text:
    Walton DILL, Plaintiff-Appellant v. 32nd JUDICIAL DISTRICT COURT JUDICIAL CLERK'S FUND, Terrebonne Parish Consolidated Government, 32nd Judicial Court IV-D Agency, The Parochial Employees Retirement System, and The Terrebonne Parish District Attorney, Defendants-Appellees.
    No. 44,949-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 16, 2009.

      Dan Michael Scheuermann, for Appellant, Walton Dill.
    David G. Sanders, Patricia Hill Wilton, Bridget Benoit Denicola, for Appellees, 32nd Judicial District Court Judicial Clerk’s Fund and the 32nd Judicial District Court IV-D Agency.
    Danna E. Schwab, Kathryn W. Richard, for Appellee, Terrebonne Parish Consolidated Government.
    William Ford Dodd, for Appellee, Terre-bonne Parish D.A.
    Before BROWN, GASKINS and DREW, JJ.
   DREW, J.

| tin this dispute over retirement benefits, Walton Dill appealed the judgment sustaining defense exceptions of prescription and dismissing his suit with prejudice for failure to timely file the lawsuit under La. C.C. art. 3494. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On March 13, 2008, Walton Dill sought damages and a declaratory judgment against the following defendants:

• 32nd Terrebonne Parish Judicial District Court (JDC) and its Judicial Clerk’s Fund;
• Terrebonne Parish Consolidated Government (TPCG), formerly the Terre-bonne Parish Police Jury (TPPJ);
• 32nd Terrebonne Parish Judicial District Court IV-D Fund Agency;
• Parochial Employees’ Retirement System (PERS); and
• Terrebonne Parish District Attorney (DA).

Dill alleged that his employment (as judicial administrator) began on April 12, 1982, and ended in March 2007, when he was terminated by the elimination of his position. His last work day was March 17, 2006, when he went on extended sick leave. According to Dill, the various defendants paid varying amounts of his salary over the years. When terminated, his salary came from the 32nd JDC, the Judicial Clerk’s Fund, TPCG general fund, the IVD Fund, and the DA’s general fund.

According to Dill’s petition, the TPCG attempted to eliminate his position in 1984. The judges advised the TPCG that it could not eliminate the position, since Dill was not hired by the parish. From January 1, 1985, through January 1989, the Judicial Clerk’s Fund paid Dill’s entire salary. | aThen the DA assumed partial responsibility for Dill’s salary ($16,200 annually, paid by the quarter) and reimbursed the TPCG that amount. At that time, Dill’s total salary was paid by the TPCG with the DA reimbursing the parish the foregoing amount.

Dill alleged that in December 1999, an administrator for the PERS notified the TPCG that Dill was entitled to enroll in the retirement system and that enrollment was mandatory. TPCG failed to act and was again notified in August 2002 that Dill’s enrollment in the retirement system was mandatory. Dill was enrolled and began making employee contributions while the employer contributions were made from the Judicial Clerk’s Fund. According to Dill, he met the statutory definition of an employee under La. R.S. 11:1902(12)(a).

Dill sought retirement credit for his service prior to his enrollment, since his not being enrolled in the retirement system was through no fault on his part. He demanded that the various defendants be held liable for their proportionate employer contributions to the retirement system beginning in 1982. He also wanted the interest which would have accrued to be assessed against the defendants. In addition to the delinquent contributions and interest, Dill asked for compensatory damages for mental anguish and emotional distress caused by the financial stress inflicted upon him.

In its Reasons for Judgment, the trial court stated that when Dill was hired as a judicial administrator in 1982 by the General Fund of the Police Jury and the Criminal Court Fund, his employment permitted him to be enrolled in the PERS to which he and the employer made contributions. | ¾When he began working for the Judicial Clerk’s Fund, he was removed from PERS. A request for a refund of the contributions was made and a refund of Dill’s personal retirement contributions was given in 1985. In 2002, Dill inquired about enrolling himself and other employees in a retirement system and inquired about purchasing past credit. In 2004, Dill considered filing suit, but did not file until March 13, 2008. The foregoing facts were demonstrated by exhibits placed into evidence at the hearing on prescription. In particular, the trial court cited a petition forwarded to the TPCG on February 7, 2005, by Dill’s attorney, who informed the TPCG that he had been instructed to file the suit.

After the March 13, 2008, filing, the 32nd JDC Judicial Clerk’s Fund and the 32nd JDC IV-D Program Fund filed dilatory exceptions of lack of procedural capacity which were sustained in reasons assigned August 26, 2008. The judgment signed January 23, 2009, dismissed Dill’s action with prejudice against both the Judicial Clerk’s Fund and the IV-D fund. The TPCG, the Terrebonne Parish DA, the 32nd JDC Judicial Clerk’s Fund, and the 32nd JDC IV-D Program Fund filed exceptions of prescription.

The trial court specifically found that contributions to retirement plans are a form of deferred compensation and subject to the three-year prescriptive period. Noting that Dill had hired an attorney in 2004 but did not sue until 2008, the trial court held the claim had prescribed under the |4three-year prescriptive period. In addition, the trial court rejected Dill’s argument that the claim did not vest until the date of his retirement.

DISCUSSION

Dill correctly noted that the criterion of appellate review for the factual finding (commencement of prescription) is the manifest error/clear wrong standard and that prescription statutes are to be strictly construed.

La. C.C. art. 3494 states:

The following actions are subject to a liberative prescription of three years:

(1) An action for the recovery of compensation for services rendered, including payment of salaries, wages, commissions, tuition fees, professional fees, fees and emoluments of public officials, freight, passage, money, lodging, and board;
(2) An action for arrearages of rent and annuities;
(3) An action on money lent;
(4) An action on an open account; and
(5) An action to recover underpayments or overpayments of royalties from the production of minerals, provided that nothing herein applies to any payments, rent, or royalties derived from state-owned properties.
La. C.C. art. 3495 states:
This prescription commences to run from the day payment is exigible. It accrues as to past due payments even if there is a continuation of labor, supplies, or other services.

In Fishbein v. State of La. ex rel. LSUHSC, 2004-2482 (La.4/12/05), 898 So.2d 1260, the plaintiff sought to recover retirement benefits calculated on both her base salary and supplemental pay. Over the course of her employment, retirement contributions by plaintiff and the employer were based upon the base salary only. No withholding was taken from plaintiffs supplemental pay, which in some years equaled more than 50% of her gross pay. The court stated that Fishbein’s suit was for recovery of | ¡¡compensation for services rendered. Therefore, the three-year prescriptive period in La. C.C. art. 3494 applied. When Fishbein filed her suit on August 7, 2000, any claims for compensation for services rendered prior to August 7,1997, had prescribed.

The retirement system sent Fishbein annual statements showing that retirement contributions were being made only on her base salary. In 1989, Fishbein knew that only her base salary was being used as the basis for retirement contributions. When she questioned her employer, she was informed, “This is how we do it.” When Fishbein entered DROP on July 1, 1998, her average compensation and creditable service were fixed and did not include her supplemental pay in fixing her benefits. On May 8, 2000, Fishbein’s attorney sent a letter to LSU and the retirement system requesting that her retirement benefit be adjusted to reflect her total compensation including her supplemental pay.

The supreme court found that Fishbein’s basic action was the allegation that LSU failed to properly certify her total earnable compensation and failed to cause the correct monthly remittance for the employer’s share of the retirement contribution. Her suit was not a claim for retirement benefits, because her primary complaint was essentially one for improper reporting of her total income.

Because retirement contributions are an increasingly important part of employees’ compensation, courts have found in a variety of factual situations that retirement benefits are deferred compensation for services. Fishbein, supra. Therefore, Fishbein’s claim was for compensation for services to which the prescriptive period in La. C.C. art. 3494 is applicable.

The supreme court in Fishbein relied upon Grabert v. Iberia Parish School Board, 93-2715 (La.7/5/94), 638 So.2d 645, in which employees with a four-year employment contract sued for breach of contract and past due wages. The plaintiffs claimed they were paid less that the amount due under their contract. In Gra-bert, the supreme court rejected plaintiffs’ claim that the 10-year prescriptive period in La. C.C. art. 3499 for breach of contract applied, since La. C.C.P. art. 422 directed that the 10-year prescriptive period applied “unless otherwise provided by the legislature.” La. C.C. art. 3494 “otherwise provided” that the suit for underpaid wages (i.e., compensation for services rendered) prescribed in three years.

La. C.C. art. 3495 provides that prescription begins to run the day payment is exigible. The supreme court held that Fishbein’s claim for recovery of compensation was based on LSU’s having submitted incorrect information to the retirement system on her earnable compensation and remitted the incorrect amount of retirement contributions. Therefore, Fishbein could have acted on her claim the first month LSU paid her a supplemental salary which was not used to calculate her earnable compensation. Fishbein, supra.

The supreme court reached a different result based upon the specific facts in Ledoux v. City of Baton Rouge/Parish of East Baton Rouge, 99-2061 (La.2/29/00), 755 So.2d 877. After he retired in 1995, Ledoux, a city employee, sued for 2,128 hours of accumulated compensatory leave for hours worked in excess of 40 hours per week from 1977 until 1985. In 1985, the city/parish capped the amount of leave at 360 hours and mandated no employee could receive compensatory time prior to resignation or retirement. In 1986, the maximum was reduced to 240 hours, and in 1988 the policy was amended to prevent employees from being paid for unused compensatory time. The lower court found Ledoux’s claim had prescribed under C.C. art. 3494, but the supreme court decided:

Applying article 3495 to the facts of this case, we conclude that Mr. Ledoux’s claim for payment for compensatory time which accrued prior to 1985 had not prescribed when he filed this suit in 1995. Prescription on this claim did not commence to run until payment for his accrued compensatory time became exi-gible or when Mr. Ledoux could act on his claim for payment thereof. It is undisputed that until August 1, 1985, an unwritten policy allowed exempt unclassified employees like plaintiff to accrue unlimited compensatory time that could be taken either during employment or upon resignation or retirement, or the employee could be paid for the time when he was terminated or retired. As of August 1, 1985, a new compensatory leave policy reduced the amount of plaintiffs compensatory hours that could be accrued from an alleged 2,128 hours to 360 hours and further provided that plaintiff could not take compensatory leave prior to resignation or retirement. Personnel Rule IV, Section 22 provided that “all compensatory time accrued shall be paid at time of termination.” Therefore, we find that when Mr. Le-doux’s accrued compensatory time was reduced in 1985, he could neither be paid for the accrued compensatory time nor could he use the accrued time under the personnel rules of the city/parish in effect in 1985 until he was terminated or he retired. The prescriptive period could not commence sooner than the time of resignation or retirement because he could not institute his demand sooner under the personnel policy. Hence, his right to claim payment for compensatory time was not exigible until he retired in 1995.

775 So.2d at 880.

|sLedoux’s claim had not prescribed because he could not have sought to recover his accrued compensatory leave until his retirement. On appeal, Dill contends that the Fishbein opinion is factually inapplicable to this dispute. However, the trial court correctly applied the principles discussed in Fishbein, supra. A reading of both Fishbein and Ledoux reveals that the claims were for compensation for services which are governed by the three-year prescriptive period of La. C.C. art. 3494. That prescription begins to run when a claim becomes exigible. La. C.C. art. 3495. In Fishbein, the plaintiff could have complained any month the incorrect income was used to calculate retirement contributions. Because of the employer’s specific personnel rules in Ledoux, that plaintiff could not have sought to be paid for his accrued compensatory leave until he actually retired. Therefore, his claim had not prescribed.

In this case, Dill clearly knew that retirement contributions were not being made. His objections could have been made any month his employer failed to remit the employer’s and his own portion of the retirement contribution.

Documentation of Dill’s dissatisfaction with the handling or mishandling of his retirement benefits is replete in the record, including: Dill’s letter of July 31, 2002, requesting to be enrolled in the retirement system; the August 26, 2002, request to purchase back service from 1982 until 2002; the November 25, 2002, letter and invoice to Dill in response to his request to purchase prior service credit; the March 10, 2004, correspondence from Dill’s counsel stating she had been retained to resolve |flthe retirement dispute; and a February 7, 2005, letter and draft petition from Dill’s counsel to the TPCG stating he had been instructed to file suit. Suit was filed March 13, 2008, more than three years after the attorney’s notice that he had been instructed to sue on behalf of Dill. The trial court correctly found that Dill’s claim had prescribed.

Dill maintained that the 10-year prescriptive period should apply to some defendants because the TPCG and the DA were not his employers. The nature of the claim itself and Dill’s own pleadings belie his assertion. Dill is seeking to recover retirement benefits, a form of deferred compensation. Dill cites no authority to buttress his argument that the TPCG and the DA were non-employer contributors to his compensation.

In what apparently was not an uncommon practice for government employment at the local or parish level, various entities and funds contributed different amounts at different times to Dill’s salary as judicial administrator. Dill’s reliance is misplaced relative to the district judges’ informing the parish in 1984 that it could not terminate the position of judicial administrator because the parish had not hired him. While an instructive example of a bureaucratic maneuver, the incident does not address the legal status of Dill’s employment or lack thereof.

Finally, Dill seeks to equate his complaints about retirement benefits to federal employment discrimination law, under which Dill states that a discrete discriminatory act occurs each time a person is paid pursuant to a discriminatory practice. However, it is not necessary to address this, as this court agrees with the trial court that, based upon Louisiana’s laws and ^jurisprudence and the evidence in this record, Dill’s claim had prescribed when this suit was filed.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed and the action, having prescribed, is dismissed with prejudice. Plaintiff, Walton Dill, is cast with costs of the proceedings.

AFFIRMED.

      . The Attorney General notes that the judgment was signed on January 23, 2009, and Notice of Judgment was sent February 2, 2009. According to the Attorney General, this judgment is final because Dill did not appeal. Therefore, the Judicial Clerk’s Fund and the IV-D Fund Agency are no longer parties to the action.

      . Fishbein, supra, at p. 1265, p. 7, citing: Andrepont v. Lake Charles Harbor & Terminal Dist., 602 So.2d 704, 708 (La.1992), and T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834, 851 (La.1975).


source: Caselaw Access Project

author: AMY, Judge. PETERS, J.

license: Public Domain

text:
    Dustin Wray LEMOINE v. Jessica Rachel Brown LEMOINE.
    No. 09-861.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 16, 2009.
    Brandy McClure, Smith, Taliaferro, Pur-vis & Boothe, Jonesville, LA, for Plaintiff/Appellant, Dustin Wray Lemoine.
    J. Christopher Erny, Houma, LA, for Defendant/Appellee, Jessica Rachel Brown.
    Court composed of JIMMIE C. PETERS, MARC T. AMY, and MICHAEL G. SULLIVAN, Judges.
   AMY, Judge.

_JjThe parties entered into a consent decree for the joint custody of their minor child. The decree named the mother as the domiciliary parent and set forth an equally-shared physical custody arrangement. Subsequently, the mother sought sole custody and a change in the physical custody schedule. Although the trial court maintained the parties’ joint custody of the child, it modified the physical custody schedule to provide the father with physical custody every other weekend and shared custody during the holidays and summer vacation. The father appeals. For the following reasons, we affirm.

Factual and Procedural Background

Dustin and Jessica Lemoine were divorced in March 2007. The couple had one child, Trenton Lemoine, who was born in 2000. The divorce judgment provided the parties with joint custody of Trenton and designated Jessica as the domiciliary parent. In relevant part, the physical custody arrangement provided each parent with alternating weeks of physical custody and ordered each parent to provide for fifty percent of the child’s expenses. While the trial court amended the joint custody decree in July 2007, it maintained the parties’ alternate weekly physical custody schedule.

In late 2007, Jessica filed several motions to modify custody, alleging difficulties under the consent decree and seeking primary physical custody of Trenton. These modification requests did not proceed to trial.

Subsequently, Jessica filed a November 14, 2008 petition and again sought to be named sole custodial parent and to modify the physical custody schedule. She alleged that Dustin “continuously failed to provide a stable and safe home environment” while he had physical custody of Trenton. She also alleged that Dustin 12failed to pay his share of expenses. On this latter charge, Jessica sought to have Dustin held in contempt of court. She listed several factual allegations which she contended, “would be extremely detrimental to the child[.]” Finally, she requested an order of child support. In his answer to the petition, Dustin filed a reconventional demand and asserted that Jessica was in contempt of court for a number of alleged violations of the custody decree.

Following a hearing on the physical custody and contempt issues, the trial court maintained the parties’ joint custody of Trenton, but named Jessica the primary custodial parent. Dustin was provided with physical custody of Trenton on the second and fourth weekends of the month. The trial court also set forth a physical custody schedule for holidays and the summer. The trial court denied both parties’ requests to hold the other parent in contempt. Proceedings related to the support award were deferred for the submission of additional evidence.

Dustin appeals, assigning the following as error:

1. The trial court erred in its conclusion that there has been a material change of circumstances since the original custody decree.
2. The trial court erred in its conclusion that modification of the original decree is in the “best interests” of the child.

Discussion

A trial court’s ruling in a child custody case is entitled to great weight and will not be disturbed on appeal absent a clear abuse of discretion. Guidry v. Guidry, 07-1272 (La.App. 8 Cir. 3/5/08), 979 So.2d 603. To the extent that its ruling is based on factual determinations, an appellate court reviews these findings for manifest error. Rosell v. ESCO, 549 So.2d 840 (La.1989).

|sThe underlying custody judgment in this case was a consent decree. Modification of such a judgment requires that the party seeking a change prove that there has been a material change of circumstances since the custody decree was entered and that the proposed modification is in the best interest of the child. Guidry, 979 So.2d 603. In this case, the trial court found that Jessica established both of these elements.

Material Change in Circumstances

Dustin first questions the determination that Jessica proved a material change in circumstances since the entry of the original consent decree, which provided a shared physical custody arrangement.

In finding a material change in circumstances, the trial court explained as follows in reasons for ruling:

(A) Dustin’s complete and utter refusal to contribute to the legitimate expenses of his minor child, Trenton, (as incurred by Jessica for and on behalf of Trenton) for a period of almost two (2) years as of the date of the hearing of the captioned matter. Dustin’s “technical reasoning” that he had not been provided “copies of bills” nor “proof of payment” does not supersede his obligation to pursue an inquiry as to whether or not these were legitimate and necessary expenses for Trenton. This Court is convinced that the amount actually owed by Dustin to Jessica is at least the sum of $6,545.50 as of the date of the hearing of this matter. Even so, this Court (despite Dustin’s assuring Jessica in a recorded telephone conversation that he would pay this debt while at the same time attempting to “negocíate [sic]” his legal responsibility to do so by requiring Jessica to sign a “tax paper”) in an effort to be certain, required in its Judgment for the present proceedings dated April 1, 2009, that Jessica actually provide to Dustin “copies of bills” or “proof of payment.”
(B) Dustin’s denial under oath that he was aware of specific “allergy problems” of Trenton. This Court is convinced that based upon the testimony of all parties to these proceedings[,] that the conclusion is inescapable that Dustin knew or should have known of Trenton’s allergies and took no steps to alleviate them. Although there is conflicting testimony in the record as to [4whether or not Dustin’s parents allow their pet dog in the home during Trenton’s visitation and whether or not Dustin’s parents “smoke” in the home while Trenton is present, it is apparent to this Court that for whatever reason, Trenton’s allergies have deteriorated upon Trenton’s return to Jessica after visitation with Dustin or his parents.
It is noted by this Court that Jessica has taken steps to alleviate Trenton’s allergy problems by the acquisition of a “hyper allergenic” [sic] pet dog (a Westie), whereas the pet dog of Dustin (a Labrador retriever) and the pet dog of his parents (a basset hound) are not “hyper allergenic”[sic].
(C)Dustin’s changes of employment between the time of the above-referenced Judgment and the date of this hearing and his refusal to provide to this Court in his testimony adequate “proof of income” despite repeated attempts to elicit same by Jessica’s Counsel of Record. In response to questioning by Counsel for Jessica regarding his failure to produce subpoenaed tax documents, his excuse was that he “couldn’t find them”. It is very possible if not probable that Dustin’s income has changed since the signing of the Judgment of this Court on March 15, 2007, but this Court is unable to ascertain from the evidence whether or not this is true and thereby make and [sic] informed decision relative thereto. As stated hereinabove in this Court’s “Findings of Fact”, “no credible or verifiable evidence has been presented to this Court relative to the income of the respective parties from which this Court can make an informed decision relative to child support. To the contrary, directly conflicting and unsubstantiated evidence relative thereto has been offered into the record.” Therefore, in the interest of justice ... this Court in its Judgment of April 1, 2009, ordered both Jessica and Dustin to provide to opposing Counsel copies of the 2008 Federal Income Tax Return of each and from which the liability for child support to be paid by Dustin would be calculated pursuant to the schedule as set forth in Louisiana Revised Statute[s] Title 9.
(D) Dustin’s combative and unresponsive attitude while testifying in these proceedings.
(E) Dustin’s ... statements under oath that he neither knew of Jessica’s proposed change of schools for Trenton nor did he ever consent to payment of any portion of the tuition costs thereof. This testimony is in direct contradiction to Dustin’s own words pursuant to the recorded telephone conversation between Jessica and Dustin played at the trial hereof. This Court also notes Dustin’s direct testimony (when questioned by Counsel for Jessica) that Jessica “was lying” if she said there was ever a [ r,conversation between Dustin and Jessica regarding Dustin’s obligation to pay his pro rata portion of the tuition for Trenton. To the contrary, the taped telephone conversation revealed that it was Dustin who in fact was being untruthful in his testimony before this Court. Further, this Court notes that Dustin’s testimony from the stand was basically to the effect that he never “agreed or consented” to the transfer of Trenton from a public school in Vidalia, Louisiana to a private school in Natchez, Mississippi. Pursuant to Louisiana Revised Statute[s] 9:335(B)(8) his “consent” was not required as Jessica, under the terms of the March 15, 2007, Judgment of this Court is the “domiciliary” parent and as such is vested with that sole authority:
Louisiana Revised Statutefs] 9:335(B)(3):
“The domiciliary parent shall have authority to make all decisions affecting the child unless an implementation order provides otherwise.” [ ]
(F) For much of the period of time between the Judgment of March 15, 2007, referred to hereinabove and the trial of this matter, the “visitation” awarded to Dustin by this Court was exercised not by Dustin but by his parents. In his defense, the necessity for this was his absence due to work but the fact remains that “intended visitation” for Dustin was in fact “actual visitation” for his parents and he took no steps to return Trenton to Jessica during this period of time or pursue avenues for “make-up visitation” for himself when he returned home.
(G) Either Dustin’s present and future employment prospects and income therefrom remain unknown to him and his mother (or uncertain at best) or he refused or was unable to be truthful with this Court during his testimony relative thereto.
(H) Dustin’s and his mother’s testimony that they have never been aware of attempts by Jessica to provide them with a list of medical expenses by certified mail and by regular mail is very suspect at best and completely unbelievable at worst. It is noted that Dustin’s mother in her testimony verified the address on the certified letter to be her “home address” and attempted deliveries were made by the United States Postal Service on:
MARCH 6, 2008
MARCH 16, 2008
MARCH 27, 2008
Therefore, given the evidence presented to this Court on April 1, 2009, it is obvious that there has been a “material change in circumstances” regarding this case since the signing of the Judgment by this Court on March 15, 2007....

IfiDustin contends that although changes were observed by the trial court, they were not serious enough to materially affect Trenton’s welfare.

Our review of the record supports the trial court’s determination that a material change in circumstances occurred after the shared physical custody schedule was established by the consent decree. Notably, Jessica explained that, after Trenton returned from time with his father, he was troubled by allergies. She stated that “[w]hen he comes back to me he usually is congested, stuffed up, sneezing after he comes back from his father.” This alleged condition, Jessica asserted, was due to cigarette smoking in the home of Dustin’s parents, where Dustin exercised his periods of physical custody. She also alleged that Dustin’s parents’ dogs exacerbated the condition. Jessica explained Trenton requires both prescription and over-the-counter medication for his condition. While it is not questioned that Jessica knew that Dustin lived at his parents’ home at the time the consent decree was entered into, the allergy problems manifested themselves after Trenton returned from his scheduled stays with his father. Although Dustin and his mother denied knowing that Trenton had allergies, the trial court permissibly accepted Jessica’s testimony regarding Trenton’s condition upon his return to her and her explanation that she takes Trenton to a doctor regularly for his condition.

Furthermore, given the trial court’s determination that Trenton does, in fact, suffer from allergies, it is of no small moment that Dustin and his mother denied knowledge of any such condition, despite the fact that the child was in their home for as much time as he was with Jessica and despite Jessica’s testimony that she made Dustin aware of the allergies, the doctor’s visits, and the availability of prescribed medication.

17Also, Jessica explained that, generally, the shared physical custody arrangement was not working and that she “believe[d] that [Trenton] needs to be in a more stable environment.” She testified that:

I do see him struggle. His attitude changes. He has told me that he doesn’t like to go back there sometimes. I just want him where he, from week to week he knows where he’s going to be at. He has his own space, his stuff and he needs more security.

Jessica also explained that she sometimes sees Trenton lacking self-confidence as a result of the arrangement.

Certainly, as accepted by the trial court, the lack of attention to Trenton’s allergies and his changes in behavior, as testified to by Jessica, constitute a material change in circumstances. Accordingly, this assignment lacks merit.

We note, also, that Dustin cites four cases in support of his argument that the difficulties alleged by Jessica do not constitute material changes of circumstances. See Weaver v. Weaver, 01-1656 (La.App. 3 Cir. 5/29/02), 824 So.2d 438; Long v. Dossett, 98-1160 (La.App. 3 Cir. 4/28/99), 732 So.2d 773, writ denied, 99-1377 (La.6/4/99), 745 So.2d 13; Page v. Page, 96-69 (La. App. 3 Cir. 5/8/96), 673 So.2d 1317. Dustin argues that the circumstances in the identified cases posed a more serious threat to the child’s welfare than in this case. However, it is important to note that each of these cases involved an affirmation of the underlying trial court’s determination to modify custody. Further, these cases specifically point out that a trial court “is given vast discretion in custody matters because the trial court has a better capacity than the appellate court to evaluate the testimony and credibility of witnesses.” Page, 673 So.2d at 1319. In light of the courts’ reliance on this standard of review in these cases, Dustin’s assertion that these cases require a reversal in the present case is not persuasive.

IsBest Interest of the Child

Dustin next questions the trial court’s determination that modification of the physical custody schedule would be in Trenton’s best interest. He points to La. R.S. 9:335(A)(2)(b), which provides that “[t]o the extent feasible and in the best interest of the child, physical custody of the children should be shared equally.”

With regard to the best interest of the child analysis, La.Civ.Code art. 134 provides the factors to be considered as follows:

The court shall consider all relevant factors in determining the best interest of the child. Such factors may include:
(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
|fl(ll) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

In its reasons for ruling, the trial court considered each of the above factors and concluded that several of the factors revealed that a change from the shared physical custody was in Trenton’s best interest. With regard to Article 134(3), the trial court explained that:

[It] has a genuine and grave concern with regard to Dustin’s ability and desire to fulfill the obligations imposed in Item # 3 relative to his capacity and disposition to provide Trenton with “medical care” while in his custody (lack of treatment for “allergies”) and “other material needs” (payment of expenses such as the cost of school tuition and medical expenses) while in Jessica’s custody. This Court does believe that Trenton’s basic needs are suitably met while Trenton is with Dustin (or with Dustin’s parents) but Dustin’s concern for Trenton’s well-being apparently ceases to exist when Trenton is with Jessica as demonstrated by Dustin’s refusal over a two (2) year period of time to assist in any manner whatsoever with expenses incurred by Jessica on behalf of Trenton (which expenses were required to be paid equally by Dustin and Jessica under the terms of the previous judgment rendered herein on March 15, 2007). This Court can find no evidence of any attempt by Dustin to make a legitimate effort to reimburse Jessica for one-half (½) of the expenses incurred for Trenton prior to the hearing in these proceedings pursuant to the Judgment of this Court dated March 15, 2007. This behavior is particularly troubling in that the above-referenced Judgment did not require Dustin to pay any child support and he has in fact chosen not even to assist in bearing his pro rata portion of the expenses of Trenton which he was required to do in said Judgment.

As was relevant to the material change of circumstances analysis, the trial court also found that factor four, as it relates to the stability of the environment provided by the parties, favored the change requested by Jessica. The court noted that the parties and their families had been unable to live in harmony under the shared custody arrangement and that Trenton must have “of necessity” sensed the conflict. The trial | incourt concluded that the “resultant upheaval in his life and constant change of domicile” was not in the child’s best interest.

The trial court addressed factor six, the moral fitness factor, at some length, and considered Dustin’s testimony regarding whether he agreed to a change of school for Trenton and whether he agreed to assume a portion of the school tuition. The court explained that, in a recorded telephone conversation on the subject, Dustin “completely contradicted his previous sworn [trial] testimony[.]” The trial court further described another aspect of Dustin’s testimony as “ 'exaggerated if not completely untruthful[.]’ ”

Finally, the trial court again found in favor of Jessica under factor twelve, which focuses on “[t]he responsibility for the care and rearing of the child previously exercised by each party.” La.Civ.Code art. 134(12). In this regard, the trial court noted that Dustin’s responsibilities to the child “do not terminate” when he is with Jessica and that Dustin demonstrated an “absolute refusal to honor his financial obligations pursuant to the requirements” of the original custody decree.

Review of the record reveals support for the trial court’s determination to modify the shared physical custody schedule and reveals no manifest error in the trial court’s factual findings with regard to Trenton’s best interest. As noted by the trial court, Dustin demonstrated a failure to satisfy his financial responsibilities to the child under the previous order as he failed to reimburse Jessica for medical care and a failure to acknowledge or demonstrate an appreciation of Trenton’s allergies. Further, the record reveals no manifest error in the trial court’s determinations regarding the contradictory nature of Dustin’s testimony regarding the payment of | n Trenton’s school tuition and his statements made in a telephone conversation recorded by Jessica and transcribed into the record.

For these reasons, the trial court’s factual findings were not manifestly erroneous, and its ultimate determination that modification of the physical custody schedule was appropriate was not an abuse of discretion. This assignment lacks merit.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs of this proceeding are assigned to the appellant, Dustin Wray Lemoine.

AFFIRMED.

PETERS, J.

hi respectfully disagree with the majority decision in this matter. The majority affirms based primarily on the trial court’s conclusion that Dustin knew or should have known of Trenton’s allergy condition and that he should have taken steps to accommodate and/or alleviate this condition. While there is mention of the allergy issue in Paragraph B of the trial court’s reasons for judgment, the trial court’s clear emphasis for change of circumstances was Dustin’s failure to meet his financial obligations and his performance at trial. Had the financial obligation issue been pled as a change of circumstances rather than as a separate cause of action, I would have no trouble joining the majority in affirming the trial court judgment. However, absent the pleading of the support issue as a change of circumstances, I find that the trial court erred in considering this separate cause of action as authority for its finding of a change of circumstances. To allow Jessica to benefit from this consideration would promote trial by ambush. Additionally, I conclude that Jessica failed to establish a change of circumstances, even as to the allergy condition.

The parties were married on February 26, 2000, separated for the final time on March 20, 2006, and divorced on March 15, 2007. At the time of the divorce, | ¡/Trenton was one month short of his seventh birthday. The custody issue was addressed in both the divorce judgment and a second judgment dated July 17, 2007. The custody arrangement consented to was short lived. As pointed out by the majority, before the end of 2007, Jessica had filed three separate pleadings seeking to be named Trenton’s primary custodial parent, none of which alleged any specific changes of circumstances. Although trial dates were set on all three pleadings, none went to trial. Finally, on November 14, 2008, Jessica filed a petition asserting specific instances of change of circumstances:

a) [Trenton] is forced to stay with his paternal grandparents for the majority of the time he is suppose to be exercising visitation with [Dustin];
b) [Trenton] has severe allergies yet he is constantly subjected to second hand smoke, animal hair, and pet dander while with [Dustin] and his family;
c) At the end of each visitation with [Dustin], [Jessica] has to bring [Trenton] to the doctor for treatment for allergies;
d) [Trenton] has been subjected to illegal behavior of [Dustin] and the paternal grandfather while hunting in Mississippi. Further, the child was instructed not to tell anyone;
e) Upon information and belief, the paternal grandfather has recently been arrested and charged for a felony theft and was dismissed from his job;
f) [Dustin] and/or the paternal grandparents refuse to talk to [Jessica] while [Trenton] is with them;
g) [Dustin] fails to pick up [Trenton] from school and fails to send lunch money with [Trenton];
h) [Trenton] has missed eleven (11) days of school unexcused while in the custody of [Dustin].

|sAs a completely separate cause of action, Jessica asserted that Dustin was in arrears for over $5,179.00 relating to his child support obligation.

In considering these assertions of change of circumstances, I note that the trial court addressed only the second and third relating to Trenton’s allergy condition. Silence on the remaining assertions is a rejection of those assertions. M.J. Farms, Ltd. v. Exxon Mobil Company, 07-2371 (La.7/1/08), 998 So.2d 16. I find no error in the rejection of those assertions. With regard to Dustin’s work schedule and parental assistance in caring for Trenton, Jessica was well aware of that situation when they divorced. Furthermore, by the time of trial, Dustin was no longer working offshore and this issue had resolved itself. The assertions that Dustin’s father had committed an illegal act in the presence of Trenton while hunting in Mississippi and that he had been arrested and charged with a felony are not supported by any evidence in the record, nor is the allegation that the parental grandparents refuse to talk to Jessica while Trenton is with them, or that Trenton missed eleven unexcused days from school while in Dustin’s custody. Finally, while it is disputed whether Dustin fails to send school lunch money with Trenton while the child is in his custody, that in itself does not arise to a material change of circumstances. Just as a parent’s failure to receive visitation privileges does not justify a failure to pay child support, a parent’s failure to support his child does not justify a change of custody. See Crooks v. Crooks, 425 So.2d 385 (La.App. 3 Cir.1982), Macaluso v. Macaluso, 509 So.2d 201 (La.App. 1 Cir.1987), and Borden v. Borden, 550 So.2d 901 (La.App. 2 Cir.1989).

14 The allergy issue is based almost exclusively on Jessica’s self-serving testimony. The record contains no medical evidence to support her allegations, and the only evidence of medical expenses is a lump sum figure of $444.00 in a letter from her to Dustin dated January 28, 2009. There is nothing in the letter to suggest whether this amount is entirely for allergy treatment or includes costs of other medical treatments. In any event, this amounts to less than $30.00 per month which would seem much less than one would expect for by-weekly visits to a specialist. Furthermore, Trenton’s allergy condition, to whatever extent it may exist, was present in 2007, and before. Therefore, it cannot be used as a basis for a change of circumstances. See Cooley v. Cooley, 94-251 (La.App. 3 Cir. 10/5/94), 643 So.2d 408.

In its reasons for judgment, the trial court expounded on the allegations of Jessica’s petition in reaching its conclusion by pointing out the obvious inconsistent statements and blatant falsehoods in Dustin’s testimony. While Dustin’s performance at trial, as described by the trial court, is unacceptable and inexcusable, it related to the separate support issue and not to the change of circumstances issue. His foolish actions do not relieve Jessica of meeting her burden of proving the change of circumstances she has alleged, nor do they expand the pleadings. Dustin’s fault is in disobeying the support provisions of the July 17, 2007 judgment and in not acknowledging his disobedience in his sworn testimony. However, that fault addresses a separate cause of action before the court and, as our supreme court has recognized, “[a]n award of custody is not a tool to regulate human behavior.” Everett v. Everett, 433 So.2d 705, 708 (La.1983).

^Because I find that Jennifer failed to establish a material change of circumstances since rendition of the July 17, 2007 consent judgment, I would reverse the trial court judgment.

      .This is not the normal situation where the pleadings were expanded by the introduction of evidence on this point without objection. Dustin was obligated to face the support issue because it had been plead as a separate cause of action.

      . The record does not explain the need for the second judgment despite the finality of the first. However, the second judgment did not change anything with regard to the custody issues before us.

      . The record does not contain any minutes associated with these proceedings.

      . Jessica did not request an arrearage judgment. Instead, she sought to have Dustin held in contempt of court.


author: WILLIAMS, J.

text:
    James Willis WALL and Alice Elaine Wall, individually and as the Surviving Father and Mother of Matthew Steven Wall, Deceased; Marcus McKinney; and Danielle Langwasser, Plaintiffs-Respondents v. KELLY OIL & GAS COMPANY, INC.; Brammer Engineering, Inc.; Brammer-Keystone Energy, a Partnership; Brammer Production Company; and Brammer Production 1993, a Limited Liability Company, Defendants-Applicants.
    No. 44,604-CW.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 21, 2009.
    Herschel E. Richard, Jr., Robert Kennedy, Jr., for Applicants, Kelly Oil & Gas Company, Inc. and Brammer Engineering, Inc.
    J.J. McKernan, John H. Smith, Ashley Philen, for Respondents, James Willis Wall, Alice Elaine Wall, Matthew Wall and Danielle Langwasser.
    Lewis O. Unglesby, J. Schuyler Marvin, for Respondent, Marcus McKinney.
    Before WILLIAMS, CARAWAY and DREW, JJ.
   WILLIAMS, J.

| We granted this application for supervisory review filed by the defendants, Kelly Oil & Gas Company, Inc. and Brammer Engineering, Inc., to determine the correctness of the district court’s ruling denying the defendants’ motion for summary judgment. Finding error in the trial court’s ruling, we grant the defendants’ writ application and reverse.

FACTS

On May 27, 2001, at approximately 4:00 a.m., the decedent, Matthew Wall (“Matt”), plaintiffs, Danielle Langwasser (“Danielle”) and Marcus McKinney (“Marcus”), along with Kyle Langwasser (“Kyle”), La-Jarvis Bridges (“LaJarvis”) and Sherry McLemore (“Sherry”), entered onto an oil, gas and mineral drilling site located in a very rural part of Webster Parish. The access road to the property was equipped with a gate, but at the time of the incident, the gate was unlocked and open. According to defendants, there was a sign beside the gate which read, “STOP. NO UNAUTHORIZED PERSONNEL BEYOND THIS POINT. HIGH PRESSURE NATURAL GAS AND FLAMMABLE LIQUID.” The record supports the defendants’ contention that there was another sign on the gate itself, which read, “DANGER. NO TRESPASSING. KEEP OUT.” The evidence indicates that the sign on the gate would not have been visible if the gate was open.

The six teenagers entered the property in two separate vehicles utilizing a service road which was open from the main access road. They entered the premises and parked their vehicles approximately 50 to 100 feet [2from a battery of oil tanks. Everyone except LaJarvis got out of the vehicles to “hang out.” The teens stood around the vehicles, talking, listening to music, smoking cigarettes and/or “Black and Mild” cigars and, according to Danielle’s deposition testimony, drinking beer.

At some point, Matt, Marcus and Danielle decided to climb atop one of the tanks “to watch the sunrise.” The three teens climbed a set of steps to a catwalk adjacent to the tanks. The warning instructions, “NO OPEN FLAME” and “NO SMOKING,” were stenciled on the oil tanks. During their depositions, the teenagers testified that Danielle and Marcus remained on the catwalk, but Matt climbed on top of the tanks. Kyle testified that Matt jumped “from tank to tank, you know just hopping from tank to tank.” Danielle also testified that Matt “was on the tanks going from tank to tank.” Danielle admitted that at some point, she joined Matt on the second tank. She was carrying a pack of cigarettes and a lighter.

After a short while, Danielle decided to climb down from the tank. As Danielle was climbing down, the tank where Wall was standing exploded. Kyle ran to Danielle, who was hanging from the catwalk, helped her down and extinguished flames from her head and shirt. Kyle then assisted Marcus, who was completely engulfed in flames. In the meantime, the other two tanks exploded. The teenagers were unable to find Matt. They then left the scene to seek medical attention for Marcus and Danielle. Apparently, LaJarvis, who had been asleep in his vehicle, remained at the scene to attempt to find Matt. Law enforcement authorities responding to fithe explosion located Matt’s body approximately 90-100 feet away from the tank; he was pronounced dead at the scene. Investigators found various items of debris, including a cigarette lighter, a cigarette butt and a plastic cigar filter in front of one of the tanks.

The investigators interviewed the teenagers shortly after the accident. Kyle initially stated that he had seen Matt smoking while on top of the oil tank. However, Kyle later recanted that statement, explaining that he had seen Matt smoking while Matt was on the ground near the oil tanks and he had only assumed that Matt was smoking while on top of the tank. Some time after the explosion, Brammer employees found a variety of beer bottles and tobacco or smoking-related items at the site.

Plaintiffs, James and Alice Wall (Matt’s parents), Marcus and Danielle, filed a joint petition against defendants, Kelly Oil & Gas Co., Inc., Brammer Engineering, Inc., Brammer-Keystone Energy, A Partnership, Brammer Production Co. and Bram-mer Production 1993, A Limited Liability Co. (collectively “Kelly and Brammer”), seeking monetary damages for their personal injuries arising from the explosion. At the time of the incident, Kelly was the designated operator of the oil well; Bram-mer was the contract operator pursuant to a contract operating agreement.

Following extensive discovery, the defendants moved for summary judgment. The district court granted partial summary judgment in favor of the defendants, ruling that gross negligence is the applicable standard of |4care in this matter. However, the court denied summary judgment on all other issues, stating:

It does appear to the Court that there are genuine issues of material fact concerning the question of foreseeability. There is considerable testimony from various individuals that trash and garbage, including cigarette butts and beer bottles, had been dumped at production sites, including the one giving rise to this litigation. It is difficult for the Court to determine in many instances whether the testimony is based on personal knowledge or hearsay. Certainly, the evidence viewed as a whole suggests contradictions. In a similar fashion, there is considerable testimony about the knowledge that teenagers and hunters visited the various well production sites. There also appear to be genuine issues of material fact concerning whether there was adequate signage on the property. While photographs taken shortly after the accident show the presence of the warning signs, there is conflicting testimony about the presence and adequacy of the signage on the property to warn of the high potential of danger. There also appear to be factual issues regarding whether the gate was opened and whether there is a duty for the gate to be closed.

The defendants sought supervisory review of the trial court’s ruling. This court granted the application and docketed the case for decision.

DISCUSSION

The defendants contend the trial court erroneously denied their motion for summary judgment.

Appellate courts review summary judgments de novo, while considering the record and all reasonable inferences drawn from the record in the light most favorable to the non-movant. Hines v. Garrett, 2004-0806 (La.6/25/04), 876 So.2d 764; Austin v. Bundrick, 41,064 (La.App.2d Cir.6/30/06), 935 So.2d 836. Summary judgment is warranted only if there is no genuine issue of material fact and the mover is entitled to judgment as a | r,matter of law. LSA-C.C.P. art. 966(C)(1). In Hines, supra, our supreme court stated:

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but [is] to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor. A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of a legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for a trial on that issue and summary judgment is appropriate.

Id. at 765-66.

The burden of proof remains with the movant. LSA-C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’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 more elements essential to the adverse party’s claim, action, or defense. Id. 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. Id.

LSA-R.S. 9:2800.4 provides:

A. As used in this Section:
(1) “Owner” means the owner and also a tenant, lessee, occupant, or person in control of any farm or forest land or in control of any oil, gas, or mineral property.
[ ,/4) “Oil, gas, or mineral property” shall mean any land leased for the development and production of oil, gas, or minerals.
E. An owner of oil, gas, or mineral property shall not be liable to any person who unlawfully enters upon his oil, gas, or mineral property, for damages for any injury, death, or loss which occurs while on the oil, gas, or mineral property of the owner, unless such damage, injury, or death was caused by the intentional act or gross negligence of the owner.

Gross negligence has a well-defined legal meaning that is distinctly separate, and different, from ordinary negligence. Rabalais v. Nash, 2006-0999 (La.3/9/07), 952 So.2d 653; Roton v. Faulconer, 42,452 (La.App.2d Cir.10/3/07), 966 So.2d 790, writ denied, 2007-2165 (La.1/7/08), 973 So.2d 724; Foshee v. Louisiana Farm Bureau Cas. Ins. Co., 41,842, (La.App.2d Cir.1/31/07), 948 So.2d 1171, writ denied, 2007-0483 (La.4/20/07), 954 So.2d 169. Gross negligence has been defined by our courts as the “want of even slight care and diligence” and the “want of that diligence which even careless men are accustomed to exercise.” Id. It has also been defined as the “entire absence of care” and the “utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.” Id. Additionally, gross negligence has been described as an “extreme departure from ordinary care or the want of even scant care.”

In the instant case, the trial court granted partial summary judgment in favor of Kelly and Brammer, ruling that the applicable standard of care in this matter is gross negligence. Plaintiffs have never denied that they entered the property unlawfully and have conceded that gross negligence is 17the applicable standard. Additionally, plaintiffs have not alleged that Kelly and Brammer committed any intentional act. Thus, in order to find that defendants are liable for plaintiffs’ injuries, plaintiffs must meet their burden of proving that defendants’ conduct was grossly negligent.

For purposes of their motion for summary judgment, the defendants, Kelly and Brammer do not dispute the fact that the gate was open. Posted on front of the gate was a sign which read, “DANGER. NO TRESPASSING. KEEP OUT.” Further, photographs introduced into evidence showed a sign on the fence next to the open gate, which read, “STOP. NO UNAUTHORIZED PERSONNEL BEYOND THIS POINT. HIGH PRESSURE NATURAL GAS AND FLAMMABLE LIQUID.” Additionally, there were stenciled warnings on the sides of the oil tanks at the site. The warnings provided information that the tanks contained oil and warned, “NO OPEN FLAME” and “NO SMOKING.”

The record in this case contains transcripts of the depositions of the surviving teenagers, as well as the depositions of others involved in the investigation. The teenagers testified that they did not see the signs on either the gate or the fence. Danielle testified that she did not see any signs when the group entered the oil site. She stated she would not have gone had she been aware of the danger. She also testified that she was under the impression that the tanks were not working because “the gate was open and the tanks looked old....” Danielle admitted that she climbed on top of one of the tanks with cigarettes and a lighter.

|sSherry also testified that she did not see any signs when the group entered the property. She testified that she knew the property was “somebody’s property;” however, she added if she had seen the signs, she would have known that she was not “authorized personnel” and that it was dangerous to be at the location. When she was interviewed on the morning of the incident, Sherry told investigators, “Someone on the tank was smoking. We think it was Matt.” However, subsequently, during her deposition, she denied seeing Matt or anyone else smoking at the site.

During his deposition, Kyle testified that he had been to other oil well sites in the past, but he had never been to this particular site. He also testified that he did not see any warning signs displayed, but he knew the site was potentially hazardous and that there was the possibility of a fire and/or explosion. Kyle stated that he did not know what was stored inside the tanks but he knew it was “some type of chemical in those tanks.” He also admitted that he understood that open flames were not permitted at the sites. Kyle admitted that he, Matt, Danielle and Marcus had been smoking at the site. In his initial handwritten statement to the investigators immediately after the explosion, Kyle stated that Matt was smoking on top of the tank. However, during his deposition, Kyle testified that he did not actually see Matt smoking when Matt was on top the tanks. He stated that Matt proceeded to the catwalk with a lighted cigar in his hand, but he “thumped” the cigar to Kyle when Kyle and Danielle warned him about the danger of smoking on top of the tank.

Marcus testified that when they arrived at the well site, he saw that 19“the gate was “wide open.” He stated that he did not “notice any signs or anything” on either the gate or the fence as they drove through the gate. Marcus initially testified that he did not understand that the site could be potentially dangerous, stating, “I just thought of it as like a gas station or something.... As long as you don’t light up anything or something, I thought wouldn’t nothing [sic] happen.” However, he further testified that he knew “something could blow up or something” if someone smoked at the site. Marcus explained that it was common knowledge in Webster Parish that “you don’t smoke at a tank site.” Additionally, Marcus testified that he saw the warnings stenciled on the side of the tanks which read, “No flame ... or open flame or something like that.”

In Roton, supra, two teenagers, ages 14 and 15, rode a four-wheeler to an oil well site in rural Lincoln Parish. The teenagers had devised a game involving the oil well pumping unit, whereby they would remove metal rods from the fence surrounding the pumping unit and place the rods in holes on the counterweight. The teenagers would then hold onto the rods or pins in an effort to be lifted or slung into the air when the counterweight moved upward. On the day of the incident, one of the boys released an end of the rod as he was raised into the air. He was injured when he was struck by the counterweight; he died as a result of his injuries. The decedent’s parents filed two separate lawsuits against the owner/operator of the oil well site. The defendant moved for summary judgment, presenting evidence that the pumping unit was equipped -with a three-rail guardrail, and several warning signs were attached to the guardrails. There was also evidence that the word |]0“D ANGER” was displayed in white letters on a red background, and the sign cautioned that “this equipment starts automatically at any time.” The district court granted summary judgment in favor of the defendant. This court affirmed the lower court’s ruling. Citing LSA-R.S. 9:2800.4, we stated:

The record is devoid of evidence that [the defendant] was grossly negligent or committed an intentional act causing [the decedent’s] death. A fence and warning signs were in place at the accident site; both of these measures were calculated to alert potential trespassers to stay away from the equipment. In the instant case, these reasonable measures were simply ignored by intelligent teenagers in pursuit of summer entertainment.

Id. at 795-96.

Similarly, the record in the instant case is devoid of any evidence that the death and injuries sustained by the plaintiffs were caused by the gross negligence of the defendants. Although the defendants conceded, for purposes of summary judgment, that the gate to the access road to the property had been left unlocked and open, the plaintiffs faded to present any evidence to show that they could carry their burden of proving that the defendants’ failure to secure the gate constituted “gross negligence.” It was undisputed that a fence was in place, and the record contains photographs of the fence which bore warning signs to anyone who entered upon the property.

Although some of the teenagers denied seeing the warning signs on the gate and the fence, others testified that they understood the potential dangers posed by smoking at oil well sites. As stated above, Marcus specifically testified that it was “common knowledge” that the sites were _|_y dangerous and that there was a risk of fire and explosion. Marcus also admitted that he saw the warnings stenciled on the tanks. Kyle also testified that it was “common knowledge” that the tank sites were dangerous. Kyle stated that he was aware that the site was potentially hazardous and that there was the possibility of a fire or explosion. According to Kyle, all of the teens, with the exception of Bridges, were smoking at the tank site. Sherry also testified that she knew they were in a dangerous location as soon as she saw the tanks.

Again, other than allegations and conclu-sory contentions, plaintiffs failed to present any evidence to show that Kelly and Brammer’s actions caused or contributed to the accident. Plaintiffs argue that the defendants were grossly negligent in operating and securing their oil production site. Plaintiffs also contended that more warnings or prevention of access to the site could have prevented the accident. However, plaintiffs did not offer the deposition testimony of an expert or any other evidence to support this argument.

In Robertson v. State of Louisiana, Through the Dept. Of Planning and Control, 32,309 (La.App.2d Cir.12/10/99), 747 So.2d 1276, writ denied, 2000-0041 (La.2/25/00), 755 So.2d 882, the plaintiffs’ son died after falling from the roof of a building at Louisiana Tech University. The student had accessed the roof by climbing up a steel beam buttress. This court rejected the plaintiffs’ argument that the university had the duty to “dissuade access” to the roof following prior instances of others climbing on the roof. We stated, “When the risk is created by the deliberate act of the | ^victim aimed at challenging an obvious danger, the victim alone can be solely at fault.” Id. at 1284. We further stated:

[W]e find that Tech’s failure to act in these circumstances did not constitute negligence. The duty of Tech to provide a safe campus and not to act unreasonably with regard to its students did not extend to protect [the decedent] from his deliberate act of recklessness in climbing the Roof. The Roof cannot be considered as an open and accessible part of the campus. Any prudent person would recognize the action of climbing the Roof both as an unreasonable danger to himself and as an unlawful physical invasion of property. Any damage caused to such an off-limits structure would amount to the intentional tort of trespass.
The plaintiffs’ argument that the three prior instances gave rise to an affirmative duty to act is a miscalculated statistical focus.... The three prior acts, like any previous reckless acts on the campus by Tech students, intoxicated or otherwise, cannot be statistically isolated to serve in a formula for negligence in light of the non-custodial university/student relationship and the obvious danger of the Roof.

Id. at 1284.

In Racine v. Moon’s Towing, 2001-2837 (La.5/14/02), 817 So.2d 21, a group of teenagers trespassed onto unfenced property and discovered an unattended flatbed truck parked on the property. The doors to the truck were locked but the windows were partially open and the keys were in the ignition. One of the teens climbed into the window of the truck and started the engine, but was unable to turn it off. Another teen jumped onto the running board of the truck and reached through the window to try to turn the ignition off. The truck went into gear and began rolling forward. The teen tried to jump to the ground but was pinned between the truck and the fence. He died as a result of his injuries. The parents of the decedent filed suit | ^against several defendants, including the property owner, arguing, inter alia, that the truck on the property with the keys inside created an attractive nuisance; the property owner created an unreasonably dangerous condition by parking the truck on his property; the property owner was negligent in parking the truck on his property. The property owner filed a motion for summary judgment, which the district court denied. The appellate court affirmed the denial of summary judgment. The Supreme Court reversed, stating:

The boys were clearly old enough to know what they were doing was wrong and to appreciate the dangers inherent in their actions....
* * *
It is undisputed that the parked truck by itself did not create an unreasonable risk of harm. No harm would have resulted from the truck in this case but for the decision of Logan and the other teenagers to trespass on [the property owner’s] property, break into the truck, and start the engine. [The property owner] cannot be liable as a matter of law under these facts.

Id. at 25-26.

In the instant case, the record, while voluminous, is devoid of evidence that defendants were grossly negligent. As stated above, although the teens denied seeing the warnings, the photographs in the record indicate that Kelly and Brammer took reasonable measures to alert potential trespassers of the potential hazards of the tanks. The deposition testimony showed that the teens all recognized the potential dangers associated with their presence at the oil/tank site. Yet, the teens failed to use ordinary care under the circumstances. They unlawfully entered the site and elected to |14engage in dangerous activities in close proximity to the tanks. Not only did the teens smoke and consume alcoholic beverages near the tanks, but three of them chose to climb on top of the catwalk near the tanks; two of them actually climbed on top of the tanks, and one sustained fatal injuries.

Additionally, although plaintiffs’ petition indicates that the explosion may have been caused by an unlocked “thief hatch,” plaintiffs produced no evidence to support that allegation. In sum, as stated above, although this was a tragic accident, plaintiffs failed to “produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden of proof at trial.”

Based on the record before us, we find that Kelly and Brammer met their burden of proving that they are entitled to summary judgment, as plaintiffs have proven no basis for gross negligence on the part of the defendants. Accordingly, the district court erred in denying the motion for summary judgment in favor of defendants.

CONCLUSION

For the reasons set forth herein, we grant the defendant’s writ application and reverse the district court’s ruling denying the defendants’ motion for summary judgment. Costs of the appeal are assessed to plaintiffs.

      . The plaintiffs did not dispute the fact that these teenagers were trespassing on the property.

      . Danielle testified that she, Matt, Kyle and Marcus were drinking beer. However, Kyle, Marcus and Sherry denied drinking beer while they were at the site.

      . Matt’s blood alcohol level was 0.11 grams percent.

      . The lawsuit was originally filed in Caddo Parish but was later transferred to Webster Parish.

      . Plaintiffs concede in their brief that this case is governed by the standard of gross negligence, as outlined in LSA-R.S. 9:2800.4(E).


author: LOLLEY, J.

text:
    STATE of Louisiana, Plaintiff-Appellant v. Stephone TAYLOR, Defendant-Appellee.
    No. 45,102-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 21, 2009.
    Jonathan M. Stewart, District Attorney, for Appellant.
    Chris L. Bowman, for Appellee.
    Before GASKINS, CARAWAY and LOLLEY, JJ. LOLLEY, J.
   LOLLEY, J.

|T The State of Louisiana, Office of the District Attorney for the Second Judicial District, Bienville Parish, Louisiana (the “State”) appeals a judgment of the Second Judicial District Court, Parish of Bienville, State of Louisiana, dismissing the claims of the State against Stephone Taylor, the Mayor of the Town of Ringgold. For the following reasons, we affirm the judgment of the trial court.

Facts

Stephone Taylor was elected the Mayor of the Town of Ringgold on October 20, 2007. At the time, his voter registration card showed his residence to be 1975 Military Road, Ringgold, Louisiana. That address is actually Taylor’s business address, and Taylor claims his residence and domicile to be 890 Military Road, Ringgold, Louisiana — his mother-in-law’s home. According to the State, Taylor neither owns nor rents a residence in Ringgold, but, in fact, he owns and lives in a residence located on Roy Road in Shreveport, Caddo Parish. The State asserts that Taylor purchased the Roy Road residence shortly after his election, and he maintains a homestead exemption on that property.

A complaint was made to Paula Stewart, the Bienville Parish Registrar of Voters, that Taylor had moved outside of Ring-gold. As a result, on July 24, 2009, Stewart sent out a 21-day voter challenge letter pursuant to La. R.S. 18:193 G. Taylor did not respond, and Stewart removed him from the voter rolls on August 17, 2009. On August 24, Taylor was reinstated in Bienville Parish pursuant to his request.

| aThe State also received a complaint in regards to Taylor’s residence, and after investigating the complaint, the State filed a legal opinion and published it in the Bienville Democrat, the official journal for Bienville Parish. The State’s petition was filed within 10 days of publication. The trial of the matter began on September 3, 2009, and concluded on September 8, 2009. When the State concluded its case, Taylor moved for a judgment of involuntary dismissal, which was granted by the trial court. This appeal by the State ensued.

Discussion

Although the State brings four separate assignments of error, the thrust of its appeal can be boiled down to two simple issues: Taylor’s status as an elector in Ringgold, Bienville Parish and his domicile. As the party contesting candidacy, the State bears the burden of proving that Taylor is disqualified. Pattan v. Fields, 1995-2375, (La.09/28/95), 661 So.2d 1320, 1320. Louisiana R.S. 33:384 sets forth the qualifications of Mayor: “The mayor shall be an elector of the municipality who at the time of qualification as a candidate for the office of mayor shall have been domiciled and actually resided for at least the immediately preceding year in the municipality.” First, the State argues that Taylor failed to remain an elector of the town of Ringgold when the Registrar of Voters removed him from its rolls for moving outside of the city as evidenced by the filing of a homestead exemption in Caddo Parish. Second, the State urges that Taylor is also ineligible to serve as mayor, because he failed to maintain his domicile in the municipality. We disagree on both counts.

\ ¿Taylor's Status as an Elector

The State’s initial argument regarding Taylor’s elector status is based on the flawed premise that Taylor was properly removed from the voters’ rolls, resulting in his failing to be an elector as required by La. R.S. 33:384. At the trial of this matter, Paula Stewart, Registrar of Voters, testified that someone from the district attorney’s office had informed her of complaints that Taylor had a house in Caddo Parish. In order to verify this information that Taylor had moved outside of Ringgold, she determined that Taylor had obtained a homestead exemption in Caddo Parish. Then, Stewart stated that she acted pursuant to La. R.S. 18:198 G, which states:

G. (1) If the registrar has reason to believe that the name of a person has been illegally or fraudulently placed upon the registration records or that a registrant no longer is qualified to be registered for a reason other than a change of residence or address, or that the registrant has deliberately given an incorrect address, he shall immediately notify the person. The notice shall be mailed first class, postage prepaid, to the address on file at the registrar’s office.
2) The notice shall state the alleged irregularity in the registration and shall inform the person that he must appear in person at the office of the registrar of voters within twenty-one days after the date on which the notice was mailed to show cause why his name should not be removed.
(3) If the registrant fails to appear within the required twenty-one days, the registrar shall cancel his name from the list of eligible voters. If the registrant appears and shows cause | ¿within the twenty-one days, the registrar shall not cancel the registration....

We believe that in this particular case, subsection G of the statute was erroneously applied by Stewart. She testified that she did not believe there was any illegality or fraud involved with Taylor’s registration, which is the first reason for a registrar to act under subsection G. The subsection also provides a second reason for action, that being “that a registrant no longer is qualified to be registered for a reason other than a change of residence or address, or that the registrant has deliberately given an incorrect address.” Stewart did not state that Taylor had deliberately given an incorrect address. In fact, the motivating factor for Stewart’s actions was a complaint that Taylor had a change in residence to outside of Ringgold; thus her actions were not for a “reason other than a change of residence or address.” Although she claimed that she sent the letter because of his homestead exemption, it is clear from her testimony that she only investigated the status of his homestead exemption to verify where he might be domiciled. In other words, Stewart was acting on a complaint that Taylor had a house (i.e., a “residence or address”) outside of Ringgold, and she considered his homestead exemption in Caddo Parish as proof of that fact. Thus, La. R.S. 18:193 G was inapplicable to the situation involving Taylor, because Stewart had a reason to believe that Taylor had a change of residence or address. So considering, we conclude that the proceeding against Taylor pursuant to La. R.S. 18:193 G was in error, and his name should have never been cancelled from the list of eligible voters.

| sIn fact, considering that Stewart had reason to believe that Taylor had moved his residence outside of the town of Ring-gold (her evidence being the filing of the homestead exemption in Caddo Parish), Stewart should have proceeded under subsection A of La. R.S. 18:193, which states:

When the registrar has reason to believe that a registrant no longer is qualified to be registered, or that a registrant has changed his residence, he shall immediately notify the person by sending the address confirmation card to the registrant and place the voter on the inactive list of voters. However, a person shall not be placed on the inactive list of voters if there is address information available to the registrar from the United States Postal Service or its licensee which indicates the voter has moved to another address within the parish. (Emphasis added).

Considering this procedural error at the very earliest stages of this action against Taylor, we determine that he never lost his status as an elector in the municipality for which he served as mayor, i.e., the town of Ringgold, but should merely have been placed on the inactive list of voters until the residency question was clarified. Therefore, it follows that the State’s argument is based on an incorrect premise that there was a lapse in Taylor’s status as an elector in Ringgold.

Taylor’s Domicile

Louisiana R.S. 33:384 also mandates that a mayor “shall have been domiciled and actually resided for at least the immediately preceding year in the municipality.” The domicile of a natural person is the place of his habitual residence. La. C.C. art. 38. It is well settled that residence and domicile are not synonymous, and a person can have several residences, but only one domicile. La. C.C. art. 39; Russell v. Goldsby, 2000-2595 (La.09/22/00), 780 So.2d 1048. As stated in Russell, supra at 1051:

|fiA person’s domicile is his principal establishment wherein he makes his habitual residence and essentially consists of two elements, namely residence and intent to remain. The question of domicile is one of intention as well as fact, and where it appears domicile has been acquired in another place, the party seeking to show it has been changed must overcome the legal presumption that it has not been changed by positive and satisfactory proof of establishment of a domicile as a matter of fact with the intention of remaining in the new place and of abandoning the former domicile. Absent declaration to change domicile, proof of this intention depends upon circumstances; there is a presumption against change of domicile. (Citations omitted).

The case law regarding domicile reveals that Louisiana courts commonly consider a number of different factors when trying to determine domicile in fact. Since domicile is generally defined as residence plus intent to remain, a party’s uncontroverted testimony regarding his intent may be sufficient to establish domicile, in the absence of any documentary or other objective evidence to the contrary. Landiak v. Richmond, 2005-0758 (La.03/24/05), 899 So.2d 535.

In the absence of a formal declaration as provided for in La. C.C. art. 45, when documentary or other objective evidence casts doubt on a person’s statements regarding intent, it is incumbent on courts to weigh the evidence presented in order to determine domicile in fact. Id. Some of the types of documentary evidence commonly considered by courts to determine domicile in fact include such things as voter registration, homestead exemptions, vehicle registration records, driver’s license address, statements in notarial acts, and evidence of where the person’s property is mostly housed. Obviously, the more of these items presented by a party opposing |7candidacy in a given case to show lack of domicile in the district, the more difficult it will be for an individual to overcome the plaintiffs evidence. Id.

A public official who discharges his duties is presumed to continue the domicile he had when elected. Further, service in public office and candidacy for re-election strongly negate any intention to change domicile. McClendon v. Bel, 2000-2011 (La.App. 1st Cir.09/07/00), 797 So.2d 700.

Here, the only documentary evidence of Taylor’s alleged change in domicile was the homestead exemption obtained for the Caddo Parish house, but we do not believe that is necessarily dispositive to prove that Taylor intended to change his domicile. See McClendon, supra at 703. At the time of his election in October 2007, and at the time of the trial in September 2009, his driver’s license and voter registration both reflected Ringgold addresses. At the trial of the matter, both Taylor and his wife, Denise, testified that Denise had applied for the homestead exemption on the Caddo Parish house without Taylor’s knowledge. In fact, she even signed his name on the application. Taylor stated that he did not know she had applied for the homestead exemption until he received the letter from the Bienville Parish Registrar of Voters. Dorrie McDonald, a supervisor in the homestead exemption department at the Caddo Parish Tax Assessor’s office, verified that Denise Taylor had called to obtain the homestead exemption. According to McDonald, Denise initially said only she lived in the property, to which McDonald told her that she could only get half of the 18exemption. Upon receiving that information, Denise said she and her husband both resided in the property. Later, after receiving the letter from Stewart, Denise called and had the homestead exemption removed from the property.

The only other evidence of Taylor’s change in domicile was testimony from Officer Jamie Phill, a Blanchard Police Department patrol officer. Officer Phill patrolled the area where the Taylors’ Cad-do Parish house was, and he testified that he would see the Taylors’ cars parked at the house.

The primary evidence of Taylor’s intent regarding his domicile came from witness testimony, primarily from Taylor himself, but also his wife, Denise, their son, and her mother-in-law, Revelma Thomas. Taylor testified that he primarily resided at the 890 Military Road house in Ringgold (a house owned by his mother-in-law), and he intended that to be his domicile. It is undisputed that Taylor operates a convenience store in Ringgold, also located on Military Road. At trial, Taylor explained his normal daily activities, which revolve around running his store and his mayoral duties. Part of his daily activities include spending the night and sleeping at 890 Military Road (our calculations from his testimony show Taylor to be a very active man, sleeping only about four to six hours a day). He also stated that the majority of the couple’s furniture and personal belongings are not at the Caddo Parish house, and that he had furniture at his mother-in-law’s home on Military Road. This was corroborated by his mother-in-law, Revel-ma Thomas, who also lives at that address. As explained by Taylor, and later |9his wife, the Taylors only purchased the Cad-do Parish home in order to be closer to their son’s school in Shreveport. Taylor testified that it was not his intent for that house to be his domicile, and that only Denise and the couple’s son live primarily at the Caddo Parish house during the week when the boy is in school. According to Taylor, during the summer, he spends no nights at the Caddo Parish house, and Denise and their son spend most of their time in Ringgold (Denise helps with the store as well). This testimony was corroborated by Denise and for the most part by the Taylors’ 15-year-old son and 76-year-old mother-in-law.

The facts of this case are extremely close to those in Russell, supra. In that case, the mayor of Amite’s eligibility to be mayor was being challenged by an elector of the city pursuant to La. R.S. 38:384. In Russell, the mayor of Amite, Dr. Reggie Goldsby, stated he lived within the city limits and conducted his medical practice within as well; however, he also had a “camp” outside the city limits where he stayed on the weekends and in the summer months. Notably, Dr. Goldsby did have a homestead exemption on his Amite residence. Based primarily on Dr. Golds-by’s stated intent not to change his domicile to outside of the city limits, the Louisiana Supreme Court held that he actually resided in the city where he sought reelection, and the plaintiff had failed to show that the mayor had intended to change his domicile. Id. at 1053.

The facts of Taylor’s case are much the same, but for the fact that Denise erroneously applied for the homestead exemption in Caddo Parish. Both the Taylors indicated that was obviously a mistake and that Taylor’s | inintent remained to be domiciled in Ringgold. We are further persuaded that the application for the homestead exemption was a careless mistake when we consider that the Taylors owned only one residence. Had they owned two residences, one in Bienville Parish and one in Caddo Parish, and applied for the homestead exemption in Caddo Parish, we may have been inclined to have seen that as intent to affirmatively change and establish domicile in Caddo Parish. That certainly was not the case here. Rather, it appears that Taylor had every intent in maintaining his domicile in Ringgold, Bien-ville Parish, and the trial court was certainly within its province in believing his testimony. A factfinder’s decision that is based on its discretion to credit the testimony of one of two or more witnesses can virtually never be wrong. Smith v. Dishman & Bennett Speciality Co., 35,682 (La.App.2d Cir.01/23/02), 805 So.2d 1220.

Admittedly, at first blush, it certainly appears that Taylor was not in compliance with La. R.S. 33:384. However, considering the particular facts of this case, we cannot say that the trial court committed error in its determination that Taylor’s status as an elector had not lapsed nor did he have a change in domicile outside of the town of Ringgold. Hopefully, in the future, Taylor will continue to maintain his domicile in Ringgold in a more transparent way in order to avoid any appearance of impropriety.

Conclusion

For the foregoing reasons, we affirm the trial court’s judgment in favor of Stephone Taylor, the Mayor of Ringgold, Louisiana. Costs of these |nappellate proceedings in the amount of $121.50 are to be assessed to the State of Louisiana, Office of the District Attorney for the Second Judicial District, Bienville Parish, Louisiana.

AFFIRMED.

      . We note that La. R.S. 18:101 B states, in pertinent part:
      For purposes of the laws governing voter registration and voting, "resident” means a citizen who resides in this state and in the parish, municipality, if any, and precinct in which he offers to register and vote, with an intention to reside there indefinitely. If a citizen resides at more than one place in the state with an intention to reside there indefinitely, he may register and vote only at one of the places at which he resides. However, if a person claims a homestead exemption, pursuant to Article VII, Section 20 of the Constitution of Louisiana, on one of the residences, he shall register and vote in the precinct in which that residence is located....

      . Taylor explained that he did not respond to the letter during the 21-day period because his son had suffered an injury for which he needed surgery. Apparently, he and his wife were occupied with that and overlooked Stewart's letter.