author: SUSAN M. CHEHARDY, Judge.

text:
    Diane GUEDRY v. Josie S. VITENAS.
    No. 08-CA-758.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 28, 2009.
    Rehearing Denied June 1, 2009.

      Thomas E. Loehn, Charles K. Chauvin, Boggs, Loehn & Rodrigue, Attorneys at Law, Metairie, LA, for Plaintiff/Appellee, Diane Guedry.
    Andrew L. Kramer, Elkins, P.L.C., Attorney at Law, New Orleans, LA, for Defendant/Appellant, Michael Vitenas, Curator Of The Interdict, Josie Scavona Vitenas.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MADELINE JASMINE, Pro Tempore.
   SUSAN M. CHEHARDY, Judge.

12This is a suit in redhibition or for quan-ti minoris arising out of the plaintiffs purchase of a house from the defendant. The trial court found the plaintiff entitled to a reduction of $40,000.00 in the purchase price. We reverse and render, finding the plaintiff failed to prove her claim had not prescribed.

FACTS

On July 30, 1999 Diane Guedry purchased 4809 Folse Drive in Metairie, Jefferson Parish, from Josie Vitenas for $490,000.00. The act of cash sale included an “as is” clause, also known as a waiver of redhibition.

On January 30, 2007 — seven-and-one-half years after purchasing the property— Guedry filed suit against Vitenas in redhi-bition and/or for quanti minoris. Guedry alleged that on or about June 21, 2006, she discovered “hidden and latent defects” that included “leaking plumbing pipes which caused damage to the sub floor of the master bathroom and flooding which caused damage to the walls, framing, and floors.” The plaintiff alleged that Vitenas knew about these defects, but never disclosed them to Guedry prior to the time of sale and that “said conditions were covered up, hidden and intentionally kept from the plaintiff.”

The plaintiff further alleged the condition was not discoverable without difficulty, inconvenience, or skill. Specifically, the plaintiff alleged that when the |3wall and ceiling finishes were removed for repairs, she discovered handwriting on the underlying covering of certain walls that stated, “northwest corner of play room full of water, water at the return duct between intercom and TV, kitchen powder room and hall, bar at the door.” She alleged further that at another location she discovered an arrow pointing up with the words, “to flood.”

Guedry asserted that the “hidden conditions” in the home constitute an exception to the “as is” language “because evidence found within the walls confirms that the conditions were known and hidden and not disclosed in the property disclosure statements, as they should have been.” The plaintiff alleged the seller had actual or constructive knowledge of the conditions or, alternatively, intentionally concealed the information from the purchaser and, as such, those actions of the defendant constituted a false inducement of the contract, which cannot be waived.”

The plaintiff stated she had employed an engineer to inspect the home, but “the damage had been covered up, hidden and concealed and thus could not be determined.” The hidden defects could be discovered only by taking the wall and ceilings apart. The plaintiff stated that had she known of these hidden defects, she would not have purchased the property.

She further alleged the defendant seller was in bad faith at the time of the sale, and because of the bad faith the plaintiff sought return of the purchase price; all costs incurred in connection with the sale, with moving into and out of the premises, and in preserving the premises; general damages; loss of cost of capital; attorney’s fees; and “all other damages for which recovery is permitted against the bad faith seller.” Alternatively, the plaintiff sought damages for diminution in value, plus general damages, attorney’s fees, and all related damages recoverable under the facts and circumstances.

|4The defendant, Josie Vitenas, responded with exceptions of no cause of action and prescription/peremption, which the trial court denied. Thereafter the defendant filed an answer, in which she admitted that the act of sale included an “as is” clause and that the plaintiff had the property inspected prior to its purchase, but denied liability. She raised as affirmative defenses her claims of no cause of action and prescription or peremption.

In February 2008, a judgment of full interdiction was entered against Josie Sea-vona Vitenas, in which Ms. Vitenas’ son, Michael Vitenas, was appointed her curator. In re Interdiction of Vitenas, 2006-4066 (Civ. Distr. Ct., Orleans 2/15/2008). Thereafter counsel for the defendant filed a motion to substitute Michael Vitenas, as curator for Josie S. Vitenas, as party defendant in this matter.

The matter proceeded to trial on March 13, 2008. Due to Mrs. Vitenas’ interdiction and her underlying condition, she could not testify at trial.

On April 29, 2008 the court rendered judgment in favor of the plaintiff and against the defendant, granting a reduction of purchase price in the amount of $40,000.00, with legal interest from date of judicial demand until paid. The court did not issue reasons for judgment.

The defendant appealed and the plaintiff answered the appeal.

On appeal the defendant assigns as error the trial court’s denial of the exception of prescription, the court’s admission in evidence of the writing on the wall, the court’s failure to enforce the waiver-of-redhibition clause, the damages award, and the assessment of costs for expert fees. The defendant urges this Court to review the.case de novo and to find that the wall writings were inadmissible evidence, that the plaintiff failed to prove fraud, and that the plaintiffs claims are prescribed, resulting in reversal of the district court’s judgment and dismissal of all claims with prejudice. Alternatively, the defendant asks us to reduce the judgment |Bin accordance with the evidence submitted at trial and to limit the expert fees of expert Leonard Quick to $1,250.00.

In her answer to the appeal, the plaintiff contends the trial court should have granted her rescission of the sale plus all related damages as a result of the defendant’s bad faith, including but not limited to all costs of the sale, all costs incurred in maintaining the property, all general damages, all special damages and in addition thereto, attorneys’ fees, court costs and interest under the laws pursuant to those applicable to a bad faith seller.

LAW AND ANALYSIS

A seller warrants to the buyer the absence of hidden defects in the thing sold, and also warrants that the thing sold is fit for its intended use. La.C.C. art. 2475.

Redhibition is the right of a buyer to obtain rescission of the sale when the thing sold has defects that render it useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. La.C.C. art. 2520. Alternatively, the buyer may be limited to a reduction of the purchase price when the defect does not render the thing totally useless, but diminishes its usefulness or value so that it must be presumed a buyer would still have bought it but for a lesser price. Id. In Louisiana jurisprudence, the reduction of the purchase price is referred to as quanti minoris.

The seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer of such things. La. C.C. art. 2521.

A seller who knows that the thing he sells has a defect but omits to declare it, or a seller who declares that the thing has a quality that he knows it does not have, is liable to the buyer for the return of the price with interest from the time it was paid, for the reimbursement of the reasonable expenses occasioned by the sale and those lfiincurred for the preservation of the thing, and also for damages and reasonable attorney fees.

La.C.C. art. 2545.

Prescription

The defendant-appellant asserts the district court erred when it allowed the plaintiff to maintain her prescribed redhi-bition lawsuit filed seven and a half years after the Act of Sale.

In a redhibition action for residential immovable property against a seller who did not know of the defect, prescription is one year from the day delivery of the property was made to the buyer. La.C.C. art. 2534(A)(2). Where the seller knew, or is presumed to have known, of the defect, prescription of the action for redhibition is one year from the day the defect was discovered by the buyer. La.C.C. art. 2534(B).

The allegations and prayer of the petition determine the true nature of the action and the applicable prescriptive period. Insurance Storage Pool, Inc. v. Parish Nat. Bank, 1997-2757, p. 4 (La.App. 1 Cir. 5/14/99), 732 So.2d 815, 817.

Hence, on trial of the exception of prescription to an action in redhibition, the issue is whether a year passed between the sale and the filing of the action, and if a year had so passed, whether the seller knew of the alleged vice and failed to disclose that fact to the buyer, in which case an added issue is whether the buyer filed suit within a year following his discovery of the alleged vice. Gustin v. Shows, 377 So.2d 1325, 1328 (La.App. 1 Cir.1979). The party pleading prescription has the burden of proof. Id.

Where prescription has tolled on the face of the petition, however, the buyer bears the burden of showing the claim has not prescribed and, in this respect, if bad faith of the seller was alleged, the buyer must prove the seller was in bad faith for |7La.C.C. art. 2534(B) to apply. Gustin v. Shows, 377 So.2d at 1328-1329. The plaintiffs cannot sit back and rely on the allegations of their petition, but must set forth evidence on the trial of the exception showing that the defendant was in bad faith. Insurance Storage Pool, Inc. v. Parish Nat. Bank, 1997-2757 at p. 8, 732 So.2d at 820.

Thus, the burden of proof at trial of the exception of prescription lay with the plaintiff, whose petition was prescribed on its face, to prove fraud on the part of the seller that would provide an exception to the one-year-from-date-of-sale prescriptive period of La.C.C. art. 2534(A)(2). In this case, the petition was filed within one year after the plaintiff discovered the defects. The petition alleged the defendant knew about the defects, but never disclosed them, but instead covered up and intentionally kept the conditions from the plaintiff. At trial of the exception, neither party presented evidence, but simply argument by counsel.

By failing to introduce any evidence on the issue of bad faith at the trial of the exception, the plaintiffs failed to prove the applicability of the discovery provision in Article 2534(B). Accordingly, the trial court erred in denying the exception of prescription. The exception should have been granted and the suit dismissed.

Alternatively, considering that the parties introduced evidence at trial on the merits, we address whether the evidence sufficiently established bad faith on the part of the seller, Mrs. Vitenas, to make Article 2534(B) apply.

The plaintiff, Diane Guedry, testified that when she had a contractor working on the house in 2006 to repair water damage and mold infestations from Hurricane Katrina, the contractor discovered there was preexisting damage inside the walls of the den and in the ceiling over it, which was directly under the floor of the master bathroom upstairs.

|sThe contractor who did the work, Ray Chatagnier, testified that he had to remove sheetrock in the room underneath the master bathroom. When he took out the sheetrock, he discovered the shower floor was rotten. He also found sheetrock underneath that which he had removed, on which there were handwritten notations that indicated the house had previously flooded in several rooms. He also saw water stains five to six inches high on the wall studs. The sheetrock with writing on it was admitted in evidence as Exh. P-13. The handwritten notations stated: “This corner, northwest, near play room full of water, shower full of water, water at the return duct, wet with T.V., kitchen, powder room and hall, bar at the door.” Chatagnier said the rooms mentioned in the notations are the same ones in which he saw water stains on the studs.

Chatagnier testified further that the subfloor of the master bathroom was made of three-quarter-inch plywood that was rotten, to the point that as his workers tore out the floor tile to start work, their feet went through it and fell through the ceiling of the room below. He had to tear up the floor to get to the subfloor and rotten spots. He discovered the shower floor pan was sitting directly on top of the joists with no subfloor beneath it, and no support in between the joists.

An expert forensic engineer, Leonard Quick, testified that the damage in the joists was due to long-term leakage of water, and that the water marks on the studs of the downstairs rooms indicated there had been water six to eight inches high.

The plaintiff also introduced the testimony of Lance Arnold, an attorney who formerly represented the defendants in this matter. Arnold was questioned regarding a January 2007 letter he sent to plaintiffs counsel during pretrial negotiations, in which Arnold stated, “I have reviewed the photos including the handwritten notations with my client. I am informed that the handwriting that has been discovered was in fact the elder Mr. Vitenas’ handwriting. He died in 1991:” | ¡Arnold did not testify who “informed” him, because the trial judge sustained the defense’s objections that such communication was subject to the attorney-client privilege.

Michael Vitenas, as curator for the interdicted defendant, testified for the defense. He is also the son of the defendant. He testified that his mother is permanently interdicted due to dementia. He said she is frequently delusional and has hallucinations, and her condition began in approximately 2002 or 2003. Prior to the onset of the dementia, his mother had communication problems because she is deaf.

Vitenas said the house on Folse Drive was built for his family around 1971, and that both his late father and his mother were very involved in the construction process. His father died in 1991. He testified that the home had never flooded: he was never told about a flood, he never witnessed a flood, he had no knowledge of a flood, and could “emphatically state” that the home never flooded.

Vitenas said he moved out on his own in 1983, but used to visit once a week until his father died, after which he began visiting his mother three to four times a week. He denied any knowledge of the stains on the wall studs or of the wall writing, prior to being notified of the plaintiffs claims that led to this lawsuit. His mother never mentioned anything about it and, as far as he knew, his mother knew nothing about it.

He recalled that plumbing work was done in 1992 or 1993, about a year and a half after his father’s death. His mother told him the shower was leaking, and she had a plumber in to repair it within two or three weeks. He recalled seeing some stained sheetrock on the ceiling of the room beneath the bathroom. The sheet-rock was repaired at the same time. His mother continued using that bathroom for eight more years, until the house was sold, and never mentioned any |infurther problems with it. Due to his mother’s handicap, he regularly walked around the house looking for problems and he never noticed anything.

Vitenas testified he could not say for certain whose handwriting was on the sheetrock; he said it could have been his father’s or it could have been anyone’s.

Although the trial judge did not give any reasons for judgment, inherent in his determination that the defendant was liable is a conclusion that the defendant knew of the hidden damage to the house, but failed to disclose it. We find that determination was clearly wrong, however; the evidence and testimony simply failed to establish by a preponderance of the evidence that Josie Vitenas, the seller of the home, either knew of the hidden damage to the house or that she deliberately failed to disclose it to the plaintiff. Accordingly, the plaintiff failed to establish bad faith or fraud on the part of the defendant.

Our determination on the prescription issue makes it unnecessary to address the other issues raised by the defendants on appeal, or by the plaintiff in her answer to the appeal.

DECREE

For the foregoing reasons, the judgment is reversed and judgment hereby is rendered in favor of the defendant, Michael Vitenas, in his capacity as curator of the interdict, Josie Scavona Vitenas, and against the plaintiff, Diane Guedry. Costs are assessed against the plaintiff.

REVERSED AND RENDERED.


source: Caselaw Access Project

author: SULLIVAN, Judge.

license: Public Domain

text:
    Marvin ARNAUD v. SHAW CONSTRUCTION.
    No. 09-128.
    Court of Appeal of Louisiana, Third Circuit.
    May 6, 2009.

      Thomas J. DeJean, DeJean & Leger, Opelousas, Louisiana, for Plaintiff/Appel-lee, Marvin Arnaud.
    John J. Rabalais, Robert T. Lorio, Janice B. Unland, Rabalais, Unland & Lorio, Covington, Louisiana, for Defendant/Appellant, Shaw Construction.

      Court composed of JOHN D. SAUNDERS, MICHAEL G. SULLIVAN, and ELIZABETH A. PICKETT, Judges.
   SULLIVAN, Judge.

|;In this workers’ compensation matter, Shaw Construction (Shaw) appeals a judgment rendered by the workers’ compensation judge (WJC) in favor of Marvin Ar-naud, its former employee, awarding him Supplemental Earning Benefits (SEBs), reimbursing him for all of his out-of-pocket medical expenses, and authorizing treatment by his choice of orthopedist. Mr. Arnaud answers the appeal, asserting that the WCJ erred in denying his original request for penalties and attorneys fees and seeking additional attorney fees on appeal. For the following reasons, we affirm the judgment in its entirety.

FACTS AND PROCEDURAL HISTORY

Mr. Arnaud alleged that he injured his middle and low back on October 4, 2007, while working as a boiler maker/pipe fitter at Shaw. He testified that he was on a scaffold in a squatting position and pushing up a platform for a coworker to bolt into place when he felt his back “give” and fell to his knees. Mr. Arnaud immediately told his coworkers that he had hurt his back. Shortly thereafter, he reported his injury to a foreman, Melvin Jones, who brought him to the safety department where he was given an ice pack and told to sit in the “safety chair” for three hours. He was then told to return home and to take it easy for the rest of the day. The next day, Mr. Arnaud was seen by Dr. Luke Lee at Prime Medical at the bequest of Shaw and X-rays were taken. Mr. Ar-naud had a second visit with Dr. Lee several weeks after his injury, and he was advised to treat himself with over-the-counter medication and exercise.

Ms. Connie Gill, the claims adjuster assigned to handle the workers’ compensation claim for Shaw, took a recorded statement from Mr. Arnaud on |2October 24, 2007. Therein, Mr. Arnaud repeatedly denied having sustained any previous back injuries, other than an occasional pulled muscle. Ms. Gill compiled an investigative report which indicated that Mr. Arnaud may have had up to five prior back injury claims. She also had a copy of Mr. Ar-naud’s post-hire questionnaire, wherein he had denied any prior back complaints or injuries. Because of the discrepancies in Mr. Arnaud’s file, Ms. Gill became concerned that Mr. Arnaud may have been guilty of committing fraud to obtain compensation benefits, and she denied Mr. Ar-naud’s claim pending further investigation.

Mr. Arnaud filed this workers’ compensation claim/petition on November 5, 2007, seeking wage benefits; authorization of medical treatment, including treatment by his choice of physician, Dr. John Cobb, an orthopedist; and penalties and attorney fees for Shaw’s arbitrary and capricious handling of his claim. In its answer to the petition, Shaw asserted the affirmative defenses found in La.R.S. 23:1208 and 23:1208.1, contending that if Mr. Arnaud had willfully made any false statements for the purpose of obtaining benefits, his entitlement to benefits had been forfeited.

In mid-December of 2007, Mr. Arnaud filed a request for an expedited hearing to compel medical treatment. Following a hearing, the WCJ denied the motion and referred the matter to the merits. Thereafter, Mr. Arnaud sought treatment with Dr. Angela Neely, his family doctor, because he was experiencing continued pain in his low back that had begun to cause numbness and weakness in his legs. Mr. Arnaud underwent an MRI at the request of Dr. Neely. He was then seen by Dr. John Cobb, an orthopedist. After reviewing the MRI, Dr. Cobb diagnosed Mr. Arnaud with post-traumatic lumbar pain syndrome, sprain/strain of the lumbar spine, and symptomatic lumbar spondylo-listhesis (forward displacement of a lumbar vertebra on the one | .¡below it) with steno-sis (narrowing of a passage or vessel) and probable radiculitis (inflammation of a spinal nerve root). Based on the history given to him by Mr. Arnaud and the mechanism of the injury, Dr. Cobb noted that it appeared that Mr. Arnaud’s symptoms were a result of the on-the-job injury that occurred on October 4, 2007. He prescribed several medications to Mr. Arnaud, including a muscle relaxer and a narcotic pain reliever, and he recommended that Mr. Arnaud begin a physical therapy program. Dr. Cobb filled out a Work Status Report wherein he noted that “patient is unable to work pending treatment.” In addition, Dr. Cobb informed Mr. Arnaud that he may, in the future, need an epidural steroid injection.

Mr. Arnaud missed several days of work following his injury due to his back “stiffing up” and his legs being numb. On January 8, 2008, he requested that he be laid off from Shaw because he was hurting and could not “go anymore.”

At the request of Shaw, Mr. Arnaud was examined on February 20, 2008, by Dr. Douglas Bernard, an orthopedist. Because he thought that Mr. Arnaud’s prior MRI scan was of poor quality, Dr. Bernard ordered a second MRI. After comparing the second MRI to X-rays that had been taken of Mr. Arnaud’s lumbar spine in August of 2005 following a motor-vehicle accident, Dr. Bernard said that the MRI revealed basically the same thing as the earlier X-rays, i.e., degenerative disc disease, scoliosis (abnormal curvature of the spine), and spondylolysis (degeneration of part of a vertebra)/spondylolisthesis at the L-5 level. After taking a history from Mr. Arnaud and performing a physical exam, he found nothing that he could associate with an October 2007 work-related accident. Dr. Bernard was of the opinion that Mr. Arnaud could return to work in an unrestricted capacity and that he did not need any further treatment.

|4Trial took place on October 14, 2008, following which the WCJ issued his ruling from the bench. Written judgment was signed on October 22, 2008, awarding Mr. Arnaud SEBs from January 9, 2008, the day he resigned from Shaw, to the present, based on his average weekly wage of $1,464 per week; reimbursing him for all of his out-of-pocket medical expenses, including mileage; and authorizing treatment by Dr. Cobb, including an epidural steroid injection. Shaw’s defenses under La.R.S. 23:1208 and 23:1208.1 were denied, as was Mr. Arnaud’s claim for penalties and attorney fees. Costs were assessed to Shaw.

Shaw appeals, asserting three assignments of error. First, Shaw alleges that the WCJ erred in holding that Mr. Arnaud did not violate La.R.S. 23:1208.1, thus forfeiting his entitlement of benefits. Next, Shaw claims that the WCJ erred in holding that Mr. Arnaud is entitled to SEBs and medical treatment. Finally, Shaw contends that the WCJ erred in holding that it was not entitled to a credit against SEBs for the period that Mr. Arnaud was incapacitated following a subsequent accident in which he broke his leg requiring surgery. Mr. Arnaud filed an answer to Shaw’s appeal, asserting that the WCJ erred in denying his claim for penalties and attorney fees and seeking additional attorney fees on appeal.

DISCUSSION

The Louisiana Supreme Court set out the standard of review to be employed in workers’ compensation cases in Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, pp. 7-8 (La.7/1/97), 696 So.2d 551, 556 (citations omitted):

| ¡¡Factual findings in workers’ compensation cases are subject to the manifest error or clearly wrong standard of appellate review. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one.

“The determination of coverage is a subjective one in that each case must be decided from all of its particular facts.” Jackson v. Am. Ins. Co., 404 So.2d 218, 220 (La.1981). A worker bringing a compensation action against his employer bears the burden of proving, as a threshold requirement, that he suffered “personal injury by accident arising out of and in the course of his employment.” La.R.S. 23:1031(A); Bruno v. Harbert Int’l Inc., 593 So.2d 357, 360 (La.1992). The word “accident” as used in La.R.S. 23:1031 is defined as “an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration.” La. R.S. 23:1021(1).

This court has held that, in light of that standard of review, “great deference is accorded to the [workers’ compensation judge’s] factual findings and reasonable evaluations of credibility.” Cent. Lumber Co. v. Duhon, 03-620, p. 3 (La.App. 3 Cir. 11/12/03), 860 So.2d 591, 593, writ denied, 04-315 (La.4/2/04), 869 So.2d 880 (quoting Garner v. Sheats & Frazier, 95-39 (La. App. 3 Cir. 7/5/95), 663 So.2d 57).

In making its ruling, the WCJ stated:

Considering the law, evidence, and argument of counsel, the court finds that the claimant has met his burden of proof in proving an accident occurred in the job in the course and scope of employment on October 3, 2008 while he was working with a platform and injured his lower back.
The court finds that SEB benefits are due from the day he left his job with Shaw, January 8, 2008 to the present .... We don’t have the | fSexact information to calculate the SEB on a monthly basis, and I’m going to order claimant to submit that ... and SEB will be calculated on that basis....
Medical expenses — the medical bills are described in the exhibits. Those medical expenses are ordered. Treatment with Dr. Cobb is ordered. The epidural steroid injections are ordered.
In terms of the fraud, defense’s [sic] 1208 ..., the court finds that defendants have failed to meet their burden of proof in proving those fraud defenses.
Concerning penalties and attorneys fees, the court finds that defendants have reasonably controverted this claim. I thought there was a credibility call that needed to be made and it’s not been made until today by this court. Claimant is at least due benefits. The court understands the evidence that defendants had in their possession at the time they made the decision to deny benefits: the post-hire questionnaire, which indicated no prior back problems; the index report that described some prior back problems, which was in conflict with the post-hire questionnaire; and the recorded statement that they took of the claimant. The court finds it was reasonably controverted based on a credibility issue that was brought up by all of those circumstances.

Did Mr. Amaud violate La.R.S. 23:1208?

Louisiana Revised Statutes 23:1208 entitled “Misrepresentations concerning benefit payments; penalty” provides in pertinent part, as follows:

A. It shall be unlawful for any person, for the purpose of obtaining or defeating any benefit or payment under the provisions of this Chapter, either for himself or for any other person, to willfully make a false statement or representation.
E. Any employee violating this Section shall, upon determination by workers’ compensation judge, forfeit any right to compensation benefits under this Chapter.

This court discussed La.R.S. 23:1208 in Abbeville General Hospital v. Manor, 07-1226, p. 3 (La.App. 3 Cir. 3/12/08), 980 So.2d 163, 165, stating:

This statute is penal in nature and must be strictly construed in favor of the one receiving benefits. Fontenot v. Reddell Vidrine Water District, 02-439 (La.1/14/03), 836 So.2d 14. Under this provision, the |7employer must prove: (1) there is a false statement or representation; (2) it is willfully made; and, (3) it is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co., 94-2708 (La.9/5/95), 660 So.2d 7.

Nevertheless, this court has held that “[b]enefits are not terminated under the section for false statements that are inadvertent or inconsequential, but only false statements] which are determined by the workers’ compensation judge, as authorized by La.R.S. 23:1208 to be willfully made for the purpose of obtaining or defeating benefits.” Menard v. Mama’s Fried Chicken, 97-488, p. 2 (La.App. 3 Cir. 3/6/98), 709 So.2d 303, 304, writ denied, 98-956 (La.6/5/98), 720 So.2d 681. Whether an employee has forfeited his right to workers’ compensation benefits is a question of fact that will not be disturbed on appeal absent manifest error.” KLLM, Inc. v. Reed, 00-295, p. 6 (LaApp. 3 Cir. 10/11/00), 771 So.2d 728, 731 (citation omitted).

At trial, counsel for Shaw got Mr. Ar-naud to admit that he had not been completely truthful about any prior injuries to his back when asked in his post-hire questionnaire, his recorded statement, and at the December 2007 hearing on his motion to compel medical treatment. Shaw now argues that because it proved that Mr. Arnaud made multiple false statements about his physical condition, the WCJ erred in finding that Mr. Arnaud had not violated La.R.S. 23:1208 and thus had not forfeited his right to receive compensation benefits.

Mr. Arnaud counters that any prior injuries to his back were minor in nature and that he had not willfully made any false statements for the purpose of obtaining benefits. He explains that when presented with the evidence indicating that he had prior back complaints, he truthfully disclosed the circumstances surrounding each of those prior complaints. Mr. Amaud submits that once Shaw had the investigative report compiled by Ms. Gill that raised the possibility that he may have had prior back injury claims, it went into “defense mode” and began automatically denying all of his requests for additional treatment and benefits before conducting an investigation into the nature and extent of those possible prior back | ^injury claims. He adds that the investigation done by Shaw was woefully inadequate and prolonged, and that most of the evidence that it is trying to use against him came from his own truthful testimony rather than from any investigation done by Shaw.

Whether Mr. Arnaud violated La.R.S. 23:1208 was an issue of fact to be determined by the WCJ. We have thoroughly reviewed the record, including the transcript and the exhibits, and find no manifest error in the WCJ’s conclusion that Mr. Arnaud was a credible witness and that he did not willfully make any false statements for the purpose of obtaining compensation benefits. This assignment of error is without merit.

Is Mr. Arnaud entitled to SEBs and medical treatment?

At trial, Shaw did not contest the fact that Mr. Arnaud suffered an on-the-job, injury producing, accident. It did dispute, however, the extent and duration of Mr. Arnaud’s injury. Shaw submits that although Mr. Arnaud testified that Dr. Lee told him to return to work on light duty, Dr. Lee noted on the injury report form that Mr. Arnaud could return to his assigned duties. Shaw also points to a video surveillance tape which it offered as a trial exhibit which it claims shows that, despite Mr. Arnaud’s claim in his deposition that he could only stand for twenty minutes without needing a break, he could actually stand for a much longer time without any apparent difficulty.

Mr. Arnaud counters that, in their medical records, Dr. Cobb and Dr. Neely related his symptoms of low-back pain and numbness/weakness in his legs and feet Into his October 4, 2007 on-the-job accident. He adds that Dr. Neely restricted him to light-duty work and Dr. Cobb restricted him from work pending treatment. At trial, Mr. Arnaud testified that he was still experiencing pain in his lower back and legs and that he felt unable to work a full-time job. He explained that since He left Shaw, he had bought and sold several old cars, bringing in an average income of less than $1,000 per month.

The WCJ determined that Mr. Arnaud met his burden of proving that an on-the-job accident which caused injuries to his low back occurred and that he was due SEB’s from the day he left employment with Shaw to the present. He also ordered Shaw to authorize Mr. Arnaud’s treatment with Dr. Cobb, including epidural steroid injections, and to reimburse Mr. Arnaud for the medical expenses that he had incurred. The applicable standard of review dictates that we afford great deference to the WCJ’s factual findings. Based on our review of all of the evidence, we cannot say that the WCJ was clearly wrong in his award to Mr. Arnaud.

Is Shaw entitled to a credit against SEBs due to Mr. Arnaud’s subsequent injury?

Shaw claims that because Mr. Ar-naud admitted on the stand that he was involved in a subsequent accident in which he sustained a broken leg requiring surgery, the WCJ erred in ruling that it was not entitled to a credit against SEBs for the period that Mr. Arnaud was incapacitated following that accident.

Mr. Arnaud suggests that any decision as to whether Shaw is entitled to a credit would be premature because the exact amount of SEBs due him will not be determined until he submits his monthly earning reports to the WCJ after this appeal is over.

|tnAs noted by the WCJ, Shaw did not present any medical evidence as to the extent and duration of Mr. Arnaud’s injuries from his subsequent accident. Given the lack of foundation in support of Shaw’s claim for a credit, coupled with the fact that the exact amount of SEBs due and owing to Mr. Arnaud has not yet been determined, we cannot say that the WCJ’s decision to deny Shaw a credit against SEBs due to Mr. Arnaud was manifestly erroneous or clearly wrong.

Did the WCJ err in not awarding Mr. Arnaud penalties and attorney fees?

This court addressed the issue of penalties and attorney fees in Romero v. Northrop-Grumman, 01-24, pp. 10-11 (La.App. 3 Cir. 5/30/01), 787 So.2d 1149, 1155-56, writ denied, 01-1937 (La.10/26/01), 799 So.2d 1144 (citations omitted), wherein we stated:

The determination of whether an employer should be cast with penalties and attorney fees is essentially a question of fact; we will not reverse the WCJ’s finding on appeal absent evidence of manifest error. Penalties and attorney fees are available to a claimant when his employer does not provide workers’ compensation benefits as required by law.
... To avoid the imposition of penalties and attorney fees for the nonpayment of benefits, the employer has a continuing obligation to investigate, to assemble, and to assess factual information before denying benefits. The determination of whether an employer has reasonably controverted claims for the purpose of imposing penalties and attorney fees depends on the facts known to the employer at the time of its conduct. To reasonably controvert a claim so as not to be liable for statutory penalties, the employer must have factual or medical information of such a nature that it reasonably counters that provided by the workers’ compensation claimant.

Mr. Arnaud asserts that the WCJ erred in its determination that Shaw “reasonably controverted” his claim and thus did not owe him penalties and attorney fees under La.R.S. 23:1201. As previously mentioned, he insists that Shaw failed to timely and thoroughly investigate his claim, including whether it had the right to deny lnhim benefits for his having allegedly made false statements about prior injuries to his back.

Whether an employer owes a claimant penalties and attorney fees under La.R.S. 23:1201 is a question of fact that this court will not disturb in the absence of a finding of manifest error. For the same reasons that we upheld the WCJ’s finding that Mr. Arnaud was entitled to SEBs, we likewise uphold the WCJ’s finding that Shaw had nonetheless reasonably controverted Mr. Arnaud’s claim for benefits to the extent that it did not owe him statutory penalties and attorney fees. Just because the WCJ ultimately determined that Shaw’s fraud defense was unfounded, we cannot say that the WCJ’s finding that Shaw had reasonably controverted Mr. Arnaud’s claim based on the entirety of the circumstances was clearly erroneous. Accordingly, we deny Mr. Arnaud’s answer to appeal.

CONCLUSION

For the foregoing reasons, the judgment of the WCJ is affirmed in its entirety. Costs of this appeal shall be split equally among the parties.

AFFIRMED.

      . Louisiana Revised.Statutes 23:1208.1 concerns the right of an employer to inquire into an employee's previous injury claims and the forfeiture of benefits for an employee's failure to truthfully answer such inquiry. Because Shaw has not alleged error in the denial of that defense, the correctness of that ruling is not at issue in this appeal.


author: DREW, J.

text:
    STATE of Louisiana, in the Interest of H.M., Plaintiff-Appellee v. T.M., Defendant-Appellant.
    No. 44,446-JAC.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 2009.

      John Bradley Smitherman, for Appellant, T.M.
    Charles A. Smith, Michael Nerren, Bossier City, for Appellee State of Louisiana, DSS/OCS.
    William Allen Haynes, for Appellee Father of H.M.
    Theodore Edward Johnson, Jr., for Ap-pellee H.M.
    Before PEATROSS, DREW and LOLLEY, JJ.
   DREW, J.

11 The mother appeals a judgment vacating custody of her daughter, H.M., from the State to H.M.’s father. We affirm.

FACTS

On May 9, 2008, five-year-old H.M. was removed from her mother’s custody and placed in the custody of the State of Louisiana, Department of Social Services (“DSS”), after she reported that Raymond Ray, a male friend of her mother, had touched her genitals with his hand. A medical examination on May 8 had revealed vaginal sex abuse and possible anal sexual abuse. H.M. was placed in the home of the Tuckers, neighbors who had raised H.M. for most of her life. H.M.’s parents were never married, and she never formally lived -with her father.

A Family Team Conference was held on June 10, and a case plan was created. The goal of the case plan was reunification. The mother’s goals under the case plan were: (i) gaining a better understanding of the alleged sexual abuse and its effects on H.M.; (ii) promoting an emotionally safe, stable environment for herself and H.M.; (iii) cooperating with the Office of Community Services (“OCS”); (iv) having a permanent plan for H.M.; and (v) maintaining a family bond.

H.M. was adjudicated a child in need of care on July 21. It was ordered that custody would continue with OCS. A disposition hearing was held on August 18. The placement with the Tuckers was continued, and the |2matter was set for a case review hearing on November 3. The case plan was approved at the disposition hearing.

On October 20, OCS provided a written report to the court which recommended that custody of H.M. be vacated to her father. It was noted that the father had complied with the case plan, but that the mother had not. CASA wrote to the court on October 30 that its recommendation was that guardianship be granted to the Tuckers.

At the November 3 hearing, the court vacated custody with DSS and returned custody to the father. The mother has appealed.

DISCUSSION

The mother argues on appeal that the trial court erred in: (i) allowing OCS to seek modification of the case plan goal of reunification without prior notice and a motion for a contradictory hearing; and (ii) adopting the permanent case plan goal of guardianship without requiring OCS to seek a judicial determination that reunification efforts were not required.

Vacating custody with DSS and returning custody to the father was a permanent placement. La. Ch. C. art. 603(20) defines “permanent placement” as including the return of the legal custody of a child to his or her parent. After the court ruled in DSS’s favor, a dispositional review/permanency hearing that had been fixed for May 4, 2009, was upset.

Regarding the permanency hearing, La. Ch. C. art. 702 provides, in part:

C. The court shall determine the permanent plan for the child that is most appropriate and in the best interest of the child in accordance with the following priorities of placement:
| s(l) Return the child to the legal custody of the parents within a specified time period consistent with the child’s age and need for a safe and permanent home. In order for reunification to remain as the permanent plan for the child, the parent must be complying with the case plan and making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care.
E. Except as otherwise provided in Article 672.1, the court shall determine whether the department has made reasonable efforts to reunify the parent and child or to finalize the child’s placement in an alternative safe and permanent home in accordance with the child’s permanent plan. The child’s health and safety will be the paramount concern in the court’s determination of the permanent plan.

To reverse a trial court’s permanency plan determination, an appellate court must find from the record that the trial court’s finding is clearly wrong or manifestly erroneous. State in the Interest of J.B., 35,486 (LaApp. 2d Cir.2/27/2002), 811 So.2d 179.

The mother did not comply with her entire case plan. She did not attend parenting classes, and she failed to take full advantage of her weekly visits with her daughter. From June 10 to October 14, the mother cancelled or did not show for over half of her scheduled visits with H.M. The CASA report noted that its caseworker observed during the visits that the mother was initially excited to see H.M., but ten minutes into the visit, H.M. would be begging the mother to play with her as the mother became more concerned with spending time with the other adults present for the visit. |4Carol Dean, the OCS case manager, testified that the mother was not emotionally connected with H.M. during these visits, and that it was usually H.M. who engaged her mother by bringing gifts and asking her mother about what had been happening in her life.

In order for the mother to gain a better understanding of the alleged sex abuse of H.M. and its effects, the case plan directed the mother to: (i) live apart from the alleged perpetrator until he participated in and completed a sexual perpetrator treatment program, received favorable report from his therapist, and OCS perceived that H.M. would be safe; (ii) participate in counseling and demonstrate that she had an understanding of the effects of sex abuse on H.M.; (iii) not have contact or involvement with any person alleged to have harmed H.M. or with a history of inappropriate behavior; (iv) not blame H.M. for the abuse; and (v) support H.M. in her statements about being abused. In order to maintain a family bond, the mother was ordered not to talk to H.M. concerning the incident that brought her into foster care.

The alleged sex abuse by Raymond Ray was the main reason that H.M. was removed from her mother’s home, yet not only did the mother not follow the directives of the case plan that dealt with this issue, but she actually took actions which worsened the situation. It did not take long after removal for the mother to demonstrate which relationship she considered to be the more important to her.

lfiRay and the mother were married on May 15. Ray was arrested on May 21 and charged with aggravated sexual assault of H.M. Ray returned to the mother’s home on October 14 after he was released on bail.

The CASA report from October 30, which was filed into evidence, detailed an event that occurred on October 15. The mother had called the Tuckers’ home and left a message for H.M. to call her at home. When H.M. returned the call, Ray answered the phone. The mother told H.M. that Ray had gotten out of jail because she had lied. The Tuckers subsequently obtained a protective order preventing Ray from having contact with H.M.

The CASA report also noted that each time the caseworker had visited with the mother, the mother’s only concern was that Ray was being falsely accused. When the caseworker attempted to discuss H.M.’s situation with the mother, she redirected the conversation back to Ray. Notably, the mother had contacted CASA concerning only the loss of H.M.’s Social Security income.

It is apparent that the mother remains committed to maintaining her belief in the innocence of Ray to the detriment of her daughter. The mother’s preremoval actions are nearly as mind-boggling. The CASA caseworker reported that the mother had told her that she had witnessed Lucky Bridges touch and harass H.M., but she did not report it because she was fearful of losing H.M.

The father has been more committed to complying with the case plan for the benefit of his daughter. His goals under the case plan were to demonstrate positive parenting skills, maintain a bond with H.M., cooperate |fiwith OCS, and have a permanent plan with H.M. The OCS report, also filed into evidence, stated that the father wanted custody of H.M., worked with OCS by participating in DNA testing, visited H.M. regularly and frequently communicated with her over the phone, and showed an interest in H.M.’s overall development.

Based upon our review of this record, we cannot conclude that the trial court was clearly wrong in permanently placing H.M. with her father.

The mother also complains about lack of notice of the permanency hearing. La. Ch. C. art. 703 states:

Written notice of the date, time, and place of the dispositional hearing shall be served and a return made in the same manner as a petition on all parties and counsel of record at least fifteen days prior to the hearing, unless the parties have been previously notified in open court at a prior hearing.

Although the hearing was originally set as a case review hearing, the mother cannot argue that she was prejudiced by a lack of notice that the State would seek to place legal custody with the father. First, the case plan assessment stated that the father wanted custody of H.M. and that a home study was being done on him for placement. Thus, the mother should have been aware that the granting of custody to the father would be an issue at some point in the proceedings. Second, the OCS report recommending that custody be vacated to the father was written on October 20 and filed into the record on October 24, well in advance of the scheduled November 3 hearing. The statement of fees submitted by the mother’s counsel reflects that he received and reviewed an OCS report on October 20; presumably 17this is the OCS report from October 20. The mother’s argument concerning lack of notice is meritless.

The mother also contends that the court erred in permitting the permanent placement without requiring OCS to seek judicial determination that reunification efforts were not required under La. Ch. C. art. 672.1.

Article 672.1 is permissive, and not mandatory, as it provides that the Department “may” file a motion for a judicial determination that efforts to reunify the parent and child are not required. See State ex rel. C.M. v. Willis, 41,908 (La. App. 2d Cir.12/27/06), 946 So.2d 316, writ denied, 2007-0190 (La.2/16/07), 949 So.2d 413.

Carol Dean testified that OCS was asking not to be required to make any further reunification efforts. However, DSS was not seeking a judicial determination that reunification efforts were no longer required. Rather, DSS was seeking a permanent placement with the father, which would remove the requirement that DSS make reasonable efforts to reunify the mother and daughter.

Except in the extraordinary circumstances set forth in art. 672.1, the State must undertake reasonable efforts to assist the parent in removing the obstacles to reunification. State ex rel. A.T., 2006-0501 (La.7/6/06), 936 So.2d 79. At least as long as the child’s permanent plan is reunification, in accordance with that plan, the State has the duty to make reasonable efforts to reunify the parent and child. Id.

The State reunified the parent and child, albeit not the parent from whom the child was removed, when custody was returned to the father. The |8State’s goal was no longer reunification with the mother and, as such, the State did not continue to have an obligation to assist the mother in removing the obstacles to reunifying her with H.M. We recognize that the largest obstacle to reunification for the mother was her decision to marry the man accused of sexually abusing her daughter, then opening her home to him after he was bailed out of jail following his arrest. These were choices made by the mother after removal. This action is not a termination of parental rights, so the mother still has time to make the right choices that show she places her daughter’s well-being above her own. The mother’s argument that the State was required to seek an art. 672.1 judicial determination is without merit.

DECREE

With costs of this appeal to be paid by the mother, the judgment is AFFIRMED.

      . Unless stated otherwise, all dates are for the year 2008.

      . H.M. also reported that Lucky Bridges, another male friend of her mother, had once climbed into bed with her while clad only in his underwear.

      . The mother had been required to undergo a psychological assessment and follow all recommendations given by the psychologist. The evaluation was cancelled and never rescheduled by OCS.

        . The parenting classes were scheduled to begin in October and were to last 12 weeks.


author: GREMILLION, Judge. PETERS, J.,

text:
    SUCCESSION OF Kathryn LAMBERT.
    No. CA 08-1550.
    Court of Appeal of Louisiana, Third Circuit.
    May 6, 2009.
    John Edward Fitz-Gerald, Attorney at Law, Lake Charles, LA, for Appellee, Michael Glenn Lambert.
    C.R. Whitehead, Jr., Whitehead Law Offices, Natchitoches, LA, for Appellant, Julie Boudreaux.
    Jeffrey Howerton Thomas, Thomas Law Firm, Natchitoches, LA, for Appellee, Jerry Glenn Lambert.
    William Alan Pesnell, The Pesnell Law Firm, Shreveport, LA, for Appellee, Jerry Glenn Lambert.
    Michael Glenn Lambert, Montalba, TX, In Proper Person.
    Court composed of OSWALD A. DECUIR, JIMMIE C. PETERS, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

11 Julie Lambert Boudreaux, daughter of the deceased Kathryn Lucille Andrews Lambert, appeals the trial court’s judgment in favor of her father, Jerry Lambert, finding that Julie was not entitled to receive a 1/4 share of retirement funds upon Jerry’s remarriage. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Kathryn died May 1, 1994, leaving behind a Last Will and Testament which provided:

At my death, I leave all of the property I die possessed of to my two children, Julie Ann Boudreaux and Michael Glenn Lambert, in the proportions of an undivided one-half Qh) interest to each, subject to the statutory usufruct which I hereby confirm in favor of my husband, Jerry Glenn Lambert, to last until his death or remarriage.

Since her death, litigation concerning Jerry’s IRA, which was community property, has been ongoing. A judgment of possession recognized Julie and her brother as naked owners of their mother’s one-half interest in the IRA account. Following Jerry’s remarriage in 1997, his children demanded their one-half interest in the account. Jerry responded by seeking to have the IRA account removed from the list of community assets. The trial court found that the IRA account was community property and that La.R.S. 9:1426 applied to it to create a continuing usufruct in favor of Jerry.

In an unpublished opinion rendered in November 2007, we affirmed the finding of the trial court that the IRA account was community property, but remanded the case for a determination of whether the IRA was in pay status at the time of Kathryn’s death. We stated, “the legal usufruct created by La.R.S. 9:1426 would 12unquestionably exist if a recurring payment was being made from the Main Stay IRA at the time of Kathryn’s death.” Following a hearing in April 2008, the trial court found that the IRA was in a pay status prior to Kathryn’s death and that the legal usufruct provided by La.R.S. 9:1426 applied to the IRA and “to all funds and proceeds from that account.”

Julie now appeals and asserts as error the trial court’s failure to address the applicability of La.R.S. 9:1426 to “lump sum payments” or “mandatory withdrawals” as required by federal law.

DISCUSSION

Appellate review of a question of law is simply a decision as to whether the trial court’s decision is legally correct or incorrect. Jim Walter Homes, Inc. v. Jessen, 98-1685 (La.App. 3 Cir. 3/31/99), 732 So.2d 699. If the trial court’s decision was based on its erroneous application of law, its decision is not entitled to deference by the reviewing court. Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983). When an appellate court finds that a reversible error of law was made in the lower court, it must redetermine the facts de novo from the entire record and render a judgment on the merits. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

Louisiana Revised Statute 9:1426 discusses a surviving spouse’s usufruct of a retirement plan (emphasis added):

A. (1) If a recurring payment is being made from a public or private pension or retirement plan, an annuity policy or plan, an individual retirement account, a Keogh plan, a simplified employee plan, or any other similar retirement plan, to one partner or to both partners of a marriage, and the payment constitutes community property, and one spouse dies, the sumving spouse shall enjoy a legal usufruct over any portion of the continuing recurring payment which was the deceased spouse’s share of their community property, provided the source of the benefit is due to payments made by or on behalf of the survivor. |s(2) This usufruct shall exist despite any provision to the contrary contained in a testament of the deceased spouse. B. The usufruct granted by this Section shall be treated as a legal usufruct and is not an impingement upon the legitime and a naked owner shall not have a right to demand security.

The issues in this case are whether La. R.S. 9:1426 applies to a “lump sum periodic payment” or to a “mandatory withdrawal” as required by federal law. Julie argues that the usufruct attaches to “the periodic payments but not to the principle.” Julie goes on to state:

There is nothing in this statutory provision which allows [Jerry] to withdraw either voluntarily or by any mandatory provision of federal tax law without having to pay over to [Julie] her 25% share of the principle of the retirement funds.
It is respectfully submitted that the judgment of the trial court be modified to require [Jerry] to pay over to [Julie] 25% of the principle of any periodic or mandatory withdrawals from retirement funds required by federal law.

This issue appears to be res novo in Louisiana law and one that is not addressed by La.R.S. 9:1426. However, in examining the purpose behind La.R.S. 9:1426, we find that the legislature intended to protect the surviving spouse’s usu-fruct of community retirement funds until his death in priority over the claims of naked ownership of the heirs’ portion of the funds. The article does not distinguish between types of payments, only calling them “recurring payments.” It does not distinguish between recurring payments comprised of principle versus interest, or a combination of both, although we note that the usufruct applies to any portion of the continuing “recurring payments.” The overall policy of protecting a surviving spouse’s ability to provide for himself during retirement appears to outweigh the heirs’ right to the | community portion. Spaht and Moreno, 16 La.Civ. L. Treatise, Matrimonial Regimes § 3.44 (3 ed.) recently addressed some of the issues surrounding IRA accounts in relation to La.R.S. 9:1426 (emphasis added) (footnotes omitted):

A narrow Louisiana statute adopted in 1990 protects the covered spouse who is collecting IRA or other pension benefits when the other spouse dies. It was originally added to the Louisiana Civil Code as Article 890, redesignated as La. Civ.Code art. 890.1 and provided that the covered spouse will continue to receive the cash flow coming from the IRA until death even if the heirs of the deceased spouse might have claims to part of the asset under community property principles. In 1997, Article 890.1 was redesignated as La.R.S. 9:1426.
R.S. 9:1426 applies to “a public or private pension or retirement plan, an annuity policy or plan, an individual retirement account, a Keogh plan, simplified employee plan, or any other similar retirement plan.” If a spouse dies while the surviving spouse is receiving “a recurring payment” from the plan, the survivor enjoys a legal usufruct over the continuing recurring payment which was the deceased spouse’s share of their community if the source of the benefit is traced to payments made by or on behalf of the survivor. The usufruct is mandatory and applies even if a testament provides otherwise.
Although R.S. 9:1426 calls this a “legal usufruct,” it is not provided that the usufruct terminates upon remarriage, as Civil Code Article 890 provides with respect to the regular legal usufruct of the surviving spouse. As a legal usu-fruct, it would be free of the normal requirements of security, but R.S. 9:1426 goes further and so specifies in the third paragraph. It also provides that such a usufruct is not an impingement on the legitime of forced heirs.
The basic policy behind R.S. 9:14-26— protecting the rights of the living spouse to a retirement benefit at the expense of the heirs of the deceased spouse — would seem to apply also in the case of a death of the other spouse before regular distributions are begun. However, R.S. 9:1426 strictly construed seems to apply if the “recurring payment is being made ... and one spouse dies.” As suggested in the next section, the underlying policy seems broader, and the provision might well be construed to apply more broadly by analogy.
Since the right of the living spouse is a usufruct of money that would otherwise go to the heirs, the usufructuary has the right to spend | ¡¡those funds. In so doing, the usufructuary incurs the obligation to compensate the naked owners for those sums at the termination of the usufruct, which would normally be upon the death of the usufructuary.

Spaht and Moreno go on to discuss the case where recurring payments have not yet begun when the spouse dies. In addressing the issue of principle versus interest and forcing a surviving spouse to distribute a “lump sum” amount to the naked owners upon the death of a spouse, these authors note the unresolved complexities created by the statute, but suggest that public policy in favor of the surviving spouse outweighs the naked owners’ rights (emphasis added):

This apparent conclusion under the general law and R.S. 9:1426 is obviously a messy, complicated one. For example, the continuing IRA payment could be partly return of principal and partly investment income. The latter would presumably be a fruit owned by the usu-fructuary and the former would have to be accounted for to the naked owners at the termination of the usufruct over the recurring benefit.
In any event, the IRA fund could well be considered as any other community asset in the absence of special rules, and there appear to be no special state law rules to govern the situation other than Article 890 by its terms and R.S. 9:1426 by analogy. Perhaps the trust law might be invoked, with the result that the heir’s interest is not in the underlying IRA assets but in the beneficial rights under the trust. And, like life insurance ownership by the non-covered spouse, it is a right that is virtually worthless. Also, it could be a disastrous tax situation if a state court in such a situation would order half the account paid to the heirs. This would probably be a distribution of the IRA subject to taxation and penalty, to be paid by the initial contracting spouse.
Despite its complexity, however, this approach does balance the rights of the parties so as to give substantial protection to the surviving spouse’s interests and does fulfill the policy of providing retirement income to spouses no longer able to work, rather than benefitting what would normally be the next generation.
It would diminish [the surviving spouse’s] interests to give half of [his IRA fund] up to the heirs of the deceased. Even under state policies, where a statutory usufruct would allow the survivor to enjoy the benefits of the fund until death or remarriage, there is a similar policy which may militate against recognition of the heirs’ claims.

Spaht & Moreno suggest that the public policy in favor of the surviving spouse is so strong, that a fortiori, La.R.S. 9:1426 would probably apply even if recurring payments had not yet begun. Thus, any mandatory federal withdrawals are “recurring payments” within the meaning of the statute. The law provides us with nothing to restrict a broad reading of La. R.S. 9:1426. Accordingly, we find that federally mandated withdrawals fall within its ambit. Accordingly, we affirm the trial court’s finding that any mandatory federal withdrawals of principle and/or interest are “recurring payments” subject to Jerry’s usufruct.

The situation of voluntary lump sum withdrawals presents a more difficult issue. Although it is clear that the policy is to protect the retirement funds of the surviving spouse, one can envision a situation in which the surviving spouse withdraws a large portion of the funds pursuant to his legal usufruct and disposes of all of the money leaving nothing to reimburse the naked owner at his death. However, there is no present issue regarding lump sum withdrawals and this court does not issue advisory opinions. Accordingly, we leave this issue for another day.

CONCLUSION

The judgment of the trial court finding that Jerry’s IRA account was in pay status, and that his usufruct applies to recurring payments from his IRA account, is affirmed. Additionally, we find that federally mandated withdrawals are “recurring payments” within the meaning of La.R.S. 9:1426. All costs of this appeal are assessed against Julie Lambert Boudreaux.

AFFIRMED.

PETERS, J., dissents and assigns written reasons.

PETERS, J.,

dissenting.

hi respectfully disagree with the majority both in its determination that any future federally-mandated withdrawal of principal or interest is subject to Jerry Lambert’s usufruct and in its conclusion that the issue of voluntary lump-sum withdrawals from the retirement plan is not now before us. I would hold that the usufruct mandated by La.R.S. 9:1426 applies only to recurring payments being made at the time Kathryn Lambert died, not to future federally-mandated increased or additional withdrawals of principal or interest nor to voluntary lump-sum withdrawals by Mr. Lambert.

The salient facts in this case were set forth in this court’s prior unpublished opinion, Succession of Kathryn Andrews Lambert, 07-630, pp. 1-2 (La.App. 3 Cir. 11/7/07):

Jerry and Kathryn Lambert were married and had two children, Julie and Michael. During the marriage, Jerry worked at Texaco and accumulated a substantial retirement pension. There is no dispute that the pension was a community asset. In June of 1989, Jerry and Kathryn elected to receive a lump sum payment of $320,851.76 from the pension in lieu of an annuity. This money was rolled over into an IRA with Main Stay mutual funds. The record is devoid of any evidence as to the pay status of the IRA at that time. In 1992, Kathryn executed a last will and testament, leaving all her property to Julie and Michael, subject to a usufruct in favor of Jerry until his death or remarriage. Kathryn died in May of 1994. At the time of Kathryn’s death, the IRA had a value of $560,229.11.
After her death, but prior to the opening of Kathryn’s succession, Jerry rolled the Main Stay funds over to yet another IRA, run by Edward D. Jones. When the succession of Kathryn Lambert was opened in April of 1995, the detailed descriptive list included the account as community property. A subsequent judgment of possession recognized Julie and |2Michael as naked owners of Kathryn’s one-half interest in the account, subject to the usufruct defined by Kathryn’s will.
Jerry remarried in 1997, prompting Julie and Michael to demand their mother’s one-half interest in the account. Jerry responded by seeking to re-open the succession and have the IRA removed from the list of community assets. After much legal wrangling, the trial court ultimately decided that the IRA was derived from community funds and was, therefore, a community asset to be included in the succession. However, he found that La.R.S. 9:1426 applied, creating a legal usufruct in favor of Jerry to run until his death, despite the terms of Kathryn’s will. From this decision, all parties appeal.

In the prior decision, this court affirmed the trial court’s decision in part, but held that there was insufficient evidence in the record to determine whether recurring payments were being received from the Main Stay IRA during Mrs. Lambert’s life and remanded the case, instructing the trial court to supplement the record on that narrow issue. In doing so, this court noted that “the legal usufruct created by La.R.S. 9:1426 would unquestionably exist if a recurring payment was being made from the Main Stay IRA at the time of Kathryn’s [Mrs. Lambert’s] death.” Id. at p. 4 (emphasis added).

On remand, the trial court factually concluded that at the time of Mrs. Lambert’s death, the Main Stay IRA was making distributions of $8,497.06 per month and, thus, was “in pay status.” Based on this conclusion, it entered a judgment that “the legal usufruct of La.R. S. 9:1426 attaches to all funds and proceeds from that account [the Main Stay IRA].” The trial court’s factual finding that the IRA was “in pay status” at Mrs. Lambert’s death is not the issue before us. Instead, we are called upon to determine the extent, if any, that Mr. Lambert’s usufruct applies to future additional or increased distributions that are mandated by federal rules, as well as any attempt by Mr. Lambert to receive lump-sum payments of either the principal or accumulated interest. The trial court’s judgment applies the usufruct to both. The majority agrees with the trial court on the first issue, but declines to address the ^second.

The majority finds that any future distributions caused by federally-mandated withdrawal rules would be subject to the usufruct established by La.R.S. 9:1426. In reaching this conclusion, the majority relies solely on the discussion of La.R.S. 9:1426 in Spaht and Moreno, 16 La.Civ.L.Treatise, Matrimonial Regimes § 3.44 (3 ed.).

I do not find that this authority stands for the proposition espoused by the majority. At best, it recognizes that the specific language of the statute does not address all the situations involving pension plans that may arise at the death of a spouse. While acknowledging that the basic policy behind La.R.S. 9:1426 is “protecting the rights of the living spouse to a retirement benefit at the expense of the heirs of the deceased spouse,” the authors attempt to expand its application based on suggestions that “the underlying policy seems broader, and the provision might well be construed to apply more broadly by analogy.” Id. (emphasis added). The conclusion of the authors is not, as the majority suggests, that La.R.S. 9:1426 is applicable to all situations of pension distribution, but that the approach suggested by the authors would fulfill an unstated legislative policy. In fact, the authors even suggest that La.R.S. 9:1426 “would seem to apply also in the case of a death of the other spouse before regular distributions are begun.” Id. (emphasis added).

In interpreting a statute, we must start with the mandate that “[wjhen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” La.Civ.Code art. 9 (emphasis added). Louisiana Revised Statutes 9:1426 is clear and unambiguous and its strict application will lead to no absurd consequences. The usufruct provided to the surviving spouse is | triggered by a recurring payment that is already being made at the time of the other spouse’s death, and the usufruct over the amount being paid at that time is maintained as a legal usufruct. This language satisfies the basic policy behind the statute — that the retirement benefit being enjoyed by the surviving spouse at the time of the death of the other spouse is protected at the expense of the heirs. As I read the statute, the legislature obviously concluded that this specific language was sufficient to protect the surviving spouse. That is to say, if a couple is receiving a retirement benefit that is sufficient for their needs, one can assume that it will be sufficient for the survivor’s needs. To extend the usufruct to any increases, mandated or otherwise, or any lump sum withdrawals would defeat the ownership rights of the legal hems. The authors of the Treatise, and in following their logic, the majority in this matter, attempt to substitute their own policy conclusions for the clear letter of the law.

Given the clear language of the statute, I would not extend Mr. Lambert’s usufruct to any distributions over and above the monthly amount being paid at the time of Mrs. Lambert’s death. At the same time, I would address Ms. Boudreaux’s argument that the trial court erred in not holding that Mr. Lambert’s usufruct does not extend to any lump sum payments, and would rule in her favor for the reasons previously stated. The majority declines to address this issue, finding that “there is no present issue regarding lump sum withdrawals.” However, the trial court’s judgment is not limited to recurring payments; it attaches the usufruct to “all funds and proceeds” from the Main Stay IRA, which would include any lump-sum withdrawals from that account. If this court refuses to address that issue, then in the future the issue of lump-sum withdrawals would be res judicata. Thus, a decision from this court addressing the issue of lump-sum withdrawals is not an advisory opinion.

| ^Accordingly, I would reverse the trial court’s judgment in part and amend it to hold that the legal usufruct of La.R.S. 9:1426 attaches only to the recurring payments of $3,497.06 per month that were being made at the time of Kathryn Lambert’s death.

      . Succession of Kathryn Andrews Lambert, 07-630 (La.App. 3 Cir. 11/07/2007) (an unpublished opinion).

      . In order to avoid tax liabilities, federal law requires minimum mandatory distributions from a traditional IRA after the age of 70 14.

      . We note that throughout the discussion in the article La.R.S. 9:1426 is mistakenly referred to as La.R.S. 9:1246. We have taken the liberty to correct the typographical error throughout the quoted material.


author: CARAWAY, J.

text:
    STATE of Louisiana, Appellee v. Aaron Shawn McKINNEY, Appellant.
    No. 44,269-KA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.
    Kenota L. Pulliam, for Appellant.

      Charles R. Scott, District Attorney, Suzanne Owen, Brady D. O’Callaghan, Assistant District Attorneys, for Appellee.
    Before CARAWAY, PEATROSS and MOORE, JJ.
   CARAWAY, J.

__[iAaron McKinney was convicted of possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1. He was sentenced to serve 10 years at hard labor without benefit of probation, parole, or suspension of sentence and to pay a fine of $1,000. The defendant now appeals. The defendant’s conviction and sentence are affirmed.

Facts

On June 8, 2007, Detectives Shannon Mack, Allison Azlin, and Shawna Rellin of the Shreveport Police Department’s property crimes division were traveling in an unmarked police vehicle on 1-49 returning to police headquarters. While on the highway, they observed the defendant, Aaron Shawn McKinney, driving a Ford Crown Victoria with registration tags that had been previously reported as stolen. The detectives took steps to initiate a traffic stop to inquire about the stolen tag by radioing for a marked patrol car. They followed behind the defendant’s vehicle to the intersection of 1-49 and 1-20 where a patrol car waited.

Corporal Barry Hornsby responded to the detectives’ radio call and pursued the two vehicles after they passed him at the interchange. Upon first seeing Corporal Hornsby’s stationary unit at the interchange, Detectives Mack and Azlin observed the defendant immediately reach several times into the backseat of the passenger side of his vehicle.

Corporal Hornsby initiated a traffic stop on the defendant and asked the defendant for his license, insurance, and registration information. McKinney informed the officer that he did not have his license, that the car [2belonged to him, and that his insurance information was in the glove compartment. Meanwhile, the three detectives approached the defendant’s vehicle to provide assistance to Corporal Hornsby. They recognized McKinney from previous criminal incidents.

Since the defendant did not have his license, Corporal Hornsby told him to exit the vehicle, and Detective Azlin performed a patdown on the defendant. McKinney gave Detective Mack permission to retrieve the insurance information from the glove compartment of his vehicle. As Detective Mack went to collect the insurance information, Detective Azlin asked the defendant about his movements in the car that she observed before he was stopped. The defendant explained that he had leaned over to avoid spilling his soda.

Detective Mack did not find insurance information in the glove compartment; instead, she found several bullets. She also observed a drink on the floorboard of the front passenger seat. With the discovery of the bullets, Detective Mack asked McKinney for the location of the gun that complemented the bullets and asked if the defendant was a convicted felon. The defendant stated that he was a convicted felon and that he did not know the location of a handgun.

Detective Mack returned to the car to perform a more thorough search. She went to the back passenger side of the vehicle and noticed that the cushion on the passenger side of the backseat appeared disheveled. Upon further inspection Detective Mack saw that the cushion was completely dislodged and was situated at an angle. She lifted the seatpcushion and discovered a handgun. The gun was later determined to match the bullets in the glove compartment. McKinney was arrested for possession of a firearm as a convicted felon.

The handgun was not checked for fingerprints or other DNA evidence. Lieutenant Owen McDonnell, an officer with the crime scene investigation division, testified that even if the handgun had been processed, fingerprints would probably not have been recovered from the weapon because of the type of metal used to make it. The handgun was not stolen and had been purchased by the defendant’s mother three days before the arrest.

A bill of information was filed on April 1, 2008, charging the defendant with possession of a firearm while a convicted felon, a violation of La. R.S. 14:95.1, based on a predicate conviction in 2003 for possession of cocaine.

At trial, defendant based his defense on testimony by his mother. The defendant’s mother, Barbara McKinney, explained that she had purchased the handgun for protection three days before the traffic stop. On the day of the stop, she carried the handgun with her when she went to resolve an altercation with the defendant’s girlfriend. Because her car was broken, she used the defendant’s vehicle. Her sister and two-year-old grandchild went with her to resolve the altercation. Before arriving at the home of the defendant’s girlfriend, Ms. McKinney, feeling nervous at the police patrolling the area, placed the handgun’s bullets in the glove compartment and the loaded handgun underneath the backseat driver’s side cushion with |4her grandchild who was not secured by a car seat. She explained that she did not place the loaded handgun in the glove compartment because her grandchild was a “busy body” and liked to “climb all over the seats.” When the altercation did not occur, Ms. McKinney returned home and left the handgun and bullets in the car. She did not remember the handgun and bullets in the car until after the defendant had left with his vehicle. She continuously called the defendant, but he did not answer his cell phone. Eventually, she called the defendant and an officer answered the phone and told her that the defendant was in custody.

After a two-day jury trial, the jury, in a 10-2 verdict, found McKinney guilty as charged. The defendant filed a motion for post-judgment verdict of acquittal on the basis of the veracity of Detective Mack’s testimony. Specifically, the defendant argued that Detective Mack’s testimony at trial concerning defendant’s movements towards the backseat of the vehicle conflicted with an audio recording where she stated that the defendant was merely fidgeting. The trial court denied the defendant’s motion, holding that the evidence supported the conviction.

The defendant waived sentencing delays and was sentenced to serve 10 years at hard labor without benefit of probation, parole, or suspension of sentence. He was also ordered to pay a fine of $1,000. Before imposing sentence, the trial court considered the severity of the mandatory minimum sentencing range in light of the nature of the crime, the defendant’s age of 27 years, his family, his pending charges, and his previous criminal history.

[fiThe defendant was informed of his rights to appeal and to post-conviction relief. He then filed the instant appeal.

Discussion

McKinney argues that the evidence was insufficient to convict him because it did not prove his constructive possession of the handgun. He claims a lack of evidence of his knowledge that the handgun was in the vehicle. McKinney specifically points to the following facts to show that he lacked constructive possession of the handgun: (1) the handgun was legally purchased and owned by his mother, (2) his mother explained at trial that she inadvertently left the handgun in his car, (3) the drink found on the floor of the front seat supports his explanation of his movements before being stopped, and (4) he voluntarily allowed the police officers to search the glove compartment where the bullets were found.

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, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Tate, 01-1658 (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. Cummings, 95-1377 (La.2/28/96), 668 So.2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So.2d 488, writ denied, 02-2634 (La.9/05/03), 852 So.2d 1020. This standard, now legislatively 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, 05-0477 (La.2/22/06), 922 So.2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So.2d 1165. 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. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, unit denied, 07-1209 (La.12/14/07), 970 So.2d 529.

The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases 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 circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So.2d 471 (La.1983); State v. Parker, 42,311 (La.App. 2d Cir.8/15/07), 963 So.2d 497, unit denied, 07-2053 (La.3/7/08), 977 So.2d 896; State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So.2d 610, unit denied, 98-2723 (La.2/5/99), 737 So.2d 747.

To prove possession of a firearm by a convicted felon, a violation of La. R.S. 14:95.1, the state must establish beyond a reasonable doubt (1) the defendant possessed a firearm, (2) a previous conviction of an enumerated felony, (3) the absence of the 10-year period of limitation, and (4) general |7intent to commit the offense. La. R.S. 14:95.1; State v. Husband 437 So.2d 269 (La.1983); State v. Tatum, 27,-301 (La.App. 2d Cir.9/27/95), 661 So.2d 657.

An offender has general criminal intent when the circumstances indicate that he must have known the prescribed criminal consequences were reasonably certain to result from his act or failure to act. La. R.S. 14:10. General intent to commit the offense of possession of a firearm by a convicted felon may be proven through the actual possession of the firearm or through the constructive possession of the firearm. State v. Johnson, 03-1228 (La.4/14/04), 870 So.2d 995, 998. Constructive possession of a firearm occurs when the firearm is subject to the defendant’s dominion and control. A defendant’s dominion and control over a weapon constitutes constructive possession even if it is only temporary and even if the control is shared. State v. Bailey, 511 So.2d 1248, 1250 (La.App. 2d Cir.1987), writ denied, 519 So.2d 132 (La.1988). Constructive possession entails an element of awareness or knowledge that the firearm is there and the general intent to possess it. State v. Kennedy, 42,258 (La.App. 2d Cir.8/15/07), 963 So.2d 521, 527.

In this case, the only issue is whether McKinney had constructive possession of the handgun. The defense rested primarily on the fact that the gun had been purchased by defendant’s mother three days before the traffic stop which led to the arrest. An invoice from a pawn shop was presented in evidence, and it identified the serial number of the gun which was listed as sold to Barbara Ann McKinney. The state did not contest the gun’s |Rownership by McKinney’s mother. Rather, the state sought to show McKinney’s actual and/or constructive possession of the gun during the time that his vehicle was being followed by the officers in the unmarked car and upon the stop of the vehicle.

The testimony of Detective Mack established significant circumstantial evidence of McKinney’s knowledge of the weapon in the vehicle prior to the stop. The detective saw McKinney reach “back in the backseat quickly and s[i]t back up,” and continue to lean over a couple of times as she followed in the unmarked car waiting for the stop. This movement by McKinney in the vehicle was corroborated by Detective Azlin’s testimony. McKinney’s movement toward the backseat refutes his claim to have been trying to keep a drink found in the front seat from spilling over. Additionally, Detective Mack’s description of the backseat which she first examined was that the single cushion seat “was completely dislodged.”

Likewise, the jury’s obvious rejection of McKinney’s mother’s testimony is reasonably supported by the record. Glaring inconsistencies existed between Detective Mack’s discovery of the gun in the passenger side of the cushion and McKinney’s mother’s claim that she placed the gun under the driver’s side of the cushion. Moreover, the jury could have reasonably considered her account of placing the loaded gun under the back seat of the car where her unrestrained grandchild sat as beyond belief.

When viewed in the light most favorable to the state, this circumstantial evidence was sufficient to show beyond a reasonable doubt |3that the defendant was aware of the firearm and, consequently, had constructive possession of the weapon. The officers’ pre-stop observations of McKinney and Detective Mack’s discovery of the dislodged cushion which covered the hidden weapon circumstantially indicate that McKinney placed the gun under the seat upon seeing the patrol car. From this evidence, the jury could have reasonably inferred beyond a reasonable doubt that McKinney, as the vehicle’s owner, must have been aware of the gun’s location in his vehicle and tried to hide it when he first noticed the patrol car. This assignment of error has no merit.

For the foregoing reasons, McKinney’s conviction and sentence are affirmed.

AFFIRMED.