author: Judge Daniel L. Dysart

text:
    Steven Frederick WASHINGTON v. GALLO MECHANICAL CONTRACTORS, LLC and Creative Risk Solutions
    NO. 2016-CA-1251
    Court of Appeal of Louisiana, Fourth Circuit.
    MAY 17, 2017

      J. Douglas Sunseri, NICAUD & SUN-SERI, L.L.C., 3000 18th Street, Metairie, LA 70002, COUNSEL FOR PLAINTIFF/APPELLANT
    Donna Bramlett Wood, Lynda A. Tafa-ro, MeCRANIE, SISTRUNK ANZELMO, HARDY, McDANIEL & WELCH, LLC, 909 Poydras Street, Suite 1000, New Orleans, LA 70112, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Daniel L. Dysart)
   Judge Daniel L. Dysart

|]In this worker’s compensation matter, appellant, Steven Frederick Washington, appeals the workers’ compensation judgment granting summary judgment in favor of Mr. Washington’s employer, Gallo Mechanical Contractors, L.L.b. (“Gallo”). For the reasons that follow, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

Mr. Washington initiated this matter by filing a Disputed Claim for Compensation (“Claim”) with the Office of Workers’ Compensation (“OWC”) on- January 8, 2016. In his Claim, Mr. Washington alleged that,- on December 7, 2016, while driving a shuttle for Gallo for a work-related project, he was assaulted by an employee of Savard Labor and Marine Personnel, which resulted in injuries to Mr, Washington’s head, neck, back and shoulders. In response, Gallo and its insurer, Creative Risk Solutions (“CRS”)(hereafter, collectively referred to as “defendants”) filed an answer, admitting that no wage benefits or costs for medical treatment had been paid. As affirmative defenses, Gallo and CRS alleged:

According to defendant’s [sic] investigation, an employee of Gallo Mechanical, Steven Washington, was operating a shuttle at the time of this incident. He serves as the initial aggressor as he called the other person involved a “homosexual,” and then stating “do you know what I could do to -you that I learned in the pen?” Thus, Mr. Washington antagonized Mr. Rogers causing this altercation. Furthermore, this fight was not work-related. Because this incident involved fighting that is considered an intentional act and excluded by the Louisiana Workers’ Compensation Act, . there , exists no coverage under the Act for Mr. Washington’s aggressive behavior, the .altercation, and the resulting injury.

On February 11, 2016, Defendants filed a Motion for Summary Judgment (“Motion”) seeking á dismissal of the Claim on the basis that the injuries claimed by Mr. Washington did not occur “in the course of’ and did not “ar[i]se out of’ his employment. A hearing was scheduled for March 10, 2016 and Mr. Washington filed his opposition memorandum on March 3, 2016 (the certificate of service reflects that it was served on opposing counsel by mailing it on March 1, 2016). Defendants moved to strike Mr. Washington’s opposition memorandum as untimely and the attachment to it (excerpts of a February 11, 2016 hearing on Mr. Washington’s Expedited Motion for Medical Authorization) because it is not considered to be competent evidence under La. C.C.P. art. 966.

At the March 10, 2016 hearing on defendants’ Motion, counsel for Mr. Washington sought to file into the record an affidavit from Mr. Washington. After hearing argument of counsel, the OWC judge granted defendants’ motion to strike and their Motion. A written judgment was then issued on March 18, 2016 in favor of defendants, striking Mr. Washington’s opposition memorandum (and attachments) as untimely, and dismissing Mr. Washington’s claims against defendants. Mr. Washington then moved for a new trial which was denied after a 1,shearing and by judgment dated June 29, 2016. Mr. Washington timely filed this devolutive appeal.

DISCUSSION

Standard of review; Motions for Summary Judgment

This Court recently reiterated.the well-settled rule that a “summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the .trial court’s1 determination of whether summary judgment is appropriate; i.e. whether there is any genuine issue of material fact, arid whether the movant is entitled to judgment as a matter of law.” Vise v. Olivier House Prop. Mgmt., LLC, 16-0741 (La.App. 4 Cir. 4/12/17), 216 So.3d. 157, 159, 2017 WL 1365316 at *2, quoting Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83.

Louisiana Code of Civil Procedure article 966 A(3) indicates that “a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” This is in keeping with the purpose of the summary judgment procedure, which is “to secure the just,' speedy, and inexpensive determination of every action.... ” La. C.C.P. art. 966 A(2). This “procedure is favored and shall be construed to accomplish these ends.” Id.

Under La. C.C.P. art. 966(D)(1), “if the mover will not bear the burden, of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require him to negate all essential elements of the adverse party’s -claim, action, or defense, but rather to point 'out to the court that there is an absence of factual support for one or' moré | ¿elements essential to the adverse party’s claim, action, or defense.” Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 D(1).

In the instant matter, defendants do not carry the burden of proof for trial; accordingly, they need only point out an absence of factual support for one or more elements of Mr. Washington’s claim. Defendants contend that Mr. Washington cannot meet his burden in proving that the incident resulting in his alleged injuries arose out of his employment, an essential element of any workers’ compensation claim under La. R.S. 23:1031. After our de novo review of the record, we agree.

At the outset, we address Mr. Washington’s argument that the trial court erred in refusing to allow the transcript of the February 11, 2016 evidentiary hearing in opposition to defendants’ Motion and in failing to take judicial notice of Mr. Washington’s sworn testimony from that hearing. We note that, in his reasons for judgment issued on July 25, 2016, the OWC judge found, inter alia, that Mr. Washington’s opposition memorandum, served on March 1, 2016 [and filed in the record on March 3, 2016], was untimely. The WC judge also found that Mr. Washington’s affidavit, sought to be introduced at the time of the hearing was untimely as well.

| .^Louisiana Code of Civil Procedure article 966 B(2) provides that “[ajny opposition to the motion [for summary judgment] and all documents in support of the opposition shall be filed and served in accordance with Article 1313 not less than fifteen days prior to the hearing on the motion.” There can be no dispute in this matter that Mr. Washington’s opposition memorandum, served on March 1, 2016 and filed into the record on March 3, 2016, was not timely.

Mr. Washington does not argue that the trial court erred in striking the opposition memorandum. Rather, Mr. Washington argues that the trial court’s error was in failing to consider or take judicial notice of the testimony Mr. Washington gave at the February 11, 2016 hearing, as that “sworn testimony was part of the court record.” He contends that, even if the opposition memorandum and attachment were properly stricken as untimely, “compliance with the deadlines pursuant to... Art. 966(B)(2) was not necessary since it was already part of the court record.” He further maintains that the OWC judge was “compelled to consider [Mr. Washington’s] testimony in connection with” defendants’ Motion. We disagree.

Louisiana Code of Civil Procedure Article 966 D(2) provides, in pertinent part:

The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no ^objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider.

(Emphasis added).

Importantly, the official comments explain the revisions to subpart D (2):

Subparagraph (D)(2) maintains most of the recent legislative changes to this Article, which change the law. Subpara-graph (D)(2) makes clear that the court can consider only those documents filed in support of or in opposition to the motion. This rule differs from Federal Rules of Civil Procedure, Rule 56(c)(3), which allows the court to consider other materials in the record.

Thus, unlike its federal counterpart, Article 966 D(2) does not allow the trial court to consider the record as a whole in deciding a motion for summary judgment. To the contrary, the comments specifically indicate that the court may only consider those documents filed either in support of or in opposition to a motion for summary judgment. The trial court, therefore, did not err in not considering the transcript of the February 11, 2016 hearing, even though it may technically be “in the record.” Because we find no error in the trial court’s failure to consider the transcript excerpts in deciding the Motion, we need not reach the issue of whether the transcript excerpts are competent summary judgment evidence under La. C.C.P. art. 966 A(4).

Turning to the merits of the Motion, we note that, in its reasons for judgment, the OWC judge concluded that “the uncontroverted affidavits attached to defendants’ motion for summary judgment indicated that the ‘altercation did not arise out of [Mr. Washington’s] employment because it was personal in nature.’” |7Mr. Washington maintains that the trial court erred in finding that the altercation resulting in his injuries did not arise out of his employment. He asserts that he was “on the clock, being compensated for his work by [Gallo], was seated in the driver’s seat of the shuttle and was struck from behind by a passenger of the shuttle.” Thus, he maintains that it “is indisputable” that “the injury occurred while [he] was in the course and scope of his employment.” In support of these factual allegations, however, Mr. Washington relies on and cites the February 11, 2016 hearing transcript excerpts. He further cites those excerpts to establish that he had been “involved in past employment related disputes with the initial physical aggressor” and that he had “previously reported Mr. Rogers to his supervisors for work-related infractions.”

As discussed, the February 11, 2016 transcript excerpts were properly excluded from consideration of the Motion and as such, these factual allegations by Mr. Washington cannot be considered by this Court.

Defendants do not dispute that Mr. Washington was seated in the driver’s seat of the shuttle when the incident occurred. Nor do defendants dispute that Mr. Washington and Mr. Rogers were employed by Gallo at the time of the incident. The question turns on whether the altercation between Mr. Washington and Mr. Rogers falls within the parameters of La. R.S. 23:1031, and more particularly, “by accident arising out of and in the course of [Mr. Washington’s] employment.”

Our jurisprudence indicates that “[a]n accident occurs ‘in the course of employment’ when the employee sustains an injury while actively engaged in the | ^performance of his duties during working hours, either on the employer’s premises or at other places where employment activities take the employee.” Sislo v. New Orleans Ctr. for Creative Arts, 16-0178, p. 6 (La.App. 4 Cir. 8/17/16), 198 So.3d 1202, 1206, writ denied, 16-1781 (La. 11/7/16), 209 So.3d 100, citing Mundy v. Dep’t of Health & Human Res., 593 So.2d 346, 349 (La. 1992). The Sislo Court explained:

In determining whether an accident “arises out of employment,” this Court must'focus on the “character or source of the risk which gives rise to the injury and on the relationship of the risk to the nature of the employment.” “An accident arises out of employment if the risk from which the injury resulted was greater for the employee than for a person not. engaged in the employment.” The “principal objective” of the arising out of employment requirement “is to separate accidents attributable to employment risks, which form the basis of the employer’s obligation under the compensation system, from accidents attributable to personal risks, for which the employer should normally not be responsible.”

Id., pp. 6-7, 198 So.3d at 1207, quoting Mundy, 593 So.2d at 349. In Mundy, the Supreme Court considered whether a nurse, on her way to work on the eleventh floor of Charity Hospital who was stabbed in the elevator by an unknown assailant, was injured in the course of her employment and whether the injury arose out of her employment. The Court first found that the plaintiff was not “in the course of’ her employment because she had not begun her employment duties at that time and she had not reached her work station or “the place where she would be under the supervision and control of her employer.” Id., 593 So.2d at 350.

As concerns whether the plaintiffs injury arose out of her employment, the Court found:

|⅜...[T]he “arising out of employment” inquiry reveals that the risk which gave rise to the injury was not greater for plaintiff than for a person not so employed. Moreover, while the conditions of the employment arguably caused plaintiff to be at the place of the attack at the time the attack occurred, there were other alternative routes, for her to reach her work station. Inasmuch as the risk which gave rise to the injury was a neutral-risk that was not related either to plaintiffs employment or to her personal life, the “arising .out of employment” showing by the employer, while not particularly strong, could be considered sufficient if there was a strong “course of employment” showing.

Id.

In our view, and as is supported by numerous decisions on the issue, for an altercation to. be considered having arisen out of employment, there must be a showing that it was related to the employment itself, and not related to matters unconnected and extraneous to the employment. Indeed; the workers’ compensation laws clearly exclude such altercations' not related -to the employment. La. R.S. 23:1031 E specifically states that “[a]n injury by accident should not be considered as having arisen out of the employment and thereby not covered by the provisions of this Chapter if the employer can establish that the injury arose out of a dispute with another person or employee over matters unrelated to the injured employee’s employment.”

Our jurisprudence also contemplates that worker’s compensation benefits may be awarded for injuries resulting from an altercation connected to employment. In Jackson v. Quikrete Prods., Inc., 01-1181 (La.App. 4 Cir. 4/17/02), 816 So.2d 338, for example, a fistfight took place between the plaintiff and a co-worker who worked for a company which .produced cement, dirt and stone products. While there was a conflicting testimony as to what led to the altercation (the two parties involved had a history of personality conflicts), the I ^workers’ compensation judge concluded that “the altercation originated from [plaintiffs] instructions to [a] crew.” Id., p. 7, 816 So.2d at 344. This Court affirmed this finding, concluding that “the [plaintiff] carried his burden of proof by a preponderance of the evidence that the altercation and injuries were caused or related to the employment and occurred during the course and scope of [the plaintiffs] employment.”, Id.

Similarly, in Stacy v. Minit Oil Change, 31,985 (La.App. 2 Cir. 6/16/99), 742 So.2d 929, an altercation between to workers at a car wash and oil change service station resulted in one employee striking the other with a pipe, causing a skull fracture. The injured employee sought workers’ compensation benefits. Because the court found that the altercation arose out of, a dispute over which of the two had authority over the other—that is, “one was simply accusing [the other] of trying to be the boss”—the “record supported] the WCJ’s finding that [the]injury did not arise out of a dispute with another employee over matters unrelated to ... [the] employment.” Id., 742 So.2d at 934.

The same result was reached in LaPrarie v. Pony Exp. Courier, 628 So.2d 192, 194 (La. App. 2 Cir. 1993), a case involving the injury of one employee at the hands of another and resulting .from a dispute between the two, stemming, in part, from the plaintiffs having taken over some of his co-worker’s delivery routes, although the co-worker continued to be paid for those routes. After the plaintiff discussed the issue with the payroll department, the plaintiff began to be paid for those routes and the co-worker’s pay was reduced. Finding that “[t]he evidence h presented indicate[d] that the altercation ... was at least partially related to and motivated by t[he co-workers’] employment ...[,] the hearing officer was [not] clearly wrong in concluding that the assault arose out of matters related to employment and awarding worker’s compensation.” Id. at pp. 194-95.

In this case, the only evidence properly considered by the OWC judge were the affidavits attached to defendants’ Motion. The affidavit of Mr. Rogers indicates the following: (1) on the morning in question, after boarding the shuttle bus and while -it was still in the parking lot, Mr, Washington “began talking about ‘gay’ stuff and implied that [he, Mr. Rogers] was gay;” (2) Mr. Washington talked about his experience when he was in prison and about how “the men would rape big guys like [him](Rogers) all of the time arid used graphic curse words to describe the male rape;” (3) Mr. Rogers advised Mr. Washington to “stop talking like that;” and (4) when Mr. Washington “continued to mouth off,” [he] pushed [Mr.] Washington on the backside of his head as if to say ‘be quiet.’” Mr. Rogers also attested to the fact that Mr. “Washington’s crude cursing remarks were a personal attack” on him.

. Mr. Rogers’ account of the .incident is corroborated by the affidavit of Michael Okray, another Gallo employee. Mr. Okray indicated that Mr. Washington “was talking about lewd homosexual acts in a very offensive, descriptive manner” and that, after Mr. Rogers said “that he did not want to hear that talk,” Mr. Washington “continued to mouth off with lewd descriptive comments” and Mr. Rogers “slapped [Mr.] Washington on the side of his head with an open hand.”

Given that the nature of the verbal confrontation which occurred immediately before the physical contact between Mr. Rogers and Mr. Washington, |12we find that the OWC judge correctly concluded that the altercation did not arise out of Mr. Washington’s employment and was personal in nature. On that basis, the trial court properly granted summary judgment in favor of defendants. We find, as did the trial court, that the altercation and injuries were not caused by or related to Mr. Washington’s employment. We therefore affirm the OWC court judgment.

While Mr. Washington does not assign as error the OWC judge’s denial of his motion for new trial, in the body of his brief he discusses the issue and argues that he is “entitled to a new trial... [because] this Honorable Court’s prior ruling was contrary to the law and evidence.” Mr. Washington then makes the same arguments as before; namely, that the trial court erred in refusing to consider both his affidavit, submitted at the hearing on defendants’ Motion and the transcript excerpts attached to his [untimely] opposition memorandum, which, he argues, demonstrate that genuine issues of material fact remain. He next argues, again, that his injuries were sustained in the course and scope of his employment with Gallo,

This Court recently reiterated the grounds upon which a new trial can be granted:

Under the Code of Civil Procedure, the grounds on which a motion for new trial may be granted are divided into two categories—peremptory and discretionary. The peremptory grounds are set forth in La. C.C.P. art.1972, which provides that the granting of a new trial is mandatory in the following three instances: (1) when the verdict or judgment appears clearly contrary to the law 11Hand evidence; (2) when the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial; and (3) when the jury was bribed or has behaved improperly so that impartial justice has not been done. The discretionary grounds are set forth in La. C.C.P. art.1973, which provides that the trial court has discretionary authority to grant a new trial “in any case if there is good ground therefore, except as otherwise provided by law.”

Autin v. Voronkova, 15-0407, pp. 3-4 (La. App. 4 Cir. 10/21/15), 177 So.3d 1067, 1069-70. In Autin, we noted that “[a]s a general rule, the trial court may summarily deny a motion for new trial if the motion simply reiterates issues thoroughly considered at trial.” Id., p. 7, 177 So.3d at 1070. (Citation omitted).

While here, the trial court held a hearing on Mr. Washington’s motion for new trial, the same principles apply. Mr. Washington did not present any new issues that were not thoroughly considered at the hearing on defendants’ Motion. The trial court, therefore, did not err in denying his motion for new trial. See, Bilbe v. Foster, 15-0302, p. 9 (La.App. 4 Cir. 9/9/15), 176 So.3d 542, 548, writ denied, 2015-1849 (La. 11/16/15), 184 So.3d 29 (“a ruling on a motion for new trial [is reviewed] under an abuse of discretion standard”).

CONCLUSION

Based on the foregoing reasons, we affirm the judgment pf the OWC judge.

AFFIRMED

      . The employee .who allegedly assaulted Mr. Washington, Lamar Rogers, appears to have been a co-worker of Mr, Washington and also an employee of Gallo, as evidenced by Mr, Rogers’ affidavit. Savard Labor and Marine Personnel does not appear to be a party to this lawsuit; while it was identified in the Claim as the employer of the person who allegedly assaulted Mr, Washington, the record is otherwise silent as to its involvement in this action,

      . In his appellate brief, Mr, Washington admits that the OWC court denied his motion to authorize medical treatment.

      . That statute provides, in pértinent part, that, when "an employee not otherwise eliminated from the benefits of this Chapter receives personal injury by accident arising out of and in the course of his employment, his employer shall pay compensation in the amounts, ón the conditions, and to the person or persons hereinafter designated.” La. R.S. 1031 A. (Emphasis added),

      . With respect to excerpts of the transcript attached to the opposition memorandum, the OWC judge noted that a transcript from a hearing is not included as a document which may be considered in opposing a motion for summary judgment (which are limited to “pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions” under La. C.C.P. art. 966 A(4)). On that basis, too, the trial court refused to consider the transcript excerpts.

      . Had Mr. Washington made such an argument, it would not have had merit. The Louisiana Supreme Court has made clear that [t]he time limitation established by La. C.C.P. art. 966(B) for the serving of affidavits in opposition to a motion for summary judgment is mandatory; affidavits not timely filed can be ruled inadmissible and properly excluded by the trial court.” Buggage v. Volks Constructors, 06-0175 (La. 5/5/06), 928 So.2d 536, 536. As the Buggage Court found: “[t]he court of appeal erred as a matter of law in considering a late-filed opposition to the motion for summary judgment, which consisted of a memorandum and a purported affidavit of plaintiff, in its de novo review of the merits of the summary judgment motion. The opposition had been disallowed by the trial court, which acted within its discretion in excluding an opposition filed a few minutes before the scheduled hearing on the motion.”

      . The record is unclear as to whether Mr. Washington or Mr, Rogers were receiving pay from Gallo for the time period involved. We note that Mr. Rogers’ affidavit indicates that while he entered the shuttle bus at 6:10 a.m. for the purpose of being transported to the jobsite, he had "not yet clocked in for work but would do when he reached the jobsite at 6:30.” The question of whether Mr. Rogers (or Mr. Washington, for that matter) is considered to have been working at the time of the incident is not dispositive of the issues in this matter.

      . The plaintiff testified that, after he gave the crew instructions, the co-worker advised them that they didn’t have to do what the plaintiff requested. The plaintiff bpgan wallc-mg to report this incident to his supervisor when the co-worker approached .him and a verbal altercation ensued, followed by a physical altercation.

      . Again, we make no finding as to whether the altercation occurred during the "course and scope” of the employment; see footnote 6, supra. Even if we were to find that the altercation actually took place while Mr. Washington and Mr. Rogers were "on the clock,” the second factor ("arising out of... his employment, under La. R.S. 1031 (A) for which workers’ compensation may be awarded, cannot be met.


source: Caselaw Access Project

author: THERIOT, J.

license: Public Domain

text:
    In the MATTER OF the SUCCESSION OF Evelyn Heloise Andrus CATHA
    NO. 2016 CA 0654
    Court of Appeal of Louisiana, First Circuit.
    MAY 16, 2017

      Mark D. Plaisance, Thibodaux, Louisiana, Charles Reid, Amite, Louisiana, Counsel for Appellants John King and Minnie Catha King
    Mary E. Heck Barrios, Denham Springs, Louisiana, Counsel for Appellee Sheryl Andrus Carnegie
    BEFORE: HIGGINBOTHAM, THERIOT, AND CHUTZ, JJ.
   THERIOT, J.

| ¡¿The appellants, John King and Minnie Catha King (“the Kings”), appeal the judgment of the Twenty-First Judicial District Court in favor of the appellee, Sheryl An-drus Carnegie, administratrix of the succession of Evelyn Heloise Andrus Catha. In addition, the appellee has filed a motion in this Court to convert the appeal from suspensive to devolutive. For the following reasons, we grant the appellee’s motion and affirm the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

The decedent, Evelyn Heloise Andrus Catha, executed a notarial last will and testament on November 29, 2014. In that will, the Kings were designated as co-executors of the estate. The decedent died on November 21,2015.

On November 23, 2015, Ms. Carnegie filed a petition for appointment of adminis-tratrix and to appoint an attorney to search for any existing wills executed by the decedent. It was Ms. Carnegie’s belief, according to the petition, that the decedent died intestate and requested that she be appointed administratrix over the estate. The district court appointed her adminis-tratrix on this date.

On December 8, 2015, Húey Oscar Lowery, III filed a petition to be appointed co-administrator of the decedent’s estate, claiming that the decedent did have a valid handwritten olographic will and died testate. Ms. Carnegie opposed1 his petition. Ms. 'Carnegie believed that the purported handwritten olographic will was invalid in form as prescribed by La. C.C. Rart. 1575. Mr. Lowery moved to revoke Ms. Carnegie’s status as administratrix, claiming that as a legatee of the decedent, he was more familiar with the decedent’s wishes than Ms. Carnegie, who was not a legatee.

On December 21, 2015, the Kangs filed a petition to probate the decedent’s notarial will, attaching the will to the petition, and requesting that they be appointed co-exee-utors. The district court ordered that the Kings be appointed co-executors. Mr. Lowery subsequently filed his own petition, to probate the decedent’s hand-written olo-.graphic will, requested that he be appointed executor, and attached a copy of the purported olographic will to the petition.

Ms. Carnegie petitioned the district court to annul both the notarial will and the olographic will. As to the notarial will, she claimed that the decedent had revoked it. Ms. Carnegie alleges in her petition that she provided to the Kings’ counsel proof of the decedent’s; revocation of .the notarial will, which the Kings did not present to the district court prior to dbtaining ex parte probate of the notarial will.

As to the olographic will, Ms. Carnegie alleged that it failed to meet the legal requirements of a valid olographic will because it was not signed at the end by the decedent, nor was it entirely written in the decedent’s handwriting, nor was it properly dated. Ms. Carnegie additionally claimed that the olographic will was procured through the fraud, duress, or other undue influence exerted upon the decedent by Mr. Lowery.

Trial was held on January 19, 2016. The district court found the olographic will to be invalid as to form and granted a new trial on the probate of the notarial will. The district court found that the notarial will 14had been validly revoked by the decedent. Lastly, the district court ordered that the succession would proceed intestate and reinstated the previous order appointing Ms. Carnegie as administratrix of the succession. It is from this judgment of the district court that the Kings have sus-pensively appealed.

MOTION TO CONVERT APPEAL

Initially we address the motion before us filed by Ms. Carnegie to convert .the Kings’ suspensive.appeal to .a devolu-tive appeal. A, suspensive appeal suspends or delays the effect or execution of an appealable judgment, and security must be furnished in prder for the judgment to be suspended. La. C.C.P. art. 2123(A). A devolutive appeal does not suspend the effect of an appealable judgment. La. C.C.P. art. 2087(A). A judgment or order of a trial court appointing or removing a legal representative shall be executed provisionally notwithstanding an appeal therefrom. La. C.C.P. art. 2122. Therefore, appeals are authorized from judgments appointing or removing succession representatives. In re Succession of LeBouef, 2013-0209 (La.App. 1 Cir. 9/9/14), 153 So.3d 527, 533.

In the instant case, the effect of the district court’s' judgment was to reinstate Ms. Carnegie as administratrix of the succession. This is the situation contemplated by La. C.C.P. art. 2122. Since such judgments shall be “executed provisionally nóte withstanding an appeal,” appeals taken from such judgments are necessarily devolutive. La. C.C.P. art. 2122; LeBouef, 153 So.3d at 533. Based on our previous holding in LeBouef, we grant. Ms. Carnegie’s motion to convert the Kings’ suspen-sive appeal to a devolutive appeal.

^ASSIGNMENT OF ERROR

The sole assignment of error raised by the Kings is whether the district court erred in finding the decedent had effectively revoked her notarial will.

STANDARD OF REVIEW

The question in the instant case is whether a presumption of revocation arises from the intentional destruction of one multiple original of the will. The district court’s findings of fact regarding a presumed revocation of a will by destruction are subject to manifest error review. In re Succession of Doucet, 42,963 (La. App. 2 Cir. 2/6/08), 975 So.2d 738, 742. Destruction of a will by the testator is the most effective means of revoking it. In re Succession of Jones, 356 So.2d 80, 83 (La. App. 1 Cir. 1978), writ denied, 357 So.2d 1168 (La. 1978) The testator’s intentional destruction of her will gives rise to a rebuttable presumption that she intended to revoke her testament and all copies thereof. See Succession of Talbot, 530 So.2d 1132, 1134-1135 (La. 1988). However, this presumption is rebuttable and may be overcome by sufficient evidence. Id. at 1135.

DISCUSSION

The district court based its ruling that the notarial will had been validly revoked pursuant to La. C.C. art. 1607, which states:

Revocation of an entire testament occurs when the testator does any of the following:
(1) Physically destroys the testament, or has it destroyed at his direction.
(2) So declares in one of the forms prescribed for testaments or in an authentic act.
(3) Identifies and clearly revokes the testament by a writing that is entirely written and signed by the testator in his own handwriting.

| Jn its oral reasons for judgment, the district court stated it placed great weight on the testimony of Bryan Adams regarding the decedent’s intent to destroy the notarial will. Mr. Adams purchased property from the decedent, then worked for the decedent as a farmhand and collected rent for the decedent from her tenants. Mr. Adams claimed to be familiar with the decedent’s signature, as he had seen it many times on documents she had signed.

At the trial, Mr. Adams was shown an original copy of the notarial will that had the portion containing the signature and dates torn off at the bottom. Another signature appeared at the top of the document, and Mr. Adams recognized it as the signature of the decedent. The signature is followed by handwritten notes which stated as follows: “Apr. 2015... This is to be revoked by me.” The majority of the document’s typed text had been crossed out or scribbled over. On the back of the document is more handwritten notes which appear to be several bequests. Mr. Adams recognized his name in the handwritten notes and testified that it appeared to be written in the way the decedent would write his name. He also noted that in the handwritten portion of the will his first name was spelled correctly, but in the typed portion his first name was misspelled. He testified that the decedent knew how to spell his name correctly. He further testified that the decedent had told him that she had a will but that she “had tore it up.” Although the duplicate original of the notarial will introduced by Ms. Carnegie was not torn up completely, the portion containing the signatures and the date was torn from the bottom.

The Kings note that the handwritten language “to be revoked” suggests that the decedent was not revoking the will at the moment she wrote it, but that she intended to revoke the will sometime in the future. |7However, there are indications other than the language cited by the Kings that the decedent wanted the will to be revoked immediately. The signatures of the testatrix, notary and witnesses, along with the date have been torn from the bottom of the document. We find such a destruction of a last will and testament shows unequivocally that the decedent intended to revoke the will and all of its copies immediately.

The Kings also offer the testimony of Carolyn Slaven, the notary public who notarized the will, to prove that the decedent had not revoked the notarial will. Ms. Sla-ven had also been familiar with the decedent, knowing her for about forty years. In addition to notarizing the will in November of 2014, Ms. Slaven also notarized a power of attorney the same month, which named the Kings as mandataries. The power of attorney does not appoint the Kings as administrators over the decedent’s estate. Ms. Slaven executed three originals of the notarial will, keeping one and giving two to the decedent. Ms. Slaven also testified that she believed the duplicate originals had been torn up, and that the decedent had expressed to her the intent to change the will in April of 2015. The decedent had told Ms. Slaven that she would make some notes and schedule an appointment with her at a later time. However, the decedent never returned to rewrite the will.

The Kings aver that Ms. Slaven’s testimony indicates that the decedent had not yet revoked her will at the time of her death. We disagree. While the decedent may not have taken any actions with Ms. Slaven to revoke her will, the evidence does indicate she did take actions on her own to revoke the will. We find that the district court did not err in finding that the torn and defaced duplicate original of the notarial will, corroborated by the testimony of Mr. Adams, was sufficient proof of the decedent’s revocation of the notarial will pursuant to La. C.C. art. 1607(1).

DECREE

The motion filed by the appellee, Sheryl Andrus Carnegie, to convert the instant appeal from a suspensive appeal to a de-volutive appeal is granted. The judgment of the Twenty-First Judicial District Court to reinstate Ms. Carnegie as admin-istratrix over the succession of the decedent, Evelyn Heloise Andrus Catha, and to invalidate the notarial will is affirmed. All costs of this appeal are assessed to the appellants, John E. King and Minnie C. King.

MOTION GRANTED; JUDGMENT AFFIRMED.

Higginbotham, J. dissents.

      . This last will and testament was’ valid in form pursuant to La. C.C. art. 1577.

      .The decedent was widowed at the time of her death, was predeceased by her only sibling, and had no children. Ms. Carnegie . claimed in the' petition that she was the daughter of Byron Merton Andrus, who she believed was the closest surviving, relative of the decedent.

      . Mr. Lowery is not a party to this appeal.

      . Mr. Lowery was a legatee in the decedent’s notarial will,

      . Ms. Carnegie filed this petition in her capacity as mandatary for her father, who is a first cousin to the decedent and a legal intestate heir.

      . The validity of the olographic will is not before us on appeal.


author: GREMILLION, Judge.

text:
    STATE IN the INTEREST I.H., M.H., I.H., M.H.
    17-129
    Court of Appeal of Louisiana, Third Circuit.
    05/17/2017
    Rehearing Denied August 2, 2017

      John E. Demoruelle, Attorney at Law, P. O. Box 839, Oberlin, LA 70655, (337) 639-2641, COUNSEL FOR APPELLEE: M. H. (mother)

      Nicholas Pizzolatto, Jr., Department of Children & Family Services, 1919 Kirkman Street Lake Charles, LA 70601, (337) 475-3037, COUNSEL FOR APPELLEE: State of Louisiana, Department of Children & Fam. Services
    Thomas L. Lorenzi, Southwest Louisiana Bar Foundation, 518 Pujo Street, Lake Charles, LA 70602, (337) 436-8401, COUNSEL FOR APPELLEES: M. H. (child), I. T. (child)
    Chad B. Guidry, Attorney at Law, P. O. Box 447, Kinder, LA 70648, (337) 738-2280, COUNSEL FOR APPELLANT: I. H. (father)
    I. H. (father), Elayn Hunt Correctional Center,' P. O. Box 174, St. Gabriel, LA 70776, (225) 642-3306, IN PROPER PERSON
    Court composed of Shannon J. Gremillion, John E. Conery, and David E. Chatelain , Judges.

       Honorable David E. Chatelain participated in this decision by appointment of the Louisiana Supreme Court as Judge Pro Tempore.

   GREMILLION, Judge.

hl.H. (hereafter, “Father,” to avoid confusion), the father of four children, appeals the trial court’s judgment terminating his parental rights and certifying his children free for adoption. Father’s attorney has filed a brief requesting that he be permitted to withdraw from representing Father pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting that there are no non-frivolous issues for appeal. For the reasons that follow, we grant counsel’s motion to withdraw and affirm the trial court’s judgment.

FACTS

Father and M.H. (hereafter, “Mother,” to avoid confusion) are the parents of four children: I.H., age seven (I.H. the elder); M.H. (M.H. the elder), age five; I.H., age four (I.H. the younger); and M.H., age two (M.H. the younger). All four children have either been diagnosed with or show signs of developmental delays. I.H. the elder and M.H. the elder first came into the State’s custody in May 2012 and were adjudicated children in need of care on June 14, 2012. I.H. the younger came into the State’s custody within five weeks of his birth and was adjudicated in need of care on July 3, 2013, when he was yet only three months old. Custody of the three children was returned to Mother and Father on July 24, 2014, after they had completed the requirements of their case plan, but the Department of Children & Family Service (the Department) maintained supervision thereafter for six months, which was extended an additional six months. M.H. the younger was born on March 18, 2015. On August 3, 2015, however, the court again ordered all four children into the State’s custody.

|2On March 16, 2016, the State filed a petition to terminate the parental rights of Father and Mother. It alleged that neither parent has made significant strides toward completing their case plan requirements, except to the extent that Mother has regularly visited the children. Father is unable to even do that, as he is currently incarcerated on drug charges and is not eligible for release until July 28, 2019.

The matter was heard on December 1, 2016. The vast majority of the testimony centered on Mother’s progress—or, more specifically, her lack thereof—in completing her case plan. The parties stipulated to the admission of the report of Dr. Alfred Buxton, Ph.D., a psychologist who evaluated Mother at the request of the Department. Dr. Buxton opined that, because of mental disability, Mother is not competent to manage her own affairs and must rely upon others to assure her own welfare and to deal with the- complexities of daily living. She can be relied' upon only as a secondary caregiver to her children. He would only recommend the return of the children to Mother if the Department could ensure that there was a competent primary caregiver.

. Ms. Melinda Marcantel, Child Welfare Specialist II with the Department, testified that she had acted as the case manager for the children since November 2013. The only component of her case plan Mother completed was regularly visiting the children. Father’s incarceration prevents him from completing any component of his case plan. Ms. Marcantel testified that both Mother and Father had proposed family members who could serve as suitable caregivers, but the Department investigated and deemed only one' of them, Father’s sister, suitable. She declined to assume those responsibilities.

[^Mother and Father both testified. Mother testified about an aunt and uncle who indicated that they would be willing to accept responsibility for the children. Father testified that he feels his release is more imminent than the Department is projecting. He has calculated that he would be eligible for release in fourteen months from the time of the December 2016 hearing. He also testified that he is taking parenting classes in prison, and that the terms of his case plan are identical to those he had already completed before the children were returned to his custody in July 2014.

After testimony concluded, the trial court found that the Department had proven by clear and convincing evidence sufficient proof of parental misconduct to terminate their parental rights under La.Ch. Code arts. 1036, 1015(4)(b), 1015(4)(c), and 1015(5). Father now appeals the judgment terminating his parental rights and declaring the children eligible for adoption.

ASSIGNMENTS OF ERROR

In his pro se brief, Father asserts that the trial court abused its discretion in terminating his parental rights -without expectation of reunification or reformation; that the termination of his parental rights deprived him of the constitutional right to care for his children; that the trial court gave no consideration of guardianship or tutorship as an alternative to adoption; and that he received ineffective assistance of counsel.

ANALYSIS

In State v. Benjamin, 573 So.2d 528, 531 (La.App. 4 Cir. 1990), the fourth circuit analyzed Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967):

When appointed counsel has filed a brief indicating that no non-frivolous issues and no ruling arguably supporting an appeal were found after a conscientious review of the record, Anders requires that | ¿counsel move to withdraw. This motion will not be acted on until this court performs a thorough independent review of the record after providing the appellant an opportunity to file a brief in his or her own behalf.

It is not necessary for Defendant’s counsel to “catalog tediously every meritless objection made at trial or by way of pre-trial motions with a labored explanation of why the objections all lack merit,” but counsel’s Anders brief must “ ‘assure the court that the indigent defendant’s constitutional rights have not been violated.’ ” State v. Jyles, 96-2669, p. 2 (La. 12/12/97), 704 So.2d 241, 241 (quoting McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442, 108 S.Ct. 1895, 1903, 100 L.Ed.2d 440 (1988)). The brief must fully discuss and analyze the trial record and consider “whether any ruling made by the trial court, subject to the contemporaneous objection rule, had a significant, adverse impact on shaping the evidence presented to the jury for its consideration.” Jyles, 704 So.2d at 241. Thus, the Anders brief must review the procedural history, and the evidence presented at trial and provide “a detailed and renewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.” State v. Mouton, 95-981 (La. 4/28/95), 653 So.2d 1176, 1177.

In this case, Father’s counsel provided a thorough history of the matter. He stated succinctly, “Considering the length of time the children spent in State’s custody, [Father’s] incarceration and [Mother’s] inability to work a case plan in [Father’s] absence, counsel feels that this appeal is frivolous.” As we shall discuss below, we agree. Counsel’s motion to withdraw is granted.

As Father correctly notes, parents are guaranteed Fourteenth Amendment Equal Protection and Due Process protections against “the State’s unwarranted usurpation,. disregard, or disrespect” of their decisions about the rearing of their children. M.L.B. v. S.L.J., 519 U.S. 102, 116, 117 S.Ct. 555, 564, 136 L.Ed.2d 473 (1996). Those protections, though, are not absolute; the operative wording in the M.L.B. pronouncement is “unwarranted.”

The grounds for terminating a parent’s rights—in other words, when the usurpation, disregard, or disrespect of a parent’s decisions regarding childrearing are warranted—are expressed in La.Ch. Code art. 1015. These grounds must be proven by clear and convincing evidence. La.Ch.Code art. 1035; Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). The means of proving parental misconduct under La.Ch.Code art. 1015 is governed, by La.Ch.Code art. 1036. The paramount consideration in determining whether to terminate a parent’s rights is whether that would-be in the best interest of the child. In re Bordelon, 95-1194 (La.App. 3 Cir. 3/6/96), 670 So.2d 676.

Whether a parent has complied with a case plan, the expected success of rehabilitation, and the expectation of significant improvement in the parents’ condition or conduct are all findings of fact. State in the Interest of O.L.R., 13-616 (La. App. 3 Cir. 11/6/13), 125 So.3d 569. These findings of fact are all reviewed under the manifest error standard. Id. The decision to terminate parental rights is also reviewed under the manifest error standard. State in the Interest of J.K.G. and J.L.G., 11-908 (La.App. 3 Cir. 1/11/12), 118 So.3d 10.

Louisiana Children’s Code Article 1015 includes as a ground for terminating a parent’s rights the incarceration of a parent for period

of such duration that the parent will not be able to care for the child for an extended period of time, considering the child’s age and his need for a safe, stable, and permanent home, and despite notice by the department, the parent has refused or failed to provide a reasonable plan for the appropriate care of the child other than foster care.

|RIn the present matter, Father did propose a reasonable plan for the care of his four children; unfortunately, his sister refused to assume responsibility for them. Mother’s family members were deemed inappropriate for the care of four developmentally-delayed children, all under the age of eight. Even were we to accept Father’s contention that he can be eligible for release in February or March of 2018, we cannot conclude that the trial court manifestly erred in finding that it would be in the best interests of the children to be cleared for adoption. Children need stability now, not possibly eleven months from now. This assignment of error lacks merit.

Father argues that his consent.is required for adoption under La.Ch.Code art. 1193. This argument ignores the plain language of the article, which. conditions the consent requirement upon the father’s rights not having been terminated pursuant to Title X or XI of the Children’s Code, of which La.Ch.Code art. 1015 is a part. Because Father’s parental rights were terminated, his consent for the adoption of the children is not required. This assignment of error lacks merit.

Father further contends that the trial court erred in not considering guardianship for the children as an alternative to adoption. Louisiana Children’s Code Article 718 provides (emphasis added):

The purpose of guardianship is to provide a permanent placement for children when neither reunification imth a parent nor adoption has been found to be in their best interest; to encourage stability and permanence in the lives of children who have been adjudicated to be in need of care and have been removed from the custody of their parent; and to increase the opportunities for the prompt permanent placement of children, especially with relatives, without ongoing supervision by the department.

The plain wording of article 718 indicates that establishing guardianship is intended to provide a permanent placement when reunification or adoption is not in |7the children’s best interests. Guardianship does not represent an alternative to adoption; rather, it is a-means for providing a permanent placement when adoption would not be in the children’s best interests. This assignment of error lacks merit.

Lastly, we turn to Father’s contention that he received ineffective assistance of counsel in the hearing. Louisiana Children’s Code Article 1016 guarantees the rights of parents and children in termination proceedings to be represented by separate counsel and to appointed counsel under the Indigent Parents’ Representation Program. To date, no Louisiana jurisprudence has addressed whether a claim of ineffective assistance of counsel constitutes grounds for reversal of the termination of a parent’s rights. Given the fundamental nature of parental rights, we find that the guarantee of the right to counsel necessarily implies that such representation must be effective.

An analysis of the case law of other States indicates that the parent bears the burden of proving that his representation was not effective. Further, the parent must prove that: 1) counsel acted in a manner below an objective standard of conduct expected of a reasonably competent attorney, and 2) that the outcome was reasonably probable to have been different but for counsel’s failure. See, e.g., In re N.M., 161 Cal.App.4th 253, 74 Cal.Rptr.3d 138 (2d Dist. 2008); In re M.S.S., 308 Ga.App. 614, 708 S.E.2d 570 (2011). We need not reach the issue of whether counsel’s performance was deficient if we determine that Father has not demonstrated that the outcome was reasonably probable to have been different.

We are not persuaded by Father’s argument. His claim of ineffective assistance is predicated entirely upon counsel’s failure to urge the establishment of a guardianship for the children. As we have already noted, though, guardianship is not intended as an alternative to adoption. Father’s counsel urged the trial court to |8consider that Father would be eligible for early release for good behavior. Counsel rendered reasonable representation of his client with the facts at his disposal. This assignment of error lacks merit.

CONCLUSION AND DECREE

Counsel’s motion to withdraw from representing Father is granted. Father’s contention that the termination of his parental rights were unconstitutionally infringed lack merit. Given the children’s young ages, their developmental delays, and their need for stable and permanent homes, we cannot conclude that the trial court manifestly erred in terminating Father’s parental rights. Father’s incarceration might possibly be over in a year, but might also well exceed a year. In the meantime, his four children need stability and permanency. The trial court did not manifestly err in terminating Father’s parental rights. All costs of this appeal are taxed as costs to Father, I.H.

MOTION TO WITHDRAW AS COUNSEL GRANTED; AFFIRMED.

      . This matter is the companion to State in the Interest of M.H., I.T., 17-128 (La.App. 3 Cir. -/-/17), — So.3d —. In that matter, the older child referred to herein as "I.H. the elder" is identified as "I.T.”