author: CHATELAIN, Judge Pro Tempore.

text:
    Barbara Ann Moss McManus, McCANN v. Judson Hugh McCANN, II.
    No. 09-1341.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Kenneth Michael Wright, Attorney at Law, Lake Charles, LA, for Defendant/Appellant, Judson Hugh McCann, II.
    Brad Guillory Loftin, Cain & LeBlane, Lake Charles, LA, for Defendant/Appellant, Judson Hugh McCann, II.
    Walter M. Sanchez, The Sanchez Law Firm, L.L.C., Lake Charles, LA, for Plaintiff/Appellee, Barbara Ann Moss McManus McCann.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.
   CHATELAIN, Judge Pro Tempore.

| ¶Judson Hugh McCann, II, the estranged husband of Barbara Ann Moss McManus McCann, appeals the trial court’s August 6, 2009 issuance of a Louisiana Uniform Abuse Prevention Order (sometimes hereinafter referred to as “Domestic Abuse Order”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Judson and Barbara were married on July 28, 2001. The couple began living separate and apart in early June 2009. On June 29, 2009, Barbara filed a Petition for Divorce and Determination of Incidental Matters. She claimed therein that she was in immediate danger of harassment, and she requested the issuance of an ex parte temporary restraining order (TRO) prohibiting Judson from threatening or harassing her. The trial judge signed the requested TRO on July 2, 2009. Several weeks later, Barbara filed a Petition for Domestic Abuse Protection (PDAP), pursuant to La. R.S. 46:2131-43. Barbara filed the PDAP on behalf of herself and her two minor granddaughters who live next door to her. Barbara noted in the PDAP that Judson had shoved her; threatened her with bodily harm; and struck her with keys, cutting her hand and arm. She further detailed the abuse that Judson had inflicted upon her as follows:

On July 4, 2009, McCann came to Petitioner’s home, sweating from jogging and complaining of chest pains. She drove him to his home in the co-owned Mercedes which is in her possession. Once at his home, McCann quit pretending to be ill and made a grab for the car keys in her possession. McCann struck her on the hand and arm with the keys, cutting both. The Lake Charles Police Department was 12called and a complaint was filed, Case No. 09-006430, and a request for Formal Prosecution has been made for Domestic Abuse Battery.
Subsequently, on July 13, 2009, 3 of the tires on the Mercedes were slashed with a knife in her driveway.
On July 14, 2009, tires were cut on the cars of Brent McManus, Petitioner’s son and father of the minors McKenzie & Madison referenced herein. Later that day, lawn furniture and items of movable property belonging to Brent were thrown in the lake at his residence under construction at 238 Shell Beach Drive. Video surveillance from a neighbors home confirmed McCann as the vandal. He has been rearrested, upon information and belief, on felony Criminal Damage to Property Charges. Petitioner is afraid for the minor grandchildren who are at both addresses [noted in the petition].

The PDAP included a notarized Affidavit/Verification signed by Barbara stating that the allegations contained therein were trae and that she believed Judson posed a threat to the safety of her and her granddaughters. The trial court signed an order on July 21, 2009, granting the relief prayed for in the PDAP which, among other things, prohibited Judson from going within one hundred yards of Barbara’s residence. Judson was ordered to show cause on August 5, 2009, why the TRO and other requested relief should not be made protective orders.

At the August 5, 2009 hearing, the trial court heard testimony from Barbara and her daughter-in-law, Kim McManus. Barbara’s testimony about the key incident basically conformed to her description of the incident in the PDAP. She further expounded upon the incident, explaining that Judson had gotten angry when she refused his offer to come inside once they arrived at his house. Thereafter, he grabbed the keys out of the vehicle and tried to take them off the key ring. In addition to her car key, the key ring also held keys to her home, which had recently been rekeyed. When she demanded that he return her keys, |3Judson slung his arm at her, cutting her arm and two of her fingers with the keys and causing them to bleed. Barbara identified a photograph labeled as Exhibit P-1 which showed her right arm with a deep scratch and bruise. Barbara stated that after Judson struck her, she walked across the street and called 9-1-1. A unit from the Lake Charles Police Department responded to her call and retrieved the keys for her, and she was able to return home in the vehicle.

Barbara testified about an event that happened just two days prior to the August 5, 2009 hearing. She explained that as she was taking out the trash, Judson drove in front of her house, yelling at her and honking his horn. He then drove down the street, turned around, and drove back to her driveway, where he stopped and told her, “You must really be happy with all the lying you’re doing.” Barbara explained that Judson was about ten feet away from her during the incident.

When Barbara attempted to testify regarding two incidents that were captured by her neighbor’s video surveillance cameras, counsel for Judson objected on the basis that the recordings themselves were the best evidence of their contents. After Barbara explained that both of the original video recordings had been turned over to law enforcement, the trial court overruled Judson’s objection and allowed Barbara to testify as to what she saw in the recordings. The first video was taken on July 14, 2009, and involved the vandalism of property at I,!Barbara’s son’s residence. Barbara stated that she recognized Judson in the video. This incident was mentioned in the PDAP. The second video was taken on August 4, 2009, just one day before the scheduled domestic abuse hearing. The video showed someone starting a fire in a dumpster located between her and her son’s property. Barbara testified that she recognized Judson’s truck in the video.

When Ms. McManus was questioned about the two video recordings, counsel for Judson again objected, but the trial court overruled the objection and allowed the testimony. Ms. McManus testified that she had viewed the two recordings; her testimony regarding both essentially mirrored Barbara’s testimony.

Both Barbara and Ms. McManus offered testimony that their vehicles’ tires had been slashed while parked on their respective properties; however, both admitted that they had not witnessed the acts of vandalism. Barbara told the trial court that the reason she wanted the abuse order to cover her granddaughters was because they resided in such close proximity to her residence and because they were scared of Judson. Ms. McManus confirmed that her two daughters were afraid of Judson.

Judson refused to testify at the hearing, instead choosing to assert his Fifth Amendment right against self-incrimination on the ground that criminal charges were pending against him. Thereafter, Barbara’s attorney requested that the trial court apply an adverse inference against Judson. The trial court acknowledged that Barbara was entitled to the benefit of an adverse inference as a result of Judson’s refusal to testify.

At the close of the evidence and testimony, the trial court orally ruled that it was granting the relief Barbara sought. The following day, on August 6, 2009, the | strial court signed a Domestic Abuse Order granting a protective order in favor of Barbara and her two granddaughters ordering Judson not to: 1) abuse, harass, stalk, follow or threaten the protected persons in any manner; 2) contact the protected persons personally, electronically, by phone, in writing, or through a third party, without the express written permission of the court; 3) go within 100 yards of Barbara’s residence at 240 Shell Beach Drive or her granddaughters’ residence at 238 Shell Beach Drive; or 4) damage any of the belongings of the protected persons or interfere with their living conditions. The order further granted Barbara use of the Shell Beach residence and use and possession of the 2003 Mercedes that she and Judson co-owned. Judson was ordered to pay all court costs associated with the hearing as well as Barbara’s attorney fees in the amount of $750.

Judson now appeals, asserting that the trial court erred in: 1) finding sufficient evidence of domestic abuse as defined in La. R.S. 46:2132 and 2) in allowing the introduction of evidence of damage to property and in allowing testimony of the contents of video recordings when there was no evidence of any of the exceptions found in La.Code Evid. art. 1004. While not specifically | (¡assigned as error, Judson also challenges the authority of the trial court to extend coverage of the protective order to include Barbara’s grandchildren.

DISCUSSION

In Rouyea v. Rouyea, 00-2613, p. 3 (La.App. 1 Cir. 3/28/01), 808 So.2d 558, 560, our brethren of the first circuit stated:

Under the Domestic Abuse Assistance Statute, La. R.S. 46:2131, et seq., upon good cause shown in an ex parte proceeding, the court may issue a TRO to protect a person who shows immediate and present danger of abuse. La. R.S. 46:2135(A). If the TRO is granted without notice, the matter shall be set for a hearing within twenty days, at which time, cause must be shown why a protective order should not be issued. At the hearing, the petitioner must prove the allegations of abuse by a preponderance of the evidence. La. R.S. 46:2135(B).

The standard of review that we must apply was set out in Ruiz v. Ruiz, 05-175, p. 4 (La.App. 5 Cir. 7/26/05), 910 So.2d 443, 445, (citation omitted) as follows:

In cases decided pursuant to the Domestic Abuse Assistance Statute, a trial court’s order is reversible only upon a showing of an abuse of discretion. Further, the trial court sitting as the trier of fact is in the best position to evaluate the demeanor of the witnesses and its credibility determinations will not be disturbed by this Court absent manifest error.

Did Barbara prove her allegations of domestic abuse by a preponderance of the evidence?

In enacting the Domestic Abuse Assistance Statute, the legislature noted that its intent was “to provide a civil remedy for domestic violence which will afford the victim immediate and easily accessible protection.” La. R.S. 46:2131. |7According to the statute, “ ‘Domestic abuse’ includes but is not limited to physical or sexual abuse and any offense against the person as defined in the Criminal Code of Louisiana, except negligent injury and defamation, committed by one family or household member against another.” La. R.S. 46:2132(3). “Battery” is defined, in part, as “the intentional use of force or violence upon the person of another.” La. R.S. 14:33. Battery is listed under Part II of the Criminal Code of Louisiana under the title of “Offenses Against the Person.” Thus, battery fits the definition of “Domestic abuse” given in the Domestic Abuse Assistance Statute.

In finding that Barbara had met her burden of proof under the domestic abuse statute, the trial court stated that while it “should consider” the evidence that Barbara presented concerning the slashing of vehicle tires and the damaging of items on her son’s property, it was focusing on the testimony concerning the physical altercation over the ear keys and the photograph submitted as Exhibit P-1 which depicted the injury inflicted upon Barbara’s right arm during that struggle. The trial court concluded that the evidence presented regarding the key incident was sufficient to prove domestic abuse whereby Barbara was entitled to protection under the statute. In doing so, it agreed with Barbara’s argument that she was not required to show a pattern of violence or abuse in order to receive the relief prayed for in her PDAP.

We agree that Judson’s act of striking Barbara on the arm with her keys amounted to domestic abuse. Considering the verified allegations in Barbara’s PDAP, along with her testimony concerning the key incident and the photograph documenting the injuries that she received in that incident, bolstered by the | ^adverse inference that arose when Judson chose to assert his Fifth Amendment right against self-incrimination rather than testify regarding Barbara’s allegations against him, we cannot say that the trial court abused its discretion in concluding that Barbara proved her allegations of domestic abuse by a preponderance of the evidence. Accordingly, the trial court properly issued the Domestic Abuse Order. Judson’s first assignment of error lacks merit.

Did the trial court err in allowing the introduction of evidence of damage to property and in allowing testimony concerning the contents of video recordings?

At the domestic abuse hearing, Judson objected to the trial court’s allow-anee of testimony concerning the video recordings on the basis that the recordings themselves were the best evidence of their contents. On appeal, however, Judson now complains that the trial court erred in allowing testimony of the contents of the recordings when there was no evidence that any of the exceptions found in La. Code Evid. art. 1004 were applicable.

At trial, a party must make a timely objection to evidence that the party considers inadmissible and must state the specific ground for the objection. La. C.E. art. 103 A(l); La. C.C.P. art. 1635. The reasons for the objection must be sufficiently brought to the attention of the trial court to allow it the opportunity to make the proper ruling and prevent or cure any error. See Jeansonne v. Bosworth, 601 So.2d 739, 744 (La.App. 1st Cir.1992), writ not considered, 614 So.2d 75 (La.1993). An appellate court will therefore not consider a ground for objection different from the grounds raised at trial. Tutorship of Price v. Standard Life Ins. Co., 569 So.2d 261, 264 (La.App. 2d Cir.1990), writs denied, 572 So.2d 91, 92 (La.1991).

| ¡State Farm Mut. Auto. Ins. Co. v. Ford Motor Co., 04-1311, p. 9 (La.App. 1 Cir. 6/15/05), 925 So.2d 1, 6-7. Because Judson did not draw the trial court’s attention to La.Code Evid. art. 1004 as the ground for his objection to the introduction of testimony concerning the video recordings, he is precluded from urging that ground on appeal.

Nevertheless, as we mentioned previously, the trial court specifically noted that it did not focus on the evidence regarding damage to property in determining that Barbara had met her burden of proof. We, too, conclude that Barbara proved her entitlement to a Domestic Abuse Order against Judson without regard to the testimony that she and her daughter-in-law offered concerning what they saw on the video recordings. Accordingly, any error which the trial court may have committed in allowing testimony concerning the contents of the video recordings would be harmless, not prejudicial, and thus not reversible error. See Duzon v. Stallworth) 01-1187 (La.App. 1 Cir. 12/11/02), 866 So.2d 837, writs denied, 03-589, 03-605 (La.5/2/03), 842 So.2d 1101, 842 So.2d 1110; La.Code Civ.P. art. 1635. Judson’s second assignment of error is meritless.

Did the trial court err in granting a protective order in favor of Barbara’s grandchildren?

Judson complains that the trial court lacked authority to issue a protective order in favor of Barbara’s grandchildren, his step-grandchildren. He bases his argument on the fact that the Domestic Abuse Statute does not specifically list “grandchildren” in the definition of “Family members.” Barbara counters that the statutory scheme is broad enough to include any minor child needing protection from an abusive family member. Neither Judson nor Barbara cites any | ¶ (jurisprudence in support of their position. Likewise, we have not found any jurisprudence to offer any guidance regarding this issue.

The Domestic Abuse Assistance Statute provides that “ ‘[fjamily members’ means spouses, former spouses, parents and children, .stepparents, stepchildren, foster parents, and foster children.” La. R.S. 46:2132(4). On the other hand, the statute provides that “[t]he court may grant any protective order ... to bring about a cessation of abuse of ... any minor children.” La. R.S. 46:2136(A). In addition, the statute directs that “[t]he courts of this state shall use a uniform form for the issuance of any protective or restraining order, which form shall be developed, approved, and distributed by the Judicial Administrator’s Office, [and] shall be titled the ‘Uniform Abuse Prevention Order.’ ” La. R.S. 46:2136.2(0). The administrative construction given the provision by the administrative agency charged with enforcing it constitutes persuasive interpretive authority. Roberts v. City of Baton Rouge, 236 La. 521, 108 So.2d 111 (1958). The “Louisiana Uniform Abuse Prevention Order” that Barbara filed appears at pages twenty-four through twenty-eight of the record. The portion of the form describing the persons seeking protection in the order lists the categories of “Family members” mentioned in La. R.S. 46:2132, as well as a category entitled “grandparent or grandchild.” Thereafter, there is a category entitled “Other” with a blank provided for writing in an additional category of person(s) seeking protection and their relationship to the defendant. In the PDAP, Barbara listed her granddaughters’ relationship to Judson as that of “Other: Step-Grandchildren.”

Even if we ignore the testimony concerning the video recordings, other testimony provided at the domestic abuse hearing indicates that Judson continued Into come within one hundred yards of Barbara’s residence even after the TRO was issued on July 21, 2009. Given the intent and purpose of the Domestic Abuse Assistance Statute, the layout of the Louisiana Uniform Abuse Prevention Order form, and the fact that Barbara’s granddaughters live next door to her residence, we cannot say that the trial court abused its discretion in granting a protective order that included them in its scope of protection.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed in all respects. All costs of this appeal are assessed to Judson Hugh McCann, II.

AFFIRMED.

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

      . Relying upon La. R.S. 46:2136.1, Barbara asserted in her appellate brief that if this court affirms the trial court’s ruling, she is legally entitled to collect all attorney fees and costs associated with defending this appeal. However, at oral argument Barbara withdrew this request, and, thus, the issue of whether she would be entitled to additional attorney fees and costs, if successful, is no longer before us.

      . Barbara stated that she had also taken a photograph of the injuries to her fingers but that die photograph did not come out.

      . In a supplemental brief filed in this court, Barbara explained that although the original videos were not available at the trial, on the morning of trial, her daughter-in-law provided counsel with a portable USB drive that contained copies of the two videos. Counsel for Barbara and Judson attempted to view the files, but technical problems hampered their attempts. Ultimately, only one of the files was opened and viewed in the secretarial area. As far as we can tell, this copy of the video was not introduced by either party nor was it viewed by the trial court.

      . Louisiana Code of Evidence Article 1004, which is entitled "Admissibility of other evidence of contents,” provides as follows:
      The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:
      (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
      (2) Original not obtainable. No original can be obtained by any available judicial process or procedure;

        (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing;
      (4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issue; or
      (5)Impracticality of producing original. The original, because of its location, permanent fixture, or otherwise, cannot as a practical matter be produced in court; or the cost or other consideration to be incurred in securing the original is prohibitive and it appears that a copy will serve the evidentia-ry purpose.

      . "[I]n a civil case, a negative inference may be drawn against a party to the action who asserts his Fifth Amendment privileges.” Econ. Auto Salvage, Inc. v. Allstate Ins. Co., 499 So.2d 963, 977 (La.App. 3 Cir. 1986), writ denied, 501 So.2d 199 (La.1986). In Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976), the Supreme Court stated that in a civil proceeding "the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them: the Amendment ‘does not preclude the inference where the privilege is claimed by a party to a Civil cause.’ 8 J. Wigmore, Evidence 439 (McNaughton rev. 1961).” In the present case, Judson has not challenged the trial court's application of an adverse inference against him.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    In re M.J.C. Applying for Private Adoption.
    No. 09-1355.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    Shepton Frank Hunter, Lafayette, LA, for DefendanVAppellant: R.J.T.
    Anthony J. Fontana, Jr., Abbeville, LA, for Plaintiffs/Appellees: M.J.C. and L.A.C.
    Court composed of JAMES T. GENOVESE, SHANNON J. GREMILLION, and DAVID E. CHATELAIN, Judges.

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

   GENOVESE, Judge.

11 In this adoption case, the Defendant/Appellant, R.J.T., the biological father of W.J.T., appeals the judgment of the trial court in favor of Plaintiffs/Appel-lees, M.J.C. and L.A.C., approving the adoption of W.J.T. For the following reasons, we affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

W.J.T. was born May 17, 2000, while L.A.C. and R.J.T. were married. L.A.C. and R.J.T. separated when W.J.T. was only four months old. L.A.C. subsequently remarried in March of 2008 to M.J.C. On March 30, 2009, M.J.C. filed a Petition for Adoption seeking to adopt W.J.T. In his petition, M.J.C. alleged that W.J.T.’s biological father, R.J.T., “ha[d] not visited nor had [he had] any communication whatsoever with [W.J.T.] since December of 2000[.]” R.J.T. filed an objection to the adoption. A hearing was held on August 6, 2009.

Testimony elicited at the adoption hearing revealed that R.J.T. had no contact with W.J.T. since December of 2000, when W.J.T. was seven months old. R.J.T. admitted this fact; however, R.J.T. testified that his efforts to contact W.J.T. after December of 2000 were thwarted by either his medical problems, his financial problems, or his fear that L.A.C. would seek to have him held in contempt for violating a protective order she had obtained against him. According to R.J.T., some time in 2003, he did attempt, through third parties, to give $2,400.00 in child support to L.A.C.

L.A.C. testified that she never received an offer of child support from R.J.T., nor had she ever received any monetary support from R.J.T. after their separation in |2September of 2000. According to L.A.C., except for R.J.T.’s efforts to send her flowers and a card shortly after their separation, she never heard further from R.J.T.

According to R.J.T., he no longer has the medical problems which he claims prevented him from seeking visitation with W.J.T. R.J.T. also testified that he would want to reconnect with W.J.T. and that he was willing to take the necessary steps to be a father to W.J.T. Finally, R.J.T. testified that his remarriage in April of 2005 and his relationship with his step-children demonstrated his ability to be a fit parent of W.J.T.

The trial court granted MJ.C.’s petition for adoption and declared that “because of the lack of communication, lack of support, [R.J.T.’s] consent [to the adoption of W.J.T. by M.J.C.] is not necessary.” A judgment was signed October 1, 2009, declaring “that the consent of the biological father was not necessary” and that “a final decree of adoption be entered.... ” R.J.T. appeals.

ASSIGNMENTS OF ERROR

On appeal, R.J.T. asserts that “[t]he trial court failed to apply a presumption in favor of the natural parent, the biological father[,]” and that “the trial court misapplied the burden of proof.”

LAW AND DISCUSSION

In In re W.E.B., 07-1395, pp. 3-4 (La.App. 3 Cir. 3/5/08), 980 So.2d 123, 126, this court set forth the applicable appellate standard of review in adoption cases as follows:

It is settled law that the denial or grant of a petition for adoption poses a question of fact. Leger v. Coccaro, 98-202 (La.App. 3 Cir. 4/29/98), 714 So.2d 770, writ denied, 724 So.2d 740 (La.7/2/98). Therefore, “[a]n appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong.” 3Blackman v. Brookshire Grocery Co., 07-348, p. 2 (La.App. 3 Cir. 10/3/07), 966 So.2d 1185, 1187 (citing Rosell v. ESCO, 549 So.2d 840 (La.1989)).

R.J.T., in brief, contends that the issues before this court are: (1) “[d]oes the biological father benefit from a presumption[;]” and (2) “[d]oes the burden shift to the adopting step-parent[.]” R.J.T. argues that “there is a presumption that the natural father ... would be a benefit as a non-domiciliary parent of the minor child. There was no evidence to rebut that presumption.” R.J.T. contends that the trial court failed to consider whether it was in the best interest of W.J.T. to approve the adoption.

Louisiana Children’s Code Article 1245 provides, in pertinent part:

A. The consent of the parent as required by Article 1193[] may be dispensed with upon proof by clear and convincing evidence of the required elements of either Paragraph B, or C of this Article.
B. When a petitioner authorized by Article 1243 [] has been granted custody of the child by a court of competent jurisdiction and any |4one of the following conditions exists:
(1) The parent has refused or failed to comply with a court order of support without just cause for a period of at least six months.
(2) The parent has refused or failed to visit, communicate, or attempt to communicate with the child without just cause for a period of at least six months.

On appeal, R.J.T. blames his failure to maintain contact with W.J.T. on L.A.C.’s efforts to keep them apart. In brief, R.J.T. asserts: “As [W.J.T.] grew older, L.A.C. brainwashed [him] to believe [R.J.T.] would beat him up.... L.A.C. also taught [W.J.T.] to ignore the family of [R.J.T.] when seeing them at public places. This planned alienation was not in the best interest of the child.” Finally, R.J.T. contends that “the evidence was unrefuted that during several years immediately pri- or to trial[, he] was conducting himself as an involved and effective parent in caring for his new wife ... and her children and wanted to and could provide the same for [W.J.T.]....”

Our review of the record reveals that R.J.T.’s allegations that L.A.C. prevented him from having a relationship with W.J.T. were neither proven nor substantiated by anyone other than himself. Also noteworthy is R.J.T.’s assertion that his poor health prohibited him from seeking to have a parental bond with W.J.T. before now; yet, R.J.T. was obviously well enough to date and eventually remarry in 2005. We, as did the trial court, find R.J.T.’s assertions disingenuous and unpersuasive.

We also find no merit in RJ.T.’s contentions that the trial court erred in its failure to apply a presumption in his favor and misapplied the burden of proof. R.J.T. failed to visit, communicate, or attempt to communicate with W.J.T. without just cause for a period of at least six months; thus, any presumption in his favor was negated by his actions, or lack thereof.

|fiWe find that the trial court correctly concluded that the evidence was clear and convincing that R.J.T. “failed to visit, communicate, or attempt to communicate with [W.J.T.] without just cause for a period of at least six months[;]” therefore, pursuant to the provisions found in La.Ch.Code art. 1245, the trial court was legally correct in “dispens[ing] with” R.J.T.’s consent to the adoption. The trial court’s judgment was neither manifestly erroneous nor clearly wrong; therefore, we affirm.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court. All costs of these proceedings are assessed against Defendant/Appellant, R.J.T.

AFFIRMED.

      . Pursuant to Uniform Rules — Courts of Appeal, Rules 5-1 and 5-2, the initials of the parties will be used to protect and maintain the privacy of the minor involved in these proceedings.

      . Louisiana Children’s Code Article 1193 provides, in pertinent part:
      Unless rights have been terminated ... consent to the adoption of a child ... shall be required of the following:
      (2) The father of the child, regardless of the child's actual paternity, if any of the following apply:
      (a) The child is a child born of the marriage in accordance with the Louisiana Civil Code or its legal equivalent in another state.

      . Louisiana Children's Code Article 1243 provides, in pertinent part:
      A. A stepparent, stepgrandparent, great-grandparent, grandparent, aunt, great aunt, uncle, great uncle, sibling, or first, second, or third cousin may petition to adopt a child if all of the following elements are met:
      (1) The petitioner is related to the child by blood, adoption, or affinity through a parent recognized as having parental rights.
      (2) The petitioner is a single person over the age of eighteen or a married person whose spouse is a joint petitioner.
      (3) The petitioner has had legal or physical custody of the child for at least six months prior to filing the petition for adoption.


author: PETERS, J.

text:
    Sandra WILLIAMS v. ACE TRANSPORTATION, INC.
    No. 09-1071.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Randal L. Menard, Attorney at Law, Lafayette, LA, for Plaintiff/Appellee, Sandra Williams.
    Mark A. Watson, Stafford, Stewart & Potter, Alexandria, LA, for Defendants/Appellants, Ace Transportation, Inc. and Liberty Mutual Insurance Company.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   PETERS, J.

hAce Transportation, Inc., and its workers’ compensation insurer, Liberty Mutual Insurance Company, appeal the judgment of the workers’ compensation judge (WCJ) awarding Sandra Williams workers’ compensation benefits for damages she sustained in a February 16, 2005 Lafayette Parish automobile accident. For the following reasons, we affirm the WCJ’s judgment in all respects.

DISCUSSION OF THE RECORD

Ace Transportation, Inc. (Ace Transportation) and Liberty Mutual Insurance Company (Liberty Mutual) do not dispute the occurrence of the February 16, 2005 accident, the fact that Ms. Williams was employed by Ace Transportation on that day, or that she was driving an Ace Transportation leased truck at the time of her accident. The factual dispute which forms the basis of this appeal involves whether Ms. Williams was in the course and scope of her employment at the time of the accident.

Ace Transportation employed Ms. Williams as a hotshot driver, and she had provided escort service for an eighteen wheeler from the Port of Iberia to Race-land, Louisiana on the morning of February 16, 2005. After completing that run, she returned to Ace Transportation’s terminal in Broussard, Lafayette Parish, Louisiana, dropped off the paperwork for the run, and informed the terminal dispatcher that she had been contacted by the Halliburton Energy Services (Halliburton) office in Lafayette to make an afternoon run to Houma to pick up equipment and deliver it back to Halliburton’s Lafayette facility; that she was going home to change clothes; then she would stop at a fast-food restaurant for lunch; and she would the continue to Houma for the pick up and delivery. She testified that the dispatcher told her to telephone the terminal when she approached her home in case a delivery to Houma ^materialized. In that event, she could make a delivery while on the way to Houma and, thereby, generate more income. According to Ms. Williams, the dispatcher told her he would keep her name on the terminal board which would indicate that she was still out on a run.

Almost immediately after Ms. Williams left the terminal, the dispatcher telephoned her with a question about the earlier run. While stopped at a red light and attempting to recover the paperwork from behind her seat so she could respond to the telephone inquiry, Ms. Williams’ vehicle was struck from behind by another vehicle. The accident caused significant injuries to Ms. Williams’ back and neck.

Ms. Williams’ disputed claim for benefits resulted in a judgment against Ace Transportation and Liberty Mutual awarding her workers’ compensation benefits. In rendering judgment, the WCJ factually found that Ms. Williams was within the course and scope of her employment at the time of her accident. Ace Transportation and Liberty Mutual perfected this appeal, asserting two assignments of error:

1. The workers’ compensation judge erred in finding that the employee, Sandra Williams was in the course and scope of her employment at the tune that she was involved in a third party motor vehicle accident.
2. The workers’ compensation judge erred in finding that the employee, at the time of the third party motor vehicle accident, had not deviated from her employment.

OPINION

It is well settled that the standard of review applied in workers’ compensation cases is the “manifest error — clearly wrong” standard. Dean v. Southmark Constr., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117.

Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Alexander [v. Pellerin Marble & Granite, 93-1698 (La.1/14/94) ], 630 So.2d [706,] 710. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable | ^inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Robinson v. North American Salt Co., 02-1869 (La.App. 1 Cir.2003), 865 So.2d 98, 105. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Robinson, 865 So.2d at 105. The determination of whether injury occurred in the course and scope of employment is a mixed question of law and fact. Winkler v. Wadleigh Offshore, Inc., 01-1833 (La.App. 4 Cir. 4/24/02), 817 So.2d 313, 316 (citing Wright v. Skate Country, Inc., 98-0217 (La.App. 4 Cir. 5/12/99), 734 So.2d 874).

Id.

In Bruno v. Harbert International, Inc., 593 So.2d 357 (La.1992), the Louisiana Supreme Court stated that an employee’s testimony, on its own, might be sufficient to satisfy the employee’s burden of proof. That is, “provided two elements are satisfied: (1) no other evidence discredits or casts doubts upon the worker’s version of the incident; and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident.” Id. at 361 (citing West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979), and Wex S. Malone & H. Alston Johnson, III, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 253 (2d ed.1980)). Although the court in Bruno was specifically discussing an employee’s burden of proof on the occurrence of an accident, the same holds true with regard to any burden of the employee.

An employee who suffers an injury, from an accident “arising out of’ and “in the course of’ his employment, is entitled to coverage under the employer’s workers’ compensation insurance. La. R.S. 23:1031(A). The “arising out of’ and “in the course of’ have been held to be “dual requirements” of proof, with the former requiring an “inquiry into the character or origin of the risk while the latter brings into focus the time and place relationship between the risk and the employment.” Raybol v. La. State. Univ., 520 So.2d 724, 726 (La.1988). Thus, Ms. Williams’ proof is two-jfold:4 (1) whether she was performing her duties as a hotshot driver and (2) whether the accident occurred while she was doing so.

In their first assignment of error, Ace Transportation and Liberty Mutual question whether Halliburton had contacted Ms. Williams to perform a run to Hou-ma. That is to say, there was no evidence of a proposed run on behalf of Halliburton. Their entire argument rests on the testimony of Allen Landry, III, the Halliburton employee responsible for coordinating shipment of Halliburton equipment to oilfield companies through the use of “hotshot” companies for quick delivery.

Mr. Landry testified that the choice of hotshot company to be utilized was left to the purchasing oilfield company — in this case, Halliburton’s customer — but that if the company had no preference, Halliburton would make the choice. If that became the case, then Halliburton would normally call on Ace Transportation to provide the service. While suggesting that retaining Ace Transportation normally meant lining up a truck and not a specific driver, Mr. Landry qualified that suggestion by acknowledging that the company would use a specific driver — one that had proved to be reliable — if that driver was available. In fact, he had access to hotshot driver business cards left with him and would call those individual drivers for availability before contacting the Ace Transportation dispatcher to line up a truck. He acknowledged that Ms. Williams was not only a dependable driver, but one of the favored drivers.

When questioned with regard to February 16, 2005, specifically, Mr. Landry had no independent recollection of asking Ms. Williams to perform services for Halliburton on that date. Additionally, he could produce no Halliburton documentation to establish that the run suggested by Ms. Williams was ever contemplated.

| fiWith regard to a paperwork requirement, Mr. Landry testified that Halliburton normally generated a written material transfer ticket every time it contacted a hotshot company for services. The ticket would contain the hotshot company name, the oilfield client’s name, a description of the equipment being loaded, the signature of the person responsible for loading the equipment, and the signature of the hotshot driver. However, as explained by Mr. Landry, such a ticket would not be generated until the hotshot driver reached Halliburton’s facility, and a call to a driver would not generate any paperwork.

Ace Transportation and Liberty Mutual introduced various invoices and handwritten waybills from runs performed for various customers including Devon Energy Production Company, Patterson Rental Tools, Halliburton, and BP America Production Company on February 16, 2005; February 25, 2005; and March 1, 2, 3, 6, and 8, 2005. In their brief, they point to the March 6 invoice, wherein a driver’s name was scratched out and replaced by another, to support them argument that had Halliburton scheduled a run on February 16, Ace Transportation would have generated a form with Ms. Williams’ name and truck number, which then would have been scratched out and another drivers’ name and vehicle number inserted after the accident.

In finding that Ms. Williams proved that she was en route to Houma on Halliburton’s behalf at the time of the accident, the WCJ stated in his oral reasons:

I find it somewhere between interesting and incredible that when Ace Transportation finally got around to responding to the plaintiffs request for documents for all runs on February 16th, the day of the accident, that that correspondence shows a virtual absence of activity in the oilfield on both that day and the days before and after. And we’re talking here about Ace Transportation one of the largest and busiest operators in South Louisiana.
| (¡But that aside, Mrs. Williams explained carefully and cohei'ently why there might well be no ticket evidencing the second run. She said, and no one contradicted her, that it’s common practice in the oil patch for companies such as Halliburton to call drivers they know and trust to see if they’re available for a run and that the formal paperwork is cranked out later at the terminal. The employer’s defense of “no ticket/no run,” runs counter to both what the credible testimony was and what commonsense and basic knowledge confirms. There is no doubt in my mind that Mrs. Williams did not invent this story about driving to Houma.

After reviewing the record in its entirety, we find that it was reasonable for the WCJ to find that Halliburton had, in fact, contacted Ms. Williams about a run to Houma, despite the fact that no invoice/waybill existed to prove that fact. The WCJ obviously found Ms. Williams to be credible in light of his statements casting doubt on Ace Transportation’s credibility. This was evidenced by the WCJ’s questioning of the fact that Ace Transportation failed to introduce any invoices for the day before and after February 16, 2005. The WCJ found it incredible that one of the largest and busiest hotshot operators in Southwest Louisiana had made no deliveries on those dates. We find no error in these findings despite the fact that the WCJ accredited Ms. Williams with Mr. Landry’s testimony that it was not uncommon for Halliburton to contact a dependable driver ahead of time, but that it would not generate the forms associated with the proposed run until the driver actually reached Halliburton’s facility. Ms. Williams testified that she was on call twenty-four hours/seven days a week. Nothing in the record casts any doubt on her version of events. Even the existence of the March 6, 2005 invoice with the driver’s name scratched out and another put in his/her place casts no doubt on Ms. Williams’ version. If no paperwork is generated until the run actually occurs, then, in all actuality, Halliburton cancelled the February 16, 2005 run after Ms. Williams’ accident.

Based on the foregoing, we find that it was reasonable for the WCJ to determine that Ms. Williams was on a run for Ace Transportation at the time of her Jjaccident. This assignment of error is without merit.

In its second assignment of error, Ace Transportation and Liberty Mutual argue that Ms. Williams’ accident was not work-related because she had deviated from her employment duties at the time of the accident. They base this argument on Ms. Williams’ testimony that at the time of the accident, she was on her way home to change clothes and then pick up something to eat at Wendy’s drive-thru before starting for Houma.

In Proactive Therapy v. Yellow Book, USA, 03-1705, pp. 4-5 (La.App. 3 Cir. 8/4/04), 880 So.2d 119, 122-23, this court discussed deviation from the workplace in the context of a workers’ compensation case:

Deviation occurs when an employee, after having entered the work place, leaves or turns aside to do something personal or not work related. An injury occurring during the time of this deviation is generally not considered work related and, therefore, is not compensa-ble under the workers’ compensation laws. In Timmons v. Silman, 99-3264 (La.5/16/00), 761 So.2d 507, the court ruled that an employee, Ms. Silman, who had gone to the post office to refill a postage meter for her employer was not within the course and scope of her employment when she was involved in an automobile accident. At the time of the accident, Ms. Silman was on her way to a bank, some 18 blocks in the opposite direction past her employers’ business to cash her Christmas bonus check. See also Hoy v. Gilbert, 98-1565 (La.3/2/99), 754 So.2d 207.
Our courts also recognize that once one has deviated from his or her employment, it is possible to re-enter the work place. If an employee is injured after returning to the work place or reentering the work place, our courts will generally consider the injury to be work related and the employee is entitled to the benefits of the workers’ compensation laws. For instance, in Belt v. State Through Louisiana Board of Cosmetology, 493 So.2d 278, 285 (La.App. 3rd Cir.), writ denied, 496 So.2d 1044 (La.1986)[,] this court stated:
It is well established in our law that where there is a temporary deviation from the course of employment to engage in purely personal business, such an employee re-enters his employment and the scope thereof when he has completed his private mission and turned toward the direction of the employment destination for the purpose of discharging his employment duties. Simmons v. Liberty Mutual Insurance Company, 185 So.2d 822 (La.App. 3rd 8Cir.1966); Campbell v. Baker, Culpepper & Brunson, 382 So.2d 1046 (La.App. 2nd Cir.l980)[,] writ refused, 385 So.2d 793 (La.1980).

Ms. Williams testified that she had been employed off and on as a driver by Ace Transportation for six years and, as a hotshot driver, she transported oilfield equipment and personnel at all hours of the day and night. She was driving a vehicle leased to Ace Transportation at the time of her accident, was working no set schedule, and was on call twenty-four hours a day and seven days a week. In fact, at the time of her accident she was talking with the Ace Transportation dispatcher concerning the run she had made that morning. In his oral reasons, the WCJ held that Ms. Williams was within the course and scope of her employment at the time of her accident. He found factually that she was still logged out as being on a job by Ace Transportation and that she was headed to Houma to pickup oilfield equipment in furtherance of Ace Transportation’s business.

Considering the foregoing, it was reasonable for the WCJ to find that Ms. Williams was in the course and scope of her employment when rear-ended. In Proactive Therapy, the court declared that the nature of the employee’s work was a key element in determining whether she was within the course and scope of her employment. We, likewise, find that the nature of Ms. Williams’ work is key in determining whether she was within the course and scope of her employment at the time she was injured. A hotshot driver operates a vehicle in order to make quick deliveries in the oilfield. Ms. Williams said she is constantly on call, and her office is basically her vehicle. In light of these facts, she had not deviated from her employment when she left the terminal. We find no error in the WCJ’s determination that Ms. Williams had not deviated from her employment when the accident occurred.

^DISPOSITION

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge in all respects and assess all costs of this appeal to Ace Transportation, Inc. and Liberty Mutual Insurance Company.

AFFIRMED.

      . The record identifies the terminal dispatcher only as "Lee."

      . The change of clothes was made necessary by a personal problem suffered by Ms. Williams at the time.

      . Ms. Williams is listed as a driver on the February 16 and March 6 invoices.


author: PAINTER, Judge.

text:
    Dalton John MEAUX v. Elizabeth Hensgens MILLER, Charles Nicholas Hensgens, III, Craig Robert Hensgens, Mary Elizabeth Hensgens Wetzel, Catherine Elaine Hensgens, Brian Keith Hensgens, Karl Jude Hensgens, Noble Royalties, Inc., MacLondon Royalty I, LP, MacLondon Energy, LP, Montierra Minerals & Production (f/k/a NGP Royalties, LT), et al.
    Nos. 09-1018.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Samuel E. Masur, Matthew D. Lane, Jr., Lafayette, LA, for Plaintiff-Appellant, Dalton John Meaux.
    Bernard H. Ticer, Beverly K. Baudouin, New Orleans, LA, for Defendants-Appel-lees, Noble Royalties, Inc. and The Noble Grantees.
    F. John Reeks, Jr., Sarah A. Kirkpatrick, Kristin Kay Robbins, Shreveport, LA, for Defendants-Appellees, Eagle Rock Production, L.P., MaeLondon Royalty I, L.P., MaeLondon Energy, L.P., and Mon-tierra Minerals & Production (f/k/a NGP Royalties, L.P.)
    Court composed of JOHN D. SAUNDERS, MARC T. AMY and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| plaintiff, Dalton John Meaux, appeals the trial court’s judgment granting exceptions of prescription filed by Defendants, Noble Royalties, Inc. (Noble), Eagle Rock Production, L.P. (Eagle), MaeLondon Royalty I, L.P. (MaeLondon Royalty), Mac-London Energy, L.P. (MaeLondon Energy), and Montierra Minerals & Production (f/k/a NGP Royalties, L.P.) (Montierra). For the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

The subject of this appeal is a tract of land consisting of approximately 9.39 acres in Section 6, Township 12 South, Range 1 East, Vermilion Parish, Louisiana (the AV-RICO property). The original record owner of the tract was the now defunct Acadia-Vermilion Rice Irrigation Company (AVRICO). In October 1998, a mineral lease on the AVRICO property was executed in favor of Murphy Exploration & Production Company by parties not made parties to the suit. In October 2003, the lease was amended in favor of Noble and MaeLondon Royalty. MaeLondon Royalty sold its interest in the lease to MaeLondon Energy and Montierra. The minerals underlying the tract were incorporated into a drilling and production unit designated MT RU SUE. Production from a well in the unit, but not located on the disputed property, began on February 23, 2006. On June 25, 2007, Meaux filed a Petition for Possessory Action asserting that he and his predecessors had possession of the AV-RICO property since 1912 and that he personally had possession since 1980. Meaux asked that he be recognized as having a right to possession of the AVRI-CO property, that Defendants be ordered to assert their claim of adverse possession in a petitory action, and that he be awarded damages, interest, and costs.

|2Pefendants, Noble, Eagle Rock, Ma-cLondon Royalty, MaeLondon Energy, and Montierra, filed exceptions of prescription asserting that more than one year passed between the date on which Meaux’s alleged possession was disturbed by the mineral production and the date on which the suit was filed. After a hearing, the trial court granted the exceptions. Meaux appeals.

DISCUSSION

Plaintiffs case herein turns on his argument that he owns the property in question as a result of acquisitive prescription arising from thirty years continuous possession. See La.Civ.Code arts. 3446 and 3486. Plaintiff does not argue that the record shows proof as required by La.Civ. Code art. 3476 of “continuous, uninterrupted, peaceable, public, and unequivocal” “corporeal possession or civil possession preceded by corporeal possession, to acquire a thing by prescription.” Id. Rather, Plaintiff argues that for purposes of the exception of prescription, the allegations of his petition must be accepted as true. In his petition, he alleges that he and his ancestors in title have possessed the property for more than thirty years prior to the disturbance.

However, La.Code Civ.P. art. 931 provides, in pertinent part, that except in the case of an exception of no cause of action: “On the trial of the peremptory exception pleaded at or prior to the trial of the case, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition.” Further, “[w]hen evidence has been introduced, the court is not authorized to accept the plaintiffs allegations ‘as true.’ Schoen v. Walling, 31,598 (La.App. 2 Cir. 2/24/99), 728 So.2d 982, 985.” Davis v. Conroy, 09-142, p. 4 (La.App. 5 Cir. 10/13/09), 27 So.3d 869.

| ^Defendants introduced evidence to show that Plaintiff did not have possession of the mineral rights underlying the property for the year prior to suit as required by La.Code Civ.P. art. 3658, which states that:

To maintain the possessory action the possessor must allege and prove that:
(1) He had possession of the immovable property or real right therein at the time the disturbance occurred;
(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
(3) The disturbance was one in fact or in law, as defined in Article 3659; and
(4) The possessory action was instituted within a year of the disturbance.

Plaintiff introduced no evidence either that he and his ancestors in title had possessed the property for thirty years or that the possessory action was filed within a year of the disturbance.

Plaintiff further asserts that the disturbance was one in law rather than in fact. In support of his argument, Plaintiff cites Roy O. Martin Lumber Co., Inc. v. Lemoine, 381 So.2d 915, 919 (La.App. 3 Cir.1980), which states that:

The last requirement of Article 3658 is that the possessory action be brought within one year of the disturbance. When the disturbance is one in law, it amounts to a continuing disturbance. Thus, it is regarded as occurring not only on the date of recordation of the instrument, but each day thereafter as long as it exists.

La.Code Civ.P. art. 3659 defines disturbances in law and in fact as follows:

Disturbances of possession which give rise to the possessory action are of two kinds: disturbance in fact and disturbance in law.
14A disturbance in fact is an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment.
A disturbance in law is the execution, recordation, registry, or continuing existence of record of any instrument which asserts or implies a right of ownership or to the possession of immovable property or of a real right therein, or any claim or pretension of ownership or right to the possession thereof except in an action or proceeding, adversely to the possessor of such property or right.

This court has found that: “A disturbance in fact is any ‘physical act which prevents the possessor from enjoying his immovable property quietly or which becomes an obstacle to that enjoyment.” Le-Prettre v. Progressive Land Corp., 01-1660, p. 7 (La.App. 3 Cir. 6/19/02), 820 So.2d 1240, 1246 (emphasis added). While mineral leases are not a physical act, production is a physical act which prevents the possessor from enjoying his property quietly or is an obstacle to the enjoyment of his property, in this case minerals.

Accordingly, we find no error in the trial court’s grant of the exception of prescription. Defendants showed a disturbance in fact which occurred more than a year before Plaintiff filed suit.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the Plaintiff, Dalton John Meaux.

AFFIRMED.


text:
    Dalton John MEAUX v. Elizabeth Hensgens MILLER, Charles Nicholas Hensgens, III, Craig Robert Hensgens, Mary Elizabeth Hensgens Wetzel, Catherine Elaine Hensgens, Brian Keith Hensgens, Karl Jude Hensgens, Noble Royalties, Inc., MacLondon Royalty I, LP, MacLondon Energy, LP, Montierra Minerals & Production (f/k/a NGP Royalties, Lt), et al.
    Nos. 09-1200.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    Samuel E. Masur, Matthew D. Lane, Jr., Lafayette, LA, for Plaintiff-Appellant, Dalton John Meaux.
    Bernard H. Ticer, Beverly K. Baudouin, New Orleans, LA, for Defendants-Appel-lees, Noble Royalties, Inc. and The Noble Grantees.
    F. John Reeks, Jr., Sarah A. Kirkpatrick, Kristin Kay Robbins, Shreveport, LA, for Defendants-Appellees, Eagle Rock Production, L.P., MacLondon Royalty I, L.P., MacLondon Energy, L.P., and Mon-tierra Minerals & Production (f/k/a NGP Royalties, L.P.)
    Court composed of JOHN D. SAUNDERS, MARC T. AMY and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

For the reasons set forth in the companion case hereto, Meaux v. Miller, 09-1018 (La.App. 3 Cir.4/9/08), 33 So.3d 406, the trial court’s judgment is affirmed. Costs of this appeal are assessed to Appellant.

AFFIRMED.


author: SAUNDERS, Judge.

text:
    Scott THOMPSON v. Kirk FALGOUT, et al.
    No. 09-1026.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.
    Scott Thompson, Winnfield, LA, pro se.
    Kirk Falgout, Bayou Vista, LA, In Proper Person.
    Julie Falgout, Bayou Vista, LA, In Proper Person.
   SAUNDERS, Judge.

11 Herein we address whether the trial court erred in amending its original judgment to reapportion court costs to two-thirds (2/3) to Scott Thompson (Appellant) and one-third (1/3) to Kirk and Julie Falg-out (Appellees). We find that the court so erred and that the amended judgment altered the substance of the original judgment in violation of La.Code Civ.P. art. 1951.

FACTS AND PROCEDURAL HISTORY:

Appellant is the owner of a 1999 Belmont mobile home. Following his 2005 arrest and subsequent incarceration, Appellant contacted Appellees requesting that they assist him in repairing the mobile home so that it could be sold. He claims that he has been friends with Ap-pellees for several years and that he had no adult family members capable of looking after his affairs outside of the correctional facility.

Appellees agreed to assist Appellant in repairing and selling the mobile home. In January of 2007, Appellant furnished Ap-pellees with fifteen hundred dollars ($1,500.00) from his inmate account to have repairs made on the mobile home. After several months of no progress on the matter, Appellant requested that Appellees return the funds. Appellant’s initial request was unsuccessful, and he proceeded to make numerous calls to Appellees during the following weeks in an attempt to gain their compliance. These calls resulted in Appellees complaining to the warden of the correctional facility.

In July of 2007, Appellant filed suit against Appellees seeking repayment of the fifteen hundred dollars ($1,500.00). After a June 6, 2008 trial, judgment was rendered in favor of Appellant for fourteen hundred dollars ($1,400.00). All costs were cast to Appellees. On June 27, 2008, the trial court issued an amended judgment altering the assignment of court costs. The amended judgment assessed two 1 ^thirds (2/3) of the court costs to Appellant and one-third (1/3) to Appellees. It is from this amended judgment that Appellant now appeals.

ASSIGNMENT OF ERROR:

Appellant asserts that the trial court erred in making a substantive amendment to its June 6, 2008 judgment.

LAW AND DISCUSSION ON THE MERITS:

We now address the Appellant’s claim that the trial court erred in amending its judgment to reapportion court costs between Appellant and Appellees.

Louisiana Code of Civil Procedure Article 1951 states that “[a] final judgment may be amended by the trial court at any time, with or without notice, on its own motion or on the motion of any party: (1) To alter the phraseology of the judgment, but not the substance; or (2) To correct errors of calculation.”

Proper amendments under this article are those that neither add something to nor take something away from the original judgment. LeBlanc v. LeBlanc, 600 So.2d 160 (La.App. 3 Cir.1992).

It is alleged by Appellant that the trial court erred in that it made an amendment as to the substance of the judgment, thus violating La.Code Civ.P. art. 1951. We agree.

Louisiana jurisprudence is clear in holding that amendments made to the costs assessed in a final judgment constitute substantive amendments that violate La. Code Civ.P. art. 1951. In Nicaud v. Fonte, 503 So.2d 79 (La.App. 5 Cir.1987), writ denied, 506 So.2d 1227 (La.1987), the court addressed a similar factual situation. A final judgment assessing costs equally between the defendant and intervenor was amended to put the costs in line with the percentage of liability assigned to each party |sby the trial court. On appeal, the court found that “[t]he amendment does alter the substance, in that it raises Fonte’s liability for costs by 45%, thus violating [La.Code Civ.P. art. 1951], Therefore, we vacate the order to amend judgment and reinstate the original judgment dated September 13, 1985.” Id. at 84.

The fourth circuit in Constans v. Choctaw Transport, Inc., 97-863 (La.App. 4 Cir. 12/23/97), 712 So.2d 885, writs denied, 98-0408, 98-0412 (La.3/27/98), 716 So.2d 892, a case addressing similar facts to those in Nicaud, came to the same conclusion. “The reallocation of costs in the second amended judgment is an amendment not intended to correct an error of calculation and not authorized by LSA-C.C.P. art. 2088(10). Therefore, it is void.” Id. at 903.

The matter before us, when examined in light of the facts, circumstances, and holdings from Nicavd and Constans, certainly amounts to a substantive amendment to the original final judgment. By raising Appellant’s costs from zero to two-thirds (2/3) of the total costs, the trial court altered the substance of the original judgment and violated La.Code Civ.P. art. 1951.

We find that on June 27, 2008, the trial court amended the substance of the June 6, 2008 original judgment in violation of La.Code Civ.P. art. 1951. Accordingly, we vacate the amended judgment and reinstate the original judgment from June 6, 2008 assessing all court costs to Appellees.

CONCLUSION:

For the foregoing reasons, we reverse and vacate the amended judgment of the trial court assessing court costs at two-thirds (2/3) to Appellant and one-third (1/3) to Appellees. The original judgment, dated June 6, 2008, is reinstated with all costs assigned to Appellees. Costs of appeal are assessed to Appellees.

14RE VERSED AND ORIGINAL JUDGMENT REINSTATED.


author: PICKETT, Judge.

text:
    Vanna Darlene McMANUS, etc. v. STATE of La., DEPT. OF WILDLIFE AND FISHERIES, et al.
    No. 09-1158.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Andrew E. Schaffer, Ronald J. Fiorenza, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendant-Appellant, State of Louisiana.
    James E. Calhoun, Assistant Attorney General, Alexandria, LA, for Defendant-Appellant, State of Louisiana.
    T. Taylor Townsend, Keenan K. Kelly, Kelly & Townsend, L.L.C., Natchitoches, LA, for Plaintiff-Appellee, Vanna Darlene McManus, etc.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and ELIZABETH A. PICKETT, Judges.
   PICKETT, Judge.

|xThe defendants, the State of Louisiana through its Department of Wildlife and Fisheries, which was found 25% at fault, and Department of Transportation and Development, which was found 75% at fault, appeal a judgment of the trial court, following a jury verdict, awarding the plaintiffs, Vanna D. McManus, individually and in her capacity as the provisional tu-trix of her minor children, Dakota C. Mc-Manus and Loredo H. McManus, a total of $3,880,965.95 in connection with the drowning of Hugh McManus, the husband of Vanna and father of the minors. We affirm the judgment of the trial court.

FACTS

On February 9, 2002, the decedent, Hugh McManus, went fishing with a friend, Stanley Neal. The two were in Mr. Neal’s 15½ foot, V-hull, fiberglass, bass boat which was propelled by a 75 horsepower outboard motor. The two launched at the St. Maurice boat launch and proceeded up Saline Bayou to the Chivery Dam. They pulled up close to the dam, killed the motor, took off their life-vests, and began throwing cast nets in an attempt to catch shad. They believed that the current in the bayou would cause them to drift back down-stream as they cast. Their plan was to catch enough shad to use for bait and then go to Black Lake Dam where they were to meet Mr. Neal’s father and another man; the four planned to fish from the bank near Black Lake Dam.

Although they believed that they would drift down-stream, because of water coming over the dam and their proximity to the structure when they stopped, they were actually pulled toward the dam. They only noticed this when the bow of the boat bumped against the dam and the boat began taking on water from the overflow |2of the structure. The two abandoned the vessel without securing their life-vests. Mr. Neal was able to make it to shore by walking on top of the dam. Mr. McManus drowned.

There is no dispute as to the facts in this case. The decedent and a friend were engaged in a recreational activity, fishing, on a rural, navigable water-way. The two were cast-net fishing in close proximity to Chivery Dam. The dam was built by the State in 1934, and its ownership was vested in the Department of Wildlife and Fisheries. Inspection and maintenance of the dam was delegated to the Department of Transportation and Development (referred to collectively as the State). There were no warning signs posted in proximity to the dam warning that approaching within “X” number of feet was dangerous.

After the accident Mrs. McManus filed the instant suit. The case was tried to a jury which found the two State agencies wholly at fault. The State then perfected this appeal.

LAW AND DISCUSSION

On appeal the State argues the following assignments of error:

1. The trial court legally erred in failing to grant the motion for summary judgment on behalf of the State, through DOTD and LDWF on the basis of the immunity afforded under La.[R.S.] 9:2795;
2. The jury erred, as a matter of law, in finding DOTD legally liable to Plaintiffs;
3. The jury erred, as a matter of law, in finding LDWF legally liable to Plaintiffs;
4. The jury erred, as a matter of law, in finding DOTD owed a legal duty to warn of the alleged dangerous condition that caused Decedent’s death;
5. Alternatively, the trial court legally erred in instructing/inferring to the jury that DOTD, LDWF, and the State are the same entity;
|s6. Alternatively, the trial court legally erred in failing to properly instruct the jury regarding the applicability of La. R.S. 9:2795 and 9:2791;
7. Alternatively, the jury erred, as a matter of law, to the extent it failed to find that the Dam and the area [sic] surrounding area constituted a public park under La. R.S. 9:2795;
8. Alternatively, the jury erred, as a matter of law, to the extent it concluded that DOTD willfully or maliciously failed to warn against a dangerous condition under La. R.S. 9:2795;
9. Alternatively, the jury erred, as a matter of law, to the extent it concluded that LDWF willfully or maliciously failed to warn against a dangerous condition under La. R.S. 9:2795;
10. Alternatively, the jury erred, as a matter of law, to the extent it failed to apply La. R.S. 9:2791 to DOTD and/or LDWF;
11. Alternatively, the jury clearly erred in finding that a dangerous condition existed at the Dam on the date of the accident and that DOTD and/or LDWF had constructive knowledge of that dangerous condition and sufficient time to remediate condition under La. R.S. 9:2800.

In ten of its eleven allegations of error, the appellants argue there were errors of law requiring this court to undertake a de novo review of this case. Basically, the appellants argue that, based upon the statutory immunity conferred upon the defendants by La. R.S. 9:2791 and 2795, the trial court’s failure to dismiss the case and the jury’s finding of liability, both, amounted to legal error.

Louisiana Revised Statutes 9:2791 states in part (emphasis ours):

A. An owner, lessee, or occupant of premises owes no duty of care to keep such premises safe for entry or use by others for hunting, fishing, camping, hiking, sightseeing, or boating or to give warning of any hazardous conditions, use of, structure, or activities on such premises to persons entering for such purposes, whether the hazardous condition or instrumentality causing the harm is one normally encountered in the true outdoors or one created by the placement of structures or conduct of commercial activities on the premises. If such an owner, lessee, or occupant gives permission to another to enter the premises for such recreational purposes he does not thereby extend any assurance that the premises are safe for such purposes or constitute the person to whom permission is granted one to whom a duty of care is 14owed, or assume responsibility for or incur liability for any injury to persons or property caused by any act of person to whom permission is granted.
B. This Section does not exclude any liability which would otherwise exist for deliberate and willful or malicious injury to persons or property, nor does it create any liability where such liability does not now exist.

Further, La. R.S. 9:2795 provides, in pertinent part, as follows (emphasis ours):

B. (1) Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(a) Extend any assurance that the premises are safe for any purposes.

We reject the State’s immunity argument. There are two types of immunity, absolute immunity such as that conferred upon a judge acting in his/her judicial capacity [see Viator v. Miller, 04-1199 (La.App. 3 Cir. 4/27/05), 900 So.2d 1135], and qualified immunity such as that conferred upon government officials performing discretionary functions [see Jackson v. State ex rel. Department of Corrections, 00-2882 (La.5/15/01), 785 So.2d 803], The statutes at issue provide “qualified” immunity not “absolute” immunity — thus, whether or not the State was immune from suit called for the trier of fact to make a factual determination: whether, under the facts of this case, the statutes provided immunity. Thus, the linch-pin of this case rests on several factual determinations: (l)Was there a dangerous condition which presented an unreasonable risk of harm? (2) Did the State have actual or constructive knowledge of this condition and sufficient time to take remedial action? (3) Did the State have a duty to warn of the dangerous condition? (4) Was the State willful in its inaction?

5In Eisenhardt v. Snook, 08-1287, pp. 5-6 (La.3/17/09), 8 So.3d 541, 544-45, our supreme court stated:

It is well-settled law that a landowner owes a duty to a plaintiff to discover any unreasonably dangerous conditions, and to either correct the condition or warn of its existence. Socorro v. City of New Orleans, 579 So.2d 931 (La.1991); Shelton v. Aetna Casualty & Surety Co., 334 So.2d 406, 410 (La.1976).
Nonetheless, we have recognized that defendants generally have no duty to protect against an open and obvious hazard. If the facts of a particular case show that the complained-of condition should be obvious to all, the condition may not be unreasonably dangerous, and the defendant may owe no duty to the plaintiff. The degree to which a danger may be observed by a potential victim is one factor in the determination of whether the condition is unreasonably dangerous. A landowner is not liable for an injury which results from a condition which should have been observed by the individual in the exercise of reasonable care, or which was as obvious to a visitor as it was to the landowner. Dauzat v. Curnest Guillot Logging, Inc., 08-0528 (La.12/2/08), 995 So.2d 1184; Hutchinson v. Knights of Columbus, 03-1533 at p. 9 (La.2/20/04), 866 So.2d 228, 234; Pitre v. Louisiana Tech University, 95-1466, 95-1487 at p. 11 (La.5/10/96), 673 So.2d 585, 591. It is the court’s obligation [i.e., the trier of fact] to decide which risks are unreasonable based upon the facts and circumstances of each case. Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984).

The foregoing makes it perfectly clear that this case turns on factual determinations. Therefore the case was not amenable to decision by summary judgment, and assignment number one is without merit.

Eisenhardt also makes it clear that if the trier of fact found that the condition at the dam constituted an unreasonable risk of harm, that the condition was not “open and obvious,” and that there was a duty owed by the defendants to the plaintiffs. Thus, assignments of error numbers 2, 3, and 4 are without merit as they concern “matters of fact,” not “matters of law.”

| (¡Assignments of error numbers 5 and 6 deal with alleged errors in jury instructions. Uniform Rules, Courts of Appeal, Rule 1-3, states that issues not submitted to, and decided by, the trial court are not generally reviewable on appeal. Inasmuch as these issues were not presented to the trial court they are not properly before this court for review.

Alleged errors 7-10 are couched as errors of law. However, they, along with assignment 11, all deal with factual determinations made by the jury. In Bullock v. The Rapides Foundation, 06-26, pp. 4-5 (La.App. 3 Cir. 10/11/06), 941 So.2d 170, 174, units denied, 06-2646 (La.1/8/07), 948 So.2d 127, and 06-2703 (La.1/8/07), 948 So.2d 132, this court stated:

The manifest error standard of review is the proper standard to be applied in cases involving findings of unreasonable risks of harm or unreasonably dangerous defects. Reed v. Wal-Mart Stores, Inc., 97-1174 (La.3/4/98), 708 So.2d 362. Thus, an appellate court may not set aside a trial court’s findings of fact in the absence of manifest error or unless it is clearly wrong. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). A two-tiered test must be applied in order to reverse the findings of the trial court:
a. the appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
b. the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).
Even where the appellate court believes its inferences are more reasonable than the fact finder’s, reasonable determinations and inferences of fact should not be disturbed on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Additionally, a reviewing court must keep in mind that if a trial court’s findings are reasonable based upon the entire record and evidence, an appellate court may not reverse said findings even if it is convinced that had it been sitting as trier of fact it would have weighed that evidence differently. Housley v. Cerise, 7579 So.2d 973 (La.1991). The basis for this principle of review is grounded not only upon the better capacity of the trial court to evaluate live witnesses, but also upon the proper allocation of trial and appellate functions between the respective courts.

In our review of the record, we find there was evidence presented of two similar occurrences (without injuries) at the dam., Neither incident was reportable since there were no injuries and no monetary damages. However, one incident involved David McAlpine, a 28-year veteran enforcement agent with the LDWF. He testified that he had been involved in exactly the same type of accident as happened in this case, and, had he not been able to reach down, grab a live-preserver, and get it on at the last second, he probably would have drowned. Mr. McAlpine also testified that John Bennett, who witnessed this accident had a similar experience and that over the years, as he patrolled near the dam, he had witnessed several other similar accidents. Although Mr. McAlpine did not formally “report” his or the other accidents, the fact that he was and is an agent of the LDWF can be construed as LDWF having constructive knowledge of the unreasonably dangerous condition at the dam.

The plaintiffs’ expert witness, Dr. J.B. Turnmeyer, a Registered Professional Engineer, testified that, in respect to dams, the web-site of the DOTD states: “The owner/operator must avoid conduct or conditions that could injure any person, even those who trespass. If [some] condition exists that poses a danger, the dam owner or operator is responsible for correcting it or [... ] posting warnings.” Dr. Turnmeyer testified that from his examination of the documents, photographs, depositions, etc. provided to him. the dam presented a “hazardous and dangerous condition” on the day of the accident. He further stated that it was not possible to remedy the conditions and that the only alternative was to post adequate warnings such as signs, |8buoys, or barricades. He testified that no warning devices were in place and that there was no evidence that they ever had been.

When questioned whether the dangerous conditions would be readily apparent to the average boater, he answered, “unless you’ve encountered that or you have training by the nature of knowing how to design dams and how the hydraulics work, there’s really no reason for you to just be able to look at the water and know that that condition exists.” And when asked his opinion as to whether the State should have known of the danger posed by the conditions at the dam, he stated: “certainly the one gentleman from the ... [LDWF] knew because ... he ... experienced that problem at that location. And the ... Water Resources Engineers ... that are responsible for the operation and maintenance of that dam they should know.”

Dr. Turnmeyer’s testimony was unrefut-ed.

Considering Dr. Turnmeyer’s testimony, the fact that Agent McAlpine not only witnessed a number of similar accidents, but also was the victim of one himself, that the DOTD web-site mandates the posting of warnings where “conditions exist that pose a danger,” and that the dam had been in existence for over 70 years, we find that the jury was provided with a “reasonable factual basis” for finding that both, the Department of Wildlife and Fisheries and the Department of Transportation and Development, acted willfully in causing the plaintiffs damages. Both departments had, at the very least, constructive knowledge of the unreasonably dangerous conditions posed by water spilling over the dam, and both had more than ample time to post warnings of those conditions. Yet, both failed to take action.

1 «CONCLUSION

Accordingly, for the reasons stated, the judgment of the trial court is affirmed. The costs of this appeal, $5,974.05, are assessed 25% to the Department of Wildlife and Fisheries and 75% to the Department of Transportation and Development.

AFFIRMED.


author: EZELL, Judge.

text:
    Douglas RICHARDSON v. LIL’ RIVER HARVESTING.
    No. WCA 09-1090.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Kathryn Fowler Van Hoof, VanHoof & Associates, LeCompte, LA, for Defendant/Appellant, Lil’ River Harvesting.
    Russell Louis Sylvester, Brittain and Sylvester, Natchitoches, LA, for Plaintiff/Appellee, Douglas Richardson.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY HOWARD EZELL, Judges.
   EZELL, Judge.

Ijn this matter, Lil’ River Harvesting appeals the decision of the workers’ compensation judge finding that Douglas Richardson required back surgery. For the following reasons, we affirm the decision of the workers’ compensation judge.

On November 16, 2006, Mr. Richardson was struck by a falling tree while in the course and scope of his job duties with Lil’ River. He developed severe back pain, eventually going to see Dr. Marcos Ramos, who felt a “minimally invasive laminectomy and microdiskectomy at L3-4” was required to alleviate the problem. Lil’ River requested Mr. Richardson see another physician, Dr. Donald Smith. Dr. Smith felt surgery was not needed. An independent medical expert (IME), Dr. Jorge Martinez, was appointed and also felt Mr. Richardson would not require surgery. Lil’ River did not dispute that the injury was compensable and paid disability and medical benefits except for the challenged surgery. At trial, the workers’ compensation judge found that Mr. Richardson had shown he needed surgery by a preponderance of the evidence and that he was entitled to the surgery recommended by Dr. Ramos. From that decision, Lil’ River appeals.

Lil’ River asserts as its sole assignment of error that the workers’ compensation judge erred in awarding Mr. Richardson the back surgery as recommended by Dr. Ramos.

The appropriate standard of review for workers’ compensation cases was set forth by our supreme court as follows:

In worker’s compensation cases, the appropriate standard of review to be applied by the appellate court to the OWC’s [Office of Workers’ Compensation] findings of fact is the “manifest error-clearly wrong” standard. Accordingly, the findings of the OWC will not be set aside by a reviewing court unless they are found to be clearly wrong in light of the record viewed in its entirety. Where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the | ¡.appellate court may feel that its own evaluations and inferences are as reasonable. The court of appeal may not reverse the findings of the lower court even when convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Dean v. Southmark Const., 03-1051, p. 7 (La.7/6/04), 879 So.2d 112, 117 (citations omitted).

Lil’ River believes that because its doctor and the IME felt that Mr. Richardson did not need surgery for his back, the workers’ compensation judge’s finding was clearly wrong. We disagree. An IME’s medical conclusions should be given significant weight because the IME is an objective party. Scott v. Wal-Mart Stores, Inc., 03-858 (La.App. 1 Cir. 2/23/04), 873 So.2d 664; see also La. R.S. 23:1123. However, the opinion of the IME is not conclusive, and the workers’ compensation judge must evaluate all of the evidence presented in making a decision as to a claimant’s medical condition. Mosley v. Pennzoil Quaker State, 37,199 (La.App. 2 Cir. 7/23/03), 850 So.2d 1100, writ denied, 03-2412 (La.11/21/03), 860 So.2d 553. As a general rule, while the trier of fact is required to weigh the testimony of all medical witnesses, the testimony of the treating physician should be accorded greater weight than that of a physician who examines a patient only once or twice. Scott, 873 So.2d 664.

The workers’ compensation judge gave extensive reasons for judgment wherein he weighed the findings of LiT River’s doctor and the IME against Dr. Ramos and Mr. Richardson’s social security disability examining physician, Dr. John Sandifer, who also felt Mr. Richardson would require surgery. The workers’ compensation judge gave more weight to Dr. Ramos, Mr. Richardson’s treating physician, and his belief that there were positive signs of abnormalities in Mr. Richardson’s back that would require surgical repair. He clearly took into consideration the testimonies of Mr. Richardson as well as his wife, both of whom testified as to the pain he suffered |sand of his desire to simply feel better. Simply put, the workers’ compensation judge weighed the evidence before him and chose between two permissible views of the evidence. Where there are two permissible views of the evidence, a fact finder’s choice between them can never be manifestly erroneous or clearly wrong. Stobart v. State, Through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993). Considering the foregoing and the record as a whole, we can find no manifest error in the workers’ compensation judge’s finding that Mr. Richardson requires surgery to correct his back injury.

For the above reasons, the decision of the workers’ compensation judge is hereby affirmed. Costs of this appeal are assessed against Lil’ River Harvesting.

AFFIRMED.


author: PETERS, J. COOKS, J.

text:
    Jerome C. ARDOIN, Jr. v. CLECO POWER, LLC.
    No. 09-1085.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 2010.

      Bret C. Beyer, Sr., Hill & Beyer, Lafayette, LA, for Plaintiff/Appellant Jerome C. Ardoin, Jr.
    Kathryn Fowler Van Hoof, Van Hoof Law Firm, LeCompte, LA, for Defendant/Appellee CLECO Power, LLC.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and BILLY H. EZELL, Judges.
   PETERS, J.

hThe plaintiff, Jerome C. Ardoin, Jr., was terminated from his employment with the defendant, Cleco Power, LLC (Cleco). While clearing out his office, he slipped, fell, and suffered injuries to his neck and back. Mr. Ardoin filed suit against Cleco seeking workers’ compensation benefits. The workers’ compensation judge (WCJ) rendered summary judgment in favor of Cleco, finding that Mr. Ardoin was not entitled to benefits as he was not injured while in the course and scope of his employment. Mr. Ardoin appeals this judgment. For the following reasons, we affirm the judgment of the WCJ in all respects.

DISCUSSION OF THE RECORD

The facts are not in dispute. Mr. Ar-doin’s employment with Cleco was terminated on Friday morning, October 24, 2008. Mr. Ardoin’s office with Cleco was located in Eunice, Louisiana, but he was informed of his employment termination at Cleco’s Work Center in Opelousas, Louisiana. His employer gave him permission to return to his office on Monday morning, October 27, 2008, to collect his personal effects and return any Cleco property still in his possession. While clearing out his office on Monday morning, Mr. Ardoin sustained serious physical injuries in a slip and fall accident. His treating physician recommended that he undergo surgery to both his neck and lower back as treatment for the injuries he sustained.

Mr. Ardoin filed a disputed claim for compensation against Cleco seeking wage benefits, medical treatment, and penalties and attorney fees. Cleco answered denying liability. The matter is now before us because both litigants filed motions for partial summary judgment addressing Mr. Ardoin’s employment status at the time of the accident. The WCJ granted Cleco’s motion, denied Mr. Ardoin’s motion, and dismissed Mr. Ardoin’s claims against Cle-co.

12Mr. Ardoin sought a supervisory writ from this court which, in an unpublished opinion, was denied because this court found that he had an adequate remedy through ordinary appeal. Ardoin v. Cleco Power, L.L.C., 09-683 (La.App. 3 Cir. 6/26/09). Mr. Ardoin then appealed, raising one assignment of error:

Judge Ourso erred as a matter of law by determining that the plaintiff, an employee under the Louisiana Workers’ Compensation Act, terminated on a Friday evening, was not covered by the Act when injured the following Monday morning on the employer’s premises, while wrapping up the affairs of his employment pursuant to an agreement with the employer.

OPINION

Appellate courts review summary judgments de novo, using the same analysis as the trial court in deciding whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A motion for summary judgment must be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). Because the facts are not in dispute, the only issue before us is the legal question concerning Mr. Ardoiris employment status at the time of the accident.

An employee, who suffers an injury while in the course and scope of his employment, is limited to recovery pursuant to the Workers’ Compensation Act. La. R.S. 23:1032. The few cases dealing with the scenario where the employee seeking workers’ compensation benefits is injured on the employer’s premises subsequent to being terminated, have been addressed by extrapolating from situations dealing with employees injured on the employer’s premises before or after work. The end result of these cases is to conclude that employees are allowed a reasonable Isperiod of time to gather up their belongs before quitting their employer’s premises. If an injury occurs during that reasonable period of time, the employee is considered to be within the course and scope of his/ her employment. See Livings v. Reliance Ins. Co., 525 So.2d 620 (La.App. 3 Cir.1988); Matthews v. Milwhite Mud Sales Co., 225 So.2d 391 (La.App. 3 Cir.), writ denied, 254 La. 772, 226 So.2d 526 (1969), writ denied, 255 La. 149, 229 So.2d 732 (1970); see also LaFleur v. Swallow’s Rice Mills, 532 So.2d 255 (La.App. 3 Cir.1988); Carter v. Lanzetta, 249 La. 1098, 193 So.2d 259 (1966).

Many of these opinions support their decision with language found in Wex S. Malone & H. Alston Johnson, III, 13 Louisiana Civil Law Treatise, Workers’ Compensation, § 167, p. 332-33 (4th ed.2002) (footnotes omitted), pertaining to “Accidents on Employer’s Premises Before or After Working Hours”:

The observation has been made in previous sections that an employee is acting in the course of his employment while he is actually engaged in his employer’s work even before or after working hours. Furthermore, even if he has finished the day’s work and is preparing to leave, or is in the act of leaving, he is entitled to a reasonable period while still on the premises which is regarded as within the course of the employment. The working day embraces these intervals just as it includes reasonable periods for rest, relaxation or the attendance of personal needs. This applies also to periods prior to the actual beginning of work under similar circumstances.

We decline to conclude that given the facts of this case, the delay between the Friday evening termination and the Monday morning injury was a reasonable period of time. That being the case, we find no merit in Mr. Ardoiris assignment of error.

DISPOSITION

We affirm the judgment of the workers’ compensation judge in all respects. We assess all costs of this appeal to Jerome C. Ardoin, Jr.

AFFIRMED.

COOKS, J. dissents and assigns reasons.

COOKS, J.

Dissents.

_JjMr. Ardoin returned to pick up his personal effects on the date, Monday, October 27, 2008, his employer granted him permission to do so. Any “delay” in retrieving the effects resulted from the employers insistence that he wait until Monday. The employer granted the claimant a “reasonable time” on a fixed date to retrieve his belongings and the accident occurred during this period.