author: AMY, Judge. GENOVESE, J.,

text:
    Lillian E. Landaiche ROY, et al., v. Sheriff Bill BELT, et al.
    No. 13-1116.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 2014.

      R. Gray Sexton, Baton Rouge, LA, Ricky L. Sooter, Jeremy C. Cedars, Pro-vosty, Sadler, deLaunay, Fiorenza & So-bel, Alexandria, LA, for Plaintiffs/Appellants, Lillian E. Landaiche Roy, Constance Elizabeth Roy, Sheldon Louis Roy, Catherine Marie Roy, Lillian Elizabeth Roy.
    A. Kell Mclnnis, III, Baton Rouge, LA, for Defendants/Appellees, The Unopened Succession of Patrick Lemoine, Charles A. Riddle, III.
    Charles A. Riddle, III, Marksville, LA, for Defendant/Appellee, Alma Rita Gremil-lion Riddle, et al.
    Rodney M. Rabalais, Rabalais & Roy, Marksville, LA, for Defendants/Appellees, Law Enforcement District of Avoyelles Parish, Louisiana, Doug Anderson, Present Sheriff of Avoyelles Parish.
    Robert Allen Johnson, Johnson Law Firm, L.L.C., Marksville, LA, for Defendant/Appellee, Avoyelles Parish Police Jury.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, MARC T. AMY, JAMES T. GENOVESE and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

|,The plaintiffs in this matter alleged that the local law enforcement district had encroached on their property. In previous proceedings in this court, judgment was entered in favor of the plaintiffs, and the matter was remanded for a determination of damages. Subsequently, the defendants sought to have the matter dismissed as abandoned. After a contradictory hearing, the trial court found that abandonment had occurred and dismissed the case. The plaintiffs appeal. For the following reasons, we affirm.

Factual and Procedural Background

The original plaintiffs, Lillian Elizabeth Landaiche Roy, Constance Elizabeth Roy, Catherine Marie Roy, Sheldon Lewis Roy, and Lillia Elizabeth Roy, own property adjacent to that owned by the original defendants, Sheriff William J. “Bill” Belt and the Law Enforcement District of Avo-yelles Parish (collectively, the “Sheriff’). In 1999, the Roys filed suit, contending that the boundary between the two pieces of property is north of Bayou Sauvage. Further, the Roys alleged that the parish jail, which was constructed on the north side of Bayou Sauvage, encroached on the Roys’ property. Several other third party defendants were added, including the Avo-yelles Parish Police Jury and the heirs of the landowners who sold the property to the Police Jury.

| ^According to the record, trial was held in 2002. After taking the matter under advisement, Judge William J. Bennett of the Twelfth Judicial District Court, Division “B”, recused himself, and the matter was reassigned to Judge Kerry L. Spruill of Division “A”. However, Judge Spruill also recused himself from this matter. Thereafter, the supreme court appointed an ad hoc judge to hear the case. The ad hoc judge, Judge William P. Polk, Jr., rendered judgment in favor of the Sheriff. However, in Roy v. Belt, 03-1022 (La.App. 3 Cir. 2/18/04), 868 So.2d 209, writ denied, 04-1149 (La.7/2/04), 877 So.2d 147 {Belt I), a panel of this court reversed, finding in favor of the Roys. This court stated that the boundary line “between the Roys’ property and Sheriff Belt’s property is found to be that depicted on surveys prepared by Ralph Gagnard dated March 28, 1964[,] and James Townsend dated September 16, 1996.” Id. at 215-16. The panel remanded the matter for a determination of damages.

However, according to the defendants’ brief, Judge Polk passed away on November 21, 2003, several months before the panel’s decision in Belt I was rendered. In October of 2004, the plaintiffs filed a motion to substitute parties, which was granted by the successor Division “A” judge, Judge Mark A. Jeansonne. According to the record, several other actions were taken in the case in 2004-2005, including a motion to compel filed by the plaintiffs. We note that Judge Jeansonne signed the orders associated with those actions, and there is nothing in the record indicating that any party objected to Judge Jeansonne’s involvement in the case. On September 27, 2005, the plaintiffs filed a motion to continue the scheduled trial without date, “pending the receipt of an appraisal[.]” The record indicates that the next action taken in the case was motion for telephone status conference filed by |3the plaintiffs on May 25, 2012.

On June 21, 2012, the defendants filed an ex parte motion to dismiss the matter as abandoned. A contradictory hearing was held on the issue of abandonment, and Judge Jeansonne found that the matter was abandoned and dismissed the case.

The plaintiffs appeal, asserting that the trial court erred in dismissing the case on the grounds of abandonment.

Discussion

Abandonment

Louisiana Code of Civil Procedure Article 561 addresses the abandonment of actions, stating, in relevant part:

A. (1) An action, except as provided in Subparagraph (2) of this Paragraph, is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years, unless it is a succession proceeding:
(a) Which has been opened;
(b) In which an administrator or executor has been appointed; or
(c) In which a testament has been probated.
(3) This provision shall be operative without formal order, but, on ex parte motion of any party or other interested person by affidavit which provides that no step has been timely taken in the prosecution or defense of the action, the trial court shall enter a formal order of dismissal as of the date of its abandonment.

“[Abandonment is not meant to dismiss actions on mere technicalities, but to dismiss actions which in fact have clearly been abandoned.” Clark v. State 4Farm Mut. Auto. Ins. Co., 00-3010, p. 9 (La.5/15/01), 785 So.2d 779, 786. Thus, La.Code Civ. P. art. 561 should be liberally construed in favor of maintaining a plaintiffs action. Id. Accordingly, in order to avoid abandonment, a plaintiff must take some “step” towards prosecution of their lawsuit. “In this context, a ‘step’ is defined as taking formal action before the court which is intended to hasten the suit towards judgment, or the taking of a deposition with or without formal notice.” Id. at 784. Further, the step must be taken within the prescribed time period of the last step taken by either party. Id. The step must also be taken in the proceeding at issue and appear in the record, with the exception of formal discovery. Id.

Additionally, there are two jurisprudential exceptions to the abandonment rule. Clark, 785 So.2d 779. The first, based on the doctrine of contra non valen-tem, applies when the failure to prosecute is caused by circumstances beyond the plaintiffs control. Id. The second applies when the defendant takes “actions inconsistent with an intent to treat the case as abandoned” and therefore'waives his right to assert abandonment. Id. at 785.

On appeal, the trial court’s determination of whether a “step” in the prosecution of an action has been taken is a finding of fact which is subject to the manifest error standard of review. Lyons v. Dohman, 07-53 (La.App. 3 Cir. 5/30/07), 958 So.2d 771. However, whether that “step” precludes abandonment is a question of law which the appellate court reviews by determining whether the trial court’s decision is correct. Id.

Circumstances beyond the Plaintiffs’ Control

The plaintiffs argue that because the supreme court did not issue an order removing this matter from Judge Polk’s authority until 2012, which was more than eight years after his death, there was a circumstance beyond their control which |fiprecludes abandonment. The defendants contend that the plaintiffs continued to prosecute their action in 2004-05 and therefore acquiesced to Judge Jeansonne’s handling of the case. Additionally, the defendants argue that the plaintiffs could have requested the court take action to determine whether it was appropriate for Judge Jeansonne to hear the case.

According to our review, after Judge Polk passed away in 2004, the following items are contained in the record:

1)Motion and Order Substituting Parties Plaintiff, filed October 14, 2004, and signed by Judge Jeansonne on October 14, 2004;
2) Letter from Judge Jeansonne to the Louisiana Supreme Court, dated December 1, 2004;
3) Notice of Setting Conference, signed by Judge Jeansonne on December 3, 2004;
4) Motion to Enroll as Counsel for the Heirs of Charles Riddle, Jr. and Patrick Lemoine, Third Party Defendants, filed December 20, 2004, and signed by Judge Jeansonne on December 20, 2004;
5) Notice of Status Conference, signed by Judge Jeansonne on December 29, 2004;
6) Notice of Trial by Judge, signed by Judge Jeansonne on January 7, 2005;
lr¡7) Motion to Compel Discovery Responses, filed by plaintiffs on May 3, 2005, and set for hearing on June 3, 2005, by accompanying order signed by Judge Jeansonne on May 12, 2005;
8) Motion to Continue, filed by plaintiffs on May 26, 2005, and set for telephone status conference on June 14, 2005, by accompanying order signed by Judge Jeansonne on May 26, 2005;
9) Notice of Trial by Judge, signed by Judge Jeansonne on June 14, 2005;
10) Order setting deadlines, signed by Judge Jeansonne on September 15, 2005;
11) Motion to Continue trial setting without date on the basis that plaintiffs “have been unable to secure an expert appraiser in time for the trial[,]” filed on September 27, 2005, and accompanying order signed by Judge Jeansonne on September 27, 2005.

The next item in the record is a letter from plaintiffs’ counsel concerning settlement to Sheriff Anderson dated July 21, 2010. Thereafter, nothing was filed until the plaintiffs filed a Motion for Telephone Status Conference on May 18, 2012. The Sheriff subsequently filed a motion to dismiss as abandoned, which was set for contradictory hearing by Judge Jeansonne. The record indicates that on July 2, 2012, Judge Jeansonne sent a second letter to the supreme court concerning whether he was the proper judge to hear the ease. Soon thereafter, Jüdge Jeansonne notified the parties that he could “hear any pleadings that may be filed[,]” and the supreme court issued an order on July 16, 2012, rescinding Judge Polk’s appointment as ad hoc judge in this case.

|7At the contradictory hearing, Judge Jeansonne rejected the plaintiffs’ contention that they were unable to prosecute the case due to circumstances beyond their control, noting that changes in court personnel do not supersede the abandonment doctrine.

In Ledet v. Firemen’s Insurance Co. of Newark, New Jersey, 327 So.2d 645, 646 (La.App. 4 Cir.), unit denied, 330 So.2d 914 (La.1976), the fourth circuit rejected a plaintiffs argument that error by the clerk of court in misfiling a motion to fix for trial was a circumstance beyond the plaintiffs control, stating:

Admittedly plaintiffs counsel, for a reasonable period of time, would have no reason to suspect his signed order placing the case on the proper call docket for fixing and trial had been misfiled; however, we do think his inquiry and attention would have been excited before five years[] had elapsed.
In our view the failure of the deputy clerk of court to process this signed order is not a circumstance beyond the control of the litigant that would interrupt the tolling of the five-year period for statutory abandonment prescribed’in C.C.P. art. 561. In other words, there were available means to the plaintiff whereby he could have, within the five-year period, furthered the prosecution of his claim.

Similarly, in Faust v. Greater Lakeside Corp., 03-808 (La.App. 4 Cir. 11/26/03), 861 So.2d 716, writ denied, 04-424 (La.4/2/04), 869 So.2d 887, the plaintiffs appealed a grant of summary judgment dismissing some, but not all, defendants from their lawsuit. The defendants who were not involved in the appeal filed a motion to dismiss as abandoned, contending that, although the plaintiffs had been actively prosecuting their appeal, they had taken no action in the trial court as to the remaining defendants. Id. The fourth circuit found that the abandonment period was not interrupted while the plaintiffs were prosecuting their appeal as to some, but not all, of the defendants. Id.

| sFurther, although the plaintiffs in Faust also argued that a stay they had sought and obtained in the trial court constituted circumstances beyond their control which prevented them from prosecuting their case, the fourth circuit found that the contra non valentón exception did not apply. Faust, 861 So.2d 716. In so finding, the fourth circuit stated “we find it inconceivable that the plaintiff in an action can request a stay order, leave it in place for three years without taking any action to try to lift it, and then claim that the stay order prevented the case from being abandoned.” Id. at 721. See also Lee v. Commodore Holdings, Ltd., 00-1551 (La.App. 4 Cir. 12/6/06), 947 So.2d 158 (finding that, for purposes of abandonment, it was incumbent upon the plaintiff to occasionally inquire whether the automatic stay issued in bankruptcy proceedings had been lifted), writ denied, 07-800 (La.4/20/07), 954 So.2d 163. Compare with Ellzey v. Employers Mut. Liability Ins. Co., 888 So.2d 843 (La.App. 2 Cir.) (finding that letters sent to the clerk of court requesting that a matter be set for trial constituted a “step” in the prosecution of the action, even though the clerk neither filed the letters in the record nor acted on by the clerk of court), writ denied, 394 So.2d 617 (La. 1980).

Having reviewed the record, we find no error in the trial court’s determination that the death of Judge Polk and subsequent issue concerning which judge had the authority to hear the case did not create a circumstance out of the plaintiffs’ control. Notwithstanding the plaintiffs’ argument that there was no judge with the authority to hear the case prior to the supreme court’s July 2012 order, “there were available means to the plaintiff[s] whereby [they] could have ... furthered the prosecution of [their] claim.” Ledet, 327 So.2d at 646. At the hearing, Judge Jeansonne stated that any party could have asked him if he was the appropriate judge, and he would have written to the supreme court. Further, we l9note that this potential issue was actually resolved when such a letter was sent to the supreme court by Judge Jeansonne.

Accordingly, we find no error in the trial court’s conclusion that the contra non va-lentem exception to abandonment does not apply. This argument is without merit.

Waiver by the Defendants

The plaintiffs also contend that the defendants waived abandonment by engaging in informal discovery in 2010. They allege that they were contacted by one of the Sheriffs lawyers who requested an appraisal. However, our review of the record indicates that, at the contradictory hearing, the plaintiffs conceded that the defendants did not request the appraisal, but that they took the initiative in forwarding the appraisal to the defendants. Further, the record reveals that the plaintiffs stated that their sole basis for their opposition to abandonment was the contra non valentem argument.

At the hearing, the Sheriffs lawyer, Wesley Elmer, testified that he had not enrolled in this matter. According to Mr. Elmer, he did not know anything about this matter until he received a copy of a letter from the plaintiffs in July of 2010. Mr. Elmer testified that he “checked into it” and turned the matter over to the Sheriffs attorney of record in this case. Thereafter, as pointed out by the defendants, the plaintiffs conceded that their sole basis for opposing abandonment was the “authority issue.” In so doing, the plaintiffs’ attorney stated:

Your Honor, having talked to my client and just trying to figure it out. I didn’t have anything in my file that indicated a letter of contact from Wesley Elmer from him in writing. I recalled at the time because of the process and that’s why I put it in my memorandum that, because I didn’t know who was representing the new sheriff in the matter, if there was new representation because nothing had happened in the matter and so ...
Jifl- • • •
... the issue for me was, of course I didn’t know Mr. Elmer even represented Sheriff Anderson in any capacity at all ... so the issue for me is, and I think having talked to my client, that what actually happened was we didn’t have a value for the property, we had a hard time getting an appraisal, we finally got one because nobody knew the value of the property, that’s why I sent it to Sheriff Anderson because I didn’t know who was representing him directly in the matter. I think just as Mr. Elmer testified, I think after the letter was sent he did call me, so my time frame instead of being January of 2010, it may have been in fact August or so of 2010 that he contacted me because I only recall a telephone conversation with him about the matter, period. That’s all I recall and as counsel has indicated we sent the appraisal and nothing more took place. There was no more communication, counter offer, any discussion at all after sending that Your Honor.

Having heard this evidence, the trial court found that there was no evidence that the defendants took a position inconsistent with regard to abandonment of the litigation. The trial court’s finding of fact with regard to whether a “step” in the prosecution of an action has been taken is subject to the manifest error standard of review. Lyons, 958 So.2d 771. Based on our review of the record, we find no error in the trial court’s finding of fact with regard to this issue.

This assignment of error is without merit.

DECREE

For the foregoing reasons, the trial court’s judgment dated July 12, 2013, dismissing the plaintiffs-appellants’ action as abandoned is affirmed. Costs of this matter are allocated to the plaintiffs-appellants.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents for the reasons expressed by Judge GENOVESE.

GENOVESE, J., dissents and assigns reasons.

GENOVESE, J.,

dissents and assigns the following reasons.

ltIn this boundary action, the majority affirms the trial court’s judgment finding Plaintiffs’ lawsuit to have been abandoned. I disagree.

The facts in this case are not in dispute; hence, this is not a true manifest error case. In my view, this case presents a question of law.

Abandonment is not favored, and the abandonment statute, La.Code Civ. P. art. 561, must be liberally construed in favor of maintaining the action. Clark v. State Farm Mut. Auto. Ins. Co., 00-3010 (La.5/15/01), 785 So.2d 779. This case has a peculiar history and set of facts. Not only does this case involve a deceased judge whose subsequent and official replacement was not named until after the abandonment period had run, but Plaintiffs also have in place a definitive judgment as to liability.

As in most tort actions, there are two parts to this civil boundary action: liability and damages. It is undisputed, and the record clearly reflects, that this appellate court ruled in favor of the Plaintiffs, as to Defendant’s liability for inverse condemnation and remanded the case to the trial court for a determination of damages.

This presents the legal query: “Can a lawsuit be deemed completely abandoned when there is in place a final and definitive judgment on the issue of | ¡.liability?” I think not. But assuming, arguendo, that the lawsuit is legally abandoned, then what is the legal effect of the definitive judgment as to liability? Is. it not a judicial mortgage? And, taking it a step further, does the majority opinion negate, perempt, or overrule this appellate court’s decision establishing liability in favor of the Plaintiffs,, the effect of which is to have Plaintiffs with an actionable judgment as to liability, but no legal remedy as to damages?

In my view, the majority opinion in this case effectuates an indeterminate disposition of the matter. Liability is definitively established, but Plaintiffs have no legal remedy to pursue damages.

This case presents exceptional circumstances. Because our law demands a liberal construction in favor of maintaining an action, I would reverse the trial court judgment of abandonment and maintain the action.

      . The record indicates that Lillian Elizabeth Landaiche Roy passed away in June of 2004. Constance Elizabeth Roy and Sheldon Lewis Roy, as Mrs. Roy's executors, were substituted as party plaintiffs. We observe that Mrs. Roy is also referred to as "Lillia Elizabeth Landaiche Roy” and "Lillia Elizabeth Land-aiche Roy Patterson” in the record. We use the spelling contained in the original petition. Additionally, Constance Elizabeth Roy is also referred to as "Constance Elizabeth Roy Holderer” in the record, and Lillia Elizabeth Roy is referred to as "Lillian Elizabeth Roy” in the record. We use the spellings contained in the original petition. Further, since the institution of this lawsuit, Doug Anderson has been elected as Sheriff of Avoyelles Parish.

      . Bayou Sauvage is also referred to as "Bayou Savage” in the record.

      . The record also contains a letter from the plaintiffs’ attorney to Sheriff Anderson dated July 21, 2010.

      . Judge Jeansonne's letter of December 1, 2004, states:
      Dear Justice Knoll:
      The above matter was pending before the 12th JDC, and both judges (Bennett, Div. B. and Spruill, Div. A) recused themselves. Judge William Polk was appointed. Judge Polk subsequently passed away. Meanwhile, the 3rd Circuit has remanded Judge Polk’s ruling back to the 12th JDC.
      As successor judge in Div. A, I have no reason to recuse myself. Thus I assume I am the proper judge to preside over this matter. Please contact me if anything further is needed in this matter.
      Cordially,
      Mark A. Jeansonne
      Judge, Div. A

      . Although the parties focus on the Motion for Status Conference filed on May 18, 2012, we also note that the plaintiff's letter dated July 21, 2010, was sent to the defendants more than three years since the last "step” in the case, which was filed on September 27, 2005. Notwithstanding the inclusion of this letter in the record, "[sjteps in negotiations do not become a formal step in litigation merely by virtue of being filed in the record.” Clark, 785 So.2d at 783. Additionally, actions taken by the plaintiffs after the abandonment period has accrued cannot serve to prevent a judgment of dismissal from being entered. Lyons, 958 So.2d 771.

      . The time period for abandonment of an action in La.Code Civ. P. art. 561(A) was amended from five years to three years by 1997 La. Acts No. 1221, § 1, effective July 1, 1998.


source: Caselaw Access Project

author: PICKETT, Judge. GENOVESE, J.,

license: Public Domain

text:
    BASS CUSTOM SIGNS, LLC v. LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT, et al.
    No. 14-131.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 2014.

      Alan K. Breaud, Timothy Wayne Bas-den, Breaud & Meyers, Lafayette, LA, for Plaintiff-Appellant, Bass Custom Signs, LLC.
    Jeremy A. Hebert, Stuart R. Breaux, Becker & Hebert, LLC, Lafayette, LA, for Defendant-Appellee, Lafayette City-Parish Consolidated Government, Lafayette City-Parish Board of Zoning Adjustment.
    Court composed of ELIZABETH A. PICKETT, JAMES T. GENOVESE, and PHYLLIS M. KEATY, Judges.
   PICKETT, Judge.

| ,Bass Custom Signs, LLC, appeals a judgment of the trial court granting an Exception of No Right of Action and dismissing its claims against Lafayette City-Parish Consolidated Government (Lafayette).

STATEMENT OF THE CASE

Bass Custom Signs contracted with Lafayette Shooters, Wilderness & Western Wear, Inc., to modify a sign. Because of changes to the zoning ordinance in Lafayette, the sign did not conform to the signage regulations, but was allowed to remain because it existed prior to changes in the zoning law. The contract required Bass Custom Signs to apply for and secure the necessary permits for the modifications, which it did. The Board of Zoning Adjustment did not approve the permit request. Bass Custom Signs appealed the decision to the district court in accordance with La.R.S. 33:4727. Lafayette filed an Exception of No Right of Action. The trial court granted the éxception and dismissed the case. Bass Custom Signs now appeals.

ASSIGNMENT OF ERROR

On appeal, Bass Custom Signs asserts one assignment of error:

The trial court erred in granting the Exception of No Right of Action filed by Lafayette Parish. Bass has standing to challenge the decision of the Board of Zoning Adjustment as' “a person aggrieved” by the zoning ruling [for purposes of La.R.S. 33:4727(E)(1)].

DISCUSSION

The only issue in this appeal is whether Bass Custom Signs is entitled to bring an action in district court appealing the decision of the Board of Zoning Adjustment. Louisiana Revised Statutes 33:4727(E)(1) states:

12Any person or persons jointly or severally aggrieved by any decision by the board of adjustment of any officer, department, board, or bureau of the municipality, may present to the district court of the parish or city in which the property affected is located a petition, duly verified, setting forth that the decision is illegal, in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the court within thirty days after the filing of the decision in the office of the board.

Bass Customs Signs claims that they are “a person aggrieved” because the Board of Zoning Adjustment’s refusal to approve the modifications caused them to lose the contract to modify the sign. Lafayette successfully argued below that the proper party to bring the appeal to the district court is the owner of the business or the landowner.

“The function of the exception of no right of action is to determine whether the plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the suit.” Hood v. Cotter, 2008-0215, p. 17 (La.12/2/08), 5 So.3d 819, 829. An appellate court reviewing a lower court’s ruling on an exception of no right of action should focus on whether the particular plaintiff has a right to bring the suit and is a member of the class of persons that has a legal interest in the subject matter of the litigation, assuming the petition states a valid cause of action for some person. Id.; Badeaux v. Southwest Computer Bureau, Inc., 2005-0612, p. 6-7 (La.3/17/06), 929 So.2d 1211, 1217; Turner v. Busby, 2003-3444, p. 4 (La.9/9/04), 883 So.2d 412, 415-416; Reese v. State, Dept. of Public Safety and Corrections, 2003-1615, p. 3 (La.2/20/04), 866 So.2d 244, 246.
The determination whether a plaintiff has a right to bring an action raises a question of law. A question of law requires de novo review. Holly & Smith Architects, Inc. v. St. Helena Congregate Facility, Inc., 2006-0582, p. 9 (La.11/29/06), 943 So.2d 1037,1045.

Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 10-2267, 10-2272,10-2275, 10-2279, 10-2289, pp. 6-7 (La.10/25/11), 79 So.3d 246, 255-56.

Bass Custom Signs argues that we should interpret La.R.S. 33:4727(E)(1) broadly so as to confer standing to it. We must consider what the term “a person aggrieved” means in the context of the zoning laws. We note the following language in a legal treatise on the subject. In Zoning and Planning Deskbook, | ^Professor Douglas W. Kmiec, a law professor at Pepperdine University, the former Deán of the The Catholic University in America, and a former Special Assistant to the Secretary of the U.S. Department of Housing and Urban Development, discussed standing to bring a challenge to a zoning ruling in court and stated:

While it is simple enough to state that a “person aggrieved” has standing to challenge zoning in court, the problem arises of determining who is a “person aggrieved.” The exact contours of the definition, and thus, the determination of who has standing, have developed largely in state common law. Generally, two elements are required. The plaintiff must show some interest in land affected by the zoning and the plaintiff must allege specific pecuniary damage.

Douglas W. Kmiec and KatheRINe Kmiec TURNER, 2 ZONING & PLANNING DESKBOOK § 7:8 (2d ed.). We agree with this analysis.

Zoning ordinances are in derogation of the right of landowners to the unrestricted use of their property. Palm-Air Civic Ass’n v. Syncor Int’l, 97-1485 (La.App. 4 Cir. 3/4/98), 709 So.2d 258. Clearly, a landowner aggrieved by a decision of the Board of Zoning Adjustment has standing to appeal that judgment. In this case, the landowner has affected has not appealed. Because zoning laws further the purpose of protecting the value of neighboring property, owners of neighboring property and neighborhood associations have been granted standing. See, e.g., State, ex rel. Maple Area Residents, Inc. v. Bd. of Zoning Adjustments, (La.App. 4 Cir.1978), 365 So.2d 891.

The res nova issue before us is whether a contractor prevented from performing a contract because of the decision of the Board of Zoning Adjustment has standing to bring the suit. We find that it does not. We interpret the term “a person aggrieved” to require that the person have a proprietary interest in immovable property subject to the zoning ordinance or variance at issue, or in immovable property affected by the ordinance or variance, in order to challenge a |4decision of the Board of Zoning Adjustment in district court. Under the scheme of zoning legislation in place in Lafayette, Bass Custom ■ Signs is not “a person aggrieved” of the decision of the Board of Zoning Adjustment. It may be impacted by the landowner’s decision not to modify the sign so that is consistent with the zoning ordinances now in place, but that does not confer standing to challenge the decision of the Board of Zoning Adjustment in the courts.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed to the appellant, Bass Custom Signs.

AFFIRMED.

GENOVESE, J., dissents and assigns written reasons.

GENOVESE, J.,

dissents and assigns the following reasons.

|, The sole issue before this court is one of “standing.” The trial court ruled that the Plaintiff, Bass Custom Signs, LLC (Bass), has no standing to bring this action. In addressing the issue of standing on appeal, the majority states, “We interpret the term ‘a person aggrieved’ to require that the person have a proprietary interest ... in order to challenge a decision of the Board of Zoning Adjustment in district court.” I disagree.

Zoning ordinances are broadly interpreted in favor of the unrestricted use of property. As stated in Palm-Air Civic Association, Inc. v. Syncor International, Corp., 97-1485, p. 7 (La.App. 4 Cir. 3/4/98), 709 So.2d 258, 262:

The first principal of zoning law is that because zoning ordinances are in derogation of a citizen’s constitutionally protected right to own and use his property, they must be construed, when subject to more than one reasonable interpretation, according to the interpretation which allows the least restricted use of the property.

Under the well-settled rules of statutory interpretation applicable to a zoning issue, a construction of the law which favors unrestricted use prevails over a construction which serves to restrict use. This rule of construction was not applied in the instant case. Bass is definitely “a person aggrieved” insofar as it is directly and economically affected by the decision of the Board of Zoning Adjustment 12(Board). As a result of the Board’s decision, Bass’ $120,000.00 contract to perform sign work for Lafayette Shooters is nullified. Nowhere in the zoning statute, La.R.S. 33:4727(E)(1), does it state or require that an aggrieved person must have a “proprietary interest” in order to challenge a zoning decision.

The majority opinion rewrites the zoning statute to require an aggrieved person to have a proprietary interest in order to challenge a zoning decision. It is not the function of this court to make or change the law. That is for the legislature.

The majority’s interpretation that “a person aggrieved” must have a proprietary interest is a narrow and restricted one as opposed to a broad one favoring the least restricted use of the property. For the reasons set forth above, I dissent from the majority opinion in this case. I would reverse the trial court’s grant of the Exception of No Right of Action dismissing the case and find that Bass does have a right to challenge the zoning decision of the Board.


author: SAUNDERS, Judge.

text:
    Christopher BARKER v. LEMIC INSURANCE CO., et al.
    No. 14-301.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 2014.
    George Carnal Gaiennie, III, Christopher J. Roy, Sr., Alexandria, LA, for Plaintiff/Appellant, Christopher Barker.

      David Thomas Butler, Jr., Funderburk & Butler, Baton Rouge, LA, for Defendants/Appellees, LEMIC Insurance Co. Upchurch Plumbing, Inc.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

I,This appeal addresses the application of La.R.S. 28:1203.1 in light of recent jurisprudence. The precise question before the court is whether La.R.S. 23:1203.1 applies to requests for medical treatment and/or disputes arising out of requests for medical treatment in cases in which the work-related accident or injury occurred prior to the effective date of the medical treatment schedule, but the request for approval was submitted after the effective date of the treatment schedule.

The Office of Workers’ Compensation (hereafter “OWC”) held that the medical treatment guidelines applied retroactively and that Chris Barker (hereafter “Appellant”) failed to establish by clear and convincing evidence that the medical director failed to follow the treatment guidelines. In light of the latest pronouncement by the highest court of our state, we must affirm the OWC’s decision.

FACTS AND PROCEDURAL HISTORY

Appellant was involved in an accident during the course and scope of his employment with Upchurch Plumbing, Inc. on April 28, 2005, when he was knocked off a scissor lift and fell to the floor. The employer’s workers’ compensation insurance provider was LEMIC Insurance Company.

Appellant began psychotherapy with James Quillan, Ph.D., a neuropsychologist and medical psychologist, on August 25, 2005. On August 9, 2012, Appellees denied continued psychotherapy recommended by Dr. Quillan. Appellant thereafter filed a Disputed Claim for Medical Treatment with the medical director, and the appeal was denied. On October 22, 2012, Dr. Quillan prescribed medication, for which Appellant had previously received authorization. However, authorization was denied. , Appellant filed another Disputed Claim for Medical Treatment. On December 21, 2012, Dr. Quillan again prescribed [ 2medication for which Appellant had previously received authorization. Appellees again denied authorization. Appellant filed a third Disputed Claim for Medical Treatment. His appeal was denied. The instant litigation arose on February 26, 2013, when Appellant filed a Disputed Claim for Compensation. In his Disputed Claim, Appellant alleged that his employer and its insurer had failed to authorize continued psychotherapy and medication refills recommended by Dr. Quillan. Appellant alleged his claim was not subject to review by the medical director. In addition to seeking authorization for the requested treatment and medication, Appellant requested an award of penalties and attorney’s fees.

Appellant argued that the medical treatment schedule promulgated under La.R.S. 23:1203.1 did not apply to his claim because he was injured before its effective date. The OWC disagreed, relying on Cook v. Family Care Services, Inc., 13-108 (La.App. 3 Cir. 8/28/13), 121 So.3d 1274. The OWC further found that Appellant had not proven the medical director failed to follow the treatment guidelines by clear and convincing evidence because there was no testimony from Appellant’s medical provider that his care was in compliance with the medical treatment schedule or that there was a need for a variance from the medical treatment schedule. The OWC noted “[Appellant] made no progress towards returning to work, which is the hallmark or benchmark under the medical treatment schedule.” It is from this judgment that this appeal arises.

On appeal, Appellant asserts the following assignments of error:

ASSIGNMENTS OF ERROR:

1. OWC erred in finding La.R.S. 23:1203.1 applies retroactively to Appellant’s Disputed Claim; and
|¾2. OWC erred in failing to order the requested treatment and in not awarding penalties and attorney’s fees because the employer and insurer failed to reasonable controvert Appellant’s claim for treatment.

ASSIGNMENT OF ERROR NUMBER ONE:

support of his argument that OWC erred in finding La.R.S.23:1203.1 ap-apto his claim retroactively, Appellant cites Romero v. Garan’s, Inc., 13^482 13-482 (La.3 Cir. 12/26/13), 130 So.3d 451, this court’s most recent decision concerning the retrospective application of La.R.S. 23:1203.1. In Romero, this court specifical-specificaloverruled Cook, 121 So.3d 1274. A pan-panof this court explained, “[w]e agree that La.R.S. 23:1203.1 should have prospective application only ... [although the law ap-apto be procedural in nature, it has a substantive effect.” Romero, 130 So.3d at 458.

Following the decision of Romero, the Louisiana Supreme Court addressed the issue in Church Mutual Insurance Co. v. Dardar, 13-2351, pp. 24-25 (La.5/7/14), 145 So.3d 271. There, the court explained:

The statute does not go back to the past to either evaluate the conditions of the legality of an act, or to modify or suppress the effects of a right already acquired, or vested. Effectively, La.R.S. 23:1203.1 is a procedural vehicle that concerns the procedure for enforcing a substantive right. As such, it does not impinge on or lessen the substantive right to necessary medical treatment conferred by La.R.S. 23:1203. Rather, it applies prospectively to all requests for medical treatment and/or disputes arising out of requests for medical treatment arising after the effective date of La.R.S. 23:1203.1 and the medical treatment schedule, regardless of the date of accident.

The Church Mutual decision is the latest pronouncement by the highest court of this state. It is clear that our supreme court has concluded La.R.S. 23:1203.1 is procedural and applies to all requests for medical treatment made after the effective date of the statute and any disputes that may arise out of such requests, |4regardless of the date of the accident. Accordingly, we must affirm the trial court’s ruling on this issue.

ASSIGNMENT OF ERROR NUMBER TWO:

[2] concluded that Church Mu-Murequires a finding that La. R.S.23-.1203.1 applies to Appellant’s claims, we turn to his claim for penalties and attorney’s fees for failure to pay medical benefits.

[3] employer must have an ‘artic-‘artic-and objective reason to deny bene-beneat the time it took the action.’ ” Lan-Lanv. Furniture Ctr., 05-643, p. 10 (La. (La.3 Cir. 1/11/06), 920 So.2d 304, 311, urrit writ 06-0358 (La.4/28/06), 927 So.2d 290 (quoting Authement v. Shappert Eng’g, 02-1631, p. 11 (La.2/25/03), 840 So.2d 1181, 1188). This standard applies to the denial of medical benefits. Id. at 312.

As we have already determined, the medical treatment guidelines apply retroactively to Appellant’s claim. The employer and its insurer provided an “articulable and objective reason” for denial; the medical benefits requested were not in compliance with the .medical treatment schedule. Therefore, we find that the trial court was correct in failing to order the requested treatment and in denying the request for penalties and attorney’s fees.

CONCLUSION

For the foregoing reasons we affirm the trial court’s judgment. All costs of this appeal are assessed to Appellant.

AFFIRMED.


text:
    Marshall TROGLEN v. HYDRAULIC WELL CONTROL, et al.
    No. 14-308.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 2014.

      Louis Roy Koerner, Jr., Koerner Law Firm, Houma, LA, R. Brent Cueria, Cue-ria Law Firm, LLC, New Orleans, LA, for Plaintiff/Appellant Marshall Troglen. •
    Laurie Briggs Young, Adams and Reese, New Orleans, LA, for Defendants/Appel-lees Hydraulic Well Control, Boots & Coots Services, LLC.
    Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   SAUNDERS, Judge.

11 This is a Jones Act case where a trial court found that the injured worker failed to carry his burden to prove that he is a seaman. As such, the trial court dismissed the injured workers’ Jones Act claims against his employer.

The injured worker filed this appeah He first argues that the trial court utilized the incorrect legal standard in reaching its determination that he failed to carry his burden of proof. Secondly, the injured worker alleges that he did carry his burden to prove that he was a Jones Act seaman.

FACTS AND PROCEDURAL HISTORY:

Marshall Troglen (Troglen) began working for Hydraulic Well Control/Boot and Coots Services, L.L.C. (B & C) on June 12, 2008, in a land-based warehouse. Soon thereafter, Troglen expressed interest in offshore work.

B & C was hired by Nexen, an oil and gas company that develops energy resources, to restore its well located on a platform fixed to the outer continental shelf in the Gulf of Mexico. Troglen was assigned to work as a helper for this job by B & C.

On this particular job, B & C’s employees, as well as other employees from different companies, ate, slept, and used the restroom facilities on the RAM VII. The RAM VII, a vessel, is a jack-up rig that was attached to the fixed platform by a gangway. One other vessel on this particular job was a supply boat that carried materials between the fixed platform and land. B & C had no contract with either vessel to provide these services. Presumably, these vessels, like B & C, were contracted by Nexen.

On August 14, 2008, Troglen was injured while working on the fixed platform. The injury occurred when an errant toss by his coemployee resulted in a | {.piece of Teflon striking Troglen in the face. The piece of Teflon was in the shape of a pipe and weighed approximately two-and-a-half pounds. Tossing the piece of Teflon was not proper protocol as delineated by B & C.

On December 29, 2008, Troglen filed a petition for damages against B & C. In that petition, he alleged entitlement to various compensation based on his status as a seaman under the Jones Act. In response, B & C filed a motion for summary judgment asserting that Troglen was not entitled to the compensation sought because he was not a seaman under the Jones Act. The trial court denied B & C’s motion finding that a genuine issue of material fact existed on the issue.

On August 1, 2013, after conducting a trial on the merits, the trial court rendered and signed a judgment that Troglen failed to carry his burden to prove that he was a seaman under the Jones Act and, thus, dismissed his claims against B & C. Troglen filed a motion for new trial on August 12, 2013. His motion was denied via judgment signed on December 11, 2013. Troglen filed this appeal before us on December 19, 2013. In this appeal, Troglen raises two issues for review.

ISSUES PRESENTED FOR REVIEW:

1. The trial court erred by using an incorrect legal standard in its deliberation of whether Troglen was a seaman, thereby committing an error of law which necessitates a de novo review.

2. The trial court erred in holding that Troglen was not a seaman and, as such, erred by dismissing Trogleris claims under the Jones Act.

ISSUE PRESENTED FOR REVIEW NUMBER ONE:

Troglen contends that the trial court erred by using an incorrect legal standard in its deliberation of whether he was a seaman, thereby committing an Rerror of law which necessitates a de novo review. We do not find any merit to Tro-gleris contention.

Trogleris first issue raises a question of law because in it he asserts that the trial court incorrectly applied the standard created by the United States Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995), to ascertain whether one is a “seaman” under the Jones Act. Appellate review of questions of law are de novo in deciding whether the court’s decision below was based on an erroneous application or interpretation of the law. Platinum City, L.L.C. v. Boudreaux, (La.App. 3 Cir. 11/23/11), 81 So.3d 780 (citing Conagra Poultry Co. v. Collingsworth, 30,155 (La.App. 2 Cir. 1/21/98), 705 So.2d 1280).

Troglen writes in brief that “[t]he judgment by the district court and the facts on which it relied to conclude that Troglen was not a seaman are not entitled to the deferential manifest error standard of review, since the district court’s conclusion was based on the application of incorrect principles of law.” After this statement, in his summary of the argument, Troglen asserts that “ ‘[tjime spent in the service of vessels’ and ‘time actually physically spent on such vessels’ have different legal significances not considered by the district court, who utilized the incorrect standard of time spent physically on vessels as compared to prior land or platform assignments not involving vessels.” Thereafter, Troglen states that “[n]o legal standard required 50% physical presence on the RAM VII. The highest such standard is 30%.”

Although Troglen does not directly state how he contends the trial court incorrectly applied the Chandris test, in reviewing his brief in its entirety, we are able to determine the basis for his contention. Troglen asserts that the trial court |4incorrectly based its finding that he failed to carry his burden to prove that he was a Jones Act seaman solely upon how much time he physically spent on a vessel.

Our review of the record does not indicate that the trial court found Troglen was not a seaman solely because he was not physically working on the RAM VII 50% of the time. Rather, it is clear that the trial court determined that Troglen was not credible and, as such, it did not give credence to his assertion that he spent 50% of his time working on the RAM VII. The trial court then cited testimony contrary to Trogleris assertion that he spent 50% of his time physically on the RAM VII. After citing that testimony, the trial court went on to cite various facts that it found relevant to its determination, such as how much of the work performed by Troglen was done on the fixed platform, how much time was spent assisting third parties on the RAM VII, what the RAM VII was used for on the job, and how much time and how often Troglen went to the RAM VII during a shift or tour to retrieve items necessary for the performance of B & C’s job.

Accordingly, we find no merit to Tro-glen’s assertion that the trial court committed legal error by using an incorrect legal standard in its deliberation of whether he was a seaman. The trial court merely made a credibility determination to find, as fact, how much time Troglen physically spent on the RAM VII. This found fact was a relevant one in the application of the Chandris test, and there is no indication that the trial court used it as the sole factor for determining that Troglen failed to carry his burden to prove that he was a seaman.

ISSUE PRESENTED FOR REVIEW NUMBER TWO:

In his second issue presented for review, Troglen asserts that the trial court erred in holding that he was not a seaman and, as such, erred by dismissing his claims under the Jones Act. We do not agree.

|¡;The question of seaman status is a mixed question of law and fact. Chandris, 515 U.S. 347, 115 S.Ct. 2172. When the interpretation of statutory terms are at issue, it is a question of law. Id. However, when the legal standard is property applied, a determination of who is a seaman is a question for the fact finder. Id.

Troglen does not allege an improper interpretation of statutory terms in this particular issue presented for review. Thus, as is typically the case in general maritime and Jones Act cases, the manifest error standard of review is applicable. Coutee v. Global Marine Drilling Co., (La.2/22/06), 924 So.2d 112.

The Jones Act grants a seaman a cause of action, yet does not define “seaman.” Thus, the Jones Act “leaves to the courts the determination of exactly which maritime workers are entitled to admiralty’s special protection.” Chandris, Inc. v. Latsis, 515 U.S. at 355,115 S.Ct. 2172.

The United States Supreme Court in Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172 [132 L.Ed.2d 314] ... (1995), set forth the elements for seaman status as follows: (1) the employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission; (2) a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature. See Chandris, 515 U.S. at 368, 115 S.Ct. at 2190.
The Chandris court explained that the first element was intended to exclude from Jones Act protection those individuals who do not perform the ship’s work. The court recognized, however, that the threshold requirement is very broad, stating that “all who work at sea in the service of a ship” are eligible for seaman status. See Id.
The second element, however, is a more narrow inquiry. The Chandris court explained the element as follows:
The fundamental purpose of the substantial connection requirement is to give full effect to the remedial scheme created by Congress and to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection with a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea. See IB A. |fiJenner, Benedict on Admiralty § 11a, pp. 2-10.1 to 2-11 (7th ed.1994) (“If it can be shown that the employee performed a significant part of his work on board the vessel on which he was injured, with at least some degree of regularity and continuity, the test for seaman status will be satisfied” (footnote omitted)).
Chandris, 515 U.S. at 368-69, 115 S.Ct. at 2190.
The Chandris court then provided guidance in ascertaining who is a “member of the crew” and, therefore, a seaman. The court held:
“[T]he total circumstances of an individual’s employment must be weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant thereon.” Wallace v. Oceaneering Int’l, 727 F.2d 427, 432 (C.A.5 1984). The duration of a worker’s connection to a vessel and the nature of the worker’s activities, taken together, determine whether a maritime employee is a seaman because the ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land-based employee who happens to be working on the vessel at a given time.
A maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land-based and therefore not a member of the vessel’s crew, regardless of what his duties are. Naturally, substantiality in this context is determined by reference to the period covered by the Jones Act plaintiffs maritime employment, rather than by some absolute measure.
A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases. As we have said, “[t]he inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee’s precise relation to it.” [McDermott Int’l. Inc. v.] Wilander, 498 U.S. [337], at 356, 111 S.Ct. [807], at 818 [112 L.Ed.2d 866 (1991) ].
Chandris, 515 U.S. at 370-71, 115 S.Ct. at 2190-91.
|7In 1997, the United States Supreme Court in Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 117 S.Ct. 1535 [137 L.Ed.2d 800] ... (1997), further clarified the rule by stating:
For the substantial connection requirement to serve its purpose, the inquiry into the nature of the employee’s connection to the vessel must concentrate on whether the employee’s duties take him to sea. This will give substance to the inquiry both as to the duration and nature of the employee’s connection to the vessel and be helpful in distinguishing land-based from sea-based employees.
Harbor Tug, 520 U.S. at 555, 117 S.Ct. at 1540.

Richard v. Mike Hooks, Inc., 01-145, pp. 3-5 (La.10/16/01), 799 So.2d 462, 465-66 (alterations in original).

In the case before us, the trial court issued a judgment dismissing Tro-glen’s claims because it found that Troglen failed to prove that he was a Jones Act seaman. Given the standard of review, we must determine whether a reasonable factual basis exists in the record for the trial court to have made that finding.

Mr. William LeBlane, a former employee of B & C and coworker that Troglen worked directly under, testified that he and Troglen worked for B & C at the time of the accident and that Troglen spent at least 80% of his time during working hours on the fixed platform. LeBlane discussed that Troglen’s job duties as a helper entailed being a “gopher” for tools located in the tool box that were needed by the other more skilled workers in performing their job. The tool box in this particular case was located on the fixed platform. Le-Blanc further testified that Troglen’s job duties would not have required him to spend any more time on the RAM VII than any of the other B & C employees, that none of the B & C workers were allowed in certain areas on the RAM VII or the supply vessel, and that Troglen was not a member of either the supply vessel’s or the RAM VII’s crew. Finally, LeBlane, testified that B & C had no control in terms of crewing, upkeep, or | ^maintenance over either the supply vessel or the RAM VII, that workers from various companies ate, slept, and used the restroom facilities on the RAM VII, and that nearly all of the pipe being used by B & C for its restoration job was on the fixed platform with a minimal amount stored on the RAM VII.

The testimony of Mr. Eulen J. Berger-on, Jr. was similar to that of Mr. LeBlane. Mr. Bergeron was the House and Safety Environment Manager for B & C at the time of the accident, but, like Mr. LeBlane, was no longer employed by B & C at the time of his testimony. He testified that B & C generally worked under the guidance and direction of a “company man,” in this particular case, an employee of Nexen. Mr. Bergeron testified that their mission was to perform work on the well and that the vessels did not assist B & C in that mission because they only “provided living quarters, eating space, a galley, and additional storage space.” Further, while Mr. Bergeron agreed that it was necessary for the supply boat to bring B & C’s equipment to the fixed platform on this particular job, he stated that the supply boat was not chartered by B & C. Additionally, he testified, as Mr. LeBlane did, that B & C had no crew on either the supply boat or the RAM VII and that the majority of B & C’s work was performed on the fixed platform.

Another of Troglen’s coworkers, Mr. Brinton Johnson, provided deposition testimony entered into the record as an exhibit. Like Mr. LeBlane and Mr. Bergeron, Mr.. Johnson testified in his deposition that his and Troglen’s work was on the fixed platform, not the RAM VII. He characterized the RAM VII as “just a means of sleeping and somewhere where we could eat.” Johnson testified that on this job they used the RAM VII as a work area “very seldom” and that they stored minimal supplies on the RAM VII that were not expected to be used on a particular day of work. He also testified that the supply boat made trips to and from land |9under the direction of Nexen, not B & C. Finally, Johnson testified that “[t]he guys on the RAM VII do not work with us as far as our operation.”

Given the testimony above, we find that a reasonable factual basis exists for the trial court to find that Troglen failed to carry his burden to prove that he was a Jones Act seaman. The summation of the witness testimony can reasonably be interpreted that Troglen’s connection to the RAM VII was tenuous and, therefore, not substantial in duration or nature as required by the second prong of the Chan-dris test. Accordingly, we find no merit the Troglen’s second issue presented for review.

CONCLUSION:

Marshall Troglen appeals the trial court’s judgment dismissing his Jones Act claims against Hydraulic Well Control, a subsidiary of/and Boots & Coots Service, L.L.C. because it found that he failed to carry his burden to prove that he met the qualities of a Jones Act seaman. After reviewing the two issues presented for review by Troglen, we find no error by the trial court in its judgment. The trial court used the correct legal standard to reasonably find that Troglen failed to carry his burden of proof. Accordingly, we affirm the judgment of the trial court and assess all costs of these proceedings to Marshall Troglen.

AFFIRMED.


author: GREMILLION, Judge. AMY, J.,

text:
    State in the Interest of A.S.L. v. J.L.
    No. 14-400.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 8, 2014.
    Susan Ford Fiser, Attorney at Law, Alexandria, LA, for Plaintiff/Appellee: A.S.L. (child).
    Brian K. Thompson, Law Offices of Brian K. Thompson, APLC, Alexandria, LA, for Appellant: M.D. (mother).
    Jennifer O. Robinson, Attorney At Law, Lafayette, LA, for Defendant/Appellee: J.L. (father).

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   GREMILLION, Judge.

| ]The appellant, M.D., appeals the trial court’s grant of the defendant-appellee’s exceptions of no cause of action and prematurity. For the following reasons, we reverse and remand.

. FACTUAL AND PROCEDURAL BACKGROUND

M.D. is the mother of A.S.L., who was born on February 15, 2010. J.L. is the biological father of A.S.L. M.D. and J.L. were never married. On September 6, 2013, M.D. filed a petition to terminate the parental rights of J.L. based on abandonment of the child pursuant to La.Ch.Code art. 1015(4). On October 15, 2013, J.L. filed exceptions of no cause of action and prematurity on the basis of ongoing custody litigation that originated with his April 26, 2013 Rule for Custody/Visitation filed in the Ninth Judicial District Court. Following a November 2013 hearing, the trial court granted J.L.’s exception of no cause of action “based upon the previously filed Petition to Establish Custody filed by the defendant in captioned matter [J.L. v. M.D.], Civil Suit No. 247,311 “D”.” Thereafter, M.D. applied for supervisory writs with this court which were denied because there existed a final, appealable judgment. However, we considered M.D.’s writ as a timely filed motion for appeal.

ASSIGNMENTS OF ERROR

M.D. sets forth the following assignments of error:

1. The Trial Court committed legal error by granting the Exception of No Cause of Action and Prematurity filed on behalf of [J.L.]; and
2. The Trial Court committed legal error by refusing to acknowledge La. Ch.C. Art. 1001.1, which provides for priority docketing in termination proceedings.

I ..DISCUSSION

The issue in this case is the procedural posture required under La.Ch.Code art. 1001.1. and whether a petition for termination supersedes ongoing custody litigation. At the hearing on the exception the trial court stated:

I’ll procedurally make that clear. The termination proceeding is continued' without date, pending adjudication in Division “D”. Or, if Division “D” wants to ' formally transfer everything to me, bring it to me and we’ll have a full-blown hearing. But I will not rule to terminate until the custody issue is resolved.
The Court is refusing to act at this time on the termination of his rights. I have not taken any testimony or evidence. It’s a procedural issue, and you have a right to appeal. That’s acknowledged, and you may proceed.

M.D. argues that the intent of La.Ch. Code art. 1001.1 is to allow for the best interests of the child to be ensured if a ground justifying the termination of parental rights is proven. M.D. further argues that ignoring the mandates of La.Ch.Code art. 1001.1 would allow a parent to circumvent termination proceedings by quickly filing a rule for custody/visitation. M.D. claims this would result in a child being tied up in a visitation arrangement for months while normal legal delays run rather than having an expeditious determination if termination is appropriate. J.L. argues that La.Ch.Code art. 1001.1 was not intended to apply to instances in which there is ongoing custody litigation citing C.D.J. v. B.C.A., 11-378 (La.App. 3 Cir.10/5/11), 74 So.3d 300. Louisiana Children’s Code Article 1001.1 states (emphasis added):

Any petition filed and any proceeding held under the provisions of this Title shall be given priority, to the extent practicable, over any other civil action before the court, except emergency proceedings for the protection of the child under Articles 617 through 627, or Domestic Abuse Assistance proceedings under Chapter 8 of Title XV. Any petition filed under the provisions of this Title shall be docketed \fimmediately upon filing, and hearings shall be scheduled for the earliest dates practicable.

The language of this article is clear and unequivocal. When a petition for termination has been filed, a hearing on the merits must be held in priority to all other civil proceedings with two exceptions that do not apply here. The fact that preexisting and/or ongoing custody litigation exists goes to the merits of the termination proceeding. A pre-existing petition for custody and/or visitation does not serve as a bar to the requirements of La.Ch.Code art. 1001.1. There need not be an existing custody order in effect to determine whether a-parent’s rights should be terminated.

We are mindful of the decision set forth by a panel of this court in C.D.J. which involved an intra-family adoption. In C.D.J., the mother and stepfather petitioned for adoption pursuant to La.Ch. Code art. 1245. A panel of this court found that the trial court did not err in dismissing the petition based on the father’s exceptions of no cause of action and prematurity because there was “on-going litigation relating to custody.” C.D.J., 74 So.3d at 302. Louisiana Children’s Code Article 1001.1 was not at issue in C.D.J., and we find it distinguishable from the current case.

While we may have ultimately found no error in the trial court’s factual determination that the ongoing custody litigation precluded the termination of parental rights when the reason claimed for termination is abandonment pursuant to La.Ch. Code art. 1015(4), the trial court procedurally erred in granting J.L.’s exceptions 14of no cause of action without conducting a full hearing on the merits of the termination. Accordingly, we reverse the trial court’s grant of J.L.’s exceptions of no cause of action and prematurity and remand this case for proceedings consistent with this opinion.

CONCLUSION

The judgment of the trial court granting the exception of no cause of action in favor of the defendant-appellee, J.L., is reversed. We remand this case for proceedings consistent with this opinion. All costs of this appeal are assessed to the defendant-appellee, J.L.

REVERSED AND REMANDED.

AMY, J., concurs in the result and assigns written reasons.

AMY, J.,

concurring in the result.

|, The majority opinion excerpts a portion of the transcript indicating that the trial court expressed concern regarding the propriety of considering the merits of M.D.’s proceeding in light of the custody matter pending in another division of the court. The transcript also reflects that the trial court and the parties discussed the issue within the context of - prematurity, another exception filed by J.L. Ultimately, however, the judgment rendered by the trial court reflected a granting of the exception of no cause of action. I agree with the majority that the petition in this matter does, in fact, state a cause of action. Without addressing the merits of M.D.’s claim and without going beyond the immediate and limited question of whether the trial court was correct in granting the exception of no cause of action, which I conclude was in error, I would reverse and remand this matter to the trial court for further proceedings.

      . Pursuant to Rules 5-1 and 5-2 of the Uniform Rules — Courts of Appeal, we use initials throughout to protect the identity of the minor child.