author: COOKS, Judge. GREMILLION, Judge,

text:
    Shelia BOUDREAUX, et al. v. Alfred FRANKS, et al.
    No. 12-647.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2012.

      Chris Villemarette, Chris Villemarette, L.L.C., Lafayette, LA, for Plaintiff/Appellant, Torie Vidrine.
    Michael A. Triay, Triay Law Office, L.L.C., Mandeville, LA, for Defendants/Appellees, Alfred Franks and L & B Transport, Inc.
    Court composed of SYLVIA R. COOKS, OSWALD A. DECUIR and SHANNON J. GREMILLION, Judges.
   COOKS, Judge.

12FACTS AND PROCEDURAL HISTORY

On July 14, 2010, Torie Vidrine, a minor at the time, was driving a vehicle owned by her step-father, Carl Boudreaux, east on U.S. Highway 190 in St. Landry Parish. At the time in question, Alfred Franks, who was driving a tractor-trailer while in the employ of L & B Transport, Inc., exited a parking lot and was attempting to cross the eastbound lanes of U.S. Hwy. 190 in order to turn into the westbound lanes. After entering the roadway, he was forced to come to a stop to allow a westbound vehicle to pass his waiting vehicle in order to accomplish the turn into the westbound lanes. While he was stopped, the car driven by Vidrine collided with Franks’ tractor-trailer. As a result of the accident, Vidrine suffered a broken collar bone and other injuries. The vehicle she was operating was also severely damaged and classified as a total loss.

On November 15, 2010, Franks and L <& B Transport filed suit in the Nineteenth Judicial District Court in East Baton Rouge Parish against Shelia Boudreaux, Torie Vidrine’s mother, and the insurer of the vehicle, State Farm. They alleged Vidrine was negligent in not paying attention, failing to see the tractor-trailer in the road, and traveling at an excessive rate of speed. The suit was not served on these defendants until February 24, 2011. It was asserted that Franks suffered personal injuries as a result of the accident, and that L & B Transport suffered loss of revenue, as well as damage to its property. An attorney for State Farm, in the name of Boudreaux and State Farm, answered the petition on March 22, 2011.

On February 1, 2011, Shelia Boudreaux, on behalf of her minor daughter, Torie Vidrine, filed suit against Franks, L & B Transport and Insurance Company of Pennsylvania in the Twenty-Seventh Judicial District Court in St. Landry Parish. It was alleged Franks operated the vehicle in a reckless and negligent manner, and |aas his employer, L & B Transport was liable for the personal injuries sustained by Torie Vidrine due to the acts of negligence committed by Franks. The defendants to this suit answered the petition on March 14, 2011.

While both suits were pending, Carl Boudreaux, Torie’s step-father (the owner of the vehicle she was driving), reached a settlement on February 27, 2011, for the damages to his vehicle. He received $3,600.00 from L & B Transport, which was the blue book value of the vehicle.

State Farm defended the action filed in East Baton Rouge Parish, and quickly negotiated a settlement. William Janney, who was the attorney for State Farm, testified the date settlement was reached was April 4, 2011. State Farm relied on the terms of its policy to exercise its exclusive authority to negotiate without seeking Torie Vidrine’s or Shelia Boudreaux’s approval. We note neither Shelia Boudreaux nor Torie Vidrine were named insureds in the policy issued by State Farm; and therefore, they were not privy to the contract State Farm relied upon in making the unilateral decision to pay and authorize dismissal of the East Baton Rouge Parish suit. Both Franks and L & B Transport agreed to settle their claims for $500.00 each. According to Mr. Janney, the $500.00 figure came from Franks and L & B Transport. Mr. Janney noted that “it made no sense” not to accept these settlement offers and close the file on this case. He also confirmed that no discovery was conducted on this matter. Mr. Janney stated he did have several conversations with Chris Villemarette, who represented Ms. Boudreaux in the lawsuit filed in St. Landry Parish, and that Mr. Villemarette was aware of the lawsuit filed in East Baton Rouge Parish. Mr. Janney also stated he informed Mr. Villemarette of State Farm’s intention to settle the lawsuit in East Baton Rouge Parish. The Order to Dismiss with Prejudice was signed in East Baton Rouge Parish on May 3, 2011.

In the meantime, discovery was conducted in the lawsuit pending in St. |4Landry Parish. On July 11, 2011, a pre-trial conference was conducted and a trial date for January 19, 2012 was set. However, on December 22, 2011, defendants filed a peremptory exception of res judicata asserting that the dismissal with prejudice of the suit filed in East Baton Rouge Parish was in effect a dismissal of the lawsuit filed in St. Landry Parish. Defendants argued La.Code Civ.P. art. 1061 required Shelia Boudreaux to file a reconventional demand in the East Baton Rouge lawsuit for all causes of action that she may have had that arose out of the same transaction or occurrence that was the subject matter of the principal litigation in that matter. Defendants also point out Boudreaux failed to file an Exception of Lis Pendens under La.Code Civ.P. art. 531 in the East Baton Rouge Parish lawsuit, and note “when the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.” Therefore, it requested the trial court in St. Landry Parish give res judicata effect to the Order of Dismissal from East Baton Rouge Parish. The trial court, despite “grand reluctance” on its part, granted the exception of res judicata and dismissed the lawsuit in St. Landry Parish. It reasoned that because no reconventional demand was filed by Plaintiff under La.Code Civ.P. art. 1061, the exception of res judicata was proper. This appeal followed.

ANALYSIS

“The standard of review of a peremptory exception of res judicata requires an appellate court to determine if the trial court’s decision is legally correct.” Fletchinger v. Fletchinger, 10-474, p. 4 (La.App. 4 Cir. 1/19/11), 56 So.3d 403, 405. “[T]he doctrine of res judicata is stricti juris and, accordingly, any doubt concerning the applicability of the principle must be resolved against its application.” Id., 10-474, p. 5, 56 So.3d at 406.

Louisiana Revised Statute 13:4231, Louisiana’s res judicata statute, states:

| ¡¡Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

Louisiana Code Civil Procedure Article 1061 addresses compulsory reconventional demands:

A. The defendant in the principal action may assert in a reconventional demand any causes of action which he may have against the plaintiff in the principal action, even if these two parties are domiciled in the same parish and regardless of connexity between the principal and reconventional demands.
B. The defendant in the principal action, except in an action for divorce under Civil Code Article 102 or 103 or in an action under Civil Code Article 186, shall assert in a reconventional demand all causes of action that he may have against the plaintiff that arise out of the transaction or occurrence that is the subject matter of the principal action.

A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. La.Code Civ.P. art. 1673; Cuccia v. Jefferson Parish School Board, 613 So.2d 1141 (La.App. 5 Cir.1993). A final judgment is conclusive between the parties except on direct review under La.R.S. 13:4231.

La.R.S. 13:4232 sets forth exceptions to the doctrine of res judicata.- It provides, in pertinent part, that a judgment does not bar another action by the plaintiff when exceptional circumstances justify relief from the res judicata effect of the judgment. We find quite clearly in this case that legal exceptions exist which require denial of defendants’ exception of res judicata.

| (-.Defendants argue it is entitled to res judicata effect because of the following factors: (1) the Order of Dismissal in the East Baton Rouge Parish court is valid; (2) the Order of Dismissal in the East Baton Rouge Parish court is final; (3) the parties in the lawsuit filed in East Baton Rouge Parish are the same parties as those in the lawsuit filed in St. Landry Parish; (4) the causes asserted in the lawsuit filed in St. Landry Parish existed at the time of the final judgment in the East Baton Rouge Parish lawsuit; and (5) the causes or causes of action asserted in the lawsuit filed in St. Landry Parish arose out of the same transaction or occurrence as was the subject matter in the East Baton Rouge Parish lawsuit.

We disagree with Defendants’ assertions. The record establishes there is a major legal impediment to the application of res judicata in this case. In Louisiana, a minor’s claim cannot be dismissed by a lawsuit without complying with certain legal formalities. In cases involving natural tutors (which Shelia Boudreaux was in this case), a minor’s claim for damages may only be settled without judicial approval if the value of the claim is less than $10,000.00, or with judicial approval if it is valued greater than $10,000.00.

La.R.S. 9:196 provides in pertinent part: A tutor, who is entitled to tutorship by nature, pursuant to the provisions of Section 2 of Chapter 1 of Title VIII of Book 1 of the Civil Code and without qualification, may perform or discharge any act affecting any right or interest of the minor which involves not more than ten thousand dollars.

Louisiana Civil Code Article 3072 also provides the “tutor of a minor or the curator of a person interdicted or absent cannot make a transaction without being authorized thereto by the judge.” Thus given the requirements found in Louisiana law, Torie’s claim could only be settled without judicial approval if her claim was 17valued at less than $10,000.00, see Bowen v. Smith, 03-432, 03-1562 (La.App. 4 Cir. 9/8/04), 885 So.2d 1; and only if her natural tutrix consented to the settlement.

In this case, the minor and her mother (the natural tutrix) indicate at no time did they consent to any agreement to compromise the minor’s personal injury claim in the East Baton Rouge proceeding. All we have in the record are snippets from the deposition of State Farm’s attorney, Mr. Janney, indicating that there was a settlement agreement reached between State Farm, Franks and L & B Transport. The actual settlement agreement was not introduced in the trial court in this proceeding.

The value of the minor’s claim must be indicated in the settlement agreement or in the claim for damages. There is nothing in this record setting forth the value of Torie’s claim at the time the dismissal was entered. Further, after review of this record we find nothing to indicate that the minor’s claim is reasonably valued below $10,000.00. Torie required assistance to exit the vehicle following the accident. She sustained a broken collar bone, and claimed further injuries to her spine and knee.

Shelia Boudreaux did not execute any agreement purporting to value her daughter’s claim for personal injuries at less than $10,000.00. Furthermore, the record contains no request for, nor receipt of, court approval for settlement of the minor’s claim as required by statute. “Without such court approval, the settlement, and the dismissal based on settlement, must be declared null” as a matter of law. Bowen, 885 So.2d at 4, citing Ronquillo v. State Farm Insurance Co., 522 So.2d 134, 136 (La.App. 4 Cir.1988).

Defendants were put on notice that the minor was pursuing a claim and in order to compromise that claim, certain legal formalities needed to be complied with in the East Baton Rouge proceedings. This compliance requires more than technical reliance on the reconventional demand requirement of La.Code Civ.P. |8art. 1061 and the res judicata provisions found in La.R.S. 13:4231. The latter and more general provisions must always yield to the more specific and special provisions of laws regulating the settlement of a minor’s personal injury claim. Defendants have presented nothing in this proceeding other than references to State Farm’s attorney’s verbal revelations to Mr. Villemarette (the attorney for the minor’s tutrix) of State Farm’s unilateral intent to settle the claims then pending in East Baton Rouge Parish. The law clearly requires more than this in cases involving minors and we are required to not give legal efficacy to any settlement or judgment having the effect of dismissing the minor’s claim without strict compliance with the formalities mandated by Louisiana law.

Further, the dismissal with prejudice was entered in East Baton Rouge Parish prior to the running of prescription on Torie Vidrine’s tort claim. The accident at issue occurred on July 14, 2010, and the Order of Dismissal with Prejudice was executed on May 3, 2011. State Farm’s alleged contractual authority to “unilaterally” act in this case did not extend to compromising Torie Vidrine’s tort claim— she was not its named insured and neither she nor her mother granted State Farm’s attorney consent to bargain away her pending tort claims against Defendants. Moreover, Defendants cannot be heard to complain now that Torie’s claim was not raised as a reconventional demand in the East Baton Rouge Parish lawsuit when the full dismissal of the suit with prejudice was orchestrated between them and State Farm prior to the running of the time Torie could have asserted her reconven-tional tort claim. To insist that she had to beat them to the courthouse in Baton Rouge to prevent Defendants and State Farm from prematurely waiving or abandoning her reconventional claim would seriously trample on the statutory timeline established for the filing of tort claims in Louisiana; and Defendants’ insistence now that Shelia Boudreaux failed to file a re-conventional demand seems disingenuous considering Defendants and State |flFarm rushed to the courthouse with full intent to prematurely lock the door behind them before Shelia Boudreaux could discover their true purpose, i.e., to take advantage of a deal too good to be legally true. Therefore, the judgment rendered in East Baton Rouge Parish cannot have res judi-cata effect.

DECREE

The trial court’s judgment granting the exception of res judicata is hereby reversed, and the matter is remanded for further proceedings consistent with this opinion. All costs of this appeal are assessed to defendants-appellees.

REVERSED AND REMANDED.

GREMILLION, J., concurs and assigns written reasons.

GREMILLION, Judge,

concurs and assigns written reasons.

| because I find the majority’s treatment of State Farm to be gratuitously disparaging, I can only concur.

      . During the pendency of this matter, Torie Vidrine reached the age of majority. However, nothing was presented in the record by Defendants to indicate she reached the age of majority prior to the execution of the Order to Dismiss with Prejudice in East Baton Rouge Parish.


source: Caselaw Access Project

author: AMY, Judge. COOKS, J.,

license: Public Domain

text:
    Donald BURGO v. Warden Robert HENDERSON, et al.
    No. 12-332.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 19, 2012.
    Rehearing Denied Feb. 13, 2013.

      Michael W. Landry, Assistant Attorney General, Lake Charles, LA, for Defendants/Appellees, John Crawford, M.D. Warden Robert Henderson, State of Louisiana, Department of Public Safety and Corrections.
    Donald Burgo, DeQuincy, LA, In Proper Person.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, MARC T. AMY, SHANNON J. GREMILLION and PHYLLIS M. KEATY, Judges.
   AMY, Judge.

hThe plaintiff, an inmate in the custody of the Louisiana Department of Public Safety and Corrections, alleged that he was injured in a work-related accident and subsequently received inadequate medical treatment. He filed suit, seeking damages and an injunction requiring the defendants to provide him with appropriate medical treatment. Thereafter, the defendants filed an exception of insufficient service and motion to dismiss for failure to request service. After a hearing, the trial court granted the motion to dismiss with respect to the Department of Public Safety and Corrections, but denied it as to the two individual defendants. Both the plaintiff and the defendants appeal. For the following reasons, we affirm in part and reverse in part and render judgment.

' Factual and Procedural Background

The plaintiff, Donald Burgo, is currently an inmate at the Phelps Correctional Center. According to the plaintiff, he was injured when another inmate caused some equipment to hit him in the back of the neck and the head. The plaintiff contends that he sought medical treatment for his injury and that the treatment was inadequate. After his efforts at seeking administrative relief were unsuccessful, the plaintiff filed suit. In his petition, the plaintiff named as defendants the Louisiana Department of Public Safety and Corrections (DPSC), Warden Robert Henderson, and Dr. John Crawford, M.D. In his petition, the plaintiff requested service on Warden Henderson and Dr. Crawford at the post office box for the Phelps Correctional Center. There is no service request in the petition for DPSC.

According to the record, the plaintiff requested to be afforded pauper status. However, the plaintiff’s request was denied, and the record indicates that the plaintiff |?eventually paid his filing fee. Thereafter, the Clerk of Court issued service to Warden Henderson and Dr. Crawford at the physical location of the Phelps Correctional Center. After the individual defendants were served, all of the defendants jointly filed an exception of insufficient service of process and a motion to dismiss for failure to request proper service within ninety days of filing the petition. After a hearing, the trial court granted the motion to dismiss as to DPSC and denied it as to Warden Henderson and Dr. Crawford. In making that determination, the trial court found that the plaintiff had made no attempt to serve DPSC. However, with regard to Warden Henderson and Dr. Crawford, the trial court found that the plaintiff had requested service and that errors on the part of the Clerk’s office prejudiced the plaintiff “to some extent,” resulting in the individual defendants not being served in a timely fashion.

Thereafter, the plaintiff filed objections to the trial court’s ruling. The trial court treated the plaintiffs objections as a motion for new trial and denied the motion.

The plaintiff now appeals, asserting that the trial court erred in granting the motion to dismiss as to DPSC. The plaintiff also complains that the trial court erred in failing to consider his objections to that ruling. Additionally, the defendants appeal, asserting that the trial court erred in denying the motion to dismiss as to Warden Henderson and Dr. Crawford.

Discussion

Motion to Dismiss for Failure to Request Service — Department of Public Safety & Corrections

Louisiana Code of Civil Procedure Article 1201(C) requires that “[sjervice of the citation shall be requested on all named defendants within ninety days of commencement of the action.” Further, pursuant to La.Code Civ.P. art. 1672(C),

|3A judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) or 3955 upon the sustaining of a declinatory exception filed by such defendant, or upon contradictory motion of any other party, unless good cause is shown why service could not be requested, in which case the court may order that service be effected within a specified time.

The supreme court has found that La.Code Civ.P. art. 1672(C) requires an accurate request for service upon the proper agent for the defendant. Barnett v. La. State Univ. Med. Ctr.-Shreveport, 02-2576 (La.2/7/03), 841 So.2d 725. Although the manifest error standard of review applies to the trial court’s dismissal of a suit for failure to request timely service, the “good cause” requirement is strictly construed. See Boyd v. Picayune, 11-119 (La.App. 5 Cir. 11/15/11), 82 So.3d 298; Barnett, 841 So.2d 725.

Louisiana Revised Statutes 13:5107 provides that, in relevant part,

A. In all suits filed against the state of Louisiana or a state agency, citation and service may be obtained by citation and service on the attorney general of Louisiana, ... and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and in accordance with the laws of this state, and on the department, board, commission, or agency head or person, depending upon the identity of the named defendant and the identity of the named board, commission, department, agency, or officer through which or through whom suit is to be filed against.
D. (1) In all suits in which the state, a state agency, or political subdivision, or any officer or employee thereof is named as a party, service of citation shall be requested within ninety days of the commencement of the action.... This requirement may be expressly waived by the defendant in such action by any written waiver.
(2) If service is not requested by the party filing the action within the period required in Paragraph (1) of this Subsection, the action shall be dismissed without prejudice, after contradictory motion as provided in Code of Civil Procedure Article 1672(C), as to the state, state agency, or political subdivision, or any officer or employee thereof, upon whom service was not requested within the period required by Paragraph (1) of this Subsection.

^Additionally, La.R.S. 39:1538(4) requires that in claims brought against the State, “process shall be served upon the head of the department concerned, the office of risk management, and the attorney general, as well as any others required by R.S. 13:5107.”

The plaintiff contends that the trial court erred in granting the motion to dismiss with regard to DPSC. According to the plaintiff, he made a showing of good cause “including the presentation of state created impediments preventing proper and/or timely filing of claims and/or request of service” which excused his failure to request service on DPSC. The plaintiff contends that he was unable to locate the defendants’ addresses and was unable to obtain assistance to do so.

The record indicates that the plaintiff did not request service on DPSC during the ninety-day period. The defendants properly filed a motion for involuntary dismissal based on the plaintiffs omission. The plaintiff contends that he was unable to serve the appropriate parties because he could not locate their addresses. At the hearing, the plaintiffs only explanation of why he failed to request service on either the attorney general, the secretary of DPSC, or the Office of Risk Management was that “state agents creat[ed] impediments” by “withholding of Control Board and/or Risk Management addresses.” In Boyd, 82 So.3d 298, the fifth circuit upheld a trial court’s finding of no good cause where the plaintiff alleged that he was unable to ascertain the defendants’ addresses due to his incarceration. Moreover, “mere confusion over a party’s proper service information is not a sufficient basis for good Ucause.” Johnson v. Univ. Med. Ctr. in Lafayette, 07-1683, p. 2 (La.11/21/07), 968 So.2d 724, 725.

Accordingly, we find that the trial court did not err in granting the motion to dismiss with regard to DPSC. This assignment of error is without merit.

Motion to Dismiss for Failure to Request Service — Warden Henderson & Dr. Crawford

The defendants argue that the trial court erred in denying the motion to dismiss with regard to Warden Henderson and Dr. Crawford. According to the defendants, the plaintiffs only request for service on Warden Henderson and Dr. Crawford within the ninety-day period was at a post office box for the Phelps Correctional Center. The defendants argue that this was an insufficient request for service. The record indicates that, on its own initiative, the Clerk’s office issued service on September 26, 2011, to the physical address of the Phelps Correctional Center.

At the hearing on the motion to dismiss, the trial court found that the plaintiff was prejudiced “to some extent” by the Clerk’s failure to send the plaintiff the denial of the pauper affidavit for “some thirty-four days after signature” and the Clerk’s failure to issue service after the plaintiff paid his filing fee until September 26, 2011. The trial court also noted that the first request was in a timely manner but that the Clerk’s office failed to act upon that request until ordered by the trial court. Based on those findings, the trial court determined that there was good cause.

Louisiana Code of Civil Procedure Article 1672(C) states that “judgment dismissing an action without prejudice shall be rendered as to a person named as a defendant for whom service has not been requested within the time prescribed by Article 1201(C) ... unless good cause is shown why service could not be requested.” (emphasis added.) Therefore, there must be an initial determination of whether the | Rplaintiff properly requested service upon Warden Henderson and Dr. Crawford within the ninety-day period. The record indicates that the plaintiff did request service on Warden Henderson and Dr. Crawford within the ninety-day period, but that the request was at a post office box, not a physical address. The supreme court, in discussing what constituted a request for service under La.R.S. 13:5107(D)(1), noted that “[sjervice upon the defendant pursuant to La.R.S. 13:5107(D)(1) requires an accurate request of service upon the proper agent. For service to be requested and effectuated, the clerk must be provided with the correct name and address of those persons to be served. In our view, the plain language of La.R.S. 13:5107(D)(1), without more, requires that the clerk receive this information before it can be considered ‘requested.’ ” Tranchant v. State, 08-978, p. 7 (La.1/21/09), 5 So.3d 832, 836 (citation omitted). The record indicates that the plaintiff did not provide an accurate address within the ninety-day period. Therefore, the plaintiff did not request service as required by La.R.S. 13:5107.

However, La.Code Civ.P. art. 1672(C) also provides that if “good cause is shown why service could not be requested, ... the court may order that service be effected within a specified time.” The good cause requirement is strictly construed. Barnett, 841 So.2d 725. See also Tranchant, 5 So.3d 832. As previously noted, “mere confusion over a party’s proper service information is not a sufficient basis for good cause.” Johnson, 968 So.2d at 725. Similarly, “inadvertence in requesting service on the part of the plaintiffs counsel is not a sufficient basis for good cause.” Norbert v. Loucks, 01-1229, p. 3 (La.6/29/01), 791 So.2d 1283, 1285. As previously discussed, where a plaintiff alleged that he was unable to determine the defendants’ 17addresses because of his incarceration, the fifth circuit upheld a trial court’s finding of no good cause. See Boyd, 82 So.3d 298.

In this case, the trial court found that the Clerk’s failure to timely notify the plaintiff of the denial of his request for pauper status and the Clerk’s failure to issue service within the ninety-day period prejudiced the plaintiff “to some extent.” This finding was based on the trial court’s determination that the failure to serve the individual defendants during the ninety-day period was somewhat attributable to alleged errors on the part of the Clerk’s office. However, La.Code CivJP. art. 1672(C) addresses the failure to request service. There is nothing in the record that would indicate that any errors on the part of the Clerk’s office affected the plaintiff’s ability to request proper service during the ninety-day period. Further, the plaintiffs allegation that his incarceration excuses his inability to obtain proper service information is not a sufficient basis for a finding of good cause pursuant to La. Code Civ.P. art. 1672(C). See Boyd, 82 So.3d 298.

Therefore, we find that the trial court erred in determining that good cause existed excusing the plaintiffs failure to request service as to Warden Henderson and Dr. Crawford. Accordingly, we reverse the judgment of the trial court and render judgment dismissing Warden Henderson and Dr. Crawford without prejudice.

Plaintiff’s Objections to the Trial Court’s Ruling

The plaintiff also contends that the trial court erred in denying his objections filed after the hearing on the motion to dismiss. The record indicates that, after the hearing, the plaintiff filed an objection to the proposed order and an objection and motion for rehearing/reconsideration. Therein, the plaintiff contended that the trial court erred in signing the proposed order before three working days had passed and that the trial court erred in dismissing DPSC. The trial court treated the plaintiffs objections as a motion for new trial and denied the motion.

| ^Louisiana Code of Civil Procedure Article 1972 provides the following:

A new trial shall be granted, upon contradictory motion of any party, in the following cases:
(1) When the verdict or judgment appears clearly contrary to the law and the evidence.
(2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
(3) When the jury was bribed or has behaved improperly so that impartial justice has not been done.

Further, La.Code Civ.P. art. 1973 provides that a motion for new trial may be granted “if there is good ground therefore, except as otherwise provided by law.” The trial court has vast discretion in deciding whether to grant a motion for new trial, and its decision whether or not to do so is reviewed under the abuse of discretion standard of review. G.S. v. T.S., 04-1566 (La.App. 3 Cir. 4/13/05), 900 So.2d 1088.

A review of the record shows that the trial court considered the plaintiffs objections, treating them as a motion for new trial for reargument only. The trial court issued an order denying the plaintiff’s motions, stating, in part that:

Besides arguing the merits of the judgment of dismissal, plaintiff also contends that he was not given an adequate opportunity to comment on the State’s proposed judgment before it was presented to the trial court for signature in accordance with Rule 9.5 of the Rules for Civil Proceedings in District Courts....
The purpose of Rule.9.5 is to allow an opposing party to review a proposed judgment and ensure that the wording of the judgment accurately reflects the ruling of the trial court. Rule 9.5 does not authorize a party to reargue the merits of the judgment. The court has reviewed plaintiffs objections, and plaintiff does not dispute that the order accurately reflects the ruling of the court. Therefore, any violation of Rule 9.5 is harmless error.

As discussed elsewhere in this opinion, we have found no error in the trial court’s granting of the motion to dismiss with regard to DPSC. Further, even assuming that the trial court signed the proposed judgment in contravention of the ^requirements of Rule 9.5, we find that any error therein is harmless and that the wording of the judgment is accurate. See Lewis v. ODECO, Inc., 07-0497, 07-1566 (La.App. 4 Cir. 4/8/09), 12 So.3d 368, writs denied, 09-1386 (La.10/10/09), 19 So.3d 463, 09-1425 (La.10/16/09), 19 So.3d 479, cert. denied, — U.S.-, 130 S.Ct. 1705, 176 L.Ed.2d 183 (2010); Mitchell v. Limoges, 05-832 (La.App. 3 Cir. 3/1/06), 923 So.2d 906, writ denied, 06-723 (La.6/16/06), 929 So.2d 1285.

After reviewing the record, we find no abuse of discretion in the trial court’s denial of the plaintiffs objections/motion for new trial. This assignment of error is without merit.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court granting the motion to dismiss with regard to the Louisiana Department of Public Safety and Corrections. We reverse the judgment of the trial court denying the motion to dismiss with regard to the individual defendants, Warden Robert Henderson and Dr. John Crawford, M.D. Further, we render judgment dismissing the plaintiffs claims against Warden Robert Henderson and Dr. John Crawford, M.D., without prejudice. The costs of this appeal are allocated to the plaintiff, Donald Burgo.

AFFIRMED IN PART; REVERSED IN PART; AND JUDGMENT RENDERED.

COOKS, J., dissents and assigns written reasons.

COOKS, J.,

dissenting.

hi respectfully dissent from the portion of the majority’s opinion finding the trial court erred in determining that good cause existed as to why service could not be requested against Dr. Crawford and Warden Henderson within the ninety-day service period. The trial court found there was an extensive delay between the time the trial court granted Burgo pauper status and when the clerk of court issued service to those named defendants. The trial court felt this delay was the reason service did not occur within the ninety-day period set forth in the statutes. Thus, although finding on its face service was not made within the ninety-day service requirement found in La.Code Civ.P. art. 1201, the trial court believed dismissal was not appropriate because good cause was shown as to why service could not be requested against Dr. Crawford and Warden Henderson.

It is imperative to note that the trial court is accorded much . discretion in whether to grant an involuntary dismissal and that determination is subject to the manifest error standard of review. Kite v. Carter, 03-378 (La.App. 3 Cir. 10/1/03), 856 So.2d 1271; Guillory v. Int’l. Harvester Co., 99-593 (La.App. 3 Cir. 10/13/99), 745 So.2d 733, writ denied, 99-3237 (La.1/14/00), 753 So.2d 220. I find the trial court did not manifestly err in finding good cause existed in this case. The record reflects that Burgo filed his lawsuit on May 13, 2011. The Clerk of Court signed the pauper affidavit on May 19, 2011. However, the notice was not sent to Burgo until June 29, 2011, well over one month past the date of signature. Burgo [^subsequently paid his filing fees and requested to proceed on August 15, 2011. The trial court specifically noted the Clerk’s office did not proceed until the trial court entered an order after Burgo’s second request on September 7, 2011. The request to issue service by court order was made on September 13, 2011. Therefore, the trial court concluded the first request was made in a timely manner but the Clerk’s office did not do it until the trial court entered an order. At that point Dr. Crawford and Warden Henderson were served physically. The trial court stated the following as to why it believed good cause was found here:

I think good cause is found. They were served four days later. I don’t know why they weren’t served before. I don’t know why he didn’t receive the pauper affidavit 15 miles down the road for thirty-five days. All this prejudices [Burgo] to some extent.

I find the trial court was not manifestly erroneous in finding good cause was shown as to why service could not be requested against Dr. Crawford and Warden Henderson within the ninety-day service period. Therefore, I would affirm the trial court’s judgment in that respect.

      . The transcript of the hearing on the motion to dismiss indicates that the denial of the plaintiff’s request for pauper status "was not sent to [the plaintiff] until June 29th, 2011, some thirty-four days after signature.”

      . The legislature amended La.R.S. 13:5107 during the 2012 legislative session. However, we use the version in effect at the time of the hearing on the motion to dismiss.

      . We observe that the plaintiff filed a "Complaint of Negligence and Tort Claim” on November 11, 2011 — after the defendants filed their exception of insufficiency of service of process and motion to dismiss based on failure to request service and well after the ninety-day time period had expired. Therein, the plaintiff requested service on Warden Henderson and Dr. Crawford, as well as on the Louisiana attorney general, the United States Attorney General, the secretary of DPSC, and the Office of Risk Management. With the exception of the Office of Risk Management, the plaintiff requested service on all parties at a physical location.

      . At the hearing on the motion to dismiss, the trial court commented that the sheriffs deputy responsible for serving the petition may have known "that it be at the prison.”

      . The record indicates that the individual defendants are employees of a state agency and, therefore, the provisions of La.R.S. 13:5107(D) apply.


author: DANIEL L. DYSART, Judge.

text:
    Lynn B. DEAN and Elevating Boats, Inc. v. DELACROIX CORPORATION and the Parish of Plaquemines.
    No. 2012-CA-0917.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 26, 2012.
    Rehearing Denied Jan. 30, 2013.

      Susan R. Laporte, Christoffer C. Friend, Frances I. McGinnis, Heather M. Valliant, Curry & Friend, PLC, New Orleans, LA, for Plaintiff/Appellant.
    Melinda Benge Brown, Donna M. Bor-rello, New Orleans, LA, James E. Blazek, Attorney at Law, Lacombe, LA, L.V. Cooley, IV, Assistant Parish Attorney, Belle Chasse, LA, for Defendant/Appellee.
    (Court composed of Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME, Judge DANIEL L. DYSART).
   DANIEL L. DYSART, Judge.

1 ¶Plaintiffs, Lynn B. Dean and Elevating Boats, Inc., appeal a judgment granting Exceptions of Res Judicata and No Right of Action and a Motion to Dismiss filed by defendant, Delacroix Corporation. The trial court dismissed plaintiffs’ claims as to the exceptions, with prejudice, and the claims as to the motion to dismiss, without prejudice. For the following reasons, we affirm in part, and reverse in part.

FACTUAL AND PROCEDURAL HISTORY:

This case involves ownership of immovable property, specifically water bottoms of a manmade navigable canal, which lies on the boundary between St. Bernard and Plaquemines parishes. The canal is commonly known as the Caenarvon Canal. The issue of ownership has been litigated in both parishes since the first suit was filed by Delacroix Corporation (hereinafter “Delacroix”), in the 34th Judicial District for the Parish of St. Bernard seeking to enjoin plaintiffs from trespassing on the subject property. Delacroix alleged that it owned the immovable property which was located in Plaquemines Parish, and that plaintiffs owned the land ^adjacent to and east of Delacroix’s property. Delacroix alleged that plaintiffs trespassed by mooring and maintaining elevating boats on one side of the canal and by filling in the head of the canal and constructing a boat launch. Delacroix later filed a motion for preliminary injunction. Plaintiffs reconvened alleging a possessory action, which demand was dismissed by the trial court on the ground of prescription. A writ to this Court was granted, but relief was denied, holding that plaintiffs had no right to assert a possessory action because neither a disturbance in fact nor a disturbance in law existed. Plaintiffs later reconvened to allege superior title to the property or, alternatively, that plaintiffs had gained ownership through either acquisitive prescription of ten years or thirty years.

In 2003, prior to the St. Bernard suit being tried, plaintiffs filed a concursus proceeding in the 25th Judicial District for the Parish of Plaquemines against Delacroix and the Parish of Plaquemines (hereinafter “PPG”). Plaintiffs also sought a preliminary injunction. Delacroix filed Exceptions of Lis Pendens, No Right of Action and No Cause of Action. The trial court denied all exceptions and Delacroix sought supervisory review in this Court, which reversed the trial court, finding that it had erred in not granting the Exception of Lis Pendens. Plaintiffs’ claims against Delacroix were dismissed without prejudice. The Court further vacated the denial of the Exceptions of No Right of Action and No Cause of Action, explaining that those exceptions must be brought in the 34th Judicial District suit. To the contrary, the concursus action between plaintiffs and PPG had |sto be litigated in Plaquemines Parish because that is the location of the disputed property.

In early 2004, a trial was held in the 34th Judicial District case. In written reasons, the trial court stated that the ownership issue must be decided first, and based on the expert testimony of Delacroix’s expert, which it found to be the more reliable, adjudicated Delacroix to be the title owner of the canal.

As to plaintiffs’ reconventional demand, the trial court found that acquisitive prescription of ten years was defeated because plaintiffs did not possess a just title. Acquisitive prescription of thirty years was defeated because possession must be continuous, uninterrupted, peaceable, public and unequivocal. The trial court found that plaintiffs failed to meet this burden because Delacroix did not become aware of the trespass until plaintiffs applied for a permit in 1998 to pave a driveway to a boat launch it had constructed in the canal.

Having found that Delacroix owned the property, the court addressed the trespass issue, finding that plaintiffs had indeed trespassed on the property on numerous occasions. Delacroix moved to have the preliminary injunction made permanent, and a final judgment was issued on March 1, 2004. This Court rendered an opinion affirming the judgment, and no writs were taken to the Supreme Court.

Following the conclusion of the case in the 34th Judicial District, Delacroix filed a petition for intervention in the 25th Judicial District case, seeking a |4preliminary injunction to protect its ownership claim to the canal. The trial court denied leave to reconvene, and Delacroix again requested this Court’s supervision. This Court reversed the trial court, stating “Delacroix has a clear and vital interest in asserting its rights as definitively established in the Saint Bernard Court’s final judgment.”

On May 8, 2008, Delacroix filed the subject exceptions in the instant case. On August 15, 2011, it filed the motion to dismiss on the grounds of abandonment. After a hearing, the trial court rendered judgment in February 29, 2012, granting the exceptions and the motion to dismiss. This appeal followed.

DISCUSSION:

Dean’s first assignment of error addresses the granting of Delacroix’s Exception of Res Judicata.

Louisiana Revised Statute 13:4231 covers both types of preclusion by judgment provided for in the Louisiana Code of Civil Procedure, that is, claim preclusion (res judicata) and issue preclusion (collateral estoppel).

Louisiana Revised Statute 13:4231 provides in part:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
* * ⅜
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

|sThe Louisiana Supreme Court has established five requirements that must be met for res judicata to apply. Burguieres v. Pollingue, 02-1385 (La.2/25/03), 843 So.2d 1049. The requirements are: 1) a valid judgment, 2) a final judgment, 3) identity of parties, 4) the same cause of action asserted in the second suit existed at the time of the final judgment in the first suit, and 5) the cause of action asserted in the second suit must arise out of the transaction or occurrence that was the subject matter of the first suit.

Also, as explained by J. Tobias in Dean v. Delacroix Corp., 03-1352 (La.App. 4 Cir. 8/27/03), 853 So.2d 769, “[a] resolution of the issue of ownership of the immovable in the St. Bernard litigation will have res judicata effect on the issue of ownership of the immovable,” citing La.Code Civ. Proc. art. 1061 B, La. R.S. 13:4231 and 4232, and Burguieres, supra.

On March 1, 2004, the 34th Judicial District Court rendered a valid and final judgment following a four-day trial. That judgment was affirmed on appeal to this Court and no writ was taken to the Supreme Court. The issue of ownership of the canal as between Dean and Delacroix was necessarily decided by the trial court as the suit sought an injunction to prevent Dean from trespassing on property Delacroix alleged it owned. Lastly, the parties are identical. The fact that PPG was an additional defendant in the Plaquemines Parish case is of no moment. All of the requirements set forth in Burguieres are met, thereby making a finding of res judi-cata in favor of Delacroix proper. The 34th Judicial District Court judgment establishes that Delacroix owns the property in question as between it and | fiDean, and any further litigation on this issue is barred by the doctrine of res judicata.

Because we find that the doctrine of res judicata applies, we pretermit discussion of Dean’s second assignment of error relative to the grant of Delacroix’s Exception of No Right of Action.

Dean’s last assignment of error challenges that trial court’s grant of Delacroix’s Motion to Dismiss on the ground of abandonment. Dean argues that Delacroix waived its right to bring the motion by proceeding with the hearing on the Exceptions of Res Judicata, No Cause of Action and No Right of Action.

Louisiana Code of Civil Procedure art. 561 provides that an action is abandoned when the parties fail to take any step in the prosecution or defense of the case for a period of three years. A trial court shall enter a formal order of dismissal on ex parte motion of any party seeking to dismiss the case on this ground.

Article 561 imposes three requirements to avoid abandonment: 1) a party must take some step toward the prosecution or defense of the action; 2) the step must be taken in the proceeding and, with the exception of formal discovery, must appear in the record; and 3) the step must be taken within three years of the last step taken by either party. Louisiana Dep’t of Transp. & Dev. v. Oilfield Heavy Haulers, L.L.C., 11-0912, pp. 4-5 (La.12/6/11), 79 So.3d 978, 981, citing Clark v. State Farm Mut. Auto. Ins. Co., 00-3010, p. 5-6 (La.5/15/01), 785 So.2d 779, 784.

[ 7A “step” is a formal action before the court intended to hasten the suit towards judgment or is the taking of formal discovery. Oilfield Heavy Haulers, 11-0912 at p. 5, 79 So.3d 978, 981. A step by one party prevents abandonment as to all of the parties, even though they are not solidarity liable. Id., citing Delta Dev. Co., Inc. v. Jurgens, 456 So.2d 145, 146 (La.1984).

We find that the Motion to Dismiss should have been denied, albeit not for the reasons assigned by Dean. Our review of the record reveals the following pertinent dates of trial court filings:

April 4, 2008 — Order signed by J. Roe setting trial on the merits for November 3, 2008.
May 9, 2008 — Delacroix filed its exceptions
May 13, 2008 — Order signed by J. Roe setting hearing on exceptions for June 3, 2008
June 3, 2008 — minute entry ■ indicating that on joint motion, trial court continued hearing on exceptions to June 24, 2008
June 12, 2008 — PPG filed opposition to exceptions
June 16, 2008 — Dean filed opposition to exceptions
August 14, 2008 — PPG filed unopposed motion to continue without date the hearing on the exceptions and the trial
August 18, 2008 — J. Ragusa signed order continuing without date both the hearing on the exceptions and the trial.
August 5, 2011 — Dean filed motion to reset Delacroix’s exceptions for hearing
August 15, 2011 — Delacroix filed Motion to Dismiss

As we view the pertinent dates, prior to the filing by PPG of the motion to continue both the hearing on Delacroix’s exceptions and the trial, which motion was unopposed, all parties were contemplating the case moving forward as there were dates set for hearings and trial. Once the trial court ruled on Delacroix’s exceptions, the case would proceed to trial with or without Delacroix as a party. |RThere was no further action needed by any party, such as the formal filing of pleadings, to move the case forward. Thus, it would be patently unfair to hold that the last date any action taken in this case to hasten it to judgment was June 16, 2008, when Dean filed its opposition to Delacroix’s exceptions. Rather, we find the operative date to begin the tolling of the three-year abandonment rule was August 18, 2008, the date Judge Ragusa signed the order continuing both the hearing on Delacroix’s exceptions and the trial date. Consequently, when Dean filed the motion to reset Delacroix’s exceptions for hearing on August 5, 2011, the three-years since the last action taken had not yet expired.

In Oilfield Heavy Haulers, the Supreme Court reiterated that “[t]he purpose of Article 561 is the prevention of protracted litigation filed for purposes of harassment or without serious intent to hasten the claim to judgment.” Id., citing Chevron Oil Co. v. Traigle, 436 So.2d 530, 532 (La. 1983). Because dismissal is the harshest of remedies, any reasonable doubt about abandonment should be resolved in favor of allowing the prosecution of the claim. Clark, supra, 00-3010, p. 10, 785 So.2d at 787.

Accordingly, we find that the trial court erred in granting Delacroix’s Motion to Dismiss on the ground of abandonment.

CONCLUSION:

Thus, we affirm the trial court’s granting of Delacroix’s Exception of Res Judi-cata as it applies to the issue of ownership of the subject property between |9Pean and Delacroix, and reverse the trial court’s granting of Delacroix’s Motion to Dismiss.

AFFIRMED IN PART; REVERSED IN PART

BELSOME, J., concurs in the result.

      . Delacroix Corp. v. Dean, 03-0624 (La.App. 4 Cir. 6/3/03), unpub.

      . Dean v. Delacroix Corp., 03-1352 (La.App. 4 Cir. 9/16/03), 853 So.2d 769.

      . Delacroix Corp. v. Dean, 04-0899 (La.App. 4 Cir. 4/13/05), 901 So.2d 1188.

      . Dean v. Delacroix Corp., 04-0831 (La.App. 4 Cir. 5/11/05), 904 So.2d 46.


author: KEATY, Judge.

text:
    STATE in the Interest of M.A.N., N.A.N., & E.J.N., Jr.
    No. 12-946.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 28, 2012.

      Annette Fuller Roach, Louisiana Appellate Project, Lake Charles, LA, for Appellant, E.N.
    Trida R. Pierre, Attorney at Law, Lafayette, LA, for Appellees, M.A.N., NAN., E.J.N., Jr.
    Tamara Rahim, State, Department of Social Services, Lafayette, LA, for Appel-lee, State of Louisiana, Department of Social Services.
    Carolyn Cole, Fifteenth Judicial District Public Defender’s Office, Lafayette, LA, for Appellant, J.M.
    Michelle Breaux, Assistant District Attorney, Lafayette, LA, for Appellee, State of Louisiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and PHYLLIS M. KEATY, Judges.
   KEATY, Judge.

11 On the State’s motion and after having conducted termination proceedings for a third time, the trial court terminated the parental rights of the mother, J.M., with respect to her minor son, E.J.N., Jr., and it terminated the parental rights of the father, E.N., with respect to his minor children, M.A.N., N.A.N., and E.J.N., Jr. by judgment dated June 18, 2012. Both the father and the mother appeal. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

M.A.N., N.A.N., and E.J.N., Jr. came into the custody of the Louisiana Department of Children and Family Services (State) on August 11, 2008, after an oral instanter order was obtained on the grounds of physical abuse. The basis for the removal was that the father had slapped five-month old E.J.N., Jr. in the face leaving marks and that J.M. had slapped two-year old N.A.N. on the leg leaving marks and causing swelling. Both E.N. and J.M. were arrested, and the three children were voluntarily placed with their paternal grandparents. The children were adjudicated children in need of care on October 14, 2008, and a case plan was established which sought permanency through reunification.

On October 29, 2010, the State filed a “Petition to Terminate Parental Rights and Certification for Adoption.” The first termination trial took place on January 20, 2011. After hearing testimony, the trial court denied termination as to E.N. and J.M., allowing them six months to continue working on their case plans by obtaining “suitable housing and employment sufficient to care for their six children.” The trial court ordered the State to work toward reunification and to increase visitation between E.N. and J.M. and the three children.

LThe State filed a second “Petition to Terminate Parental Rights and Certification for Adoption” on December 5, 2011, asserting that E.N.’s and J.M.’s parental rights should be terminated because they abandoned M.A.N., N.A.N., and E.J.N., Jr. by failing “to provided significant contributions to the children’s care and support for any period for six consecutive months.” After conducting a pre-trial conference on January 24, 2012, the trial court reset the matter to April 3, 2012. According to the court minutes, the trial court instructed E.N. and J.M. that if they did not wish for the hearing to take place, they should cooperate with the State, provide financial means to take care of their six children, obtain suitable housing for eight people, provide proof of employment, and continue with counseling and anger management. The trial court further directed that visitation should occur twice a month.

The termination petition was tried on May 1, 2012, and the matter was taken under advisement. Written reasons for ruling were signed on May 21, 2012, terminating the parental rights of E.N. and J.M. A “Judgment of Termination of Parental Rights and Certification for Adoption” was signed on June 18, 2012. E.N. and J.M. now appeal, asserting similar assignments of error. First, they contend that the trial court erred in terminating their parental rights. More specifically, they claim that the trial court erred in finding that they had not substantially complied with their case plans and in finding that there was no reasonable expectation for improvement in the near future nor any reasonable expectation that they would complete any new requirements of their case plans as deemed necessary for the safe return of their child(ren). Second, they contend that the trial court erred in finding that termination was in the best interest of the child(ren).

I «DISCUSSION

Law

We review a trial court’s determination as to whether parental rights should be terminated according to the manifest error standard of review. State ex rel. K.G., 02-2886 (La.3/18/08), 841 So.2d 759.

The Supreme Court has stated that “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents.” Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599. This liberty interest is “perhaps the oldest of the fundamental liberty interests.” State ex rel. SNW v. Mitchell, 01-2128, p. 8 (La.11/28/01), 800 So.2d 809, 814 (quoting Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49). In termination proceedings, that fundamental interest must be balanced with the interest of the child, and “courts of this state have consistently found the interest of the child to be paramount over that of the parent.” State ex rel. J.M., 02-2089, p. 8 (La.1/28/03), 837 So.2d 1247, 1252. Often at odds with those of its parents, the child’s interest is “in terminating parental rights that prevent adoption and inhibit establishing secure, stable, long-term, and continuous relationships found in a home with proper parental care.” Id. When determining whether a parent’s rights should be involuntarily terminated, the trial court must exercise “great care and caution ... because the permanent termination of the legal relationship existing between children and their biological parents is one of the most severe and drastic actions the State can take against its citizens.” Id.
Louisiana Children’s Code Article 1015 sets forth eight grounds for termination of parental rights. Although the State need only establish one ground for termination, the trial court must also find that the termination is in the best interest of the child in order to meet the statutory requirement of La.Ch.Code art. 1035(A), which requires that grounds for termination be proven by clear and convincing evidence. State ex rel. M.H. v. K.W.H., 40,332 (La.App. 2 Cir. 9/23/05), 912 So.2d 88.

State in the Int. of J.KG., 11-908, pp. 5-6 (La.App. 3 Cir. 1/11/12), — So.3d -,

| ¿The Case Plans

The case plans established for E.N. and J.M. remained virtually the same throughout the course of these proceedings and basically required that they: 1) establish safe, adequate, and stable housing; 2) obtain and maintain stable employment and parental contribution; 3) attend and complete counseling and anger management; 4) visit with his/her children); and 5) cooperate and maintain contact with the agency.

Ruling of the Trial Court

In its May 21, 2012 Reasons for Ruling, the trial court in the instant case stated:

Enough is enough! There has to be a period of time when children are entitled to finality. All children should be able to live a life as a child with a chance to be within a family unit. Three years plus 8 months, and three termination hearings, is in this Court’s opinion enough. Despite several opportunities to change, the parents have failed to comply with several of the statutory factors contained within La.Ch.Code art. 1036(C). Specifically, the parents have failed to provide this Court with any evidence that they have the means or the intention to provide adequate housing for themselves and their 6 children. The parents have moved on numerous occasions and failed to apprise the Department of their whereabouts. Visitation by the parents with the children has been basically non-existent since August 2011. The parents have not complied with the counseling and anger management requirements of their caseplans.
Certainly the record supports a view that the parents’ pattern of behavior evidences lack of reasonable expectation of improvement pursuant to Article 1036(D)(3). The parents’ pattern of behavior has demonstrated that they are either unable or unwilling to progress in various components of their case plan so as to indicate that they will be able to provide an adequate permanent home for the children.

Compliance with Case Plans

Both E.N. and J.M. contend that the trial court erred in finding that they had not substantially complied with their case plans. They contend that the trial court Ififurther erred in concluding that there was no reasonable expectation for further improvement in his/her condition or conduct in the near future.

Title X of the Louisiana Children’s Code governs the involuntary termination of parental rights. In the instant matter, the trial court relied on Louisiana Children’s Code Articles 1015 and 1036 in deciding to terminate the parental rights of E.N. and J.M. Article 1015 (emphasis added) provides, in pertinent part:

The grounds for termination of parental rights are:
(5) Unless sooner permitted by the court, at least one year has elapsed since a child was removed from the parent’s custody pursuant to a court order; there has been no substantial parental compliance with a case plan for services which has been previously filed by the department and approved by the court as necessary for the safe return of the child; and despite earlier intervention, there is no reasonable expectation of significant improvement in the parent’s condition or conduct in the near future, considering the child’s age and his need for a safe, stable, and permanent home.

Louisiana Children’s Code Article 1036, entitled “Proof of parental misconduct,” provides, in pertinent part:

C. Under Article 1015(5), lack of parental compliance with a case plan may be evidenced by one or more of the following:
(1) The parent’s failure to attend court-approved scheduled visitations with the child.
(2) The parent’s failure to communicate with the child.
(3) The parent’s failure to keep the department apprised of the parent’s whereabouts and significant changes affecting the parent’s ability to comply with the case plan for services.
(4) The parent’s failure to contribute to the costs of the child’s foster care, if ordered to do so by the court when approving the case plan.
(5) The parent’s repeated failure to comply with the required program of treatment and rehabilitation services provided in the case plan.
|fi(6) The parent’s lack of substantial improvement in redressing the problems preventing reunification.
(7) The persistence of conditions that led to removal or similar potentially harmful conditions.
D. Under Article 1015(5), lack of any reasonable expectation of significant improvement in the parent’s conduct in the near future may be evidenced by one or more of the following:
(3) Any other condition or conduct that reasonably indicates that the parent is unable or unwilling to provide an adequate permanent home for the child, based upon expert opinion or based upon an established pattern of behavior.

The trial court made the following observations in its May 21, 2012 Reasons for Ruling:

The third termination proceeding was held on May 1, 2012. The foster care worker, Vickey Carrie, testified that since August 11, 2008, the parent[s] moved a total of 12 times. She further testified that they are currently living with [E.N.’s] parents in a two bedroom trailer. She stated that the holes in the flooring and the window were replaced with plywood. She stated that due to an incident of domestic violence between [J.M.] and [E.N.] in 2011, they were required to attend counseling sessions. She testified that the parents were referred to Resource Management for counseling [on] four separate occasions, but refused services. She stated that she had no verification of employment before getting a check stub at court on the date of termination. She also testified that the parents only visited with their children three times from August 2011-March 2012. From January 2012 to date the parents have visited only one time with these three children. On March 27, 2012, the parents’ other three children were removed from their custody on grounds of neglect. On April 14, 2012, they did visit with their children, after their other three children had been taken into custody. The Department had no contact from the parents from January to March 2012.

Both E.N. and J.M. assert that the trial court erred in concluding that they failed to substantially comply with their case plans. Nevertheless, they both acknowledged that even if the trial court were to deny termination as to M.A.N., N.A.N., and E.J.N., Jr., they could not take their child(ren) home with them that day because of their current living arrangements. As the testimony bore out, at the time of the third termination hearing, E.N. and J.M. were living in a trailer owned |7by E.N.’s parents, and the State would not allow the children to live with their paternal grandfather because of domestic violence issues that he had in the past. In fact, Ms. Carrie, the foster care worker, testified that when she visited the trailer in January 2012, the paternal grandfather stated that he did not want J.M. living in his home because of her aggressiveness toward him. Although E.N. and J.M. both testified that E.N.’s parents had agreed to move out of the trailer and into an elderly housing development should E.N. and J.M. regain custody of the three children involved in this proceeding, neither of E.N.’s parents were called to testify to the accuracy of those statements.

The evidence supports a finding that neither E.N. nor J.M. had obtained suitable housing for their family by the date of the termination hearing. We conclude that the trial court did not commit manifest error in concluding that E.N. and J.M. had not substantially complied with their case plans. Moreover, given the history of this matter, we further find that the trial court did not commit manifest error in concluding that there was no reasonable expectation that either E.N. or J.M. would make significant improvement in their conduct in the future.

Best Interest of the Children)

E.N. and J.M. contend that the trial court erred in finding that termination was in the best interest of the child(ren). We disagree. In State ex ret. K.G., 841 So.2d at 762, the Louisiana Supreme Court explained:

The State’s parens patriae power allows intervention in the parent-child relationship only under serious circumstances, such as where the State seeks the permanent severance of that relationship in an involuntary termination proceeding. The fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing by providing an expeditious judicial process for the [¡¡termination of all parental rights and responsibilities and to achieve permanency and stability for the child. The focus of an involuntary termination proceeding is not whether the parent should be deprived of custody, but whether it would be in the best interest of the child for all legal relations with the parents to be terminated. As such, the primary concern of the courts and the State remains to secure the best interest for the child, including termination of parental rights if justifiable grounds exist and are proven.

E.J.N., Jr., was just five months old when he was removed from his parents’ care. His sisters, M.A.N. and N.A.N., were three and two years old, respectively, when they were removed from the care of E.N. and J.M. At the time of the third termination hearing, the children had been in the foster care system for three years and eight months. Ms. Carrie testified that M.A.N. and N.A.N. had been living in a certified adoptive home in Acadia Parish; both are progressing well in school and have minimal behavioral problems. She explained that in March of 2012, E.J.N., Jr. was fortunate enough to move into the foster home where his two siblings had been living. Ms. Carrie testified that while he did have a few behavioral issues, he was adjusting to his new home and the foster parents were working with him to solve those issues. According to Ms. Carrie, the agency was of the opinion that it was in the best interest of the three children that the parental rights of E.N. and J.M. be terminated.

E.N. and J.M. each admitted that while they did visit their child(ren) a few times after the January 24, 2012 pretrial conference, they did not come close to attending all of the bimonthly visitations as the trial court had directed. They also admitted to not keeping the State informed of their whereabouts on several occasions when they had to change living arrangements, including the time they were evicted from an apartment for nonpayment of rent. More significantly, both E.N. and J.M. acknowledged that, given their current living arrangements, they were not presently able to bring their children home even if the trial court were to |3deny the State’s attempt to terminate their parental rights. Further, E.N. testified that his child support obligations were “the main problem of why we can’t maintain our own home.” Finally, and despite being ordered to obtain and maintain stable employment, both E.N. and J.M. did not provide the State with verification of employment until the date of the termination hearing, and then, they each submitted only one check stub.

As the supreme court stated in State ex rel. KG., 841 So.2d at 762, “[t]he fundamental purpose of involuntary termination proceedings is to provide the greatest possible protection to a child whose parents are unwilling or unable to provide adequate care for his physical, emotional, and mental health needs and adequate rearing.” In the instant case, despite being given much time and many, opportunities to comply with their case plans, neither E.N. nor J.M. were able to show that they could consistently provide for the mental, physical, and emotional needs of their children. Accordingly, we conclude that the State met its burden of proving by clear and convincing evidence that termination of E.N.’s and J.M.’s parental rights was in the best interest of M.A.N., N.A.N., and E.J.N., Jr. The trial court did not err in determining that termination was in the best interest of the child(ren).

DECREE

For the foregoing reasons, the judgment of the trial court terminating the parental rights of J.M., with regard to her son, E.J.N., Jr., and E.N., with regard to his children, M.A.N., N.A.N., and E.J.N., Jr. is affirmed. All costs of this appeal are assessed against J.M. and E.N.

AFFIRMED.

      . D.T. is the mother of M.A.N. and N.A.N. Her parental rights were terminated at the January 20, 2011 termination trial and are not at issue in this appeal.

      . Because the jurisprudence requires that the State need only prove one of the grounds for termination listed in La.Ch.Code art. 1015, we do not need to address whether the State proved any other grounds for termination. See, State in the Int. of J.K.G., — So.3d-.