author: SAUNDERS, Judge.

text:
    Derek LEMAIRE v. David RICHARD, et al.
    No. 13-581.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Gregory Kent Moroux, Onebane Law Firm, Lafayette, LA, for Defendants/Ap-pellees, Dave’s Gun Shop, David Richard, Linda Richard.
    James Kirk Piccione, Piccione & Pic-cione, Lafayette, LA, for Defendant/Appel-lee, Jeremiah Deare.
    Charles William Ziegler IV, Attorney at Law, Lafayette, LA, for Plaintiff/Appellant, Derek Lemaire.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   SAUNDERS, Judge.

| iThis is a vicarious liability case in which a gun shop manager accidentally discharged his own gun, shooting a customer. The manager’s gun discharged as he was disassembling it in order to compare it to the customer’s malfunctioning gun, as they were both Glock 19 pistols. The customer sustained a gunshot wound on the right side of his chest, and he filed suit against the manager, the gun shop owner, and the lessor of the property for damages arising from this injury. The lessor was dismissed from the suit, and the manager reached a settlement. After a bench trial on the issue of the shop’s liability, the trial court ruled in favor of the shop, finding no vicarious liability. The plaintiff appeals. For the reasons discussed herein, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Derek Lemaire (hereinafter “Lemaire”), purchased a gun from defendants, Dave Richard and Linda Richard d/b/a Dave’s Gun Shop (hereinafter “the shop”). Shortly thereafter, the gun jammed. Lemaire contacted the manager of Dave’s Gun Shop, Jeremiah Deare (hereinafter “Deare”) on November 10, 2008, regarding the problem. Deare invited him to bring the gun to the shop for inspection. Deare testified that “we said bring it by. We can take a look at it and see if there’s anything — I mean, you can look at something, ‘Oh, yes. That piece is broken.’ If there was nothing obvious about it, we don’t do repairs so we would send it back to the factory for him.”

Lemaire arrived at the shop sometime around 7:00 p.m. that evening. Although each parking space in the lot is available to customers of any store in the shopping center, Lemaire parked his truck directly in front of the gun shop. The shop’s hours are 9:00 a.m. to 6:00 p.m. The parties disputed the frequency with which the shop stays open after hours, but there is no dispute that the door was 12unIocked at the time Lemaire arrived. Another customer was present in the shop, talking to Deare. Dave Richard, the shop’s owner (hereinafter “Richard”), was present as well, working on inventory. Lemaire waited for Deare to finish -with the other customer before discussing his gun.

After that, Deare’s testimony conflicts with that of Lemaire. Lemaire testified that he did not initially bring the gun into the shop because “I never bring a loaded weapon into a shop until I tell someone. There’s no sign on the door to say, ‘Leave your gun unloaded,’ like some gun shops, but just to be safe.” He testified that as he was leaving the shop to retrieve his gun from his truck and bring it back to the shop, Deare followed him out to the parking lot to assist him, at which point the incident occurred.

In contrast, Deare testified that Le-maire retrieved the gun from his truck and brought it back inside the store, at which point “[w]e ran through a couple of possibilities of what it was. We offered to send it back. That offer was refused. If I remember correctly, it was, ‘I’ll keep shooting and see if it fixes itself.’ ” Deare later testified that they disassembled the gun in the shop but were not able to determine why it was malfunctioning. Deare testified that at that point, Lemaire left the shop with the gun, having refused to send the gun back to Glock, its manufacturer. Deare testified that he left as well, locking up the shop for the night and walking out to the parking lot, where the incident then occurred.

A police report by investigating detective Glenn Landry states that after being Mirandized, Deare told the detective that he walked outside to the parking lot, where he saw Lemaire, who then began discussing the jamming problem. The report states that this conversation led to disassembling Deare’s gun and thus the shooting incident in the parking lot. Nowhere does the report mention Lemaire ever entering the shop that night.

IsRichard testified that he did not speak to Lemaire that night, although he saw Lemaire enter the shop and then leave with Deare. There is also conflicting testimony as to whether Deare locked the door on his way out to the parking lot. Richard testified that he saw Deare lock the door on his way out and believed he was leaving for the night. Deare’s testimony is similar. Lemaire testified that Deare did not lock the door when he followed Lemaire outside because they intended to return to the shop.

Two police officers who were the first to arrive on the scene testified at trial that the lights were on in Dave’s Gun Shop. One of them, Sergeant Paul Matte, testified that the shop door was not locked:

Q: When you went into Dave’s, did Dave come out before you went into Dave’s Gun Shop?
A: No, sir.
Q: When you went into Dave’ Gun Shop, was the door locked?
A: No, sir.
Q: So you went in and met Dave inside?
A: Yes, sir.

Deare testified that he did not unlock the shop door after the shooting. Richard testified that he was not aware of the incident until police arrived and he saw flashing lights outside, at which point he unlocked the door to exit the shop and see what was going on.

Deare testified that in going outside with Lemaire he intended to say goodbye to Lemaire and leave for the day; then once outside, it occurred to him that he could compare Lemaire’s gun to his own. Lemaire testified that Deare was accompanying him to retrieve the gun out of customer courtesy.

|4Peare and Lemaire then met at Le-maire’s truck, which was still parked outside the shop. Deare told Lemaire he was going to take a look at his own gun to compare it to Lemaire’s, or to remove the slide from his own gun and test it in Lemaire’s. Lemaire heard Deare remove his own gun from its holster. Lemaire began packing his gun into its case in the back seat of his truck. Lemaire testified that Deare never touched the gun Lemaire brought in; Deare touched only his own gun. Deare testified, rather, that “I took his apart and we put his back together, and it was in the truck,” clarifying later that he disassembled Lemaire’s gun on the passenger side front seat of Lemaire’s truck. Deare testified that he saw no parts broken and did not see an obvious cause of malfunction in Lemaire’s gun. Deare testified at his deposition that he then wanted to look at his own gun to compare it to Lemaire’s in order to identify a source of malfunction “to warrant sending it back to Glock.” As Deare was disassembling his own gun, which requires pulling the trigger, Lemaire came around either the corner of his truck or around its open back door (Deare testified the former, Lemaire the latter). As he did, Deare’s gun accidentally discharged, shooting Lemaire in the chest. Deare agrees that he shot Lemaire.

Deare testified that he was comparing the two guns “as a friend.” Lemaire testified that he was Deare’s friend “at the gun shop for sales purposes and stuff,” and that they spent time together outside the gun shop once, eating at a restaurant with an additional friend. Lemaire stated that his entire conversation with Deare on November 10, 2008, was about the problems with his gun.

Deare also testified that the shop normally covers shipping fees to send a gun it has sold back to Glock for inspection or repair, and that Glock then covers repair costs for its products. Deare testified that his duties included sales, taking care of the other employees, and “mak[ing] sure things got done and things were | ¡¡done in a timely fashion.” Deare also took phone calls, which Richard cannot do because he is deaf. Deare testified that he does not have a federal firearms license that authorizes parties to purchase and resell guns, but that the shop was licensed: “In order to become a gun shop and sell this as ATF spec, you have to have a federal firearms license. That’s like a person who works for Academy. The eighteen-year-old kid that works behind the counter doesn’t possess one. He sells guns for Academy. I sell guns for Dave’s Gun Shop.” Richard confirmed that Deare is the manager of the shop and is an hourly employee.

Lemaire filed suit against Deare and against the shop for damages, alleging that the shop was vicariously liable for Deare’s tortious act. Lemaire also filed suit against the owner of the shopping center in which the shop is located. The shopping center owner filed a motion for summary judgment, which was granted. Deare reached a settlement with Lemaire and was dismissed as well.

Lemaire filed a motion for summary judgment on the issue of the shop’s vicarious liability. The shop opposed the motion and filed a cross motion for summary judgment, arguing the shop was not vicariously liable. The trial court denied both motions after a hearing. Lemaire filed a second motion for summary judgment. The trial court granted the store’s motion to strike, finding Lemaire’s second motion for summary judgment was moot.

At a bench trial on the issue of the shop’s liability, the trial court ruled in favor of the shop. To determine whether the shop was vicariously liable for Deare’s action, the trial court applied the four-factor test set forth in LeBrane v. Lewis, 292 So.2d 216 (La.1974), and summarized in Edmond v. Pathfinder Energy Services, Inc., 11-151 (La.App. 3 Cir. 9/21/11), 73 So.3d 424, writ denied, 11-2234 (La.12/16/11), 76 So.3d 1204. These factors are: (1) whether the tortious act was primarily employment rooted; (2) whether the act was reasonably incidental to the | ^performance of the employee’s duties; (3) whether the act occurred on the employer’s premises; and (4) whether the act occurred during the hours of employment. Id.

As to the first factor, whether the tor-tious act was primarily employment rooted, the trial court stated in its oral reasons for judgment: “I frankly, am not really sure what the tortious act was primarily rooted in.” The court explained this was in part because it found the testimony of both Lemaire and Deare to be less than completely credible. However, the court further opined, “I think that the tortious act was primarily employment rooted. We do have that factor because I don’t think it would have happened if [Deare] did not work at Dave’s Gun Shop.”

As to the second factor, whether the act was reasonably incidental to the performance of the employee’s duties, the trial court opined that, because repairs were not part of Deare’s duties, and he was actually forbidden from attempting a repair, this factor was not met. Furthermore, the trial court believed that Deare and Lemaire, knowing that Richard had forbidden employees from inspecting weapons pursuant to the shop’s “no repairs” policy, decided to instead inspect the weapon in the parking lot, where Richard would not see them. In stepping out of the store into the parking lot in order to perform an action he was not to perform under his duties as an employee, Deare left his role as an employee of the shop and entered his role as Lemaire’s friend, helping him with his gun, the trial court surmised. Deare’s act of shooting Le-maire “was not reasonably incidental to his duties because his duties had nothing to do with repairing or inspecting weapons,” the court stated.

As to the third factor, whether the act occurred on the employer’s premises, the trial court found that the parking lot was not part of the shop’s premises: “I cannot find any evidence whatsoever from the testimony or from the lease itself 17that the premises of Dave’s Gun Shop included any part of the parking lot.” The trial court relied on the fact that the parking area is common to all of the businesses in the shopping center in which the shop is located. The court further stated, “If this had occurred inside the shop and Dave Richard could have done nothing to stop it, he still may not be liable for it because it wasn’t part of his duties.”

As to the fourth factor, whether the act occurred during the hours of employment, the court found that “the store was open for business at the time, at least to Mr. Lemaire.” The court opined that whether the shop’s door was locked or unlocked did not make a difference.

The trial court recognized that no one factor is dispositive, but weighed the first two factors more heavily: “What is important is whether or not the employee’s duties were reasonably incidental to the act and whether or not his tortious act was primarily employment rooted.”

The trial court concluded, “I think that this was something [Deare] did on his own.” The trial court’s final judgment dismissing all claims against the shop was signed and served. Lemaire now appeals the judgment.

ASSIGNMENTS OF ERROR

1. The trial court erred in concluding the shooting was not on the “premises.”
2. The trial court erred in concluding the shooting was not incidental to the job duties of the manager of Dave’s Gun Shop, who knew Le-maire was returning with a gun he had recently purchased from Dave’s Gun Shop because it was malfunctioning.
3. The trial court erred in requesting and persuading the issue of “course and scope” be bifurcated.
|⅜4. The trial court erred, in not finding that the employer was vicariously liable for the acts of his employee.
5. The trial court erred in not finding that the employer was vicariously liable for the acts of his employee under the doctrine of respondeat superior, for among other things, requiring that Deare carry a loaded weapon in the parking lot of Dave’s Gun Shop.
6. The trial court erred in not finding Dave Richard d/b/a Dave’s Gun Shop liable for the actions of his employee in the parking lot.

LAW AND ANALYSIS

A trial court’s determination that an act is or is not “within the course and scope of employment for purposes of vicarious liability is a factual finding governed by the manifest error rule.” Baumeister v. Plunkett, 95-2270, p. 7 (La.5/21/96), 673 So.2d 994, 998; see also Ermert v. Hartford Ins. Co., 559 So.2d 467 (La.1990) (finding course and scope to be a mixed question of law and fact held to the manifest error standard).

A court of appeal may not set aside a trial court’s finding of fact in the absence of “ ‘manifest error’ or unless it is ‘clearly wrong.’ ” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Under the manifest error-clearly wrong standard, this court employs a two-part test for the reversal of a factfinder’s determinations. Stobart v. State Through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). First, this court “must find from the record that a reasonable factual basis does not exist for the finding of the trial court.” Id. at 882. Second, this court must “determine that the record establishes that the finding is clearly wrong (manifestly erroneous).” Id. This test requires this court to review the record in its entirety to determine manifest error. Id. This court’s determination is not whether the factfinder was correct, but whether the factfinder’s conclusion was reasonable. Id.

|flThe supreme court further stated in StobaH:

Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). However, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45.

Id. at 882.

Lemaire bears the burden to prove that the shop should be held vicariously liable for Deare’s tortious act under La.Civ.Code art. 2320, which states, “Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.... [Responsibility only attaches, when the masters or employers ... might have prevented the act which caused the damage, and have not done it.”

As discussed above, the trial court considers the LeBrane factors to determine whether vicariously liability should be imposed: “(1) whether the tortious act was primarily employment rooted; (2) whether the act was reasonably incidental to the performance of the employee’s duties; (3) whether the act occurred on the employer’s premises; and (4) whether it occurred during the hours of employment.” Edmond, 73 So.3d at 426. All four of these factors need not be met in each case to impose vicarious liability, but each factor must be weighed on a case-by-case basis. Id.

Put another way, an act is in the course and scope of one’s employment if it “is of the kind that he is employed to perform, occurs substantially within the authorized limits of time and space, and is activated at least in part by a purpose to inserve the employer.” Orgeron on Behalf of Orgeron v. McDonald, 93-1353, p. 4 (La.7/5/94), 639 So.2d 224, 226-27. If the employee’s act is “motived by purely personal considerations entirely extraneous to the employer’s interests,” then vicarious liability shall not be imposed. Richard v. Hall, 03-1488, p. 6 (La.4/23/04), 874 So.2d 131, 138. In Ermert v. Hartford Ins. Co., 559 So.2d 467, 477 (La.1990), the supreme court stated:

The fact that the predominant motive of the servant is to benefit himself or a third person does not prevent the act from being within the scope of employment. Miller v. Keating, 349 So.2d 265, 269 (La.1977); Restatement (2d) of Agency § 236; cf. 1 W. Malone & A. Johnson, supra, § 161, at 309. If the purpose of serving the master’s business actuates the servant to any appreciable extent, the master is subject to liability if the act is otherwise within the service. Austen v. Sherwood, supra [446 So.2d 274 (La.1983) ]; Miller v. Keating, supra; Gilborges v. Wallace, 78 N.J. 342, 396 A.2d 338 (1978); Best Steel Bldgs. v. Hardin, 553 S.W.2d 122 (Tex.Civ.App.1977).

A factfinder must consider the nature of the employer’s business at issue in determining whether an act is within the course and scope of one’s employment. Vicarious liability “rests not so much on policy grounds consistent with the governing principles of tort law as in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.” Ermert, 559 So.2d at 476. “In determining whether a particular accident may be associated with the employer’s business enterprise, the court must essentially decide whether the particular accident is a part of the more or less inevitable toll of a lawful enterprise.” Richard, 874 So.2d at 137-38.

Furthermore, “[t]he scope of risks attributable to an employer increases with the amount of authority and freedom of action granted to the servant in performing his assigned tasks.” Id. at 138. However, “the fact that an act is forbidden or is Indone in a forbidden manner does not remove that act from the scope of employment.” Ermert, 559 So.2d at 479 (citations omitted).

In light of the guidance outlined above as applied to the facts of this case set forth in the record, we find that the trial court manifestly erred in finding that Deare’s act was not reasonably incidental to the performance of the employee’s duties and manifestly erred in finding that the act did not occur on the employer’s premises.

The trial court found that the tortious act was primarily employment rooted, and thus the first LeBrane factor weighed in favor of vicarious liability. We agree. As the trial court stated, the shooting incident would not have occurred had Deare not been present as an employee at the shop. Because this case is a result of working with guns at a gun shop, the circumstances surrounding the incident are clearly “attributable to the employer’s business,” and thus the incident was employment rooted. LeBrane, 292 So.2d at 218; see also Edmond, 73 So.3d 424.

The trial court found that the second LeBrane factor — whether the act was reasonably incidental to the performance of the employee’s duties — did not weigh in favor of vicarious liability. In reaching its verdict, the trial court relied heavily on its conclusion regarding this factor. The trial court found that the shooting incident was not incidental to Deare’s duties because the shop forbid Deare from the type of act he was performing when the incident occurred — inspecting a weapon. Deare’s act of shooting Lemaire “was not reasonably incidental to his duties because his duties had nothing to do with repairing or inspecting weapons,” the trial court stated. This court notes that there is a distinction between repairing and inspecting a gun, and Deare was not attempting a repair when the shooting incident occurred. In fact, he was not even working on Le-maire’s gun; rather, he was disassembling his own gun in order to diagnose the problem with Lemaire’s 112gun. Deare testified that he told Lemaire over the phone that he would attempt to diagnose the problem. This act is therefore clearly within the scope of the work he does at the shop.

In addition, Deare testified that his employment duties include customer service. Testimony by Deare, Lemaire, and Richard all show that Lemaire was a valued, regular customer who had purchased four or five guns from the shop. Importantly, he had purchased the gun at issue from the shop. Also, Deare testified that the shop would pay shipping costs to send the gun back to Glock. It is unreasonable to believe that any act that would prevent this expense for the shop could not be incidental to the duties of the shop’s manager.

A factfinder must also consider the nature of the business when determining course and scope. Disassembling a gun in order to compare it to similar merchandise and determine the source of malfunction is clearly of the character and nature of the business at which Deare was employed. Deare was motivated at least in part to help Lemaire because he was a customer of the shop that he managed, which sold Lemaire the malfunctioning gun. The accidental discharge of a weapon during dis-assembly is characteristic of the activities of a shop which sells guns, regardless of whether the shop repairs guns or employs a gunsmith. Liability for an accident of this kind is an inevitable toll of this type of business, and the shop is subject to vicarious liability for this incident. No other conclusion is reasonable under the facts contained in the record.

In addition, a factfinder must consider the degree of authority given to the employee. Here, the record shows that Le-maire was given a degree of authority in his position as manager that broadened the scope.of risks attributable to his acts on behalf of the shop. Richard testified that he saw Lemaire in the shop that night and was aware his gun was having issues. However, no party testified that Richard 1 ^interacted with or assisted Lemaire that night. Instead, Richard granted Deare the authority to address Lemaire’s problem, and in doing so, assumed responsibility for tortious conduct on Deare’s part as he acted with such authority. This is the very definition of the doctrine of responde-at superior.

Finally, we note that it is well-established that even when a precise act is forbidden, if the act is sufficiently connected to an employee’s work, it may still be reasonably incidental to the performance of an employee’s duties. For example, in LeBrane, 292 So.2d 216, the supreme court found that a fight that erupted between an employee and the sub-employee he had just fired was reasonably incidental to the performance of the employee’s duties, which included hiring and firing sub-employees. There, the act of fighting during which the tort (a stabbing) occurred was clearly forbidden. However, it arose as a result of an employment duty. In the instant case, the forbidden act of disassembling the gun arose out of Deare’s employment duty of assisting a customer to determine the best course of action for a malfunctioning gun. The trial court’s reasoning is clearly at odds with this well-established aspect of vicarious liability. Accordingly, the trial court’s conclusion that an employee of the shop disassembling a Glock of the same caliber in order to determine why the shop’s own merchandise was malfunctioning for a valued customer is not incidental to his employment duties is clearly wrong and manifestly erroneous.

The trial court found that the third LeBrane factor — whether the act occurred on the employer’s premises — did not weigh in favor of vicarious liability. This court finds that the trial court manifestly erred in finding that the incident at issue did not occur on the shop’s premises.

In Davis v. Green, 44,033 (La.App. 2 Cir. 2/25/09), 5 So.3d 291, writ denied, 09-984 (La.6/19/09), 10 So.3d 742, the court found that an employer’s parking lot 114could be considered the premises. In that case, an off-duty Wal-Mart associate was involved in a car accident in the Wal-Mart parking lot. Although the court ultimately concluded .the employer was not vicariously liable for the associate’s tort, it noted that an incident occurring in the employer’s parking lot could satisfy the “place element” of the LeBrane test. The court based its result heavily on the fact that the employee was traveling in her car, easily distinguishable from the facts of the instant case, where the car was parked.

In Harris v. Sears, Roebuck & Co., 485 So.2d 965, 968 (La.App. 5 Cir.) writ denied, 488 So.2d 205 (La.1986), the court found that the circumstances effectively extended the employer’s premises to the road a block from the employer’s building, for the similar purpose of worker’s compensation coverage. The facts in Harris state that the warehouse at which plaintiffs decedent was employed flooded during a heavy rain storm. The decedent left work because of the flood, and when he was in his car about a block from the warehouse, his car was swept away by water. Two other employees attempted to rescue him, but their efforts were unsuccessful and he drowned. The court found this incident to' be covered by worker’s compensation. In analyzing the “place” component, the court found that the employees who attempted to rescue him were still “working” for Sears, and “by literally going beyond the Sears premises to help others, constituted an extension of those premises. Therefore, it can be said that decedent died ‘on Sears premises.’ ” Id. at 968. The court further reasoned, “While [decedent] had managed safely to exit Sears’ parking lot, he clearly had not yet escaped the hazard that had presented itself at his workplace and prompted his departure.” Id. at 969-70.

In the instant case, Deare and Lemaire were mere feet from the shop’s door when the incident occurred. Both men were present in connection with the gun 11sshop. As the trial court noted, the parking lot is shared between several shops, with no parking spots devoted solely to any one shop. Their activities in the parking lot were an extension of their continuing endeavor to determine why the gun was malfunctioning. In fact, the act that took place in the parking lot, attempting to determine the problem with the malfunctioning gun, was scheduled and planned over the phone when Lemaire called Deare at the shop. This marked the beginning of a dialogue that continued between the men once both were present in the shop itself, then continued into the parking lot.' This continuing dialogue, all on the subject of the malfunctioning gun, renders the parking lot an extension of the premises for our purposes. As in Hams, the course of events that culminated in the incident at issue began on the undisputed premises of the employer — here, the shop. As in Davis, the parking lot is next to the shop and is maintained for the convenience of the business and its customers. Even though the lot is not technically the shop’s premises for purposes of its lease, one would reasonably anticipate activities in connection with the shop to take place there, including employees walking customers out to their cars and continuing to discuss shop-related matters. We conclude that the act occurred on the employer’s premises.

The trial court found that the fourth LeBrane factor — whether the act occurred during the hours of employment — weighed in favor of vicarious liability. We agree. As the trial court stated, it is clear that the shop was open to Lemaire. The undisputed facts show that Lemaire entered the shop easily, another customer was present when he entered, the lights were on, and Deare freely discussed the business of the gun with Lemaire, who was clearly in the role of a customer at the time. Therefore, the act occurred during the hours of employment.

The first and second LeBrane factors are the dominant considerations under these facts and, as noted, we find both weigh in favor of Lemaire. The third factor — ]whether16 the act occurred on the premises — is a close issue in this case, and is therefore of marginal value in our overall decision. While we find the trial court committed manifest error in finding the parking lot was not part of the shop’s premises, this finding is not determinative. Even if the parking lot were outside the shop’s premises, the other factors of this case point so strongly toward vicarious liability that our result would be the same. Finally, the fourth factor clearly weighs in favor of Lemaire and further supports vicarious liability. Given that no reasonable factfinder could find that the LeBrane factors, considered together, do not mandate vicarious liability, we find that Deare was in the course and scope of his employment as manager of the shop when he accidentally shot Lemaire. Therefore, the shop is vicariously liable for this act.

The trial court did not err in bifurcating the issues of liability and damages. There is no evidence that bifurcation prejudiced the plaintiff or that the trial court had prejudged the case. The plaintiff requests that this court reach a decision on the issue of damages in order to put the matter to rest. It is not within the authority of this court to do so. The record is not sufficiently developed for this court to reach a decision as to damages, and the shop must be given the opportunity to assert defenses and cross examine witnesses as to the issue of damages. An award of damages by this court would constitute the exercise of original jurisdiction with which this court is not vested. See La. Const, art. V, § 10. Lemaire’s additional assignments of error are resolved by the findings herein.

CONCLUSION

In conclusion, for the reasons herein, we reverse the trial court’s decision and remand this case for further proceedings consistent with this opinion. All costs of this appeal are assessed to Appellees, Dave Richard and Linda Richard d/b/a Dave’s Gun Shop.

Jj^REVERSED AND REMANDED.


source: Caselaw Access Project

author: THIBODEAUX, Chief Judge.

license: Public Domain

text:
    STATE in the Interest of O.L.R.
    No. 13-616.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      Kimberly S. Smith, Department of Children and Family Services, Shreveport, LA, for Appellee-State of Louisiana, Department of Children and Family Services.
    Renee Paula Cote, Shreveport, LA, for Appellee-O.L.R.
    D. Scott Kendrick, Natchitoches, LA, for Appellant-Hubert Antoine, Jr.
    Richard Woolbert, Shreveport, LA, for Appellee-Brenda Richardson.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   THIBODEAUX, Chief Judge.

| ¶ Hubert Antoine, Jr. appeals the trial court’s termination of his parental rights of O.L.R. Mr. Antoine argues that his incarceration at the Calcasieu Parish Correctional Center prevents him from completing his case plan, and that the State should allow him more time to do so. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUE

We must decide whether the trial court erred in terminating the parental rights of Mr. Antoine.

ii.

FACTS AND PROCEDURAL HISTORY

On August 22, 2010, O.L.R. entered into the State’s custody at birth after testing positive for cocaine and marijuana. At the time of O.L.R.’s birth, Brenda Richardson, O.L.R.’s mother, alleged that Mr. Antoine was the child’s father. She was unsure of his whereabouts, although O.L.R. was the second child born to Ms. Richardson and Mr. Antoine. Ultimately, at two months of age, O.L.R. was adjudicated as a child in need of care. She never returned to the care of her mother.

O.L.R. has never had contact with her father. Át the time O.L.R. entered foster care, Ms. Richardson believed that Mr. Antoine was incarcerated for stabbing his brother, but she was uncertain. At no point did Mr. Antoine attempt to 12formally or informally establish his parental rights to O.L.R. The Department of Child and Family Services (DCFS) located Mr. Antoine in the Calcasieu Parish Correctional Center where he remains today. Mr. Antoine is awaiting trial for attempted first degree murder, two counts of armed robbery, theft of a motor vehicle, aggravated assault with a firearm, aggravated burglary, and simple criminal damage to property. He has also been charged with second degree battery for an incident that occurred during his incarceration.

The State filed a petition to terminate the rights of Mr. Antoine and Ms. Richardson. At trial, Mr. Antoine testified that he takes medication for psychiatric issues, but he was recently found competent to stand trial. He denied any continuing issues with his mental health. He admitted that he has never had contact with O.L.R. or supported her in any way. He admitted that he was aware that the State formulated a case plan for him to become involved in O.L.R.’s life but that he had not undertaken any steps to follow the case plan. He testified that his incarceration prevented him from following the case plan, and he would be unable to follow the plan until he was released from prison.

O.L.R.’s foster mother also testified at trial. She stated that she has been caring for O.L.R. since the child was released from the hospital shortly after birth. O.L.R. calls her “mama,” and the child is thriving in her care. She seeks to adopt O.L.R. and provide her a permanent home.

After hearing the testimony and receiving additional evidence, the trial court entered judgment terminating the parental rights of Mr. Antoine and Ms. Richardson. Mr. Antoine appeals.

III

LAW AND DISCUSSION

Standard of Review

A trial court’s findings on whether 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. Moreover, whether a parent has complied with a case plan, the expected success of rehabilitation, and the expectation of significant improvement in the parent’s condition or conduct are all questions of fact that may not be set aside in the absence of manifest error or unless clearly wrong. State ex rel. S.C.M., 43,441 (La.App. 2 Cir. 6/4/08), 986 So.2d 875.

Termination of Parental Rights

Mr. Antoine argues that the trial court erred in terminating his parental rights under La.Ch.Code art. 1015(5) because DCFS did not prove its case by clear and convincing evidence. While parents have a constitutionally protected liberty interest in establishing and maintaining a meaningful relationship with their children, the State has a legitimate interest in limiting or terminating parental rights under certain conditions. State in the Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719, cert. denied, 515 U.S. 1128, 115 S.Ct. 2291, 132 L.Ed.2d 292. To terminate parental rights, one of the grounds for termination set forth in La.Ch.Code art. 1015 must be established by clear and convincing evidence, and termination must be found to be in the child’s best interest. State ex rel. D.L.R., 08-1541 (La.12/12/08), 998 So.2d 681.

The State sought termination based on the grounds set forth in La.Ch.Code art. 1015(5):

L(5) Unless sooner permitted by the court, at least one year has elapsed since a child was l’emoved 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.

Lack of parental compliance with a case plan may be evidenced by one of the following factors: (1) failure to attend court-approved scheduled visitations; (2) failure to communicate with the child; (3) failure to keep DCFS apprised of his whereabouts and significant changes affecting his ability to comply with the case plan; (4) failure to contribute to the costs of the child’s foster care, if ordered by the court when approving the case plan; (5) failure to comply with the required program of treatment and rehabilitation services provided in the case plan; (6) lack of substantial improvement in redressing the problems preventing reunification; or (7) persistence of conditions that led to removal or similar potentially harmful conditions. La.Ch.Code art. 1036(C).

Moreover, lack of any reasonable expectation of significant improvement in the pai'ent’s conduct in the near future may be shown by a pattern of repeated incarceration that has rendered the parent unable to care for the immediate and continuing physical or emotional needs of the child for extended periods of time. La.Ch. Code art. 1036(D)(2). It may also be shown by other conditions or conduct that reasonably indicate that the parent is unable or unwilling to provide an adequate permanent home for the child for an extended period of time, based on expert opinion or an established pattern of behavior. La.Ch.Code art. 1036(D)(3).

1 =;Our review of the record shows that DCFS proved the grounds for termination under La.Ch.Code art. 1015(5) by clear and convincing evidence. Mr. Antoine admitted that he has never had contact with O.L.R. nor has he provided any type of support. Moreover, Mr. Antoine’s testimony, along with the evidence introduced into the record, establishes Mr. Antoine’s lack of substantial compliance with his case plan and the lack of any reasonable expectation of significant improvement in his conduct. Mr. Antoine admits that he will be unable to even attempt his case plan until he is released from prison. Considering the multitude of charges he faces, coupled with his less than favorable behavior while incarcerated, we have serious doubts about Mr. Antoine’s ability to complete his case plan.

Mr. Antoine blames his failure to complete his case plan on the fact that he has been incarcerated most of O.L.R.’s life. Imprisonment is not an excuse to escape parental obligations. State ex rel. C.M.O., 04-1780 (La.App. 4 Cir. 4/18/05), 901 So.2d 1168. Incarceration is not a defense to failure to support or maintain contact with one’s children in a termination of parental rights case, particularly because incarceration results from one’s actions. State ex rel. M.H. v. K.W.H., 40,332 (La.App. 2 Cir. 9/23/05), 912 So.2d 88. Mr. Antoine’s conduct and actions led to his incarceration; thus, he cannot use his incarceration as an excuse for abandoning O.L.R. or failing to substantially comply with his case plan. He has not made an attempt to contact O.L.R. or to provide support to her in any way. Considering these failings, the State clearly and convincingly proved Mr. Antoine’s lack of parental compliance with the case plan and that there is no reasonable expectation of significant improvement in his conduct in the near future. Given O.L.R.’s young age and her need for a safe, stable, and permanent | fihome, termination was in her best interest and appropriate under La.Ch.Code art. 1015(5).

IV.

CONCLUSION

For the reasons articulated above, we affirm the judgment of the trial court. Costs of this appeal are assessed against Hubert Antoine.

AFFIRMED.

      . DNA testing has since confirmed that Mr. Antoine is the biological father of O.L.R.


author: AMY, Judge.

text:
    OBEY FINANCIAL GROUP, INC. v. Archie BLUE, Jr., et al. Obey Financial Group, Inc. v. Archie Blue, Jr., et al.
    Nos. 13-554, 13-731.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.

      John D. Ryland, Provosty, Sadler, de-Launay, Fiorenza & Sobel, Alexandria, LA, for Defendants/Appellees, Stone Street Capital, LLC, Stone Street Financial, Inc., Maple Life Financial, Inc.
    Robert J. David, Jr., Lafayette, LA, for Defendant/Appellee, Nation Union Fire Insurance Company of Pittsburgh.
    Gregory Engelsman, Bolen, Parker & Brenner, Ltd., Alexandria, LA, for Defendant/Appellee, Sydney Grider.
    Ryan E. Johnson, Jones Walker, LLP, Baton Rouge, LA, for Defendant/Appellee, Transamerica Financial Advisors, Inc.
    Michael J. Floyd, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Plaintiff/Appellant, Obey Financial Group, Inc.
    Archie Blue, Jr., Alexandria, LA, in Proper Person.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and BILLY HOWARD EZELL, Judges.
   AMY, Judge.

_JjWith the alleged assistance of a financial advisor, a casino jackpot winner assigned a number of his annual installment payments to a company in exchange for immediate payment. A creditor of the jackpot winner filed this matter against the investment firm of the financial advisor alleging a breach of fiduciary duty owed to the jackpot winner. The defendant investment firm filed an exception of lack of subject matter jurisdiction in light of an arbitration clause in the client agreement entered into between the financial advisor and the jackpot winner. The trial court denied the exception of lack of subject matter jurisdiction, but sustained exceptions of prescription and peremption upon finding that the plaintiffs oblique action did not relate back to initial petitions. The plaintiff and the defendant investment firm seek review in this consolidated matter. For the following reasons, we reverse the underlying ruling and sustain the exception of lack of subject matter jurisdiction. We also grant the motion to stay pending arbitration.

Factual and Procedural Background

Upon winning a multi-million dollar casino jackpot in 1997, Archie Blue accepted a twenty-year annual payout option. Thereafter, in 2006, Mr. Blue sought the assistance of Sydney Grider, an investment advisor with Transamerica Financial Advisors, Inc. (TFA), and established an account with the company. As set forth below, the client agreement confected pursuant to that relationship included an arbitration clause. In April 2006 and July 2007, and with the alleged assistance of Mr. Grider, Mr. Blue contracted with Stone Street Capital, Inc. for the sale of a number of his future annual payments from the casino winnings.

This suit was filed by Obey Financial Group, Inc., in April 2010 in its attempt to collect on a 2007 judgment it obtained against Mr. Blue in the Ninth |2Judicial District Court. By its “Petition in a Revo-catory Action[J” Obey prayed that Mr. Blue’s 2007 assignment of three of his future annual payments be declared a nullity. It named Mr. Blue, Mr. Grider, and an alleged successor in interest to Stone Street as defendants. Obey maintained its prayer in several supplemental petitions, but modified the entities named as defendants.

In a March 2012 fourth amended and restated petition and in a August 2012 fifth amended and restated petition, Obey named TFA as a defendant. Therein, Obey alleged that Mr. Grider was an employee of TFA at the time “he arranged” for the April 2006 and July 2007 sales of Mr. Blue’s future annual payments. In addition to its continued prayer regarding the nullity of the second sale of future installments, Obey alleged that Mr. Gri-der’s conduct was a breach of the fiduciary duty owed to Mr. Blue. It asserted that the breach caused Mr. Blue loss of income and increased his insolvency. Obey sought damages for that breach of fiduciary duty in order to satisfy Mr. Blue’s indebtedness to Obey.

In response, TFA filed an exception of lack of subject matter jurisdiction and related motion to stay pending arbitration asserting that Obey’s petition, at least to the oblique action against it, must be arbitrated subject to its account agreement with Mr. Blue.

TFA also urged alternative exceptions of prescription and peremption and no cause of action. According to TFA’s pleading, it advanced the pleadings “on the grounds that the plaintiffs oblique action has prescribed or perempted under Louisiana Civil Code Article 2041 and because the Amended Petition fails to Rstate [a] claim for breach of fiduciary duty, the underlying claims the plaintiff attempts to assert obliquely against TFA.” TFA urged in an appended footnote that it “asserts these exceptions in the alternative, only in the event that the Court determines that arbitration is not required.” It further stated that: “TFA does not, by asserting these exceptions, waive or in any way concede that the Court has subject matter jurisdiction over the claims against TFA or the enforceability of the arbitration provision at issue.”

Following a hearing, the trial court denied TFA’s exception of lack of subject matter jurisdiction and the related motion to stay. Although it acknowledged the existence of the arbitration agreement, it found that the transaction at issue in the oblique action fell outside of its scope.

However, the trial court sustained TFA’s alternative exceptions of prescription and peremption. It noted that the plaintiffs oblique action against TFA was first lodged in the fourth amended and restated petition, more than one year after discovery of, and three years from, the alleged breach of fiduciary duty in May 2007. Thus, under La.Civ.Code art.2041, the oblique action was found to have both prescribed and perempted in light of the occurrence and discovery of the alleged breach. The trial court rejected Obey’s contention that the oblique action of the fourth amended petition “related back” to the filing of the initial petition. Rather, the trial court observed that Book III, Chapter 12 of the Louisiana Civil Code provides for both the revocatory action and the oblique action. However, |4the trial court explained that the actions are separate and distinct. In the resulting judgment, the trial court dismissed the plaintiffs claims against TFA.

Both parties seek review of the trial court’s ruling in this court. TFA files an application for supervisory writs in which it asks for review of the denial of its exception of lack of subject matter jurisdiction. Obey appeals the sustaining of the exceptions of prescription and peremption. Additionally, TFA answers that appeal, urging the correctness of the sustaining of the exceptions and arguing that, even if this court determines that the matter was not prescribed or perempted, it should maintain dismissal of Obey’s claims in light of the arbitration agreement. This court consolidated the matters for review.

Discussion

Exception of Lack of Subject Matter Jurisdiction

In light of its foundational nature, we first address TFA’s contention that the arbitration provision in the client agreement confected between Mr. Blue and Mr. Grider/TFA is applicable in this case. In light of this argument, TFA asserts that the trial court lacked subject matter jurisdiction and was required to grant its motion to stay proceedings pending arbitration. However, Obey urges that the trial |5court correctly ruled that the underlying cause of the breach of fiduciary suit arose outside of the TFA client agreement.

Certainly, arbitration agreements are favored under both federal and state law. See 9 U.S.C. § 2; La.R.S. 9:4201. In Louisiana, La.R.S. 9:4201 provides that:

A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part thereof, or an agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

When presented with a motion to stay in the presence of a party’s claim of an applicable arbitration agreement, as here, a trial court shall stay the trial after determination “(1) that there is a written arbitration agreement, and (2) the issue is referable to arbitration under that arbitration agreement, as long as the applicant is not in default in proceeding with arbitration.” Coleman v. Jim Walter Homes, Inc., 08-1221, p. 5 (La.3/17/09), 6 So.3d 179, 182; See also Breaux v. Stewart En terprises, Inc., 04-1706 (La.10/8/04), 888 So.2d 983.

Obey does not contest, in this case, the presence of a written arbitration agreement in the “TFA One Program Client Agreement” entered into between Mr. Blue and TFA. Rather, it contests the scope of the arbitration agreement and, therefore, whether Mr. Blue consented to arbitrate the alleged tort of breach of fiduciary duty in Mr. Blue’s sale of his future payment installments to Stone Street. Of course, Obey alleges that the sale was facilitated by Mr. Grider.

The TFA client contract, entered into evidence at the hearing on the exception, indicates generally that:

This agreement (“Agreement”) is entered into by and between Transamerica Financial Advisors, Inc. (“TFA”), a registered broker-dealer and registered investment advisor, Sydney Grider, a registered | ^representative of TFA and an independent investment advisor or Investment Advisor Representative of TFA (“Advisor”) and Archie Blue, Jr. (“Client”).

In setting forth the “Services to Be Rendered,” the agreement provides that:

Advisor will assist Client to determine if the TFA One Program (“Program”) is suitable for the Client. Client will furnish Advisor with complete and accurate information regarding Client’s current financial situation, including his/her investment goals and objectives, to enable Advisor to complete a questionnaire. If the Program is deemed to be suitable for the Client, Advisor will utilize his/her preferred asset allocation techniques to develop an individualized investment strategy for Client, which will be based upon, among other things, Client’s investment objectives, risk tolerance and time horizon. Client acknowledges that it is Client’s responsibility to provide Advisor with updated information, as necessary, and that Advisor, TFA and all other persons affiliated with Advisor and/or TFA have the right to rely on such information. Advisor will be available to Client on an ongoing basis to receive deposit and withdrawal instructions and to ascertain any changes in the Client’s financial circumstances and/or investment objectives.
By executing this Agreement, Client is hereby opening a TFA One Account (“Account”) through which Client will authorize Advisor to purchase and sell/redeem, at Client’s direction, certain securities including, but not limited to, no load and load-waived mutual funds, stocks and bonds.
The minimum account size is $25,000. Client may make additional cash deposits to the account at any time and may withdraw account assets on notice to Advisor.
TFA and Advisor will provide Client with periodic reports, including monthly brokerage statements and detailed quarterly performance reports.

As central to this suit, the arbitration clause, contained within the client agreement, provides:

|712. ARBITRATION
(a) Arbitration Disclosure
• ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
• THE PARTIES WAIVE THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL.
• PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS
• THE ARBITRATOR’S AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OR RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
(b) Arbitration Requirement
Any dispute involving Client, TFA and/or Advisor relating to this Agreement that cannot be settled shall be settled as set forth in paragraph (c) below:
(c) Arbitration Agreement
Arbitration. Mandatory Arbitration. Any controversy or claim between or among Client, TFA and/or Advisor including but not limited to those arising out of or relating to the Agreement or any related agreements, including any claim based on or arising from an alleged tort, shall be determined by binding arbitration in accordance with the Federal Arbitration Act (or if not applicable, the applicable state law), the rules of Practice and Procedure for the Arbitration of Commercial Disputes of Judicial Arbitration and Mediation Services, Inc. (“JAMS”) and the “Special Rules” set forth below. In the event of any inconsistency, the Special Rules shall control. Judgment upon any arbitration award may be entered in any court having jurisdiction. Client, TFA and/or Ad-visor may bring an action, including a summary or expedited proceeding, to compel arbitration of any controversy or claim to which this Agreement applies in any court having jurisdiction over such action.

| Jn its denial of the exception of lack of subject matter jurisdiction, the trial court concluded that:

[T]he claim Obey seeks to enforce through its oblique action does not arise out of the TFA One Program Client Agreement, and as such, the arbitration clause contained in this agreement is not binding on the parties. The Court is of the opinion that when Mr. Blue sold his payments to Stone Street, this was a separate transaction from that of the investment dealings with TFA. Because this was a separate dealing, to which TFA was not a part of, the TFA agreement, and arbitration clause contained therein, is not binding on Obey. As such, Obey’s Exception of Lack of Subject Matter Jurisdiction and its Motion to Stay are denied.

On review, we find no error on an underlying conclusion that Mr. Blue and TFA, through Mr. Grider, executed a valid arbitration clause. Instead, we find error in the trial court’s resolution of the second prong of the inquiry, i.e., whether the issue to be resolved is referable to arbitration under the arbitration agreement. While the trial court determined that the transaction(s) between Mr. Blue and Stone Street did not arise from the client agreement with TFA and, therefore, the arbitration agreement was inapplicable, we conclude that such an interpretation incorrectly resolves the case solely by reference to Paragraph (B) of the arbitration agreement.

As seen above, Paragraph (B) dictates that disputes “relating to” the “TFA One Program Client Agreement” that cannot be settled must proceed to arbitration pursuant to Paragraph (C). However, Paragraph (C), independently provides that:

Any controversy or claim between or among Client, TFA and/or Advisor including but not limited to those arising out of or relating to the Agreement or any related agreements, including any claim based on or arising from an alleged tort, shall be determined by binding arbitration ip accordance with the Federal Arbitration Act....

|9Pointedly, the language indicates that the arbitration requirement is “not limited to” claims arising out of or relating to “the Agreement.” It instead applies to “[a] controversy or claims” between the designated actors, including those claims arising from “related agreements.” Further, it is specifically applicable to “any claim based on or arising from an alleged tort[.]” The oblique action advanced by Obey’s claim, breach of fiduciary duty, is such a tort claim.

Also, Obey’s oblique action, i.e., breach of fiduciary duty, obviously alleges the existence of a fiduciary relationship. It is difficult to conceive of how such a fiduciary relationship existed outside of the very contract on which such a claim could be based. Accordingly, we find that the trial court erred in determining that Obey’s oblique action, by which it purportedly advanced Mr. Blue’s breach of fiduciary duty claim, is not within the scope of the arbitration clause. Rather, the underlying action involved a claim between Mr. Blue and Mr. Grider/TFA. Furthermore, the claim sounds in tort. Given the specific language of the arbitration clause, it is apparent that the trial court lacked subject matter jurisdiction to consider the matter further.

In finding that the arbitration agreement is applicable, we recognize Obey’s contention that the arbitration agreement at issue should be rejected as ambiguous, and therefore unconscionable, under California law. On this point, and in addition to the client agreement, the TFA client contract contains a choice of law provision as follows: •, ■

11. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of California (without giving any effect to any principals of conflicts of laws) to the extent that such state law is not preempted by the provisions of any law of the United States, |! (Including, without limitation, the Ad-visors Act and the rules and regulations of the Securities and Exchange Commission thereunder.

Citing this provision, Obey contends that the California case of Hartley v. Superior Court, 196 Cal.App.4th 1249, 127 Cal. Rptr.3d 174 (2011), demonstrates that the arbitration clause is ambiguous and should be severed from the TFA client agreement via its severability provision. However, in Hartley, the California court considered an arbitration agreement that included language allegedly making the question of the scope of arbitrability one for the arbitration panel. Id. Recognizing that such a threshold question is typically one for the trial court, it noted federal jurisprudence indicating that the question can, in fact, be arbitrated. Id. (citing AT & T Technologies, Inc. v. Communications Workers of America 475 U.S. 643, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). However, that issue can only be reserved for arbitration by the use of clear and unmistakable evidence. Id. In consideration of that “heightened standard,” the California Court concluded that the clause was ambiguous as to the selection of the trier of the arbitrability question. Id. at 1257, 127 Cal.Rptr.3d 174. It, therefore, found the plaintiff entitled to a judicial declaration as to the issue of arbitrability.

This case, however, does not involve an ambiguity of the “threshold dispute” of arbitrability. Id. at 1253, 127 Cal.Rptr.3d 174. Instead, that issue has been presented to the trial court and, in turn, this court as reflected by this ruling.

Accordingly, we reverse the trial court’s denial of the exception of lack of subject matter jurisdiction and enter judgment sustaining that exception. Furthermore, we enter judgment sustaining TFA’s motion to stay proceedings pending arbitration.

| ^Exceptions of Prescription and Peremption

In light of the above determination, we do not address Obey’s claim on appeal that the trial court erred in sustaining TFA’s exceptions of prescription and pei*emption. We recognize TFA’s assertion in its application for supervisory writs and in its answer to Obey’s appeal that this court should grant its exception of lack of subject matter jurisdiction only in the event of a reversal of the sustaining of the exceptions of prescription and peremption. However, the foundational nature of the exception of lack of subject matter jurisdiction dictates that it be first considered, as we have above. We further note that, in initially setting forth its combined exceptions at the trial court level, TFA explicitly urged the trial court to consider its exceptions of prescription and peremption only in the event that it found no merit in its exception of subject matter jurisdiction.

Finally, and in light of our judgment on the subject matter jurisdiction issue, we specifically do not resolve the question of the appropriate forum for consideration of the timeliness issue. Parker v. St. Tammany Par. Hosp. Serv. Dist., 94-2278 (La.App. 1 Cir. 2/27/96), 670 So.2d 531 (wherein the first circuit determined that an exception of prescription arising from the merits of the underlying controversy being submitted to arbitration must be submitted to the arbitration panel rather than being considered by the trial court), writ denied, 96-0805 (La.5/10/96), 672 So.2d 925.

For these reasons, and without addressing the merits of TFA’s exceptions of prescription and peremption, it is necessary to reverse the trial court’s sustaining of the exceptions of prescription and peremption. We do so in the judgment rendered below.

112DECREE

For the foregoing reasons, the judgment of the trial court is reversed in full. Judgment is entered in favor of Transamerica Financial Advisors, Inc. and its exception of lack of subject matter jurisdiction is sustained. Judgment is further entered, granting its motion to stay proceedings in the district court pending arbitration proceedings. Costs of this proceeding are assessed to Obey Financial Group, Inc.

REVERSED. EXCEPTION OF LACK OF SUBJECT MATTER JURISDICTION SUSTAINED. MOTION TO STAY PENDING ARBITRATION GRANTED.

      1. Louisiana Civil Code Article 2041 provides that: "The action of the obligee must be brought within one year from the time he learned or should have learned of the act, or the result of the failure to act, of the obligor that the obligee seeks to annul, but never after three years from the date of that act or result.”

      . Book III of the Louisiana Civil Code, entitled "Of the Different Modes of Acquiring the Ownership of Things” provides for the revo-catory and oblique actions in Chapter 12, Sections 1 and 2, respectively.

      . Louisiana Civil Code Article 2036, entitled "Act of the obligor that causes or increases his insolvency!,]" provides for the revocatory action as follows:
      An obligee has a right to annul an act of the obligor, or the result of a failure to act of the obligor, made or effected after the right of the obligee arose, that causes or increases the obligor's insolvency.

      . The oblique action, wherein a creditor exercises a right to belonging to the debtor in the debtor’s name, is governed by La.Civ.Code art.2044. Louisiana Lift & Equip. v. Eizel, 33,747 (La.App. 2 Cir. 11/1/00), 770 So.2d 859. Article 2044, entitled "[i]nsolvency by failure to exercise right!,]” provides for the oblique action as follows:
      If an obligor causes or increases his insolvency by failing to exercise a right, the obligee may exercise it himself, unless the right is strictly personal to the obligor.
      For that purpose, the obligee must join in the suit his obligor and the third person against whom that right is asserted.

      . Although of only peripheral interest in this case, we include the arbitration clause's final provision for sake of completeness:

        Special Rules

      The arbitration shall be conducted and administered by JAMS who will appoint an arbitrator; if JAMS is unable or legally precluded from the arbitration, the American Arbitration Association will serve. All arbitration administering hearings will be commenced within 90 days of the demand for arbitration; further the arbitrator shall only, upon a showing of cause, be permitted to extend the commencement of such hearing for up to an additional 60 days. Client, TFA and/or Advisor shall have the right to seek ancillary remedies (e.g. temporary restraining order, permanent injunction or other relief) and such action shall not be considered a waiver of such party’s right to compel arbitration of other claims arising hereunder.


author: JOHN D. SAUNDERS, Judge.

text:
    Martha LEWIS, et al. v. PROGRESSIVE PALOVERDE INSURANCE COMPANY, et al.
    No. 13-617.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 6, 2013.
    Jeffrey A. Rhoades, Swift & Rhoades, Lafayette, LA, for Defendant/Appellant United Services Automobile Association.
    Henry Gerard Terhoeve, Guglielmo, Marks, Schutte, Terhoeve & Love Law Firm, Baton Rouge, LA, for Defendants/Appellants Progressive Paloverde Ins. Co. Kassie Jacobs.
    Byron O’Neal, O’Neal Law Firm, Alexandria, LA, for Plaintiffs/Appellees Martha Lewis, Eternity Lewis.
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and Phyllis M. Keaty, Judges.
   JOHN D. SAUNDERS, Judge.

11 Defendants appeal a trial court judgment in favor of Plaintiffs, Eternity Lewis and Martha Lewis, in which the trial court found Defendants liable for damages arising out of a motor vehicle accident and awarded Plaintiffs $15,000 for general damages and $2,304.01 for medical specials. The trial court awarded Martha Lewis $2,000 for loss of consortium. We affirm as amended, reducing the award of general damages from $15,000 to $7,500.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Eternity Lewis, and Defendant, Kassie Jacobs, were involved in a motor vehicle accident in a grocery store parking lot on September 6, 2011. Both drivers were backing out of adjacent parking spots with their vehicles back-to-back. Eternity testified that when Ms. Jacobs’s car came into contact with her car, her car was stopped. She testified that her head hit the steering wheel while her shoulder and right knee hit the dashboard. She had no passengers in her car. On September 13, 2011, she visited Dr. Robert K. Rush, M.D., who diagnosed her with cervical strain, lumbar strain, right shoulder trauma, right sacroiliac strain, and right knee trauma. She underwent treatment consisting of medication and physical therapy. Dr. Rush testified at trial that on October 12, 2011, Eternity “had experienced resolution of her neck, back, and knee pain, no headaches, completed the course of therapy, [and] was released from physical therapy.” Dr. Rush also testified it was possible that she would have future “flare ups” after this resolution, but Eternity has not sought treatment since. Eternity testified that prior to the accident she had no problems with her right knee, shoulder, or headaches. Her medical bills totaled $2,304.01.

At the time of the accident, Eternity was seventeen years old; at the time of the trial court’s judgment she was eighteen. Eternity’s mother, Martha Lewis, filed |2suit on Eternity’s behalf against Ms. Jacobs, Ms. Jacobs’s liability insurer Progressive Paloverde Insurance Company (hereinafter “Progressive”), and the Lewis family’s underinsured/uninsured motorist insurer United Services Automobile Association (hereinafter “USAA”).

Martha also asserted her own loss of consortium claim against all Defendants. Martha testified at trial that she is being treated for cancer and that she depends on all three of her children for household help. She testified that Eternity performed cleaning tasks around the house every other night. She further testified that after the accident, Eternity could not vacuum because it caused back pain and that two months passed before Eternity could get back to her regular routine of chores.

After a bench trial on September 21, 2012, the trial court found Ms. Jacobs was solely at fault for the accident. The court awarded Plaintiffs $15,000 in general damages, $2,304.01 in medical specials, and $2,000 for loss of consortium. The Progressive policy’s limit is $15,000 per person/$30,000 per occurrence, and the USAA policy would activate once the Progressive policy’s limit had - been reached. The USAA’s policy’s limit is also $15,000/$30, 000. All Defendants appeal the judgment.

ASSIGNMENTS OF ERROR

On appeal, Defendant USAA asserts the following assignments of error:

1. The general damage award of $15,000 for soft tissue injuries that completely resolved within 36 days of the accident was excessive and not supported by the evidence.
2. The loss of consortium award of $2,000 to the plaintiff mother was not supported by the evidence and should be reversed in toto.
3. The trial court’s judgment incorrectly made the damage awards jointly to the mother and daughter plaintiffs.

Defendants, Kassie Jacobs and Progressive, assert the following assignments |3of error:

1. The thirty six (36) days of symptoms which improved over the course of the thirty six (36) days for a soft tissue injury does not support a general damage award of $15,000.
2. A loss of Consortium Award of $2,000 to the mother of the plaintiff when the plaintiff had less than thirty six (36) days of symptoms is not supported by the evidence.
3. The trial court judgment is erroneously worded and needs to segregate the claims of both plaintiffs.

LAW AND ANALYSIS

General Damages

General damages “may not be fixed with pecuniary exactitude; instead, they ‘involve mental or physical pain or suffering, inconvenience, the loss of intellectual gratification or physical enjoyment, or other losses of life or life-style which cannot be definitely measured in monetary terms.’ ” Duncan v. Kansas City S. Ry. Co., 00-66 (La.10/30/00), 773 So.2d 670, 682 (quoting Keeth v. Dep’t of Pub. Safety & Transp., 618 So.2d 1154, 1160 (La.App. 2 Cir.1993)).

This court has summarized the standard of review for an award of general damages as follows:

The discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.
Only after an abuse of discretion is disclosed by an articulated analysis of the facts is an examination of prior awards in similar cases proper; an abusively low award is raised to the lowest amount the trier of fact could have reasonably awarded, while an abusively high award is reduced to the highest amount the trier of fact could have reasonably awarded. The proper procedure for examining whether an award is excessive is to determine whether the amount can be supported under the interpretation of the evidence, most favorable to the plaintiff, which reasonably could have been made by the trier of fact.
LBefore a trial court’s award of damages can be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the instant case. A damage award should not be disturbed by the reviewing court absent a showing of a clear abuse of discretion.

Plaissance v. McDonald, 03-1043, p. 4 (La.App. 3 Cir. 2/4/04), 865 So.2d 1004, 1008, writ denied, 04-585 (La.4/23/04), 870 So.2d 305 (quoting Hunt v. Long, 33,395, pp. 4-5 (La.App. 2 Cir. 6/21/00), 763 So.2d 811, 815-16 (citations omitted)); see also La. Civ.Code art. 2324.1.

Defendants challenge the award of $15,000 in general damages, arguing the evidence cannot support this amount and that it is therefore excessive. We agree. With all evidence interpreted in Eternity’s favor, it is clear from the record that Eternity experienced only slight inconvenience and pain and suffering for which physical therapy was a fast and effective remedy. She was unable to do chores in order to assist her mother and bore the inconvenience of physical therapy. She experienced enough physical pain to warrant pain medication although her symptoms ceased completely in just over one month. The record shows no indication that her life was otherwise impacted by her injuries. Considering the modest degree of pain and suffering and inconvenience, along with the lack of other grounds for general damages, we have no choice but to reduce the general damages award granted by the trial court. We are mindful that an appellate court should rarely disturb such an award. See Youn v. Mar. Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). However, these facts clearly do not support an award of $15,000. This award is an abuse of the trial court’s discretion and must be reduced to the highest amount the trial court could have reasonably awarded.

| sAll Defendants ask this court to reduce the award of general damages to $1,500. To determine the highest reasonable amount, we first must consider the specific injuries that Eternity suffered as well as any other circumstances of her individual case. These are summarized above. Second, we may use prior awards to consider “whether the present award is greatly disproportionate to the mass of past awards for truly similar injuries” and to determine the highest reasonable amount. Theriot v. Allstate Ins. Co., 625 So.2d 1337, 1340 (La.1993).

Looking to past awards, in Williams v. Roberts, 05-852 (La.App. 5 Cir. 4/11/06), 930 So.2d 121, the plaintiffs car was rear-ended and the plaintiff sustained a soft tissue injury that resolved in three months. The appellate court reduced the trial court’s award of $14,000 in general to damages to $7,500. In Johnson v. Castleberry, 42,648 (La.App. 2 Cir. 10/24/07), 968 So.2d 352, the plaintiff underwent physical therapy for injuries that resolved in about a month, but resumed physical therapy a year later for four months as he continued to have pain from the accident. The appellate court found that the trial court was not clearly wrong in awarding $7,500 for general damages. In Moraus v. Frederick, 05-429 (La.App. 3 Cir. 11/2/05), 916 So.2d 474, the plaintiff received treatment for soft tissue injuries to his upper arm, shoulder, and neck following an accident. The appellate court found that the trial court’s award granting the plaintiff $3,500 per month for the first two months and an average of $2,625 per month overall was not an abuse of its discretion. In Gilliard v. Collins, 42,460 (La.App. 2 Cir. 11/7/07), 969 So.2d 786, the appellate court found that the trial court’s award of $6,801.80 for general damages was not abusively high for soft tissue injuries resulting from an automobile accident and requiring one month of treatment. In that case, the plaintiff was diagnosed with strain and spasm of the muscles in the cervical, |fithoracic and lumbar spine, the left shoulder, and left upper arm, and was treated with therapy three times per week.

In Hanna v. Roussel, 35,346 (La.App. 2 Cir. 12/5/01), 803 So.2d 261, the appellate court found that an award of $6,500 was not abusively high where an accident re-suited in damage to the plaintiffs eyeglasses and clothes, injuries to her hands, feet, and back, and emotional trauma. The appellate court found that $6,500 was “on the higher end of a reasonable award,” but not abusively so. Id. at 268. In Dixon v. Tillman, 29,488 (La.App. 2 Cir. 5/7/97), 694 So.2d 585, writ denied, 97-1430 (La.9/19/97), 701 So.2d 174, where both plaintiffs suffered sprains which resolved in a little over two months, during which time the plaintiffs were treated with medication, the appellate court reduced the award of general damages from $7,500 for each plaintiff to $5,000 for one plaintiff and $3,000 for the other. In Cole v. Pool, 34,329 (La.App. 2 Cir. 12/6/00), 774 So.2d 1081, wherein the plaintiff was treated for injuries for six weeks by medication, heat and ultrasound, and the activities curtailed by the plaintiffs injuries were mowing the grass and cleaning the house, the appellate court reduced the award of general damages from $6,000 to $4,500.

Considering Eternity’s individual circumstances as well as other awards in similar cases, this court finds that $7,500 is the highest amount the trial court could have reasonably awarded. Therefore, we reduce the abusively high amount of $15,000 to $7,500 in general damages.

Loss of Consortium

The elements of a loss of consortium claim for which the parent of an injured person may be compensated are loss of society, service, and support. La.Civ.Code art. 2315(B); Vidrine v. Gov’t Employees Ins. Co., 528 So.2d 765 (La.App. 3 Cir.1988), writ denied, 532 So.2d 156 (La.1988).

17“The trier of fact is given much discretion in awards for loss of consortium and will not be overturned on appeal in the absence of manifest error.” Bellard v. South Cent. Bell Tel. Co., 96-1426, p. 21 (La.App. 3 Cir. 8/27/97), 702 So.2d 695, 707, writ denied, 97-2415 (La.12/12/97), 704 So.2d 1202 (citing Doucet v. Doug Ashy Bldg. Materials, Inc., 95-1159 (La. App. 3 Cir. 4/3/96), 671 So.2d 1148; Lonthier v. Northwest Ins. Co., 497 So.2d 774 (La.App. 3 Cir.1986)). Because factfinders must make determinations regarding witnesses’ credibility, “the manifest error-clearly wrong standard demands great deference to the trier of fact’s findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

All Defendants ask this court to reverse in toto the $2,000 award of loss of consortium damages. Martha testified at trial that she suffered a loss of service as a result of the accident because Eternity’s injuries prevented her from helping Martha with household chores. This is supported in the record by Eternity’s testimony as well; Plaintiffs argue that under their individual circumstances this was an especially great loss because Martha was undergoing cancer treatment which made it difficult for her to care for her home. Defendants argue that because Eternity shared these duties with her other two siblings, who were able to take over her share of the work while she was injured, loss of consortium damages are not warranted in this case. Given the trial court’s vast discretion, with all inferences taken in favor of the Plaintiffs and without disturbing the trial court’s assessment of witness credibility, we find that this evidence sufficiently supports the trial court’s award of $2,000 to Martha for loss of consortium.

| fjoint Award

Martha filed the original claim for damages on behalf of Eternity as parent/guardian of Eternity because Eternity was a minor at the time of the accident. Martha filed the loss of consortium claim on behalf of herself. Eternity had reached the age of majority by the judgment date. The trial court properly segregated the Plaintiffs’ awards in its written reasons for judgment, which granted general damages and medical specials to Eternity and loss of consortium damages to Martha. Defendants note that this distinction is improperly omitted from the judgment, which grants general damages and medical specials separately from loss of consortium damages, but grants each type of damages to both Eternity and Martha. The judgment should properly have segregated the awards as they were segregated in the written reasons for judgment. We amend in that regard.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is hereby amended to reduce the award of general damages to Plaintiff, Eternity Lewis, from $15,000 to $7,500. Also, general damages and medical specials are awarded solely to Eternity Lewis, and loss of consortium damages are awarded solely to Martha Lewis. The judgment is affirmed in all other respects. The costs of this appeal are assessed equally between Eternity Lewis and the Defendants/Appellants, Kassie Jacobs, Progressive Paloverde Insurance Company, and United Services Automobile Association.

AFFIRMED, AS AMENDED.