author: GREMILLION, Judge.

text:
    Danae Marie Guillot STARKS v. Brad Dyson STARKS
    17-1139
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 2018
    Richard Ducote, Attorney at Law, 318 East Boston Street, Second Floor, Covington, LA 70433, (985) 898-2755, COUNSEL FOR PLAINTIFF/APPELLANT: Danae Marie Guillot Starks
    T. Taylor Townsend, Attorney at Law, P. O. Box 784, Natchitoches, LA 71458-0784, (318) 238-3612, COUNSEL FOR DEFENDANT/APPELLEE: Brad Dyson Starks, Danae Marie Guillot Starks, In Proper Person, 200 Highway 114, Hessmer, LA 71341, PRO SE: Danae Marie Guillot Starks
    Court composed of John D. Saunders, Elizabeth A. Pickett, and Shannon J. Gremillion, Judges.
   GREMILLION, Judge.

Danae Marie Guillot Starks appeals the trial court judgment awarding interim custody of the two minor children to the paternal grandparents with the parents having supervised visitation. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Danae Marie Guillot Starks (Danae), the mother of the two minor children, Eastin, born 7/25/08 and Kennadi, born 10/11/12, appeals the trial court's judgment awarding custody to the paternal grandparents and granting her supervised visitation. Danae and the defendant-appellee, Bradley Starks (Brad), were married in September 2007. On February 22, 2015, Danae was shot in the head and arm. In March 2015, she filed a petition for a divorce alleging that Brad had been physically abusive to her "on a repetitive basis throughout the marriage." While the petition alleged that Danae "suffered a gunshot wound to her left-upper forehead with the bullet traveling through her face and exiting her lower left jaw," Brad was not named as the shooter. The petition states that the "facts surrounding the event remain under investigation by the Sabine Parish Sheriff's Office." Danae requested sole custody of the children with supervised visitation rights by Brad. Numerous procedural motions were subsequently filed relating to venue, and the matter was subsequently moved to Natchitoches Parish from Sabine Parish.

Brad filed an answer and requested that he be awarded sole custody due to Danae's "severe mental illness." Brad thereafter filed a petition for temporary custody and an ex parte order urging that Danae suffered a self-inflicted gunshot wound and was refusing to seek mental health and/or psychiatric counseling for the issues that led to the self-inflicted gunshot wound. He further argued that Danae attempted to check-out their children from school, which resulted in the school going on "lockdown." Brad was granted temporary custody, and Danae was given supervised visitation and prohibited from entering the children's school. In May 2015, Danae filed a declinatory exception of lis pendens arguing that the same matter was pending in Avoyelles Parish. Danae filed a petition for divorce in Avoyelles Parish on April 16, 2015. In June 2015, the trial court denied Danae's exception of lis pendens.

Following a June 2015 hearing, the trial court, Judge Lala Sylvester presiding, ordered all of the parties to undergo mental health evaluations with Dr. John C. Simoneaux.

In July 2015, Brad filed a motion and order for writ of injunction to prohibit Danae from posting on social media that he had shot her and on a website that offers free reconstructive surgery to victims of domestic abuse. Brad attached numerous records in support of the writ. In July 2015, the trial court ordered all parties to undergo mental health evaluations with Shreveport-based Dr. Mark P. Vigen. Following a July 2015 hearing, all parties and the court agreed to have a hearing to determine culpability in the shooting of Danae (the shooting hearing) separately from the custody hearing while psychological evaluations were pending.

In August 2015, the trial court granted Danae supervised visitation with her children every Saturday. That same month, Brad filed a rule to fix child support. In November 2015, Danae filed a motion for temporary custody because Brad had been arrested in March 2015 and charged with possession of schedule IV controlled dangerous substance (Xanax), DWI, and possession of marijuana, had entered into a pre-trial diversion program, and had his driver's license suspended.

In January 2016, following five days of trial only relating to the shooting, Judge Lala Sylvester found that the gunshot wounds to Danae's head and forearm were self-inflicted. In eleven pages of reasons for judgment, Judge Sylvester concluded that Brad proved beyond a reasonable doubt that the shooting was a failed suicide attempt. Danae filed a motion to designate the January 2016 judgment as a final appealable judgment. Danae also appealed the January 2016 judgment. Danae's motions to appeal the findings were denied.

In May 2016, a La.Civ.Code art. 102 divorce was granted. In July 2016, the trial court denied Danae's motion to designate the January 2016 judgment as a final appealable judgment and denied her motion to appeal. In August 2016, Danae filed a motion for access to school campus & education records, for court ordered drug testing, and for modification of custody. In October 2016, Danae filed a motion to recuse Judge Sylvester based on allegations of ex parte communications with the children's school. Judge Sylvester recused herself, not conceding that any legal grounds existed to mandate the recusal, but because Danae believed that the Court was not impartial. The supreme court appointed Judge Eric Harrington to preside ad hoc.

Danae filed another ex parte motion for modification of custody. Following an October 24, 2016 hearing, temporary custody of the children was granted to Ken Starks (Brad's father) and his wife, Barbara Jan Starks, who are to be assisted as needed by Sherrie Moore (Brad's mother) and Tom Moore. Brad was granted "closely supervised" visitation and Danae was granted custody three weekends each month from Friday until Sunday.

In February 2017, Judge Harrington, after considering the findings from the shooting hearing and the testimony of the evaluating psychologists and witnesses relating to the custody issue, rendered an interim custody order in April 2017. He issued extensive oral reasons for his judgment maintaining the placement of the children in the custody of the paternal grandparents while allowing the parents visitation with mandatory drug-testing. Judge Harrington found both Danae and Brad were unfit to have custody of their minor children and that it was in the best interest of the children to be placed in the paternal grandparents' custody. Detailed instructions were provided in the custody order. In part, Danae was ordered to undergo counseling for a year until she was emotionally stable, and Brad was ordered to maintain sobriety for one year and undergo random drug testing. Danae's weekend visitations were modified to require supervision by her parents.

Danae now appeals both the January 2016 judgment finding that the gunshots wounds were self-inflicted and the April 2017 interim custody order. Danae assigns as error:

1. The trial court, Judge Sylvester, clearly erred as a matter of law and abused its discretion in refusing to hear the testimony of the parties' then 7-year-old son that he personally witnessed his father threatening his mother with a gun at the car window.
2. The trial court, Judge Sylvester, clearly erred as a matter of law and manifestly abused its discretion in allowing into evidence purported expert testimony regarding the location of Mr. Stark's cell phone before, during, and after the shooting.
3. The trial court, Judge Sylvester, clearly erred as a matter of law and manifestly abused its discretion in refusing to admit into evidence proof of how easily Danae Stark's handwriting could be copied by anyone.
4. The trial court, Judge Sylvester, erred as a matter of law and manifestly abused its discretion in finding beyond a reasonable doubt that Danae Starks shot herself.

DISCUSSION

Standard of Review in Custody Matters

In making decisions regarding custody, the best interests of the child are of paramount importance. La.Civ.Code art. 131. Numerous factors are at the trial court's disposal in making this determination and are set forth in La.Civ.Code art. 134. However, the trial court is not limited to considering the factors enunciated but should consider the totality of the facts and circumstances in the particular situation. Hawthorne v. Hawthorne, 96-89 (La.App. 3 Cir. 5/22/96), 676 So.2d 619, writ denied, 96-1650 (La. 10/25/96), 681 So.2d 365.

A trial court's determination in a child custody case will not be disturbed unless there is a clear abuse of discretion. Id. Additionally, the trial court's finding is entitled to great weight on appeal as it is in a superior position to assess what the children's best interests are based on its consideration of the testimony of the parties and witnesses. Id.

THE SHOOTING HEARING

First, we note the somewhat unusual procedural posture of this case to which all parties agreed, at a hearing on July 14, 2015, to litigate only the issue of culpability in the shooting of Danae as a factual matter to be determined before the custody motions could be settled, along with the resolution of the injunction filed by Brad to prevent Danae from posting claims on the internet claiming that he shot her. In Danae's pre-trial motion, she phrased the issue as, "At the July 14, 2015, conference it was agreed that the central question related to both the custody and injunction proceedings was whether Ms. Starks shot herself or whether Mr. Starks was involved in the shooting." Danae argued that Brad bore the burden of proving that she shot herself.

Brad's pre-trial brief states that contrary to Danae's pre-trial brief, "The only issue before the Court ... is regarding the Writ of Injunction. The issue of custody is not before the Court. The custody issue can only be heard after the completion of Dr. Mark Vigen's evaluation." In his appellate brief, Brad argues that Danae bore the burden of proving that Brad shot her.

Clearly, the issue of whether Danae shot herself was a significant underlying factor in the overall custody determination, which was not held until February 2017.

The Shooting

Danae argues that the trial court erred as a matter of law and abused its discretion in finding that she shot herself. She argues that there is a strong presumption in the law against self-destruction. Danae also argues that there was no physical evidence that the shots were close contact shots, i.e., no stippling, no soot, no burns, no evidence of gun powder residue on her hand, and no explanation for the gunshot wound to her arm.

Considering the serious nature of the allegations in this matter, we carefully and closely examined all of the testimony and evidence relating to the shooting. Judge Sylvester provided a thorough analysis of the evidence presented and why she reached her conclusion. We fully adopt the trial court's reasons for judgment as our own:

According to the testimony of Brad, he left the residence at Big Bass Lane around noon to drive to Natchitoches to pick up his children. He testified that he stopped at Big Bass Marina for gas, spoke to several employees and then left to go to Natchitoches. Brad testified that he began making phone calls as soon as he got reception as he drove towards, Many, Louisiana. The Verizon cell records provide a map of Brad's phone movements on the afternoon of February 22, 2015. The cell phone location information was undisputed and corroborated by witness' testimony.
....
When Brad's cell phone picked up reception from the Verizon cell towers, he began to make outgoing calls as he drove towards Many. At 12:29PM, Brad called Jessica Starks, but the call went to voicemail. The call to Jessica Starks started and ended on Cell Tower 847. Cell Tower 847 is located at 495 Magnolia Avenue in downtown Many.
At 12:30PM, Brad called his friend, Justin Mitchell, and they talked for five minutes. The cell phone call from Brad's phone to Justin Mitchell started on Cell Tower 809. Cell Tower 809 is located at 795-925 Fisher Firetower Road, south of Many. The cell phone call to Justin Mitchell ended on Cell Tower 847 located in downtown Many.
At 12:33PM, Danae sent Brad a text message which stated, "I'm sorry I did that to my car. It was an accident. All I ever wanted was you." The evidence is clear that Danae had not been shot at 12:33PM.
At 12:35PM. Danae called Brad's cell phone from the land line at 363 Big Bass Lane. Brad switched over from the call with Justin Mitchell and answered the incoming call from Danae. The 12:35PM phone call from Danae started on Cell Tower 847 located in downtown Many, lasted for 801 seconds (13.5 minutes) and ended on Cell Tower 853. Cell Tower 853 is located at 205 Laura Street in Robeline. Robeline is approximately 14 miles east of Many and since the cell phone call lasted about 13.5 minutes, Brad would have been in downtown Many or east of downtown Many at the time he received the call from Danae on the land line at 12:35PM.
The cell phone tower located in Robeline is 31.1 miles from Big Bass Lane. The cell phone tower located in downtown Many is approximately 17.4 miles from 363 Big Bass Lane, as determined by GPS coordinates. The distance between the Robeline cell tower and the Many cell tower is 13.7 miles.
Carey Etheridge, an expert in digital forensics with an emphasis on cell phones, testified that he examined Brad's cell phone records and Verizon cell tower records. Mr. Etheridge testified that he concluded to an absolute certainty that Brad's cell phone was not near 363 Big Bass Lane on February 22, 2015 at 12:35PM, the time of the call to Brad's cell phone from the land line at 363 Big Bass Lane. Mr. Etheredge further testified that Brad's cell phone was in the area of downtown Many at 12:35PM and in the area of Robeline at 12:48PM.
All of the individuals involved in the phone calls to and from Brad's cell phone from 12:30PM until 2:29PM, Justin Mitchell (friend), Melinda Rasmussen (neighbor), Jacqueline Guillot (Danae's mother), Sherie Moore (Brad's mother), testified that they spoke to Brad on February 22, 2015, that Brad called from his cell phone and that they knew it was Brad. Additionally, Detective Aaron Mitchell testified that Brad had his phone with him when he was interviewed at CID at 3:00PM and that Brad showed him text messages from Danae stating "Don't bring the kids back here" and "Good bye."
Danae failed to call any witness to refute the expert testimony of Carey Etheredge in interpreting the reliable and objective cell phone data from Verizon wireless, which concluded that Brad's cell phone was not near 363 Big Bass Lane at 12:35PM.
... There is simply no evidence indicating the presence of some unknown third-party. Danae testified that she had no enemies and did not know anyone who would have wanted to shoot her.
There was no sign of a burglary or break-in at 363 Big Bass Lane, and nothing at the crime scene indicated the presence of some unknown third-party. The Sabine Parish Sherriff's Office did not develop any unidentified third-party suspects.
.... Melinda Rasmussen testified that she found Danae on the floor in front of a chair, injured and bloody. Melinda testified that a gun was lying on the floor about a foot from Danae's hand, and that Danae tried to sit up when Melinda approached her. Melinda eased the gun away and took the gun outside and placed it on a chair. At 1:00PM, Melinda called 911. At 1:01PM, Melinda called Brad and advised him that Danae had "hurt herself". Additionally, Melinda advised Brad that she found Danae on the floor, injured and bloody, and that she had called 911 and help was on the way.
When Detective Brad Marr arrived at Sabine Medical Center, Danae was being treated in the Emergency Room. Detective Marr was unable to obtain any information from Danae, because she was incoherent... Results from a Urine Drug Screen analysis showed [Danae was] positive for marijuana, cocaine, amphetamines and benzodiazepines in her system.
Richard Ernest was accepted by the Court as an expert in shooting scene reconstruction, criminalistics and forensic ballistics. Mr. Ernest examined all of the evidence in the possession of the Sabine Parish Sheriff Office at his laboratory in Fort Worth, Texas. Mr. Ernest testified regarding the ballistic characteristics of the .380 handgun and bullet involved in the shooting. Mr. Ernest testified that ballistics testing of a .380 handgun in gelatin establishes that the bullet causes extensive damage as it enters, but loses velocity very quickly.
Mr. Ernest opined that the entry wound for the bullet was below the chin and that the bullet exited through the forehead. Mr. Ernest testified that he went to 363 Big Bass Lane and discovered a contact mark in the ceiling directly above the chair in which Danae had been sitting, and that the contact mark was consistent with a bullet striking the ceiling. Further, Mr. Ernest testified that when he examined the bullet under his microscope, he noticed white paint on the bullet, against consistent with the bullet striking the ceiling.
Dr. Patrick Besant-Matthews testified as an expert in Forensic Pathology. Dr. Besant-Matthews examined all relevant medical records, including hundreds of CT and radiographic images, along with photographs and other documents relevant to the shooting. Additionally, Dr. Besant-Matthews closely examined the CT scan of Danae's head taken at Sabine Medical Center on February 22, 2015 shortly after the shooting, but before any corrective measures or surgeries were performed on Danae that would have modified any evidence from the shooting.
Dr. Besant-Matthews testified that it was his expert medical opinion that the entry wound was below the chin and the exit wound was through the forehead. Dr. Besant-Matthews described and pointed out to the Court the upward trajectory of the bone fragments shown on CT scan around the sinus and palate. Dr. Besant-Matthews also explained that an exit wound will move the bone of the cranium outward and leave a "beveled" mark on the bone pointing back in the direction from which the bullet traveled, both of which were present on Danae's CT scans. The CT scan of Danae's head clearly matched the classic exit wound known to forensic pathologists.
Further, Dr. Besant-Matthews described and pointed out to the Court the presence of gas from the handgun in the soft tissue surrounding the chin and jaw on the CT scan consistent with the handgun being held under the chin and fired. Dr. Besant-Matthews further testified that the presence of gas in the soft tissue surrounding the chin and jaw is clearly inconsistent with the jaw wound being an exit wound, as it would require the gas to travel through the entry wound in the forehead, through the head, sinus and palate, and then lodge in and around the exit wound. Dr. Besant-Matthews further testified that the fact that a front lower tooth was blown out of Danae's mouth and landed across the room was consistent with an upward trajectory. He explained that it was inconsistent with a downward trajectory, which would have pushed the tooth downward into the jaw and soft tissue. Dr. Besant-Matthews further testified that the entry wound, exit wound and other supporting evidence were all consistent with a suicide attempt.
Detective Anthony Lowe was in charge of investigating the scene at 363 Big Bass Lane. Detective Lowe testified that a note was found on a table next to the bloody chair. The note stated, "Please forgive Me. Kennadi & Eastin. I love you. I'm so sorry."
Detective Anthony Lowe and Aaron Mitchell visited Danae at University Health Center on March 18, 2015. They showed Danae the suicide note and Danae stated the handwriting was hers or resembled hers, but that she had no memory of writing it.
Robert Foley testified as an expert in forensic document examination. He testified that he examined the suicide note and four other known samples of Danae's handwriting. Mr. Foley further testified that it was his expert opinion, to the highest degree of confidence expressed by document examiners, that Danae Starks wrote the suicide note.
The testimony is clear that people who have attempted suicide on prior occasions are at greater risk to attempt suicide again. Medical records established that Danae attempted suicide in 2004 when she took 15-20 Tylenol and was treated at Natchitoches Regional Medical Center. Danae's mother, Jacqueline Guillot, confirmed this fact when she was interviewed by Dr. Tiffany Best during the initial psychiatric consultation at University Health Center on March 9, 2015, but denied it at trial.
Sherie Moore, Brad's mother, testified that she found Danae in the fetal position in her bed on April 14, 2014, with a gun pressed to her stomach. Sherie testified that Danae stated at that time, "I don't want to live like this." Danae testified that the gun was just next to her and she meant she needed help with her female problems.
Danae was transferred by ambulance to University Health Center in Shreveport late on the afternoon of February 22, 2015. Over the following days, Danae underwent numerous surgeries to repair the injuries caused by the gunshots. The testimony established that Brad spent significant time at University Health Center assisting Danae in any way he could such as: shaving her legs, washing her hair and giving her a sponge bath. There was no evidence to suggest that Danae was afraid of Brad or that she believed Brad shot her. In fact, both parties testified that they engaged in sexual activity while Danae was a patient at University Health Center.
At the request of the Sabine Parish Sheriff's Office, the Shreveport Police Department dispatched Detective Sherita Holden to University Health Center to interview Danae on March 3, 2015. Danae had a surgical procedure that morning and had been given painkillers. Detective Holden testified that Danae appeared drowsy, but coherent during the interview. She asked Danae a series of questions. Danae nodded "yes" when asked if she shot herself. Danae shook her head "no" when asked if Brad shot her. Brad was not present when Detective Holden interviewed Danae.

The trial court then reviewed the psychiatric care and progress notes that the staff at University Health Center made at their visits with Danae. Initially, Danae indicated she had no memory of any of the events and that her home life was going well. However, as time went on, she began to deny previous suicide attempts and refused to talk. Despite repeatedly claiming to have no memory of the events, she began to claim that Brad had shot her. The trial court noted that the final diagnosis set forth in the University Health Center record was "suicide and self-inflicted injury by firearms and explosives, unspecified." The trial court then reviewed the testimony of Danae's experts:

Dr. William Manion testified as an expert in Forensic Pathology, but acknowledged that he had no expertise in ballistics or firearms. It was Dr. Manion's expert medical opinion that Danae's wound could not have been self-inflicted because: (1) she could not have shot herself with the bullet entering in the forehead and existing through the jaw and (2) there were two shots.
However, Dr. Manion's testimony should be disregarded in its entirety because his opinion was based on an "assumed fact not supported by the record," specifically incorrect bullet trajectory.... [T]he predicate fact regarding bullet trajectory was established by two highly qualified individuals.
Although it was available to him, Dr. Manion did not review the CT scan. He merely relied on the radiologist report. If he had reviewed the actual CT scan, he would have discovered the upward trajectory of the bone fragments in the sinus area, the upward bone and beveling of the skull at the exit wound and the gas located within the soft tissue around the jaw.
The correct bullet trajectory was established by two highly qualified experts, Richard Ernest and Dr. Patrick Besant-Matthews, who both concluded that the bullet entered under Danae's chin and exited through her forehead. Danae indicated she would call the radiologist to testify, but she did not call him to testify nor did she call anyone to rebut the opinions of Richard Ernest and Dr. Patrick Besant-Matthews.
Dr. Manion's testimony was flawed in other ways as well. Dr. Manion testified that Danae would have been totally incapacitated by the gunshot wound to the head. However, the evidence and testimony revealed that Danae was not incapacitated, but was attempting to sit up when she was found by Melinda Rasmussen. The very limited information relied on by Dr. Manion was inadequate to render the professional opinions he did in this case, and his testimony should be disregarded.
Once you take all the evidence and testimony presented at trial, it is clear Danae Starks' injuries were self-inflicted in a failed suicide attempt. After considering all of the undisputed objective physical evidence in the record, along with the text messages sent by Danae which stated, "Don't bring the kids back here" followed by 'Good bye", and the suicide note written in Danae's own handwriting that simply stated, "Please forgive Me. Kennadi and Eastin. I love you. I'm so sorry.", it is beyond a reasonable doubt that Danae's injuries were self-inflicted in a failed suicide attempt.

Exclusion of Minor Witness

Danae's first assignment of error centers on the trial court's failure to allow Danae and Brad's seven-year-old son to testify that Brad threatened Danae on July 28, 2014 with a gun and that the child begged his father, "Don't shoot Mommy." The trial court heard testimony about the incident, with Brad testifying that he was removing a gun from the glove compartment of Danae's car. Danae argues that pursuant to La.Code Evid. art. 404, prior acts of domestic violence are admissible to prove the violent nature of the relationship and the identity of Danae's assailant. The trial court stated its reasons for excluding Eastin's testimony:

Unlike cases wherein the child is a necessary or main witness, this child's testimony has nothing to do with events of February 22, 2015 and are not necessary to prove or disprove what happened on February 22, 2015....The only professional ... that has visited with the children is Robin Miley who in her report expressed concern about the profound effect on the well-being of the children this case has made on them. Also Ms. Miley's concern regarding the public position Ms. Starks has taken as a victim of domestic violence has had an adverse effect on the children who need protection from further trauma in their young lives. If the child was allowed to testify the purpose would be to support Ms. Starks' position. Further, since Mr. Ducote's cross-examination of Mr. Starks and his direct of Ms. Starks the Court believes he has made any points that need to be made and the child's testimony is unnecessary. Given the young age of the child which brings in possible issues of competency and suggestibility [,] the fragile circumstances the child is in because of the parents' inability to co-parent at this time[,] and the concerns of Dr. Miley (sic) the Court finds that any testimony by the child would be of no purpose and it is not in the child's best interest to testify. And that the damage done to the child would far outweigh the probative value of any testimony he would give.

It is within the trial court's broad discretion to allow the testimony of a child. Watermeier v. Watermeier , 462 So.2d 1272 (La.App. 5 Cir. 1985) ; Cooper v. Cooper , 594 So.2d 939 (La.App. 3 Cir. 1992). For the reasons stated by the trial court, we find it was fully within its broad discretion to exclude Eastin's testimony. Even if this testimony had been admitted into evidence, we agree with the trial court and find it would have no bearing on the issue of whether Danae shot herself on February 22, 2015 and is, therefore, not relevant. See La.Code Evid. art. 401. Accordingly, this assignment of error is without merit.

The Cell Phone

In this assignment of error, Danae argues that Etheredge's testimony was not based on sufficient facts or data and was not the product of reliable principles and methods. Danae further argues that because Brad's attorney formed an LLC for Etheredge's business several weeks after the shooting, the "questionable ethics" call into doubt the veracity of his testimony. We disagree.

The admissibility of expert testimony is set forth in La.Code Evid. art. 702 :

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(1) The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.

In determining whether a method is reliable, the trial court in exercising its gatekeeping function, utilizes the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), including peer review of the technique, rates of error involved in the technique, standards for using the technique, and the general acceptance of the method. State v. Foret , 628 So.2d 1116 (La.1993). Historical cell site analysis has been challenged and its methodologies have been accepted and are routinely used in the law enforcement community. See State v. Davis , 13-275 (La.App. 3 Cir. 10/23/13), 129 So.3d 554 ; writ denied , 14-10 (La. 6/13/14), 140 So.3d 1186, cert. denied , --- U.S. ----, 135 S.Ct. 678, 190 L.Ed.2d 393 (2014), State v. Saltzman , 13-276 (La.App. 3 Cir. 10/23/13), 128 So.3d 1060, writ denied , 14-11 (La. 6/13/14), 140 So.3d 1187, cert. denied, --- U.S. ----, 135 S.Ct. 678, 190 L.Ed.2d 393 (2014), State v. Jackson , 15-809 (La.App. 4 Cir. 5/25/16), 193 So.3d 425, writs denied , 16-1471 (La. 6/16/17), 219 So.3d 1112, 16-1294 (La. 5/26/17), 221 So.3d 79. The trial court's "great discretion" in determining whether a party is qualified as an expert is subject to the abuse of discretion standard. Davis , 129 So.3d 554. Jennifer Dalmida, a custodian of records for Verizon Wireless, testified regarding the cell phone calls made from the cell phone assigned the number 318-332-5874 and identified as Brad's cell phone on February 22, 2015. Dalmida testified as to the manner that cell phone records are collected in the ordinary course of business.

Etheredge is a criminal investigator and runs the High-Tech Crime Unit at the Natchitoches Parish Sherriff's Office. He also owns Digital DNA Recovery, LLC, and has been qualified as an expert in digital forensics involving cell phones. Etheredge had worked for the Sheriff's Office since 2003, and had been an investigator since 2008. In 2009, the high-tech unit was created and Etheredge is in charge of it. Etheredge reviewed his extensive training in cell phone data retrieval and forensic mapping. He testified that he does historical cell phone data analysis for the Secret Service and FBI.

Etheredge described how cell phone companies record cell phone activity through cell towers and switches. Essentially, cell phone data is transmitted through GPS longitude and latitude coordinates. Etheredge then described how a computer system can plot points along a map to show the movement of the cell phone. He also stated that he plots the coordinates by hand for verification. Etheredge examined Brad's cell phone records and Verizon cell tower records, which were provided by Dalmida pursuant to subpoena. Etheredge provided extensive documentation of Brad's cell phone activity that day. Brad's cell phone was in his possession and shown to Detective Aaron Mitchell at 3:00 p.m. on the day of the shooting. All of the parties that Brad spoke to that day verified their conversations with Brad on his cell phone number used by Etheredge to track the phone's location.

Etheredge concluded that at the time the 13.5 minute call from land line at the home of Brad and Danae ended, Brad was approximately 36 minutes, or forty to forty-four miles, away. It was stipulated that Rasmussen made a 911 call at 1:29 p.m. reporting that Danae had been shot. Etheredge concluded that based on the cell phone records, Brad would have been unable to shoot Danae.

The cell phone evidence proves that Brad was heading east toward Natchitoches from Many for the stated purpose of picking up his kids from his mother's house. Then he stopped and turned around and headed back toward Many. Danae provided no expert of her own to contradict the testimony of Etheredge. The trial court did not abuse its discretion in allowing Etheredge to testify regarding historical cell phone data. This assignment of error is without merit.

The Suicide Note

Danae claims that the note which read "Please forgive me. Kennadi and Eastin. I love you. I'm so sorry" could be construed as not being a suicide note and could have been written by someone else. The trial court refused to accept into evidence the handwritten note of Danae's friend to prove that anyone could have written the note. The friend's note was proffered. Danae put on no handwriting expert evidence to refute Foley's testimony that he was absolutely certain that it was her handwriting.

The trial court did not err in excluding the handwritten note of her friend. Multiple times Danae confirmed that it looked like her handwriting, but she had no recollection of writing the note. Throughout the hearing, Danae made arguments and insinuated that the entire scene was a staged suicide and the note could have easily been written by someone else. We find that the totality of the circumstances belies such a theory. The trial court was within its discretion to exclude the note written by Danae's friend as it had no probative value. See La.Code Evid. art. 901.

Abuse of Discretion

In this assignment of error, Danae argues the trial court abused its discretion in finding beyond a reasonable doubt that the gunshot wounds were self-inflicted. Danae addresses a number of factual findings, including the ones discussed above to show that it was not proven by a reasonable doubt that the gunshot wounds were self-inflicted. She further argues that there is a "strong legal presumption that a person chooses self-preservation over suicide, therefore suicide must be proven beyond a reasonable doubt." Danae cites jurisprudence relating to life insurance policies for this presumption. See Brown v. Hartford Life and Accident Insurance Co ., 593 So.2d 1376 (La.App. 5 Cir. 1992). We find no error in the trial court's finding that Brad proved beyond a reasonable doubt that Danae's gunshot wounds were self-inflicted. Even if we assumed, arguendo , that this presumption applies, we still find that it was proven far beyond a reasonable doubt that this gunshot wound was self-inflicted. Danae simply failed to offer any reasonable evidence supporting her allegation that Brad shot her or that some other third person shot her.

The alleged inconsistencies in Brad's testimony center on the minutes in which he was hearing what he did not think could be gunshots (he thought a cabinet door was being slammed), his calling the neighbor, Rasmussen, to have her check on Danae, and the subsequent events that followed when he found out his wife had shot herself. There were numerous calls back and forth between Brad and Rasmussen. We do not find that the inconsistencies in the timing of Brad's statements, who was in a state of shock over what had transpired, were of any significance in the overall findings of the trial court, which were reasonably based on the evidence before it, and proved beyond a reasonable doubt that Danae shot herself.

Clearly, the trial court found the testimony of Brad's experts more persuasive. Coupled with the other significant factors indicating that the gunshot wound was self-inflicted, based on our review of the record, we are unable to say that the trial court abused its discretion. Such facts include: the cell phone records which indicate that Brad was not near the house when Danae was shot; the "suicide" note that was determined with absolute certainty to have been written by Danae; Danae's past history of suicide attempts; the facts following the shooting, including Brad assisting her at the hospital, and consensual hospital room sex; Detective Holden's testimony that Danae admitted shooting herself and denied that Brad shot her; the investigating officers finding that it was a failed suicide attempt; and the testimony of the parties.

All of the trial court's reasons for judgment are supported by the record. Therefore, we can find no error. Accordingly, the trial court did not abuse its discretion in finding that Danae's gunshot wound was self-inflicted.

THE CUSTODY HEARING

A bench trial in front of Judge Eric Harrington, presiding ad hoc, occurred on February 15, 2017. Testimony was heard and the 30-page report of psychologist, Dr. Mark P. Vigen and licensed professional counselor, Dr. Shelley Visconte, was admitted into evidence.

At the conclusion of the hearing, the trial court gave extensive oral reasons for its interim custody order. We note that the trial court wished to prevent further harm to the children in the future by preventing the dissemination of the confidential report of Drs. Visconte and Vigen noting that, in other cases, portions of these reports have been published online and significantly affect the children. The trial court specifically instructed the parties not to discuss any of the confidential findings with anyone. The trial court stated:

I have to say I have been very impressed, especially with the court experts, Dr. Vigen and Dr. Visconte.... I do note at page 7 of their written report that the doctors very frankly stated that the recommendation that either of these children be raised by a foster family or [by] extended family seems to follow from the history of these parents. Quite a remarkable statement of the doctors' lack of confidence in these parents.... In reviewing the evidence here, I have applied to it uh, Article 134 of the Code, of the Civil Code as well as considering other factors and as a result I conclude that it is not in the best interest of the children for either parent to have physical custody at this point.... I note that the doctors have recommended that a year might be an appropriate time. I am aware that the visitation order currently in place allows unsupervised visitation for Ms. Starks. I issued that order last October because Mr. Starks said at that time that he did not fear for the children's safety while in her presence. The doctors have recommended that she go to an arrangement that requires her visitations with the children to be supervised by Mr. and Mrs. Guillot. The doctors are of the opinion that she still tends to deny and minimize the problems that she has. And although there is no evidence of substance abuse on her part since the shooting incident the doctors note diagnosis from that time of alcohol abuse in remission, stimulant use disorder, anxiolytic use disorder and cannabis use disorder episodic. They have diagnosed her now with cannabis use disorder in remission. That means those issues and others are not resolved and have not been dealt with by her and therefore are subject the reappear. Therefore they recommend supervised visitations. I agree and that is what I will order. When I was in Court with the parents in October and December 2016, I admonished them that their behavior between then and now could have an impact on my ruling as to custody. At page 2 of their report the doctor's (sic) states their opinion that quote "Mr. Starks and Mrs. Guillot present as immature, lacking insight and have tendencies to displace personal responsibilities onto others." Close quote. During this trial, I have learned that Ms. Starks after learning from her attorney what Mr. Starks' diagnosis was by psychologists texted that information to a friend comparing Mr. Starks to Jeffrey Dahmer and Charles Manson. That is such an immature thing to do that it just confirms the doctor's opinion. And even though I warned you that your behavior could have adverse consequences in my custody decision. Mr. Starks gave Ms. Starks his password to enter his IPad so that [Eastin] could play games. She used that as an opportunity to read his email. More immaturity and lack of good judgment. Because Ms. Starks wanted the order lifted prohibiting her from going to St. Mary's school we had a trial on that sole issue in December. I lifted that order allowing her to be able to go to the school. It was important that she be able to be involved in her children's lives in so far as their education was concerned. She would be able to go to their school extracurricular activities and generally be involved in their school lives. During this trial I learned from her that she had never returned to the children's school saying she did not want to because of what happened last year. Then why did you ask me to lift the order? You complained that you don't know how the children are doing and that you've never seen a report card, yet you, I lifted the order so that you can obtain all that information and you say that you aren't going to do that. Ms. Starks was giving (sic) Wednesday night visitations on her week off in the current visitation schedule yet she testified that she has never exercised any of the Wednesday visitations without explanation.... Ms. Starks will now have her visitation supervised by her parents. When Ms. Starks' visitations occur outside Natchitoches she will return the children by 5:00 pm on Sunday....The court [finds] that the doctors' recommendations concerning each parent maintaining one year of sobriety to be monitored by monthly random drug and alcohol screens and weekly substance abuse treatment and psychological counseling as set forth to be in the report appropriate....The doctor recommended that because of their, of their, immature and impulsive behavior, uh, I think were the words Dr. Visconte specifically used that both parents should be prohibited from possessing firearms....The doctors made many other recommendations pretty much all of which I find to be appropriate.

Dr. Shelley Visconte & Dr. Mark Vigen

Dr. Shelley Visconte was qualified as an expert in professional counseling and marriage and family therapy. Dr. Mark Vigen was qualified as an expert in the field of clinical psychology. Together, Drs. Visconte and Vigen conducted extensive testing and interviewing of the Starks along with home visitations. They interviewed collateral sources provided by Danae and Brad. Danae was diagnosed with borderline personality disorder, major depressive disorder, episodic, and poly substance abuse.

The report provided by Drs. Visconte and Vigen notes that Danae "seems to be in denial" regarding the suicide attempt. However, the report goes on to state that both parents possess inconsistent and permissive parenting styles, neither properly supervises the children, both have demonstrated poor parental judgment, and both place their needs to punish each other above the well-being of their children. The report finds that "The histories, parenting deficits, and behavioral patterns of these parents are serious impediments to their ability to appropriately parent Eastin and Kennadi."

The entirety of Danae's argument is premised on her assertion that the trial court's underlying finding that she shot herself is the sole basis for the resulting interim custody order. We disagree. Although the attempted suicide is a significant event, there were other significant facts supporting the supervised visitation order. Thus, despite Danae's claims that the shooting is the sole reason that she is being denied custody, we find that not to be the case. The trial court clearly found the best interests of the children were served by being placed with the grandparents for a number of reasons, only one of which is Danae's continued denial of the self-inflicted gunshot wound. The record is replete with evidence that neither of these parents are in a position to properly parent these children. The trial court did not abuse its discretion in finding that continued custody with the grandparents, with the parents having supervised visitation, was in the best interest of the children. This interim custody order is subject to continued review and modification based on Danae's ability to comply with the recommendation of the professionals in order that she may work toward a less restrictive custody order.

CONCLUSION

The judgment of the trial court finding that Danae's gunshot wounds were self-inflicted is affirmed. The judgment of the trial court awarding interim custody to Ken and Jan Starks is affirmed. All costs of this appeal are assessed to the plaintiff-appellee, Danae Starks.

AFFIRMED .

      We are unsure of why the trial court used the "beyond a reasonable doubt" standard in this civil matter. It is debatable and not entirely clear from the record who bore the burden in proving who shot Danae. Danae has called into question who shot her since the divorce petition was filed, however, she did not allege Brad as the shooter until sometime later. Brad, on the other hand, challenged Danae's fitness to be a custodial parent because she shot herself. In brief, Brad states, "Danae accused Brad of shooting her, therefore Danae must prove that she was shot by Brad." In either case, because this is a civil matter, the preponderance of the evidence standard of proof should have been used in determining if Danae shot herself. See Talbot v. Talbot , 03-814 (La. 12/12/03), 864 So.2d 590. Similarly, Danae bore the same burden of proving that Brad shot her as alleged. We find this error harmless however since the much harder burden of proof was met in finding Danae's gunshot wounds were self-inflicted.

      Because only Danae is appealing the custody order we will exclude the findings relating to Brad.


source: Caselaw Access Project

author: AMY, Judge.

license: Public Domain

text:
    Dustin BONIAL v. CITY OF ALEXANDRIA
    18-77
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 2018
    Daniel E. Broussard, Jr., Broussard, Halcomb & Vizzier, Post Office Box 1311, Alexandria, LA 71309, (318) 487-4589, COUNSEL FOR PLAINTIFF/APPELLANT: Dustin Bonial
    Steven M. Oxenhandler, Gold, Weems, Bruser, Sues & Rundell, Post Office Box 6118, Alexandria, LA 71307-6118, (318) 445-6471, COUNSEL FOR DEFENDANT/APPELLEE: City of Alexandria
    Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Elizabeth A. Pickett, Judges.
   AMY, Judge.

After directing a racial epithet towards a coworker, the plaintiff was terminated from his employment with the City of Alexandria. He appealed his termination to the Alexandria Civil Service Commission, where a majority of the Commission members voted to affirm the termination. The plaintiff then appealed his termination to the trial court, which affirmed the Commission's decision. He now appeals to this Court. For the following reasons, we affirm.

Factual and Procedural Background

Dustin Bonial worked for the City of Alexandria as an apprentice lineman in the Electric Distribution Department. After allegations of an incident occurring between Mr. Bonial and a coworker, a pre-disciplinary hearing was held. At this hearing, Mr. Bonial admitted that, on January 23, 2017, he used a racial epithet regarding a coworker, Charles Turner, in the breakroom of the City's facility. Citing violations of the City's "Workplace Conduct Policy" and Civil Service Rule XII, § 1.3, the City terminated Mr. Bonial from his employment on February 16, 2017. Subsequently, Mr. Bonial appealed his termination to the Alexandria Civil Service Commission ("Commission"), and a hearing was held. At the hearing, the parties stipulated "that Mr. Bonial called Mr. Turner" by the epithet.

Mr. Turner testified at the hearing, explaining that he is a warehouse clerk with the City's electrical department. He was asked by counsel for the City to recount what happened in the City's breakroom on January 23, 2017:

Q Could you explain to the board what happened some-some time in the morning, I believe it was?
A It was at-I think it was lunchtime. I just was walking in the break room to go use the bathroom. I just wanted to chill. And it's, "Look at this n----- [hereinafter "racial epithet"]," you know.
....
Q And how did that make you feel?
A Disrespected ... why would [someone] say that? ... I wasn't worried about him or focused on him. I was going to use the bathroom.

Mr. Turner was subsequently questioned on cross examination by counsel for Mr. Bonial, as follows:

Q Tell me exactly what he said.
A He said-swung his chair around, "Hey, y'all, look at this [racial epithet]."
Q He just-he just said that out of the blue?
A Just said it out of the blue.
....
Q I say-my question: Did you ever tell him that you didn't want him to use that word?
A Like I said, I mean, it should be common sense. I didn't want him to call me that. I don't want [any]body to call me that. It should be common sense.
....
Q Now, was this an upsetting event to you?
A It had made me mad, like, why would [someone] ... just call me that?

Additionally, Mr. Bonial testified at the hearing regarding the incident, and the following colloquy occurred:

Q Mr. Bonial, when you came to work for the City, you signed a-what's known as City of Alexandria Workplace Conduct policy. Do you remember this, this policy?
A Yes, sir.
....
Q Is this your signature. Mr. Bonial?
A Yes, it is.
Q Okay. And so you understood that you-you read this policy and you understood it and you were-you were going to abide by it; correct?
A Yes, sir
....
Q And you understand that you were not to use abusive or indecent language to a fellow employee; correct?
A Yes, sir.

Mr. Bonial was asked whether he considered his use of the epithet to be the "proper thing to do" to which he responded: "Prior to the incident, we-I mean, I've called him that.... I called him it before. And, you know, just like a friend, you know." When asked why he used the epithet, Mr. Bonial stated: "I've used it numerous [ ] times and he's been okay with it."

Notwithstanding the patently offensive language at issue, the City also presented the testimony of Mike Marcotte. Mr. Marcotte explained that he is the City's director of utilities and, in that capacity, was Mr. Bonial's direct supervisor. He confirmed that the break room is a common area for all employees. When asked whether the use of "racial epithets ... adversely affect[s] the efficient operation of the City[,]" Mr. Marcotte responded: "Yes, sir. I mean, it's certainly ... it just-something with the racial overtone like that, I mean, it destroys the morale, you know." He further stated that the employees "are handling 12,000 volts in their hand. They've got to-they've got to get along. They've got to know they can trust each other." After testimony was adduced, a majority of the Commission voted to affirm Mr. Bonial's termination.

Mr. Bonial then filed a petition in the Ninth Judicial District Court, seeking "judicial review of the decision of the Alexandria Civil Service Commission" and asserting that the Commission erred in affirming his termination and in failing to follow the provisions of Civil Service Rule XII, § 2.6(A) and (B). After a hearing, the trial court rendered judgment, affirming the Commission's decision and denying Mr. Bonial's appeal.

Mr. Bonial now appeals, asserting the following assignments of error:

1. The Commission and the Trial Court erred in affirming the Appointing Authority's disciplinary action of termination finding it was commensurate with the infraction that plaintiff was found guilty of.
2. The Commission and the Trial Court erred in failing to follow the provisions of Civil Service Rule XIII[,] § 2.6A and B[ ] and Louisiana jurisprudence.

Discussion

The supreme court has provided the following standard for appellate review of civil service disciplinary cases:

[I]t is well established in our jurisprudence that appellate courts reviewing civil service disciplinary cases are presented "with a multi-faceted review function." Mathieu v. New Orleans Public Library , 09-2746, p. 5 (La.10/19/10), 50 So.3d 1259, 1262, citing Bannister v. Department of Streets , 95-0404 at 8 (La.1/16/96), 666 So.2d 641 at 647. See also Walters v. Department of Policy [Police] of City of New Orleans , 454 So.2d 106, 113 (La.1984) (internal citations omitted) ("[A] reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review in deciding whether to affirm the commission's factual findings."). This court in Mathieu, supra, summarized the appellate review function in the civil service context:
Initially, deference should be given to the factual conclusions of the civil service commission. A reviewing court should apply the clearly wrong or manifest error rule prescribed generally for appellate review. Bannister , 95-0404 at 8, 666 So.2d at 647 ; Walters , 454 So.2d at 114. Then, the court must evaluate the commission's imposition of a particular disciplinary action to determine if it is both based on legal cause and is commensurate with the infraction; the court should not modify the commission's order unless it is arbitrary, capricious, or characterized by abuse of discretion. Id. "Arbitrary or capricious" means the absence of a rational basis for the action taken, Bannister , 95-404 at 8, 666 So.2d at 647 ; "abuse of discretion" generally results from a conclusion reached capriciously or in an arbitrary manner, Burst v. Board of Commissioners, Port of New Orleans , 93-2069, p. 5 (La.App. 1 Cir. 10/7/94), 646 So.2d 955, 958.
Mathieu v. New Orleans Public Library , 09-2746, p. 5-6 (La. 10/19/10), 50 So.3d 1259, 1262-3.

City of Alexandria v. Dixon , 15-1718, pp. 10-11 (La. 5/3/16), 196 So.3d 592, 598-99 (footnote omitted).

In briefing to this Court, Mr. Bonial states that "there is no dispute regarding the finding of facts by the Commission surrounding the incident that gave rise to [Mr. Bonial]'s disciplinary action." Rather, in his assignments of error, Mr. Bonial asserts that the Commission and the trial court erred in finding that the action of termination was commensurate with his infraction. He further argues that the Commission and the trial court erred in failing to rescind his termination and order an appropriate disciplinary action commensurate with his offense. Accordingly, we turn our consideration to whether Mr. Bonial's termination was "based on legal cause and is commensurate with the infraction." Dixon , 196 So.3d at 599.

In Lange v. Orleans Levee Dist. , 10-0140, p. 14 (La. 11/30/10), 56 So.3d 925, 934, the supreme court explained: " 'Cause'

for termination of an employee includes conduct prejudicial to the public service involved or detrimental to its efficient operation." The repugnant nature of the subject term, alone, would seem to require no further inquiry under this standard. However, as discussed above, Mr. Marcotte further testified that the use of racial epithets adversely affects the efficient operation of the City and "destroys the morale." He explained that the workers in the electrical department have "to know they can trust each other" and that the use of racial epithets "wedges the whole department." In this regard, as noted, Mr. Turner testified that he felt "disrespected" and "mad" after Mr. Bonial's use of the racial epithet. Based on the nature of the offense and the foregoing testimony, we find that there was cause for Mr. Bonial's termination.

Further, we find no error in the Commission's and the trial court's determination that the discipline utilized in this case, termination, was commensurate with the offense. In the letter Mr. Bonial received notifying him of his termination, the City stated that Mr. Bonial's "discourteous and disrespectful" behavior towards Mr. Turner violated sections of Civil Service Rule XII, § 1.3. In particular, the City stated that Civil Service Rule XII, § 1.3 prohibits "any [ ] act of omission or commission tending to injure the public service[,]" as well as "any act or failure to act that the Commission accepts as sufficient to show the offender is unfit or unsuitable for employment in the classified service."

Additionally, in the termination letter, the City stated that Mr. Bonial violated the City's Workplace Conduct Policy, including various provisions from Section I, which is titled "Unacceptable Behavior" and lists "[t]ypes of job-related behavior that the City considers inappropriate and, therefore, subject to corrective disciplinary action that may result in termination[.]" Specifically, the City contended that Mr. Bonial contravened Section I in the following ways:

a. Violations of the directives, policies, procedures or practices governing the operation of the department to whom the employee reports that have been approved by the appointing authority;
b. Disorderly, abusive, or indecent conduct that causes disruption of the work environment, including fighting, verbal abuse, or excessive arguing before seeking supervisor intervention;
c. Any act which endangers the safety, health, or well-being of another person, or which is of sufficient magnitude that the consequences cause or potentially cause disruption of work or gross discredit to the City;
d. Other such actions, offenses, or incidents deemed of sufficient reason to justify dismissal[.]

The City also stated that Mr. Bonial's behavior violated Section II of the Workplace Conduct Policy, which is titled "Harassment" and provides, in pertinent part:

The City prohibits all forms of harassment, whether due to race, religion, creed, color, national origin, sex, marital status, age, or the presence of any physical, mental or sensory disability. Harassment of any employee by another employee, supervisor, contractor, or customer is a serious violation of the City's policy and will not be tolerated.
Harassment ... can be difficult to define. Misconceptions abound. Harassment can take many forms and can include slurs, comments, jokes, innuendoes, unwelcome compliments, pictures, cartoons, pranks, or other verbal or physical conduct which is based upon a person's protected status ....

Considering the above provisions, we do not find that the Commission and the trial court acted arbitrary, capriciously, or in abuse of discretion in finding that the action of termination was commensurate with the offense.

For these reasons, we conclude that cause existed for Mr. Bonial's termination and that the penalty was commensurate with the offense. Therefore, the decision of the Commission and that of the trial court to uphold the termination was neither arbitrary, capricious, nor characterized by an abuse of discretion.

DECREE

For the foregoing reasons, the judgment of the trial court, upholding the Alexandria Civil Service Commission's vote to maintain Dustin Bonial's termination, is affirmed. All costs of this appeal are assessed against Mr. Bonial.

AFFIRMED.

      In briefing to this Court, Mr. Bonial provides (emphasis per the appellant's brief):
      Civil Service Rule XIII[,] § 2.6A and B states:
      "A. In reviewing the disciplinary actions, the Commission shall have the duty and authority to determine whether the Appointing Authority acted with just cause and within its Rules, procedures and policies in taking disciplinary action for infractions allegedly committed by an employee, and, if so, whether the discipline imposed is commensurate with the infraction.
      B. The Commission shall act to modify or set aside disciplinary action taken by the Appointing Authority only when it finds that the Appointing Authority has acted unreasonably. The fact that the Commission finds the Appointing Authority could or should have pursued a different course of action against such employee shall not be sufficient grounds to modify or set aside disciplinary action taken by the Appointing Authority."


author: Judge Paula A. Brown

text:
    Michael L. ECKSTEIN v. Steven A. BECNEL
    Stratus Systems, Inc. v. Michael L. Eckstein
    Michael L. Eckstein, Eckstein Law Firm, a Professional Corporation, and Stratus Realty, L.L.C v. Steven A. Becnel and Kristine M. Becnel
    NO. 2017-CA-0868 NO. 2017-CA-0869 NO. 2017-CA-0870
    Court of Appeal of Louisiana, Fourth Circuit.
    JUNE 27, 2018
    H. Minor Pipes, III, Eric J. Drury, Steven William Usdin, BARRASSO USDIN KUPPERMAN FREEMAN & SARVER, LLC., 909 Poydras Street, Suite 2400, New Orleans, LA 70112, COUNSEL FOR PLAINTIFF/APPELLEE
    Paul E. Bullington, Guy E. Wall, Jonathan R. Cook, Sara M. Lewis, WALL, BULLINGTON & COOK, L.L.C., 540 Elmwood Park Boulevard, Harahan, LA 70123, COUNSEL FOR DEFENDANTS/APPELLANTS
    (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown )
   Judge Paula A. Brown

This matter involves the enforceability of the terms of a settlement agreement. Appellants, Steven A. Becnel ("Mr. Becnel") and Stratus Systems, Inc. ("Stratus"), appeal the district court's judgment granting the Motion to Enforce Settlement Agreement and Consent Judgment, and the Motion for Declaratory Relief filed on behalf of appellee, Michael L. Eckstein ("Mr. Eckstein"). For the reasons that follow, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

In 1992, Mr. Becnel and Mr. Eckstein formed Stratus to sell Mr. Becnel's safety inventions. Mr. Eckstein, an attorney, financed a portion of the endeavor and provided legal advice. Beginning in 1997, a dispute arose as to the percentage of Mr. Eckstein's ownership interest, fees Mr. Eckstein claimed he was owed for legal work, and whether Mr. Eckstein had breached any fiduciary and ethical duties owed to Stratus. Both parties filed suit. In August 2005, Mr. Becnel, Stratus, and Mr. Eckstein signed a Settlement Agreement, a License Agreement, a Product Transfer Agreement, and a Consent Judgment (collectively, the "Agreement"). In part, the Agreement: (1) transferred the rights to the "Halkey-Roberts Inflator" and the exclusive license of all non-military sales of the "Universal Inflator" to Mr. Eckstein; and (2) gave Stratus exclusive rights to all military applications of the Universal Inflator. Moreover, the Agreement required Stratus to pay Mr. Eckstein eight percent of the Total Gross Revenue Receipts ("TGRRs") of the Universal Inflator for a ten-year period, beginning on the date on which the first sale was made. It also gave Mr. Eckstein the right to audit Stratus' records in the event he reasonably believed TGRRs reported on Stratus' federal tax returns are inaccurate. In February 2016, Mr. Eckstein filed a Motion to Enforce Settlement Agreement and Consent Judgment ("Motion to Enforce"), complaining that Mr. Becnel and Stratus (hereinafter, collectively, "Stratus") had violated the terms of the Agreement over the ensuing years. He requested that Stratus: (1) submit to an audit and pay the associated costs; (2) provide all current design and patent information-also known as "deliverables"-related to products that Eckstein owns and is entitled to sell; (3) cease and desist sales in the non-military market; (4) reimburse Mr. Eckstein for any non-military sales; and (5) pay attorney's fees associated with filing the Motion to Enforce. Mr. Eckstein alleged that his review showed Stratus' TGRRs "numbers didn't add up" and Stratus' internal audit had revealed errors which resulted in additional royalty payments of over $100,000.00. He represented that, in violation of the Agreement, Stratus had refused to supply him with updated versions of the Universal Inflator and the Halkey-Roberts Inflator. Mr. Eckstein also requested that Stratus be ordered to produce records of any non-military sales premised on his contention that Stratus had violated the Agreement by selling the Universal Inflator to non-military customers.

In opposition, Stratus maintained that Mr. Eckstein filed the Motion to Enforce solely because the royalty payments he was owed stemming from the date of the first sale of the Universal Inflator were scheduled to expire in February 2017. Stratus argued that Mr. Eckstein was not entitled to any records of non-military sales because Mr. Eckstein had offered no proof that Stratus had made any such sales. Specifically, Stratus maintained that the only identifiable non-military customer, Switlik Parachute Company ("Switlik"), had bought the Universal Inflator for military applications, which Stratus argued was allowed by the Agreement. Stratus added that the Agreement's terms prohibited the assessment of any personal liability against Mr. Becnel.

As to Mr. Eckstein's demand for an audit, Stratus alleged that the dispute was resolved when Mr. Eckstein consented to and accepted payment as a result of the internal Stratus audit completed in the years 2011 through 2012. As such, Mr. Eckstein was only entitled to an audit for 2014-at his own expense. Stratus further maintained it had already complied with Mr. Eckstein's demands for deliverables. In conclusion, Stratus requested a declaration that the Universal Inflator royalties owed to Mr. Eckstein should terminate on February 1, 2017-the date it alleged was the tenth year after the first sale of the Universal Inflator to the United States Navy (the "Navy") for $84,649.58.

The district court heard argument on the Motion to Enforce on September 23, 2016. At the conclusion of the hearing, the district court orally granted Mr. Eckstein's audit request, with payment for the audit to take place in accordance with the Agreement. The district court ordered Stratus to produce, for an in camera inspection, documentation of all sales to any non-military customers of the Universal Inflator and Halkey Roberts Inflator. The district court also instructed Stratus to provide the deliverables-even if they had previously been provided as Stratus claimed-and requested a written judgment that reflected its orders.

On February 13, 2017, before a written judgment was signed, Mr. Eckstein filed a motion for declaratory relief, which the district court heard on May 19, 2017. In this motion, Mr. Eckstein asserted that he was entitled to royalties through January 28, 2022, as the first sale date for the Universal Inflator was January 28, 2012-not February 1, 2007, as claimed by Stratus. Mr. Eckstein argued that the $84,649.58 payment the Navy made to Stratus on February 1, 2007, was not for an actual sale of the Universal Inflator units; instead, the payment was only a reimbursement of Stratus' expenses. Mr. Eckstein contended the military requires a product to successfully complete its qualification testing program before the product is approved for sale; and in exchange, the military pays the costs the proposed seller incurs in developing the product for qualification testing. Thus, the Navy's February 1, 2007 payment was a standard reimbursement for Stratus' qualification testing development costs. Mr. Eckstein further argued that the Universal Inflator passed the military's qualification testing on December 30, 2011, and Stratus' first sale of the qualified Universal Inflator to the military market did not occur until January 28, 2012. Consequently, Mr. Eckstein argues he is owed royalty payments until 2022.

Stratus countered that the February 1, 2007 payment meets the legal definition of a sale and Mr. Eckstein should be precluded from contesting that date as the first sale date because he received royalty payments from that transaction. Stratus conceded, however, that no other "sales" were made between 2007 and 2011. While Stratus acknowledged that it did not receive official written notification that the Universal Inflator had successfully completed the Navy's testing program until December 30, 2011, it argued the Navy verbally qualified the Universal Inflator for sale in 2010. After receiving verbal qualification, Stratus maintained it made seven sales of the qualified, producible units in 2011, commencing on January 31, 2011.

Finally, Stratus reiterated that Mr. Becnel should be relieved from all personal exposure arising out of the Agreement's enforcement as the Agreement itself expressly releases him from liability; and, Mr. Eckstein agreed that the relief sought pertained only to Stratus, not to any personal liability on the part of Mr. Becnel.

At the conclusion of the hearing, the district court orally reasoned on the record that its interpretation of the "royalties" clause showed that actual sales of the Universal Inflator began in 2011, when the first seven sales of the certified units were made. The district court also found that Mr. Becnel had no personal liability for the royalty payments. The parties consented to have one judgment to reflect the district court's rulings from both the September 23, 2016 and the May 19, 2017 hearings.

On July 20, 2017, the district court rendered written judgment in favor of Mr. Eckstein and ordered that: (1) the parties evenly share the initial costs of the audit for the years 2008 through 2016, with reimbursement to be paid to the prevailing party pursuant to the Agreement; (2) Stratus provide the district court with an in camera inspection of all Universal Inflator documents regarding sales to non-military customers; and (3) Stratus give Mr. Eckstein certain items for the updated versions of the Universal Inflator. The district court further found that Stratus-not Mr. Becnel personally-owes royalties to Mr. Eckstein through March 14, 2021, and any personal liability of Mr. Becnel is governed by Louisiana statutory law and the terms of the Agreement, which was not before the Court at the present time.

From this judgment, this appeal followed.

DISCUSSION

Stratus alleges the following assignments of error:

1) The district court erred in ruling that the royalties owed to Mr. Eckstein on sales of the Universal Inflator continue until March 14, 2021, instead of February 1, 2017.
2) The district court erred in requiring that Stratus provide Mr. Eckstein with new sample units of the Universal Inflator and new data packages and drawings.
3) The district court erred in ruling that Mr. Eckstein is entitled to an audit for the years 2008, 2009, 2011-2013, and 2016.
4) The district court erred in ruling that Stratus must advance one-half of the costs for an audit, rather than concluding that Mr. Eckstein must advance the audit costs subject to reimbursement if the results are in his favor.
5) The district court erred in ruling that Stratus must provide the court with documentation of sales of the Universal Inflator to customers other than the U.S. Military.
6) The district court erred in refusing to declare that Mr. Becnel is not personally liable under the Settlement Agreement; and
7) The district court erred in not awarding attorney's fees, expenses, and costs to Stratus and Mr. Becnel.

The standard of review of a motion to enforce settlement is the manifest error/clearly wrong standard. Reed v. 7631 Burthe Street, LLC , 2017-0476, p. 10 (La. App. 4 Cir. 12/28/17), 234 So.3d 1201, 1208. A district court's judgment regarding the existence, validity and scope of a compromise or settlement agreement hinges on its finding of the parties' intent-an inherently factual finding. Id.

A dispute arising out of whether or not the language of a contract is ambiguous is an issue of law subject to de novo review. See Orleans Parish School Board v. City of New Orleans , 1996-2664, p. 4 (La. App. 4 Cir. 9/3/97), 700 So.2d 870, 873. However, "[i]n the interpretation of contracts, the trial court's interpretation of the contract is a finding of fact subject to the manifest error rule." French Quarter Realty v. Gambel , 2005-0933, p. 3 (La. App. 4 Cir. 12/28/05), 921 So.2d 1025, 1028 (quoting Grabert v. Greco , 1995-1781, p. 4 (La. App. 4 Cir. 2/29/96), 670 So.2d 571, 573 ) ). In applying the manifest error review standard to the district court's interpretation of the contract, the appellate court may not substitute its own view of the evidence for the district court's view or disturb the district court's fact findings so long as its findings are reasonable. Gambel , 2005-0933, p. 3, 921 So.2d at 1028.

The scope of appellate review in a declaratory judgment is whether or not the district court abused its discretion in granting or denying relief. See Delta Administrative Services, L.L.C. v. Limousine Livery, Ltd. , 2015-0110, p. 6 (La. App. 4 Cir. 6/17/15), 216 So.3d 906, 910. We now apply these precepts to Stratus' assignments of error.

Royalty Payments/Sale of Universal Inflator

Stratus contends the district court erred in its finding that the royalties owed to Mr. Eckstein on sales of the Universal Inflator terminates on March 14, 2021, rather than February 1, 2017.

Section 3 of the Settlement Agreement states, in part:

3. Royalty Payments . Stratus System will pay Eckstein a royalty as follows:

* * *
c. For a ten year period beginning on the date on which the first sale of the Universal Inflator Product is made, Stratus Systems will pay Eckstein eight percent (8%) of the Total Gross Revenue Receipts, as defined in this Agreement, and as confirmed on the federal tax returns of Stratus Systems and of any entity and/or individual resulting from the Universal Inflator, which is presently in development. The payments due under this Section 3.b., if any, shall be payable to Eckstein in equal quarterly installments paid quarterly on April 30, July 31st, October 31st and January 31st of each year during the royalty period....

The parties do not dispute the language of the Agreement unambiguously provides that royalty payments are owed to Mr. Eckstein for ten years after the date of the first sale, but rather, they dispute the transaction which marked the first sale of the Universal Inflator to the military.

Stratus relies on La. C.C. art. 2439 to support its position that the first sale was perfected on February 1, 2007, arguing that ownership of the qualifying Universal Inflators units was transferred to the Navy upon its payment of $84,649.58. Stratus also points out that Mr. Eckstein demanded and received a royalty payment from this transaction and referenced the transaction as a "sale" in his correspondence with Stratus.

Mr. Eckstein, on the other hand, characterizes the February 1, 2007 payment as no more than reimbursement costs for qualification testing units. He urges his use of the "sale" terminology in his correspondence to Stratus was not dispositive as to when actual sales of the Universal Inflator began for purposes of triggering the royalty clause. Mr. Eckstein argues that he was "out-of-the loop" and used the "sale" term in response to the February 1, 2007 payment only because the transaction appeared on a generic Stratus sales report. Mr. Eckstein cites to Mr. Becnel's deposition testimony as conclusive evidence that the military could not have purchased any producible units of the Universal Inflator. Mr. Becnel testified that Stratus could not sell a producible unit of the Universal Inflator to the military until it passed qualification testing, and the $84,649.58 payment represented Stratus' costs to build the Universal Inflator qualification testing units. Additionally, Mr. Eckstein argues that Section 8 of the Settlement Agreement-which gives him the "Exclusive License For All Non-Military Sales of Universal Inflator" -and Section 5 of the License Agreement, read conjointly with Section 3b of the Settlement Agreement, show the Universal Inflator was a product in development. As such, the royalties from sales could not begin until it passed qualification testing. Thus, Mr. Eckstein argues that the first sales of the completed Universal Inflator to the military market started in 2011, after the military notified Stratus that the product had successfully completed qualification testing.

La. C.C. art. 2045 provides the "[i]nterpretation of a contract is the determination of the common intent of the parties." To determine the parties' intent, courts must first look to the words and provisions of the contract. Amend v. McCabe , 1995-0316, p. 7 (La. 12/1/95), 664 So.2d 1183, 1187. In its reasons for judgment, the district court concluded that the February 1, 2007 payment of $84,649.58 represented reimbursement costs for a prototype of the Universal Inflator and not payment for producible units, espousing, "[t]hat was a prototype of it in 2007, and I deem that to be a reimbursement of the costs." The district court noted that after the February 1, 2007 costs payment, no sales of the Universal Inflator to the military took place until Stratus successfully completed qualification testing in 2011, at which time seven sales were made. Thus, the district court interpreted Section 3b of the Settlement Agreement to mean the first sale of the Universal Inflator to the military for purposes of triggering royalty payments began after the product was qualified for sale to military and non-military markets.

Employing the manifest error standard, we find that the district court's factual determinations that the February 1, 2007 payment was a reimbursement for a prototype and the actual first date of Universal Inflator sales to the military was in 2011 are supported by the record. Mr. Becnel's deposition testimony establishes that the government essentially reimbursed Stratus $84,649.58-the cost set by Stratus to build the prototype test units. Mr. Becnel's testimony also verifies that the Universal Inflator underwent numerous revisions; it failed several items on the military's test schedule; it was re-engineered and sent back; the Universal Inflator could not be placed on the government's Qualified Bidders List ("QBL") for possible purchase until it satisfied all of the qualification test requirements; and that sales of the qualified Universal Inflator to the Navy started in January 2011-after Stratus received notice it had completed the qualification test requirements.

Where factual findings are pertinent to the interpretation of a contract, appellate courts cannot disturb those factual findings in the absence of manifest error. New Orleans Jazz and Heritage Found. v. Kirksey , 2009-1433, p. 9 (La. App. 4 Cir. 5/26/10), 40 So.3d 394, 401. Based on the above findings, a reasonable basis exists for the district court's factual conclusion that the "first sale" of the completed Universal Inflator to the military took place in 2011, rather than 2007. Accordingly, as the district court's finding that the royalties owed by Stratus to Mr. Eckstein on military sales of the Universal Inflator extends until 2021 is not manifestly erroneous or an abuse of the district court's discretion, this assignment of error lacks merit.

Deliverables

Stratus maintains the district court erred in ordering it to provide Mr. Eckstein with updated deliverables because the License Agreement only required it to make a one-time delivery-which it had previously made on November 2, 2005. Stratus represents that it provided some additional information on the inflators. It claims, however, that it voluntarily did so because of Mr. Eckstein's lack of technical and engineering expertise, not because it was required by the License Agreement. Contrariwise, Mr. Eckstein insists that the terms of the License Agreement require Stratus to provide him with updated deliverables.

The parties agree that Section 1(c) and Section 2 of the Licensing Agreement apply to the deliverables dispute. As discussed, supra , Section 1(c) defines "Universal Inflator" as including all present and future versions of the product; and Section 2 requires Stratus to transfer certain deliverables pertinent to the Universal Inflator to Mr. Eckstein for his full use during the license term.

It is well settled law that "[e]ach provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole." La. C.C. art. 2050. In the present matter, the district court clearly interpreted Section 1(c) and Section 2 as requiring Stratus to transfer and deliver to Mr. Eckstein certain designated deliverables to enable Mr. Eckstein to meaningfully exercise full use of his license to manufacture and sell to the non-military market. Accordingly, we find the district court was not manifestly erroneous in enforcing the Agreement by ordering Stratus to produce the updated deliverables.

Audit

Stratus raises two assignments of error concerning the court-ordered audit: (1) the district court erred in ruling that Mr. Eckstein is entitled to an audit for the years 2008, 2009, 2011-2013, and 2016; and (2) the district court erred in ruling that Stratus must advance one-half of the costs for an audit, rather than concluding that Mr. Eckstein must advance the audit costs, subject to reimbursement if the results are in his favor.

Audit Years

In the first prong of this argument, Stratus contends the district court should not have granted an audit for years 2008-2009 and 2016 as Mr. Eckstein did not seek an audit for those years in his Motion to Enforce or at the hearing. Mr. Eckstein posits that Section 3c of the Settlement Agreement delineates his right to an audit. In support, Mr. Eckstein contends that written letters from Stratus acknowledged his right to an independent audit; Stratus' TGRRs did not match his receipts; and the reimbursement payments he received as a result of Stratus' internal audit confirms the discrepancies in Stratus' TGRRs.

La. C.C.P. art. 862 provides in part that "a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief." The district court has the discretion to grant relief not requested with great specificity or extensively pled. See LeBleu v. Safeway Ins. Co., of Louisiana , 2001-1637, p. 4 (La. App. 3 Cir. 5/22/02), 824 So.2d 422,425. Notwithstanding, Article 862 does not confer jurisdiction for the district court to decide issues which the litigants have not raised. See Dupree v. Dupree , 41,572, p. 11 (La. App. 2 Cir. 12/20/06), 948 So.2d 254, 260. Upon review, the parties clearly raised and addressed the issue of Mr. Eckstein's entitlement to an audit in their pleadings and argument. The relief granted by the district court aligns with the facts pled in the Motion to Enforce and arguments raised at the hearing. Consequently, the district court did not abuse its discretion in ordering an audit for years not specifically pled in the Motion to Enforce.

In the second prong of this argument, Stratus maintains Mr. Eckstein is not entitled to an audit for 2011-2013, the years covered by its internal audit. Stratus admits its internal audit resulted in an additional royalty payment of $98,025.99, plus interest, to Mr. Eckstein. Stratus claims, however, that Mr. Eckstein agreed to a compromise, pursuant to La. C.C. art. 3071, to settle the 2011-2013 royalty payment dispute when he accepted the additional payment. Accordingly, it argues that Mr. Eckstein is precluded from an audit for those years.

"A compromise is valid if there is a meeting of the minds of the parties as to exactly what they intended when the compromise was reached." See Feingerts v. State Farm Mut. Auto. Ins. Co. , 2012-1598, 2013-0023, p. 11 (La. App. 4 Cir. 6/26/13), 117 So.3d 1294, 1301. The formalities of a compromise require that it be placed in writing or recited in open court. See La. C.C. art. 3072. Here, Mr. Eckstein disputes that any agreement was reached and contests that his negotiation of the royalty payment check quashed his right to an audit. He reiterates that Stratus' TGRRs contained many discrepancies, additional royalties are still owed from 2011-2013 and other years, and the Agreement places no limitations on the amount of years for which an audit could be requested.

The record evidence fails to show a written agreement or a recitation, in open court, that a compromise had been effectuated to settle the audit dispute for 2011-2013. The underlying Agreement gives Mr. Eckstein the right to an independent audit based upon a reasonable belief of inaccurate TGGRs submitted by Stratus. Stratus' admission that its 2011-2013 internal audit revealed inaccuracies provided the district court with sufficient facts upon which to grant Mr. Eckstein's demand for an independent audit. Based on the above, it is reasonable to conclude that there was no meeting of the minds between Stratus and Mr. Eckstein. Accordingly, the district court's order of an audit inclusive of the years 2011-2013 was not manifestly erroneous.

Audit Costs

Stratus contends the district court erred in requiring Stratus to advance half of the audit costs because the Agreement only calls for it to pay costs if the reported TGGRs reveal a discrepancy of four percent. Our scrutiny of Section 3c of the Settlement Agreement shows its terms are silent as to which party is required to provide the upfront costs to fund the audit. The Settlement Agreement imposes the obligation to bear costs after the audit results are obtained. It specifies that Stratus is to bear the costs in the event the audit shows the TGRRs discrepancies are greater than four percent and that Mr. Eckstein bears the costs if the discrepancies are less than four percent. Therefore, the district court's judgment requiring the parties to evenly share the costs of the audit and requiring reimbursement to the prevailing party after the audit results are obtained is in accord with the Agreement. Accordingly, we find no manifest error in the district court's decision to order the parties to equally share the initial costs of the audit.

In Camera Inspection

This alleged error involves the exclusive right the License Agreement gives Mr. Eckstein to market the Universal Inflator to non-military customers for non-military applications. Stratus claims its sale to Switlik-a non-military customer-for military applications did not violate the Agreement. As such, it argues the district court should not have ordered it to produce, for an in camera inspection, documentation of all Universal Inflator sales to non-military customers since Mr. Eckstein failed to prove Stratus had made any sales for non-military applications. We note that although Mr. Eckstein's Motion to Enforce prayed for a cease and desist order to prohibit Stratus from selling Universal Inflators to the military market, at the hearing, Mr. Eckstein requested the following relief regarding Stratus' possible violation of his exclusive license to the non-military market:

But if you sold to somebody who is not a military customer, tell this Court who it is, when you sold it to them, for how much[.] [W]e will go do discovery on that, Your Honor, and we'll come back and say do we think they violated and what do we do about it.

We agree with Stratus that Mr. Eckstein, as the mover, would have the burden of proof to establish his entitlement to a cease and desist order. However, Mr. Eckstein's request for Stratus to produce records of its non-military sales is no more than a method of discovery for production of documents as allowed by La. C.C.P. art. 1421. "Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery...." See La. C.C.P. art. 1422. Established Louisiana jurisprudence gives the district court broad discretion in handling discovery matters. Connick v. Brechtel , 1998-0543, p. 7 (La. App. 4 Cir. 4/22/98), 713 So.2d 583, 587. Here, considering that Stratus admits it has made Universal Inflator sales to at least one non-military customer, compelling it to produce sale records to other non-military customers is clearly relevant to Mr. Eckstein's claims that Stratus may have violated the Agreement. Moreover, it is determinative of his entitlement to a cease and desist order. Thus, we find the district court did not abuse its discretion in ordering the in camera inspection.

Mr. Becnel's Personal Liability

Stratus contends the district court erred in not expressly declaring that Section 31 of the Settlement Agreement precludes Mr. Becnel from any personal liability. Mr. Eckstein emphasizes that although he named Mr. Becnel as a defendant in his Motion to Enforce, he conceded in his motion for declaratory relief and at the hearing that the issue of Mr. Becnel's personal liability was not germane to the issues pending before the district court. He maintains that the remedies he sought and obtained were from Stratus-not Mr. Becnel personally.

In general, appellate courts will not consider issues raised for the first time on appeal which the district court has not addressed. Billieson v. City of New of New Orleans , 2009-0410, p. 8 (La. App. 4 Cir. 11/12/09), 26 So.3d 796, 801. "Appellate courts must disregard all arguments and assignments of error that relate to an issue not raised for consideration before the court below." Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P.v. Cheramie , 2010-0588, p. 3 (La. App. 4 Cir. 9/29/10), 49 So.3d 457, 459.

In the case sub judice , the judgment states that Stratus-not Mr. Becnel-is liable for the additional royalty payments. The broader issue of Mr. Becnel's personal liability for any action brought pursuant to the Agreement was not considered by the district court as it was not a part of the relief sought by Mr. Eckstein. Although the judgment provided that any personal liability of Mr. Becnel is governed by Louisiana statutory law and the Agreement, the judgment specifically found that Mr. Becnel's personal liability "is not before the Court at this time." Hence, this Court shall disregard this assignment of error.

Attorney's Fees

Stratus' final assignment of error argues the district court erred in not awarding it attorney's fees, expenses and costs. Stratus argues it is entitled to these remedies pursuant to Section 25 of the Agreement should this Court reverse the district court's judgment. However, this Court finds no manifest error in the judgment of the district court. Stratus is not the prevailing party in this dispute. Consequently, this assignment of error is without merit.

CONCLUSION

Based on the foregoing reasons, the judgment of the district court is affirmed.

AFFIRMED

      Section 1.b. of the Settlement Agreement defines the term "Halkey-Roberts Product" as follows:
      The term "Halkey-Roberts Product" as referred to in these agreements shall mean the Halkey-Roberts Inflator device created by Stratus Systems, as described in more detail in Exhibit A to the Halkey-Roberts Product Transfer Agreement attached hereto.

      Section 1.c. of the Settlement Agreement defines the term "Universal Inflator" as follows:
      "Universal Inflator" shall mean the Universal Inflator (FLU-8/9). This will consist jointly of two versions of this inflator, one designed for "Civilian application" (hereinafter referred to as the "Civilian Inflator") and the other designed for "Military application" (hereinafter referred to as the "Military Inflator"). The term "Universal Inflator," "Civilian Inflator" and "Military Inflator" shall also include all presently existing versions of those products and all future versions of those products, including the proprietary processes, proprietary technical and other information, and intellectual property rights relating thereto, whether or not patentable under the patent laws of the United States or any foreign country.

      Section 3.c. of the Settlement Agreement provides:
      In the event Eckstein has a reasonable basis to believe the Total Gross Revenue Receipts reported on the federal tax returns of Stratus Systems are inaccurate, Eckstein has the right to audit the Stratus Systems' records with an independent CPA from a Big 4 or 6 accounting firm approved by all parties. If a discrepancy of more than four (4%) is found, the fees, costs and expenses of the independent accountant and any reasonably hourly cost incurred by Stratus Systems shall be borne by Stratus Systems. If a discrepancy of less than four (4%) underpayment is found, the fees, costs and expenses by the independent accountant shall be borne by Eckstein.

      Section 2 of the License Agreement states:
      Items Stratus Systems Will Provide. Stratus Systems and Steven Becnel ("Becnel") will transfer and deliver to Eckstein for his full use during this license , the following items related to the Universal Inflator, which will be delivered to Eckstein within thirty (30) days after the execution of the this license: (emphasis added).
      (i) A Level II Data/Print package (as defined in the DOD Standard-100 Rev. C) for the Universal Inflator that is complete, correct and corresponds to the working samples of Universal Inflator to be provided, and is consistent with the standard documentation provided by Stratus to others;
      (ii) A Bill of Materials for the Universal Inflator that is complete, correct and corresponds to the working samples of the Universal Inflator to be provided, and is consistent with the standard documentation provided by Stratus Systems to others;
      (iii) All information requested by Licensee that is reasonably necessary to complete any patent application and to protect and maintain the intellectual property rights of the Civilian Inflator;
      (iv) All technical drawings for the Universal Inflator that are complete, correct and correspond to the working samples of the Universal Inflator to be provided, and are consistent with the standard documentation provided by Status Systems to others; and
      (v) Ten (10) sample units of the Civilian Inflator and ten (10) sample units of the Military Inflator, all working and functioning as represented in the Stratus Systems brochure.

      La. C.C. art. 2439 provides that a "[s]ale is a contract whereby a person transfers ownership of a thing to another for a price in money. The thing, the price, and the consent of the parties are requirements for the perfection of a sale."

      Section 8 of the Settlement Agreement states:
      The Stratus Systems Parties transfer to Eckstein, and/or his designee, an exclusive fully-paid license to own and use all rights for the manufacture, development, use, protection and sale of the Universal Inflator, pursuant to the License Agreement, attached as Exhibit E, which is incorporated herein as if repeated in its entirety, provided that such exclusive rights shall be limited to non-military applications and Stratus Systems shall retain exclusive rights to all military applications. Stratus will represent and warrant that the Universal Inflator will be submitted to Eagle Picher for environmental qualification testing on or before June 30, 2006.

      Section 5 of the License Agreement states in part:
      5(a) The Universal Inflator will be submitted to Eagle Pitcher for environmental qualification testing on or before June 30, 2006. Licensor will make its best efforts to ensure that the Military Inflator will successfully complete the Qualification Test Plan agreed upon between Stratus Systems and the United States Military, and consents to Licensee using the same Qualification Test Plan for the Civilian Inflator, at Licensee's sole cost....
      5(b) Licensor will complete the Universal Inflator, including both the Civilian Inflator and the Military Inflator, to the point they are working and functioning as represented in the Stratus Systems brochure. Licensor, however, makes no representation or warranty that the Military or Civilian Inflator will pass qualification testing.

      Stratus admitted that the Navy verbally qualified the Universal Inflator for sale in late 2010 and offered invoices into evidence to show it made seven sales in 2011, starting on January 31, 2011.

      The Motion to Enforce requested that Stratus submit to an audit for the years 2010, 2011, 2012, 2013, 2014, and 2015.

      La. C.C. art. 3071 defines a compromise as follows: "A compromise is a contract whereby the parties, through concessions made by one or more of them, settle a dispute or an uncertainty concerning an obligation or other legal relationship."

      La. C.C. art. 3072 provides: "A compromise shall be made in writing or recited in open court, in which case the recitation shall be susceptible of being transcribed from the record of the proceedings."

      Mr. Eckstein also argues that the district court erred in ordering him to pay half of the initial audit costs. He claims the four percent TGRRs' discrepancies established by Stratus' internal audit require Stratus to bear the audit costs. However, Mr. Eckstein did not file an answer to the appeal nor did he appeal the judgment. Therefore, this alleged error is not properly before this Court. See Kirby v. Poydras Center LLC. , 2015-0027, p. 13 (La. App. 4 Cir. 9/23/15), 176 So.3d 601, 608.

      La. C.C.P. art. 1421 provides, in part, that "parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things..."

      Section 31 of the Settlement Agreement provides, in part, that "[n]otwithstanding anything that might be interpreted to the contrary in this Agreement or its attachments, Becnel shall not be personally liable to the Eckstein Parties for any payment obligations or any other obligations[.]"

      Section 25 of the Settlement Agreement provides:
      25. Attorneys' Fees.
      If any party institutes legal action to enforce or interpret the terms and conditions of this Agreement, the prevailing party shall be awarded reasonable attorneys' fees at all trial and appellate levels, and the expenses and costs incurred by such prevailing party in connection therewith.

      Conversely, Mr. Eckstein also asks this Court to award attorney's fees, costs, and expenses pursuant to Section 25 of the Settlement Agreement because he successfully prevailed before the district court. However, as noted in footnote 12, this issue shall not be considered by this Court because Mr. Eckstein failed to appeal or file an answer to the appeal.