author: KYZAR, Judge.

text:
    Theodule P. NOEL, Jr., et al. v. Theodule Pierre NOEL, Sr., et al.
    16-734
    Court of Appeal of Louisiana, Third Circuit.
    08/02/2017
    Rehearing Denied September 27, 2017

      Ralph E. Kraft, Bryan E. Legé, Kraft Legé LLC, 600 Jefferson Street, Suite 410, Lafayette, LA 70501, (337) 706-1818, COUNSEL FOR PLAINTIFFS/APPELLANTS: Theodule P. Noel, Jr., Christine Noel Devenport, Catherine A. Noel, Individually and as Executrix of the Succession of Irene Joyce Trahan Noel
    R. Chadwick Edwards, Jr., Edwards & Edwards, P.O. Box 217, Abbeville, LA 70511-0217, (337) 893-2884, COUNSEL FOR DEFENDANTS/APPELLEES: Samuel J. Noel, Individually and as Executor of the Succession of Theodule P. Noel, Sr., Pamela A. Noel
    Gary McGoffin, Jonathan R. Villien, Du-rio, McGoffin, Stagg & Ackerman, P.C., P.O. Box 51308, Lafayette,LA 70505-1308, (337) 233-0300, COUNSEL FOR DEFENDANTS/APPELLEES: Samuel H. Shuffler, M.D., Ross Hebert
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Van H. Kyzar, Judges.
   KYZAR, Judge.

hThe plaintiffs-appellants, Theodule P. Noel, Jr., Christine Noel Devenport, and Catherine A. Noel, individually and as executrix of the Succession of Irene Joyce Trahan Noel, appeal from a trial .court judgment finding that their mother had the mental capacity to execute a power of attorney and that the power of attorney authorized the defendant-appellee, Samuel J. Noel, to self-deal. For the following reasons, we vacate in part; reverse in part; and remand for further proceedings.

DISCUSSION OF THE RECORD

The facts'of this matter were fully addressed in our prior opinion, Noel, Jr. v. Noel, Sr., 15-37 (La.App. 3 Cir. 5/27/15), 165 So.3d 401, writ denied, 15-1121 (La. 9/18/15), 178 So.3d 147, and we adopt those facts as though fully incorporated herein. In addition, to other rulings, we reversed the trial court’s sua sponte finding that Theodule P. Noel, Jr., Christine Noel De-venport, and Catherine A. Noel (the Appellants) had no right of action; its grant of summary judgment in favor of Theodule P. Noel, Sr., Samuel J. Noel, and Pamela A. Noel (the Appellees) on the issue of the authenticity of Mrs. Noel’s January 12, 2006 power of attorney; and its denial of the Appellants’ motion to file a third supplemental and amending petition.

Upon remand, a trial on the merits was held on January 25, 2016, which was limited by the trial court to whether Mrs. Noel possessed the necessary mental capacity to execute the January 12, 2006 power of attorney and whether the power of attorney allowed self-dealing by Samuel. At the close of the trial, the matter was taken under advisement, after which the trial court rendered written reasons on 12February 26, 2016, which affirmed its preliminary rulings to sever/bifurcate several matters, including the Appellants’ farm-lease claims. The judgment held that Mrs. Noel possessed the necessary mental capacity to execute the January 12, 2006 power of attorney. It also held that the power of attorney authorized Samuel to sell Mrs. Noel’s immovable property to himself and that her authorization for the sales was unnecessary because she benefited from the sales. A written judgment was recorded on April 6, 2016. It is from this judgment that the Appellants perfected their appeal.

The Appellants list seven assignments of error committed by the trial court:

1.The District Court committed manifest error in finding that Mrs. Noel had the requisite capacity to execute the [power of attorney] on 12 January 2006.
2. The District Court committed manifest error in finding that the [power of attorney] bearing the date 12 January 2006 was an authentic act.
3. The District Court committed legal error in finding that Samuel J. Noel had the authority to self deal pursuant to the [power of attorney] bearing the date 12 January 2006 where there was no language in the [power of attorney] granting such authority.
4. The District Court committed legal error/manifest error in finding under the power of attorney that Samuel J. Noel’s payment of the sale price of the property fulfilled a fiduciary duty to Mrs. Noel, though he judicially admitted the motive of Samuel J. Noel’s sale of the property to himself was for his personal benefit, to not inconvenience his farming operations.
5. The District Court abused its discretion in excluding relevant and admissible evidence offered by Plaintiffs/Appellants as respects Mrs. Noel’s capacity and the lack of authenticity of the [power of attorney], made the subject of the proffers by Plaintiffs/Appellants.
6. The District Court abused its discretion in dismissing Plaintiffs/Appellants’ claims for fraud, breach of fiduciary duty, conversion, simulation and a claim for an accounting by the mandatory, Samuel J. Noel, without allowing Plaintiffs/Appellants to conduct relevant discovery or present evidence.
h7. The District Court abused its discretion in severing/bifurcating and precluding Plaintiffs/Appellants’ right to conduct discovery and setting the trial date, denying Plaintiffs/Appellants the opportunity to conduct relevant discovery.

In answer to the appeal, the Appellees filed an exception of no cause of action asserting that the Appellants failed to state a cause of action for damages on behalf of Mrs. Noel’s estate because the trial court held that Mrs. Noel suffered no damages since each property sold for its appraised value. The Appellees also moved to strike the proffer of evidence filed by the Appellants pertaining to Mrs. Noel’s capacity to execute the January 12, 2006 power of attorney.

OPINION

The law pertaining to “power of attorney” was laid out by the second circuit in Tatum v. Riley, 49,670, pp. 6-7 (La.App. 2 Cir. 5/6/15), 166 So.3d 380, 384 (alteration in original), as follows:

A power of attorney is a common law term, whereas our civil code uses the term procuration to designate the same contractual relationship. La. C.C. art. 2986, Revision Comments (a); In re Succession of Hunt, 47,372 (La.App.2d Cir.9/20/12), 135 So.3d 654. As defined by La. C.C. art. 2987, “[a] procuration is a unilateral juridical act by which a person,. the principal, confers authority on another person, the representative, to represent the principal in legal relations.” A procuration is governed by the rules applicable to mandate to the extent that those rules are compatible with the nature of the procuration. La. C.C. art. 2988.
The rules governing mandate allow the principal to confer general authority for the mandate “to do whatever is appropriate under the circumstances.” La. C.C. art. 2994; Hunt, supra. However, some actions require express authorization. The authority to alienate, encumber, acquire, or lease a thing must be express. La. C.C. art. 2996. Express authorization is also required for the agent to make an inter vivos donation on behalf of the principal. La. C.C. art. 2997(1); Hunt, supra. Self-dealing also requires express authorization as provided by La. C.C. art. 2998, which states, “A mandatary who represents the principal as the other contracting party may not contract with himself unless he is authorized by the principal, or, in making such contract, he is merely fulfilling a duty to the principal.”

Although this court, in Succession of Love, 16-245 (La.App. 3 Cir. 9/28/16), 201 So.3d 1027, held that the authority to self-deal may be either verbal or in writing, because the authority to self-deal at issue involves the sale of immovable property, that authority must be specific and in writing pursuant to La.Civ.Code arts. 2992 and 2996.

Because a power of attorney is a contract, we interpret its provisions pursuant to the rules of contract interpretation, which were laid out by the supreme court in Prejean v. Guillory, 10-740 (La. 7/2/10), 38 So.3d 274, 279 (alteration in original) (emphasis added):

“[W]hen a contract can be construed from the four corners of the instrument without looking to extrinsic evidence, the question of contractual interpretation is answered as a matter of law.” Sims v. Mulhearn Funeral Home, Inc., 07-0054, p. 10 (La. 5/22/07), 956 So.2d 583, 590. “Interpretation of a contract is the determination of the common intent of the parties.” La. Civ.Code art., 2045. The reasonable intention of the, parties to a contract is to be sought by examining the words of the contract itself and not assumed.Sims, 07-0054 at p. 7, 956 So.2d at 589; McConnell v. City of New Orleans, 35 La.Ann, 273 (1883). “When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ.Code art. 2046. Common intent is determined, therefore, in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Louisiana Ins. Guar. Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La. 1/14/94), 630 So.2d 759, 763. Accordingly, when a clause in a contract is clear and unambiguous, the letter of that clause should not be disregarded under the pretext of pursuing its spirit, as it is not the duty of the courts to bend the meaning of the words of a contract into harmony with a supposed reasonable intention of the parties. See Maloney v. Oak Builders, Inc., 256 La. 85, 98, 235 So.2d 386, 390 (1970); McConnell, 35 La.Ann. at 275. Most importantly, a | ^contract “must be interpreted .in a common-sense fashion, according to the words of the contract, their common and usual significance.” Lambert v. Maryland Cas. Co., 418 So.2d 553, 559 (La. 1982).

Appellees’ Exception of No Cause of Action

. At the outset, we note that tite Appel-lees first raised their exception of no cause of action in the prior appeal of this matter. Noel, 165 So.3d 401. There, with, regard to the Appellants’ suit to cancel real-estate transactions, the Appellees argued that the Appellants had no cause of action for an anticipated inheritance and because they neither pled nor proved that Mrs. Noel sustained damages in order to maintain a survival action. However, this court held that the Appellants had both a cause of action and a right of action under La.Civ. Code art. 1926, to bring suit against the Appellees because “[w]hen the .original petition was filed, the succession of Mrs. Noel was not under administration. and Appellants properly brought this suit as heirs to Mrs. Noel.” Id. at 409. Based on our prior ruling, we find no merit in the Appellees’ exception of no cause of action.

Appellants’Assignment of Error Number Three

In their third assignment of error, the Appellants argue that the trial court legally erred in finding that Samuel was authorized by Mrs. Noel to self-deal. Because we find merit in this argument, we will address it first.

Mrs. Noel’s January 12, 2006 power of attorney contains the following provisions:

Irene Joyce Trahan Noel declared that she does by these presents make nominate, ordain, authorize, constitute, and appoint, and in [her] place and stead, depute and put her son, Samuel J. Noel to be her true and lawful attorney in fact, general and special, giving, and by these presents granting - unto said Attorney full power and authority for and in the name and on behalf of Constituent, to do, perform, conduct, manage and transact all and singular the affairs, business and concerns of Constituent, of whatever nature or kind, and in particular, the following: .
|fil. For and on behalf and in the place of Constituent to receive, endorse, deposit or cash any checks payable to Constituent whether the same be made payable to Constituent individually or jointly with Attorney or others and to draw checks and/or drafts on any account of Constituent.
2. To purchase for and on behalf of Constituent an automobile the make, type and style of which is solely in the discretion of Attorney, or any other movable, and in connection therewith to sign for and on behalf of Constituent in [her] name, all necessary papers and documents in connection therewith, such as bills of sale, conditional sales contract, and to secure all or any portion of the purchase price of said vehicle or movable by means of chattel mortgage upon said vehicle or movable and to execute all necessary documents in the premises in connection therewith such as chattel mortgages, notes, pledges, pawns and hypothecations.
3. To sell for and on behalf of Constituent for such consideration as Attorney deems satisfactory, any movable property belonging to Constituent.
4. To collect any debts due and owing unto Constituent.
5. To appear before all Courts of law and equity, there to do, prosecute and defend, as occasion shall require, and to compromise, compound and agree in the premises, by arbitration or otherwise, as the said Attorney shall in his or her discretion see fit; to apply for and obtain all and any writ of arrest, attachment, sequestration, injunction, prohibition, provisional seizure, mandamus, error and generally, all process of law and appeal; give the requisite security and sign the necessary bonds in all the cases in which the same may be required by law.
6. To purchase for and on behalf of Constituent any real estate which in the sole discretion of Attorney is for the best interest of Constituent.
7. To execute for and on behalf of Constituent oil, gas and mineral leases bearing upon and affecting any property belonging to Constituent .and situated in the Parish of Vermilion, Louisiana.
_Jj8. To execute for and on behalf of Constituent any right-of-way agreements for pipelines, power lines, road ways or telephone cables, over and upon and affecting any property belonging to Constituent for such terms as Attorney may deem satisfactory.
9. To receive for and on behalf of Constituent any royalties, rentals, damage payments[,] rights-of-way fees, etc., and deposit the same to the account of Constituent.
10. To do, perform, conduct, manage, and transact all and singular the affairs, business and concerns of Constituent of whatever nature or kind, without any exception or reservation whatever.
11. To make, accept, draw and endorse promissory notes and bills of exchange in the name of Constituent, and to bind the said Constituent by acknowledgment of debt, promises to pay and engagements of all kinds.
12. To sell, transfer, assign and convey to any and all person or persons or corporation, institutions, with all legal warranties, all or any parts of the real, personal or mixed estate of the said Constituent, either judicially or extra-judicially, for such price and upon such terms and conditions that the said Attorney may think fit; to receive the price of such sales, and to grant receipt and acquittance therefor.
13. To encumber, hypothecate or mortgage all or any part or parts of the property, movable or immovable belonging to said Constituent; to consent to the erasure and cancellation of all mortgages and privilege inscriptions in favor of or against the said Constituent.
14. To apply for administration of all successions and estates in which the said Constituent may be interested, and to demand all orders, obtain all decrees and judgments that may be necessary, and to finally settle and liquidate the same; to sue for a partition in all matters in which the said Constituent may be a party, and, if necessary, to renounce all successions in which the said principal may be interested.
15. If the time comes when I can no longer take part in decisions for my own welfare due either to a Isphysical or mental incapacity, it is my express, intention and desire that this mandate shall survive my incapacity and there shall be no necessity for my attorneys to apply to any court for approval or authority to manage my affairs.
16. If the time comes when I can no longer take part in decisions for my own welfare, and if there is no expectation of my recovery from physical or mental disability, I prefer to be allowed to die and not to be kept alive by artificial means or heroic measures. I prefer that drugs be mercifully administered to me for terminal suffering even if they hasten the moment of death. In fulfilling this preference, I authorize my Attorney to make these decisions on my behalf and fully authorize and empower all physicians, hospitals, medical care people and corporations, etc., to fulfill and further any decision so made by my Attorney.
And, generally, for the full execution of the purposes aforesaid, the said Attorney is hereby authorized and empowered to perform, and to make, sign and execute, in the name of the said Constituent, any and all acts and instruments of writing, with all usual and customary clauses, that shall or may be requisite and necessary, as being the said Constituent’s own proper acts and deeds; and, also to do and perform all and every other act, matter and thing whatsoever conducive to the interest of Constituent whether the same be an act of administration merely or an act of alienation, as shall or may be necessary to further the business and concerns of the said Constituent, as fully, amply and effectually, and to all intents and purposes with the same validity, as if all and every such act, matter or thing were, or had been, herein particularly stated, expressed and especially provided for, or as the said Constituent could or might do if personally present; also with full power of substitution and revocation. The said Constituent does hereby agree to ratify and confirm all and whatsoever the said Attorney or his substitute shall lawfully do, or cause to be done, by virtue of this act of procuration.

This power of attorney is the same as a previous power of attorney executed by Mrs. Noel on August 19, 2002. The only differences' being two misuses of the word “him” in the 2006 power of attorney and the following language at the end of Paragraph Fifteen in the 2002 power of attorney: “This grant of authority shall include the power to make all decisions related to my health care including but not 19limited to the selection and election of medical treatment, as well as the place, duration and scope of said treatment.”

In finding that Samuel had authority to self-deal, the trial court relied on Paragraph Ten, which stated that Samuel was authorized to “transact all and singular the affairs, business and concerns of the Constituent of whatever nature or kind, without any exception or reservation whatsoever.” The trial court, as did the Appellees, further relied on the fourth circuit’s opinion in Rutledge v. Hibernia Corp., 00-674 (La.App. 4 Cir. 1/16/02), 808 So.2d 765, 771, which stated:

However, when the legislature revised these laws in 1997 it did nothing to change the authoritative construction of the words “express authority” in articles 2996 and 2997. We therefore conclude the legislature intended for the word “express” authority to mean “written” authority in the revised articles.
Significantly, when the new article 2998, concerning self dealing by a man-datary, was added to the civil code in the same 1997 revisions, no adjective was used to modify the word “authority.” It seems clear to us, then, that the legislature, aware of the Tedesco [v. Gentry Development, Inc., 540 So.2d 960 (La. 1989)], holding, did not intend to require a writing for the principal to authorize his mandatary to self deal.

However, we find this reliance misplaced based on the fact that Rutledge dealt with movable property rather than immovable property. Moreover, the second circuit held that the principal’s verbal instructions to the mandatary to self-deal were sufficient to state a cause of action by the mandatary in that matter as there was no specific authority allowing him to self-deal.

“Powers of attorney are construed strictly and no special authority is implied by the general terms of a procuration except ordinary powers of administration.” First Fed. Sav. & Loan Ass’n of Natchitoches v. Burrows, 539 So.2d 685, 689 (La. App. 3 Cir. 1989) (citing Bolton v. Rouss, 144 La. 134, 80 So. 226 (1918), and La.Civ. Code arts. 2994-2996). Although these two opinions dealt with the prior |inIaws on mandate, the rules for interpreting mandate are unchanged.

In Standard Insurance Company v. Spottsville, 16-20 (La.App. 1 Cir. 9/16/16), 204 So.3d 253, 259, the first circuit held that the “catch all phrase” appearing at the end of the subject power of attorney was insufficient to bestow the specific authority for the mandatary to change the beneficiary on the principal’s insurance policy. That language, which allowed the mandatary to act in “any and all matters; without reservation of any kind and to the fullest extent allowed by law[,]” we find to be similar to that relied on by the trial court here. Id. Accordingly, we find that it was legal error for the trial court to conclude that Samuel was authorized to self-deal based on language more akin to the general authority granted by La.Civ.Code art. 2994.

Samuel testified that his authority to self-deal was granted by Paragraph Twelve of the power of attorney, which grants him the authority:

To sell, transfer, assign and convey to any and all person or persons or corporations, institutions, with all legal warranties, all or any parts of the real, personal or mixed estate of the said Constituent, either judicially or extra judicially, for such price and upon such terms and conditions that the said Attorney may think fit; to receive the price of such sales, and to grant receipt and acquittance therefore.

Based on our interpretation of the language, we find that although Samuel was authorized to sell Mrs. Noel's immovable property, he was not authorized to sell that property to himself as there was no specific authorization allowing him to self In deal concerning the immovable property of Mrs. Noel.

Nor do we find that Samuel satisfied the second part of La. Civ.Code art. 2998, as found by the trial court. Louisiana Civil Code Article 2998 (emphasis added) provides that “[a] mandatary who represents the principal as the other contracting party may not contract with himself unless he - is authorized' by the principal, or, in making such contract, he is merely fulfilling a duty to the principal.”

It was Mrs. Noel’s intention that each of her children receive certain tracts of immovable property from her estate, as specified in her February 28, 2003 testament:

For-and in consideration of the love and affection I have for my children, I give and bequeath unto them, free from any claim of collation or accounting, my interest if any, in the remaining portions of any tract or tracts where I have already , conveyed or joined in the conveyance of an undivided interest. This is a general statement of intent to be interpreted by my succession representative such that the donations which were made during my lifetime, including those donations which were made after the execution of this will, are continued and concluded upon my death. In furtherance thereof, the following is a list of the tracts utilizing a general description, as oppbsed to the full legal description, and the individual to whom my interest, if any, is to be bequeathed. ■

Included in the list of tracts are properties that Samuel, as Mrs, Noel’s attorney-in-fact, sold to himself and his wife and to his friend and business partner,'Ross Hebert. Four of the sales' involved property that' Mrs. Noel intended for Catherine; three involved property she intended for Christine; and two involved property she intended for Theodule, Jr. Additionally; on April.9, 2008, Mr. Noel, Sr. and Samuel, as Mrs. Noel’s attorney-in-fact, sold property located at Cypremort Point to Dr. Samuel H, Shuffier for $390,000.00, On September 23, 2008, Mr. Noel, Sr. and Samuel, as Mrs. Noel’s attorney-in-fact, executed predial servitudes of passage, aqueduct, and use over and across three tracts of property Mrs. Noel | ^intended for Christine, for the benefit of property Samuel already owned and that he and his wife purchased through his self-dealing. We further note that' none of the properties Mrs. Noel intended to bequeath to Samuel were involved in any transactions.

In its reasons for ruling, the trial court stated that “[i]t is uncontestéd that the appraised value of the tracts were paid by all of the purchasers[,]” and that Samuel “paid to the principal the appraised value of the property, and thus the dealing was not gratuitous and the transactions are distinguishable from those cases wherein an agent donates to himself.” However, no evidence was introduced at the trial on the merits regarding the appraised value of the properties sold.

In their motion for partial summary judgment in the prior appeal, the Appel-lees argued that the “undisputed facts show that each of the contested transactions are cash sales made for fair market value or above, and none are donations.” The Appellants opposed this claim, arguing that “[property values are not the standard against which these efforts (self-dealing) are to be judged, for what is sold today from [Samuel] to [Hebert] can be resold/transferred from [Hebert] to [Samuel], thereby allowing [Samuel’s] reacquisition of the Noel farms[.]”

We agree that property values are not the standard upon which self-dealing is determined. Rather, the standard is based on the authority granted to or the duty fulfilled by the mandatary. No exception for payment of fair market value or above was contemplated by the legislature as justification for self-dealing. Moreover, in his reconventional demand against the Appellants, Dr. Shuffler claimed that he received an offer of $700,000.00 for the Cypremort Point property he purchased for $390,000.00.

|1sWe further note the following language included in the June 22, 2010 act of sale (emphasis added), wherein Samuel, while Mrs. Noel’s attorney-in-fact, and his wife purchased property that Mrs. Noel intended for Catherine:

This sale is made and accepted for and in consideration of the price and sum of Eighty-five Thousand and 00/100 ($85,000.00) Dollars; as appraised by Broussard Appraisal dated April- 14, 2010, which amount the said Vendee have paid in ready current money unto said Vendor, who hereby acknowledges the receipt thereof and gives full acquittance for same, and is further premised upon the conduct of our children in their abandonment and open displays of ingratitude and disrespect, and further, our desire to remove the possibility that this cond/uct will not be continued or used to undermine the ability to continue our farrhing operations.

Mr. Noel, Sr. admitted in the act of sale that this property was Mrs. Noel’s separate property.

It is undisputed that. Mrs. Noel was suffering from dementia, whether Alzheimer’s or vascular, at the beginning of 2007, and that Dr, Craft indicated that she was incapable of managing her own affairs as of March 8, 2007. It is further undisputed that Mrs. Noel suffered a stroke in April 2007, and that she passed away on January 19, 2012. Based on the progressive nature of dementia, Mrs. Noel could not have had the mental capacity to direct Samuel to include the disinheritance-language in the June 12, 2010 cash deed. Therefore, the only logical conclusion is that the language was inserted by Samuel for his own benefit, namely the convenience of his farming operations. Accordingly, wé find that Samuel was acting for himself, rather than Mrs. Noel, when he sold the property at issue to himself and his wife.

Based on the foregoing, we reverse the judgment of the trial court finding that Samuel was authorized to self-deal under the terms of the January 12, 2006 power of attorney. We further find that because the language in Paragraphs Ten and Twelve of the power of attorney was identical to that in the August 19, 2002 |14power of attorney, neither power of attorney authorized him to self-deal. Since this finding renders moot the question of her mental capacity, we vacate the trial court judgment finding that Mrs. Noel had the mental capacity to execute the January 12, 2006 power of attorney. Cat’s Meow, Inc. v. City of New Orleans through Dep’t of Finance, 98-601 (La. 10/20/98), 720 So.2d 1186. For the same reason, we need not address the Appellants’ assignments of error addressing this issue or the Appellees’ motion to strike.

As a result of our finding that Samuel was not authorized to self-deal, we remand this matter for a trial on the merits on the Appellants’ claims of fraud, breach of fiduciary duty, conversion, simulation, and a claim for accounting by Samuel, as manda-tary. Pursuant to this order, the parties are allowed to conduct relevant discovery pertaining to the issues before the trial court. La.Code Civ.P. art. 1422. This ruling renders moot the Appellants’ assignment of error relative to these claims. Finally, we find no merit in the Appellants’ argument that the trial court erred by refusing to allow them to depose the Appellees’ counsel. This issue was addressed when we denied writs in Noel, Jr. v. Noel, Sr., 15-1198 (La.App. 3 Cir. 1/20/16) (an unpublished writ), finding that there was “no error or abuse of discretion in the trial court’s rulings.”

DISPOSITION

For the foregoing reasons, we vacate the judgment of the trial court finding that Mrs. Noel was mentally competent to execute the January 12, 2006 power of attorney; we reverse the judgment of the trial court finding that Samuel J. Noel was authorized to self-deal under the terms of the January 12, 2006 power of attorney; and we remand the matter to the trial court for further proceedings. Costs of this appeal are assessed to Samuel J. Noel, individually and as executor of the | ^Succession of Theodule P. Noel, Sr., and Pamela A. Noel.

JUDGMENT VACATED IN PART; REVERSED IN PART; AND REMANDED.

      . Since this opinion, Theodule P. Noel, Sr. passed away and Samuel J. Noel, as the executor of his father’s succession, was substituted in his place.

      . La.Civ.Code art. 2993 provides:
      The contract of mandate is not required to be in any particular form.
      Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form.
      La.Civ.Code art. 2996 provides:
      The authority to alienate, acquire, encumber, or lease a thing must be given expressly. Neither the property nor its location need be specifically described.

      . The current versions of La.Civ.Code arts. 2994-2996 were enacted by 1997 La. Acts No. 261, § 1, effective January 1, 1998. The prior versions were as follows: (1) La.Civ.Code art. 2994, pertaining to general or special mandate, stated that a mandate "may be either general, or special for one affair only[;]” (2) La.Civ.Code art. 2995, pertaining to indefinite or restricted authority, stated, "It may vest an indefinite power to do whatever may appear conducive to the interest of the principal, or it may restrict the power given to the doing of what is specified in the procuration^]” and (3) La.Civ.Code art. 2996, pertaining to the powers conferred by mandate, stated, "A mandate conceived in general terms, confers only a power of administration. If it be necessary to alienate or give a mortgage, or do any other act of ownership, the power must be express.”

      . La.Civ.Code art. 2994 provides, "The principal may confer on' the mandatary general authority to do whatever is appropriate under the circumstances,


source: Caselaw Access Project

author: JUDGE SANDRA CABRINA JENKINS

license: Public Domain

text:
    STATE of Louisiana v. Rayne WILLIAMS
    NO. 2016-KA-0982
    Court of Appeal of Louisiana, Fourth Circuit.
    SEPTEMBER 20, 2017
    Rehearing Denied October 2, 2017

      Leon A. Cannizzaro, Jr., District Attorney, Kyle Daly, Assistant District Attorney, PARISH OF ORLEANS, 619 South White Street, New Orleans, LA 70119, COUNSEL FOR APELLEE, STATE OF LOUISIANA
    Holli Herrle-Castillo, LOUISIANA APPELLATE PROJECT, P. 0. Box 2383, Marrero, LA 70073-2333, COUNSEL FOR DEFENDANT/APPELLANT.
    (Court composed of Chief Judge James F. McKay, III, Judge Rosemary Ledet, and Judge Sandra Cabrina Jenkins)
   JUDGE SANDRA CABRINA JENKINS

hOn May 17, 2012, defendant Rayne Williams was charged by bill of information with one count of attempted second degree murder. On January 24, 2013, the State amended the bill to also charge Williams with one count of discharging a firearm during a crime of violence. A bench trial was held, and Williams was found guilty of attempted murder only. Williams was sentenced to ten years at hard labor without benefit of parole, probation, or suspension of sentence, with credit for time served. Williams appeals his conviction and sentence and assigns as error: (1) the absence of evidence of his knowing and voluntary waiver of his right to a jury trial; and (2) the evidence is insufficient to support his conviction.

We find there is no evidence in the record showing that Williams knowingly and voluntarily waived his right to a jury trial. Accordingly, we remand this matter for an evidentiary hearing to determine whether Williams knowingly and voluntarily waived this right. If either party wishes to raise any issues as a result of the evi-dentiary hearing and the trial court’s ruling, the parties may do so. Because |?this matter is remanded for an evidentiary hearing on the jury waiver issue, we pre-termit discussion of Williams’s remaining assignment of error. Williams’s right to appeal his conviction and sentence are preserved.

PROCEDURAL BACKGROUND

On May 17, 2012, the State charged Williams and two co-defendants with'the December 19, 2011 attempted second degree murder of Winfield Brazile, in violation of La. R.S. 14:27(30.1). Williams was also charged with one count of discharging a firearm during a crime of violence, in violation of La. R.S. 14:98(F). On July 9, 2012, Williams entered into a plea of not guilty and was advised of his right to trial by judge or jury. After the trial court’s finding of no probable cause, Williams appeared with counsel in court on June 17, 2013 and proceeded to a bench trial. The bench trial recessed and resumed on February 21,2014; On that date, the trial court found Williams guilty of attempted second degree murder. On June 3, 2014, the trial court sentenced Williams to ten years at hard labor, without benefit of parole, probation, or suspension of sentence and with credit for time served. The State filed a multiple bill of information against Williams. On June 2, 2016, a motion for new trial was denied, and a motion for appeal was granted.

DISCUSSION

Williams asserts in his first assignment of error that the trial court erred when it allowed a bench trial in this matter without requiring a written motion, conducting a colloquy, or determining whether there was a valid waiver of the | «right to a jury-trial on the record. We agree, finding the error requires the case be remanded, for an evidentiary hearing. Accordingly, we' pretermit discussion, of the post-trial error patent, and turn our attention to the jury trial waiver issue.

Both the United States Constitution and the Louisiana Constitution guarantee an .accused the right to a jury trial. U.S. Const. Amend. VI; La. -Const, art. I, § 17. If the punishment that may be imposed on a defendant exceeds six months confinement, the Louisiana - Constitution provides that the defendant shall be tried by a jury. In non-capital cases, a defendant may knowingly and intelligently waive his right to a trial by jury. La. Const. art. I, § 17(A); State v. Biddy, 13-0356, p. 20 (La. App. 4 Cir. 11/20/13), 129 So.3d 768, 780.

Williams was charged with attempted second degree murder, a non-capital felony. Consequently, he was entitled to a jury trial unless he knowingly and intelligently waived this right. .. .

The waiver of the right to a jury trial cannot be presumed. State v. McCarroll, 337 So.2d 475, 480 (La. 1976); State v. Santee, 02-0693, p. 3 (La. App. 4 Cir. 12/4/02), 834 So.2d 533, 534. A waiver of the right to trial by jury is valid only if the defendant acted knowingly and voluntarily. State v. Kahey, 436 So.2d 475, 486 (La. 1983); Santee, 02-0693, p. 3, 834 So.2d at 534.

The preferred procedure for a trial court to ascertain whether a defendant wishes to waive, the right to trial by jury is for the trial judge to advise the defendant personally on the record about the intended waiver and to require the defendant to waive the right in writing or verbally in open court on the record.. See State v. Bryant, 06-1154, p. 7 (La. App. 4 Cir. 1/10/07), 950 So.2d 37, 40; State v. Richardson, 575 So.2d 421, 424 (La. App. 4th Cir. 1991); State v. Denson, 11-0517, pp. 7-8 (La. App. 4 Cir. 1/25/12), 83 So.3d 1183, 1188-89.

When, as here, the trial court does not follow this preferred procedure, we may nevertheless conduct a de novo review of the record to ascertain whether the defendant was advised of the right to trial by jury, whether the defendant was present when counsel elected trial by judge, and, if defendant was present, whether the defendant voiced any objection to the election. See Santee, 02-0693, p. 3, 834 So.2d at 535; Denson, 11-0517, pp. 7-8, 83 So.3d at 1188-89.

. There is no written waiver of a jury trial in the record. Likewise, there is no colloquy between the trial court and Williams regarding waiving his right to a jury trial, nor is there an indication of when, where, or how the waivér of a jury trial occurred.

There are only three instances in the record where a bench trial is even mentioned prior to the actual bench trial. The record indicates that Williams, accompanied by counsel, was arraigned on July 19, 2012. The docket master indicates the trial court advised Williams .of his right to either a bench or a jury trial. There is no indication that Williams made a selection at that time. On April 19, 2013, the record reflects , that at the conclusion of a hearing requested by the State regarding a stay request, the prosecutor stated, “And I believe they elected a judge trial—this will be a judge trial that day. Thank you, your Honor.” At an | .-April 26, 2013 writ status/stay hearing, the prosecutor commented, “And again, at this time, we have a judge trial set for May 21st.”

Although it is evident from the record that Williams was advised of his right to choose between a judge or jury trial, there is no indication in the record that he waived his right to a jury trial verbally in court or in writing, or that he was present when his defense counsel made the election of a judge trial on his behalf. Nor is there any indication in the record that Williams knew the waiver of a jury trial was made. In sum, there is insufficient proof to conclude that Williams knowingly and intelligently waived his right to trial by jury. For that reason, we find merit to Williams’s assignment of error. We remand this matter for an evidentiary hearing to determine whether Williams knowingly and intelligently waived his right to trial by jury. Williams’s other assignment of error is preserved for future appellate review.

CONCLUSION

Given that there is no evidence in the record showing that Williams knowingly and voluntarily waived his right to a jury trial, we remand this matter to the trial court for an evidentiary hearing to determine whether Williams knowingly and intelligently waived this right. State v. For-tenberry, 11-0022, p. 5 (La. App. 4 Cir. 7/27/11), 73' So.3d 391, 394. We pretermit discussion of Williams’s remaining assignment of error* Williams’s right to appeal his conviction and sentence is preserved.

REMANDED

      . The underlying facts of Williams’s conviction are not relevant to the issues addressed in this opinion.


author: MAX N. TOBIAS, JR. Judge.

text:
    D.M.S. v. I.D.S.
    No. 2014-CA-0364.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 4, 2015.

      (Court composed of Chief Judge JAMES F. McKAY, III, Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR.).

      . Similarly, identification of counsel for the parties is likewise omitted. See fn, 3,' inirá.

   MAX N. TOBIAS, JR. Judge.

| iThis case arises out of a petition for protection brought pursuant to La. R.S. 46:2131, the Domestic Abuse Assistance Act. The trial court rendered judgment on 3 October 2013, granting a protective , order on behalf of I.D.S. and her two minor children, D.S. and M.S., against D.M.S. From that judgment, D.M.S. appeals. After a thorough review of the record on appeal and finding no abuse of discretion or legal error, we affirm.

FACTUAL.AND PROCEDURAL BACKGROUND

On 6 February 2013, D.S., the then 12-year-old son of the petitioner, I.D.S., and her ex-husband/appellant, D.M.S., presented on his own accord to the school counselors at St. Christopher’s School with complaints that he and his younger |2brother, M.S., were being physically and verbally abused by their father. D.S. recounted several incidences of recent abuse and expressed that he was “tired” of it happening.: D.S. also complained that D.M.S. had made verbal threats to .him about inflicting physical harm upon his mother. That same day, D.S.’s allegations of abuse and verbal threats were corroborated by M.S., then 10 years old, who made similar complaints to the counselors of physical and verbal abuse against himself by D.M.S. Specifically, the boys shared that their father hit them.in the stomach, pulled their hair, called them derogatory names, required them to. fend for themselves when it came to meals, and often threatened them. Both boys expressed their fear of their father. ■- '

After listening to their particular allegations of abuse, the counselors directed the boys to memorialize their complaints in writing. D.S.’s written statement, dated 6 February 2013, which was introduced into evidence, contained the following:

My dad hit us alot [sic] and yells at us and he is mean. He hurts us for little things. He hits and hurts - us[,] pulls hair[,] hits with fist and hand baek[,] stomach[,] arms mess us up he hurts us. He said he would. [A]bout a month ago he said he would kill her.... He said he hurt us and would teh [sic] us to lie. We were afraid to tell the truth. I don’t want he [sic] to know ... tell [sic] next week. He came to the game and yelled at my coach and was. mean and would not calm down. My dad is getting medical procedure. We do not ever eat food when we are with my dad. He makes us write notes forces us.

M.S.’s written statement, also dated 6 February 2013, states:

He hit us in. like the stomach and kicked us. He kicks us[,] yells[,] he throws his phone[,] hits us with his fist when we get in troble [sic][.] He said he would get a gun | ¡¡or a bat and kill her [their mother] in her house[.] My step mom is aware that he hits us[.] She got hit once[.]

•The boys’ mother, I.D.S., was. summoned to the school and, at the direction of the school counselors, they relayed to her the repeated abuses upon them by their father. Thereafter, a legally mandated report was made to the Louisiana Department of Children and Family Services (“DCFS”) by the school counselors. Two days later, on the morning of 8 February 2013, the boys advised the school counselors of additional abuse having occurred the previous evening while in the care and custody of D.M.S. According to the boys, after failing to retrieve coins stuck in the gear shift of their father’s car in a timely manner, D.M.S. slapped M.S., pulled his hair hard, and slammed his head on the armrest. In an effort to stop the abuse, M.S. scratched his father, at which time his father threatened to “punch him in the face like a man and knock him out” if M.S. ever touched him again. M.S. also complained that, on that same evening, his father shoved him across the. floor. Upon hearing these new allegations, the school counselor initiated a second report of abuse to DCFS. After -the complaints of abuse by the minor children were authenticated by DCFS, DCFS ordered the boys’ mother to seek a temporary restraining order (“TRO”) on behalf of herself and her children against D.M.S.

On 8 February 2013, at the direction of DCFS and pursuant to La.'R.S. 46:2131 et seq., I.D.S. filed a petition for protection from abuse (“the Petition”) on behalf of herself and her minor children, D.S. and M.S., alleging that D.M.S. regularly “slapped, scratched, kicked,” punched, shoved, and threatened each of the boys “when they are in [his] custody,” and that D.M.S. had threatened her life. Additionally, the Petition averred that the most recent incident of abuse [ .precipitating the filing of the Petition occurred on 7 February 2013, when D.M.S. “hit [M.S.] in the head and pulled the children’s hair” when M.S. failed to quickly remove coins from the stick shift of their father’s vehicle. Upon the filing of the Petition, a TRO was issued that' day awarding I.D.S. temporary sole custody of the minor children and enjoining D.M.S. from abusing, harassing, stalking, threatening, et cetera, I.D.S. and the children, and prohibiting D.M.S. from being within 100 yards of them. Following the issuance óf the TRO, the children were returned to the custody of I.D.S., where they have since remained.

Upon gaining custody of the minor children and learning of the alleged repeated abuses upon both of them by their father, I.D.S. took the boys to be evaluated, at Children’s Hospital in New Orleans on 11 February 2013. At that time, the boys were each examined and interviewed separately by Dr. Neha Mehta, a forensic physician, regarding the alleged abuse. Dr. Mehta is the medical director of Child Abuse Pediatrics at the Audrey Hepburn CARE Center located at Children’s Hospital. The boys, individually, reiterated in detail the events they had previously shared with their mother and school counselors. While no objective physical findings were noted on D.S.’s examination, M.S.’s evaluation indicated “slight residual scalp swelling with reported tenderness to palpation.”

Due to several delays and continuances, many of which were at the behest of D.M.S., it was not until six months after the TRO had been issued that the trial of the order of protection commenced. A week before the start of trial, on 12 September 2013, the trial judge conducted a Watermeier hearing in chambers, meeting with each of the minor children separately in order to assess their competency. See Watermeier v. Watermeier, 462 So.2d 1272 (La.App. 5th Cir.1985). Prior to the Wat-ermeier hearing, counsel for I.D.S. and D.M.S. were each | .-¡provided the opportunity to present suggested questions to assist the trial judge in her questioning of the children. Additionally, each party was allowed to have counsel present in chambers to observe the judge’s questioning and the minor children’s respective responses.

The trial judge first met with D.S., who expressed that his father hits him daily “for no reason.” D.S. proceeded to recount numerous specific occasions of recent physical abuse at the hands of his father, as well as verbal abuse, which included being called pejorative names, being slapped in the face, having his hair pulled and sustaining a cut near the corner of his eye when D.M.S. threw a remote game controller at him after having defeated D.M.S. in a video game. D.S. stated that the abuse by his father started approximately five years earlier when he was about six or seven years old. He told the judge that he was afraid to tell anyone about it for fear that his father would hurt him even more badly or possibly even kill him. He deduced that because his father has a short temper and is easily agitated, and because he has verbally threatened him to kill his mother, his father could possibly do the same thing to him. D.S. also related that his father did not feed him and M.S. breakfast before school and that often times for dinner, they were given money and left to their own devices to purchase snack food or microwave dinners from a drug store located across the street from his father’s home. According to D.S., the reason he went to the school counselor to tell her about the abuse was because he was “tired of being beaten” and is afraid of his father, so much so that he has to sleep at night with the light on when he is at his father’s house. The trial judge’s interview with D.S. concluded with D.S. expressing to her that he was terrified of his father and that he wanted his father to change and to never touch him again.

| (¡The trial judge next met with M.S., who reiterated several of the same incidences of abuse related to her by D.S. Additionally, M.S. described in detail the occasion where his father scratched his face and pulled his hair when he couldn’t timely remove the penny that was stuck in the car’s stick shift. He described his father as “freaking out” when M.S. tried to defend himself by scratching D.M.S. M.S. stated that every time he and D.S. are with their father (which is every other week), they are abused by being kicked, stepped on, thrown, or having their hair pulled, and that the abuse had been “going on for years.” M.S. also told the judge about the incident where his father told him of his intent to one day shoot his mother and grandmother. He described having had to go to bed hungry on several nights while in his father’s care. M.S. also stated to the trial judge that he was scared to return to his father’s home for fear of being attacked and hurt.

The trial of the matter commenced on 27 September 2013 and concluded on 3 October 2013. At the outset of the hearing, the trial judge explained to the parties that the issue to be determined on the Petition was a narrow one: Did D.M.S., more likely than not, commit acts of abuse upon his minor sons and threaten I.D.S. in the presence of the minor children giving rise to the filing for protection in February 2013? Accordingly, after noting that this was not a child custody proceeding or a fault trial, the trial judge advised the parties and their counsel that she was limiting the evidence and the testimony to the “four corners of the petition,” a statement she repeated throughout the two-day trial.

|7I.P.S. bore the burden of proof as to the allegations contained in the Petition by a preponderance of the evidence. At trial, I.D.S. testified that D.M.S. was physically and verbally abusive towards her throughout their, five-year marriage. I.D.S. identified photographs of herself and of the boys depicting physical injuries they had allegedly sustained at the hands of D.M.S. over the years. She described her ongoing rancorous relationship with D.M.S. and stated that she took seriously the verbal threats D.M.S. made to the boys about wanting to inflict serious bodily harm upon her.

Ruth Meche, principal at St. Christopher’s School, and the school counselor., Sheila Nicholson, both testified at trial. According to Ms. Meche, even though she did not observe any bruising or marks on either of the boys in February 2013, she considered their allegations of abuse by D.M.S. to be credible. Ms. Nicholson testified that both boys expressed fear that their father would continue to .physically harm them and fear that he would potentially kill or injure their mother. Based on the events, described to her by the boys, first on 6 February 2013 and then again on -the morning of 8 February 2013, Ms. Nicholson determined that the severity of the abuse was sufficient to warrant involvement by DCFS.

Lucille Perry, Ph.D., LPC, also testified on behalf of I.D.S. Dr. Perry stated that she has been counseling both of the boys since approximately 2005, and is |sfamiliar with patterns of abuse. In this regard, Dr. Perry testified that over the years of counseling the boys, they have expressed to her their fear of D.M.S. and she has observed, based upon their description of their father’s explosive behavior, a pattern escalating from his making mere verbal statements to them, to slapping, pushing, and pulling their .hair. Dr. Perry described the situation between the boys and their father to be a “high-risk situation,” in which, on impulse, D.M.S. could potentially “snap.” Additionally, Dr. Perry testified that the boys were fearful regarding their father’s potential retribution upon them for “telling” others about what he' had been doing to them.

The records from Children’s Hospital were jointly admitted into evidence, which included transcripts of 'the interviews of D.S. and M.S. conducted by Dr. Mehta on 11 February 2013. During these interviews, which occurred 'separately, the boys related histories of ongoing “episodés of physical abuse” by D.M.S. and recounted the same occasions of verbal and physical abuse as reported previously to their counselors. Additionally, the' boys identified photographs of themselves and described to Dr. Mehta in detail the circumstances and events that occurred, resulting in the injuries. depicted in each of .the photos. The episodes described by each child separately to Dr. Mehta did not differ in any significant respect when compared to one another. Moreover, no inconsistencies were noted when the physical findings were compared to the history provided. In fact, the finding of “slight residual scalp swelling with tenderness to palpation” during the physical examination of M.S. was consistent with the boys’ rendition of the most recent incident involving D.M.S. pulling M.S.’s hair.

In defense against the allegations set forth in the Petition, D.M.S. testified that he was blindsided by Service of the' Petition because he has never once hit or Uotherwise physically abused either of the boys. He denied that any of the incidents as described by the boys ever occurred, but rather, contends that the boys misconstrued, exaggerated, and/or fabricated the events altogether. D.M.S. accused I.D.S. of “coaching” the boys to make the allegations regarding what to say to their school counselors, the case workers at the DCFS, and the physicians at Children’s Hospital, based on the fact that in 2011, I.D.S. had previously involved DCFS and Children’s Hospital with similar complaints in an effort to systematically alienate the boys from him. According to D.M.S., the investigations conducted by DCFS on I.D.S.’s previous complaints had been largely unsubstantiated and, consequently, eventually dropped. As to the allegations in the Petition describing when and how he purportedly abused the boys in February 2013, D.M.S. introduced personal medical records from Tulane Hospital to suggest that on the specified days in question, he was actually physically incapacitated and could not possibly have abused the boys as alleged. Specifically, D.M.S. showed that he had been. undergoing a colonoscopy preparation and then the colonoscopy procedure itself on the very days the boys alleged he physically abused them. He further testified that the réason D.S.' went to the school counselors when he did was in retaliation for D.M.S. not allowing him to attend one of his school’s basketball games during that timeframe. ' Regarding the photographs identified by I.D.S. and the boys, he claims that the scratches and bruising shown were a result of the boys fighting with one another and/or occasioned during one of their sporting events. In short, according to D.M.S., the boys— and their mother—lied about him verbally and physically abusing them.

[ inThe court.also heard the testimony of D.M.S.’s current wife, -L.S., who stated that, in the time that she has been in relationship with D.M.S., he has always had a very close relationship with D.S. and M.S. L.S. denied ever striking the boys herself or witnessing D.M.S. physically strike either of the boys. She also testified that, while the boys are close to one another, they daily physically fight with one' another when in her and D.M.S.’s custody and care. Additionally, L.S. testified that she nightly fixed dinner for the family and denied that the boys ever went without breakfast or were left to “fend for themselves” for dinner while at D.M.S.’s home. As to the specific days in February 2013 when the boys claim in the Petition that they were physically abused by D.M.S., she verified D.M.S.’s weakened physical condition due to the colonoscopy preparation and his having undergone the colonoscopy procedure and stated that she did not witness nor did she believe that any physical abuse as described by the boys could have or actually did occur.

In D.M.S.’s defense, three of his adult daughters from his first marriage testified. First, his 23-year-old daughter, Mi.S., testified that, while she had on occasion seen her father yell when he got angry, he had never physically abused her nor had she ever witnessed him physically striking any of her younger brothers. She stated that she. never considered D.M.S. to have anger-management issues. She described the relationship between D.M.S- and all of his eight children to be a very close, tight-knit relationship. She also stated that D.S. and M.S. were typical brothers who constantly physically fought one another. In particular, Mi.S. testified about a fight that broke out between her brothers over the Mardi Gras weekend (which was in the days immediately following the boys having made the |nclaims of. abuse to their school counselors and DCFS, but prior to their mother obtaining the TRO and regaining their physical custody), which started when M.S. blew a horn into D.S.’s ear. D.S. then chased M.S. and “clipped him,” causing M.S. to fall head over heels. According to Mi.S., this type of physical behavior between her brothers was typical.

R.S., the eldest daughter of D.M.S;, testified that he was close to all of his children and very active in their lives and activities. She denied that D.M.S. ever physically abused her or that she had ever witnessed, him abusing any of her siblings. Additionally, R.S. confirmed that on 5 February 2013,. her father was undergoing a colonoscopy preparation and in bed most of that day. Because of his condition and inability to drive, R.S. picked D.S. and M.S. from school and brought them to D.S.’s basketball practice that afternoon and then to his game that evening. Once the game was over, she returned the boys to her father’s -home. ■ According to R.S., when they got there, she went with the boys into their father’s bedroom to Visit with him for a brief time as it was late in the evening. Once the conversation ended, she left and the boys went to bed. She did not witness any verbal or physical altercation that night. The following morning, 6 February 2013 (the day D.S. reported to his counselors the abuse by his' father), R.S. claims that she drove her father to the hospital for his colonoscopy procedure and brought ■ him ■ home thereafter. Because he was very tired, her father went straight to bed. R.S. testified that later that afternoon, she again picked the boys up from D.S.’s basketball practice and took them to his basketball game that evening. She denied that the boys seemed upset or acted unusual in any way. Following the game, R.S. stated that she brought the boys back to their .father’s house. When they-arrived home, R.S. claims she accompanied the boys into see their father and they all | ¶ ¡.spoke together briefly. It was during this conversation that D.M.S. reminded D.S. that he would be unable to attend his basketball game the following evening. She denied witnessing any harsh words, slapping, kicking, et cetera, at that time. R.S. claimed that she then left the house and the boys went to bed as it was late into the evening.

D.M.S.’s youngest daughter, C.S., testified next. According to C.S., she considers herself to be very close to both D.S. and M.S. and described their relationship as one of “open dialogue.” She denied witnessing her father ever physically strike either of her brothers or her brothers ever telling her that he had done so. It is her belief that had their father been abusing D.S. or M.S., one or both of them would have told her about it. Further, C.S. testified that when she heard ■ about D.S. and M.S.' making the .allegations against her father, her first reaction was, “like great now another time,” based on the fact that they had made similar claims in the past and, when DCFS got involved and eventually dropped the investigation, the boys admitted to her that they had-said untruthful things because they were being manipulated by their mother, I.D.S., to do so.

D.M.S. called Dr. Albert E. Sidhom, a licensed professional counselor, to testify as an expert witness on “parental and relationship issues;” in particular, the concept of parental alienation syndrome (“PAS”) and its application to the boy’s motivation for making the allegations set forth in the Petition in this case. Having determined that PAS is inapplicable in a protection case, but rather, 113applies, if at all, in a child custody dispute, the trial court disallowed Dr. Sidhom to testify further and refused to qualify him as an expert to render an opinion in this case.

Dr. 'Scott Benton, an associate professor of pediatrics at the University of Mississippi Medical Center, testified by deposition on behalf of D.M.S. as an expert in pediatric forensic medicine. Dr. Benton was responsible for having established the medical procedures for handling child abuse cases at Children’s Hospital in New Orleans. Based upon. his review of the various records made available to him, Dr. Benton opined that the physical findings did not rise to the level .to indicate physical abuse in this case.

At the close of the two-day trial, the trial judge issued her ruling from the bench in favor of I.D.S., finding that based on the evidence presented and the testimony of the witnesses, I.D.S. had carried her burden of proving her case “as to the allegations in the four corners of the petition for protection from abuse, and the defendant [D.M.S.] ha[d] failed to rebut the evidence.” Accordingly, the trial court issued' the order of protection at issue herein on behalf of I.D.S. and her two minor children, D.S. and M.S., for a total of eighteen months, or until 3 April 2015. The judgment rendered awarded temporary sole custody of the minor children to I.D.S., subject to supervised visitation every other Saturday or Sunday for four hours at the Orleans Parish Sheriffs Harmony House, and ordered D.M.S. to complete anger management classes and obtain professional counseling through the NCLjAbuse14 Coalition Batterer’s Intervention Program. The trial court further ordered D.M.S. to pay all court costs associated with the Petition, including the trial of the matter, and $10,600.00 in attorney’s fees to counsel for I.D.S.

Prom this judgment, D.M.S. filed the instant appeal.

Issues Presented for Review

In his brief on appeal, D.M.S. set forth ten assignments of error. As several of the delineated issues are interrelated, we have consolidated them as follows:

1) Whether the trial court erred in restricting the evidence and testimony at the hearing to the “four corners” of the Petition, thereby preventing D.M.S. from being able to present a defense, including the defense of PAS;
2) Whether the trial court failed to properly weigh and consider the evidence regarding the credibility of I.D.S. and the minor children and their motivation for bringing the allegations of abuse;
3) Whether the trial court erred in extending the preliminary injunction to 18 months by failing to give him credit for the eight months that the TRO had been in effect;
4) Whether the trial court erred in its award of attorneys’ fees; and
5) Whether the trial court erred in failing to schedule a hearing as soon as possible and in not allowing Albert Si-dhom, LPC, and Dr. Klein to testify.

We note that not all of the issues raised in D.M.S.’s assignments of error are addressed in his original brief and/or his reply brief, and not all arguments presented in his briefs are assigned as error. Moreover, D.M.S. has argued numerous facts or allegations and findings of witnesses that were not presented or | ¶ ¡-^admitted into evidence at the hearing on the Petition for protection nor made part of a proffer, but rather, pertained to prior proceedings and rulings in this case relating to child custody matters.

LAW AND DISCUSSION

Domestic Abuse Assistance Statutes

Protective orders are issued in domestic violence matters pursuant to the Domestic Abuse Assistance ACT, La. R.S. 46:2131 et seq. The purpose of the law is to provide relief to victims of domestic violence by establishing a civil remedy for domestic violence that will afford the victim(s) immediate and easily accessible protection. Alfonso v. Cooper, 2014-0145, p. 13 (La.App. 4 Cir. 7/16/14), 146 So.3d 796, 805. Ship v. Callahan, 47,928, p. 4 (La. App. 2 Cir. 4/10/13), 113 So.3d 454, 456. La. R.S. 46:2135 and 46:2136 require that there be “good cause shown” for the issuance of a protective order. “Good cause shown” is defined in La. R.S. 46:2135 as a showing of “immediate and present danger of abuse.” Additionally, domestic abuse includes, but is not limited to, physical or sexual abuse or any offense against the person, as defined in the Louisiana Criminal Code, except negligent injury and defamation, committed by one family member or household member against another. La. R.S. 46:2132(3). The court may grant a protective order to bring about a cessation of abuse of a party. La. R.S. 46:2136 A.

This court and others have held that the definition of domestic abuse in La. R.S. 46:2132(3) does not incorporate nonphysical acts. General harassment and family arguments, if they do not rise to the threshold of physical or sexual abuse in violation of the criminal code, or an offense against the person, are not .within the ambit. of the Domestic Abuse Assistance Act. Harper v. Harper, 537 So.2d 282 (La.App. 4th Cir.1988); Lee v. Smith, 08-455, p. 9 (La.App. 5 Cir. 12/16/08), 4 So.3d 100, 106; Rouyea v. Rouyea, 00-2613 (La.App. 1 Cir. 3/28/01), 808 So.2d 558.

Standard of Review

An appellate court reviews domestic protective orders for abuse of discretion. Alfonso, 14-0145, p. 13, 146 So.3d at 805. Moreover, the standard of review applicable to fact findings of the trial court has been clearly enunciated by our Supreme Court in Rabalais v. Nash, 06-0999, p. 4 (La.3/9/07), 952 So.2d 653, 657:

It is well-settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of manifest' error or unless it is clearly wrong ... To reverse a fact-finder’s determination, the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and that the record establishes' that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Where the [fact-finder’s] findings are reasonable, in light of the record reviewed in its entirety, the court of appeal may not reverse. Even where the court of appeal is convinced that it would have weighed the evidence differently to reach a different result, reversal of the trial court is improper unless the trial court’s ruling is manifestly erroneous, or clearly wrong.

Discussion of Assignments of Error,

1. Admission of Evidence and Testimony

D.M.S. argues that the trial judge committed reversible error when she limited the evidence and testimony' to the “four corners” of the Petition thereby depriving him of the ability to present any defense, including evidence and testimony related to his defense of PAS. We disagree.

[17A trial judge has discretion in conducting a trial. A judge is required to do so in an orderly, expeditious manner and to control the proceedings so that justice is done. La. C.C.P. art. 1631. The judge’s discretion includes the presentation of witnesses, La. C.C.P. art. 1632, as well as the admissibility of. a witness’s testimony. La. C.G.P. art. 1631. The trial judge 'has great discretion in the manner in which the proceedings are conducted before the court, and it is-only upon a showing of a gross abuse of discretion that appellate courts, have intervened. Cooper v. Lacorte, 99-1726, p. 3 (La.App. 4 Cir. 5/17/00), 775 So.2d 4, 7.

In the case sub judice, prior to the commencement of the hearing, in an attempt to prevent the matter from turning into a full-blown custody trial, the trial judge explicitly elucidated the .narrow- issue before the court; that is, whether D.M.S., more likely than not, physically abused D.S. and M.S. as specifically alleged in the.Petition for protection, and whether he made verbal threats in front of the boys to seriously harm their mother. Based upon the very limited issue for determination, the trial judge restricted both parties from presenting evidence and testimony that went beyond or was deemed unrelated to the specific allegations set forth in the Petition. In this regard, the trial judge limited the testimony and evidence to only events occurring after 2009, as all other happenings had previously been presented and thoroughly considered by the court during the November 2009 custody hearing and, thus, had no bearing on the issue of protection. We find the trial judge acted well within her discretion in so ruling.

|18We likewise find no merit to D.M.S.’s assertion - that the trial judge erred in refusing to allow evidence or testimony to support his defense of PAS. In this regard, D.M.S. sought to qualify Dr. Albert Sidhom as an expert in order to establish his PAS defense. While Dr. Si-dhom was permitted to testify to the extent that his testimony remained within the purview of the Petition for protection, the court refused to qualify him as an expert in “parental and relationship” issues. During voir dire, Mr. Sidhom conceded that he had not interviewed I.D.S., D.S., or M.S., nor had he interviewed the boys’ counselors or the DCFS case worker who had investigated the claims. The trial judge’s refusal to qualify Dr. Sidhom to testify as an expert in this case, based upon our review of the record, was proper and not an abuse of discretion.

The trial judge also refused to permit Dr. Sidhom to testify regarding PAS. PAS has not been recognized as a relevant medical syndrome or diagnosable mental disorder by the medical community, any professional association, or Louisiana courts. It is not listed in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental ,Disorders (“DSM”). Dr. Sidhom conceded that he would not be allowed to diagnose anyone with PAS, especially someone with whom he had never met. Accordingly, the trial judge was well within the ambit of her discretion in ruling that while PAS may be relevant to a |19child custody matter, the purported syndrome has no bearing in a protection case where the sole issue for determination is whether the physical abuse, as alleged .rises to the level that an order of protection is warranted under the circumstances presented. This assignment is without merit.

2. Credibility, of .the Minor Children and their Allegations of Abuse

D.M.S. avers the trial cóurt erred when it excluded and/or failed to consider the evidence and testimony establishing the lack of credibility of I.D.S. and the boys. According to D.M.S./ the testimony and statements made by I.D.S., D.S., and M.S. were “so internally inconsistent or implausible” in light of the other testimony-and evidence admitted, that this court should disregard the trial court’s determination of their credibility. We disagree.

In matters of credibility, an appellate court gives great deference to the findings of the trier of fact. Franz v. First Bank Sys., Inc., 03-0448, p. 9 (La. App. 4 Cir. 2/11/04), 868 So.2d 155, 162 (citing Rosell v. ESCO, 549 So.2d 840 (La. 1989)). The trial court is in the best position to view the demeanor and mannerisms of the witnesses. Id. When a conflict in the testimony exists, reasonable evaluations of credibility and reasonable inferences of fact made by the trial court are not to be disturbed. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882-883 (La.1993). Moreover, where two permissible views of the evidence exist, the fact-finder’s choice cannot be manifestly erroneous or clearly wrong. An appellate court “must be cautious not to re-weigh the evidence or to substitute its own factual findings for those of the trial court.” Eisenhardt v. Snook, 08-1287, p. 6 (La.3/17/09), 8 So.3d 541, 545. The issue to be resolved by a reviewing court is whether the fact-finder’s conclusions were reasonable. Id.

|2ftAt trial, even though the trial judge ruled that the evidence and testimony were to be limited to the “four corners” of the Petition and the parties agreed that they would not refer to events occurring before 2009, D.M.S. repeatedly attempted to elicit testimony and introduce documents involving matters that preceded that timeframe. D.M.S. has attempted to do the same thing in his brief on appeal, which is replete with references to numerous events and prior court proceedings, many of which occurred well before 2009. Having previously determined that the trial judge acted within her discretion and properly excluded evidence and testimony relating to events that took place before 2009, which had no bearing on the filing of the Petition for protection in 2013, we do not consider the pre-2009 events as briefed on appeal.

In an attempt to establish inconsistencies and contradictions in the evidence and testimony relative to post-2009 events, D.M.S. submitted personal medical records and testimony substantiating that he underwent a colonoscopy preparation and co-lonoscopy procedure during the same time-frame the boys’ alleged that he inflicted physical abuse upon them. According to D.M.S., because of his weakened physical state, it would not have even been possible for him to have slapped, pushed, kicked, thrown, or pulled the boys hair as they alleged in the Petition. The trial judge obviously did not give much credence to this particular defense, in light of the surfeit of other evidence and testimony presented. We find that, while we may have weighed the evidence differently or made a different factual determination on this point, it was within the trial judge’s discretion to weight the evidence as she did. See Eisenhardt, 08-1287, p. 6, 8 So.3d at 545.

D.M.S. also argues that photographs and video clips of the boys captured at a family Mardi Gras party that occurred during the weekend immediately |2ifollowing their having complained to the school counselors and DCFS about being physically abused by their father contradict their allegations of abuse occurring in February 2013. Specifically, D.M.S. contends the photographs and videos, which depict the boys smiling and having fun, belie their testimony that they were afraid of their father and/or were subject to physical abuse by him. However, the testimony elicited by Dr. Scott Benton, D.M.S.’s own expert in pediatric forensic medicine, refutes D.M.S.’s position. Dr. Benton testified via deposition as follows:

Q. If I tell you that they were taken at the time that these incidents are alleged before—that Mardi Gras weekend before they went to Children’s Hospital 2011, from a forensic standpoint looking at those photographs, do you see any evidence of physical or child abuse?
A. When we look at what you’re talking about—this is old school. This is way back in the '60s and '70s when we used to put kids together with their alleged abuser and judge by reaction. So simply looking how someone reacts not in an abusive environment with the alleged abuser is not helpful in determining whether there’s truth or validity to the complaint.
I’ve got lots of teaching stuff to show that even a horribly abused child will go to the abuser in certain context. So it’s not helpful. It’s something to be considered, but it doesn’t make a statement other than what you see for that particular part [sic] in time, they’re happy and functioning.

D.M.S. also refers to the findings, or the lack thereof, in the records obtained from Children’s Hospital, evidencing an absence of objective injuries or physical markings noted on examination of the boys, which D.M.S. submits contradicts the boys’ claims that he was inflicting physical abuse upon them. The testimony of Dr. Benton, when taken as a whole, again refutes D.M.S.’s position.

Q. Were any of these injuries specific for child abuse?
A. No, sir.
Q. Did any of these—did the injuries rise to the level of abuse ... ?
122A. It depends on whether we can interpret the injuries in light of the history. So that’s the difficult part. I can’t answer that. If the history is true about certain things that caused the injuries, then anything that targets the head causing injury from a purposeful neglect or an intentional act I would say does rise to the level of child abuse.
Q. But you don’t see that in these records here?
A. The trouble is that we have injuries that don’t yell [sic] what happened. So that means you have to depend on that [sic] the child says. I’m not in the business of saying if the child tells the truth or not. And certainly we’re going over various things that to [sic] tend challenge [sic] perhaps whether his credibility is there. But I can’t say whether his statement is credible or not. If, after all of this analysis and other’s investigation the tryer [sic] of fact thinks that he’s telling the truth then I do think you’ve met a level that is child abuse.
Dr. Benton testified further:
Q. [F]rom what you know in this case with photographs that have been taken periodically by the mother that had been presented to people at. Children’s Hospital, the clinic that you helped develop, wouldn’t you expect that if this type of abuse was going on that there would be more photographs that would be more explicit than the nonspecific photographs that we’ve described earlier?
A. Not necessarily. I mean, there’s a lot of logical extensions on this. So first off, perhaps some of these physical findings are a manifestation of abuse that were nonspecific, doesn’t mean that it’s not [abuse]. Second, I agree that it would seem like there ought to be some more definitive thing going on. But another logical extension, I’ve seen evil parents that will specifically do abusive things that hides the marks in places where it difficult [sic] to have pattern recognition, such as a scalp or other areas of the body accidents leaving us holding the bag as to what the interpretation is.
Again, I think the safest thing is you can’t draw any conclusions from these physical findings. You can’t draw con-elusions from the absence of physical findings either. In fact, a book—chapter I recently wrote the famous phrase is the absence of evidence is not evidence, of absence.

IgaThe trial judge—the trier of fact in this case—listened to the .testimony of the witnesses and analyzed the evidence and concluded therefrom. that D.S. and M.S. were telling the truth about having been physically abused by their father. After our thorough review of the record on appeal in its entirety, we cannot say that the trial judge erred, We do not find that the documents or objective evidence submitted at the protection hearing contradicted the witnesses’ testimony, or that their testimony was so internally consistent or implausible on its face, so as to conclude that the trial court’s decision to credit LD.S.’s testimony of the events that actually precipitated the filing of the Petition for protection, as well as' to credit the testimony given by D.S. and M.S. during the Watermeier hearing, was manifestly erroneous or clearly wrong. We therefore defer to the trial court’s credibility conclusions. Similarly, from this record and based upon the credibility of the witnesses, we cannot say that the trial judge abused her discretion in finding that D.M.S. committed physical abuse against each of his minor children or an offense against the person of I.D.S. Under the circumstances, we find that the trial judge’s issuance of a protective order in this case was proper.

3. Extension of the Preliminary Injunction to 18 Months

In his next assignment, D.M.S. argues that it was. error for the trial court to “extend”, the preliminary injunction for an additional 18 months, thereby 124“extending the protective order for a total of 26 months,” since, at the time of its issuance on 3 October 2013, the TRO had already been in effect for approximately eight months. According to D.M.S., the trial court erroneously exceeded the maximum statutory time limit set forth in La. R.S. 46:2136 F(l), which provides, that a “final protective order or approved consent agreement shall, be. for a fixed period of time, not to exceed eighteen months.” ,,In effect, D.M.S. avers the trial court erred in failing to give him credit for the approximate eight months that the TRO was in effect.

In support of his position, D.M.S. argues that even though this is a civil matter, we should apply criminal law concepts “because the extension of the preliminary injunction to eighteen (18) months is in effect a sentence as defined by [the] Code of Criminal Procedure.” Specifically, D.M.S. urges this court to apply La.C.Cr.P. art. 880 A, which allows a criminal defendant to receive a credit towards service of a sentence for the time spent in actual custody prior to the imposition of the sentence. In this case, the TRO was signed by- the trial court on 8 February 2013, the date I.D.S. filed the Petition seeking protection, pursuant to the statutory authority granted in La. R.S. 46:2135, which pertains solely to temporary restraining orders. Then, at the close of the hearing on the Petition for protection on 3 October 2013,. after considering the testimony and evidence presented, the trial judge issued a separate protective order pursuant to the provisions found in La. R.S. 46:2136, which governs protective orders. In this civil matter, the time limitations set forth in La. R.S. 46:2136 do not provide for a “credit,” to which D.M.S. contends he is entitled, , for the time the TRO was in ^effect. Had the legislature intended for a credit for the duration of the TRO to be given, it would have provided for one and, absent such a provision, we decline to create or impose a credit here. This assignment is without merit.

4. Court Costs and Attorney’s Fees

D.M.S. next argues the trial court erred in awarding $10,600 in attorneys’ fees to counsel for I.D.S. because $4,500 “was incurred when defense counsel filed a lukewarm response to [his] successful Writ Application” and, the bill submitted does not specify the number of hours or detail the work counsel purportedly performed. D.M.S. submits the trial court erroneously awarded attorneys’ fees without requiring counsel for I.D.S. to prove “that there [sic] fees were actually incurred in the defense of his client.”

The Domestic Abuse Assistance Act, La. R.S. 46:2136.1 A, provides:

All court costs, attorney fees, costs of enforcement and modifications proceedings, costs of appeals, evaluation fees, and expert witness fees incurred in maintaining and defending any proceeding concerning domestic abuse assistance, in accordance with the provisions of this Part shall be paid by the perpetrator of the domestic violence, including all costs of medical and psychological care for the abused adult, or for any of the children, necessitated by the domestic violence. [Emphasis supplied.]

The statute could not be more clear—all attorneys’ fees incurred, including the costs of appeals, in maintaining and defending a proceeding concerning domestic abuse assistance are to be paid by the perpetrator; in this case, that is D.M.S. Moreover, counsel for I.D.S. submitted a detailed log delineating the fees he incurred in' maintaining and defending the Petition for protection and was questioned under oath by the trial judge regarding his fees. The trial court’s award of attorneys’ fees should not be modified absent an abuse of discretion. Schumacher Law Corp., Ltd. v. Taylor, 95-654 (La.App. 4 Cir. 11/30/95), 667 So.2d 1121, 1124. We find no abuse of the trial court’s discretion regarding its award of attorneys’ fees in this case. This assignment lacks merit.

5. Failure to Timely Schedule a Hearing and to Allow Albert Sidhom, LPC, and Dr. Klein to Testify

In his last designated assignment of error, D.M.S. avers that trial court violated this court’s order of 30 July 2013 by not scheduling a hearing as soon as possible and by not allowing his witnesses, A1 Si-dhom and Dr. Klein, to testify at trial. D.M.S.’s brief on appeal, however, does not address this assignment. According to Rule 2-12.4, Uniform Rules, Cts. of App., assignments of error not addressed in the appellate brief may be deemed abandoned and not considered. Accordingly, because D.M.S. did not address this assignment in his brief, we decline to address it.

CONCLUSION

After a thorough review of the record on appeal, including the testimony of the minor children given to the trial judge during the Watemieier hearing, the testimony of the other witnesses, the evidence admitted at trial, and the evidence that was proffered, we find the trial court acted within its authority under La. R.S. 46:2135 A and 46:2136 A(l) and did not abuse its discretion in determining that sufficient proof of an immediate need for protection existed warranting issuance of |27a protective order against D.M.S. and in favor of I.D.S. and her minor children. Accordingly, the judgment granting the protective order is affirmed. Pursuant to La. R.S. 46:2136.1, all appellate costs are to be paid by D.M.S.

AFFIRMED.

McKAY, G.J., concurs.

      . Because of the sensitive nature presented by the facts of this case and in order to protect the identity of the minors involved, we have chosen to use the initials of the parties and some of the witnesses in lieu of their names; although their names appear in the sealed record. See La. R.S. 46:1844 W. See also, Rules 5-1 and 5-2 of the Uniform Rules, Cts. of App; I.F. v. Administrators of the Tulane Educational Fund, 13-696, p. 3 n. 1 (La.App. 4 Cir. 12/23/13); 131 So.3d 491.

      . D.M.S. filed an.expedited petition for appeal of the 3 October 2013 decision on 7 November 2013. I.D.S. filed a motion.to dismiss D.M.S.’s appeal as untimely pursuant to La. C.C.P, art. 3612, which mandates that appeals of a preliminary injunction are to be filed with 15 days from the date of judgment. Upon review, this court denied I,D.S.'s motion having determined that D.M.S.'s appeal of the trial court’s preliminary injunction was timely filed within 15 days from the denial Of his motion for new trial, This considered ruling is now the law of this case.

      . On 6 February 2013, when D.S;-presented to his school counselors that he and M.S. "were being abused, they were in the physical custody of their father.

      . The minor children are currently ages -14 and 12,-respectively. ..

      . Because custody of the minor children had previously been determined at a custody trial in 2009, during which the presiding judge listened to lengthy testimony and reviewed voluminous exhibits regarding the relationships between the parties and the boys and made a custody ruling based thereon, the trial court instructed counsel at the beginning of the instant hearing that the testimony would be restricted to incidents occurring from 2009 to the present; any testimony relating to events occurring prior to 2009 was subject to an irrelevancy ruling.

      . According to I.D.S., the physical violence she endured during the marriage included being thrown by D.M.S. onto the bed, being slapped and scratched on the face, being hit in the head, and D.M.S. putting his knee into her stopiach.

      . These same photographs were presented to Dr. Mehta, who used them during her interviews with D.S. and M.S. The boys identified the photographs for her and the different circumstances resulting in the injuries captured on camera.

      . The deposition of Therese Reese LaSavia, also a counselor at St. Christopher’s School, was jointly admitted into evidence at trial. Ms. LaSavia’s testimony mirrored that of Ms. Meche and Ms. Nicholson.

      . D.M.S. and L.S. also have two sons together, ages four and five at the time of trial.

      . PAS refers to a purported disorder (although it has not been recognized by the medical community as such), in which a child, on an ongoing basis, belittles and insults one parent without justification, due to a combination of factors, including indoctrination by the alienating parent and the child’s own attempts to denigrate the target parent. PAS is distinguished from the concept of parental alienation (estrangement of a child from a parent), in that PAS is linked to hatred and vilification of a targeted parent by the child, whereas parental alienation is linked with behaviors or symptoms of the parents.

      . The medical records he reviewed included emergency room records and Audrey Hep'burn Care Center records relating to M.S. dating back to 201.0 and then all subsequent evaluations at Children’s Hospital regarding both M.S. and D.S. Additionally, he reviewed affidavits of L.S., Mi.S., the records from DCFS relative to the February 2013 incidents, and a transcript from a 19 March 2013 hearing in this case.

      . The record on appeal indicates that D.M.S. failed to comply with the order of supervised visitation and has not seen either D.S. or M.S. since February 2013, and that he also failed to seek professional counseling as ordered.

      . Our review of the record on appeal dem- ' ónstrates that the trial judge provided D.M.S, wide latitude in the presentation of his evidence and the questioning of his witnesses. We note that the trial was initially slated for one full day but, in an attempt to accommodate D.M.S. and provide him with the opportunity to present all relevant, admissible evi- . dence, the hearing spilled over into a second day.

      . Despite the trial court’s ruling, D.M.S.’s brief on appeal, not unlike the evidence and testimony he attempted to admit into evidence at the hearing, is replete with references to and detailed descriptions of events occurring well before and up to 2009, all matters which have previously been reviewed and considered by the court in earlier proceedings and irrelevant to the issue of whether the evidence established that in February 2013, D.M.S. was more likely than not slapping, kicking, throwing, or pulling the hair of D.S. and M.S. as alleged. As noted previously, this, court gives no weight to.any of the facts and evidence referred to in the briefs submitted by D.M.S. that were hot admitted at trial or the subject of a proffer, Sée La. C.C.P. art. 1636'

      . D.M.S.’s reliance on Palazzolo v. Mire, 08-75 (La.App. 4 Cir. 1/7/09), 10 So.3d 748, as authority for his argument that the trial court should have admitted evidence and testimony regarding PAS, is misplaced. Patazzolo involved a child custody dispute and not a petition for protection. We agree with the trial court that where the issue before it involves a determination of whether to issue a protective order based on allegations of physical .abuse, PAS is irrelevant,.

      . On examination by the trial judge during the Watermeier hearing, both minor children separately gave detailed accounts of physical abuse upon their person at the hands of their father occurring in February 2013 and on other occasions. The photographic evidence depicting scratches and bruising on each of the boy’s person corroborated the boys’' testimony given in the Watermeier hearing that the photographs showed scratches and bruising they sustained at the hand of D.M.S. while ' they were in his care and custody.

      . During the Watermeier hearing, the boys relayed incidents of verbal threats made by their father to them regarding his desire to inflict severe physical harm upon their mother and their knowledge that their father had the means {i.e„ D.M.S. showed them a gun : that he keeps in his home) with which to carry out those threats. The boys each expressed their fear that their father would kill their mother. Additionally, I,D.S. testified that she was subjected to physical abuse at the hands of D.M.S. during their marriage and that she was afraid that he would possibly harm her.

      . We note that our review of the transcript of the two-day hearing on the Petition for protection reveals that, while the trial court declined, to qualify Mr. Sidhom as an expert to render an opinion regarding PAS, Ms. Si-dhom was allowed to testify as long as his testimony was relevant to the matters contained in the four comers of the Petition. After submission of his brief on appeal, D.M.S. filed with this court a motion and order to amend and/or supplement the record on appeal to include the proffered deposition testimony of Mr. Sidhom. This motion, however, cannot be considered for it fails to comply in one respect with La. C.C.P. art. 1313 B, which requires a certificate of service. We also note that the record on appeal indicates that D.M.S. never called Dr. Klein to testify as a witness.