author: THIBODEAUX, Chief Judge.

text:
    LUBA WORKERS’ COMPENSATION v. Albert Dennis BABINEAUX
    17-365
    Court of Appeal of Louisiana, Third Circuit.
    11/15/2017

      David Russell Bankston, 2701 Johnston Street—Suite 301, Lafayette, LA 70503, Telephone: (337) 232-1444, COUNSEL FOR: Defendant/Appellee—Albert Dennis Babineaux
    Eric J. Waltner, Allen & Gooch, A Law Corporation, P.O. Box 81129, Lafayette, LA 70598-1129, Telephone: (337) 291-1400, COUNSEL FOR: Plaintiff/Appellant—LUBA Workers’ Compensation

      Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.
   THIBODEAUX, Chief Judge.

hln this workers’ compensation matter, claimant Albert Dennis Babineaux was adjudicated permanently and totally disabled. Thereafter, the insurer, LUBA Workers’ Compensation (LUBA), filed a new dispute with the Office of Workers’ Compensation, alleging Mr. Babineaux had a change in condition and was no longer permanently and totally disabled. LUBA also alleged that Mr. Babineaux had violated La.R.S. 23:1208 by working while receiving indemnity benefits. The workers’ compensation judge (WCJ) denied LUBA’s request for modification and found no fraud on the part of Mr. Babineaux. LUBA now appeals that judgment. Finding no manifest error in the WCJ’s finding that LUBA had not proven, by a preponderance of the evidence, a change in Mr. Babineaux’s condition or a forfeiture of his benefits, we affirm.

I.

ISSUES

LUBA asks this court to decide:

(1) whether it was legal or manifest error not to hold that claimant had a change in his condition sufficient to modify the prior judgment proven by a preponderance of the evidence;
(2) whether it was legal or manifest error to hold that claimant was permanently and totally disabled by clear and convincing evidence;
(3) whether it was legal or manifest error to hold that claimant had not violated La.R.S. 23:1208.

II.

FACTS AND PROCEDURAL HISTORY

This matter arises out of an accident that occurred on June 14, 2000, in the course and scope of Mr. Babineaux’s employment as a self-emp|oyed electrical contractor with Dennis Bjabineaux Electrical Service (Babineaux Electric). In December 2000, Mr. Babineaux underwent an anteri- or cervical decompression and fusion surgery for the injury he sustained to his back. He was awaráed temporary total disability benefits from June 1, 2000, through March 28, 2002, and supplemental earnings benefits (SÉBs) from March 28, 2002. On August 6, 21)10, after LUBA denied his demand to convert his indemnity benefits to permanent and total disability (PTD) status, Mr. Babineaux filed a claim seeking additional disability benefits based on his claim that he was permanently and totally disabled. His SEBs were then terminated on November 30, 2010.

Following trial, the WCJ rendered judgment in favor of Mr. Babineaux, finding him, by clear and convincing evidence, permanently and totally disabled due, in part, to the permanent nerve damage and continued severe muscle spasms directly related to his work injury as documented in his medical records. The WCJ did not award, any penalties or attorney’s fees. In Babineaux v. LUBA, 12-129 (La.App. 3 Cir. 6/6/12), 91 So.3d 1270, this court affirmed the WCJ’s judgment.

On April 11, 2014, LUBA filed a new disputed claim for compensation, wherein it alleged: “Claimant had a change of circumstances and is no longer permanently and totally disabled such that the prior judgment needs to be modified. Claimant has violated 23:1208 by receiving indemnity benefits and working.” In his answer, Mr. Babineaux denied any .change in circumstances and | ¡¡admitted, in his pre-trial statement, that he “has continued to perform occasional small electrical jobs” without pay or reimbursement, .except for costs, that he was doing “át the time he .was adjudicated to be permanently and totally disabled.”

Through video surveillance, retail electrical supply account invoices, and various testimony, LUBA presented evidence that Mr. Babineaux’s supply accounts have remained active since the accident and that he has continued to engage in supervisory-type duties and performed some small electrical jobs on a gratuitous basis. In'his testimony, Mr. Babineaux admitted that he had spinal surgery on September 8, 2011, which helped eliminate the pain and numbness in his legs. He also testified that the last time he saw his neurosurgeon, Dr. Patrick A. Juneau III, was on December 19, 2012, at which time he had no radicular pain, but still had lower back pain. Mr. Babineaux acknowledged that his symptoms are much better, although there are times when the symptoms are almost as bad as they were before the surgery. He has received multiple injections from Dr. Matthew Mitchell, a pain management specialist, which injections help his symptoms significantly; however, he still has painful, immobilizing spasms for' which he seeks the treatment'of Dr. Robert P. LeJeune, his chiropractor.

In his testimony, Mr. Babineaux also acknowledged that he continues to drive the truck, with bins filled with electrical tools and materials, that he drove when he was working; that he helped Donnie DeR-ouen fix a motor control unit in 2014; and that he supervises on occasion at Donnie DeRouen Electrical Services, Inc.’s (DeR-ouen Electric) worksites. At those- times, he testified that he has the Rauthority to tell the employees what to do or not do. When asked about surveillance video that showed him using a shovel to dig at one worksite, Mr. Babineaux admitted that there were “young bucks” present who could have used the shovel,' but he was merely shifting sand in an effort to find where a pipe had been damaged so to avoid further damage. Mr. Babineaux noted that, under his doctors’ orders, he was not supposed to do any physical labor.

The surveillance videos captured Mr. Babineaux bending down to pick up an ice chest, filling the ice chest, and loading it in his truck to bring along with him to a worksite. It also captured him probing the ground with a metal rod and then working with a shovel, traversing uneven terrain, walking with a box of electrical equipment, and then bending down to look inside a hole. Also shown was Mr. Babineaux building control panels over an eight hour time-frame with Donnie DeRouen.

Timesheets were entered into the record reflecting some of the work activities performed by Mr. Babineaux for DeRouen Electric, but Mr. Babineaux testified that the work identified on those documents were not necessarily work that he himself performed. Rather, he was merely making an accounting of. what work was performed at the worksite. He admitted that he was sometimes given deer and fish and was allowed to fill his truck with fuel from DeRouen Electric’s diesel tank.

Mr. Babineaux also testified to another time when he was called out to a water treatment plant for the City of Abbeville to determine what was wrong with the generator. He diagnosed the problem and instructed how to fix it. Mr. Babineaux also went on jobs with his son and has continued to perform occasional small electrical jobs without compensation for his church, his chiropractor, and |fiPage Wire Rope and Slings, such as changing light fixtures and outlets, running wire, or directing others on how to do so.

Michael L. DeRouen, the vice president of DeRouen Electric, testified that Mr. Babineaux worked for the company for over twenty years before leaving to go out on his own. Having left on good terms, Mr. Babineaux remained a close family friend. Given their long-standing relationship, Mr. DeRouen recalléd that Mr. Babineaux came by a few years after his spinal cord injury and asked “if I would have a problem if he would stop by some of the jobs to visit with the guys and look over the electrical, which I said I did not have a problem with.” Aware of Mr. Babineaux’s disability and. that his company’s workers’ compensation insurer would not cover Mr. Babineaux, Mr. DeRouen explained how he asked Mr. Babineaux to do some supervisory-type activities so that Mr. DeRouen could go bid out jobs: “Every now and then he would stay a while on the jobs advising my guys on ways they could do the work quicker or easier. He was however informed he was not allowed to do any physical work at all.” Testimony reveals that there were five or six residential subdivisions where Mr. Babineaux went oút and did similar activities as were disclosed in the surveillance video. But Mr. DeR-ouen explained that Mr. Babineaux was just helping out when he felt up to it and performing a job that Mr. DeRouen would not pay anyone to do as it was basically his job. The timesheets submitted by Mr. Ba-bineaux merely reflected the work performed at the worksite and were not a record of Mr. Babineaux’s activity. Moreover, none of Mr. Babineaux’s time was ever billed to the customer, and he never requested payment. The DeRouens, however, “would give him deer, fish, and even fill up his truck with fuel.”

I sin his deposition, William Seiler, a sales manager for HD .Supply, testified that he was familiar with Mr. Babineaux as are all of his salespeople. And as for the active supply accounts, he explained that “for the little dollars that [Mr. Babineaux] is doing, I really don’t know what he’s doing.” While Mr. Babineaux never discussed the extent of his disability with him, Mr. Seiler testified that “you could tell by the way he gets around[,]” explaining how Mr.- Babineaux “looks like, he’s hurting to take every step.” He further described how Mr. Babineaux’s “knees are bent , at all times and he’s leaning over at probably ten degrees or something like that.” Mr. Seiler also stated that Mr. Babi-neaux walks “like he’s 90” and that he “could pass him backwards at one-third speed walking, he’s that slow.” Mr.- Babi-neaux testified that his retail purchases were mostly for other people, because he mistakenly believed he received a company discount.

Regarding the medical evidence,. Dr. Juneau’s . notes from Mr. Babineaux’s last visit on December 19, 2012, recorded:

Albert Dennis Babineaux is one year and three months out from having undergone a.lumbar decompressive lami-nectomy with instrumented fusion at L4-5 and L5-S1..... [X]-rays show good position of all six screws and the rods. The two interbody cages are in good position. He has excellent alignment of the lumbar spine on the lateral views. Clinically, he has no radicular pain down into the legs. He does have some lower back pain when the weather changes. On examination today he still has evidence of myelopathy from his previous cervical spinal cord injury. He remains totally disabled from working. He is permanently disabled from working from this point forward. Follow-up in this office will be as needed from this point forward.

Dr. Mitchell’s records, dated June 6, 2015, noted how the spinal injections significantly reduced Mr. Babineaux’s pain for a few months at a time, |7but “[t]he patient has severe spasticity, as a result of his spinal cord damage” and “persistent acute pain.” Dr. LeJeune, Mr. Babineaux’s treating chiropractor, testified that, due to his back and neck surgeries, Mr. Babi-neaux has chronic muscle spasms, muscle atrophy, a limp, and a curled up arm. He explained how Mr. Babineaux’s nerves stay in an excited state, which he treats with manipulation and stretching as well as the injections provided by Dr. Mitchell. Dr. LeJeune has witnessed Mr. Babineaux in severe spasm, which he attributes to Mr. Babineaux’s nerve damage that will only get worse with time. In his opinion, Mr. Babineaux’s disability is greater than it was at the time of the last trial. While there has been a decrease in pain since the last surgery, Dr. LeJeune was of the opinion that there was also a decrease in functional ability. He further testified that he has no problem with Mr. Babineaux’s activities as exercise and movement can relax excited nerves and contribute to continued function; merely sitting on a couch all day would be more detrimental to his condition.

Mr. Babineaux’s wife, Lydia Jo Babi-neaux, testified to the negative and severe effects of Mr. Babineaux’s increased activity, explaining how his muscles seize up and spasm when he gets home, which continue throughout the night. The spasms are sometimes so severe that his shoulder becomes dislocated, and they have had to rely on neighbors to move him when he falls. Through her testimony and Mr. Babi-neaux’s, it was revealed that, as per his doctors’ direction, the couple moved their bedroom downstairs because traversing the stairs had become too risky. The couple has even had to call Dr. LeJeune to the house to try to alleviate the spasms. While Mr. Babineaux feels good enough to stand around and tell others what to do at a job site, Mrs. Babineaux is clearly not in agreement given the episodes she has witnessed when he returns home from the worksite. RAnd even Mr. Babineaux conceded that he cannot “supervise” on a daily basis as his pain increases with the passage of time from his last injection and with the changes in weather and atmospheric pressure. Though he may have a few good days, his pain and muscle spas-ticity will catch up with him. His lack of consistency and dependability as well as his physical limitations make him essentially unemployable.

After considering the evidence and arguments of the parties, the WCJ rendered judgment in favor of Mr. Babineaux and against LUBA, denying its request to modify the previous PTD judgment. In her reasons, the WCJ explained:

While the evidence here clearly establishes that Babineaux is able to perform certain tasks such as changing receptacles and light fixtures for friends or family and keeping an eye on workers, there is no evidence of his being paid for any of those services, nor any evidence of the value of those services, if any. Michael DeRouen testified that he would not pay anyone.to perform the services Babineaux performed for him. There was no evidence of what price, if any, could be charged for changing outlets or lighting fixtures. And the evidence did not establish by a preponderance that Babineaux would be able to perform those services on a consistent basis.
The WCJ has had the opportunity to observe Babineáux on multiple occasions over the years. Going back to the initial trial on compensability and whether an accident occurred, one factor that led the insurer to deny the claim was the fact that he continued working for a period after the accident. But this was found to have been a case of pushing himself too hard as opposed to not being hurt. The fact that Babineaux pushed himself to continue working after his accident is one reason his condition was so serious by the time he went to the doctor and a reason he damaged his nerves. While Babineaux is not the “perfect” witness or “perfect” person he appears to be a generally honest, hardworking man. It is entirely consistent with this court’s experiences with him that he would push himself just to stay busy. Certainly his wife’s exasperation was evident. But his drive to stay busy does not equate to an ability to |9earn any wage. At best the probabilities are evenly balanced, and therefore the insurer fails to meet[ ] its burden of proving by a preponderance of the evidence that the judgment should be modified.

As for LUBA’s claim of forfeiture, the WCJ stated from the bench:

I am willing to say that I don’t make any finding of fraud. I mean, I—and I’m shaking my head and kind of laughing. Really, I just don’t see any way that I would be making a finding of fraud or violation of 1208.

III.

STANDARDS OF REVIEW

The factual determination of whether a party has demonstrated a change in a workers’ compensation claimant’s condition “is entitled to great weight and will not be disturbed unless clearly wrong.” Hardee v. City of Jennings, 07-242, p. 3 (La.App. 3 Cir. 5/30/07), 961 So.2d 531, 533, writs denied, 07-1779, 071799 (La. 11/9/07), 967 So.2d 505, 509. Whether an employee has forfeited his right to workers’ compensation benefits is also a factual issue and, thus, subject to the manifest error or clearly wrong standard of review, which precludes the setting aside of a trial court’s factual finding unless that finding is clearly wrong in light of the record reviewed in its entirety. Carrier v. Harrington, 14-1027 (La.App. 3 Cir. 4/8/15), 162 So.3d 1273, writ denied, 15-904 (La. 6/19/15), 172 So.3d 1091. In making these determinations, “great weight is to be attached to the trial court’s evaluation of the credibility of the witness.” Thompson v. Natchitoches Parish Hosp. Serv. Dist., 365 So.2d 57, 59 (La.App. 3 Cir. 1978). This is because

only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily op the listener’s understanding and belief in what is said. Where documents or objective evidence so contradict the |inwitness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or clear wrongness even in a finding purportedly based upon a credibility determination. But where such factors are not present, and a factfinder’s finding is based on its decision to credit the testimony of one of two or more witnesses, that finding can •virtually never be manifestly erroneous or clearly wrong.

Rosell v. ESCO, 549 So.2d 840, 844-45 (La.1989) (citations omitted). The issue to be resolved on review, therefore, is not whether the factfinder was right or wrong, but whether its conclusion was a reasonable one based on the record before the court. Canter v. Koehring Co., 283 So.2d 716 (La.1973).

iv.

LAW AND DISCUSSION

Pursuant to La.R.S. 23:1310.8, a party may seek the modification of a previous-' compensation award in á workers’ compensation case “on the ground of a change in conditions.” The burden of proof is on the party seeking the modification to show, by' a preponderance of the evidence, that the disability of the worker has either increased or diminished. Lormand v. Rossclaire Constr., 01-515 (La.App. 3 Cir. 12/12/01), 801 So.2d 675.

In the present matter, LUBA asserts that the evidence recited above establishes, by a preponderance of the evidence, a significant change in Mr. Babineaux’s functional capacity, LUBA argues that the evidence shows that Mr. lnBabineaux is able to engage in employment, at: least as a supervisor, and has received compensation for this employment in the form of deer, fish, and fuel. Therefore, LUBA claims that the WCJ manifestly erred in its 'finding no change in his condition. We disagree.

After reviewing the entirety of the record evidence, we find no manifest or clear error in the WCJ’s factual findings. Rather, as outlined in its reasons, the WCJ’s decision is based on the medical evidence. Both Dr. Junéau and Dr. LeJeune opined that Mr. Babineaux is still permanently disabled, with Dr. LeJeune further opining that Mr. Babineaux’s functionality has decreased along with his pain. Dr. Mitchell also recorded Mr. Babineaux’s still “severe spasticity” as well as his “persistent acute pain.”

Moreover, though the evidence does show that Mr. Babineaux has continued to perform" small electrical jobs and to supervise workers, LUBA, as the WCJ noted, presented no evidence of what wage could be earned for these services or what value or price could be assigned to them. It also failed to present evidence to show that Mr. Babineaux would be able to perform these services on a consistent basis so to maintain any employment in a workers’ compensation context. .To the contrary, the evidence' demonstrates that Mr. DeRouen would not pay anyone for the help that Mr. Babineaux provided him, and there was no evidence that Mr. Babineaux was paid for any of these services. Actually, the evidence shows that Mr. Babineaux received nothing, except reimbursement for the parts and fuel used when performing his small electrical services. While the DeR-ouens did give Mr. Babineaux deer and fish and allowed him to use their diesel, LUBA did not present any evidence of the value of these items or that" it was more probable than not' that these exchanges were made in lieu of monetary, lleven if de minimis, payment for services rendered. The medical evidence as well as Mr. and Mrs. Babineaux’s testimony further establish that Mr. Babineaux is not physically capable of performing even these minor tasks on a consistent basis.

The issue in this case ultimately comes down to whether Mr. Babineaux’s admitted desire to stay busy equates to an ability to engage in any employment, which would constitute a change in his condition. This necessarily required a comparison of Mr. Babineaux’s condition at the time of the previous PTD adjudication and his present condition, including his activities and functional capabilities. As the WCJ has watched and observed Mr. Babineaux over the course of a decade, she was in the best position to make this comparison. And the WCJ found that Mr. Babineaux’s willingness to do these odd electrical jobs did not prove his ability to consistently perform these same jobs, but rather was merely consistent with him pushing himself, even to his detriment, to stay busy.

In fact, as Mr. Babineaux even noted in his trial statements, the activities of which LUBA now complains are of the same nature as the activities that Mr. Babineaux was performing at the time he was adjudicated permanently and totally disabled. Similar records and surveillance documenting Mr. Babineaux’s activities were presented in the 2011 trial. The only difference in the present matter is the noted reduction of Mr. Babiñeáux’s pain, coupled with his decreased functionality. As the medical records show, his severe nerve damage and spasticity remain. Further, the WCJ viewed the surveillance videos taken of Mr. Babineaux before the 2011 trial as well as the'videos taken béfore this trial and concluded that, at best, the probabilities were even. In light of this evidence, the WCJ made reasonable credibility evaluations and factual inferences that we will | ianot disturb on review, particularly when there is no contradictory objective evidence or internal inconsistency in the testimony that would warrant such, action.

Having reviewed all the evidence, we find that the record, in its entirety, does reasonably support a finding that LUBA failed to prove, by a preponderance of the evidence, that Mr. Babineaux is now capable of engaging in any employment as contemplated by otir workers’ compensation scheme. Accordingly, we cannot say that the WCJ’s refusal to modify its previous PTD judgment was clearly or manifestly erroneous.

LUBA also argues the WCJ committed legal error in finding that Mr. Babineaux established, by clear and convincing evidence, that he was permanently and totally disabled. However, the burden to prove a. change in circumstances was on LUBA, Because LUBA did not prove' such a change by a preponderance of the evidence the burden to reestablish permanent and total disability never shifted back to Mr. Babineaux. Moreover, the 'WCJ never found that Mr. Babineaux had re-proved or even had to re-prove his PTD status; it merely focused on LUBA’s burden of proof and its failure to meet its evidentiary burden. Therefore, we find this assignment of error is meritless.

Finally, LUBA argues that the WCJ committed either legal or manifest error in holding that Mr. Babineaux had not violated La.R.S. 23:1208 by receiving fish, deer, and fuel in compensation for his work with DeRouen Electric while receiving PTD benefits.

In Scallon v. Boise Cascade Corp., 05-327, p. 5 (La.App. 3 Cir. 11/2/05), 915 So.2d 1004, 1007, this court stated the following regarding a claim for forfeiture of workers’ compensation benefits:

I uThe Louisiana Supreme Court has interpreted La.R,S. 23:1208 as providing for the forfeiture of workers’ compensation benefits when a claimant (1) makes a false statement or representation; (2) that statement or representation is willfully made; and (3) the false statement or representation is made for the purpose of obtaining or defeating any benefit or payment. Resweber v. Haroil Constr. Co., 94-2708 (La. 9/5/95), 660 So.2d 7. A forfeiture pursuant to La.R.S. 23:1208 is not necessary where the false statement is inconsequential or was made inadvertently. Jeanise v. Cannon, 04-1049 (La.App. 3 Cir. 2/23/05), 895 So.2d 651. “Forfeiture of benefits under La.R.S. 23:1208 is a harsh remedy which must be strictly construed.” Regan v. Eunice Superette, Inc., 04-227, p. 5 (La. App. 3 Cir. 9/29/04), 884 So.2d 1209, 1213.

LUBA, in its arguments to this court, relies solely on Mr. Babineaux’s admission that he knows it is a violation of the Louisiana Workers’ Compensation Act to receive benefits while working. However, that admission, which is merely a recitation of the law, does not prove LUBA’s claim for forfeiture, particularly here where Mr. Babineaux readily admitted and never denied that he was still performing minor electrical services pro bono. The WCJ 'clearly found Mr. Babineaux “to be a generally honest, hard-working man.” As a credibility determination, we accord this finding great deference. We further find that the record evidence reasonably supports the WCJ’s finding that Mr. Babi-neaux, rather than trying to circumvent our law, was pushing himself beyond his physical limits just to keep busy. In this absence of a showing of manifest error, we affirm the WCJ’s finding of no fraud on the part of Mr, Babineaux.

_bV.

CONCLUSION

For these reasons, we find no manifest or clear error in the WCJ’s denial of LUBA’s claims for modification and forfeiture. We affirm the judgment of the Office of Workers’ Compensation.

Costs of this appeal are assessed to LUBA Workers’ Compensation.

AFFIRMED.

      . The certified'records of Teche Electric Supply, LLC, Home Depot U.S.A., Inc., and HD Supply Power Solutions, Ltd. (HD Supply) were introduced into evidence. However, only the records of HD Supply are of any real significance herein given that they contain the majority of transactions made since the 2011 trial. The activity in the other records primarily occurred prior to 2011. The accounts, except for Home Depot, remained in the name of Babineaux Electric.

      . To put his comments in perspective, Mr, Babineaux was born in 1954 and is around "six, two (6'2").”

      . Interestingly, Mr. Babineaux argues to this court, as he did to the WCJ, that, because this case involves PTD status, LUBA had to prove a change in condition by clear and convincing evidence—the burden imposed upon an employee seeking total disability status pursuant to La.R.S. 23:1221(2)(c), However, we find no merit in this argument in light of this circuit's long-standing jurisprudence applying the preponderance of evidence standard in such cases. See Rourks v. Commercial Union Ins. Co., 497 So.2d 35 (La.App. 3 Cir. 1986) (denial of request to modify previous PTD adjudication).


source: Caselaw Access Project

author: PERRET, Judge.

license: Public Domain

text:
    Richard Brandon KYLE v. Brittany Kay KIER
    CA 17-134
    Court of Appeal of Louisiana, Third Circuit.
    11-15-2017

      Susan Ford Fiser, Attorney at Law, P.O. Box 12424, Alexandria, LA 71315-2424, (318) 442-8899, COUNSEL- FOR DEFENDANT APPELLEE: Brittany Kier
    •Koby D. Boyett, Attorney at Law, P. 0. Box 12746, Alexandria, LA 71315, (318) 442-9462, COUNSEL FOR PLAINTIFF APPELLANT: Richard Kyle
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Phyllis M. •Keaty, and Candyce G. Perret, Judges.
   PERRET, Judge.

hThe Appellant, Richard Brandon Kyle, appeals the trial court’s judgment denying his request to modify and lower, his child support payments, while granting Appel-lee, Brittany Kier’s, request to modify the stipulated child custody judgment. Finding no manifest error on the part of the trial court, we now affirm.

ISSUES FOR REVIEW

We must decide:

1. whether the trial court erred in denying Appellant’s request for modification of child support based on his unemployment; and
2. whether the trial court erred in modifying the stipulated child custody judgment.

FACTS AND PROCEDURAL HISTORY

Richard Brandon Kyle and Brittany Kier entered a stipulated judgment for custody of their one minor child on August 31, 2015. This judgment also established child support at $700.00 a month, paid by Mr. Kyle to Ms. Kier.

Mr. Kyle filed a Motion to Modify Child Support in September 2016. Mr. Kyle asserted he became unemployed and cannot be employed due to a physical injury that has led to the degeneration of his lumbar and cervical spine. Mr. Kyle asserts he is entitled to have the child support payments modified and seeks a reduction of his child support payments to the statutory minimum, $100.00.

In support of his claim that he cannot be employed, Mr. Kyle testified that he sustained an injury to his neck and back. Mr. Kyle could not recall when the injury occurred. However, Mr. Kyle related the continuing pain to a stabbing that occurred in 2004, prior to any custody litigation, but asserts the pain became unbearable after completing yard work. Based on his medical records, that injury ^appears to have occurred sometime in June, 2016. At the hearing on Appellant’s Motion to Modify Child Support, Mr! Kyle introduced certified medical records from Dr. Troy Vaughn. According, to the records, Dr. Vaughn began treating Mr. Kyle in July, 2016. Included in those records is a letter dated September 2, 2016, in which Dr. Vaughn opines Mr. Kyle is “unable to work on a sustained basis” and “unable to resume gainful employment” due to a neck/back injury.

Additionally, in support of his claim of lack of income, Mr. Kyle testified that his parents currently pay all of his living expenses and child support. Mr. Kyle’s pay stubs and tax returns for 2013 and 2014 were also introduced into evidence by Ap-pellee and show that prior to his injury’s progression, Mr. Kyle worked in 2013 and 2014, and had an adjusted gross income of $76,115 in 2014. Mr. Kyle left his job for an unknown reason, and began remodeling a home with the idea of flipping it. However, before, he could finish the remodel, Mr. Kyle alleges his injuries became worse, preventing him from working altogether. Mr. Kyle’s father, Richard Dale Kyle, testified he pays all of his son’s expenses. Richard Kyle further ■ testified that he hopes his son will pay back the money, considers the money to be a loan, but would also do whatever it takes for his son. Mr. Kyle testified that he also considers the money from his parents to be a loan.

At the hearing, Ms. Kier presented testimony that Mr. Kyle has a dog breeding hobby. He attends dog shows in places such as Georgia, Dallas, and New Orleans. He would travel by car, with another person driving. Mr. Kyle also testified that in the last five years he has applied for social security disability! s benefits once, but was denied. He asserts he recently applied before the hearing, but was not receiving any disability benefits at the time of the hearing.

The trial court denied Mr. Kyle’s Motion to Modify Child Support, finding insufficient evidence upon which to base a modification. The trial court also amended the custody agreement at Ms. Kier’s request to prohibit overnight guests of the opposite sex, not related by blood or marriage, while the parent is exercising custody.

Ms. Kier’s request for modification of the child custody agreement was made orally during the hearing. No written motion was made. Ms. Kier referenced the parties and the judge having discussed overnight guests “in the back.” Thereafter the trial court asked if Ms. Kier wanted to make that request during the hearing, and she did. Although opposing counsel objected, both parties continued to question the witnesses regarding custody issues.

Mr. Kyle now appeals the December 12, 2016 Judgment. He asserts (1) the trial court erred in denying his motion for modification of child support under La.R.S. 9:315, and (2) the trial court impermissibly expanded the pleadings and ruled on modifying the stipulated custody judgment without any showing of detriment to the child.

MODIFICATION OF CHILD SUPPORT

Mr. Kyle contends that the trial court erred in denying his motion for modification of child support because he asserts he is unemployed, has no income, and cannot work. For the following reasons, we disagree and find that the trial |4court properly concluded that Mr. Kyle did not meet his burden of proof to show a modification is necessary.

Standard of Review

A trial court’s factual findings may not be set aside absent manifest error or unless they are clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989); McCorvey v. McCorvey, 05-889 (La.App. 3 Cir. 2/1/06), 922 So.2d 694, writ denied, 06-435 (La. 4/28/06), 927 So.2d 295; Cole v. Cole, 13-1442 (La.App. 3 Cir. 6/4/14), 139 So.3d 1225.

To reverse a trial court’s factual findings, a two tiered test is applied:

1. “the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and”
2. “the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).”

McCorvey, 922 So.2d at 696.

Law and Discussion

“An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon proof that it has become unnecessary.” La.Civ.Code art. 142. Child support will not be modified absent a material change in circumstances of one of the parties since the previous award. Cole, 139 So.3d 1225. The party seeking child support modification has the burden of proving there has been a material change in circumstances. La.R.S. 9:311(A)(1); Cole, 139 So.3d 1225. Therefore, in this case, Mr. Kyle had the burden of proving there was a material change in circumstances.

IbA “material” change in circumstance is a change “having real importance or great consequences for the needs of the child or the ability to pay of either party.” La.R.S. 9:311(A)(1) cmt (A); Cole, 139 So.3d at 1229. Louisiana jurisprudence distinguishes a voluntary change in circumstance, which generally does not justify modification of child support, from an involuntary change in circumstance. State Dep’t. of Children and Family Servs. In Interest of E.G., II v. Jones, 14-918 (La. App. 5 Cir. 4/15/15), 170 So.3d 297.

An involuntary change in circumstance is a change resulting from a fortuitous event or circumstances beyond the party’s control, for example, loss of position or illness. Id. In the case of employment and income, a party will be excused from its child support obligation if it appears the party is not only unemployed, but unemployable. Chaudoir v. Chaudoir, 446 So.2d 951 (La.App. 3 Cir. 1984); State v. Moore, 98-1243 (La.App. 3 Cir. 12/9/98), 722 So.2d 112.

Under some circumstances, even voluntary underemployment or unemployment may justify modifying child support. State Dep’t. of Children and Family Servs. In interest of E.G., II, 170 So.3d 297. If the obligor parent can prove “(1) a change in circumstances occurred; (2) the voluntary change is reasonable and justified; (3) the parent is in good faith and not attempting to avoid his or her alimentary obligation; and (4) the action will not deprive the child of continued reasonable financial support,” a modification may be made. Id. at 299.

In the case of State Department of Children and Family Services In Interest of E.G., II, the mother retired in order to pursue a full-time education. By doing so, the mother would complete her degree more quickly. A degree would advance her career and increase her income. The trial court determined the mother’d a voluntary unemployment was for the betterment of her child and reduced her child support payments. The appellate court affirmed.

On the other hand, “[i]f the obligor party is absolutely unemployable or incapable of being employed, or if the circumstances resulting in his under/unemployment arise through no fault of the obligor party, then that party is not deemed to be voluntarily under/unemployed.” McDaniel v. McDaniel, 03-1763, p. 4 (La.App. 3 Cir. 5/19/04), 878 So.2d 686, 689 (emphasis added). Additionally, a party who is physically or mentally incapacitated is not voluntarily unemployed or underemployed. La.R.S. 9:315.11.

Based on the record Mr. Kyle appears to be unemployed. According to Mr. Kyle, the only income he receives comes from his parents. Ms. Kier, Appellee, also testified that Mr. Kyle is unemployed. However, there is a question as to whether Mr. Kyle derives any income from his dog breeding hobby. While Mr. Kyle testified that he has not sold a dog, Ms. Kier testified that Mr. Kyle engages in breeding and selling the dogs. Mr. Kyle provided his own testimony and that of his father to evidence his unemployment and zero income, yet he is physically able to travel to dog shows. Thus, the question is whether Mr. Kyle is voluntarily or involuntarily unemployed. If the latter, Mr. Kyle must also be unemployable in order to have his child support reduced or excused.

After reviewing the evidence and acknowledging the discretion given to the trial court in factual and- credibility determinations, we find Mr. Kyle is voluntarily unemployed. Whether a party is voluntarily unemployed is a question of the good faith of the party cast with paying child support. McDaniel, 878 So.2d 686. Witness credibility determinations are within the wide discretion of the trial courtj 7 Factual findings regarding a party’s good faith in ending or reducing his income will not be disturbed absent an abuse of discretion. Id.; McCorvey, 922 So.2d 694.

In Anderson v. Anderson, 11-864 (La. App. 5 Cir. 5/31/12), 96 So.3d 1278, the fifth circuit found the trial court correctly attributed no income to Ms. Anderson. Ms. Anderson testified she received social security disability benefits and was found' to be disabled by the Social Security Administration. She was disabled, unablé to work, and, therefore, not voluntarily unemployed.

Mr. Kyle asserts he is not employed because of his physical injury. Mr. Kyle asserts he cannot work due to a neck and back injury and introduced medical records from Alexandria Neurosurgical Clinic and Dr. Vaughn. Mr. Kyle’s initial consultation progress note dated July 5, 2016, reported a history of neck pain that was tolerable until approximately three weeks prior ■ to his- appointment. The. progress note further indicates Mr. Kyle reported he typically repairs rental houses, but stopped working' three weeks prior when his pain worsened. Mr. .Kyle’s imaging studies showed a right C5-6 disc herniation.

Dr. Vaughn of Alexandria Neurosurgical Clinic penned a note dated September 2, 2016, regarding Mr. Kyle’s condition. Dr. Vaughn states, “My Patient, Richard Kyle, has been diagnosed with Cervical Degenerative Disc Disease and also Lumbar Spinal Stenosis. Mr. Kyle is limited in his daily activities and is unable to work on a sustained basis.” Dr. Vaughn further opines, “Mr. Kyle is unable at the time to resume any type of gainful employment due to his degeneration of his lumbar and cervical spine. My expectation is that Mr. Kyle will see a continued decline in function over time.”

On the other hand, Ms. Kier asserts Mr. Kyle is voluntarily unemployed. Mr. Kyle testified he travels to dog shows out of town and out of state, is engaged |sin a dog breeding hobby,- mows his grass, and was denied Social Security Disability. Mi*. Kyle testified that sitting and riding in a car to dog shows is no different than lying down. Richard Kyle’s testimony also confirms Mr. Kyle engages in these activities. Mr. Kyle was also unablé to testify when he last worked and when he last applied for social security disability benefits.

Mr. Kyle did not prove there are no jobs he would be able to do due to his injury. Instead, the record shows Mr. Kyle is capable of doing some work, as evidenced by his dog breeding hobby. The trial court clearly found it did not have sufficient evidence to modify child support. Mr. Kyle had the burden of proving a material change in circumstance, and the trial court correctly found he provided insufficient evidence to' meet that burden. The trial court’s1 factual conclusions and witness credibility determinations are reviewed for manifest error.

We affirm the trial court’s finding that Mr. Kyle did not carry his burden in proving a material change in his circumstance warranting a modification and reduction of his child support payments.

MODIFICATION OF CUSTODY AGREEMENT

Mr. Kyle also contends that the trial court committed legal error by modifying the stipulated judgment regarding terms of custody because the issue of overnight guests during custody was not raised by pleading.

Standard of Review

Whether a trial court properly allowed enlargement of the pleadings is a legal question. See Galland v. Galland, 12-1075 (La.App. 3 Cir. 3/20/13), 117 So.3d 105. Questions of law require de novo review. Domingue v. Bodin, 08-62 (La.App. 3 Cir. 11/5/08), 996 So.2d 654. Under a de novo review, the appellate court must review the record in its entirety, giving no special weight to the trial] 9 court’s determinations. Id. Although the trial court is afforded great deference' in child custody determinations, a judgment rendered beyond the pleadings is a nullity. Ussery v. Ussery, 583 So.2d 838 (La.App. 2 Cir. 1991).

Law and Discussion

Under La:Code Civ.P. art. 862, a trial court can render a ‘final judgment granting relief to which a party is entitled, even when that relief is not requested in the pleadings. Ussery, 583 So.2d 838. “Accordingly, ‘under proper circumstances proof beyond the pleadings, .even if objected to, may be admitted and considered when permission to amend the pleadings is requested and granted’” Domingue, 996 So.2d at 657 (quoting Ussery, 583 So.2d at 841). “However, nothing in the article is intended to confer jurisdiction on a court to decide a controversy which the parties have not regularly brought before it.” Ussery, 583 So.2d at 841; Galland, 117 So.3d 105, Domingue, 996 So.2d 654.

Louisiana Code of Civil Procedure Article 1154 also provides:

When issues not raised by the pleadings are tried by express. or implied consent of the parties, they shall be treated in all respects as if they had been raised by the’ pleading. Such amendment of the pleadings as may be necessary to cause them to conform to ■the evidence and to raise these issues ■may be made upon motion of any party at any time, even after judgment; but failure to so amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not , within the issues made by the- pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be sub-served thereby,- and the objecting party fails to satisfy the court-that the admission of such evidence would prejudice him in maintaining his. action or defense on the merits. The .court may grant a continuance.to enable the objecting party to meet such evidence.

ImLouisiana courts have allowed pleadings to be amended in open court or based on the evidence presented. In Gerhardt v. Gerhardt, 46,463 (La.App. 2 Cir. 5/18/11), 70 So.3d 863, the second circuit upheld the trial court’s designation of sole custody to the father, despite the fact he did not-request such relief in the pleadings or in open court. The issue of custody was before the court after the father filed a motion for contempt and suspended visitation, and the mother prayed for sole custody. The Gerhardt trial court examined evidence presented by both parties and then ruled outside the pleadings based on that evidence. The second circuit also points out that, although the father did not pray for sole custody, the mother did. The mother was therefore on notice that custody was an issue before the court.

Again, the second circuit in McEachern v. Langley, 47,872 (La.App. 2 Cir. 1/16/13), 109 So.3d 938, affirmed the trial court’s expansion of the pleadings. The appellant filed a petition for contempt and change of custody. The appellee filed no responsive pleadings. The trial court issued a judgment maintaining the appellee’s sole custody, and reducing the appellant’s visitation. The appellant argued such alteration was in error absent any pleadings or relief requested by the appellee. During the related hearing, the court received evidence from a licensed counselor expressing concern regarding visitation with the appellant. This evidence prompted the trial court to alter the appellant’s visitation, despite the appellee’s failure to request that relief. The appellate court cited Ger-hardt in support of its affirmation, finding a trial court may expand the pleadings based on the evidence presented: “In this case, the trial court clearly explained its reasons for judgment, which were supported by the evidence presented by the parties... ,|n The trial court correctly ruled outside the pleadings based on that evidence, using the best interest of the child standard.” Id. at 941.

In this case, while neither party requested a modification to the custody arrangement in their pleadings, Ms. Kier requested the modification in open court. Specifically, while Ms. Kier was under direct examination, her counsel began questioning her regarding visitation issues:

Q. Ms. Kier, have you ever had any problems with [T.K.] spending the night with his father?
A. Yes. Yes, ma’am.
Q. Can you tell me what those are?
A. Sure. He ... there ... it happened twice. He came home with ink prints.
Mr. Boyett:
Your Honor, I’m going to object to impermissible expansion of the pleadings. We’re not here on custody issues, we’re here on child support and contempt for—for picking up at a daycare.
The Court:
Ms. Fiser?
Ms. Fiser:
Well, I’ll pass that one, Judge, but we did discuss the overnight visitation in the back, and I would like to bring that up.
The Court:
All right. Are you asking that anything be changed in the judgment that is now present?
Ms. Fiser:
I’d ask that both parties be ... are not to have an overnight guest of the opposite sex to whom they are not related, spend the night while they’re having custody of the child. As I understand, that it’s a standard provision that you like to have in the
112- • • •
The Court:
It is. It’s a standard provision. I mean, you’re supposed to be spending time with your child. You don’t have time for somebody else overnight. So I’m just telling both of /all. When you’ve got the child, no overnight guest of the opposite sex.
Ms. Fiser:
So you’re just ruling over that—on that right now, Judge?
The Court:
I—I’m going to put that in regardless of whatever judgment I change or not change.
Ms. Fiser:
Okay.

Although Mr. Kyle did initially object to Ms. Kier’s request to expand the pleadings regarding overnight custody issues, Mr. Kyle went on to cross examine Ms. Kier regarding custody arrangement issues. Both parties’ counsel questioned Ms. Kier about the custody arrangement. Consequently, the door was opened for the custody arrangement issue to be considered.

Moreover, the trial court has the authority under La.Code Civ.P. arts. 862 and 1154 to award relief not specifically requested in the pleadings when such relief is regularly brought before the court. “[T]he court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby, and the objecting party fails to satisfy the court that the admission of such evidence would prejudice him in maintaining his action or defense on the merits.” La.Code Civ.P. art. 1154.

Ms. Kier brought the issue of the overnight-guest provision before the court in open court, after it was discussed in chambers. Though Mr. Kyle did object to | isher bringing the issue before the court, he did not object to the court’s ruling on the issue in open court and the parties moved on to question Ms. Kier about custody related matters. Accordingly, we find that the trial court correctly considered the custody arrangement issue given the expansion of the pleadings based on the evidence presented.

However, whether the issue was properly raised does not end the inquiry to this assignment of error. The question remains whether the trial court was presented with sufficient evidence to modify the stipulated judgment. A trial court’s child custody determination is to be afforded great deference. McManus v. McManus, 13-699 (La.App. 3 Cir. 12/11/13), 127 So.3d 1093. “An appellate court should be reluctant to interfere with custody plans implemented by the trial court in the exercise of its discretion.” Gerhardt, 70 So.3d at 868.

When modifying a custody award, the Louisiana Supreme Court holds the “overarching inquiry” in an action to change custody is “the best interest of the child.” Tracie F. v. Francisco D., 15-1812, p. 1 (La. 3/15/16), 188 So.3d 231, 235. Additionally, when the custody decree at issue is a stipulated judgment, “the party seeking modification must prove (1) that there has been a material change of circumstances since the original custody decree was entered,, and (2) that the proposed modification is in the best interest of the child.” Trade F., 188 So.3d at 239-40.

The parties did not present evidence pertaining to overnight guests. However, Ms. Fiser’s comment makes it evident some discussion occurred in chambers on the subject: “Well, I’ll pass that one, Judge, but we did discuss the overnight visitation in the back, and I would like to bring that up.” The trial court also commented that the provision is standard, and its purpose is to ensure the |uparent is spending time with the child, not with guests. This modification regarding overnight guests is obviously in the best interest of the child.

Based on our review of the record, we find the issue of modification was properly raised in open court, and there was no error in the trial court’s modification. The trial court’s judgment is affirmed.

CONCLUSION

For these reasons, we find the trial court did not err in denying Appellant’s motion for modification of child support and grant of Appellee’s modification of child custody. The judgment of the trial court is affirmed. Costs of this appeal are assessed to Plaintiff/Appellant. .

AFFIRMED. THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. RULE 2-16.3, UNIFORM RULES— COURTS OF APPEAL.-

      . To avoid confusion between both Richard Brandon Kyle (Appellant) and Richard Dale Kyle (his father), we will refer to Appellant as "Mr. Kyle” and the father as "Richard Kyle.”

      . A motion for contempt filed by Ms. Kier was also at issue at this hearing. Ms. Kier agreed to withdraw the motion during the hearing. Therefore, the trial court dismissed Ms. Kier's Motion for Contempt in its Judgment.

      . The minor’s initials are used to protect the confidentiality of the minor in accordance with Uniform Rules- Court of Appeal, Rules 5-1, 5-2.


author: GREMILLION, Judge.

text:
    Salamander LAND, LLC, et al. v. Jane Renee Johnson SMITH, et al.
    17-418
    17-328
    Court of Appeal of Louisiana, Third Circuit.
    11/22/2017
    John S. Bradford, Stockwell, Sievert, Viccellio, Clements <& Shaddock, L.L.P., P. O. Box 2900, Lake Charles, LA 70602, (337) 436-9491, COUNSEL FOR DEFENDANTS/APPELLANTS: Hugh Clark Hinton, Jane Renee Johnson Smith, Trentice Van Johnson, Jr., Robert Hugh Johnson, Martha Ann Hardee Languirand, Samual Jackson Hinton
    Michael S. Coyle, Attorney at Law, Post Office Box 636, Ruston, LA 71273-0636, (318) 254-8200, COUNSEL FOR DEFENDANTS/APPELLANTS: Hugh Clark Hinton, Jane Renee Johnson Smith, Robert Hugh Johnson, Leon Lucien Lan-guirand, Executor, Succession of Martha Ann Hardee Languirand, Samual Jackson Hinton, Trentice Van Johnson, Jr.
    William A. Jones, Jr., Attorney at Law, Post Office Box 2644, Ruston, LA 71273-2644,. (318) ■ 255-2944, .COUNSEL. FOR DEFENDANTS/APPELLANTS:, Tren-tice Van Johnson, Jr., Robert Hugh Johnson, Hugh Clark Hinton, Leon Lucien Languirand, Executor, Succession of Martha Ann Hardee Languirand, Samual Jackson Hinton, Jane Renee Johnson Smith
    ■ Charles E. Tabor, Gregorio, Chafin, Johnson, Poolson & Tabor, L.L.C., 7600 Fern Avenue, Building 700, Shreveport, LA 71105, (318) 865-8680, COUNSEL FOR PLAINTIFFS/APPELLEES: SHS Investments, • LLC,, Salamander Land, LLC
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

hFor the reasons set forth in the consolidated case found at 17-328 (La.App. 3 Cir. 11/22/17, — So.3d -, the judgment of the trial court reforming a deed due to mutual error and placing the plaintiffs in possession of the property in question, is affirmed. All costs of this appeal are assessed against the defendants-appellants, Jane Renee Johnson Smith, Trentice Van Johnson, Jr., Robert Hugh Johnson, Martha Ann Hardee Languirand, Hugh Clark Hinton, and Samual Jackson Hinton.

AFFIRMED.


author: SAUNDERS, Judge.

text:
    Steve BLANCHARD v. Michael J. MITCHELL, et al.
    17-444
    Court of Appeal of Louisiana, Third Circuit.
    July 12, 2017
    Joseph B. Stamey,' Stanley & Miller, L.L.C., P. O. Drawer 1288 Natchitoches, LA 71458-1288, (318) 352-4559 COUNSEL FOR DEFENDANT/RESPONDENT: State Farm Mutual Automobile Insurance Company
    Cory P. Roy, Brandon J. Scott, Benjamin D. James, Renee Y. Roy, Roy & Scott, Attorneys at Law, .107 North Washington Street, Marksville, LA 71351, (318) 240-7800 COUNSEL FOR PLAINTIFF/RESPONDENT: Steve Blanchard
    Wade A. Johnson, Law Office of Sheryl Story,. One Galleria Blvd, Suite 1500, Me-tairie, LA 70001-7551, (504) 846-4110 COUNSEL FOR DEFENDANT/APPLICANT: Robin Ewing Pool Supplies, Inc.
    Mary K. Cryar, Coverage Litigation Group, One Galleria Blvd, Suite 1502, Me-tairie, LA 70001, (504) 846-4103 COUNSEL FOR DEFENDANT/APPLICANT: Valley Forge Insurance Company
    Jeffrey S. Ingram, 2757 Highway 28 East, Pineville, LA 71360, (318) 484-3911 COUNSEL FOR DEFENDANT/RESPONDENT: State Farm Mutual Automobile Insurance Company
    Michael J. Mitchell In Proper Person, 424 Faithway, Alexandria, LA 71302 COUNSEL FOR DEFENDANT/ RESPONDENT: Michael J. Mitchell
    Court composed of John D. Saunders, Phyllis M. Keaty, and Candyce G. Perret, Judges.
   SAUNDERS, Judge.

_JjOn June 26, 2014, Troy Rogers was acting within the course and scope of his employment with Relator, Robin Ewing Pool Supplies, Inc. (“Robin Ewing Pool Supplies”) when he went to a customer’s house to clean a swimming pool. Mr. Rogers drove a vehicle owned by Relator to get to the customer’s home in Alexandria, Louisiana. When Mr. Rogers arrived at the customer’s residence, he parked the vehicle on the street in front of the residence. Mr. Rogers left the keys in the vehicle during the twenty to twenty-five minutes that he was working on the customer’s pool. While the vehicle was parked on the street, Michael Mitchell entered the vehicle and drove away in it. When Mr. Rogers heard the vehicle crank up, he ran after the vehicle and later reported it stolen. While Mr. Mitchell was driving the vehicle owed by Relator, he got into an accident with Plaintiff, Steve Blanchard. As a result of the accident, Plaintiff filed a personal injury lawsuit against his UM insurer, State Farm Mutual Automobile Insurance Company; Mr. Mitchell; and Relators herein (Robin Ewing Pool Supplies, and its UM insurer, Valley Forge Insurance). Relators filed a motion for summaiy judgment seeking dismissal of Plaintiffs claims against them. The trial court denied the motion for summary judgment, and Relators now seek review of that ruling.

SUPERVISORY RELIEF

Since the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may be taken, the only practical remedy available to avoid a possible useless trial on the merits is to request that the appellate court exercise its supervisory jurisdiction to review the propriety of this ruling. Louviere v. Byers, 526 So.2d 1253 (La.App. 3 Cir.), writ denied, 528 So.2d 153 (La.1988).

LON THE MERITS

Relators assert that the trial court erred when it denied their motion for summary judgment. Relators contend that Plaintiff is attempting to have them held liable for the automobile accident at issue based on their violation of La.R.S. 32:145, which provides as follows:

No person driving or in charge of any motor vehicle shall permit it to stand unattended without first stopping the motor, locking the ignition, removing the key, and effectively setting the brake thereon, and, when standing upon any grade, turning the front wheels .to the curb or side of the highway.

Relators maintain that Plaintiff takes the position that a violation of La.R.S. 32:145 constitutes a breach of duty owed to Plaintiff by Mr. Rogers (the employee of Relator, Robin Ewing Pool Supplies). However, Relators argue that Louisiana has rejected the doctrine of negligence per se. In that regard, Relators note the Louisiana Supreme Court has stated that “[t]he terminology ‘negligence per se’ has been rejected in Louisiana. The violation of a statute or regulation does not automatically, in and of itself, impose civil liability. Civil responsibility is imposed only if the act in violation of the statute is the legal cause of damage to another.” Faucheaux, 615 So.2d at 292-93 (citation omitted). In the instant case, Relators assert that Mr. Rogers, who left the keys in the vehicle owned and insured by Relators, did not owe a duty to Plaintiff, and, alternatively, Relators argue that even if a duty was owed to Plaintiff, the duty did not encompass the risk that a thief would steal a vehicle and later become involved in an accident. In support of their position, Relators cite various cases, including DeCastro v. Boylan, 367 So.2d 83, 84 (La.App. 4 Cir.), writ denied, 369 So.2d 458 (La.1979) (citations omitted), wherein the fourth circuit held as follows:

The courts in the majority of jurisdictions which have statutes prohibiting the leaving of keys in unattended automobiles have | .^construed the purpose of these laws to be the protection of automobile owners or as an aid to police officers. They have not held its purpose to be the protection of third parties from the negligent operations of thieves. The purpose of the subject Louisiana statute appears to have been intended to prevent the theft of vehicles from the public streets and roadways. We conclude that R.S. 32:145 does not go as far as to protect a plaintiff from being negligently injured by one who has stolen his car with the keys left in it.

In his opposition to the instant writ application, Plaintiff argues that the DeCas-tro decision is dated and that it does not appear to be in accord with the more modern trend of finding that it is foreseeable that a stolen vehicle may be used in a reckless manner thus causing injury to a third person. Plaintiff asserts that the court in DeCastro, 367 So.2d 83, incorrectly concluded that the duty owed under La.R.S. 32:145 does not extend to the victim of an accident caused by the driver of the stolen vehicle. According to Plaintiff, it is foreseeable that a person who is willing to steal a vehicle is going to drive it in a negligent manner in order to avoid being discovered or arrested. As such, Plaintiff maintains that the likelihood of an accident occurring increases after a vehicle is stolen. Further, Plaintiff maintains that it is contradictory to say that while the purpose of La.R.S. 32:145 is to prevent theft of a vehicle, the duty imposed by the statute does not extend to protect the foreseeable victim of an accident caused by the automobile thief.

We find that although the fourth circuit concluded in DeCastro, 367 So.2d 83, that La.R.S. 32:145 does not go as far as to protect a plaintiff from being negligently injured by one who jias stolen a car, the DeCastro decision is hot binding authority for this court. Rather, we find that Plaintiff has made compelling arguments in favor of a finding that the duty imposed by La.R.S. 32:145 extends to situations in which the keys are left in a vehicle and the vehicle is then stolen and driven recklessly by the thief who foreseeably causes injury to a third person.

|4We find that because Mr. Rogers acknowledges leaving the jceys in the vehicle owned by Relator, Room Ewing Pool Supplies, he did violate La.R.S. 32:145. We note that the Louisiana Supreme Court has held that “[c]ivil responsibility is imposed only if the act in violation of the statute is the legal cause of damage to another.” Faucheaux v. Terrebonne Consol. Gov’t, 615 So.2d 289, 292-93 (La. 1993). Accordingly, in the instant case, we find that Mr. Rogers’ violation of La.R.S. 32:145 results in Relators (Mr. Rogers’ employer and that employer’s insurer) having civil liability for Plaintiffs damages only if-that-statutory violation can be deemed to be a legal cause of Plaintiffs damages. As noted by Plaintiff, the- jurisprudence has held that “(c]ause-in-fact and legal cause are generally questions'for the jury. The exception is when, under the uncontested facts, reasonable minds could not differ.” Nicholson v. Calcasieu Parish Police Jury, 96-314, p. 6 (La.App. 3 Cir. 12/11/96), 685 So.2d 507, 511 (citation omitted). In the instant case, we find that the fact finder could reasonably conclude that Mr. Rogers’ leaving the keys in the vehicle contributed to Plaintiffs accident to some extent.

For the foregoing reasons, we find that the trial court did not err in denying Rela-tors’ motion- for summary judgment. Therefore, the 'instant writ application is denied. ...

WRIT DENIED. We find no error in the trial court’s ruling.


author: PENZATO, J.

text:
    Robert J. ELLIS, Jr. v. LOUISIANA BOARD OF ETHICS THROUGH the STATE of Louisiana, Blake Monrose as Chairman of the Louisiana Board of Ethics, Michael Dupree, Kathleen Allen, Sue Mooney, and Aaron Brooks, in their Official and Individual Capacity
    2017 CA 0385
    Court of Appeal of Louisiana, First Circuit.
    Judgment Rendered: November 1, 2017.
    See also 168 So.3d 714.

      Salvador I. Bivalacqua, Scott M. Ga-lante, New Orleans, Louisiana, Attorneys for Plaintiff/Appellant, Robert J. Ellis, Jr.
    Jeff Landry, Attorney General, Andrew Blanchfleld, Special Assistant Attorney General, Baton Rouge, Louisiana, Attorneys for Defendants/Appellees, The State of Louisiana, through the Louisiana Board of Ethics, Blake Monrose as Chairman of the Board of Ethics, Kathleen Allen, Sue Mooney and Aaron Brooks, in their Official and Individual Capacity
    BEFORE: HIGGINBOTHAM, HOLDRIDGE, AND PENZATO, JJ.
   PENZATO, J.

| ^Plaintiff, Robert J. Ellis, Jr. (Ellis), appeals from a summary judgment in favor of the defendants, the State of Louisiana, through the Louisiana Board of Ethics, Blake Monrose as Chairman of the Board of Ethics, Kathleen Allen, Sue Mooney, and Aaron Brooks (Defendants), in their official and individual capacity, dismissing his claims against Defendants with prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

The factual and procedural history leading up to this case is more fully set forth in this court’s earlier opinion, Ellis v. Louisiana Bd. of Ethics, 2014-0112 (La. App. 1 Cir. 12/30/14), 168 So.3d 714, writ denied, 2015-0208 (La. 4/17/15), 168 So.3d 400. In sum, on September 15, 2011, the Louisiana Board of Ethics (the Board) voted to conduct a confidential investigation of Ellis for various potential violations of the Code of Governmental Ethics (Code of Ethics). On August 16, 2014, at its regularly scheduled meeting, the Board voted to file charges against Ellis for violating provisions of the Code of Ethics. Id. at 718. Ellis filed a dilatory exception raising the objection of prematurity, based on his contention that the charges should be dismissed because the Board did not complete its investigation prior to filing charges against him, which constituted a violation of La. R.S. 42:1141C. Id. at 718-19. The Louisiana Ethics Adjudicatory Board (EAB) overruled Ellis’ exception, and Ellis sought supervisory writs from this court. On December 30, 2014, this court granted Ellis’ writ application and reversed the ruling of the EAB overruling Ellis’ exception of prematurity, finding that the Board was unable to show a prima facie case of the alleged violations prior to filing formal charges, and therefore the formal charges were premature. Id. at 726. The court dismissed the charges against Ellis.

As a result of the dismissal of the charges, on December 30, 2015, Ellis filed |athe instant suit against the Board, Mon-rose as Chairman of the Board, and Michael Dupree , Allen, Mooney, and Brooks, in their official capacity as attorneys and legal counsel for the Board, and in their individual capacity. In his petition, Ellis alleged that the Board filed charges without supporting evidence in order to defeat prescription, and that the State’s attorneys recklessly misrepresented to the Board, the EAB and the First Circuit Court of Appeal that the investigation had been completed and that they had sufficient evidence to establish a prima facie case. Ellis alleged constitutional violations under 42 U.S:C. § 1983 as well as a claim for malicious prosecution.

Defendants answered the suit on March 28, 2016, denying liability and asserting that they were entitled to immunity for discretionary acts performed in the course and scope of their lawful powers and duties as employees of the State of Louisiana. Thereafter, Defendants filed an amended answer reiterating their discretionary immunity pursuant to statute and asserting that they were entitled to absolute quasi-judicial immunity and absolute quasi-prosecutorial immunity.

On June 22, 2016, Defendants filed a motion for summary judgment, contending that in determining whether to bring formal charges for ethics violations against Ellis, Defendants were acting in a quasi-judicial and/or quasi-prosecutorial function, and were therefore entitled to absolute immunity. Defendants further urged in the alternative that they were entitled to qualified immunity. Finally, Defendants asserted that they were entitled to qualified immunity for Ellis’ 42 U.S.C. § 1983 claims in their personal capacity. In support of their motion for summary judgment, Defendants attached the affidavit of Deborah S. Grier, the Executive Secretary and custodian of records for the Board, |4who testified that she had personal knowledge of the Ellis matter. Ms. Grier attested that on August 1, 2011, the Board received information concerning potential violations of the Code of Ethics by Ellis, and that in its September 15, 2011 executive meeting, the Board referred Ellis to investigation. She further attested' that an investigator employed by the Ethics Administration Program was charged with gathering information and issued an investigative report. According to Ms. Grier, the Board reviewed this report at its August 16, 2012 meeting, and voted to issue charges against Ellis. She stated that at all pertinent times, Monrose, Allen, Mooney, and Brooks acted within their official capacities and within the lawful duties set forth in La. R.S. 42:1141. Finally, Ms. Grier t stated that at all pertinent times, the Board believed that it had competent evidence to issue formal charges against Ellis.

Ellis filed an opposition to the motion for summary judgment, maintaining that as this court and the Louisiana Supreme Court had previously ruled that the Board, its chairman, and its attorneys did not complete their investigation to establish a prima facie case before filing charges against Ellis, the doctrines of law of the case and res judicata served to defeat the motion for summary judgment as there was clearly no immunity, qualified or otherwise, afforded the Board, its chairman, or its attorneys for a proceeding in direct violation of statutory mandates. Ellis also argued that summary judgment was premature. Following a hearing on October 31, 2016, the trial court granted Defendants’ motion for summary judgment and all of Ellis’ claims were dismissed by judgment dated December 2, 2016. It is from this judgment that Ellis appeals.

ASSIGNMENTS OF ERROR

Ellis asserts the following assignments of error:

(1) The trial court erred in finding that Defendants’ actions were quasi-judicial and entitled to absolute immunity;
⅛(2) The trial court erred in finding that Defendants’ mixed role of prosecutor and investigator did not negate absolute immunity;
(3) The trial court erred in finding that Defendants had qualified immunity; and
(4) The trial court erred by granting summary judgment without discovery,

LAW AND DISCUSSION

After an opportunity for adequate discovery, 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. La. Codé Civ. Pro. art. 966A(3). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. See La. Code Civ. Pro. art. 966A(2). In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Reynolds v. Bordelon, 2014-2371 (La. 6/30/15), 172 So.3d 607, 610.

A summary judgment may be rendered or affirmed only as to those issues set forth in the motion under consideration by the court at that time. La. Code Civ. Pro. art. 966F. The burden of proof is on the mover. See La. Code Civ. Pro. art. 966D(1). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover’s burden does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof | Bat trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. La. Code Civ. Pro. .art. 966D(1); Bryant v. Premium Food Concepts, Inc., 2016-0770 (La. App. 1 Cir. 4/26/17), 220 So.3d 79, 81-82, writ denied, 2017-0873 (La. 9/29/17), 227 So.3d 288. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Id. at 82.

We first address Ellis’ fourth assignment of error asserting that the trial court erred by' granting summary judgment without discovery. Ellis alleges that there has been no discovery, ‘nor the requisite investigation to determine issues of material fact to the claims presented in his petition for damages. He further argues that at the time of the hearing on the motion for summary judgment, there was a pending motion to compel responses to his request for production of documents.

The record in this case reveals that Ellis did'not propound discovery until June 24, 2016, after the motion for summary judgment was filed and nearly six months after he filed suit. He did not file a motion to compel until October 19, 2016, although the hearing on the motion for summary judgment was set for October 31, 2016. Ellis did not request a continuance of the hearing on the motion for summary judgment. Moreover, he failed to file an affidavit showing facts essential to justify his opposition or why he could not justify his opposition as required by La. Code Civ. Pro. art. 967. See Vanderbrook v. Coachmen Indus., Inc., 2001-0809 (La. App. 1 Cir. 5/10/02), 818 So.2d 906, 911.

There is no absolute right to delay action on a motion for summary judgment until discovery is completed. Id. Under La. Code.Civ. Pro. art. 967, a trial judge clearly has the discretion to issue a summary judgment after the filing of affidavits, or the judge may allow further affidavits or discovery to take place. Simoneaux v. E.I. du Pont de Nemours & Co., Inc., 483 So.2d 908, 912 (La. 1986). The only ^requirement is that the parties be given a fair opportunity to present their claim. Unless plaintiff shows a probable injustice, a suit should not be delayed pending discovery when it appears at an early stage that there is no genuine issue of fact. Id. at 913. The mere claim by an opponent to a motion for summary judgment that he does not have in his possession the facts and information necessary to counter such a motion will not defeat a summary judgment motion. Vanderbrook, 818 So.2d at 911.

Under the facts of this case, Ellis had the opportunity for “adequate discovery.” La. Code Civ. Pro. art. 966A(3). Additionally, notwithstanding Ellis’ allegation that there has been no discovery, he cannot rely on “the mere allegations or denials of his pleading” to rebut a supported motion for summary'judgment. La; Code Civ. Pro. art. 967B. Rather,-Ellis “must'set forth specific facts showing that there- is a genuine issue for trial.” Id. Ellis has failed to do so. Ellis has also failed to comply with the provisions of La. Code Civ. Pro. art. 967C that he file an affidavit ’Stating the reasons why he cannot present by affidavit facts essential to justify his opposition to the motion for summary judgment, thus allowing the court to order a, continuance or.to.allow discovery. Therefore, this assignment of error is without merit.

We now address Ellis’ contention that the previous decision in Ellis, 168 So.3d 714, (“Writ Action”) precludes Defendants from asserting an immunity defense in this case. Ellis argues that “as a matter of law of this case, the- defendants have been adjudged to have violated a non-discretionary statute, and therefore cannot be entitled to any immunity whatsoever.” We find that Ellis’ reliance on the “law of the case” doctrine is misplaced. The law of the case refers to a policy by which the court will not reconsider prior rulings in the same case. Arceneaux v. Amstar Corp., 2010-2329 (La. 7/1/11), 66 So.3d 438, 448. The matter pending before this Court is a completely separate case, involving different legal issues. The Writ ^Action involved an interpretation of La. R.S. 42:1141 to determine whether the Board had completed its investigation before bringing formal charges against Ellis. The pending matter alleges constitutional violations under 42 U.S.C. § 1983 and a claim for malicious prosecution. Thus, the law of the case principle is inapplicable. See Wehrlin v. Manitowoc Co., Inc., 2014-0428 (La. App. 1 Cir. 1/31/17), 2017 WL 436397 (unpublished), writ denied, 2017-0391 (La. 4/13/17), 218 So.3d 631. Defendants, therefore, are not precluded from asserting immunity with regard to Ellis’ pending claims.

We next address Ellis’ first assignment of error, alleging that the trial court erred in finding that Defendants’ actions were quasi-judicial and entitled to absolute immunity. The doctrine of judicial immunity provides judges with absolute immunity from liability for acts done in their judicial capacities. See Knapper v. Connick, 96-0434 (La. 10/15/96), 681 So.2d 944, 946. This absolute immunity has been extended to prosecutors acting within the scope of their prosecutorial duties as an advocate for the state. Id. at 951. Further, because many 19administrative boards and commissions have a quasi-judicial function, it has become common for courts to recognize quasi-judicial immunity, equivalent to judicial immunity, for such boards and commissions, and their individual members, for actions taken and decisions made in their adjudicative role. Talbert v. Louisiana State Bd. of Nursing, 2003-0258 (La. App. 1 Cir. 12/31/03), 868 So.2d 729, 730. Similarly, the doctrine of absolute prosecu-torial immunity has been extended to agency officials performing certain functions analogous to those of a prosecutor, such as the decision to initiate administrative proceedings against an individual. See Butz v. Economou, 438 U.S. 478, 515, 98 S.Ct. 2894, 2915, 57 L.Ed.2d 895 (1978).

The Board is charged with administering and enforcing the provisions of the Code of Ethics. La. R.S. 42:1132C. The purpose of the Code of Ethics is to further the public interest by ensuring that the law protects against conflicts of interest on the part of Louisiana’s public officials and state employees by establishing ethical standards to regulate the conduct of those persons. See La. R.S. 42:1101; In re Arnold, 2007-2342 (La. App. 1 Cir. 5/23/08), 991 So.2d 531, 536. The eleven-member Board is given the authority to investigate and pursue formal charges through either public or private hearings against an individual or entity for alleged violations of the Code of Ethics. See La. R.S. 42:1101 and 42:1134; Ellis, 168 So.3d at 721. Upon receiving a sworn complaint concerning a violation of the Code of Ethics, or voting to consider a matter which it has reason to believe may be a violation of the Code of Ethics, a private investigation shall be conducted to elicit evidence upon which the Board shall determine whether a public hearing should be conducted or that a violation has not occurred. La. R.S. 42:1141B(l)(a), C(l). If the Board determines following an investigation that a public hearing should be conducted, it shall issue charges. La. R.S. 42:1141C(3)(a).

ImThe acts of which Ellis complains in his petition are as follows:

(1) With regard to the Board, he claims that it filed charges against him without supporting evidence in order to defeat prescription;
(2) With regard to Monrose, that he signed the formal charges against Ellis as chairman of the Board;
(3) With regard to Allen, Mooney, and Brooks, that they recklessly misrepresented to the Board, the EAB, and the First Circuit Court of Appeal that the investigation had been completed and that they had sufficient evidence to establish a prima facie case; and
(4)With regard to Allen and Brooks, in their individual capacity, they failed to follow the prescribed legislative statutory process, they inadequately supervised their subordinates, and they acquiesced or were deliberately indifferent to a policy or custom which deprived Ellis of his constitutional rights.

As noted above, Ms. Grier testified by affidavit that the Board received information concerning potential violations of the Code of Ethics by Ellis, and that the Board referred Ellis to investigation. She further attested that an investigator employed by the Ethics Administration Program was charged with gathering information and issued an investigative report, and that after reviewing the report, the Board voted to issue charges against Ellis. She stated that at all pertinent times, the Board believed that it had competent evidence to issue formal charges against Ellis. Finally, Ms. Grier attested that all pertinent times, Monrose, Allen, Mooney, and Brooks acted within their official capacities and within the lawful duties set forth in La. R.S. 42:1141.

We find that the Board’s procedures share enough of the characteristics of Inthe judicial process that quasi-judicial and/or quasi-prosecutorial immunity should be extended to the Board, and its individual members, for actions taken and decisions made in their adjudicative role. See Durousseau v. Louisiana State Racing Comm’n, 98-0442 (La. App. 4 Cir. 12/9/98), 724 So.2d 844, 846, writ denied, 99-0034 (La. 2/12/99), 738 So.2d 582. Extending such quasi-judicial immunity to the Board’s administrative adjudicatory decisions preserves the independence of judgment of the adjudicators by foreclosing any possibility of intimidation or deterrence through the threat or actuality of suits for damages. See Talbert, 868 So.2d at 731. We further find that the acts of Allen, .Mooney, and Brooks of which Ellis complains are akin to those of a prosecutor, entitling them to absolute immunity. See Forman v. Ours, 804 F.Supp. 864 (E.D. La. 1992), aff'd, 996 F.2d 306 (6th Cir. 1993). Thus, this assignment of error is without merit.

We next address Ellis’ second assignment of error asserting that the trial court erred in finding that Defendants’ mixed role of prosecutor and investigator did not negate absolute immunity. Ellis contends that where there is a mixing of investigative and prosecutorial functions, there can be no absolute immunity, citing Buckley v. Fitzsimmons, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). In Buckley, the United States Supreme .Court stated that a prosecutor’s administrative duties and those investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution or for judicial proceedings- are not entitled to absolute immunity. Id., 609 U.S. at 273, 113 S.Ct. at 2616.

Ms. Grier testified by affidavit that the Board referred Ellis to investigation, and that an investigator employed by the Ethics Administration Program was charged with gathering information and issued an investigative report. Thereafter, the Board reviewed the report and voted to issue charges against Ellis. Ellis failed to produce factual support’ sufficient to establish that Defendants performed any investigatory functions that were not an integral part of their authority to pursue 112formal charges against an individual or entity for alleged violations of the Code of Ethics. See La. R.S. 42:1134. Thus, Ellis failed to establish the existence of a genuine issue of material fact or that Defendants are not entitled to judgment as a matter of law. La. Code Civ. Pro. art. 966. Therefore, this assignment of error is without merit.

Finally, we pretermit discussion of Ellis’ third assignment of error regarding the trial court’s finding that Defendants were entitled to qualified immunity pursuant to La. R.S. 9:2798.1. As we have found that Defendants are entitled to absolute immunity from Ellis’ claims, we need not address this alternative ground for dismissal of Ellis’ claims.

CONCLUSION

Based on the foregoing, we affirm the December 2, 2016 judgment of the trial court. All costs of this appeal are assessed to the plaintiff, Robert J. Ellis, Jr.

AFFIRMED,

      . The original petition named Michael Dupree as a defendant. However, no mention is made of Mr. Dupree in the answer to the petition, the amended answer, or the motion for summary judgment.

      . Defendants incorrectly cited that they were entitled to such immunity pursuant to La. R.S. 9:2798, not La. R.S. 9:2798.1.

      . Ellis also contends, without briefing same, that the doctrine of res judicata serves to defeat immunity. We find that his reliance on this doctrine is also misplaced. The doctrine of res judicata is set forth in La. R.S. 13:4231, and provides:
      Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
      (1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of .the litigation are extinguished and merged in the judgment.
      (2) if the judgment is in favor of the defendant, all causes of action existing at the time' of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
      (3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
      The pending matter involves additional parties than were involved in the Writ Action. Moreover, the cause of action asserted in this suit arose as a result of the dismissal of the charges at issue in the Writ Action, and therefore Ellis’ claims of constitutional violations under 42 U.S.C. § 1983 and malicious prosecution were not, nor could they have been, actually litigated and determined at that time.

      . Ellis did not raise on appeal the trial court's ruling that Allen, Mooney, and Brooks were entitled to immunity for Ellis' 42 U.S.C. § 1983 claims in their individual capacity. Thus, the dismissal of these parties in their individual capacities is a final judgment.