comply with the required treatment and rehabilitation services.” State ex rel. M.H., 912 So.2d at 94. The caseworker testified that S.K.G. visited his children only twice while they were in the State’s custody, had not complied with substance abuse classes or parenting classes, and had not contributed financially to the support of his children while they were in the State’s care, despite the fact that he was not incarcerated for the entire duration, and, at the time of the termination hearing, he was enrolled in a work release program.

17S.K.G. was given an opportunity to present evidence of “just cause” for his failure to provide for his children’s care and support, but did not do so. “ ‘[Jjust c'ause’ is an affirmative defense which allows a parent, after the state has proved abandonment for failure to provide for the children’s care and support, to prevent termination by proving that the failure was with just cause and excusable.” Id. at 92, (citing State in the Interest of M.L., 95-45 (La.9/5/95), 660 So.2d 830). “Incarceration is not a just cause defense to failure to support children or maintain contact with them in a termination of parental rights case if the parent is incarcerated as a result of his own actions.” Id. (citing State in the Interest of J.T.C., 04-1096 (La.App. 5 Cir. 2/15/05), 895 So.2d 607).

The record demonstrates that S.K.G. was presented with his case plan, yet failed to visit with his children, provide any sort of financial support for them, or take classes related to his case plan that were available at the correctional facilities. Although he told the caseworker that he planned to work his case plan once he was released from jail, the record supports the conclusion that S.K.G. failed to work any component of his case plan and, indeed, failed to contact his children even when he was not incarcerated. S.K.G. failed to present a scintilla of evidence of “just cause” which would potentially excuse his behavior or lack thereof.

Accordingly, we find that the trial court was not manifestly erroneous in finding that S.K.G. chose not to comply with his case plan. This assignment lacks merit.

In his second assignment of error, S.K.G. complains that the trial court erred in finding that the termination was in the best interest of the children. The record supports the conclusion that S.K.G. did not comply with his case plan. Further, the record reflects that the children are currently living with a foster parent who wishes to adopt them and who is willing to allow a continuing relationship between the | ^children and their biological parents. “Before an appellate court may reverse a fact finder’s determinations, it must find from the record that a reasonable factual basis does not exist for the findings and that the record establishes that the findings are clearly wrong.” In re Bordelon, 95-1194 (La.App. 3 Cir. 3/6/96), 670 So.2d 676, 679. After carefully reviewing the record, we determine that the trial court was not manifestly erroneous in finding that the termination of parental rights was in the best interest of the children. Accordingly, this assignment lacks error.

CONCLUSION

For the foregoing reasons, we find that the trial court was not manifestly erroneous in terminating the parental rights of S.K.G., and we affirm the judgment of the trial court.

AFFIRMED.