author: J^FITZSIMMONS, J.

text:
    Janice HARRIS v. AMERICAN CITADEL.
    No. 2001-C-1967.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 27, 2002.

      Patrick H. Yancey, Houma, Andrew A. Lemmon, New Orleans, Counsel for Claimant/Appellee.
    Kathleen W. Will, Metairie, Counsel for Defendants/Appellants American Citadel and Wausau Insurance Company.
    Before: FITZSIMMONS, GUIDRY and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

On May 29, 2001, the Office of Workers’ Compensation granted a default judgment in favor of Janice Harris relative to a disputed claim for workers’ compensation against American Citadel Guard, Inc. and/or Wausau Insurance Company. American Citadel Guard, Inc. and Wausau Insurance Company appealed, asserting various assignments of error.

Louisiana Revised Statute 23:1316.1 specifically provides for a confirmation of judgment by default pursuant to the following directives:

A. A judgment by default on behalf of any party at interest must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default.
B. A prima facie case shall include but not be limited to proof of the following:
(1) The employee’s average weekly wage.
(2) The existence of an employer-employee relationship at the time of the work-related accident.
(3) The occurrence of an accident arising out of and in the course of the employment, or the existence of an occupational disease.
(4) Entitlement to benefits under the provisions of this Chapter.
C.Medical evidence shall include oral testimony, or a sworn narrative report from all treating and all examining health care providers. All other evidence may be presented by sworn affidavit. [Emphasis supplied.]

At the hearing to confirm the default on behalf of Mrs. Harris, the medical evidence presented in support of the confirmation of the default judgment was comprised of Mrs. Harris’ testimony and copies of hospital and medical reports by several physicians. None of the physicians testified |3at the hearing; nor was any of the documentary evidence admitted presented as a sworn narrative or affidavit. In Nickens v. Patriot Home Systems, 97-0291, pp. 4-5 (La.App. 1 Cir. 6/29/98), 713 So.2d 1179, 1182, this court held that copies of medical bills and medical reports do not constitute competent, statutorily sufficient medical evidence for a default judgment. This standard of prima facie proof has also been recently recognized by the Louisiana Supreme Court in Davis v. Petroleum Club of Lafayette, 2001-2801 (La.1/11/02), 806 So.2d 654.

Following the pursuit of the appeal, this court has subsequently received a motion to dismiss the appeal by appellants, American Citadel Guard, Inc. and Wausau Insurance Company. We thus pretermit ruling on whether Mrs. Harris has met her burden of prima facie proof that she is entitled to the claimed workers’ compensation benefits pursuant to La. R.S. 23:1316.1. The remaining issues on appeal are also mooted.

The appeal of the judgment of the Office of Workers’ Compensation is hereby dismissed. Costs associated with this appeal are assessed to Janice Harris.

JUDGMENT DISMISSED.


source: Caselaw Access Project

author: JjFOIL, J.

license: Public Domain

text:
    QUALITY ENVIRONMENTAL PROCESSES, INC., Michael X. St. Martin and Virginia Rayne St. Martin v. ENERGY DEVELOPMENT CORPORATION, Phillips Petroleum Company, Mobil Exploration & Producing U.S., Inc., and I.P. Petroleum Company, Inc.
    No. 2001 CA 2255.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.
    Writ Denied Jan. 10, 2003.
    A.J. Gray, III, Lake Charles, for Appellants Plaintiffs Quality Environmental Processes, Inc., et al.
    Louise V. White, Covington, for Appel-lee Defendant Mobil Exploration & Producing U.S., Inc.
    James A. Barton, David R. Richardson, New Orleans, for Appellee Defendant Energy Development Corp.
    Raymond G. Hoffman, Metairie, for Ap-pellee Defendant Energy Development Corp.
    Before: FOIL, FOGG and KLINE, JJ.
   Judge WILLIAM F. KLINE, JR., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

JjFOIL, J.

This appeal challenges the dismissal of a claim on the basis it was prescribed. We affirm.

BACKGROUND

The factual background for the instant appeal is succinctly stated in the trial court’s written reasons for judgment as follows:

By petition filed June 29, 2000, Quality Environmental Processes, Inc. (“Quality”), Michael X. St. Martin, and Virginia Rayne St. Martin (“the St. Martins”) initiated this proceeding seeking a judgment declaring them to be the owners of certain minerals under designated land in Terrebonne Parish, Louisiana, acquired by the St. Martins on June 28, 1992, and the proper recipients of royalties pursuant to mineral leases affecting the land in question. The plaintiffs also seek an accounting of royalty proceeds attributable to production from the land, cancellation of the leases, and damages.
The plaintiffs specifically allege that the defendant, Mobil Exploration & Producing U.S., Inc. (“Mobil”), is the successor of The Superior Oil Company, to whom the plaintiffs’ ancestors in title granted certain mineral leases dated March 31, 1954, and December 1, 1963, affecting the land at issue in this case. The plaintiffs further allege Mobil conveyed various interests in these leases to other defendants. By this suit against Mobil, the plaintiffs seek, among other things, recovery of mineral royalties attributable to production from the land in question after June 23, 1992, and cancellation of the 1954 mineral lease referred to above for failure of Mobil to pay such royalties after demand in 1993.
In response to the petition, the defendant, Mobil, filed exceptions of no right of action, prescription, prematurity and/or want of amicable demand, and improper cumulation of actions. By judgment rendered in this matter on October 25, 2000, all of the exceptions were overruled except the exception of prematurity which resulted in the dismissal of the claims against Mobil by Quality only.
On January 25, 2001, Mobil filed a motion seeking a summary judgment and requesting that this court reconsider its decision of October 25, 2000, overruling its exception of prescription....

Plaintiffs’ claims arising out of the December 1, 1963 lease were dismissed by the trial court pursuant to the granting of the motion for summary judgment. That ruling is not at issue in this appeal.

| ¡¡Plaintiffs appeal the subsequent ruling of the trial court, which sustained Mobil’s exception of prescription regarding the 1954 mineral lease. In support of this exception, Mobil urged that because plaintiffs did not file suit until June 29, 2000, any cause of action they may have had against Mobil for failure to pay royalties prescribed by virtue of Louisiana Civil Code article 3494, which specifically sets forth a liberative prescriptive period of three years for actions to recover royalty payments. Mobil asserted that even if one goes back three years before the date the suit was filed (June 29, 1997), plaintiffs would not have a cause of action for royalties from 1997-2000 because Mobil transferred all of its interest in the 1954 mineral lease to Phillips Petroleum Company in 1995, and therefore, it no longer had any obligation to pay royalties to anyone. Therefore, Mobil posited, all of its royalty payment obligations were prescribed at the time the plaintiffs filed suit.

DISCUSSION

Plaintiffs concede that any claims for royalties accruing more than three years from the date this suit was filed have prescribed. The only issue remaining in the litigation with respect to Mobil is whether plaintiffs have a viable claim for royalties based on the 1954 lease.

Mobil argues that there are two reasons why it cannot be held liable for royalties to plaintiffs. The first, it insists, is that plaintiffs never acquired the mineral rights to the subject property. Although plaintiffs’ ownership of the mineral rights may be at issue with respect to other defendants in the litigation, the resolution of this issue is not essential to render a determination in the case of Mobil. Accordingly, we pretermit discussion of the ownership issue raised by Mobil in its brief.

It is undisputed that Mobil assigned all of its interest in the lease to Phillips on December 1, 1995, more than three years prior to the filing of the instant suit. It is also undisputed that for more than three years before this suit was filed, Mobil was not a lessee under the 1954 lease. In an effort to |4avoid the effect of prescription, plaintiffs rely on article 129 of the Louisiana Mineral Code, which provides that an assignor is not relieved of its obligations under a mineral lease unless the lessor has discharged him expressly and in writing. Plaintiffs contend that Mobil must prove that they discharged it expressly and in writing, and as it has never been discharged, it remained a “lessee” under the 1954 mineral lease.

We disagree with this argument. Plaintiffs clearly were not the mineral lessors under the 1954 lease at the time Mobil assigned its interest to Phillips. Furthermore, even if plaintiffs could establish ownership of the minerals, there is simply nothing in this provision conferring the right to receive royalties on a third person such as a surface owner.

Plaintiffs next attempt to avoid prescription by asserting that Mobil’s arguments were actually grounded in prematurity, rather than prescription. The exception of prematurity is dilatory in nature and must be pleaded prior to answering. La.Code Civ. P. art. 926. Plaintiffs argue that because Mobil answered before as-setting its prematurity objection, that objection has been waived. Again, we must disagree. On August 17, 2000, Mobil filed an exception specifically raising the objection of prescription based on the three-year prescriptive period found in Louisiana Civil Code article 3494. On January 25, 2001, Mobil reurged its exception of prescription. As the peremptory exception of prescription may be raised at any time in the trial court prior to submission of the case for decision by virtue of Louisiana Civil Code Procedure article 928, this argument is entirely without merit.

The trial court concluded that because the only basis for the recovery of royalties by plaintiffs from Mobil was the lease which had been transferred or assigned by Mobil to Phillips on December 1, 1995, any claim for royalties against Mobil prescribed, at the very latest, three years later on December |R1, 1998. We agree with the trial court’s conclusion that this lawsuit, filed on June 29, 2000, was untimely, and therefore find no error in the judgment sustaining the exception of prescription.

CONCLUSION

For the foregoing reasons, the judgment appealed from is affirmed. All costs of this appeal are assessed to plaintiffs.

AFFIRMED.

      . Plaintiffs’ last argument attempts to refute one of the bases on which Mobil denies liability for royalties based on the language of the 1954 lease. This argument is not pertinent to the resolution of the prescription issue, and will not be addressed by this court.


author: I,KUHN, J.

text:
    Willie NUNNERY v. Amy ELMORE, et al. Belinda Nunnery, et al. v. Bernard Carr, et al.
    No. 2001 CA 1766, 2001 CA 1767.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.
    Jana Moody, Hammond, Counsel for Plaintiffs/Appellants Belinda Nunnery, Shimita Nunnery and Tammy Pines.
    Alan J. Levith, Hammond, Counsel for Defendant/Appellee City of Hammond.
    Before: KUHN, DOWNING, and LANIER, JJ.

      . The Honorable Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   I,KUHN, J.

Plaintiffs-appellants, Belinda Nunnery, Shimita Nunnery, and Tammy Pines (plaintiffs), appeal a judgment dismissing defendant-appellee, the City of Hammond (the City), from their lawsuit, which seeks damages for personal injuries allegedly sustained in an automobile accident. We affirm.

PROCEDURAL BACKGROUND

On May 15, 1998, plaintiffs filed a petition for damages in the Hammond City Court naming as defendants, Bernard Carr, Willie Nunnery (Nunnery), Amy El-more and her liability insurer, State Farm Mutual Insurance Company (State Farm). According to the allegations of plaintiffs’ original petition, they were guest passengers in a vehicle owned by Carr and driven by Nunnery on March 7, 1998, in Hammond, Louisiana. As Nunnery drove the Carr vehicle in a funeral procession line, a vehicle driven by Elmore entered into the intersection and struck the Carr vehicle, causing personal injuries to plaintiffs.

Nunnery filed a separate lawsuit in the Twenty-First Judicial District Court on December 16, 1998, alleging liability for injuries he sustained based on the same operative facts. Nunnery’s lawsuit named the City as a defendant in addition to Elmore and State Farm. According to the allegations of Nunnery’s petition, City police officers obstructed traffic at several intersections which were otherwise controlled by traffic lights as the funeral procession proceeded on the perpendicular roadway. Nunnery’s petition details with specificity the method the City police officers undertook to control traffic at the various intersections that adjoined the roadway used for the funeral procession. He avers that the City was negligent for creating an appearance of police protection and then failing to warn funeral procession motorists of disengagement from that protection. The parties do not dispute the timeliness of Nunnery’s claims against the City.

laOn June 21, 1999, a joint motion to transfer plaintiffs’ lawsuit from the Hammond City Court to the Twenty-First Judicial District Court was filed in the city court. Seeking the transfer for the convenience of the parties, the joint motion noted that plaintiffs’ claims were not in excess of the jurisdictional amount of the city court. The city court judge signed an order transferring plaintiffs’ lawsuit to district court on June 22, 1999. And pursuant to a motion filed by Elmore and State Farm, on August 10, 1999, the district court judge signed an order consolidating from another division of the Twenty-First Judicial District Court plaintiffs’ lawsuit with Nunnery’s lawsuit.

Plaintiffs then filed an amending and supplementing petition on November 19, 1999, naming the City as a defendant in their lawsuit for the first time. The City filed a peremptory exception of prescription on January 4, 2000. After arguments, the district court judge sustained the exception and dismissed the City from plaintiffs’ lawsuit. A judgment, expressly noting that it was a full and final judgment insofar as the liability of the City for plaintiffs’ claims, was signed by the district court judge on January 29, 2001. Plaintiffs appeal.

LANALYSIS

Under La. C.C. art. 3492, a tort action is subject to a liberative prescriptive period of one year from the day the injury or the damage is sustained. Ordinarily, the burden is on the party raising the objection of prescription to prove the facts supporting the objection. But if plaintiffs’ claims are prescribed on the face of the petition, the burden shifts to plaintiffs to prove a suspension or interruption of the prescriptive period. In the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations thereof are accepted as true. Doyle v. Mitsubishi Motor Sales of America, Inc., 99-0459, p. 5 (La.App. 1st Cir.3/31/00), 764 So.2d 1041, 1044, writ denied, 00-1265 (La.6/16/00), 765 So.2d 338.

The City was named as a defendant in plaintiffs’ lawsuit over one year and eight months after the accident. Thus, their claims are prescribed on the face of the petition and plaintiffs bear the burden of proof.

Louisiana Civil Code article 2324C provides, “Interruption of prescription against one joint tortfeasor is effective against all joint tortfeasors.” Relying on this article, plaintiffs contend that the filing of their original petition for damages in city court against Carr, Nunnery, Elmore and State Farm interrupted prescription against the City. And because their action against the City asserted in the later-amended and supplemented petition arises out of the conduct, transaction, or occurrence set forth in their original petition filed in city court, see La. C.C.P. art. 1153, plaintiffs urge that it relates back to that pleading. Therefore, under La. C.C. art. 2324G, plaintiffs assert, their timely-filed lawsuit interrupting prescription against Carr, Nunnery, Elmore, and State Farm was effective against the City. We disagree.

According to La. C.C. art. 3462:

| .¡Prescription is interrupted when the owner commences action against the possessor, or when the obligee commences action against the obligor, in a court of competent jurisdiction and venue. If action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period.

Jurisdiction is the legal power and authority of a court to hear and determine an action and to grant the relief to which the parties are entitled. La. C.C.P. art. 1. Subject matter jurisdiction is that which enables a court to hear a particular class of actions or proceedings based upon the object of the demand, the amount in dispute, or the value of the right asserted. La. C.C.P. art. 2. And subject matter jurisdiction cannot be conferred upon a court by-consent of the parties. La. C.C.P. art. 3. A city court has no jurisdiction in a case in which the state, or a parish, municipal, or other political corporation is a defendant. La. C.C.P. art. 4847A(6).

According to the allegations of plaintiffs’ first amending and supplementing petition filed on November 19, 1999, the City is “a municipal corporation.” And in its answer to Nunnery’s lawsuit, the City “admits that it is a political subdivision of the State of Louisiana.” Pursuant to La. Const. Art. VI, § 44(2) and (3), the City of Hammond is a political subdivision of the State of Louisiana. Thus, plaintiffs commenced their action against Carr, Nunnery, Elmore, and State Farm in the Hammond City Court, a court that has no jurisdiction in this case in which the City, a political subdivision of the State of Louisiana, is a defendant. See also La. R.S. 13:5104B (requiring all suits against a political subdivision of this state be instituted in the district court of the judicial district in which the political subdivision is located). Procedural rights peculiar to one case are not rendered applicable to a companion case by the mere fact of consolidation; each case must stand on its own merits. ANR Pipeline Co. v. Louisiana Tax Comm’n, 01-2594, p. 6, 815 So.2d 178, 183 (La.App. 1st Cir.3/20/02). As such, the Hammond City Court was an incompetent court under La. |fiC.C. art. 3462, and plaintiffs must show that the City was served with process within the one-year prescriptive period.

The record establishes, and the parties do not dispute, that the City was first served with plaintiffs’ lawsuit after the matter was transferred to district court when they amended and supplemented their petition to name the City as a defendant, eight months after the accrual of prescription. And assuming as true the representation made in the transfer motion (that all counsel who had made an appearance in both plaintiffs’ and Nunnery’s lawsuits agreed to the transfer, which ostensibly included the City), because the parties could not by their consent confer jurisdiction upon the Hammond City Court, the plaintiffs’ claims against the City are nevertheless untimely. Accordingly, the trial court correctly concluded plaintiffs’ claims against the City are prescribed.

CONCLUSION

For these reasons, the trial court’s judgment dismissing plaintiffs’ claims against the City of Hammond is affirmed. Appeal costs are assessed against Belinda Nunnery, Shimita Nunnery, and Tammy Pines.

AFFIRMED.

WALTER I. LANIER, Jr., J. Pro Tern., concurs in the result.

      . Nunnery's alleged liability insurer was also named as defendant in plaintiffs' petition but was dismissed from the lawsuit via summary judgment after establishing it did not provide coverage for this accident.

      . Since the 1960 revision of the Code of Civil Procedure, as matter of law, there are only three types of exceptions: declinatory, dilatoty, and peremptory. La. C.C.P. art. 922. As a matter of law, all defenses previously denominated exceptions were reclassified as objections. See the introduction to Chapter 3 of Book 2 of the Code of Civil Procedure by Henry G. McMahon, and La. C.C.P. arts. 921-934 and the Official Revision Comments for them. Sources of law are legislation and custom. La. C.C. art. 1. Legislation is a solemn expression of legislative will; it is not a solemn expression of the executive will or the judicial will. La. Const. Art. II; La. C.C. art. 2. Custom results from practice repeated for a long time and generally accepted as having acquired the force of law. La. C.C. art. 3. It is arguable that the practice of calling an objection an exception has established a custom. However, a custom may not abrogate legislation. La. C.C. art. 3. Therefore, the custom of calling an objection an exception technically is not legal, violating positive law. See La. C.C.P. art. 921-934. But for brevity and reader ease, despite the technical violation, we refer to the "peremptory exception raising the objection of prescription” simply as an "exception of prescription.''

      .The City also asserted that plaintiffs' petition failed to state a cause of action against urging that no factual allegations of fault had been set forth in the November 19, 1999, amending, and supplementing petition. But a second amending and supplementing petition filed by plaintiffs has cured that deficiency, and on appeal the City contends only that it is entitled to dismissal from plaintiffs' lawsuit because their claims against it have prescribed.

      . See La. C.C.P. art. 1915A(1).

      . Although the parties do not complain, and we find no prejudicial error, we note that while the judgment states the matter came “on for Motion for Summary Judgment” in its preambulary paragraph, the record is devoid of any pleading seeking summary judgment by any party subsequent to the transfer of plaintiffs’ lawsuit from city to district court.

      .Louisiana Code of Civil Procedure article 1153 provides, "When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of filing the original pleading.”

      . The City answered Nunnery's lawsuit on February 26, 1999, prior to June 21, 1999, filing date of the motion to transfer.


author: LFOGG, J.

text:
    Jack Leo “Jay” MANNO, Jr. v. Toni Balsano MANNO.
    No. 2001 CA 2138.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.

      Paul M. Hebert, Jr., Baton Rouge, for Plaintiff — Appellee Jack Leo “Jay” Manno, Jr.
    Rachel C. Marinovich, New Orleans, for Defendant — Appellant Toni Balsamo Man-no.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   LFOGG, J.

On appeal in this suit for partition of community property, the former wife contests the designation and the allocation of certain property. For the following reasons, we amend in part, and affirm, as amended.

Toni Balsano Manno and Jack Leo “Jay” Manno, Jr. were married on March 13, 1993, and divorced on November 12, 1999. Attempts to voluntarily partition the community were unsuccessful, and Mr. Manno filed a petition for judicial partition. After a hearing, the trial court rendered a judgment of judicial partition, awarding Mr. Manno attorney’s fees in the sum of $8,301.44 and appraisal fees in the sum of $350.00, awarding Ms. Manno attorney’s fees in the sum of $1,850.00 and appraisal fees in the sum of $125.00, and providing for an equalizing payment by Ms. Manno of $23,716.50. Ms. Manno appealed, and Mr. Manno answered the appeal.

Initially, Ms. Manno contends the trial court erred in denying her request to file an amended descriptive list to assert her claim for reimbursement for the rental value of the family home. LSA-R.S. 9:374 provides the procedure for petitioning the court for the use and occupancy of the family residence. Section 374(C) provides:

A spouse who uses and occupies or is awarded by the court the use and occupancy of the family residence pending either the termination of the marriage or the partition of the community property in accordance with the provisions of R.S. 9:374(A) or (B) shall not be liable to the other spouse for rental for the use and occupancy, unless otherwise agreed by the spouses or ordered by the court.

By the clear terms of the statute, Mr. Manno shall not be liable to Ms. Manno for rent for use and occupancy of the family residence without a court order or an agreement by the parties. Richard v. Richard, 00-08 (La.App. 5 Cir. 5/30/00), 762 So.2d 271; and see Young v. Smith, 30,530 (La.App. 2 Cir. 5/13/98), 715 So.2d 479. The record is devoid of a court order or an agreement between the parties concerning rent. Therefore, we pretermit the issue raised by Ms. Manno relating to her amended descriptive list as her claim for rental value reimbursement is statutorily prohibited.

s Ms. Manno asserts the trial court erred in failing to classify Hancock Bank account # 8921774 as a community asset. Things in the possession of a spouse during the marriage are presumed to be community property, and the burden of overcoming this presumption rests on the party asserting the separate nature of the property. LSA-C.C. art. 2340. The proof of the separate character of the property must be fixed, clear, positive and legally certain. Thomson v. Thomson, 34,353 (La.App. 2 Cir. 1/24/01), 778 So.2d 736. The trial court’s findings regarding the nature of the property as community or separate are factual determinations. As such, they are governed by the manifest error — clearly wrong standard of review. Lytal v. Lytal, 2000-1934 (La.App. 1 Cir. 11/14/01), 818 So.2d 111, writ denied 2001-3272 (La.3/8/02), 810 So.2d 1164.

At trial, Mr. Manno’s father, Mr. Jack Manno, Sr., testified that although the Hancock Bank account was opened in Mr. Manno’s name, the funds in the account belonged to Mr. Manno, Sr., and were deposited to provide security for his son to obtain an electrical contractor’s license. Mr. Manno, Sr. maintained possession of the account statements and checkbook, and he controlled all the activity in the account. At the direction of Mr. Manno, Sr., Mr. Manno periodically wrote a check to his father for the balance in the account, for easy withdrawal by Mr. Manno, Sr. if necessary. Mr. Manno, Sr. also reimbursed Mr. Manno for any income tax liability incurred because of the account.

The trial court found the funds from Hancock Bank account # 8921774 were not community property. We cannot say the trial court was clearly wrong in this factual determination.

Ms. Manno also asserts the trial court erred in failing to classify a First USA Visa revolving credit card account balance of $8,858.32 as a community obligation. Obligations incurred by a spouse during the existence of the community property regime are presumed to be community obligations. LSA-C.C. art. 2361. Exceptions | include obligations incurred before the community property regime or obligations that are not for the common interest of the spouses or for the interest of the other spouse. LSA-C.C. art. 2363. Once it is shown that an obligation arose during the existence of the community, the presumption set forth in article 2361 may be rebutted only by facts proving the obligation to be separate as defined in article 2363. Anding v. Anding, 32,084 (La.App. 2 Cir. 8/18/99), 740 So.2d 253.

The revolving Visa account was opened by Ms. Manno, in her maiden name, before her marriage. However, the record contains no evidence to establish the exact amount of the balance due at the time of the marriage, the account activity during the six years of marriage, or that charges made on the account during the marriage were not for the Manno’s common interest. The trial court’s finding that the $8,858.32 due on the revolving credit card account at the time of separation was not a community obligation was without evidentiary support and was clearly wrong. See Ambrose v. New Orleans Police Dept. Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216. Therefore, we award Ms. Manno reimbursement for one-half of the amount of her separate property used to satisfy this community obligation, in the sum of $2,779.00, pursuant to LSA-C.C. art. 2365. Utilizing this redesignation and award, the partition is as follows:

TOTAL ASSETS $125,501.62
TOTAL LIABILITIES (111,606.09)
NET COMMUNITY $ 13,895.53
One-half Interest $ 6,947.76
ALLOCATED TO TONI
Assets $123,180.17
Liabilities (111,606.09)
Total Value $ 11,574.08
ALLOCATED TO JAY
Assets $ 2,321.45
Liabilities ( 0.00)
Total Value $ 2,321.45
PARTITION PAYMENT TO JAY $ . 4,626.31
| ¡^REIMBURSEMENTS
Due to Jay $ 21,636.03
4,626.31
$ 26,262.34
Due to Toni $ 9,754.00
$ 9,754,00
FINAL EQUALIZING PAYMENT DUE TO JAY $ 16,508.34

Ms. Manno contends the trial court erred in the sums awarded to her and Mr. Manno for attorney’s fees. An obligation for attorney’s fees and costs in an action for divorce incurred before the date of the judgment of divorce that terminates the community property regime is a community obligation of that regime. LSA-C.C. art. 2362.1. A trial court has discretion to decide the amount of reasonable attorney’s fees, and such factual determinatidns regarding both the classification of attorney’s fees and their reasonableness will not be disturbed in the absence of manifest error. Sims v. Sims, 28,470 (La.App. 2 Cir. 6/26/96), 677 So.2d 663.

Mr. Manno’s evidence of his attorney’s fees included invoices and cancelled checks. Although Ms. Manno presented several cancelled checks as evidence of her attorney’s fees, some pre-dated the filing for divorce or were payable to non-attorneys. In addition, she failed to provide evidence of payment for her claim of $3,500.00 for her trial counsel. Therefore, we find no manifest error in the trial court’s awards of attorney’s fees.

Ms. Manno also asserts the “vastly different reimbursement” for appraisal fees was error. The trial court awarded Mr. Manno $350.00 and Ms. Manno $125.00. Pursuant to LSA-C.C.P. art. 1920, the trial court may render judgment for costs as it may consider equitable. Considering the parties’ stipulation to the appraisal by Mr. Manno’s expert, we find no abuse in the trial court’s awards for appraisal fees.

In his answer, Mr. Manno seeks judicial interest from the date judgment was rendered. When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due. |fi LSA-C.C. art.2000. Although a party does not pray for interest, a judgment may and should include an award of legal interest where legal authority for such an award exists. Michael v. Michael, 602 So.2d 1099 (La.App. 1 Cir.1992).

For the reasons set forth in this opinion, we amend the judgment of partition to award a reimbursement to Toni Balsano Manno in the sum of $2,779.00, and to order an equalizing payment from Toni Balsano Manno to Jack Leo “Jay” Manno, Jr. in the sum of $16,508.34. In addition, the judgment is amended to award interest from the date the judgment of partition was rendered. In all other respects, the judgment of the trial court is affirmed. Costs are assessed equally to Toni Balsano Manno and Jack Leo “Jay” Manno, Jr.

AMENDED, AND AFFIRMED, AS AMENDED.


author: J^FOIL, J.

text:
    SUCCESSION OF Leah Heitkamp RICHAUD.
    No. 2001 CA 2071.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.

      Richard A. Thalheim, Jr., Thibodaux, for 1st Appellant Rana DaSilva.
    Douglas Greenburg, Houma, for 1st Appellant Rana DaSilva Devon D. Roberts Arlissa D. Ferrara.
    Sidney C. Sundbery, Houma, for 2nd Appellant Ronald J. Richaud.
    Before: FOIL, FOGG and KLINE, JJ.
   J^FOIL, J.

This succession matter involves a dispute between the decedent’s surviving spouse and her three children from a previous marriage. For the reasons that follow, we reverse in part, affirm in part and render.

FACTS AND PROCEDURAL BACKGROUND

Leah Heitkamp Richaud died testate on May 16, 1999, survived by her husband, Ronald J. Richaud, and three daughters from a previous marriage, Rana DaSilva, Devon DaSilva Roberts, and Arlissa DaSil-va Ferrara. At the time of her death, Mrs. Richaud’s children were each competent and over the age of 23 years. In her last will and testament dated June 25, 1998, Mrs. Richaud bequeathed the entirety of her estate and the residuary estate to her three daughters. The will named her daughter Rana DaSilva as executrix with full seizin and without bond. Mrs. Ri-chaud’s surviving spouse was not mentioned in the will.

Thereafter, Rana DaSilva was confirmed as testatrix. She filed a petition for probate and the will was ordered probated. The surviving spouse, however, refused to turn over the property of the decedent, claiming he had a usufruct over the community property of his deceased wife. As such, a petition for declaratory judgment, a temporary restraining order, and a preliminary and permanent injunction was filed on behalf of the succession, seeking to protect the succession property and to require the surviving spouse to turn over the property to the executrix. Following a hearing on the request for a preliminary injunction, the trial court denied the same, finding that the legal effect of the will was that the surviving spouse was entitled to a statutory legal usufruct.

The surviving spouse subsequently filed a reconventional demand, asking the court to declare that he is entitled to a legal usufruct over the decedent’s share of the community property. The heirs then filed a motion for security, asking the court to require the surviving spouse to post security to protect their interests.

^Following a trial on the merits, the trial court rendered judgment recognizing that the surviving spouse has a legal usu-fruct over the decedent’s share of the community property until his death or remarriage. The court dismissed the request for permanent injunction. On the motion for security, the court ordered the surviving spouse to provide security and further imposed several restrictions and prohibitions. Both the heirs and the surviving spouse appealed.

DISCUSSION

Usufruct

On appeal, the heirs contend that, where the express language of a statutory will explicitly leaves the entire estate and residuary estate to the decedent’s three children and makes no mention whatsoever of the surviving spouse, it is manifest error to hold there is a “legal” usufruct in favor of the surviving spouse. They further assert that the trial court erred in failing to grant a declaratory judgment and permanent injunction against the surviving spouse, who is illegally attempting to assert an intestate usufruct in a testate succession and usurp control of the decedent’s estate.

In response, the surviving spouse argues that under Louisiana jurisprudence, he is entitled to a legal usufruct where the decedent leaves a statutory will leaving all of her property to her children, but not expressly granting or denying a usufruct to her surviving spouse.

We agree with the heirs that the surviving spouse is not entitled to a usufruct under the facts of this case. La. Civ.Code art. 890 establishes a usufruct in favor of a surviving spouse, which is recognized by our courts as a legal usufruct. Under the clear wording of that article, however, it only establishes a usufruct to the extent that the decedent has not disposed of her share of the community property by testament. This case involves a testate succession and, thus, is governed under the Civil Code Title “Of donations inter vivos and mortis causa.” La. Civ.Code art. 1499, which is found in that title, provides that “the decedent may grant a usufruct to the 1 ¿surviving spouse over all or part of his property.” [Emphasis added.] Here, the decedent apparently chose not to do so. Rather, she left her entire estate to her three daughters. In her will, the testatrix dispensed with collation and explicitly named her daughter, Rana DaSilva, as executrix with full seizin and without the necessity of posting a bond.

The surviving spouse argues that “the adverse disposition rule” applies in testate successions. In other words, a testator must specifically state “there is no usu-fruct” in the will. Otherwise, he asserts, the legal usufruct is confirmed by a testator’s silence. We disagree, but in any event, we believe that leaving one’s entire estate to three daughters certainly constitutes an “adverse disposition.” In conclusion, we find that the surviving spouse is not entitled to a usufruct over the decedent’s share of the community property in this case and the heirs are entitled to a declaratory judgment to that effect.

Security

In his appeal, the surviving spouse urges as error the court’s order that he post security and the imposition of the various restrictions upon him. We disagree that this constituted error. If, as Mr. Richaud contended, he had a usufruct over the decedent’s property, the heirs were entitled to obtain security from him pursuant to La.Code Civ. P. art. 3154.1. Accordingly, we feel the heirs were entitled to this security pending a judicial determination of whether the surviving spouse was, in fact, entitled to a usufruct. Further, as Mr. Richaud had been in possession of the decedent’s property during the pendency of this litigation, the restrictions imposed by the trial court were reasonable and necessary to safeguard the succession and its assets. Therefore, we hold that the restrictions and security ordered by the trial court shall continue in full force and effect until this judgment becomes executory.

| .CONCLUSION

Accordingly, we reverse that portion of the trial court’s judgment declaring that Ronald J. Richaud is entitled to a legal usufruct over the decedent’s portion of the community property. Judgment is hereby rendered in favor of Rana DaSilva, Devon DaSilva Roberts, and Arlissa DaSilva Fer-rara, declaring that Ronald J. Richaud is not entitled to a legal usufruct over the decedent’s portion of the community property, and Mr. Richaud is ordered to turn over that property to the executrix. That portion of the trial court’s judgment ordering that Ronald J. Richaud provide security and imposing restrictions and prohibitions upon Ronald J. Richaud is hereby affirmed and ordered to remain in full force and effect until the judgment of this court becomes executory. Costs of this appeal are assessed to Ronald J. Richaud.

REVERSED IN PART; AFFIRMED IN PART AND RENDERED.

Judge WILLIAM F. KLINE, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.


author: _[¿KLINE, J.

text:
    GUEST HOUSE OF SLIDELL v. Georgia WILSON.
    Nos. 2001 CA 2263, 2001 CA 2264.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.

      John J. Rabalais, Covington, Counsel for Appellee Guest House of Slidell.

      William R. Mustian, III, Metairie, Counsel for Appellant Georgia Wilson.
    Before: FOIL, FOGG, and KLINE
      , JJ.

      . Hon. William F. Kline Jr., retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   _[¿KLINE, J.

Appellant, Georgia Wilson, appeals the decision of the workers’ compensation judge dismissing her claim against appel-lee, Guest House of Slidell, having found that she had not carried her burden of proof that she suffered a back injury due to a work-related accident. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Georgia Wilson was employed as a nurse’s assistant by Guest House of Slidell (“Guest House”). On December 7, 1999, Ms. Wilson was assisting a patient by transporting her from a wheelchair onto a hospital bed. According to Ms. Wilson, as she placed the patient onto the edge of the bed, the bed rolled back. The patient began to roll over, and Ms. Wilson had to “scoop her up and put her back on the bed to keep her from falling on the floor.” After Ms. Wilson got the patient onto the bed, she stood and felt her lower back was hurting.

On January 27, 2000, Guest House filed a claim with the Office of Workers’ Compensation (“OWC”) against Ms. Wilson alleging that Ms. Wilson had forfeited her entitlement to benefits under La. R.S. 23:1208.1. Guest House asserted that Ms. Wilson failed to truthfully answer inquiries set forth in a post-hire medical questionnaire relating to a prior back accident, injury, disability and workers’ compensation claim. On February 22, 2000, Ms. Wilson filed an answer denying the allegation set forth by Guest House and then filed a workers’ compensation claim against Guest House, asserting that she suffered severe back injury as a result of an accident that occurred on December 7, 1999. On March 30, 2000, both matters were consolidated upon motion filed by Guest House. Guest House filed a recon-ventional demand against Ms. Wilson whereby it alleged that Ms. Wilson also was in violation of La. R.S. 23:1208. Ms. Wilson filed an answer denying such claim.

A trial was held on the merits on July 9, 2001. At the trial, Ms. Wilson testified about the facts surrounding the incident and the injuries that resulted. She also testified about the facts surrounding the issue of her prior back injury |3and the circumstances surrounding her answers provided on the questionnaire. No other witnesses were presented by Ms. Wilson.

The OWC judge issued a written judgment on July 26, 2001, stating the following:

After considering the law and evidence as well as having observed the demeanor of those testifying, the Court concludes as follows:
IT IS ORDERED ADJUDGED AND DECREED that the plaintiff, Georgia L. Wilson, has failed to carry her burden of proving a work related accident with injury, thus her claim against, the defendant, Guest House of Slidell is dismissed with prejudice, each party responsible for their costs. [Emphasis added.]

Ms. Wilson appealed this finding and asserts the following assignment of error:

The trial court erred in finding no proof of an accident where there were no substantial factors casting serious doubt upon plaintiffs testimony regarding the accident.

Guest House filed an answer to Ms. Wilson’s appeal whereby it asserted that if this appellate court reverses the trial court’s judgment and finds that Ms. Wilson did prove that an accident existed, that the judgment in favor of Guest House should still be affirmed as the trial court erred in finding that Ms. Wilson did not engage in action/inaction in violation of La. R.S. 23:1208 and 1208.1, resulting in forfeiture of all benefits.

LAW AND DISCUSSION

Factual findings in a workers’ compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So.2d 551, 556. For an appellate court to reverse a trial court’s factual finding, it must find from the record that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly wrong. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings |4are based on the credibility of witnesses, the fact finder’s decision to credit a witness’s testimony must be given “great deference” by the appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Thus,'when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Id.

In order for a claimant to be entitled to recover workers’ compensation benefits, she must prove, by a preponderance of the evidence, that a work-related accident occurred and that an injury was sustained. A claimant’s testimony alone may be sufficient to discharge this burden of proof, provided two elements are satisfied: (1) no other evidence discredits or casts serious doubt upon the worker’s version of the incident, and (2) the worker’s testimony is corroborated by the circumstances following the alleged incident. Jackson v. Savant Insurance Company, 96-1424, p. 3 (La.App. 1st Cir.5/9/97), 694 So.2d 1178, 1180. See also Bruno v. Harbert International Inc., 593 So.2d 357, 361 (La.1992).

In workers’ compensation eases, disability is presumed to be the result of the work-related accident if the claimant was in good health before the accident, and the symptoms of the disability appear after the accident and continue to manifest themselves. This presumption is available when sufficient medical evidence is introduced to show a reasonable possibility of a causal connection between the disability and the work-related accident, or that the nature of the accident raises a natural inference that such a causal connection exists. LeBlanc v. Cajun Painting Inc., 94-1609, p. 10 (La.App. 1st Cir.4/7/95), 654 So.2d 800, 807, writs denied, 95-1706, 95-1655 (La.10/27/95), 661 So.2d 1349, 1350. Thus, where there is proof of an accident and a following disability, without an inter-vening cause, it is presumed that the accident caused the disability. Jackson v. Savant Insurance Company, 694 So.2d at 1180. Moreover, the fact that a claimant does not realize or diagnose the full extent of his injury immediately after an accident should not bar him from recovery. Middleton v. International Maintenance, 95-0288, pp. 6-7 (La.App. 1st Cir.10/6/95), 671 So.2d 420, 424, writ denied, 95-2682 (La.1/12/96), 667 So.2d 523.

Thus, in determining whether a worker has shown by a preponderance of the evidence that an injury-causing accident occurred in the course and scope of employment, the trier of fact is expected to focus upon the issue of credibility because, absent contradictory circumstances and evidence, a claimant’s testimony is accorded great weight. See Bruno v. Harbert International Inc., 593 So.2d at 361. The determinations by the workers’ compensation judge as to whether the claimant’s testimony is credible and whether the claimant has discharged his burden of proof are factual determinations and will not be disturbed upon review in the absence of manifest error or unless clearly wrong. Id.

At issue in the instant case is whether Ms. Wilson showed that a work-related accident caused her back injury. The record provides conflicting testimony and evidence of the events surrounding Ms. Wilson’s actions right after the alleged accident. Ms. Wilson testified initially that she reported the incident immediately following its occurrence. Upon cross examination, it was revealed that Ms. Wilson went to another patient’s room across the hall and sat for thirty minutes until she was requested by a supervisor to change that patient’s clothing. Contrary to Ms. Wilson’s initial testimony, she did in fact assist this other patient, changing her clothes and putting her into bed. She then headed to the dining room where she alleged that she reported her injury to Milton Hart, a licensed practical nurse employed by Guest House at the time. Ms. Wilson stated that Mr. Hart was fooling around in a wheelchair in the dining area and did not document her report for a few hours thereafter, only after her urging. She stated that Mr. Hart informed her that she would not be sent to a doctor. Ms. Wilson noted that Mr. Hart then called the director of nursing and asked her what to do. He was informed that he was to fill out some papers and have Ms. Wilson see Dorothy Rushing, the nursing assistant supervisor at Guest House, the following morning and then Ms. Rushing would send her to a doctor.

| r,Ms. Wilson testified she did see Ms. Rushing the next morning, but Ms. Rushing told her it made no sense to see a doctor. Ms. Wilson thus did not see a doctor at that time, but two days later went to the emergency room because her back was hurting her. Afterwards, Ms. Wilson contacted Guest House and was told to see Dr. Culasso. Ms. Wilson saw Dr. Culasso and, after treatment, was prescribed light duty work. Ms. Wilson chose not to comply as she felt that she was still not up to working even at light duty status due to her injury.

Both Ms. Rushing and Mr. Hart testified to the contrary. Mr. Hart testified that part of his duties at Guest House include completing accident reports for nursing assistants. If an accident occurs, Mr. Hart stated that he is required to fill out an accident report, which will go to administration. Typically, he would call Dorothy Rushing. On December 7, 1999, he recalled Ms. Wilson coming to his desk and stating that she had hurt herself transferring a patient to bed. He completed a report that night. He denied that he was playing around in a wheelchair in the dining room when Ms. Wilson approached him. He also denied refusing to complete an accident report or denying her medical treatment. He indicated that Ms. Wilson did not appear injured or in pain. After she reported her accident to him, she continued with her duties.

Ms. Rushing testified that, usually if somebody requests treatment as a result of injuring himself on the job, that person is afforded treatment without exception. Ms. Rushing stated that she did not receive a phone call on December 7, 1999. The following day Ms. Wilson came to Ms. Rushing’s office in the morning to report that she had been hurt and wanted to get medical attention. Ms. Rushing stated that she then put into motion the process for Ms. Wilson to receive treatment by calling ahead to the hospital, telling them Ms. Wilson was coming and that she had claimed to have injured her back the night before.

Ms. Rushing said that when Ms. Wilson was released to light duty by the doctor, Ms. Rushing issued her a paper drawn up with some light duty tasks on it. Ms. Wilson signed the sheet, left the office, returned to the office and informed Ms. Rushing that she could not perform those tasks. Ms. Rushing suggested |7that Ms. Wilson take the form to the doctor and have the doctor indicate which tasks she could not do. Ms. Wilson did not return.

Guest House alleged that Ms. Wilson provided false information on the post-hire medical history questionnaire regarding whether or not she had a previous back injury. Ms. Wilson checked “No” to previous back injury on the post-hire medical questionnaire when, in fact, she suffered back injury while working at Comfort Inn, her previous place of employment. She received workers’ compensation benefits due to that injury. Ms. Wilson asserted that she only checked “No” on the questionnaire at the direction of Ms. Dorothy Rushing. Ms. Wilson indicated that she filled both the questionnaire and the application out at the same time and that when she checked “Yes” in response to previous back injury, Ms. Rushing tore up the questionnaire and urged Ms. Wilson to check “No,” as Ms. Rushing could not hire Ms. Wilson with a previous back injury.

Ms. Rushing denied having advised Ms. Wilson in this manner. She stated that the application and the questionnaire are never given to an applicant at the same time. She also stated that Guest House has employees working there with previous back injuries. She stated that she does request that such an applicant furnish a medical release signed by a doctor so that she can then consider hiring them. This testimony was also supported by the testimony of Jeff Burch, the administrator of Guest House.

As previously indicated, the determinations by the OWC judge as to whether Ms. Wilson’s testimony was credible, whether Ms. Rushing or Mr. Hart’s testimony was credible, and whether Ms. Wilson discharged her burden of proof are factual determinations that will not be disturbed on review in the absence of manifest error. In this case, the OWC judge obviously did not find Ms. Wilson’s testimony to be more credible than that of the witnesses presented by Guest House. Not only were Ms. Wilson’s actions immediately following the alleged incident questionable with respect to a purported back injury, but also her credibility was tainted by her prior false answers on the post-hire questionnaire regarding a previous back injury. As a result, the OWC judge determined that no work-related accident was proven to have occurred, causing injury to Ms. Wilson. |s Based upon a complete review of the record, we cannot say that the OWC judge was clearly wrong in finding that Ms. Wilson did not prove, by a preponderance of the evidence, that she was injured in a work-related accident during the course and scope of her employment.

CONCLUSION

For the above and foregoing reasons, the judgment of the OWC judge dismissing Ms. Wilson’s claim for workers’ compensation benefits is affirmed. Costs associated with this appeal are assessed against Georgia Wilson.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 2133 recites, in pertinent part, the following: "The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer.”

      . As a result of this finding, we pretermit addressing the issue raised by Guest House regarding La. R.S. 23:1208 and 1208.1 violations.


text:
    B.F. SAMUEL, Sr. d/b/a Upstream Shopping Center v. COMMUNITY COFFEE COMPANY, INC. d/b/a C.C.’s Gourmet Coffeehouse.
    No. 2001 CA 2267.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.
    Writ Denied Dec. 19, 2002.
    Samuel A. Giberga, Joseph C. Peiffer, New Orleans, for Appellant Defendant Community Coffee Co., d/b/a C.C.’s Gourmet Coffeehouse.
    Lamar M. Richardson, Mandeville, for Appellee Plaintiff B.F. Samuel, Sr., d/b/a Upstream Shopping Center.

      Before: FOIL, FOGG and KLINE, JJ.
   J^FOIL, J.

In this appeal, Community Coffee Company, L.L.C. d/b/a C.C.’s Gourmet Coffeehouse challenges the trial court’s grant of summary judgment in favor of B.F. Samuel, Sr. d/b/a Upstream Shopping Center on the issue of Community’s liability under a lease contract. For the reasons that follow, we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

Community Coffee hired Neal Hixon to assist in identifying potential sites in the New Orleans area to operate a C.C.’s Gourmet Coffeehouse. Mr. Hixon found a possible site in the Upstream Shopping Center in Jefferson, Louisiana, and began negotiations with Lamar Richardson, counsel for Upstream’s owner, B.F. Samuel, Sr. By letter to Mr. Hixon dated August 6, 1998, Mr. Richardson (on behalf of Mr. Samuel) offered to lease the site to Community. The letter stated that Community would be responsible for removing an existing structure on the site and replacing it “with a 2,000 foot C.C. Gourmet Coffeehouse structure reasonably suitable to” Mr. Samuel. Mr. Hixon made a minor change to the terms of the letter, signed it as “ACCEPTED” by Community, and returned it to Mr. Richardson. Mr. Lamar wrote a second letter, dated August 12, 1998, to Mr. Hixon, indicating Upstream’s acceptance of Mr. Hixon’s “counteroffer,” and informing Mr. Hixon that Mr. Lamar would prepare the proper lease documents and forward them “upon receipt of the plans for the C.C. Gourmet Coffeehouse structure to be attached as an exhibit.” More documents were exchanged between Mr. Richardson and Mr. Hixon, including a “footprint” of where the coffeehouse would be situated on the site.

Ultimately, Community decided against the lease of the Upstream site and refused to sign the lease documents. Mr. Samuel filed the instant suit, claiming Mr. Hixon’s “counteroffer,” as evidenced by his signature on the August 6, 1998 letter, and Mr. Richardson’s “acceptance,” as evidenced by his August 12, 1998 letter, constituted a lease contract, by which 13Community was bound. Mr. Samuel filed a motion for summary judgment on the issue of Community’s liability, and Community filed a cross motion for summary judgment.

After a hearing, the trial court signed a judgment, granting Mr. Samuel’s motion and concluding Community was liable to him for all damages caused by Community’s breach, such damages to be determined at trial. The trial court denied Community’s motion for summary judgment. In reasons for judgment, the trial court indicated there was no genuine issue of fact as to Community’s liability because, for purposes of the motions for summary judgment, Community had conceded the agency of Mr. Hixon. The trial court further determined the lease contained a determinable object, a “Gourmet Coffeehouse,” despite language subjecting the construction of the building to Mr. Samuel’s reasonable approval. Community appealed.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. A motion for summary judgment should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Butz v. Lynch, 99-1070, 99-1071 (La.App. 1 Cir. 6/23/00), 762 So.2d 1214, 1217, writ denied, 00-2660 (La.11/17/00), 774 So.2d 980.

DISCUSSION

In its first assignment of error, Community contends the trial court erred in determining the lease contract had a definite object. The essential elements of a lease contract are the thing, the price, and the consent. La. C.C. art. 2670; Willis v. Ventrella, 95-1669 (La.App. 1 Cir. 4/4/96), 674 So.2d 991, 994, writ denied, 96-1937 (La.11/1/96), 681 So.2d 1266. Further, the object of a contract must be determined at least as to its kind. La. C.C. art.1973. Based on the exchange of documents between the parties, the trial court concluded the lease herein contained a determinable object — the lease of a gourmet coffeehouse. We conclude the trial court was correct in this regard and correctly granted summary judgment on this issue.

In its third assignment of error, Community contends the trial court erred in concluding there were no disputed factual issues regarding the agency relationship between Community and Mr. Hixon. A principal is bound to perform the contract that his mandatary, acting within the limits of his authority, makes with a third person. La. C.C. art. 3020. However, a third party may not blindly rely on the assertions of the mandatary, but has a duty to determine, at his peril, whether the mandate purportedly granted by the principal permits the proposed act by the mandatary. Clampit v. Interstate Dodge, Inc., 34,125 (La.App. 2 Cir. 11/15/00), 771 So.2d 311, 315, writ denied, 00-3412 (La.2/2/01), 784 So.2d 649.

After a thorough review of the record, we conclude Community did not concede Mr. Hixon’s authority to contractually bind the company. The summary judgment evidence indicates there are disputed facts regarding the extent of Mr. Hixon s authority. Although Community admitted before the trial court that Mr. Hixon was hired as a consultant to assist in identifying potential sites for the location of its coffeehouse, it clearly denied he had the authority to enter into any binding agreement on its behalf. A trial on the merits should be conducted to determine the facts surrounding this situation. Accordingly, we reverse the trial court’s grant of summary judgment in favor of Mr. Samuel. Costs of this appeal are assessed to Mr. Samuel.

REVERSED.

Judge William F. Kline, Jr., Retired, serving Pro Tempore by special appointment of the Louisiana Supreme Court.

      . Based on our resolution of Community’s first assignment of error, we need not address assignment of error number two.


author: JgKUHN, J.

text:
    Thomas Dude SAVOY and Rita Savoy v. TERREBONNE MEN’S CARNIVAL CLUB, INC., D/B/A the Krewe of Hercules, TIG Insurance Company, Terrebonne Parish Consolidated Government, Jerry Larpenter, Terrebonne Parish Sheriff's Department and Allstate Insurance Company
    No. 2001 CA 1441.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 2, 2002.
    Writ Denied Jan. 10, 2003.

      Stephen P. Callahan, Douglas Green-burg, Houma, Counsel for Plaintiffs/Appellants Thomas Dude Savoy and Rita Savoy.
    William F. Dodd, Houma, Counsel for Defendant/Appellee Jerry Larpenter, Sheriff for the Parish of Terrebonne.
    Randall L. Bethancourt, Houma, Counsel for Defendant/Appellee Allstate Insurance Company.
    Jerry W. Sullivan, Metairie, Counsel for Defendants/Appellees Terrebonne Men’s Carnival Club, Terrebonne Parish Consolidated Government, and TIG Insurance Company.
    Before: KUHN, DOWNING, and LANIER, JJ.

      . The Honorable Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeal, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   JgKUHN, J.

While Thomas Dude Savoy was driving a convertible in a Mardi Gras parade, a man grabbed some parade throws from the back seat. Mr. Savoy responded by exiting the car and physically confronting the man. During the confrontation, he sustained serious injury to his leg and foot. Mr. Savoy and his wife, Rita Savoy, filed this personal injury suit against: 1) Terre-bonne Men’s Carnival Club, Inc., d/b/a The Krewe of Hercules, the organization that presented the parade; 2) TIG Insurance Company, the Krewe’s alleged insurer; 3) Terrebonne Parish Consolidated Government (“the Parish”), the local governing authority; 4) Jerry Larpenter, the Sheriff of Terrebonne Parish (“the Sheriff’); and 5) Allstate Insurance Company, an insurer alleged to provide coverage to the owner of the car driven by Savoy. Allstate filed a peremptory exception raising the objection of no cause of action. The Krewe, TIG, the Parish, and the Sheriff filed motions for summary judgment based on the deposition testimony of Mr. Savoy and others who had witnessed the incident. The trial court rendered judgment in favor of the defendants, dismissing all of the Savoys’ claims. The Savoys have appealed. We reverse that portion of the judgment sustaining Allstate’s exception but otherwise affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

The facts pertaining to the incident are largely undisputed. Savoy testified that he was a member of a marching club that participated annually in the Krewe of Hercules parade held in Houma, Louisiana. During the February 1999 parade, Joe Champagne accompanied the marching club, driving his 1915 Pierce Arrow. Savoy rode in the car with him. Before the parade started, the men stowed their beads and other throws in the 13back seat of the car. Along the parade route, Champagne asked Savoy to drive the car so that he could exit the car to find a restroom. Later, when Savoy had stopped the car and was handing out beads, an unidentified man approached the car with a small child on his shoulders. Savoy handed the child some beads. Moments later, the man returned without the child, and Savoy saw him grab some of the parade throws from the back seat of the car. The man began cursing when he realized that Savoy had seen him take the throws. Savoy exited the vehicle to confront the man, and according to Savoy, the man continued cursing and was swinging punches at him. Savoy testified that he grabbed the man around his neck and walked towards the front of the vehicle. The man continued to strike Savoy while trying to break free from his grip. At some point, Savoy fell to the ground, sustaining injuries to his leg and foot. He was transported by ambulance to a nearby emergency room for treatment and underwent surgery the next day.

Richard Comeaux, who attended the Krewe of Hercules parade as a spectator, witnessed the incident involving Savoy from about 30 to 40 yards away. He had noticed the other man involved in the incident before the parade began. Comeaux described him as “very drunk [and] very obnoxious.” Comeaux also testified that before the incident with Savoy, this man had been “taunting the little girls in the band, and the police asked him to stop and warned him” but had not arrested him. Comeaux later witnessed the man grab beads from the back of the car and watched Savoy exit the car.

Mark Marchand also witnessed the incident from the parade sidelines. He saw the unidentified man ask for beads and recounted that when Savoy ignored him, the man got mad and stole a bunch of beads and took off running. Marchand described that Savoy got out of the car and caught the man about 20 feet in front of the car by grabbing him by the head. Then, he saw the men trip and fall to the ground, with other people in the crowd falling on top. As Marchand approached Savoy, another man had picked him up and was 14helping him walk. The man who had stolen the beads had escaped. Marchand also testified that he had seen the man acting rudely before the incident with Savoy.

Walter Safely, who attended the parade with Marchand, witnessed the unidentified man reach into the car to take more beads. He recalled that when the man ran away, Savoy jumped out of the car and chased him. Marchand stated that when Savoy reached the man, he put him “in a headlock and rode him down.” He described that the altercation took place 20 to 30 yards from the car.

Based on this evidence, the trial court concluded that: 1) the Sheriff and his officers were not negligent because they had violated no duty owed to Mr. Savoy; 2) the Krewe was not liable because La. R.S. 9:2796, which limits liability for losses connected with Mardi Gras parades and festivities, was applicable and because the Krewe had no duty to protect against the unforeseeable events that resulted in Mr. Savoy’s injury; and 3) no liability resulted from the Parish’s actions of erecting barriers in certain places along the parade route. The trial court also concluded that the Savoys failed to state a cause of action against Allstate. The Savoys have appealed alleging that the trial court erred in each of these findings.

II. ANALYSIS

A. The Motions for Summary Judgment

An appellate court reviews a trial court’s decision to grant a motion for summary judgment de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2); Lee v. Grimmer, 99-2196 (La.App. 1st Cir.12/22/00), 775 So.2d 1223, 1225. The motion should be granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The initial burden of proof is on the moving party. If, however, the moving party will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, and points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact, and summary judgment should be granted. Perry v. City of Bogalusa, 2000-2281 (La.App. 1st Cir.12/28/2001), 804 So.2d 895, 899.

1. Claims against the Krewe and TIG

The petition alleges that the Savoys’ injuries were caused by the Krewe’s failure to: 1) exercise proper supervision and control, 2) select the most safe and secure parade route, 3) warn participants of unreasonably dangerous conditions along parade route, 4) require the Sheriff and the Parish to provide pedestrian control barriers, and 5) require a sufficient number of officers to provide a sufficient presence of supervisory authority. The Savoys urge that the trial court erred in granting the motion for summary judgment filed by the Krewe and TIG based on the immunity provided by La. R.S. 9:2796.

At the time of the incident, La. R.S. 9:2796 provided:

|(;A. Notwithstanding any other law to the contrary, no person shall have a cause of action against any krewe or organization which presents Mardi Gras parades or other parades, whether held on a public or private street or waterway, or in a building or other structure, or any combination thereof, connected with preLenten festivities or the Holiday in Dixie Parade, or against any nonprofit organization chartered under the laws of this state, or any member thereof, which sponsors fairs or festivals that present parades, for any loss or damage caused by any member thereof or related to the parades presented by such krewe or organization, unless said loss or damage was caused by the deliberate and wanton act or gross negligence of the krewe or organization. The provisions of this Section shall not be intended to limit the liability of a compensated employee of such krewe or organization for his individual acts of negligence.
B. Any person who is attending or participating in one of the organized parades of floats or persons listed in Subsection A of this Section, when the parade begins and ends between the hours of 6:00 a.m. and 12:00 midnight of the same day, assumes the risk of being struck by any missile whatsoever which has been traditionally thrown, tossed, or hurled by members of the krewe or organization in such parades held prior to the effective date of this Section. The items shall include but are not limited to beads, cups, coconuts, and doubloons unless said loss or damage was caused by the deliberate and wanton act or gross negligence of said krewe or organization.

The Savoys raise only one issue regarding the application of this immunity statute. They argue that the trial court interpreted the statute too broadly and that the immunity provided by the statute does not extend to all risks and losses associated with parading. They assert, rather, that the statute provides immunity from liability only when an item thrown from a float injures someone. In essence, the Savoys argue that the scope of the immunity provided in Subsection A should extend only to those damages that result from the risk identified in Subsection B, i.e., being struck by a Mardi Gras throw.

In Binkley v. Landry, 2000-1710, 811 So.2d 18 (La.App. 1st Cir.9/28/2001), writ denied, 2001-2934 (La.3/8/2002), 811 So.2d 887, a spectator was injured when a pickup truck left a parade route and struck a spectator. When a personal injury suit was filed on the spectator’s behalf against a non-profit krewe organization, this court determined that the immunity of Subsection A was applicable. The court generally found that the l7expansive language of La. R.S. 9:2796(A) was intended to cover a broad spectrum of risks and losses associated with parading. Binkley v. Landry, 811 So.2d at 22.

Further, the specific argument urged by the Savoys was considered and rejected in the case of Graves v. Krewe of Gladiators, Inc., 2001-0986 (La.App. 4th Cir.6/27/2001), 790 So.2d 155, wherein the court applied La. R.S. 9:2796 and found that a carnival krewe was immune from liability for the personal injury claims of a krewe member, who injured his finger on a makeshift ladder during a pre-parade party held on a carnival float. The court concluded that the immunity addressed in Subsection A of La. R.S. 9:2796 was not limited to the claims raised in Subsection B.

In reaching that conclusion, the Graves court quoted language from one of its earlier decisions, Gardner v. Zulu Social Aid and Pleasure Club, Inc., 98-1040 (La.App. 4th Cir.2/10/99), 729 So.2d 675, 678, writ denied, 99-0697 (La.5/7/99), 740 So.2d 1285, which employed basic statutory interpretation principles in interpreting the scope of the immunity of Subsection A:

To limit the effect of 9:2796 to damages sustained by onlookers who are injured by things thrown from floats would render 9:2796 A meaningless. Such damages are specifically covered by paragraph “B.” We must assume that the legislature would not have enacted 9:2796 A without some additional purpose. The expansive language in paragraph “A” referring to “any loss or damage related to parades” is intended to cover the broad spectrum of risks and losses normally associated with parading. ...

In concluding that the legislature intended this immunity to extend beyond the risk of injury caused by items thrown from floats, the Graves court found that the legislature enacted the immunity statute to assist carnival krewes and organizations that were having difficulty obtaining liability insurance for parade activities. Graves v. Krewe of Gladiators, Inc., 790 So.2d at 159.

When interpreting a law, a court must presume that every word, sentence or provision in the law was intended to serve some useful purpose, that some effect is to be | «given to each such provision, and that no unnecessary words or provisions were used. When possible, the court is bound to adopt a construction of the provision in question that harmonizes and reconciles it with other provisions. Bunch v. St. Francisville, 446 So.2d 1357, 1360 (La.App. 1st Cir.1984). If we were to adopt the Savoys’ interpretation of the immunity provided by La. R.S. 9:2796, we likewise find that Subsection A would be rendered meaningless.

Thus, applying the immunity statute to the present case, we conclude that the trial court properly determined that the risk of injury resulting from an altercation between a parade spectator and a parade participant is encompassed within the scope of the immunity addressed in Subsection A. Further, we conclude that the evidence presented by the Krewe in support of its motion for summary judgment establishes that the Krewe was an organization that presented a Mardi Gras parade, Mr. Savoy’s injuries were parade-related, and they were not the result of the Krewe’s gross negligence. Furthermore, notwithstanding the application of the immunity statute, we also agree with the trial court that any duty owed by the Krewe to Savoy did not encompass the risk of protecting him from injury that primarily resulted from his own physical aggression when encountering a parade spectator. There are no issues of material fact regarding these issues and the trial court properly concluded that the Krewe and its insurer, TIG, were entitled to judgment as a matter of law.

2. Claims against the Sheriff and the Parish

The petition alleged that the Sheriff and the Parish are liable because the area in question was not adequately patrolled by law enforcement officers and was not barricaded. On appeal, the Savoys allege that the record establishes a material issue of fact regarding whether the Sheriff or the Parish assumed a duty to control the crowd.

laMr. Savoy testified that although he thought a police car was in the procession in front of his marching group, he did not recall any law enforcement officers coming to the scene after he was injured. He also did not recall the presence of any barricades in the area where the confrontation occurred.

Comeaux testified that there were no barricades and no police officers stationed in the area. He acknowledged, however, that police officers had occasionally patrolled the area and that a police officer was stationed to the north of the area where he stood. Safely and Marchand also testified that no police officers had been stationed in the area where they stood but they were also aware that police officers were stationed in other areas along the parade route. Safely estimated that police officers arrived in the vicinity about five minutes after the incident.

Law enforcement officers have a duty to act reasonably to investigate possible violations of the law and to protect citizens who may be harmed by a violation. Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606, 614. Thus, because law enforcement officers were stationed along the parade route, they had a duty to investigate disturbances as they arose along the parade route. But regardless of the methods and techniques employed by these law enforcement officers, they did not have a duty to ensure the safety of all persons in the parade crowd.

The record establishes that law enforcement officers were patrolling the area in question and that officers were stationed nearby. Comeaux’s testimony establishes that the officers had issued a warning to the man when they had earlier witnessed him being rude or offensive but the record does not establish that any officer actually witnessed the confrontation between Savoy and the parade spectator. Thus, the Savoys presented no evidence showing that any of the officers failed to properly respond to any violations of |inlaw. To defeat the motion for summary judgment, the Savoys needed to present such evidence to show that they could satisfy then-burden at trial.

And again, we recognize that whatever duty may have been owed by the Parish or the Sheriff to Savoy, as a parade participant, did not encompass the risk of injury resulting from his physically aggressive response to an unruly parade spectator.

We also find no liability arising from the failure to erect a barricade because, to do so, we would have to conclude that the Parish or the Sheriff was required to erect a barricade along the entire parade route. We find no basis for imposing such a duty.

The trial court properly concluded that there were no material issues of fact regarding the liability of either the Sheriff or the Parish and that they were entitled to judgment as a matter of law.

B. Allstate’s Exception

On appeal, the Savoys argue that the petition states a cause of action because it alleges that Mr. Savoy’s injuries were sustained in connection with the vehicle. Allstate responds that the petition fails to allege any acts of omission and/or commission on its part and fails to state how Mr. Champagne was a responsible party in this incident.

A court of appeal reviews de novo a lower court’s ruling sustaining a peremptory exception raising the objection of no cause of action because the exception raises a question of law and because the lower court’s decision is generally based only on the sufficiency of the petition. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170 (La.3/2/99), 739 So.2d 748, 756. The function of an objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1235 (La.1993). The burden of showing that the plaintiff has lufailed to state a cause of action is on the exceptor. City of New Orleans v. Board of Directors of Louisiana State Museum, 739 So.2d at 755.

For the purposes of determining the issues raised by the exception, the court must presume that the well-pleaded facts in the petition are true. Strasner v. State, 99-1099 (La.App. 1st Cir.6/23/2000), 762 So.2d 1206, 1212-1213, writ denied, 2000-2195 (La.10/27/2000), 772 So.2d 125. No evidence may be introduced to support or controvert the peremptory exception raising the objection of no cause of action. La. C.C.P. art. 931. Thus, the court must determine whether plaintiff is legally entitled to the relief sought based on the facts asserted in the petition. Strasner v. State, 762 So.2d at 1213.

The Savoys’ petition sets forth factual allegations regarding the incident that transpired between Mr. Savoy and the unidentified parade spectator. And although the allegations of the petition do not specify the type of policy that Allstate issued to Champagne, the petition generally alleges that Allstate provided insurance coverage to the Champagne vehicle “which covered the incident” that forms the basis of this suit. We cannot assume that the coverage provided by this policy would provide coverage for only injury that results from Mr. Champagne’s liability because the allegations of the petition do not establish the type of policy that is involved or the scope of its coverage. While we cannot contemplate any particular policy language that would provide coverage for the incident described in the petition, we find that the petition states a cause of action based on its allegation of coverage. We recognize there is a vast amount of jurisprudence interpreting various types of insurance coverage and analyzing whether certain conduct arises out of the “use” of a vehicle. But the analysis in these cases hinges on the particular language of the policies being interpreted. In this case, we cannot consider policy language in resolving whether the petition states a cause of action. Thus, this body of jurisprudence is not determinative.

haBased on the current posture of this case, we are compelled to reverse that portion of the trial court’s judgment, which sustained the peremptory exception raising the objection of no cause of action and dismissed the Savoys’ claims against Allstate. We note that Allstate could likely have been successful in challenging this suit if it had filed a motion for summary judgment and introduced its policy. If Allstate had used that procedure, the trial court could have analyzed the policy language and made a conclusive determination regarding insurance coverage.

III. CONCLUSION

For these reasons, that portion of the trial court’s judgment which sustains Allstate’s exception and renders judgment in favor of Allstate is reversed. Otherwise the judgment is affirmed. One-half of the appeal costs is assessed against the Savoys and the other half is assessed against Allstate.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

      . Originally, plaintiffs had also named the Terrebonne Parish Sheriffs Office as a defendant but later amended their petition and excluded this defendant. In an amending petition, plaintiffs also named XYZ Insurance Company, an unidentified insurer believed to provide liability insurance coverage to Lar-penter, as a defendant. This party was never identified and is not pertinent to this appeal. Mrs. Savoy alleges that she has lost the love and affection of her husband and has suffered mental anguish.

      . The trial court found that the Parish was immune based on La. R.S. 9:2798.1, which provides that public entities and their officers are immune for discretionary acts performed within the course and scope of their lawful powers and duties.

      . Amendments to the language of Subsection A, enacted pursuant to Acts 1999, No. 1264, § 1 and Acts 2001, No. 504, § 1, are not pertinent to this appeal.

      . Based on our analysis, we pretermit a discussion of the applicability of La. R.S. 9:2798.1.