author: HOLDRIDGE, J.

text:
    Joseph BALLARD v. LOUISIANA DEPARTMENT OF PUBLIC SAFETY & CORRECTIONS
    2017 CA 0460
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 01, 2017

      Joseph Ballard, Louisiana State Penitentiary, Angola, LA, Plaintiff/Appellant, In Proper Person
    James W. Craig, New Orleans, LA, Attorney for Plaintiff/Appellant, Joseph Ballard
    Terri L. Cannon, Legal Programs Department, Louisiana State Penitentiary Angola, LA, Attorney for DefendantyAp-pellee, Louisiana Department of Public Safety and Corrections
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, PENZATO, JJ.
   HOLDRIDGE, J.

12Joseph Ballard, an inmate in the custody of the Louisiana. Department of Public Safety and Corrections (DPSC) appeals a judgment dismissing his petition for judicial review in this,administrative remedy proceeding. We affirm. ■

PROCEDURAL AND FACTUAL BACKGROUND

On September 29, 2006, while incarcerated, Ballard filed a tort suit seeking personal injury damages against the Louisiana State Penitentiary. (R37) The civil case was assigned to Division B of the 20th Judicial District Court for the Parish of West Feliciana (sometimes hereafter referred to as “the tort suit”). On October 2, 2006, the trial court permitted Ballard to proceed in forma pauperis in the litigation and ordered that Ballard make monthly payments of 20% of the preceding month’s income credited to his prison account. DPSC’s Centralized Inmate Banking Section was ordered to automatically forward monthly payments to the court for DPSC without further action by Ballard. The pauper order further instructed DPSC’s inmate banking section to forward monthly payments from Ballard’s prison account to the clerk of court each time the amount in Ballard’s prison account exceeded $10.00 until the initial advance deposit of $900.00 and all costs accruing after the filing had been paid.

On May 9, 2018, the Attorney General filed an ex parte motion to dismiss Ballard’s tort suit on the basis of abandonment pursuant to La. R.S. 15:1186(B)(2)(c), which provides that if a prisoner does not pay full court costs within three years of the date they are incurred, the court “shall enter a formal order of dismissal as of the date of the abandonment.” The Attorney General submitted the affidavit of a 20th JDC employee who attested that Ballard was required to pay costs in the amount of $900.00, and that accounting records showed those costs were satisfied on April 3, 2013, more than three years from the 1 adate they were incurred, which was October 2, 2006, when the pauper order was entered. The Attorney General also sought to have the lawsuit dismissed pursuant to article 561 of the Louisiana Code of Civil Procedure, which provides that a case is abandoned when a party fails to take a step in its prosecution or defense for a period of three years. In support thereof, the Attorney General submitted an affidavit of a state’s attorney who attested that the state had been served on April 8, 2013, and that prior to the service on the state, there had been no activity in the case since the pauper order was entered, on October 2, 2006.

On May 9, 2013, the trial court signed an order dismissing Ballard’s tort suit without prejudice and casting Ballard with costs in the matter pursuant to Articles 561 and 5188 of the Code of Civil Procedure. Ballard filed a motion to set aside the dismissal under La. R.S. 15:1186(B)(2)(c), which gives a prisoner whose lawsuit has been dismissed for failure to pay court costs thirty days from the date of service of the order of dismissal to move to set the dismissal aside. In the motion, Ballard insisted that DPSC had deliberately withheld payments from his prison account in the first three years after he incurred the filing fee to ensure dismissal of the case pursuant to La. R.S. 15:1186. He maintained that had DPSC actually paid the proper percentage of the funds that had been deposited into his prison account to the clerk of court, as required by law, the filing fee would have been satisfied within the three year statutory time period set forth in La. R.S. 15:1186(B)(2)(c). Ballard requested that the court hold a contradictory hearing on his motion.

On June 3, 2013, the trial court issued an order stating that the hearing on Ballard’s motion to set aside the dismissal on the basis of abandonment would be set after costs were paid. Several days later, Ballard wrote a letter to inmate banking services referencing the order and requesting that he be provided with the | ¿amount of money owed in the tort suit so he could arrange to pay the court costs immediately. The following day, Ballard was informed by DPSC that the prison’s debt screen showed that $860.00 in costs had been paid, leaving no balance owed. Ballard also wrote a letter to the 20th JDC on June 14, 2013, requesting that he be informed of the amount he owed in court costs so he could get them paid and have his hearing without further delay. He noted that offender banking services had informed him that he did not owe anything for costs in the tort suit.

On July 15, 2013, Ballard initiated the administrative remedy procedure (ARP) forming the basis for the instant appeal. Therein, he asserted that he had been informed that a motion in his tort suit would not be heard until he paid all costs that were owed, and that while inmate banking services told him he did not owe anything in court costs, the 20th JDC informed him that he did owe costs and that it was deferring a hearing in his tort suit until costs were paid. Ballard demanded to know how much he owed the 20th JDC in costs and stated that his complaint was that the prison banking system was not up-to-date with current costs owed by offenders, resulting in unreasonable delays for inmates to have their day in court. Ballard asserted that at the very least, offenders should have access to information regarding costs through the internet. Ballard sought the following relief:

That I immediately be provided an up-to-date listing of the amount of money I currently owe [as of the filing date of this ARP], in [the tort suit] so I may arrange to pay the fee and get a hearing date in Court which has been made contingent on my paying the fees.
That DPS & C upgrade their Offender Banking Services to begin providing this information and paying court costs ordered by the Court without any further unnecessary delay.

While the ARP was pending at the first step, Ballard apparently received a statement dated August 15, 2013, from the 20th JDC indicating that the balance owed on his account was $72.06. On August 20, 2013, Ballard’s request for relief |Bwas granted in part at the first step. Ballard was informed that a debt had been set up in 2007 in connection with the tort suit for $860.00, which had been paid. Thereafter, headquarters set up another debt for additional cost for the same court case on June 26, 2013, and the total now owed for that court order was $299.20.

On August 21, 2013, Ballard requested that $72.06 be withdrawn from his account and sent to the 20th JDC. He also challenged the first step response, complaining that prison banking was not set up to know of or pay court orders. He noted that a statement he just received proved he only owed the court $72.06 on his tort suit, while DPSC erroneously maintained he owed almost $300.00. Ballard concluded, “I challenge your banking system.”

Ballard’s request for relief was denied at the second step on December 13, 2013, for the following reasons:

The response provided is clear and concise, as well as has addressed your, request appropriately. At the time of the First Step response, you owed $299.00 for court costs associated with [the tort suit]. We requested and received a current statement dated 12/4/2013 from the Clerk of Court in West Feliciana Parish which indicates that you currently owe $245.20. Your current Debt Account Detail also reflects ■ this amount. As such, this office concurs with staff and finds no further investigation warranted.

On February 6, 2014, Ballard filed a petition for judicial review in the 19th Judicial District Court, attacking the manner in which court-ordered pauper payments were being paid under DPSC’s current banking system. He asserted that after paying $72.06 in costs, his account should have been paid; however, DPSC indicated he still owed $245.20 in costs. Ballard claimed that he received more than $400.00 in deposits in his prisoner account since accruing court costs and DPSC failed to pay anything further to the court. He challenged the prison banking system for not being up-to-date with current costs owed by offenders, resulting in unreasonable delays for them to have their day in court. Ballard | claimed that DPSC was charging fees in excess of what was being charged by the court so that he could not receive his hearing date concerning DPSC refusing to pay court costs. Ultimately, Ballard contended that DPSC’s banking department failed in its duty to follow rules outlined in La. R.S. 15:1186 regarding proceedings in forma pauperis in paying accrued costs from his offender account and that DPSC was using the statutes as a liability shield to prevent tort actions against it.

In his petition for judicial review, Ballard sought the following relief:' (1) declarative and injunctive relief against DPSC to enjoin it from using the law as a shield to obtain judgments of abandonment by deliberately failing to timely and correctly make prisoner pauper payments; (2) judicial inquiry to obtain full disclosure as to how DPSC Headquarters sets up an account and where the costs of $299.20 originated when the court only charged $72.06; (3) declarative and injunctive relief concerning DPSC’s deliberate failure to pay costs in order to obtain an automatic dismissal of his tort suit; (4) a declaration that DPSC is not current with court costs or accrued costs owed and that DPSC fails to pay costs as ordered resulting in significant delays, which contribute to judgments of automatic dismissal under La. R.S. 15:1186(B)(2)(c); (5) the establishment of a system requiring DPSC to give prisoner litigants an itemized accounting of costs paid and owed at least once per month; (6) the establishment of a system to pay costs from the full amount of funds deposited monthly into prisoner accounts; (7) reimbursement of all monies withdrawn from his prison account in having this matter adjudicated; and (8) declarative and in-junctive relief requiring DPSC to restructure its offender banking payment procedures and protocols for prisoner pauper litigants to be in full conformity with statutory law.

Numerous orders were entered by the commissioner appointed to hear the appeal to permit Ballard .and DPSC to introduce documents to expand the ^administrative record, including: (1) Ballard’s DPSC inmate debts account detail computer printouts referencing deposits into his account and withdrawals made to pay court costs; (2) orders received by DPSC from the 20th JDC and the manner in which they were handled by DPSC; (3) records maintained by the 20th JDC’s clerk of court’s office showing total deposits made in connection with Ballard’s tort claim and costs incurred in connection with that lawsuit; (4) DPSC’s regulations on inmate banking accounts; and (5) various court records in Ballard’s tort.suit.

In her April 6, 2015 affidavit, Nekeia Kimmie, an inmate banking account supervisor at DPSC’s headquarters, attested that she reviewed Ballard’s banldng records and reported that his original court costs in the amount of $860.00 had been paid in full. She stated that thereafter, DPSC received' another court ordered charge in the amount of $245.20, which was entered into the banking system on June 26, 2013. Her -review indicated that three withdrawals totaling $44.00 had been withdrawn from Ballard’s account to pay court costs from February through June of 2014. Ms. Kimmie explained that typically a “flag” is automatically placed on the court cost debt when it is set up, which lets the system know that when an offender gets a deposit, funds should be applied to the debt. After consulting with the OIS department, it was learned that a flag was not present on Ballard’s court costs debt, which caused the court fees not to be deducted from his account and applied to court fees. Ms. Kimmie noted that there was no evidence indicating that the flag on Ballard’s account had been manually lifted, and therefore, she assumed “that' there was a glitch in the' banking system.” Ms. Kimmie attested that the court ordered cost flag had been restored to Ballard’s prison banking account.

Additional documentary evidence in the record includes correspondence between DPSC employees showing that the original court order of $860.00 had [sbeen paid,and was not in question. The court order in question totaled $245.20, on which Ballard paid a total, of. $44.00 as of March 2015, leaving a balance owed of $201.20. 20th JDC records indicate that on December 4, 2013, Ballard owed a total of $245.20 in court costs.. A 20ih JDC ledger detail report shows that from October 18, 2006, through October 12, 2016, deposits in. the amount of $1,136.06 had been made by inmate banking towards Ballard’s total court costs of $1,229.26, leaving a balance of $93.20. Specifically, after the filing of the motion to set aside the dismissal on the ground of abandonment, inmate banking made total deposits of $236.06 towards Ballard’s 20th JDC court costs, which includes the $72.06 deposit that Ballard requested be withdrawn from his account and sent to the 20th JDC.

After reviewing the evidence, the commissioner concluded that DPSC was not arbitrary or capricious, nor did it act in violation of any of Ballard’s rights. The commissioner observed that although Ballard asserted there were mathematical discrepancies in the .amount sent to the court from Ballard’s account, based on the amount he claims was in his account on several .occasions, Ballard offered no proof that the amounts were actually correct. The commissioner found that even if the amounts were correct, the requested relief fell outside of the court’s . jurisdiction in that Ballard was seeking to have statutory provisions utilized, to pay inmate court .costs deemed illegal, through an administrative process. •

On January 13, 2017, the trial court entered judgment affirming DPSC’s decision and adopting the commissioner’s report as reasons for the ruling. From this judgment, Ballard appeals, asserting that the: trial court failed to use the manifest error and arbitrary and capricious test in reviewing DPSC’s conclusions and exercises of discretion. Ballard submits :that the court failed to rule on his motion to conduct a full scale judicial inquiry pursuant to La, R.S. 49:964(D) and (F) in order to narrowly tailor relief to bring the DPSC offender banking system 19into substantial compliance with statutory legal obligations imposed on DPSC. Ballard maintains that judicial review in this case should not have been confined to the record alone, but full judicial inquiry should have been had auditing DPSC’s banking system to determine why it “glitches” and failed to pay costs required by statute, allegedly resulting in the dismissal of his tort .suit by the 20th JDC,

In his final assignment of error, Ballard argues that the trial court relied on erroneous findings and conclusions and refused to address the issue before it. He. contends that the operation of the abandonment and dismissal provisions of the law, coupled with DPSC’s failure to provide and maintain a banking system capable of making timely and accurate pauper payments, violated his federally protected rights of due process and meaningful access to the courts. Ballard insists that the evidence shows that throughout these proceedings, DPSC has consistently failed to withdraw funds available in his banking account and forward them to the 20th JDC. He asks that this court order the trial court to hold a full-scale investigation into the type, age, and manner of the inmate banking system in use to determine the reason for “glitches” in the system so that it is capable of timely and accurately withdrawing funds and paying costs in prisoner pauper cases.

DISCUSSION

Judicial review of an inmate’s ARP claim is.governed by La. R.S. 15:1177 of the Corrections Administrative Remedy Procedure Act. Judicial review is confined to the record made in the administrative proceeding, although a court may order that additional evidence be presented. La. R.S. 15:1177(A)(5); Curry v. Cain, 2005-2251 (La. App. 1 Cir. 10/6/06), 944 So.2d 635, 638. Under La. R.S. 15:1177(A)(5), judicial review is further limited to the issues presented in the petition for judicial review and the administrative request filed at the agency level.

ImThe scope of the trial court and this court’s rewéw of an administrative action taken by DPSC is limited by La. R.S. 15:1177(A)(9), which provides that a court may reverse or modify an administrative decision only if the substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) in violation of constitutional or statutory provisions; (2) in excess of statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other ■error of law; (5) arbitrary or capricious or characterized by an abuse of discretion; or (6) manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. This court may only intervene if it is shown that a substantial right of Ballard’s has been prejudiced by the DSPC action or inaction under review. See Wallace v. Louisiana Department of Public Safety & Corrections, 2017-0287 (La. App. 1 Cir. 9/28/17), 232 So.3d 663, 664-65, 2017 WL 4316315 at *2.

Ballard has not demonstrated that his substantial rights have been prejudiced by any action or inaction on DPSC’s part with respect to his inmate banking account. Ballard initiated this ARP to ascertain the amount he owed in court costs on the tort suit after the filing of the motion to set aside the dismissal of his lawsuit, because he purportedly received different amounts owed in court costs from the 20th JDC and from DPSC. The record demonstrates that DPSC conducted an investigation into the amount Ballard owed in court costs, furnished him with that information, reissued the flag on his account after it had inexplicably dropped, and monitored his account to ensure that deposits' were being sent to the 20th JDC to cover costs. As pointed out by DPSC in its motion to dismiss this petition for judicial review, Ballard’s confusion stemmed from the fact he received a bill from the 20th JDC in the amount of $72.06, which he paid through the prison banking system, and was informed of a different amount owed by DPSC due to the ^dismissal order based on abandonment. Costs simply were incurred by Ballard after the bill reflecting the $72.06 balance had been sent to him, and deposits were made to cover those costs, accounting for the discrepancies in the amounts owed in court costs in DPSC records and the 20th JDC records. Contrary to Ballard’s allegations, there is no evidence that DPSC ever charged him for additional amounts beyond the costs set by the 20th JDC.

Furthermore, even though Ballard complains that his tort suit was dismissed because DPSC did not timely forward court costs from his prison banking account, that complaint was not raised in the ARP. Even if the petition for judicial review could be construed to raise this issue, Ballard failed to demonstrate how any alleged irregularities or “glitches” in DPSC’s inmate banking system actually prejudiced him. He has not demonstrated that his motion to set aside the dismissal of the tort suit has in fact been denied. Ballard is free to argue in connection with the pending motion in the 20th JDC that DPSC’s actions or inac-tions in timely forwarding costs to that court from his inmate banking account led to the dismissal of his tort suit. Thus, Ballard has an adequate remedy by which to challenge DPSC’s banking practices as they relate to his particular interests in the court-ordered pauper payments.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to appellant, Joseph Ballard.

AFFIRMED.

      . Ballard also has available to him appellate review through supervisory writs or an appeal to challenge any decision of the trial court which he thinks may be in error including the question as to whether the trial court may refuse to hold a hearing on the motion to set aside the dismissal until all costs are paid.


source: Caselaw Access Project

author: MCCLENDON, J.

license: Public Domain

text:
    Walter Willard FEE v. PINEVILLE FOREST PRODUCTS, INC., Southern Packaging, Inc. Walter Willard Fee v. Capital City Insurance Co., Pineville Forest Products, Inc.
    2017 CA 0501, 2017 CA 0502
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 1, 2017

      Ted Williams, Oberlin, LA, Counsel for Plaintiff/Appellant, Walter Willard Pee
    Jason E. Wilson, Galloway, Johnson, Tompkins, Burr, .Lafayette, LA, Counsel for Defendant/Appellee, Pineville Forest Products, Inc.
    BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.
   MCCLENDON, J.

Walter Fee seeks review of a workers’ compensation judgment granting the ap-pellee’s motion for summary judgment decreeing that the appellee was not Mr. Fee’s statutory employer. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

In May 2007, the plaintiff, Walter Fee, was injured while in the course and scope of employment with B & W Logging Company, LLC when he was struck by a tree limb, allegedly resulting in permanent and disabling injuries to Mr. Fee’s head, brain, and neck. At the time of the accident, Mr. Fee was conducting logging operations on a piece of land owned by the Pourciau family in New Roads, Louisiana. Southern Packaging, Inc., which owns a sawmill and is in the business of manufacturing, marketing, and delivering wooden pallets, had previously purchased the timber rights to the Pourciau tract in October 2006. Southern Packaging was required to harvest the timber within a year, or the timber rights would revert back to the Pourciau family.

B & W had a workers’ compensation policy with Timberman’s Self Insurers’ Fund, which was in effect on the date of the accident. Timberman’s accepted and paid out medical and indemnity benefits arising from Mr. Fee’s injuries from the date of the accident until Timberman’s “went bankrupt,” on or about September 14, 2015. B & W is also alleged to be bankrupt.

In November 2015, Mr. Fee filed a Form 1008/Disputed Claim for Compensation with the Officei of Workers’ Compensation (“OWC”) against Southern Packaging, asserting that Southern Packaging was Mr. Fee’s statutory employer at the time of the accident such that Southern Packaging would be responsible for the payment of Mr. Fee’s workers’ compensation benefits.

In December 2015, Mr. Fee filed a separate Form 1008/Disputed Claim for Compensation with the OWC, alleging that Southern Packaging had hired ■ Pineville Forest Products, Inc., a timber dealer, to harvest the timber, who in turn, subcontracted the work to B & W. As a result, Mr. Fee alleged that Pineville was also his statutory employer and thus responsible for the payment of his workers’ compensation benefits.

Both Southern Packaging and Pineville filed motions for summary judgment, each alleging that they were not Mr. Fee’s statutory employer. Following a hearing, the OWC denied Southern Packaging’s motion, but granted Pineville’s motion.

Mr. Fee has appealed the judgment granting Pineville’s motion and dismissing Mr. Fee’s claims against it, assigning the following as error:

1. The [OWC] committed factual and legal errors in granting the motion for summary judgment by- concluding there are no genuine issues of material fact as to whether Pineville Forest Product’s, Inc. was Walter Fee’s statutory employer at the time of the May 2, 2007 accident at is- • sue[.]
2. The [OWC] committed factual and legal errors in granting the motion for summary judgment by evaluating the weight of the evidence and .-.determining,the truth of the rpatter as opposed to determining only, whether there was a genuine issue of triable fact.

DISCUSSION

The determination of motions for summary judgment in workers’ compensation cases-is subject to the same standards utilized in .ordinary civil actions. See Lilly v. Allied Health Care, 07-0590 (La.App. 1 Cir. 6/6/08), 991 So.2d 1096, 1097-98, writ denied, 08-2081 (La. 12/12/08), 996 So.2d 1117. After an opportunity for. adequate discovery, a motion for summary judgment shall b,e granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(3). The only , documents that may be Filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. LSA-C.C.P. art. 966(A)(4). On appeal, appellate courts review the granting or denial of a motion for summary judgment de novo under the same criteria governing the OWC’s consideration of whether summary judgment is appropriate. See Schultz v. Guoth, 10-0343 (La. 1/19/11), 57 So.3d 1002, 1005-06.

In ruling on a motion for summary judgment, the OWC’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of material fact. See Hines v. Garrett, 04-0806 (La. 6/25/04), 876 So.2d 764, 765 (per curiam). A fact is material if it potentially ensures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. All doubts should be resolved in the non-moving party’s favor. Id., 876 So.2d at 765-66. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to the case. Pumphrey v. Harris, 12-0405 (La. App. 1 Cir. 11/2/12), 111 So.3d 86, 89.

Mr. Fee argues that the OWC erred in concluding that no genuine issue of material fact remained regarding whether Pine-ville was Mr. Fee’s statutory employer. Whether a statutory employer relationship exists is governed by LSA-R.S. 23:1061. Specifically, LSA-R.S. 23:1061(A)(1) provides that when a “principal” undertakes to execute any work, “which is a part of his trade, business, or occupation” and contracts with a “contractor” for the execution of “the whole or any part of the work undertaken by the principal,” the principal, as a “statutory employer,” shall be liable to pay to any employee employed in the execution of the work “any compensation” under the Workers’ Compensation Act. Thus, a “statutory employer” is liable to pay any employee employed in the execution of the work any compensation due under the Workers’ Compensation Act. LSA-R.S. 23:1061(A)(1).

Louisiana Revised Statutes 23:1061(A)(2) provides that “[a] statutory employer relationship shall exist whenever the services or work provided by the immediate employer is contemplated by or included in a contract between the principal and any person or entity other than the employee’s immediate employer.” Otherwise, “a statutory employer relationship shall not exist between the principal and the contractor’s employees, whether they are direct employees or statutory employees, unless there is a written contract' between the principal and a contractor which is the employee’s immediate employer or his statutory employer, which recognizes the principal as a statutory employer.” LSA-R.S. 23:1061(A)(3). This is commonly called the “two contract” rule.

In the instant case, there are no written contracts by and between Southern Packaging, Pineville, or Mr. Fee’s immediate employer, B & W. Therefore, as noted by Mr. Fee, the only way Pineville can be considered his statutory employer is under the “two contract” rule set forth in LSA-R.S. 23:1061(A)(2). The “two contract” rule applies when: (1) the principal enters into a contract with a third party; (2) pursuant to that contract, work must be performed; and (3) in order for the principal to fulfill its contractual obligation to perform the work, the principal enters into a subcontract for all or part of the work performed. Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall Authority, 02-1072 (La. 4/9/03), 842 So.2d 373, 379.

It is undisputed that Southern Packaging purchased the timber rights in the Pourciau tract directly from the landowners.. According to the Timber Deed agreement, the right to harvest and remove the hardwood remained valid until September 15, 2008. As part of the deal, on September 15, 2008, the remaining standing timber would revert to and become the property of the landowners (the Pourciau family). The Timber Deed signed by the parties states that Southern Packaging was not obligated to cut or remove any particular quantity or kinds of timber, nor did Southern Packaging have to carry on operations at any particular time or in any particular manner.

In support of its motion for summary judgment, Pineville relies upon the depositions of Mr. Kenneth Tuminello, former president of Southern Packaging, and David Andrus, Pineville’s owner at all pertinent times at issue. According to Mr. Tuminello, Southern Packaging paid for the right to purchase and remove the timber from the Pourciau land. Mr. Tuminello testified that on all occasions when Southern Packaging'purchased a timber tract directly from a third-party landowner, Southern Packaging would subcontract a logger to harvest the timber on the landowner’s property.

Mr. Tuminello also stated in his deposition that he made a verbal agreement with Mr. Fee to cut and haul the timber. Mr. Tuminello indicated that it was Mr. Fee, on behalf of B & W, who likely requested to go through Pineville so that B & W could get paid every week, instead of being paid per Southern Packaging’s practices. Specifically, Mr. Tuminello testified:

As I recall, [Mr. Fee] probably asked for payment every week and I probably told him that wasn’t our payment practice, that we would pay everybody the same and we stuck to that. I felt like [Mr. Fee] then suggested well, if I go through these guys [Pineville], they can pay me every week. I believe that to be the nature of our discussion.

David Andrus provided deposition testimony similar to that of Mr. Tuminello. Mr. Andrus said that generally, Pineville would buy the tracts and make arrangements with timber cutters to have the timber delivered to a mill. Under this normal arrangement, Mr. Andrus indicated that a Pineville representative would walk the timber tract, have specific discussions with the logging company regarding what needed to be done, and visit the site to ensure that the logging contractor was operating according to the contract requirements.

However, Mr. Andrus testified that the instant situation was unique. He indicated that Pineville never inspected the Pourciau tract and did not even know where in New Roads the tract was located. Mr. Andrus also testified that, unlike a normal arrangement, he had no obligations to the landowners or to the mill. Rather, he stated that the arrangement and specifications for the job had been made solely between Mr. Fee and Southern Packaging. In 'describing the arrangement, Mr. Andrus testified:

.., Mr, Fee come[s] to me and said he had arranged some work with Southern Packaging and that he needed, because of cash flow issues, to be paid on a very timely manner, to get paid on the Friday of the week the work was conducted. He had made all the arrangements with Southern Packaging on this particular project. And he proposed to me because he needed to, like I say, get paid on a timely fashion, as opposed to possibly having to wait a week or two to be paid directly from Southern Packaging, that he proposed to me that he would allow Southern Packaging pay me and I would in turn pay him. Not in that order, but I’d actually pay [Mr. Fee] first and then later get paid from Southern Packaging. And he proposed to me that in order to do that, [Mr. Fee] was willing to allow me to make a very small margin of profit, pay him slightly less than what [Southern] Packaging had agreed to pay him for the work.

Mr. Andrus testified that Pineville made much less under this arrangement than it would under its normal arrangement with loggers.

In opposition to the summary judgment, Mr. Fee relies upon his deposition and the deposition of his wife, Barbara Fee, along with the affidavit of Mr. Tuminello. Mr. Fee, in contrast to the depositions relied upon by Pineville, testified that he learned of the job through Pineville. Mr. Fee indicated, however, that “the deal was made .,. between Dave Andrews [Pineville] and Ken [Southern Packaging],” but that Southern Packaging “carried me out there and showed [the job] to me” and provided the job specifications. Mr. Fee, however, reiterated that “[i]t was Pineville Forest Products’ job and I was just moving timber for [it].”

Similarly, Mrs. Fee testified that Pine-ville contacted her husband about the job. She indicated that Pineville “buys timber ... and gets people to cut the timber and all that.” She acknowledged that Southern Packaging, however, told Mr. Fee “what [it] wanted done” and “how [it] wanted the timber cut.”

In granting -summary judgment in favor of Pineville, the OWC reasoned, in part:

Mr. Fee’s testimony is very difficult. The gentleman had a brain injury, and it was. very—and I think the few places where I couldn’t jive the testimony of Mr. Tuminello, Mr. Andrus, and Mr. Fee, and I put in Mr. Fee’s inability to really remember everything precisely and give good discussion.
⅜⅜⅜
... I grant the motion for summary judgment on Pineville Forest Products. The only reliable testimony, real reliable testimony, I have is that of Ken Tumi-nello and David Andrus as to what really happened. Barbara Fee didn’t have anything to do with those contracts. She handled the business ends of things; she was not there; she didn’t have anything to do with it. .
And the cut sheet that Mr. Tuminello agreed was, you know, his handwriting, his instructions with regard to how to cut the timber and provide it to the mill also supports that he is the statutory— that Southern Packaging was the statutory employer in this situation. The only evidence of Pineville having anything to do with it is the tickets in their name, and the checks coming out. And although there was testimony, from Mr. Fee and Mrs. Fee ... that they could not deal with mills individually, they had to use a dealer, Mr. Andrus said that’s not true and Mr. Tuminello, who is the owner of Southern Packaging said if they had come up with their insurance, we would’ve dealt with them.

On appeal, Mr. Fee contends that the OWC committed legal error in granting summary judgment insofar as it gave more weight to the testimony of Mr. An-drus and Mr. Tuminello, and discounted the deposition testimony of Mr. and Mrs. Fee wherein they testified that the deal was through Pineville. Moreover, Mr. Fee points to a seeming conflict in Mr. Tumi-nello’s affidavit wherein Mr. Tuminello attested that “Southern Packaging had a verbal agreement with Pineville ... to harvest timber to be used in the manufacturing of wooden pallets.” Mr. Fee avers that Mr. Tuminello’s affidavit clearly contradicts the statements Mr. Tuminello made in his deposition. Mr. Fee concludes that the OWC is certainly free to weigh this evidence at a trial on the merits, but such weighing is inappropriate on a motion for summary judgment.

In reply, Pineville notes that oral contracts over $500.00 must be proved by “at least one witness and other corroborating circumstances.” See LSA-C.C. art. 1846. Pineville also notes that if a party serves as his or her own witness, the corroborating circumstances must come from a source other than the party alleging the existence of the contract. See Pennington Const., Inc. v. R A Eagle Corp., 94-0575 (La.App. 1 Cir. 3/3/95), 652 So.2d 637, 639. Pineville avers that neither Mr. nor Mrs. Fee were privy to any contracts between it and Southern Packaging. Pineville recognizes the statement in Mr. Tuminello’s affidavit regarding the contractual relationship between the two entities, but avers that Mr. Tuminello corrected the statements in deposition, specifically testifying that Southern Packaging did- not contract with Pineville. Accordingly, Pineville concludes that Mr. Fee cannot demonstrate or corroborate that an oral contract existed between Southern Packaging and Pineville to harvest timber, and therefore Pineville does not fit within the definition of a “principal” under the two contract theory.

In essence, Pineville is asking this eourt to give more weight to the statements made by Mr. Tuminello in his deposition and disregard those made in his affidavit. We note, however, that Mr. Tuminello specifically stated in his affidavit that Southern Packaging contracted with Pineville to harvest the timber on the Pourciau tract. While Mr. Tuminello seems to have explained the discrepancy in his deposition, we cannot weigh the evidence or make credibility determinations on summary judgment. Pineville is also asking this court to accept the deposition testimony of Mr. Tuminello and Mr. Andrus and to discredit the testimony of Mr. Fee that he was working on behalf of Pineville, which would require weighing evidence on summary judgment. The law does not permit such weighing on summary judgment. See Hines, 876 So.2d at 765.

Taking Mr. Tuminello’s affidavit along with the deposition testimony of Mr. Fee, and given that we are precluded from weighing evidence or making credibility determinations on summary judgment, we are constrained to find that a disputed issue of material fact remains regarding whether Pineville was Mr. Fee’s statutory employer under the “two contract” rule. Accordingly, wé find merit in Mr. Fee’s assignments of error and conclude'that the OWC erred in granting summary judgment in favor of Pineville.

CONCLUSION

For the foregoing reasons, the trial court’s January 3, 2016, judgment granting summary judgment in favor of Pineville Forest Products, Inc. is reversed. Costs of this appeal are assessed to Pineville Forest Products, Inc.

REVERSED AND REMANDED.

      . Mr. Fee filed a motion to consolidate the two claims, Which was granted by the OWC.

      . The OWC" originally signed a single "order" denying Southern Packaging’s motion for summary, judgment and granting Pineville’s motion. Due to the fact that the ruling on Southern Packaging’s Motion for Summary Judgment was interlocutory, and the ruling on Pineville’s motion was a final, appealable judgment, the OWC signed an unopposed motion to nullify its initial judgment containing both rulings. Thereafter, the OWC signed separate judgments on January 3, 2017 reflecting its. ruling, but making no substantive changes in the judgments.

      .Southern Packaging sought supervisory re- ' view of the denial of its motion for summary judgment, which was denied by this court. See Fee v. Southern Packaging, Inc., 2017 WL 2295029 (La.App. 1 Cir. 5/25/17)(unpublished writ action).

      . The deposition of Bradley Tuminello, who was an owner of Southern Packaging, was also introduced into evidence, His testimony corroborated that of his brother, Kenneth Tu-minello. However, unlike Bradley, Kenneth was directly involved with the pertinent transactions at issue. Throughout the opinion, a reference to Mr. Tuminello is a reference tó Kenneth Tuminello.

      . Tuminello stated in his deposition that the reason Southern needed .to use loggers was because Southern did not have the employees or equipment to perform such work itself.

      . In exchange for paying B & W directly, Pineville allegedly received a fee of $.75 per ton of timber delivered to Southern.


author: PETTIGREW, J. CRAIN, J.,

text:
    CLB61, INC. and SC & T, LLC v. HOME OIL COMPANY, LLC Home Oil Co., LLC v. CLB61, et al
    NO. 2017 CA 0557
    NO. 2017 CA 0558
    Court of Appeal of Louisiana, First Circuit.
    NOVEMBER 1, 2017

      RICHARD CREED, JR. BATON ROUGE, LA
    ATTORNEY FOR PLAINTIFFS-APPELLANTS CLB61, INC. & SC & T, LLC
    JUDE C. BURSAVICH CARROLL. DEVILLIER BATON ROUGE, LA
    ATTORNEYS FOR DEFENDANTS-APPELLEES CHEVRON U.S.A., INC. AND HOME OIL COMPANY, LLC
    BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ.
   PETTIGREW, J.

|2In the instant appeal, plaintiffs challenge the trial court’s March 8, 2017 judgment sustaining defendant’s exception raising the objection of no cause of action and dismissing, with prejudice, plaintiffs’ claims against defendant. For the reasons that follow, we reverse.

FACTS AND PROCEDURAL HISTORY

On October 19, 2009, CLB61, Inc. and SC & T, LLC (sometimes collectively referred to as “CLB”) filed a petition naming. Home Oil Company, LLC (“Home Oil”) as the sole defendant. Plaintiffs alleged breach of contract by Home Oil and sought damages and attorney fees. In a third' supplemental and amending petition filed on July 20, 2015, plaintiffs named Chevron U.S.A., Inc. (“Chevron”) as a defendant in this ease for the first time. Plaintiffs’ petition set forth a series of allegations regarding an alleged fiduciary duty Chevron owed CLB based on a contract between Chevron and Home Oil. However, plaintiffs failed to set forth any factual allegations supporting such a conclusion. Chevron filed an exception raising the objection of no cause of action, and, in a judgment signed on May 9, 2016, the trial court sustained the exception as to the claims alleged against Chevron in the third supplemental and amending petition.

Plaintiffs filed a fourth supplemental and amending petition on April 21, 2016, attempting to set forth more detailed allegations regarding Chevron’s breach of its fiduciary duty. Attached to the fourth supplemental and amending petition was a copy of a contract dated June 27, 2005, between Chevron and Home Qil, entitled “Investment Incentive Contract for Chevron Branded Retail Outlets” (“Marketer Agreement”). Plaintiffs asserted that CLB was a third-party beneficiary of the Marketer Agreement and that Home Oil was acting as Chevron’s agent in its business dealings with CLB. In response to said IsPetition, Chevron filed a second exception raising the objection of no cause of action and an exception raising the objection of prescription. On September 29, 2016, the trial court denied the prescription exception but sustained the no cause of action exception, allowing plaintiffs five days to amend their petition to state a cause of action.

On October 5, 2016, plaintiffs filed a fifth supplemental and amending petition, further detailing their claims against Chevron. In addition to the Marketer Agreement, plaintiffs also attached a copy of the Fuel Supply Agreement entered into by Home Oil and CLB61, Inc. Plaintiffs alleged that because Chevron established Home Oil as its agent through the Marketer Agreement, Chevron owed a fiduciary duty to CLB to ensure fair dealing between CLB and Home Oil in accounting and funds due. CLB. Plaintiffs further alleged that because Chevron, through its point of sale credit card system, has control of most of the money from plaintiffs’ retail sales, Chevron owes a fiduciary duty to plaintiffs with respect to those funds and breached that duty, in part, by allowing Home Oil to overcharge for Chevron’s fuel. Plaintiffs again asserted that CLB was a third-party beneficiary of the Marketer Agreement between Chevron and Home Oil. .

Chevron once again filed exceptions raising the objections of no cause of action and prescription. The no cause of action exception proceeded to a hearing before the trial court on February 18, 2017. After considering the pleadings and the argument of counsel, the trial court sustained Chevron’s exception and dismissed, with prejudice, all claims against Chevron. The trial court signed a judgment in accordance with these findings on March 8, 2017. It is from this judgment that plaintiffs have appealed. The sole issue presented for our review, is whether the trial court erred in sustaining Chevron’s exception raising the objection of no cause of action.

NO CAUSE OF ACTION

The function 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 pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La. 1993); Copeland v. Treasure Chest Casino, L.L.C., 2001-1122, p. 3 (La. App. 1 Cir. 6/21/02), 822 So.2d 68, 70. All facts pled in the petition must 14be accepted as true. Rebardi v. Crewboats, Inc., 2004-0641, p. 3 (La. App. 1 Cir. 2/11/05), 906 So.2d 455, 457. Furthermore, the facts shown in any documents annexed to the petition must also be accepted as true. B & C Elec., Inc. v. East Baton Rouge Parish School Bd., 2002-1578, p. 4 (La. App. 1 Cir. 5/9/03), 849 So.2d 616, 619; see also La. Code Civ. P. art. 853 (“A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.”) The exception is triable on the face of the pleading, and for the purpose of determining the issues raised by the exception, the well-pleaded facts in the pleading must be accepted as true. Richardson v. Richardson, 2002-2415, p. 6 (La. App. 1 Cir. 7/9/03), 859 So.2d 81, 86. Thus, the only issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Perere v. Louisiana Television Broadcasting Corp., 97-2873, p. 3 (La. App. 1 Cir. 11/6/98), 721 So.2d 1075, 1077.

In the present case, as previously noted, plaintiffs’ petitions contained annexed documents, which this court must consider on our review of the exception raising the objection of no cause of action. The only documentary evidence that may be considered on an exception raising the objection of no cause of action is that which has been annexed to the petition, unless the evidence is admitted without objection to enlarge the petition. Woodland Ridge Ass’n v. Cangelosi, 94-2604, p. 5 (La. App. 1 Cir. 10/6/95), 671 So.2d 508, 511.

In reviewing a trial court’s ruling sustaining an exception raising the objection of no cause of action, the appellate court conducts a de novo review. The exception raises a question of law, and the trial court’s decision is based only on the sufficiency of the petition. Fink v. Bryant, 2001-0987, p. 4 (La. 11/28/01), 801 So.2d 346, 349; B & C Elec., Inc., 2002-1578 at 4-5, 849 So.2d at 619. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity to present evidence at trial. Richardson, 2002-2415 at 7, 859 So.2d at 86. The question, therefore, is |fiwhether, in the light most favorable to the plaintiff, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. Copeland, 2001-1122 at 4, 822 So.2d at 70.

When a petition states a cause of action as to any ground or portion of the demand, an exception raising the objection of no cause of action must be overruled. Thus, if the petition sets forth a cause of action, none of the other causes of action may be dismissed based on an exception pleading the objection of no cause of action. Further, any doubts are resolved in favor of the sufficiency of the petition. Copeland, 2001-1122 at 3, 822 So.2d at 70.

As previously indicated, plaintiffs asserted a claim against Chevron as third-party beneficiaries of the Marketer Agreement between Chevron and Home Oil. Plaintiffs further alleged that Chevron owed them a fiduciary duty, which was breached.

The Louisiana Civil Code provides that a contracting party may stipulate a benefit for a third person called a third-party beneficiary. La. Civ. Code art. 1978. A contract for the benefit of a third party is referred to as a “stipulation pour autrui” Paul v. Louisiana State Employees’ Group Ben. Program, 99-0897, p. 5 (La. App. 1 Cir. 5/12/00), 762 So.2d 136, 140. A stipulation pour autrui is never presumed. Joseph v. Hospital Service District No. 2 of Parish of St. Mary, 2005-2364, p. 9 (La. 10/15/06), 939 So.2d 1206, 1212; see also La. Civ. Code art. 1831. Three criteria for determining whether contracting parties have provided a benefit for a third party have been identified: (1) the stipulation for a third party is manifestly clear; (2) there is certainty as to the benefit provided the third party; and (3) the benefit is not a mere incident of the contract between the promisor and the promisee. Joseph, 2005-2364 at 8-9, 939 So.2d at 1212.

Generally, the existence of a fiduciary duty and the extent of that duty depend upon the facts and circumstances of the case and the relationship of the parties. Basically, for a fiduciary duty to exist, there must be a fiduciary relationship between the parties. Scheffler v. Adams & Reese, LLP, 2006-1774, p. 6 (La. 2/22/07), 950 So.2d 641, 647. The defining characteristic of a fiduciary relationship is the special relationship |6of confidence or trust imposed by one in another who undertakes to act primarily for the benefit of the principal in a particular endeavor. Id., 2006-1774 at 7, 950 So.2d at 648. A fiduciary cannot further his own interests and enjoy the fruits of an advantage taken of such a relationship and must make a full disclosure of all material facts surrounding the transaction that might affect the decision of his principal. Terrebonne Concrete, LLC v. CEC Enterprises, LLC, 2011-0072, p. 10 (La. App. 1 Cir. 8/17/11), 76 So.3d 502, 510, writ denied, 2011-2021 (La. 11/18/11), 75 So.3d 464.

We have reviewed all of plaintiffs’ petitions, including the fifth supplemental and amending petition, and are able to derive the causes of action asserted by plaintiffs. Accepting all of the allegations in the petitions and annexed documents as true, we find plaintiffs have stated a cause of action against Chevron for breach of fiduciary duty and as third-party beneficiaries of the Marketer Agreement.

Pursuant to these contracts, plaintiffs, Chevron, and Home Oil were bound in a 10-year contractual relationship. Reviewing the language of the Marketer Agreement, it is clear that plaintiffs were established as Chevron branded retail outlets. Plaintiffs benefitted from being Chevron branded retail outlets by participating in Chevron’s incentive programs and receiving financial support from Chevron. Many of these benefits, however, were dependent upon plaintiffs meeting certain obligations and requirements set forth in the Marketer. Agreement. Moreover, it seems clear that the Marketer' Agreement and Fuel Supply Agreement provided Chevron with a way to have Home Oil act on its behalf, while still maintaining control of what funds were to be.paid plaintiffs for fuel sales. Plaintiffs set forth numerous allegations of fact concerning instances of Chevron’s breach of the fiduciary duty owed to them. Assuming as true those facts averred in the petitions, we find plaintiffs’ fifth supplemental and amending petition sufficiently sets forth causes of action against Chevron. Thus, the trial court erred in sustaining Chevron’s exception based on the failure of plaintiffs’ petition to state a cause of action and in dismissing plaintiffs’ claims against Chevron.

^CONCLUSION

For the above and foregoing reasons, we reverse the March 8, 2017 judgment, of the trial court and remand this matter to the trial court for further proceedings consistent with this opinion. We assess all costs associated with this appeal against defendant, Chevron U.S.A., Inc.

REVERSED AND REMANDED.

Guidry, J., concurs.

Crain, J. concurs and assign reasons.

CRAIN, J.,

concurring.

|¶1 do not believe the Marketer Agreement, which is attached to the fifth supplemental petition and must be considered by the court in the disposition of the exception, creates a stipulation pour autrui in favor of the plaintiffs. However, the petition does state a cause of action with respect to Chevron’s alleged use of the plaintiffs’ funds to ostensibly allow Home Oil to overcharge the plaintiffs for Chevron’s fuels. That claim is set forth in the following factual allegations, which, at this stage of the proceeding, must be accepted as true: (1) “CHEVRON held in trust almost all of the'funds due plaintiffs fronl CHEVRON sales,” (2) “CHEVRON would then send the money from those sales to HOME OIL,” and (3) “CHEVRON violated its fiduciary duty to plaintiffs ... by allowing HOME OIL to overcharge for all fuels.” Whether invoking a contractual or fiduciary duty, these allegations are sufficient to state a cause of action against Chevron. See La. Civ. Code art. 1927; Morphy, Makofsky & Masson, Inc. v. Canal Place 2000, 538 So.2d 569, 573 (La. 1989). Because one basis for relief’ is sufficient to maintain the petition, it is not necessary to consider whether the petition states a cause of action in agency. See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1239 (La. 1993).

      . On October' 22, 2009, Home Oil filed a petition on open account against CLB and its owner Charles L, Bell in the Nineteenth Judicial District Court, bearing docket no. 583,-780. Pursuant to a joint motion and order to consolidate filed by the parties, said petition was consolidated with the instant matter, bearing docket no. 583,654.

      , In their second supplemental and amending petition filed on June 8, 2015, plaintiffs erroneously named Chevron Chemical Company, LLC as a party defendant, rather than the correct party defendant named in the third petition, Chevron U.S.A., Inc.


author: HIGGINBOTHAM, J. HOLDRIDGE,

text:
    STATE of Louisiana IN the INTEREST OF T.H.

    NO. 2017 KJ 0890
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: NOVEMBER 01, 2017

      Hillar C. Moore, III, District Attorney, Otha “Curtis” Nelson, Jr., Cristopher J.M. Casler, Assistant District Attorneys, Attorneys for Appellee, State of Louisiana
    Peter T. Dudley, Baton Rouge, LA, Attorney for Defendant-Appellant, T.H.
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.

      . To protect T.H.’s identity as a minor, we have re-captioned this case and refer to him by his initials. See Uniform Rules—Courts of Appeal, Rule 5-2.

   HIGGINBOTHAM, J.

LT.H., a child, was alleged to be delinquent and/or in need of supervision by petition based on one count of first degree rape in violation of La. R.S. 14:42(A)(1) (count 1), one count of first degree rape in violation of La. R.S. 14:42(A)(2) (count 2), one count of first degree rape in violation of La. R.S. 14:42(A)(5) (count 3), and one count of simple robbery in violation of La. R.S. 14:65 (count 4). He denied the allegations, and following an adjudication hearing, the juvenile court found him not guilty of counts 1 and 2 and dismissed those charges, and adjudged him delinquent as to counts 3 and 4. Following a disposition hearing, T.H. was committed to the secure custody of the Department of Public Safety and Corrections, Office of Juvenile Justice, until his 21st birthday, without benefit of parole, probation or suspension of sentence. He now appeals, challenging the sufficiency of the evidence on both counts.

FACTS

The victim, T.S., age fourteen at the time of this offense, testified at trial. According to T.S., she resided at Scotland Square Apartments (in East Baton Rouge Parish) with her grandmother, mother, younger brother and younger sister. On the morning of December 17, 2016, T.S.’s father, E.S., who did not live with them, lapicked up the children, and they returned to the apartment after lunch. That afternoon, T.S.’s grandmother asked T.S. to go to the mailbox and cheek the mail. While walking alone to the mailbox, T.S. was stopped by two boys (later- identified as M.P. and D.L., also charged as noted herein). Although T.S. did not know the boys, she described herself as friendly and answered the boys’ questions about her name, age and whether she had a boyfriend. The boys walked with T.S. to the mailbox, and M.P. asked T.S. for a hug. When she hugged him, D.L. took her cell phone out of her back pants pocket and ran off with it. T.S. asked M.P. to help her get her phone back, and M.P. offered to take her to D.L.

As they approached an area behind the apartments where dumpsters were located, T.S. saw D.L. with her phone. T.S. saw another boy (later identified as T.H.) on the other side of a nearby fence/gate. When T.S. asked for her phone, the boys began passing it back and forth, and D.L. told her she was not getting the phone back until she let one of the boys “yeah”, which T.S. was aware meant to have sex. Although T.S. told them sjie was not that kind of girl, she testified that the boys forced her. According to T.S., the boys pulled her pants down and despite her efforts to pull them up, the boys bent her over and “hit” her from behind, meaning to have intercourse from the back. T.S. testified the two boys kept switching positions, with one sticking his penis in her mouth while the other was behind her having intercourse with her. T.S. unequivocally testified that both M.P. and D.L. put their penis in her vagina, and at least one of them, possibly both, put their penis in her mouth. T.S. told one of the boys she had surgery on her mouth to try to avoid putting his penis in her mouth. During this activity, T.H. threw a condom to one of the boys, and at some point, T.H. came over the fence. Although T.S. recalled that T.H. got behind her, she was unsure what he did while behind her. In her statement with the Children’s Advocacy Center, T.S. stated that T.H.’s pants were down, but she did not see his' penis, and was unsure whether he put his penis in her vagina. T.S. | testified that T.H. was not present when D.L. originally took her phone, and the only time T.H. had the phone was when they were playing with it.'

T.S., knowing that her father was at the apartment and hoping that he would catch the boys, told the boys there was $1,000 at the apartment that she would give them to get her phone, back. When the boys agreed, T.S. walked to the apartment with M.P. and D.L. According to T.S., T.H. had jumped back over the fence and left. T.S. entered the apartment with M.P. and D.L., but when her grandmother, who is deaf, came out of the bathroom and yelled, one boy called to the other and they both ran outside. As T.S. also ran outside, she saw her brother and told him that the boys attacked her and took her phone. Her brother then called their father, who was out looking for T.S., and as the father returned, he and T.S. got into his car in pursuit of the boys. They eventually got out of the car and ran after the boys but were unable to catch them. T.S. identified the three boys in court as the ones who committed these acts.

T.S. testified she did not try to run or stop them when they began pulling her pants down because there were two boys on that side of the fence with her. When asked if she tried to “punch” them, T.S. testified that the boys told her if she hit them, they would hit her. T.S. testified that she did not consent to the sexual activity and did not consent to the taking of her phone, which she never got back.

T.S,’s brother testified at trial that he also went to look for T.S. after his father called that he could not find her. As he returned to the' apartment, he saw two boys, one in the apartment and one on the side of the building. T.S. was outside and told him the boys raped her. He called their father and' told him what T.S, said, and when the boys started running, he tried to chase them until he saw them climb over a fence; He called the police while T.S. and their father looked for the boys. T.S.’s father, E.S., also testified at trial that he became concerned and went to look for T.S. As he returned to the apartment, T.S. and her brother ran toward him, and his son said boys Rtook T.S.’s phone and raped her. He and T.S. pursued them in his car, then on foot, but were unable to catch them. Subsequently, E.S. obtained information from calling people and social media as to the name of one of the boys, which he gave to the police.

Officer Amy Krumm with the Baton Rouge Police Department responded to the call, and after obtaining a statement from T.S. went to the area of the dumpsters, where she found a condom. Officer Krumm described T.S. as crying and emotionally upset. She observed dirt and grass stains on T.S.’s pants around the knees and up- the legs and buttocks areas, and noted that her hair was somewhat disheveled.

Wanda Pezant, a certified nurse practitioner, accepted by the court as an expert sexual assault nurse, examined T.S. that evening at the hospital. T.S. was very tearful, but alert and oriented during the examination. Nurse Pezant observed vaginal bruising, abrasions and redness and anal abrasions and redness. She also observed hymenal notching, which she testified was consistent with forced sexual intercourse. The injuries to the vaginal area were consistent with sexual intercourse. The injuries to the .anal.area were consistent with penetration, and although scarring and trauma in this area may often be found in cases of consensual sex, it is less common to see the abrasions and friction in the direction observed on T.S., which was the basis for her opinion that these injuries were consistent with forced penetration. Nurse Pezant opined that these injuries, while'they may seem minor, were pretty dramatic and consistent with forced sexual assault, and she further opined that the statement given by T.S. was very consistent with the documented injuries.

Although a rape kit was performed, at the time of the trial, the investigating officers were unaware of any DNA results. The condom found at the scene, the recorded statement of T.S. to the Children’s Advocacy Center, the recorded | ^¡statements of the three boys, T.H., M.P. and D.L., and surveillance video of the area were each admitted into evidence. The surveillance video did not include the area where the sexual assault was alleged to have occurred, but did include some limited footage of two of the boys following T.S. Each of the boys provided varying versions of the events, which each gradually included more incriminating details as the versions changed. In his statement to police, D.L. admitted to taking T.S.’s phone and to putting his penis in her mouth. Although he claimed the vaginal sex occurred in T.S.’s apartment, he admitted to vaginal sex and also confirmed that T.S. offered to give them $1,000 for her stuff, which prompted them to go to the apartment. In his statement to police, M.P. admitted to putting his penis in T.S.’s mouth, and after putting on the condom, tried to put it in her vagina. M.P. also confirmed that T.S. offered them $1,000 and told them she had surgery on her mouth. T.H. admitted giving a condom to M.P. and holding the phone at one point, but then giving it back to D.L. T.H. denied touching T.S.

The juvenile court noted that it considered the statements of each, juvenile only as to that juvenile, not the others. The court found the statements of T.S. credible and found the statements of each of the juveniles to be self-serving, noting each juvenile’s statement changed multiple times, but each time became more consistent with T.S. The court found that T.S.’s statement made sense to the court, while the juveniles’ statements, based upon the' facts, did not make sense. The juvenile court found each of the juveniles guilty of first degree rape, in violation of La. R.S. 14:42(A)(5), and simple robbery, in violation of La. R.S. 14:65. •

SUFFICIENCY OF THE EVIDENCE

In his two assignments of error, T.H. asserts the evidence was insufficient to adjudicate him delinquent for either first degree rape or simple robbery.

Iri a juvenile adjudication proceeding, the state must prove beyond a reasonable doubt that the child committed a delinquent act alleged in the petition. |7La. Ch. Code art. 883. The burden of proof, beyond a reasonable doubt, is no less severe than the burden of proof required in an adult proceeding. State in Interest of S.T., 95-2187 (La. App. 1st Cir. 6/28/96), 677 So.2d 1071, 1074. In State in Interest of Giangrosso, 385 So.2d 471, 476 (La. App. 1st Cir. 1980), affirmed, 395 So.2d 709 (La. 1981), this court stated:

In juvenile proceedings, the scope of review of this court extends to both law and fact. We must, therefore, decide if the trial judge was clearly wrong in his determination that the defendants were proven guilty beyond a reasonable doubt. [Citations omitted.]

The Supreme Court affirmed this court’s decision in Giangrosso, concluding that a rational trier of fact could have found, from the evidence adduced at the trial, proof of guilt beyond a reasonable doubt, citing Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Giangrosso, 395 So.2d at 714. See State in Interest of Batiste, 367 So.2d 784, 788 (La. 1979), See also In Interest of L.C., 96-2511 (La. App. 1st Cir. 6/20/97), 696 So.2d 668, 670.

Accordingly, on appeal the standard of review for sufficiency of the evidence enunciated in Jackson is applicable to delinquency cases, ie. viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the state proved the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S.Ct. at 2789; See also La. Code Crim. P. art. 821(B); State v. Ordodi, 2006-0207 (La. 11/29/06), 946 So.2d 664, 660; and State v. Mussall, 523 So.2d 1305, 1308-09 (La. 1988). It is well settled that, if found to be credible, the testimony of the victim of a sex offense alone is sufficient to establish the elements of the offense, even where the State does not introduce medical, scientific, or physical evidence or prove the commission of the offense by the defendant. State v. Lilly, 2012-0008 (La. App. 1st Cir. 9/21/12), 111 So.3d 45, 62, writ denied, 2012-2277 (La. 5/31/13), 118 So.3d 386.

| ^Further, because a review of the law and facts in a juvenile delinquency proceeding is constitutionally mandated, an appellate court must review the record to determine if the trial court was clearly wrong in its factual findings. See State in Interest of D.M., 97-0628 (La. App. 1st Cir. 11/07/97), 704 So.2d 786, 789-90. In a juvenile case, when there is evidence before the trier of fact that, upon its reasonable evaluation of credibility, furnished a factual basis for its finding, on review the appellate court should not disturb this factual finding in the absence of manifest error. Reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. State in Interest of Wilkerson, 542 So.2d 577, 581 (La. App. 1st Cir. 1989).

The Jackson standard is an objective standard for testing the overall evidence, both direct and circumstantial, for reasonable doubt. When analyzing circumstantial evidence, La. R.S. 15:438 provides that, assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. State in interest of D.F., 2008-0182 (La. App. 1st Cir. 6/6/08), 991 So.2d 1082, 1085, writ denied, 2008-1540 (La. 3/27/09), 5 So.3d 138. When a case involves circumstantial evidence and the trier of fact reasonably rejects the hypothesis of innocence presented by the defendant’s own testimony, that hypothesis falls, and the defendant is guilty unless there is another hypothesis that raises a reasonable doubt. State v. Captville, 448 So.2d 676, 680 (La. 1984).

First Degree Rape

La. R.S. 14:41 (A) defines “rape” as the act of anal, oral, or vaginal sexual intercourse with a male or female person committed without the person’s lawful consent. La. R.S. 14:42 provides, in pertinent part:

A. First degree rape is a rape committed ... where the anal, oral, or vaginal sexual intercourse is deemed to be without lawful consent of the victim because it is committed under any one or more of the following circumstances:
* ❖ *
|b(5) When two or more offenders participated in the act.
B. For purposes of Paragraph (5), ‘participate’ shall mean:
(1) Commit the act of rape.
(2) Physically assist in the commission of such act.

T.H. argues there was no evidence to prove he had anal, oral, or vaginal sexual intercourse with T.S., as she testified that she did not know if T.H. touched her with his penis. He also argues there is no evidence that he physically assisted in commission of the rape.

In addition to the definition of “participate” contained in La. R.S. 14:42, La. R.S. 14:24 provides that all persons concerned in the commission of a crime, whether present or absent, and whether they directly commit the act constituting the offense, aid and abet in its commission, or directly or indirectly counsel or procure another to commit the crime, are principals. Thus, the State may prove a defendant guilty by showing that he served as a principal to the crime by aiding and abetting another. Under this theory, the defendant need not actually have sexual intercourse with the victim to be found guilty of the crime. See State v. Garcia, 44,562 (La. App. 2d Cir. 10/28/09), 26 So.3d 159, 164, writ denied, 2009-2583 (La. 2/11/11), 56 So.3d 992 (“[T]he trial court did not have to determine that defendant was the attacker if the evidence supported that he was at least a principal to the attack.... Defendant had the requisite mental intent even if he was not the attacker who did the sexual assault because he knew his code-fendant had a knife and helped the sexual assault occur, watched it happen, and ensured that it could continue by subduing the husband.”)

As noted above, La. R.S. 14:42(B)(2) defines participation in the act of first degree rape by more than one offender as including physical assistance in the commission of such an act of intercourse. Moreover, with regard to the law of principals, the defendant’s mere presence at the scene is not enough to “concern” | mhim in the crime, Only those persons who knowingly participate in the planning or execution of a crime may be said to be “concerned” in its commission, thus making them liable as principals. A principal may be connected ■ only to those crimes for which he has the requisite mental state. State in the Interest of D.F., 991 So.2d at 1085. However, “[i]t is sufficient encouragement that the accomplice is standing by at the scene of the crime ready to give some aid if needed, although in such a case it is necessary that the principal actually be aware of the accomplice’s intention.” State v. Anderson, 97-1301 (La. 2/6/98), 707 So.2d 1223, 1225 (per curiam), quoting 2 W. LaFave arid A. Scott, Substantive Criminal Law, § 6.7, p. 138 (West 1996). See also State in Interest of K.J.C., 2009-0658 (La. App. 1st Cir. 9/11/09), 2009 WL 3162216 (unpublished).

Aggravated rape is a general intent crime. See La. R.S. 14:11, 14:42; State in interest of L.W., 2009-1898 (La. App. 1st Cir. 6/11/10), 40 So.3d 1220, 1224, writ denied, 2010-1642 (La. 9/3/10), 44 So.3d 708. General criminal- intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act. La. R.S. 14:10(2). As a general rule, “liability [as a principal] will not flow merely from a failure to intervene;” however, “silence in the face of a friend’s crime will sometimes suffice when the immediate proximity of the bystander is such that he could be expected to voice some opposition- or surprise if he were not a party to the crime.” State v. Bridgewater, 2000-1529 (La. 1/15/02), 823 So.2d 877, 891, on rehearing (June 21, 2002), cert. denied, 537 U.S. 1227, 123 S.Ct. 1266, 154 L.Ed.2d 1089 (2003), quoting W. LaFave and A. Scott, Jr., Substantive Criminal Law § 6.7(a)(1986) (Emphasis supplied).

In- this case, the victim, T.S., testified that T.H. came over the fence at some point during the assault, and he got behind her, although she could not testify h i specifically what he did behind her. Aside from his denial that he touched T.S., T.H. admittedly observed as M.P. and D.L. raped T.S., certainly rendering him aware of their intentions, and T.H. voluntarily provided a condom to M.P. when he asked for one. In addition, T.H. acknowledged that T.S. told M.P. and D.L. she did not want to do this when M.P. told her to bend over. T.H. argues “at most” the State proved he failed to stop or report this rape, and cites State v. McGhee, 2015-285 (La. App. 3d Cir. 11/4/15), 179 So.3d 739, in support of his argument that such omissions merely constitute misprision of a felony, which ceased to be a crime in Louisiana in 1942. In McGhee, 179 So.3d at 746-47, the Third Circuit found that the evidence was insufficient to support defendant’s conviction for simple kidnapping as a principal, finding that the evidence only proved that defendant was in the same place as his friend, and at most, he failed to stop or report the kidnapping. However, the Louisiana Supreme Court reversed the Court of Appeal, finding the evidence included not only defendant’s presence at the crime scene, but also his participation in stalking the victim with his friend. State v. McGhee, 2015-2140 (La. 6/29/17), 223 So.3d 1136, 1138 (per curiam).

T.H.’s argument herein ignores his active role in providing a condom to M.P., despite hearing T.S.’s plea that she did not want to engage in this activity, and the fact that he came over the fence during this activity. T.H.’s participation is not properly characterized as a “mere presence” at the scene. Rather, any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could have found • beyond a reasonable doubt that T.H. was guilty of first degree rape as a participant or principal herein when two or more offenders participated in the act. Further, after undertaking our state’s constitutionally mandated review of the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudication on this count. This assignment of error is without merit.

JjgSimple Robbery

La. R.S. 14:65(A) defines simple robbery as the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, but not armed with a dangerous weapon.

T.H. argues the State produced no evidence that he assisted in or had anything to do with the robbery of T.S. According to the testimony of T.S.,, although T.H. was not with the other boys when they initially took her phone from her pocket, when M.P. led her to the dumpster area, T.H. was there, on the other side of the fence. T.S. testified that, despite her request that they return the phone, the boys, including T.H., tossed her phone around in a circle. In his statement to the police, i T.H. admitted that D.L. threw the phone to him and asked him to hold it, but he said he gave it back to D.L,

T.H. argues that, because there was no evidence he was aware of the robbery before it was completed, no rational trier of fact could have found he had the requisite mental state to commit the crime. Simple robbery is a .general intent crime. La.-R.S. 14:10(2); State v. Davis, 2012-0386 (La. App. 1st Cir. 11/2/12), 111 So.3d 100, 103. An offender has the requisite -general intent when, from the circumstances, the prohibited result may reasonably be expected to follow from the offender’s voluntary act, irrespective of any subjective desire on his part to have accomplished such result. Id. Although general- intent is a question of fact, it may be inferred from the circumstances of the transaction. See State v. Johnson, 2003-1228 (La. 4/14/04), 870 So.2d 995, 998-99.

T.H.’s 'argument appears to assume that the crime was complete at the time the phone was taken, but this court finds such a narrow view unsupported by jurisprudence. The Supreme‘Court has found that, the element of force or intimidation need not occur before or contemporaneously with the taking, but rather retíognizéd that the elements of the crime can be proven by evidence that it occurred I the'course of completing the crime. State v. Meyers, 620 So.2d 1160, 1163 (La. 1993). In this case, during the sequence of events transpiring from the taking' of T.S.’s phone, the running away with the phone, and T.S. following to retrieve the phone, T.H. was present as T.S. attempted to retrieve the phone,' at which point he'was aware of the taking of the phone. Yet, not only did’T.H. remain silent as to the acts of M.P. and D.L., but he helped them to retain the phone, thereby concerning himself in this crime despite his lack of initial participation therein. Any rational trier of fact, viewing the- evidence in the light most favorable to thé prosecution, could have found beyond a reasonable doubt that T.H. was guilty of simple robbery as a principal herein. Further, after undertaking our State’s constitutionally mandated review of the law and facts in a juvenile proceeding, we find no manifest error by the juvenile court in its adjudication on this count. This assignment of error is without merit.

ADJUDICATIONS AND DISPOSITION AFFIRMED.

Holdridge J., concurs in part and dissents in part

HOLDRIDGE,

CONCURRING IN PART AND DISSENTING IN PART

hi concur in part and dissent in part from the majority opinion. I concur in the finding that' the defendant should be adjudicated a delinquent for one count of simple robbery. I respectfully dissent from the finding that the defendant should be adjudicated a delinquent for the crime of first degree rape. Viewing the evidence in the light most favorable to the prosecution, I find that no rational trier of fact could find beyond a reasonable doubt that the defendant committed the crime of first degree rape. In fact, the record contains no evidence whatsoever that he committed that crime.

      . Two other juveniles, M.P. (the brother of T.H.) and D.L., were also charged and adjudicated for the same crimes, and each of their adjudications are the subject of separate appeals. See State in Interest of D.L., 2017-0891 (La. App. 1st Cir. 11/1/17), 233 So.3d 671, and State in Interest of M.P., 2017-0892 (La. App. 1st Cir. 11/1/17), 233 So.3d 633.

      . Although the minutes of the disposition hearing, which were signed by the clerk of the juvenile court, provided separate adjudications for each count, the transcript of that hearing did not reflect separate dispositions. Nevertheless, this court has found it is appropriate in juvenile cases for a court to declare a single disposition for multiple adjudications. See State In Interest of J.C., 2009-2000 (La. App. 1st Cir. 7/15/10), 2010 WL 2802104, *4 (unpublished). The disposition herein until T.H.’s 21st birthday was the mandatory disposition based upon a violation of La. R.S. 14:42, first degree rape. La. Ch. Code art. 897.1(A). Moreover, this court further notes that the disposition until T.H.’s 21st birthday results in a custody period of 6 years, 7 months and 10 days (according to the record, T.H. has been in custody since 12/22/2016), which is less than the maximum term of imprisonment for the felony óf simple robbery, and accordingly, it is within the limits of the statute. See La. Ch. Code art. 898(A); La. R.S. 14:65.

      . The initials of the victim and her family members are used in order to keep her identity confidential pursuant to La. R.S. 46:1844(W).

      . In the absence of specific procedures provided by the Louisiana Children’s Code, courts shall proceed in accordance with the Louisiana Code of Criminal Procedure. See La. Ch. Code art. 803.