author: ROSEMARY LEDET, Judge.

text:
    Crystal WINDING v. Dr. Washington BRYAN, Pendleton Memorial Methodist Hospital and the Louisiana Patients Compensation Fund Oversight Board.
    No. 2014-CA-0388.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 17, 2014.
    Rehearing Denied Nov. 12, 2014.

      Tammy D. Harris, Timothy J. Young, The Young Firm, New Orleans, LA, for Plaintiff/Appellant.
    Trevor G. Bryan, Trevor Bryan, APLC, New Orleans, LA, for Defendant/Appellee.
    Court composed of Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO, Judge ROSEMARY LEDET.
   ROSEMARY LEDET, Judge.

I,This is a medical malpractice case. The plaintiff, Crystal Winding, filed this malpractice suit against, among others, Dr. Washington Bryan. Dr. Bryan filed a “no-expert” motion for summary judgment. Although Ms. Winding’s opposition included a notarized expert’s affidavit, the trial court, as a sanction for Ms. Winding’s violating the pre-trial scheduling order, refused to consider her expert’s affidavit. Based on Ms. Winding’s lack of an expert witness, the trial court granted |aDr. Bryan’s motion for summary judgment. The narrow issue presented on appeal is whether the trial court erred in excluding the expert’s affidavit and granting the motion for summary judgment. Answering that question in the affirmative, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

On November 13, 2003, Ms. Winding was admitted to Pendleton Memorial Methodist Hospital (“PMMH”) for a lapa-roscopic surgery to alleviate chronic pelvic pain. Dr. Bryan was her treating gynecologist and surgeon. Dr. Bryan’s alleged malpractice related to complications that arose during the surgical procedure. On December 22, 2004, Ms. Winding filed a Request for Medical Review Panel with the Louisiana Patient’s Compensation Fund Oversight Board (the “Board”), naming as defendants Dr. Bryan, PMMH, and the Board. In her request (complaint), she alleged that, during the surgical procedure, Dr. Bryan “hit a pumper” — an artery — and that he failed to properly close the area. She farther alleged that, following the procedure, she experienced numbness and symptoms of vascular problems in her left leg below the operative site. She still further alleged that Dr. Bryan’s malpractice included “[flailing to properly follow the patient and perform appropriate and timely procedures to determine the cause of patient’s continued complaints following the November 13, 2003 aforementioned procedure.”

|sOn December 12, 2007, a Medical Review Panel (the “MRP”) convened. The MRP unanimously found that the evidence did not support the conclusion that Dr. Bryan failed to meet the applicable standard of care as charged in the complaint; the panel made the following conclusions:

1) A known complication of laparoscopy is injury to blood vessels, more specifically the external line.
2) Dr. Bryan appropriately recognized the complication and managed it appropriately which included a consultation with a surgeon.
3) Post-operatively, Dr. Bryan referred the patient to the proper specialists (neurologist and vascular surgeon) for follow-up.

In March 2008, Ms. Winding commenced this medical malpractice suit against the same defendants — Dr. Bryan, PMMH, and the Board. In November 2011, the trial court issued a pre-trial scheduling order. As amended, the scheduling order imposed the following deadline dates: (i) Ms. Winding was required to supplement her written discovery responses and to submit a witness list by February 9, 2012; (ii) Dr. Bryan was required to submit a witness list by March 9, 2012; and (iii) all discovery was required to be completed by May 9, 2012.

Dr. Bryan submitted his witness list on March 19, 2012. Ms. Winding submitted her witness list on March 30, 2012. Included on her witness list was the name of an expert, Dr. Julius S. Piver, a board certified obstetrician and |4gynecologist. On June 5, 2012, Ms. Winding’s counsel sent a copy of Dr. Piver’s report to Dr. Bryan’s counsel and advised his counsel of Dr. Piver’s recent death. On March 6, 2013, the trial court, upon application of Ms. Winding’s counsel certifying that discovery was complete, issued a trial order setting the case for a jury trial commencing on October 28, 2013.

On August 12, 2013, Dr. Bryan filed a motion for summary judgment. In support, he noted that the alleged malpractice was not of an obvious type that could be discerned by laypersons without the aid of an expert; hence, he contended that a medical expert was required. He further contended that Ms. Winding had failed to identify a medical expert who would testify at the scheduled trial. Finally, he cited the unanimous finding of the MRP that he had not breached the standard of care.

On September 6, 2013, Ms. Winding’s counsel filed a motion to continue the motion for summary judgment, which was granted; the hearing on the motion was reset for October 9, 2013. In the interim, on September 30, 2013, new co-counsel enrolled on Ms. Winding’s behalf. On October 1, 2013, Ms. Winding filed an opposition to the motion for summary judgment. In support of her opposition, she attached an expert’s affidavit. Her expert, Dr. Bruce L. Halbridge, attested that he was a board certified obstetrician and gynecologist. He further attested, to a reasonable degree of medical certainty, that Dr. Bryan had breached the standard of care.

In his reply memorandum, Dr. Bryan objected to Ms. Winding’s use of either Dr. Halbridge’s affidavit to defeat the motion for summary judgment or his 1 ^testimony at trial. Dr. Bryan’s objection was based on Ms. Winding’s untimely disclosure of her expert’s identity. Dr. Bryan stressed that the trial court, upon the application of Ms. Winding’s counsel certifying that all discovery had been completed, issued a trial order setting the case for trial. He further stressed that at no time before she filed her opposition did Ms. Winding identify an expert witness who would testify at trial. Dr. Bryan cited the general rule that an expert witness should be disclosed at least ninety days before trial. See La. C.C.P. art. 1425. At a minimum, Dr. Bryan noted that the expert witness should have been disclosed when discovery interrogatories were issued requesting the names of all experts. Finally, Dr. Bryan contended that to disclose the expert twenty-eight days before trial was unfair and “trial by ambush.”

Agreeing with Dr. Bryan, the trial court, at the close of the hearing, orally granted the motion for summary judgment. In so doing, the trial court reasoned that “the defendant would be prejudiced if the Court were to grant relief and deny the Motion for Summary Judgment.” The court further reasoned that given the complicated nature of the alleged malpractice, a medical expert was required to testify concerning the standard of care and whether it was breached. The court still further reasoned that “[tjhere is no expert which has been filed timely pursuant to the Rules of Court or the Scheduling Order in this matter.” The trial court stated that it would not allow the expert that was first named in Ms. Winding’s opposition to defeat Dr. Bryan’s motion for summary judgment. On January 9, 2013, the trial | ficourt rendered judgment granting Dr. Bryan’s motion for summary judgment. As its written reasons for judgment, the trial court adopted Dr. Bryan’s memorandum in support of his motion for summary judgment. This appeal followed.

DISCUSSION

Ms. Winding’s sole assignment of error is that the trial court erred in holding that she could not present expert medical testimony related to liability and causation— her expert’s affidavit — because allowing her to do so would prejudice Dr. Bryan. Dr. Bryan counters that the trial court correctly denied Ms. Winding’s untimely attempt to amend her witness list, in effect, by submitting her expert’s affidavit. As noted, the trial court, agreeing with Dr. Bryan, excluded Ms. Winding’s expert’s affidavit as a sanction for her violating the pre-trial scheduling order. Based on her lack of an expert witness, the trial court granted summary judgment and dismissed her case. The issue in this case thus involves the interplay between the rules governing summary judgment and the sanctions for violating a pre-trial scheduling order.

The rules regarding summary judgment are codified in La. C.C.P. arts. 966 and 967. Appellate courts review the grant of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Chapital v. Harry Kelleher & Co., Inc., 13-1606, pp. 5-6 (La.App. 4 Cir. 6/4/14), 144 So.3d 75, 81-82 (quoting Mandina, Inc. v. O’Brien, 13-0085, p. 5 (La.App. 4 Cir. 7/31/13), — So.3d —, —, 2013 WL 3945030 (collecting cases and summarizing the principles governing summary judgment)).

The application of the rules governing summary judgment to this case is straightforward. Dr. Bryan filed a motion for summary judgment, which he |7supported by attaching a copy of the MRP’s unanimous opinion in his favor. As noted, the MRP found that Dr. Bryan had not breached the standard of care. Dr. Bryan thus negated a necessary element of Ms. Winding’s claim, and the burden shifted to Ms. Winding to produce factual support to establish that she will be able to satisfy her evidentiary burden of proof at trial. In an attempt to satisfy her burden, Ms. Winding submitted an affidavit of an expert in the field of obstetrics and gynecology, Dr. Halbridge. Based on our de novo review, we find that Dr. Halbridge’s affidavit, if considered, would have been sufficient to defeat Dr. Bryan’s motion for summary judgment. Stated otherwise, his affidavit would have established the existence of genuine issues of material fact regarding the standard of care, liability, and causation.

The result of the trial court’s exclusion of Dr. Halbridge’s affidavit was Ms. Winding’s lack of an expert witness to establish each component of her medical malpractice case. Based on Ms. Winding’s lack of an expert witness, the trial court granted Dr. Bryan’s “no-expert” motion for summary judgment and dismissed Ms. Winding’s case. This case thus hinges on whether the trial court erred in excluding |sDr. Halbridge’s affidavit. In reviewing this issue, we apply an abuse of discretion standard. In re Succession of Holzenthal, 12-0211, p. 9 (La.App. 4 Cir. 9/26/12), 101 So.3d 81, 87-88. In Holzenthal, this court outlined the governing law on this issue as follows:

[I]n matters of discovery, such as whether a witness has been listed in a timely manner, a decision of the trial court should not be disturbed in the absence of an abuse of discretion. Duncan v. Bartholomew, 11-0855, p. 19 (La.App. 4 Cir. 3/14/12), 88 So.3d 698, 712. Specifically, where a pre-trial order has not been complied with, as in the case [when a party fails to] ... identify his expert witnesses prior to the close of discovery, it is within the trial court’s discretion to disallow witnesses, expert or not, from testifying. St. John Baptist Church of Phoenix v. Thomas, 08-0687, p. 10 (La.App. 4 Cir. 12/3/08), 1 So.3d 618, 625.

Id. (citing La. C.C.P. arts. 1551C and 1471A(2)).

lain this ease, the trial court, albeit without citing any authority, imposed a sanction for violating the pre-trial scheduling order pursuant to La. C.C.P. arts. 1551C and 1471A(2) and (3). The direct sanction the trial court imposed was the exclusion of Ms. Winding’s expert’s affidavit. Given the procedural posture in which the sanction was imposed — a “no-expert” motion for summary judgment — the ultimate result was the imposition of a “death penalty” sanction — dismissal of Ms. Winding’s case.

Although La. C.C.P. art. 1551C incorporates La. C.C.P. art. 1471A(2) and (3), and thus authorizes the “death penalty” sanction of dismissal in an appropriate case for violating a pre-trial scheduling order, the Louisiana Supreme Court has admonished that “this extreme penalty obviously should seldom be imposed and should be reserved for only the most flagrant case.” Benware v. Means, 99-1410, p. 8 (La.1/19/00), 752 So.2d 841, 846. The Supreme Court noted that “[e]ach case must be decided upon its own facts and circumstances, and the trial judge is vested with much discretion in determining the penalty for violation of pre-trial or discovery orders.” Benware, 99-1410 at p. 9, 752 So.2d at 847.

To guide courts in making a case-by-case determination of the appropriate sanction for violating a pre-trial scheduling order, the Supreme Court in Benware enumerated the following four factors: (i) whether the attorney, the client, or both committed the misconduct; (ii) the stage of the proceeding at which the violation occurred; (iii) the presence or absence of prejudice to the opposing party’s | ^preparation of the case; and (iv) the nature and persistency of the misconduct that constitutes the violation. Benware, 99-1410 at pp. 9-10, 752 So.2d at 847. Applying the four Benware factors to the present case, we find the trial court abused its discretion in excluding Ms. Winding’s expert’s affidavit and dismissing her case.

The first factor is who committed the misconduct — the attorney, the client, or both. Dismissal is a draconian penalty generally reserved for those cases in which the client, as well as the attorney, was at fault. Benware, 99-1410 at p. 9, 752 So.2d at 847 (citing Horton v. McCary, 93-2315, p. 10 (La.4/11/94), 635 So.2d 199, 203). There is no evidence that Ms. Winding was at fault. At the hearing, Ms. Winding’s counsel assumed full responsibility. Ms. Winding’s counsel stated that Ms. Winding should not be punished by having her case dismissed when she was not personally involved in the expert witness issue; rather, her counsel stated that any punishment “should be directed at The Young Firm in the form of sanctions.” The record supports Ms. Winding’s counsel’s statement that Ms. Winding had no involvement in the violation of the pre-trial scheduling order.

The second factor is the stage of the proceeding at which the violation occurred. The violation in this case occurred in the pre-trial context of a motion for Insummary judgment, albeit on the eve of the trial setting. Although this case has been pending since 2008, this was the first time this case had been set for trial.

The third factor is prejudice to the opponent. At the hearing, the trial court orally reasoned that “the defendant would be prejudiced if the Court were to grant relief and deny the Motion for Summary Judgment.” Dr. Bryan contends that the trial court correctly found that he would be prejudiced by allowing Ms. Winding to use either Dr. Halbridge’s affidavit or his trial testimony. Dr. Bryan contends that the prejudice that he would have suffered was being deprived of the ability to fully vet Ms. Winding’s expert and to present a Daubert defense. He stresses that the alleged malpractice occurred in 2003, that this suit was filed in 2008, and that the October 2013 trial date was set on Ms. Winding’s counsel’s representation that discovery was complete. He thus contends that the trial court did not abuse its discretion in refusing to continue the October 2013 trial date to allow Ms. Winding to use an untimely disclosed expert.

Conversely, Ms. Winding contends that there was no prejudice to Dr. Bryan. The gist of Ms. Winding’s contention is that this is not a case in which no expert was disclosed until the opponent’s motion for summary judgment was filed. Rather, she emphasizes that this is a case in which an expert was disclosed, but the first expert died before being deposed or testifying at trial. Ms. Winding points out that she was seeking to substitute a deceased expert with a replacement expert in |1?the same field. She also points out that Dr. Bryan was well aware that she had retained an expert to address liability and causation and that he also was aware that her first expert had died. Ms. Winding thus contends that it was not a surprise to Dr. Bryan that she would have to retain a replacement expert to testify at trial. She further contends that there was no prejudice to Dr. Bryan because her two experts — Dr. Piver and Dr. Halbridge — were interchangeable-both were board-certified in obstetrics and gynecology, and both were basing their opinions on the same theories. Alternatively, Ms. Winding contends that any prejudice to Dr. Bryan could have been ameliorated by allowing him to depose her expert and, if warranted, to file a pre-trial Daubert motion, and, if necessary, by continuing the trial.

Given the pre-trial context in which the misconduct was raised, we find, as Ms. Winding alternatively contends, that the prejudice to Dr. Bryan could have been ameliorated by allowing him to depose her expert, to file a Daubert motion, or to continue the trial. Moreover, we note, as Ms. Winding emphasizes, that it was not a surprise to Dr. Bryan that it would be necessary for Ms. Winding to retain a replacement expert.

The fourth, and final, factor is the nature and the persistency of the misconduct. The trial court, in its colloquy with counsel at the hearing on the | ^motion for summary judgment, addressed the nature of the misconduct. The trial court framed the misconduct as Ms. Winding’s counsel’s failure to meet the requirements of the pre-trial scheduling order by timely filing notice of Ms. Winding’s witnesses. The trial court emphasized the lapse of over a year since the death of Ms. Winding’s first expert, Dr. Piver, and the lack of any reference to the first expert’s death in Ms. Winding’s opposition to the motion for summary judgment. The trial court questioned Ms. Winding’s counsel regarding the failure to amend the witness list. Ms. Winding’s counsel replied that it was “an oversight by my office that we did not amend the witness list to change the name from Dr. Piver to Dr. Halbridge.” The trial court, as Dr. Bryan points out, was dissatisfied with Ms. Winding’s counsel’s excuse and thus refused to consider Dr. Halbridge’s affidavit or trial testimony.

The trial court, however, failed to address the issue of the persistency of the misconduct. The following chronology is undisputed. Ms. Winding’s first expert died sometime before June 2012. Although Dr. Bryan’s counsel was informed in June 2012 of the first expert’s death, his counsel neither requested that Ms. Winding supplement her witness list with a new expert, nor filed a motion to compel the disclosure of any new expert. Instead, Dr. Bryan’s counsel stated at the hearing that, after learning that of the first expert’s death, “we waited around to see what they were going to do.” The issue regarding Ms. Winding’s replacement expert thus was not raised until October 2013 when Ms. Winding filed her opposition to Dr. Bryan’s motion for summary judgment, which was accompanied by her replacement expert’s affidavit. Given this chronology of events, it cannot be concluded that the misconduct was persistent. We note, however, that Ms. Winding’s counsel did not deny that the witness list should have been amended |14earlier to name the replacement expert; rather, her counsel explained that the failure to do so was the result of her counsel’s oversight.

Based on our analysis of the above four Benware factors, we find the trial court’s selected sanction — excluding the expert’s affidavit and dismissing the case — was too harsh. Although Ms. Winding’s counsel was dilatory in amending the witness list and failing to disclose the replacement expert’s identity, her counsel’s oversight, under these circumstances, was insufficient to warrant the draconian sanction imposed. Accordingly, we find the trial court abused its discretion.

DECREE

For the foregoing reasons, the trial court’s judgment is reversed; and this matter is remanded for further proceedings.

REVERSED AND REMANDED.

      . A "no-expert” motion for summary judgment is premised on the well-settled jurisprudence requiring an expert witness to prove a medical malpractice claim in most cases. The rule is based on the following jurisprudence:
      To prevail in a medical malpractice action based on the negligence of a physician, a plaintiff must establish the standard of care applicable to the physician, a violation by the physician of that standard of care, and a causal connection between the physician’s alleged negligence and the plaintiff’s injuries resulting therefrom. Pftffner v. Cor-rea, 94-0924, p. 8 (La. 10/17/94), 643 So.2d 1228, 1233; La. R.S. 9:2794(A). Although the jurisprudence has recognized exceptions in instances of obvious negligence, these exceptions are limited to "instances in which the medical and factual issues are such that a lay jury can perceive negligence in the charged physician’s conduct as well as any expert can.” Williams v. Memorial Medical Center, 2003-1806, p. 16 (La.App. 4 Cir. 3/17/04), 870 So.2d 1044, 1054; Pfiff-ner, 94-0924 atp. 9, 643 So.2d at 1234; see also Coleman v. Deno, 2001-1517, p. 20 (La. 1/25/02), 813 So.2d 303, 317. The jurisprudence has thus recognized that "an expert witness is generally necessary as a matter of law to prove a medical malpractice claim.” Williams, 2003-1806 at p. 16, 870 So.2d at 1054; Williams v. Metro Home Health Care Agency, Inc., 2002-0534, p. 5 (La.App. 4 Cir. 5/8/02), 817 So.2d 1224, 1228.

        Albers v. Vina Family Medicine Clinic, 12-1484, pp. 3-4 (La.App. 4 Cir. 5/22/13), 116 So.3d 940, 942-43.

      . In her subsequently filed petition, Ms. Winding additionally alleged that Dr. Bryan failed “to diagnose the clot and problems evident on a pre-discharge scan of her leg.”

      . As to PMMH, the MRP found that “[t]here is nothing in the record presented to the panel to indicate that the hospital or its employees deviated from the standard of care.” On August 4, 2009, the trial court granted PMMH’s motion for summary judgment.

      . At the parties' request, the scheduling order was amended in February 2012 to correct a clerical error in the original order concerning the deadline dates; in the original order, the year 2011 instead of the year 2012 was mistakenly listed.

      .A copy of Ms. Winding’s witness list appears in the record. Her witness list contains a certificate of service, certifying that service of the witness list was made on all counsel of record. Nonetheless, Dr. Bryan's counsel contends that he never received a copy of the witness list.

      . As noted elsewhere, Dr. Bryan’s counsel concedes that he was notified in June 2012 that Ms. Winding’s first expert was Dr. Piver and that Dr. Piver recently had died.

      . Although Dr. Bryan’s memorandum in support of his motion for summary judgment references his discovery interrogatories as an attachment, a copy of neither his discovery interrogatories nor Ms. Winding’s responses thereto is in the record on appeal.

      . Dr. Halbridge attested that Dr. Bryan breached the standard of care in the following respects:
      • Failed to treat Ms. Winding with the appropriate regime of antibiotics;
      • Failed to identify the major pelvic blood vessels, which resulted in ligating the left internal iliac vessel and the adjacent nerves supplying the left leg, which in turn caused Ms. Winding’s left leg muscle weakness and parathesia;
      • Failed to obtain a consultation, which caused the failure to release the adjacent pelvic plexus nerves;
      • Failed to obtain a vascular consultation, which in turn Dr. Bryan failed to repair the internal iliac artery and free trapped nerves;
      • Failed to feel for a pedal pulse in Ms. Winding’s left leg; and
      • Failed to place atraumatic vascular clamp(s) across the bleeding artery, clear the-pelvic floor of blood, or identify the internal iliac artery before suturing the artery.

      . La. C.C.P. art. 1551C provides:
      If a party's attorney fails to obey a pretrial order, or to appear at the pretrial and scheduling conference, or is substantially unprepared to participate in the conference or fails to participate in good faith, the court, on its own motion or on the motion of a party, after hearing, may make such orders as are just, including orders provided in Article 1471(2), (3), and (4). In lieu of or in addition to any other sanction, the court may require the party or the attorney representing the party or both to pay the reasonable expenses incurred by noncompliance with this Paragraph, including attorney fees.

      . La. C.C.P. art. 1471A(2) provides:
      If a party ... fails to obey an order to provide or permit discovery ... the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

      (2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.

      . At the hearing, Dr. Bryan’s counsel argued that Ms. Winding’s expert's affidavit should be excluded not as a matter of punishment, but as a matter of fairness.

      . La. C.C.P. art. 1471A(3) provides: "[a]n order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.”

      .In Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199, 203, the Louisiana Supreme Court adopted from the federal jurisprudence four factors to be considered when evaluating whether a failure to comply with discovery mandates dismissal. Those factors are as follows: (1) whether the violation was willful or resulted from inability to comply; (2) whether less drastic sanctions would be effective; (3) whether the violation prejudiced the opposing party’s trial preparation; and (4) whether the client participated in the violation or simply misunderstood a court order or innocently hired a derelict attorney.

      . As discussed elsewhere, the fact that, in this case, the misconduct was raised in the pre-trial context is a significant factor in our determination that the sanction imposed was too harsh. This case is distinguishable on this basis from Provosty v. ARC Const., LLC, 12-1015 (La.App. 4 Cir. 3/20/13), 119 So.3d 23, which Dr. Bryan cites; in Provosty, the issue of the failure to timely disclose an expert witness was raised at trial.

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      . As noted earlier, on March 30, 2012, Ms. Winding filed a witness list that included the first expert, Dr. Piver. Although Dr. Bryan’s counsel denied receiving a copy of the witness list, Ms. Winding’s counsel included on the witness list a certificate of service, certifying service on all counsel of record. On June 5, 2012, Ms. Winding's counsel sent Dr. Bryan’s counsel a copy of Dr. Piver’s report and advised his counsel that Dr. Piver had recently died before being deposed. Dr. Bryan’s counsel acknowledged receiving a copy of Dr. Pi-ver’s report and being informed that Dr. Piver had died.

      . According to Ms. Winding, both experts opined that the occlusion of the artery resulted from improper suturing and that this caused her nerve damage in her leg.

      . The issue of whether a lesser sanction was warranted for the violation of the pre-trial scheduling order is not before us on appeal.


source: Caselaw Access Project

author: PAINTER, Judge.

license: Public Domain

text:
    SUN COAST CONTRACTING SERVICES, INC. v. DIEN’S AUTO SALVAGE, INC., Andino Sugar Development LLC and Ruby Farms LLC.
    No. 14-307.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.
    Rehearing Denied Nov. 5, 2014.

      Gary J. Giepert, New Orleans, LA, for Plaintiff-Appellee, Sun Coast Contracting Services, LLC.
    Alfred F. Boustany, II, Lafayette, LA, for Defendant-Appellant, Dien’s Auto Salvage, Inc.

      Court composed of JOHN D. SAUNDERS, BILLY HOWARD EZELL, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| defendant, Dien’s Auto Salvage, Inc. (Dien’s), appeals the entry of a default judgment against it. For the following reasons, the default judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

Sun Coast Contracting Services, LLC (Sun Coast) and Dien’s entered a “Teaming Agreement” in which they agreed to demolish a sugar mill in New Iberia, Louisiana, and to remove the debris. The agreement provided that the revenues, expenses, profits and/or losses arising out of the demolition project were to be split equally between the two parties to the agreement.

In May 2013, Sun Coast filed suit claiming that it had job costs of $1,196,136.46, that Dien’s had no job costs, and that Dien’s had not responded to requests to be reimbursed for half its job costs as agreed to in the “Teaming Agreement.” As a result, Sun Coast prayed for judgment against Dien’s in the amount of $598,068.23 plus interest and attorney’s fees. Dien’s did not file an answer, and, on August 6, 2013, Sun Coast filed a motion for preliminary default which was entered on that same date. On November 14, 2013, Sun Coast filed a motion for confirmation of the default judgment, and judgment was rendered on November 14, 2013. Dien’s now appeals devolutively.

DISCUSSION

No Cause of Action

On appeal, Dien’s urges an exception of no cause of action arguing that the parties formed a joint venture and that neither party has a cause of action against the other until the joint venture is dissolved.

The purpose of the peremptory exception of no cause of action is to determine the sufficiency in law of the petition. The burden of showing that the plaintiff has stated no cause of action is upon the exceptor. The public policy behind the burden is to afford the party his day in court to present his evidence. Jarrell v. Carter, 577 So.2d 120 | P(La.App. 1 Cir.), writ denied, 582 So.2d 1311 (La.1991). The exception is triable on the face of the papers, and for the purpose of determining the issues raised by the exception, the court must presume that all well-pleaded facts in the petition are true. All reasonable inferences are made in favor of the nonmoving party in determining whether the law affords any remedy to the plaintiff. LA.CODE CIV.P. arts. 927, 931; Mayer v. Valentine Sugars, Inc., 444 So.2d 618 (La.1984)....
Generally, under LA.CODE CIV.P. art. 931 parties may introduce no evidence to support or controvert the exception. See, e.g., Treasure Chest Casino, L.L.C. v. Parish of Jefferson, 96-1010 (La.App. 1 Cir. 3/27/97), 691 So.2d 751, 754, writ denied, 97-1066 (La.6/13/97), 695 So.2d 982....
An exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insurmountable bar to relief. Thus, dismissal is justified only when the allegations of the petition itself clearly show that the plaintiff does not have a cause of action, or when its allegations show the existence of an affirmative defense that appears clearly on the face of the pleadings. Board of Comm’rs of Orleans Levee Dist., 640 So.2d at 237. A court appropriately sustains the peremptory exception of no cause of action only when, conceding the correctness of the well-pleaded facts, the plaintiff has not stated a claim for which he can receive legal remedy under the applicable substantive law.

City of New Orleans v. Bd. of Dir. of Louisiana State Museum, 98-1170, pp. 9-10 (La.3/2/99), 739 So.2d 748, 755-56.

Dien’s asserts that the parties undertook a joint venture. It is correct that “[a] joint venture is analogous to a partnership and controlled largely by the rules applicable to partnerships.” Palmer v. Vermillion Home Builders, LLC, 48,838, p. 10 (La.App. 2 Cir. 2/26/14), 134 So.3d 1248, 1254. The argument that the parties have no cause of action against one another because of failure to dissolve the joint venture asserts a serious defect. Carr v. Masters, 469 So.2d 1147 (La.App. 4 Cir. 1985), cited in Sinegal v. Lafayette Parish Sheriffs Office, 13-1437, p. 6 (La.App. 3 Cir. 5/7/14), 139 So.3d 630, 634. Therefore, we conclude that Dien’s is attempting to assert an affirmative defense via its exception.

IsWhen an exception of no cause of action is based on an affirmative defense, the exception must be overruled unless the allegations of the pleading exclude every reasonable hypothesis other than the premise upon which the defense is based. Owens v. Martin, 449 So.2d 448, 452 (La.1984); Kyle, 588 So.2d at 1159.

Lambert v. Riverboat Gaming Enforcement Div., 96-1856, p. 5 (La.App. 1 Cir. 12/29/97), 706 So.2d 172, 175.

After reviewing the petition herein, we conclude that the pleadings do not “exclude every reasonable hypothesis other than the premise upon which the defense is based.” Id. Therefore, the exception of no cause of action must be overruled. Service of Process

Dien’s asserts that the default judgment was granted in error because the record lacks proof of service of process. However, the record on appeal was supplemented with a copy of the citation including the Sheriffs Return showing personal service of the petition on May 30, 2013. Therefore, we conclude that Dien’s was properly served with the petition in this matter. Certifications

Dien’s next contends that the documents tendered in support of the default judgment were not sufficient to fulfill the requirements of La.Code Civ. P. arts. 1701 and 1702.1.

Louisiana Code of Civil Procedure Article 1701 provides generally for the entry of a default judgment where the defendant fails to answer within the time provided by law. Where, as here, the action is based on a conventional obligation, La.Code Civ. P. art. 1702(B)(1) provides that:

When a demand is based upon a conventional obligation, affidavits and exhibits annexed thereto which contain facts sufficient to establish a prima facie case shall be admissible, self-authenticating, and sufficient proof of such demand. The court may, under the I ¿circumstances of the case, require additional evidence in the form of oral testimony before entering judgment.

In order to confirm a default judgment based on conventional obligation, La.Code Civ.P. art. 1702.1 requires the following:

A. When the plaintiff seeks to confirm a default judgment as provided in Article 1702(B)(1) and (C), along with any proof required by law, he or his attorney shall include in an itemized form with the motion and judgment a certification that the suit is on an open account, promissory note, or other negó-tiable instrument, on a conventional obligation, or on a check dishonored for nonsufficient funds, and that the necessary invoices and affidavit, note and affidavit, or check or certified reproduction thereof are attached. If attorney fees are sought under R.S. 9:2781 or 2782, the attorney shall certify that fact and that a copy of the demand letter and if required, the return receipt showing the date received by the debtor are attached and that the number of days required by R.S. 9:2781(A) or 2782(A), respectively, have elapsed before suit was filed.
B. The certification shall indicate the type of service made on the defendant, the date of service, and the date a preliminary default was entered, and shall also include a certification by the clerk that the record was examined by the clerk, including therein the date of the examination and a statement that no answer or other opposition has been filed.

Dien’s first argues that no default judgment should have been granted because no certification was included with the motion and judgment. However, in, Weber Property Group, LLC v. Sunburst Media-Louisiana, LLC, 12-804 (La.App. 5 Cir. 4/10/13), 115 So.3d 40, the fifth circuit found that where the record contained appropriate documentation of the claims made, the failure to include the certificate described in La.Code Civ. P. art. 1702.1(B) was not fatal to the default judgment. We agree.

However, Dien’s argues that the Weber case is not applicable because the record does not contain appropriate documentation of the claims made. It notes that the supporting affidavit of Jerry Crump does not identify who he is or identify him as a representative of the Plaintiff. However, attached to the original petition is a “Sworn Statement of Claim Pursuant to Louisiana Private Works Act” which was | ¿signed by Crump as President of Sun

Coast and which identifies him as Sun Coast’s representative. Therefore, we find that the record contains appropriate documentation of Crump’s personal knowledge supporting the affidavit. The affidavit is self-authenticating as required by statute and refers to attachments which sufficiently set out a prima facie case supporting the confirmation of a default judgment in favor of Sun Coast.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Defendanb-Appel-lant, Dien’s Auto Salvage, Inc.

AFFIRMED.


author: THIBODEAUX, Chief Judge.

text:
    STATE of Louisiana in the Interest of A.A., J.A., A.D., H.D., & J.D.
    No. 14-658.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2014.
    Rehearing Denied Nov. 5, 2014.

      Annette Fuller Roach, Lafayette, LA, for Appellant-L.D.
    Jennifer 0. Robinson, Lafayette, LA, for Appellee-A.A.
    Tracey Davenport-McGraw, OCS-Indigent Defender, Rayne, LA, for Appellee-F.D.
    Paula Murphy, Acadiana Legal Services, Lafayette, LA, for Appellees-J.D., H.D., A.D., and J.A.
    Jane Hogan, Public Defenders Office, Lafayette, LA, for Appellee-L.H.
    LaShonda G. Derouen, Lafayette, LA, for Appellee-F.D.
    Laurene D. Theriot, Child Protection Investigator, Lafayette, LA, for Appellee-State of Louisiana, Department of Children & Family Services.
    Michelle Breaux, Assistant District Attorney-15th Judicial District, Lafayette, LA, for Appellee-State of Louisiana.
    Casa Coordinator, Lafayette, LA, for Appellee-Casa of Acadiana.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, MARC T. AMY, and SHANNON J. GREMILLION, Judges.
   THIBODEAUX, Chief Judge.

|, The Department of Children and Family Services (DCFS) received a report alleging the sexual abuse of a minor from an unnamed source. The report involved a family with five minor children, where the father of three of the children allegedly engaged in various sexual acts with one of the other two minors. After receiving the allegations, DCFS instituted a temporary safety plan, which prohibited the father from having any contact with the children or being in the children’s home during the course of the investigation. The following day, DCFS received information that the father was in the family home in violation of the safety plan. Upon discovering the violation, an instanter order was issued to remove the five children from the home and place them in foster care.

The State subsequently filed a petition to adjudicate the children in need of care. After hearing testimony from a DCFS investigator and a DCFS foster care employee regarding the violation of the safety plan and other out-of-court conversations with the children, the trial court held that the children should be adjudicated in need of care. L.D., the mother of all five children, now appeals this judgment, arguing that the trial court improperly relied on inadmissible hearsay evidence and that there was insufficient evidence to support the adjudication. L.D. also filed a peremptory exception of no cause of action, contending that the State’s petition failed to state sufficient facts to support a claim. For the following reasons, we deny L.D.’s peremptory exception of no cause of action and affirm the judgment of the trial court.

I.

ISSUES

We shall consider:

|⅞(1) whether the State’s petition to adjudicate the children in need of care states a cause-of action;
(2) whether the trial court improperly relied on evidence that constitutes hearsay at the adjudication hearing; and
(3) whether the trial court erred in adjudicating the children in need of care.

II.

FACTS AND PROCEDURAL HISTORY

On March 10, 2014, DCFS received a report of alleged sexual abuse of a child from an unnamed source. The alleged abuse stemmed from a family with five minor children (A.A., who is fourteen-years old; J.A., who is twelve-years old; A.D., who is ten-years old; H.D., who is eight-years old; and J.D., who is six-years old). Specifically, A.D. told the unnamed source that her father, F.D., engaged in various sexual acts with her older half-sister, A.A. After receiving the report, DCFS spoke with the family and instituted a temporary safety plan. The plan prohibited F.D. from having any contact with the children or being in the children’s home during the course of the investigation. The following day, DCFS received information that F.D. was in the family home in violation of the safety plan. L.D. allowed F.D. back into the home because she took A.A. to have a physical examination where it was determined that there was no evidence of sexual intercourse. Upon discovering the violation of the safety plan, an instanter order was issued to remove the five children from the home and place them in foster care.

On April 15, 2014, the State filed a petition to adjudicate the children in need of care. At the adjudication hearing, the State did not proffer any physical evidence, but it introduced two DCFS employees as witnesses.

hThe first witness, Laurene Theriot, a DCFS investigator, testified to the violation of the safety plan and the subsequent removal of the children from the home, which DCFS relied upon to confirm the allegation of neglect by lack of adequate supervision. She further testified that while DCFS had not confirmed the sexual abuse allegations, it had confirmed allegations of tying and confinement of the child, J.A. Specifically, Ms. Theriot stated that as the children were preparing to leave, she noticed J.A. pack a straitjacket when A.A. intervened and told J.A. that he would not need it. Ms. Theriot did not know at the time what it was, but she testified that A.A. later told her that it was a straitjacket to handle J.A., who had special needs and was difficult to control. Ms. Theriot testified that forensic interviews with the other children confirmed the existence of the straitjacket.

The State’s second witness, Ronald J. Nichols, a DCFS employee in the foster care division, testified to discussions he had with the children. In particular, he stated that in talking with A.A., she disclosed engaging in various sexual acts with F.D. Mr. Nichols further testified that A.A. told him that her parents bought the straitjacket in an adult store along with pornography. Mr. Nichols also stated that he spoke with J.A., who indicated that the straitjacket existed, and A.D., who said that F.D. engaged in inappropriate sexual behavior with her. Mr. Nichols also testified that he heard from counselors and foster parents that J.A. exhibited behavior that indicated exposure to sexually explicit acts, including reports of touching his teachers inappropriately.

At the conclusion of the hearing, the trial court adjudicated the children in need of care given the violations of the safety plan and the evidence of tying and restraint via the straitjacket. L.D. now appeals this judgment, arguing |4that the trial court improperly relied on inadmissible references to forensic interviews and hearsay evidence. L.D. further asserts that there was insufficient evidence to support the adjudication. L.D. also filed with this court a peremptory exception of no cause of action, contending that the State’s petition failed to state sufficient facts to support a claim.

III.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure Article 2163 states that “[t]he appellate court may consider the peremptory exception filed for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record.” In considering the peremptory exception of no cause of action, “[n]o evidence may be introduced to support or controvert an exception!;.]” Gaudet v. Jefferson Parish, 12-707, p. 4 (La.App. 5 Cir. 3/27/13), 116 So.3d 691, 693. Rather, “the court reviews the petition and accepts the well-pleaded allegations of fact as true.” Id.

In regards to admission of evidence, the trial court’s decision to include or exclude evidence will not be overturned absent a clear abuse of discretion. Lamson Petroleum Corp. v. Hallwood Petroleum, Inc., 04-1038 (La.App. 3 Cir. 12/8/04), 890 So.2d 684. As for whether the evidence was sufficient to support the adjudication, a juvenile court’s findings of fact are generally subject to a manifest error standard of review. State in the Interest of P.J., 47, 550 (La.App. 2 Cir. 9/12/12), 104 So.3d 517. However, if the appellate court finds that evidence was improperly admitted, it may conduct a de novo review of the record only if the improperly admitted evidence prevents the |sfactfinder from making a fair and impartial determination of a disputed fact. Godchaux v. Peerless Ins. Co., 13-1083 (La.App. 3 Cir. 6/4/14), 140 So.3d 817.

IV.

LAW AND DISCUSSION

Peremptory Exception of No Cause of Action

L.D. filed an exception of no cause of action simultaneously with her appellate brief on June 26, 2014. As this peremptory exception was submitted prior to the submission of the case for decision, it is properly before this court and subject to our review.

“The purpose of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition.” Veroline v. Priority One EMS, 09-1040, p. 4 (La.10/9/09), 18 So.3d 1273, 1275. L.D. contends that the State’s petition failed to allege sufficient facts to support a claim for adjudicating the children in need of care in accordance with La.Ch.Code art. 606(A). We disagree.

Louisiana Children’s Code Article 634(A)(3) requires that a petition state “Effects which show that the child is a child in need of care, including the acts or omissions of either parent which caused or contributed to the child’s condition.” Here, the State’s petition lists the following allegations and facts to support its claim for adjudication:

ALLEGATION: NEGLECT, SPECIFICALLY, ON 3/10/14 THE AGENCY RECEIVED A REPORT STATING THAT A YOUNGER CHILD IN THE HOME WAS REPORTING SEEING HER STEP-FATHER’S PENIS WHILE HE WAS ON TOP OF THE ELDEST CHILD ON THE SOFA IN THE HOME. ON 3/10/14, DURING THE INITIAL INVESTIGATION, THE AGENCY PUT A SAFETY PLAN FOR THE ALLEGED CARETAKER/PERPETRATOR, [F.D.], TO LEAVE THE HOME UNTIL THE AGENCY CAN OBTAIN FORENSIC INTERVIEWS OF THE CHILD VICTIM AND THE CHILD WITNESS. ON 3/11/14, THE AGENCY VERIFIED THAT [L.D. AND F.D.] VIOLATED J^gTHE AGENCY SAFETY PLAN BY LETTING [F.D.] RETURN TO THE HOME AFTER [L.D.] BROUGHT THE CHILD VICTIM TO THE E/R FOR AN EXAM AND WAS TOLD THAT THE CHILD DID NOT APPEAR TO BE SEXUALLY ABUSED. THE AGENCY IS CONTINUING TO OBTAIN INFORMATION REGARDING ADDED ALLEGATIONS OF ABUSE/TYING AND CONFINEMENT AND NEGLECT/DEPENDENCY/MENTAL HEALTH ON THE MOTHER, [L.D.] AND HER DIMINISHED PROTECTIVE CAPACITY.

While the petition states that allegations of tying and confinement as well as dependency on the mother are being investigated, it fails to list any specific facts, acts, or omissions to support these allegations. As such, the petition is insufficient in regards to these allegations under La.Ch.Code art. 634(A)(3). The petition does, however, reference neglect, supported by the alleged facts that L.D. and F.D. violated the safety plan by allowing F.D. to return to the family home and be in contact with the children. Considering neglect is a valid ground for adjudication under La.Ch.Code art. 606(A)(2), the pertinent question in our review of this peremptory exception of no cause of action becomes whether the alleged violation of the safety plan, if assumed to be true, constitutes neglect warranting the adjudication of the children in need of care. To answer this question, we must first address what constitutes neglect.

Neglect, as used in Louisiana Children’s Code Title VI regarding children in need of care, is defined as:

the refusal or unreasonable failure of a parent or caretaker to supply the child with necessary food, clothing, shelter, care, treatment, or counseling for any injury, illness, or condition of the child, as a result of which the child’s physical, mental, or emotional health and safety is substantially threatened or impaired.

La.Ch.Code art. 603(18). In reading this neglect provision, the clause “for any injury, illness, or condition of the child” potentially creates two interpretations of |7the neglect provision. On the one hand, considering this illness clause directly follows the mandatory requirements of “food, clothing, shelter, care, treatment, or counseling,” neglect could potentially be interpreted narrowly as a failure to provide these mandatory requirements only in situations involving an injury, illness, or condition of the child. If interpreted this way, we would be forced to find the petition insufficient, as there are no alleged facts of actual injury to a child in the petition. On the other hand, the Code could be construed broadly, where failure to provide adequate care, irrespective of injury, is considered neglect, and the illness clause only serves to qualify the last-listed parental requirement of providing adequate counseling. Following this interpretation, the factual allegations of willfully failing to follow a DCFS safety plan could constitute neglect in the form of inadequate general care that substantially threatens the health of the child.

Given the ambiguity of the neglect provision, we must turn to the rules of codal and statutory interpretation in Louisiana. The Louisiana Supreme Court has provided valuable guidance in this realm:

The rules of judicial interpretation of statutes are designed to ascertain and enforce the intent of the legislature in enacting the statute. SWAT 24 Shreveport Bossier, Inc. v. Bond, 2000-1695 (La.6/29/01), 808 So.2d 294, citing Stogner v. Stogner, 98-3044 (La.7/7/99), 739 So.2d 762, 766; State v. Piazza, 596 So.2d 817, 819 (La.1992). The fundamental question in all cases of statutory construction is legislative intent and the reasons that prompted the legislature to enact the law. Succession of Boyter, 99-0761 (La.1/7/00), 756 So.2d 1122, 1128. When a law is clear and unambiguous and its application does not lead to absurd consequences, it shall be applied as written, with no further inquiry made in search of the legislative intent. [La. Civ.Code.] art. 9; La. R.S. 1:4.
The meaning and intent of a law is determined by considering the law in its entirety and all other laws concerning the same subject matter and construing the | sprovision in a manner that is consistent with the express terms of the statute and with the obvious intent of the lawmaker in enacting it. Boyter, 756 So.2d at 1129; Stogner, 739 So.2d at 766. The statute must therefore be applied and interpreted in a maimer that is logical and consistent with the presumed fair purpose and intention the legislature had in enacting it. Boyter, 756 So.2d at 1129. Courts should give effect to all parts of a statute and should not adopt a statutory construction that makes any part superfluous or meaningless, if that result can be avoided. Sultana Corp. v. Jewelers Mut. Ins. Co., 03-0360 (La.12/3/03), 860 So.2d 1112; Langlois v. East Baton Rouge Parish Sch. Bd., 99-2007 (La.5/16/00), 761 So.2d 504, 507; Boyter, 756 So.2d at 1129. Furthermore, “the object of the court in construing a statute is to ascertain the legislative intent and, where a literal interpretation would produce absurd consequences, the letter must give way to the spirit of the law and the statute construed so as to produce a reasonable result.” First Nat’l Bank of Boston v. Beckwith Mach. Co., 94-2065 (La.2/20/95), 650 So.2d 1148, 1153 (quoting Smith v. Flournoy, 238 La. 432, 115 So.2d 809, 814 (1959)).

Champagne v. Am. Alternative Ins. Corp., 12-1697, pp. 5-6 (La.3/19/13), 112 So.3d 179,183-84.

In light of these rules, the neglect provision must be interpreted broadly with the “for any injury, illness, or condition” clause only qualifying the last listed requirement of counseling. While interpreting this clause as a qualifier for the other listed requirements is a plausible conclusion from a grammatical standpoint, it is completely illogical in light of the underlying spirit behind these laws of ensuring the safety and health of Louisiana’s children. For example, the Code states that parents must provide food, clothing, and shelter. It is illogical to assume that a parent must only provide these basic necessities of life in times of injury or illness. We doubt that the legislature would be content with a parent leaving a child out in the rain with no clothing or food just because that child has a clean bill of health. As such, these listed requirements of food, clothing, shelter, care, and treatment must be considered generally applicable and not subject to any qualifying language.

|Jn light of our interpretation of the neglect provision, we find that the alleged fact of willfully violating a DCFS safety plan during an ongoing investigation of sexual abuse with a minor constitutes neglect and is alone sufficient to support an adjudication of the children in need of care. This safety plan was put in place in light of very serious allegations of sexual abuse with a minor, A.A. Considering the heinous nature of such alleged acts, it is clear the plan was designed to protect the physical, mental, and emotional health of the children. Both L.D. and F.D. were aware of this temporary plan. While L.D. may have believed the plan was no longer necessary after the emergency room failed to find any physical evidence of sexual intercourse with A.A., this was not her call to make as the DCFS investigation was still ongoing and sexual abuse encompasses more than just the act of intercourse. If parents and caretakers are allowed to unilaterally interpret and violate DCFS safely plans on a personal whim or belief without accountability, then these plans serve no practical purpose. Such a policy would only serve to impair DCFS investigations and potentially put children in serious danger of further harm. As such, the willful refusal to follow a safety plan fits perfectly within the definition of neglect, as it amounts to a refusal to supply adequate general care, the result of which substantially threatens the health of the children. Considering the State’s petition provided sufficient facts to support the allegation of neglect and the legal remedy of adjudicating the children in need of care, we deny L.D.’s peremptory exception of no cause of action.

Admissibility and Sufficiency of the Evidence

L.D. contends that the trial court relied on impermissible references to forensic interviews outside of court as well as hearsay evidence in adjudicating the children in need of care. We agree.

|inLouisiana Children’s Code Article 663(A) states that the rules of evidence applicable in civil proceedings also govern adjudication hearings. Under the Louisiana Code of Evidence, hearsay is defined as “a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted.” La.Code Evid. art. 801(C). Given the unreliable nature of such evidence, hearsay is inadmissible at adjudication hearings unless it falls under one of the enumerated statutory exceptions found in La.Code Evid. arts. 80S and 804. State ex rel. D.H., 04-2105 (La.App. 1 Cir. 2/11/05), 906 So.2d 554.

In his oral reasons, the trial judge stated that while the sexual abuse allegations were still under investigation, the violation of the safety plan and the tying and restraint with the straitjacket provided a sufficient basis for adjudicating the children in need of care. In regards to the tying and restraint allegations, the evidence presented at trial consisted of Ms. Theriot’s testimony regarding her out of court conversation with A.A. as well as the forensic interviews with the other children. Mr. Nichols’ testimony further consisted of discussions of out of court conversations with the children and counselors about the alleged sexual abuse, the existence of the straitjacket, and the erratic behavior of the children.

This evidence is all inadmissible hearsay as it amounts to out of court statements that do not fall within the enumerated statutory exceptions. While videotapes of the forensic interviews that allegedly confirmed the tying and restraint allegations could have been admitted into evidence to overcome the hearsay bar under La.Ch. Code art. 327 and La.R.S. 15:440.5, videotapes were never submitted and the requirements for admission were never met. Even though the trial judge stated that he admitted the evidence because it only showed the findings of the investigation, the trial judge relied on both the testimony and references to the forensic interviews for the truth of the matters asserted, as he 11 Referenced the tying and restraint issues in his oral reasons for adjudicating the children in need of care. As the admission of this hearsay evidence amounted to legal error that interdicted the trial judge’s fact-finding process, we shall conduct a de novo review of the remaining evidence to determine if there was a sufficient basis to adjudicate the children in need of care.

After striking as hearsay Mr. Nichols’ entire testimony and Ms. Theriot’s references to her discussions with the children and the forensic interviews, the only remaining evidence is Ms. Theriot’s testimony regarding the violation of the safety plan. This testimony is unrefuted. As discussed above, the violation of a temporary safety plan alone constitutes neglect and forms a sufficient basis to adjudicate the children in need of care. As such, we affirm the judgment of the trial court.

V.

CONCLUSION

For the foregoing reasons, we deny the appellant’s peremptory exception of no cause of action and affirm the judgment of the trial court.

EXCEPTION OF NO CAUSE OF ACTION DENIED. AFFIRMED.

      . F.D. is the father of A.D., H.D., and J.D.

      . Ms. Theriot did acknowledge that the neglect by lack of adequate supervision allegation involved more than just the safety plan violation. However, in regards to this allegation, no other facts were validated at the time of the adjudication hearing.

      . There were continuous general objections to the testimony of both DCFS witnesses on the grounds of hearsay and improper references to forensic interviews at the adjudication hearing. As such, the appeals of these issues were properly preserved. See Taunton v. Cane Air, Inc., 405 So.2d 624 (La.App. 3 Cir.1981).

      . Louisiana Children’s Code Article 603 was amended on June 9, 2014, by 2014 La. Acts No. 486, 51 (S.B. 290) to amend the definition of the Safety Plan. However, as this amendment is substantive in nature and went into effect after the trial court issued its judgment, it applies prospectively only and is not applicable to this appeal. La.Civ.Code art. 6. As such, we reference the 2013 version of the Code for all definitions.