author: 1 ¡..GUIDRY, J.

text:
    Debra Tonzi PERRIN v. Succession of Vincent R. PERRIN, Jr.
    No. 2002 CA 1875.
    Court of Appeal of Louisiana, First Circuit.
    June 27, 2003.
    Marti Tessier, Mandeville, Counsel for Plaintiff-Appellant Debra Tonzi Perrin.
    Edward J. McCloskey, Joseph L. Alphonse, New Orleans, Counsel for Defendant-Appellee Joyce Menant Perrin, individually and as Administratrix of the Succession of Vincent R. Perrin, Jr.
    John J. Messina, Kenner, Counsel for Defendants-Appellees Linda Perrin Sta-penhorst, Stephanie Perrin, Leslie Perrin, Deborah Perrin Wheeler and Dana Perrin Walton.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   1 ¡..GUIDRY, J.

In this property dispute, the plaintiff appeals a judgment sustaining a peremptory exception raising the objection of no cause of action. Having reviewed the plaintiffs original and amended petitions on their face, we reverse in part and remand.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Debra Tonzi Perrin, purchased a piece of property located at 2627 Lake-shore Drive in Mandeville, Louisiana, on May 17, 1997. A few months later, on February 20, 1998, Vincent Perrin Jr., the plaintiffs father-in-law, purchased some undeveloped property located at 2629 Lakeshore Drive. Thereafter, the plaintiff and her husband separated, and she decided to sell the house and property located at 2627 Lakeshore Drive, except for a portion of the land in which she retained ownership.

By a deed of cash sale executed on October 1, 1999, plaintiff sold to Vincent Perrin Jr. that portion of the land at 2627 Lakeshore Drive she had .retained for $3,500. Shortly after this conveyance, Vincent Perrin Jr. died. Among the property listed in his succession was the immovable property located at 2629 Lakeshore Drive and the property conveyed in the October 1,1999 cash sale.

On March 14, 2001, plaintiff filed a petition for damages, declaratory judgment, and for the return of immovable property against the Succession of Vincent R. Per-rin Jr. In the petition, the plaintiff alleged the decedent purchased the property located at 2629 Lakeshore Drive on behalf of the plaintiff and her husband, Vincent Per-rin III, and that the down payment of $33,000 and monthly mortgage payments were all paid by the plaintiff and her estranged husband.

She also alleged the October 1, 1999 cash sale was a nullity because the decedent never paid the purported consideration of $3,500. Rather, she asserted, an agreement existed between the plaintiff and the decedent that he would combine lathe 2629 Lakeshore Drive property with the property received as a result of the October 1, 1999 cash sale, sell the combined property, pay off existing encumbrances against the property, and divide the remaining proceeds between the plaintiff and her estranged husband.

The plaintiff claimed she suffered mental anguish, loss of income, humiliation, embarrassment, and pain and suffering as a result of the fraud perpetrated by the administratrix and heirs of the decedent by including the disputed property in the decedent’s succession. Consequently, she requested damages and attorney fees for the injuries suffered by her in addition to the following specific requests for relief: (1) judgment declaring her the owner of the property located at 2629 Lakeshore Drive, including that portion of 2627 Lake-shore Drive that she conveyed to the decedent; (2) alternatively, that the October 1, 1999 cash sale be set aside as lesionary since the purported consideration of $3,500 was not paid to the plaintiff by the decedent; or (3) that she be awarded the value of the property in dispute in the event the court determines that the plaintiff is not entitled to be recognized as the owner of all or part of the property in dispute.

In response to the plaintiffs petition, the administratrix of the decedent’s succession filed exceptions raising the objections of no cause of action and failure to join indispensable parties. Following a hearing on the exceptions raised by the administra-trix, judgment was rendered sustaining the exceptions and ordering the plaintiff to amend her petition to name the heirs of the decedent’s succession as defendants in her suit. Plaintiff amended her original petition to specifically name the heirs and the administratrix as defendants in the suit.

Thereafter, the decedent’s widow, individually and as administratrix of the succession, and the heirs of the decedent (collectively the “defendants”) excepted to the plaintiffs amended petition raising objections of vagueness, peremption (to |4the claim of lesion), prescription (to the claim for damages), no cause of action, and no right of action. A hearing on the exceptions was held on November 6, 2001, and judgment was rendered sustaining the exceptions objecting to vagueness and per-emption. The remaining exceptions were denied, and the plaintiff was again ordered to amend her petition to remove the objection of vagueness.

On December 6, 2001, the plaintiff filed a second amended petition wherein she reasserted all previous claims, but described with greater particularity and distinction the property in dispute. The defendants excepted to the plaintiffs second amended petition re-urging the objection of no cause of action, arguing that the plaintiff failed “to allege any kind of written agreement between the parties” and, therefore, was precluded from asserting a claim against immovable property at issue. A hearing on the re-urged exception raising the objection of no cause of action was held on April 30, 2002, at which time the trial court rendered judgment in favor of the defendants sustaining the exception. The plaintiff then filed a motion for new trial that was denied by the trial court, and this appeal followed.

DISCUSSION

By this appeal, the plaintiff contends that the trial court erroneously sustained the exception. The plaintiff argues that the trial court improperly considered whether the plaintiff could produce evidence in support of her contentions rather than evaluating her claims on the face of the petition.

In ruling on a peremptory exception pleading the objection of no cause of action, the court must determine whether the law affords any relief to the claimant if the factual allegations in the petition and annexed documents are proven at trial. Cardinale v. Stanga, 01-1443, p. 3 (La. App. 1st Cir.9/27/02), 835 So.2d 576, 578. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the reviewing court IfiConduets a de novo review because the exception raises a question of law, and the lower court’s decision is based only on the sufficiency of the petition. B & C Electric, Inc. v. East Baton Rouge School Board, 02-1578, p. 2 (La.App. 1st Cir.5/9/03), 849 So.2d 616.

The hearing transcript reveals that the trial court sustained the exception raising the objection of no cause of action based on the plaintiffs failure to allege in her petition that a written agreement existed whereby ownership of the property in dispute was conveyed to the plaintiff. A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath. La. C.C. art. 1839. When the law requires a contract to be in written form, the.contract may not be proved by testimony or by presumption, unless the document has been lost, destroyed, or stolen. La. C.C. art. 1832; Cardinale, 01-1443 at 5, 835 So.2d at 579.

In the case before us, the plaintiff asserts repeatedly throughout her various petitions that “an agreement” was made between her and the decedent as to the disposition of the property in dispute; namely, that the property would be sold, all debts encumbering the property cleared, and the remaining proceeds distributed jointly to the plaintiff and her estranged spouse. A thorough reading of all the petitions filed by the plaintiff indeed reveals that the trial court was correct in finding that the plaintiff never asserted that a written agreement existed that supports the plaintiffs claimed ownership interest in the property at issue.

There are actually two pieces of property in dispute — one in which the plaintiff never held a titled interest and a second in which she held a titled interest that she later conveyed to the decedent. As to the property in which the plaintiff never held a titled interest, the undeveloped property located at 2629 Lakeshore |fiDrive, the plaintiff asserts in her petitions that she has an ownership interest in the property because the down payment and the monthly mortgage payments were paid with money provided to the decedent by the plaintiff and her estranged husband. She further alleges that due to the type of business operated by her estranged husband, a collection agency, it was arranged that ownership of the property would be titled in the name of the decedent.

In Mitchell v. Clark, 448 So.2d 681 (La. 1984), the plaintiff, who had purchased the property at issue and instructed the seller to name her nephew as titleholder, attempted to prove by parol evidence that she did not intend to convey the property to her nephew until she died. The supreme court held that although parol evidence is admissible by a vendor to show that the sale did not take place or that the sale was induced by fraud, parol evidence was not admissible to prove ownership is held by one who never owned the property or to show that the vendee was actually someone other than the person named in the act of sale. Mitchell, 448 So.2d at 685. The supreme court did note that written evidence is admissible to prove any rights with respect to immovable property. Mitchell, 448 So.2d at 686.

Thus, in the case before us, because the plaintiff makes no allegation in her petition that she has written evidence to substantiate the agreement between her and the decedent as to the property located at 2629 Lakeshore Drive, the trial court was correct in maintaining the exception.

The plaintiff alleges that the October I, 1999 cash sale was actually a simulation; therefore, we must consider a different set of legal principles to determine whether the law affords the plaintiff any relief under the facts alleged in regards to that transaction. When, by mutual agreement, a contract does not express the true intents of the parties, the contract is a simulation. La. C.C. art.2025.

There are two types of simulation recognized under Louisiana law — 17absolute and relative. An absolute simulation occurs when the parties to a contract intend that their contract shall produce no effects between them. La. C.C. art.2026. A relative simulation occurs when the parties intend the contract to produce effects but the effects are different than those recited in the contract. La. C.C. art.2027.

In her petitions, the plaintiff alleges that although the October 1, 1999 cash sale recites that $3,500 was paid by the decedent as consideration for the property conveyed by the plaintiff, she never received the money. Instead, she alleges the true consideration for the transaction was the promise by the decedent that he would give the plaintiff half of the proceeds from the sale of the properties combined after clearing all debts encumbering the properties. Thus, based on the facts asserted, the plaintiff alleges that the October 1, 1999 cash sale was a relative simulation.

Louisiana Civil Code article 1848 provides that in the interest of justice, testimonial or other evidence may be admitted to prove such circumstances as a vice of consent or simulation. Parol evidence is admissible to prove á relative simulation and that the plaintiff alleges sufficient facts in her petition that, if proven at trial, she may be afforded relief. Thus, we find the trial court erred in sustaining the defendants’ exception in regard to her claims based on the October 1, 1999 cash sale. Accordingly, we reverse, in part, the judgment of the trial court.

CONCLUSION

Based on the foregoing discussion, we affirm the judgment of the trial court finding that the plaintiff has not stated a cause of action relative to the property located at 2629 Lakeshore Drive. However, pursuant to La. C.C.P. art. 934, we hereby grant the plaintiff leave to amend her petition within 30 days of the issuance of this opinion to assert a cause of action relative to the 2629 Lakeshore Drive property. See Ridgedell v. Succession of Kuyrkendall, 98-1224, p. 14 n. 16 (La.App. 1st Cir.5/19/99), 740 So.2d 173, 183 n. 16.

In regard to the property conveyed in the October 1, 1999 cash sale, we find that the plaintiffs petition does state a cause of action. We, therefore, reverse the judgment of the trial court sustaining the defendants’ exception and dismissing the plaintiffs suit as pertaining to that property. We assess the defendants with the costs of this appeal and remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


source: Caselaw Access Project

author: I .WILLIAM H. BYRNES, III, Chief Judge.

license: Public Domain

text:
    Beatrice B. KAUFMAN v. Frances Jean CLEATON.
    No. 2003-CA-0452.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 8, 2003.
    Rehearing Denied Jan. 15, 2004.

      John H. Brooks, Gretna, LA, for Plaintiff/Appellee.
    Brett A. Bonin, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge MAX N. TOBIAS JR., and Judge LEON A. CANNIZZARO JR.).
   I .WILLIAM H. BYRNES, III, Chief Judge.

The defendant-appellant, Frances Jean Cleaton, appeals a summary judgment rendered in favor of the plaintiff-appellee, Beatrice B. Kaufman, “vacating those title documents purportedly vesting title to the following immovable properties[] in Frances Jean. Cleaton Kaufman and restoring them to the possession of the plaintiff, Beatrice Kaufman ...” We reverse and remand.

The plaintiffs petition alleged that the documents recorded in the Conveyance Office of Orleans Parish purporting to transfer the title to the disputed real properties from the plaintiff to the defendant were forgeries.

The plaintiff moved for summary judgment. In support of this motion the plaintiff offered the affidavit of Noel E. Vargas, II, Notary Public, attesting to the fact that what purports to be his signature as notary on a Cash Sale from the plaintiff to the defendant for property located at 2201-03 Kraft Street is not in fact his signature and that he did not cause the document to be recorded. Mr. Vargas’ affidavit also notes that David B. Kaufman’s signature is not on the document in spite of the fact that the document states that he is an appealer and an intervenor; that the alleged witness signatures are not the signatures of his office personnel despite the use of their names on the document; that the Cash Sale reflects no ^consideration for the transfer; that the defendant did not‘appear before him on the date shown on the Cash Sale to execute the document; that the salé was recorded over seven years after the purported date of execution; and that he had no record of the transaction in his office.

Mr. Vargas’ affidavit next addresses a Dation en Paiement purportedly conveying property located at 719-721 and 717 Teche Street, and 342 Slidell Street from the plaintiff to the defendant and David B. Kaufman. Mr. Vargas avers that the act is unwitnessed and that it was not recorded until over a year after its purported date of execution; the document was not signed in his presence; he has no record of the transaction in his office; the documents were not prepared by his office; he did not record the documents; and he could not attest to the signatures of any of the parties thereto.

Mr. Vargas’ affidavit then addressed a Dation en Paiement purportedly conveying property located at 2020 Farragut Street from the plaintiff to David Kaufman and Jean C. Kaufman. He avers that the act is unwitnessed; that it was not recorded until over a year after it was executed; that it was not signed in his presence; that he has no record of the transaction in his office; that the documents were not prepared in his office; that he did not record the documents; that he could not attest to the signature of any of the parties thereto; and that inconsistent legal descriptions and acquisition dates are included.

Mr. Vargas also averred that his office maintains records of all of its real estate transactions and that he had a policy of assuring that all witnesses affix their signature to a notarial act prior to filing.

| ¡¡The defendant in her reply brief acknowledges that Mr. Vargas’ signature is a forgery. She also does not contest the fact that it was she who caused the documents to be recorded in the conveyance records. This, together with the other assertions contained in Mr. Vargas’ affidavit are sufficient in the absence of countervailing evidence to warrant a decision by the court to declare the documents invalid. Therefore, the burden shifts to the defendant to offer affidavits, depositions or documents setting forth specific facts in opposition. La. C.C.P. art. 967. The defendant is not entitled to rest on the mere allegations or denial in his pleadings. Id. The fact the defendant’s pleadings may be verified is not sufficient to meet the affidavit requirement of La. C.C.P. art. 967. Caston v. Centers for Psychotherapy, Inc., 619 So.2d 1140 (La.App. 4 Cir.1993). The “Verifying Affidavit” filed by the defendant making the generalized assertion that, “all of the allegations contained in her Answer and in her ‘Memorandum in Opposition to Beatrice Kaufman’s Motion for Summary Judgment’ are true and correct to the best of her information, knowledge, and belief,” is not sufficient to meet the La. C.C.P. art. 967 requirements that summary judgment affidavits “set forth specific facts.”

In the instant case, the defendant argues that the forgery of the notary’s signature may invalidate the authentic nature of the title transfer documents, but that the documents may still be valid as acts under private signature if the signature of the plaintiff is valid, i.e., in spite of the forgeries it may still have been the intent of the plaintiff to transfer title to the properties. This inference is borne out by the documents offered by the defendant from the plaintiffs bankruptcy.

The defendant offered an uncertified copy of the plaintiffs March 2, 1999 petition for Chapter 7 bankruptcy wherein she listed no real property among her |4assets, from which it could be inferred that she felt that the transfers of real property out of her name that are the subject of the instant litigation were valid, i.e., that her signatures thereon were genuine.

The plaintiff raises the lack of certification of the bankruptcy documents for the first time on appeal. However, plaintiffs objection to the admissibility of the documents, coming as it does for the first time on appeal, comes too late. Objections as to the admissibility of evidence may not be raised for the first time on appeal. By way of analogy see Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 15 (La.2/29/00), 755 So.2d 226, 235, fn. 4 and Equipment, Inc. v. Anderson Petroleum, Inc., 471 So.2d 1068 (La.App. 3 Cir.1985).

Moreover, what the plaintiff did not do was offer any kind of affidavit or other evidence explaining away the implications of her bankruptcy filings.

This case is very unsettling and unsettled. The forgeries are obviously disturbing. But there is also something that needs to be explained about how the plaintiffs disclaimer of any title to real estate in her bankruptcy proceedings fits into this picture. There is the inescapable inference that there is more to these title transfers than the record currently reveals. The plaintiffs bankruptcy petition creates a genuine issue of material fact regarding the title to these properties. It was error for the trial court to conclude that the uncontested proof of forgery resolved all issues in this case. As this error alone is sufficient to warrant the reversal of the summary judgment granted by the trial court, we need not address the defendant-appellant’s remaining assignments of error.

IsFor the foregoing reasons, the judgment of the trial court is reversed and this matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . Full property descriptions appear in the trial court judgment.


author: | .MARION F. EDWARDS, Judge.

text:
    STATE of Louisiana v. Edith SANDERS.
    No. 03-KA-638.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Paul D. Connick, Jr., District Attorney, 24th Judicial District, Terry M. Boudreaux, Assistant District Attorney, Gretna, LA, for Appellee.
    Margaret S. Sollars, Thibodaux, LA, for Appellant.
    Edith Sanders, L.C.I.W. Aquarius, St. Gabriel, LA, In Proper Person.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   | .MARION F. EDWARDS, Judge.

This is defendant Edith Sanders’ second appeal. In this Court’s previous opinion we stated the case as follows:

Defendant, Edith Sanders, pled guilty to two counts of knowingly or intentionally distributing a controlled dangerous substance, to wit: cocaine, in violation of La. R.S. 40:967, and was sentenced to five years of imprisonment at hard labor on each count, with the sentences to run concurrently. The state subsequently filed a multiple offender bill of information. The trial court found defendant to be a second felony offender, vacated the original sentences and sentenced defendant to 15 years of imprisonment at hard labor.
In this appeal, defendant appeals her adjudication as a second felony offender. She alleges that the trial court erred in finding her a multiple offender because the state failed to comply with the requirements set forth in LSA-R.S. 15:529.1, and failed to present proper proof of a previous conviction. Defendant claims three errors were made during the multiple offender hearing: (1) the fingerprints on the arrest register failed to establish a valid conviction of defendant; (2) the sentencing range was not stated in the prior Boykin examination; and, (3) error patent was committed when the court improperly accepted an Alford plea without a factual basis.

(Footnotes omitted.)

|3On appeal, this Court affirmed Sanders’ convictions and multiple offender adjudication, and found error patent in the habitual offender proceeding. We were thus required to vacate the sentence and remand for resentencing.

On September 20, 2001, the trial court vacated the sentence on Count 1 and re-sentenced Sanders to imprisonment at hard labor for 15 years on the multiple bill. This sentence was to run concurrently with the five-year sentence on Count 2, without benefit of parole, probation, or suspension of sentence. Sanders filed a motion for appeal on September 25, 2001. Apparently, no action was taken on the appeal because no order was attached to the motion. On March 13, 2003, a letter and an order from defendant were filed into the record, and the appeal was granted.

In the present case, defense counsel has filed a brief that follows the procedure approved by the United States Supreme Court in these cases. Here, in applying the Anders procedure, letters were sent from the Clerk of this Court advising Sanders that she should file a supplemental brief, complying with Rule 2-12 of the Uniform Rules of Louisiana Courts of Appeal, with this Court by July 16, 2003. Sanders filed her supplemental brief on July 14, 2003.

Regarding these Anders rules and procedure, the Supreme Court has stated that the brief filed by counsel must review not only the procedural history of the case and the evidence presented at trial but must also provide ... a detailed and reviewable assessment for both the defendant and the appellate court of whether the appeal is worth pursuing in the first place.

In her pro se brief, Sanders avers that the trial court erred when it sentenced her with the stipulation that she be denied the benefit of parole.

|4The sentence, as imposed, provides that all 15 years are to be served without benefit of parole, probation, or suspension of sentence. However, LSA-R.S. 40:967(B)(4)(b) requires that only the first five years of the sentence are to be without benefit of parole, probation, or suspension of sentence. In addition, LSA-R.S. 15:529.1(G) provides that the sentence is to be without benefit of probation or suspension of sentence and does not prohibit parole.

According to LSA-R.S. 15:301.1, the sentence is deemed to contain these restrictions, as provided by Paragraphs A and C of that article:

A. When a criminal statute requires that all or a portion of a sentence imposed for a violation of that statute be served without benefit of probation, parole, or suspension of sentence, each sentence which is imposed under the provisions of that statute shall be deemed to contain the provisions relating to the service of that sentence without benefit of probation, parole, or suspension of sentence. The failure of a sentencing court to specifically state that all or a portion of the sentence is to be served without benefit of probation, parole, or suspension of sentence shall not in any way affect the statutory requirement that all or a portion of the sentence be served without benefit of probation, parole, or suspension of sentence.
C. The provisions of this Section shall apply to each provision of law which requires all or a portion of a criminal sentence to be served without benefit of probation, parole, or suspension of sentence, or of any one of them, any combination thereof, or any substantially similar provision or combination of substantially similar provisions.

Based on the foregoing, no action is required to address the trial court’s failure to specify that the first five years of the sentence should be served without benefit of parole.

Sanders has raised three other issues in her brief pertaining to the multiple bill hearing:

(1) The Trial Court erred by adjudicating her a second felony offender when the State relied on a 1988 conviction for a violation which was not considered a crime of violence when it occurred in 1987.

| ¡¡(2) The Trial Court violated the Ex Post Facto law when it found her to be a second felony offender and sentenced accordingly.

(3) The Trial Court erred when it adjudicated her as a second felony offender when the State failed to show prima facie evidence of the discharge date of the predicate offense and subsequent sentence.

Procedurally, these issues are not properly before this Court in this appeal. Following the original appeal, we affirmed defendant’s convictions and multiple offender adjudication and remanded the case only for resentencing. Since the above assignments do not concern the resentenc-ing, we affirm the sentences imposed by the trial court.

We have conducted an independent review of the record, appellate counsel’s and Sanders’ briefs, we find that the procedural history of the case and evidence presented at trial was adequately reviewed as required by the Supreme Court, and we find no non-frivolous issues that would arguably support an appeal.

This Court performed an error patent review of the original record in this case at the time of Sanders’ first appeal, so she is only entitled to an error patent review of the record on resentencing. Our review reveals that the only error patent pertained to parole eligibility as discussed above.

Based on the foregoing, we find that counsel has complied with Anders and is entitled to withdraw from the case. We grant her motion to withdraw. Sanders’ sentence is affirmed.

AFFIRMED.

      . State v. Sanders, 00-1369 (La.App. 5 Cir. 2/28/01), 784 So.2d 19, 21

      . Id. at 24.

        . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), rehg denied, 388 U.S. 924, 87 S.Ct. 2094, 18 L.Ed.2d 1377 (1967), discussed in State v. Benjamin, 573 So.2d 528 (La.App. 4 Cir. 1990), and adopted in State v. Bradford, 95-929, 95-930 (La.App. 5 Cir. 6/25/96), 676 So.2d 1108.

      . State v. Jyles, 96-2669 (La. 12/12/97), 704 So.2d 241. See also, State v. Mouton, 95-0981 (La.1995), 653 So.2d 1176.

      . Also see State v. Williams, 00-1725 (La. 11/28/01), 800 So.2d 790, 800-801.

      . See State v. Perkins, 02-502 (La.App. 5 Cir. 10/29/02), 831 So.2d 455, 459.

      . State v. Sanders, 00-1369 (La.App. 5 Cir. 2/28/01), 784 So.2d 19.

      . See, LSA-C.Cr.P. art. 922; State v. Gassen-berger, 02-658 (La.App. 5 Cir. 12/11/02), 836 So.2d 271.

        .State v. Taylor, 01-452 (La.App. 5 Cir. 1/14/01), 802 So.2d 779, 783, writ denied, 01-3326 (La. 1/10/03), 834 So.2d 426.


author: [,SUS AN M. CHEHARDY, Judge.

text:
    Cynthia BRIDGES, Secretary, Department of Revenue, State of Louisiana v. X COMMUNICATIONS, INC.
    No. 03-CA-441.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      John J. Lee, Jr., William A. Hood, The Godfrey Firm, P.L.C., New Orleans, LA, for Appellant, X Communications, Inc.
    Alva C. Smith, Geneva Landrum, Department of Revenue, Legal Division, Baton Rouge, LA, for Appellee, Cynthia Bridges, Secretary, Department of Revenue, State of Louisiana.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   [,SUS AN M. CHEHARDY, Judge.

A corporate taxpayer appealed an assessment of additional sales tax by the Louisiana Department of Revenue. The Board of Tax Appeals vacated a portion of the assessment, set aside the penalty imposed, and ordered a refund of the payment made on that portion of the assessment. The Department of Revenue sought review in the district court, which reversed the part of the Board’s ruling that was in favor of the taxpayer. The taxpayer now appeals the district court’s action. We reverse and reinstate the decision of the Board of Tax Appeals.

FACTS

The tax assessments at issue here were made against Universal Telephone Company, Inc. (“UTC”), which was sold in July 1997 and became X Communications, Inc. (“X-Comm”). We refer to the company hereafter as “the taxpayer” or as “UTC/X-Comm.”

In April 1996 the Louisiana Department of Revenue (“the Department”) began a sales tax audit of UTC/X-Comm covering the period from January 1, 1993 through January 31, 1996. On August 6, 1996 Robert Ocker, who was then employed as controller of the taxpayer, signed a Department-supplied form that waived prescription for the tax period January 1, 1993 through December 31, |31993. The form had been sent by the Department with a cover letter requesting that Ocker have an appropriate officer of the corporation sign the document. Ocker wrote “Controller” on the form below his signature.

On September 4, 1997 the Department issued to the taxpayer a notice of its intent to assess additional taxes, penalties and interest in the amount of $155,190.51 for the period January 1, 1993 through December 31, 1996. On September 22, 1997 the taxpayer’s certified public accounting firm sent the Department a letter protesting the proposed taxes, penalties and interest.

On October 6, 1997 James Huey (then a ' member of the board of directors of UTC/X-Comm), signed a waiver of prescription covering the periods January 1, 1993 through December 31, 1994, listing himself as “CEO.” In previous years, Huey had also served as an officer of the taxpayer corporation (president, treasurer), but he was not an officer at the time he signed the prescription waiver.

On July 7, 1998 the taxpayer’s board of directors authorized payment to the Department of $34,482.00 in order to stop the running of interest on any sales tax due.

On October 19, 1998 the Department notified the taxpayer it was assessing additional taxes, penalties and interest for the period from January 1, 1993 through December 31, 1996 in the amount of $66,510.85, less the payment of $34,482.00, for a net amount due of $32,028.85.

|4On November 24, 1998, the taxpayer’s board of directors authorized an additional payment to the Department in the amount of $5,888.00.

On December 18, 1998 the Department issued a Notice of Assessment for the period of January 1, 1993 through December 31, 1996 in the amount of $40,670.09 in additional taxes, $26,232.79 in interest, and $623.83 in penalties, offset by a credit for the $40,370.00 already paid, for a net amount due of $26,156.71.

On January 28,1999 the taxpayer filed a petition with the Board of Tax Appeals, asserting that the waivers of prescription signed by Ocker and Huey were invalid because they were made without authorization by the board of directors. The taxpayer sought a determination that the tax for 1993 had prescribed and that no additional tax was due from 1994 through 1996. In addition, the taxpayer prayed that the additional monies it had already paid be refunded with interest and that the delinquent penalty be waived.

Although the Notice of Assessment did not segregate the amount by tax periods, for purposes of the appeal the parties stipulated that the assessments for the respective periods are as follows:

1993 $ 17,603.33
1994 17,804.51
1995 - 223.04 [credit]
1996 5,485.29

After a hearing at which both the taxpayer and the Department presented testimony, the Board of Tax Appeals rendered judgment partially in favor of the taxpayer and partially in favor of the Department. The Board set aside the sales tax assessment for the tax period January 1, 1993 through December 31, 1993 and ordered the Department to issue a refund to the taxpayer in the amount of the additional tax assessment plus interest. In addition, the Board vacated the penalty imposed in connection with that amount. Finally, the Board upheld the assessment 1¡¡of additional taxes, penalties and interest for the tax period January 1, 1994 through December 31,1994.

The Department appealed the decision to the district court and UTC/X-Comm filed a cross appeal. Reviewing the matter on briefs by the parties and the record from the Board of Tax Appeals, the district court ruled in favor of the Department of Revenue as follows, in pertinent part:

It is the opinion of this Court that the 1993 as well as the 1994 tax period did not prescribe because valid waivers were obtained, and therefore the tax periods were held open. This Court also finds that the Board exceeded its authority by ordering a refund of taxes that were not paid under protest. The basis for this Court’s decision is articulately explained in the Defendant’s Memorandum in Support of Petition for Judicial Review of Decision of the Board of Appeals. Therefore, this Court hereby adopts the arguments contained therein as its own.

The court reversed the Board of Tax Appeals’ ruling that the assessment for the 1993 tax period had prescribed and also reversed the order that taxes not paid under protest be refunded. The court affirmed the Board’s decision declaring that the 1994 tax period had not prescribed.

UTC/X-Comm has appealed to this Court. The taxpayer contends the district court erred in failing to use the proper standard of review, in finding that the taxpayer owed taxes for 1993 and 1994, in finding that taxes for 1993 and 1994 had not prescribed, in finding that valid waivers had been obtained and that the tax periods had been held open, in ruling that the taxes were not paid under protest, in failing to apply the correct burden of proof to the Department for establishing the validity of the waivers, and in adopting the arguments of the Department regarding agency, ratification and estoppel.

| «LAW AND ANALYSIS

Standard of Review

The taxpayer asserts that the district court’s ruling, in effect, held that the Department merely needed to show an error of law in order for the district court to reverse the Board’s ruling. The taxpayer contends that the district court’s reliance upon the “error of law” standard is clearly erroneous, that the district court should have conducted a manifest error review of the Board’s fact findings, and that its other findings must be viewed in light of such error.

In St Pierre’s Fabrication and Welding, Inc. v. McNamara, 495 So.2d 1295, 1298 (La.1986), our supreme court stated:

Judicial review of a decision of the Board [of Tax Appeals] is rendered upon the record as made up before the Board and is limited to facts on the record and questions of law. The Board’s findings of fact should be accepted where there is substantial evidence in the record to support them and should not be set aside unless they are manifestly erroneous in view of the evidence on the entire record.

Thus, the applicable standard is the manifest error/clearly wrong standard. We review the remainder of the issues with that standard in mind.

Although most of the facts were stipulated, there was no stipulation of fact as to the issues of the apparent authority of Ocker and Huey and the alleged ratification by Huey of the Ocker waiver. The taxpayer argues the district court failed to conduct a proper review of the facts found by the Board because the court adopted the Department’s arguments.

1993 Taxes

The parties do not dispute that taxes were owed; they dispute whether the taxes were prescribed. If the waivers of prescription signed by Ocker and Huey are |7valid, then prescription was suspended and the Department’s assessments were correct.

The Department’s brief refers to oral reasons for judgment issued by the Board of Tax Appeals. Similarly, the taxpayer’s brief refers to factual findings by the Board. No oral or written findings of fact appear in either the Board’s judgment or the record before us. Therefore, we can only infer the reasons underlying the Board’s decisions on the issues. We surmise the Board found the waiver of prescription signed by Ocker was invalid and that prescription had run on the 1993 assessment, but found the waiver of prescription signed by Huey was valid and suspended prescription on the 1994 assessment.

The validity of the waivers turns on whether Ocker and/or Huey either were authorized to waive this legal right on behalf of the corporation or whether they had apparent authority on which the Department was justified to rely.

Mandate is an act by which one person, the principal, confers authority on another person, the mandatary (or agent), to transact one or more affairs for the principal. La.C.C. art. 2989.

An agent’s power or authority is composed of his actual authority, express or implied, together with the apparent authority which the principal has vested in him by his conduct... .As between principal and agent the limit of the agent’s authority to bind the principal is governed by the agent’s actual authority. As between the principal and third persons, the limit of an agent’s authority to bind the principal is governed by his apparent authority.... Apparent authority is a judicially created concept of estoppel which operates in favor of a third party seeking to bind a principal for the unauthorized act of an apparent agent....
For the doctrine of apparent authority to apply, the principal must first act to manifest the alleged agent’s authority to an innocent third party. Second, the third party must rely reasonably on the manifested authority of the agent. As the Courts of Appeal have correctly held, the principal will be bound for the agent’s actions if the | sprincipal has given an innocent third party a reasonable belief the agent had authority to act for the principal.... The burden of proving apparent authority is on the party relying on the mandate.
A third party seeking to benefit from the doctrine of apparent authority may not blindly rely upon the assertions of an agent. He has a duty to inquire into the nature and extent of the agent’s power. [Citations omitted.]

Boulos v. Morrison, 503 So.2d 1, 3 (La.1987).

The finding of an agency relationship is a finding of fact which will not be overturned unless clearly wrong. F. Miller & Sons, Inc. v. Calcasieu Parish Sch. Bd., 02-1680 (La.2/25/03), 838 So.2d 1269.

The taxpayer contends that neither Robert Ocker nor James Huey were authorized to bind the corporation because the corporate bylaws vest decision-making authority in the Board of Directors and, hence, a simple employee of the corporation cannot bind the corporation without express authority from the Board of Directors. Ocker was controller of the corporation at the time he signed the waiver of 1993 taxes; Huey was CEO of the corporation when he signed the waiver of the 1993 and 1994 taxes.. The difference between them is that Ocker was never more than an employee during his tenure with the taxpayer, while Huey was a shareholder and a member of the board of directors and also was an officer of the corporation for several years, although he was not an officer in 1997 when he signed the waiver of prescription.

The Department contends that Robert Ocker was designated as the taxpayer’s representative for the audit. The audit began in April 1996 and Ocker advised the UTC board at the April 29, 1996 board meeting that the Department was conducting a sales tax audit. The board took no action to remove Ocker or to substitute any other person as company representative.

19Charles Ray Wright, a 21-year senior agent with the Department of Revenue, testified that it is common practice for company controllers to sign waivers of prescription for audits.

Ned Gauthier, chief sales tax reviewing auditor and veteran of 28 years with the Department, testified the issue of authority to sign a waiver has never been raised during his tenure with the Department.

The authority to act on behalf of a corporation can only be conferred by the charter or the bylaws of the corporation or by resolution of the board of directors. La.R.S. 12:81(A), 12:82(D); McKendall v. Williams, 467 So.2d 1301, 1303 (La.App. 4 Cir.), writ denied, 469 So.2d 986 (La.1985).

A party seeking to enforce an alleged contract against a corporation is required to establish that the officer or agent with whom he contracted was in fact authorized to bind the corporation. North American Sales Alliance, Inc. v. Cantone Laboratories, Inc., 214 So.2d 167, 172 (La.App. 4 Cir.), writ denied, 253 La. 57, 216 So.2d 306 (1968). Any action taken in the name of a corporation that is unauthorized by the corporation cannot bind the corporation. Marsh Investment Corp. v. Langford, 490 F.Supp. 1320, 1324 (E.D.La.1980), aff'd, 652 F.2d 583 (5th Cir. Unit A Aug.1981), cert. denied sub nom., Ponchartrain State Bank v. Marsh Investment Corp., 454 U.S. 1163, 102 S.Ct. 1037, 71 L.Ed.2d 319 (1982).

In Pesson v. Kleckley, 526 So.2d 1220, 1225 (La.App. 3 Cir.1988), the issue was whether an agent had authority to confect a lease for the corporation. The court held:

An actual agency relationship may be either express or implied. For some acts an agent’s authority must be express. This is true for the agent to buy, sell, contract a loan, acknowledge a debt, draw or endorse promissory notes, and generally where the acts to be done are not merely those of administration or such as facilitate such acts... .We think the act of binding a principal to the terms |inof a lease is one of those types of acts requiring express power.

By analogy, we find the act of surrendering or waiving a corporation’s legal right, such as prescription, is the type of act that requires an express power.

Where a document bearing such legal significance is involved, the other party should be on notice that express authorization is necessary for the agent to sign it. Any state agency can readily discover the officers of a domestic corporation from the secretary of state’s office; further, simple familiarity with corporate structure should disclose that a “controller” is an employee, not an officer, of the typical corporation.

“No one may avail himself of ignorance of the law.” La.C.C. art. 5. “Ignorance of the law, as has often been stated, is no excuse. This should have particular application to the officers charged with its enforcement.” Moresi v. State, Dept. of Wildlife and Fisheries, 552 So.2d 1259, 1264 (La.App. 3 Cir.1989). By analogy, employees of the state Department of Revenue should be charged -with knowledge of the state’s laws relating to transactions with corporations in enforcing tax laws.

In We conclude, therefore, that the Department was not justified in relying on any perceived apparent authority of Robert Ocker to bind the taxpayer to a document that waived a legal right.

Alternatively, the Department has argued that Ocker’s waiver of prescription was ratified later when James Huey signed the second waiver of prescription in October 1997. We find no merit to that argument, however. At the time Huey signed the document the prescription period had already accrued. The Department’s right to pursue the action expired on December 31, 1996 and was not resurrected by the document signed months later, which did not expressly state it was reviving a right that had been perfected.

“[A] renunciation of prescription is an abandonment of the right derived from prescription that has accrued and is subject to stringent proof requirements.” Lima v. Schmidt, 595 So.2d 624, 634 (La.1992).

1994 Taxes

In contrast to the waiver of prescription regarding the 1993 taxes, the waiver of prescription for the 1994 taxes was signed by James Huey. Huey, as noted above, had served variously as president and treasurer of the corporation in prior years. Although he was not a board member at the time he signed the 1994 waiver, he listed himself as “CEO,” a common abbreviation for “Chief Executive Officer” used in corporate terminology.

“The mission and authority which a legal entity such as a corporation must be presumed to have given its chief executive officer and top human functionary is certainly much broader than that which an employer generally is likely to give or have given lower echelon employees.” Miller v. Keating, 349 So.2d 265,269 (La.1977).

| ^Considering Huey’s prior positions of authority and responsibility within the corporation, as well as his designation of himself as CEO, Huey had sufficient implied authority for the Department to assume that he was authorized to execute the Agreement to Suspend Prescription on October 6, 1997. Hence, the waiver of prescription of the 1994 taxes was effective.

As noted previously, however, the waiver could not be effective for the 1993 taxes, because those had already prescribed at the time Huey signed.

Payment Under Protest

In making the tax payments, the taxpayer failed to comply with the payment-under-protest requirements of La. R.S. 47:1576. The district court found that the Board of Tax Appeals exceeded its authority by ordering a refund of taxes that were not paid under protest pursuant to La.R.S. 47:1576.

La.R.S. 47:1576 provides that if a taxpayer protests the payment of any tax or enforcement of any tax law, he must pay the amount due and at that time give notice of intention to file suit for recovery of the tax. The amount paid is then placed in escrow for 30 days. If suit is filed within that period, the funds will be held pending outcome of the suit. If suit is not timely filed, the taxpayer no longer has a right to proceed in district court for the recovery of taxes. Church Point Wholesale Beverage Co. v. Tarver, 614 So.2d 697, 704 (La.1993).

Obviously, the taxpayer did not follow that procedure in this case. Nevertheless, the taxpayer argues that under La.R.S. 47:1481 et seq. the Board has the authority to order refund of taxes, regardless whether such taxes were paid under protest.

In Church Point Wholesale Beverage Co. v. Tarver, supra, our supreme court stated:

| iaWhile the Payment Under Protest procedure found in 47:1576 is clearly intended to provide a postdeprivation remedy for the recovery of taxes, nowhere therein does the statute state that it is the sole remedy. The Claims Against the State procedure set forth in 47:1481 allows “any person who has a claim against the State of Louisiana for money erroneously paid into the State Treasury, or for any other claim” to present such claim to the Board of Tax Appeals. It is easily apparent that a tax voluntarily paid pursuant to an unconstitutional statute is “money” “erroneously paid into the State Treasury” by the taxpayer. A taxpayer has erred when he has paid taxes pursuant to an unconstitutional statute because he failed to notice the statute was unconstitutional and therefore paid taxes which were not legally due. At the very least, such a situation falls under the term “any other claim.”
La.Rev.Stat. 47:1481 et seq. provides a proper vehicle for the recovery of taxes paid without protest pursuant to an unconstitutional statute. Additionally, any plaintiff whose rights are actually in controversy, i.e. not prescribed under 47:1481, may seek a judgment declaring the tax statute unconstitutional, with such judgment to be used in plaintiffs case before the Board of Tax Appeals.

614 So.2d at 706.

Hence, the Board of Tax Appeals did not exceed its authority in ordering a refund of the overpayment, despite the taxpayer’s failure to make payment under protest pursuant to La.R.S. 47:1576.

DECREE

We find no manifest error in the fact determinations of the Board of Tax Appeals and we conclude the district erred in reversing the decision of the Board.

For the foregoing reasons, the judgment of the district court is reversed and the decision of the Board of Tax Appeals is reinstated.

REVERSED; DECISION OF BOARD OF TAX APPEALS REINSTATED.

      . Pursuant to La. Const. Art. 7, § 16, the prescription date for the 1993 sales tax year was three years from December 31 in the year in which the taxes were due, or December 31, 1996. The form, rather than waiving prescription, actually suspends the running of prescription for one year from what would otherwise have been the prescription date.

      . Ocker was discharged from employment by UTC/X-Comm on April 30, 1997. The accounting firm, Rebowe & Company, took over the controller’s duties for the company.

      . For example, La.R.S. 12:82(G) provides:
      Except as otherwise provided in the articles or by-laws, or by resolution of the board of directors, the president, vice-president or manager of any corporation or any foreign corporation doing business in this state, shall have power in the name and behalf of the corporation to authorize the institution, prosecution or defense of any suit and other legal proceedings, and no exception of want of authority shall lie on the part of any other party. Such persons shall have authority in the corporation’s name and behalf to direct the issuance of conservatory writs and to bond property in custodia legis, to execute bonds in connection with any legal proceedings, and to make any affidavit required by law or the rules of the court. Such acts shall have the same force and effect as the act of the corporation itself, and be binding upon it.


author: | .SOL GOTHARD, Judge.

text:
    Ernest F. BONACCORSO, Jr., et al. v. Kenneth MILLER, Donald Dove and Allstate Insurance Company.
    No. 03-CA-0449.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Paul Rumage, Florence Bonaccorso-Saenz, New Orleans, LA, for Plaintiffs/Appellants (Ernest Bonaccorso, Jr., et al).
    James L. Donovan, Jr., Donovan & Lawler, Metairie, LA, for Defendants/Ap-pellees (Donald Dove and Allstate Insurance Company).
    Christopher E. Lozes, Lozes, Cambre & Ponder, Mandeville, LA, for Defendants/Appellees (Kenneth Miller and Allstate Insurance Company).
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and SUSAN M. CHEHARDY.
   | .SOL GOTHARD, Judge.

Plaintiffs, Ernest F. Bonaccorso, Jr., et al, (“Bonaccorso”) appeal from a judgment in favor of defendants, Donald E. Dove and Kenneth Miller, dismissing plaintiffs’ action against them. For the reasons that follow, we affirm the decision of the trial court.

Plaintiffs filed this suit for damages arising out of an automobile accident. The undisputed facts show that, during the morning hours of January 14, 1999, there were a series of automobile car accidents occurring on Interstate 10, over the Bonnet Carre Spillway in St. Charles Parish, during foggy weather conditions. At issue are three of those accidents, which occurred eastbound between LaPlace and Kenner. Mr. Bonaccorso was involved in the third accident in the sequence. The first accident involved defendants Dove and Miller, and occurred when the vehicle in front of Dove, traveling in the left lane, stopped in the roadway. Defendant Miller was directly behind Dove. Dove stopped his vehicle, as did Miller. A third car, driven by Mr. Ryan, was following Miller. It struck the Miller vehicle on the left side, and then hit the Dove vehicle and pushed it into the left guardrail.

| .The second accident occurred when Miller, who was now stopped in the left lane, was struck in the rear by a car driven by Emmet Webb.

Accident three involved nine cars, and occurred behind accident two. The plaintiff was in one of the cars in that accident. In his deposition he stated that he stopped because of the accidents in front of him. He felt two impacts, and after the second one, he was able to maneuver around some of the cars in front of him, stopping between the first and second accidents. He then pulled over to the right shoulder of the road.

Plaintiffs, Mr. Bonaccorso, his wife and children, filed suit against the drivers of the eight other vehicles involved in the third accident. Thereafter, plaintiffs amended their petition to include David Dove and his insurer Allstate Insurance Company, Kenneth Miller and his insurer Allstate Insurance Company, the Department of Transportation and Development and the Office of State Police.

Thereafter, Dove and Miller each filed a motion for summary judgment, which was granted by the trial judge.

In this appeal, plaintiffs admit that Dove and Miller were not part of the accident that caused his damages, but they allege comparative fault arguing that defendants failed to take action subsequent to the first two accidents which could have prevented the accident in which Bonaccorso was involved. Bonaccorso 'alleges that there are issues of fact as to the length of time between the first accident involving Dove and Miller, and his accident, and whether Dove and Miller violated the provisions of La. R.S. 32:141.

LSA-C.C.P. art 966 provides in pertinent part as follows:

.The judgment sought shall be rendered forthwith 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 mover is entitled to judgment as a matter of law.
|4C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.

Summary judgments are now favored in the law and the rules should be applied liberally. Breaux v. Schiro, 01-1398 (La. App. 5 Cir. 5/29/02), 821 So.2d 123, 125; writ denied, 02-1784 (La.10/4/02), 826 So.2d 1129. On appeal this Court must review a summary judgment de novo and inquire whether there are genuine issues of material fact and whether the summary judgment should be granted in accordance with article 966. Id. The summary judgment procedure shall be construed to accomplish the ends of just, speedy, and inexpensive determination of allowable actions. LSA-C.C.P. art. 966; Perricone v. East Jefferson General Hospital, 98-343 (La.App. 5 Cir. 10/14/98), 721 So.2d 48.

Bonaccorso alleges that defendants Dove and Miller violated the provisions of La. R.S. 32:141(D), which provides in part:

A. Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
D. In the event of a motor vehicle accident, if the driver is not prevented by injury and the vehicle is not disabled by the accident, or the accident has not resulted in serious injury or death of any person, the driver shall remove the vehicle from the travel lane of the highway to the nearest safe shoulder. Compliance with the provisions of this Subsection shall in no way be interpreted as a violation of requirements to remain at the scene of an accident as provided for in the Highway Regulatory Act or by R.S. 32:414.

In this case, it is uncontroverted that plaintiff was not involved in the Dove and Miller accident. It is plaintiffs contention that Dove and Miller were |snegligent in failing to move their vehicles after their accidents, but prior to the one in which he was involved.

It is also undisputed that there was dense fog, with impaired visibility. In his affidavit, Dove stated that there were approximately ninety accidents on the Bonnet Carre Spillway that morning. Plaintiff, in his deposition (parts of which were introduced at the hearing), stated the roadway was foggy, with adequate visibility until approaching the curve in LaPlace. At that point, there was a “wall” of fog, causing him to reduce his speed, and move to the right hand lane of traffic. He saw brake lights “bouncing in the air,” which caused him to apply his brakes. Right after, he was struck in the rear. As his car moved forward between the first and second accident, he could hear sliding and crashing from the cars behind him. During this time, he saw a person, whom he described as a “shadow in the fog” with a fire extinguisher.

The police report states that the Dove accident occurred at 7:28 am. The police report of plaintiffs accident report states that it occurred at 7:29. Plaintiff alleges that his accident occurred at approximately 7:40; however, he offers no evidence to support this allegation. His own testimony shows that the accidents at issue happened almost immediately prior to his, as he stated that he saw the brake lights of the cars involved in the accident “bouncing” right before his own accident.

The evidence herein is sufficient to show that the three motor vehicle accidents occurred nearly simultaneously. The testimony further established that visibility was poor, with dense fog, and that it would not have been practical for the defendants to move their vehicles, given the short time between each accident and the foggy conditions on the roadway. Accordingly, the trial court did not err in granting the motions for summary judgment filed by Dove and Miller.

pFor the above discussed reasons, the trial court’s ruling granting summary judgment in favor of defendant David E. Dove, and his insurer, and Kenneth Miller, and his insurer, is affirmed. All costs of the appeal are assessed against plaintiff, appellant.

AFFIRMED.


author: |,SOL GOTHARD, Judge.

text:
    Ronnie G. CLARK v. The STATE of Louisiana, The DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, The Louisiana State Police, Lieutenant Michael Sunseri, Sergeant William Dorris, ABC Insurance Company and DEF Insurance Company.
    No. 03-CA-0455.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 12, 2003.

      Rodney Kelp Littlefield, Regan & Associates, New Orleans, LA, for Plaintiff/Appellant.
    Edmund W. Golden, David K. Gatto, Golden & Fonte, Metairie, LA, for Defendants/Appellees.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   |,SOL GOTHARD, Judge.

Plaintiff, Ronnie G. Clark, appeals an adverse judgment of the trial court in this personal injury suit against the State of Louisiana, through the Department of Public Safety and Corrections (D.P.S. & C.), and the Louisiana State Police (L.S.P.), as well as two Louisiana State Police Officers individually, and various insurance companies. Mr. Clark was seriously injured when he was shot by State Troopers as he tried to run a roadblock set up to stop him on Interstate-10 in St. Charles Parish on March 19,1994.

Defendants, D.P.S. & C., L.S.P., and both State Troopers, Sergeant William Dorris and Lieutenant Michael Sunseri, filed answers in which they asserted six affirmative defenses including qualified immunity, comparative fault, self-defense and, defense of others. Charity Hospital and Medical Center of Louisiana at New Orleans (Charity), filed a petition of intervention seeking to recover $21,475.16 in medical services and supplies rendered to plaintiff.

For several years the parties conducted extensive discovery that included expert reviews and analysis of the incident. A nine-day trial on the merits was conducted in October 2002, after which the trial court took the matter under | .¡consideration. On November 8, 2002, a judgment, with extensive reasons supporting it, was rendered by the trial court. In the judgment the trial court found in favor of the defendants, and dismissed the plaintiffs action with prejudice. It is from that judgment that plaintiff appeals.

In brief to this court, plaintiff assigns two errors that assert errors in findings of law and of fact. Plaintiff first argues that the trial court erred in applying the aggressor doctrine to bar recovery by Ronnie Clark. In the second assignment, he argues that the trial court “failed to consider whether it was objectively reasonable for Lt. Sunseri to fear for his life at the time he fired the shot which struck Ronnie Clark in the back.” Because findings of fact support findings of law, we will review the assignment as to the findings of fact first.

This is an extensive record. There are volumes of testimony, expert witness reports and documentation offered by both parties. However, the general facts that are not in dispute are that plaintiff, Ronnie Clark, was riding a motorcycle at a high rate of speed eastbound on I — 10 through St. Charles Parish. He was observed by Louisiana State Trooper Terrence Freese. Trooper Freese clocked Mr. Clark traveling at speeds of up to 120 MPH. The Trooper activated his emergency lights and sirens and pursued Mr. Clark in an attempt to stop the vehicle. Mr. Clark spotted the State Trooper, but did not stop or slow down. During the pursuit, Trooper Freese observed a handgun tucked into the back of Mr. Clark’s belt. Believing that the motorcyclist would use the weapon, Trooper Freese pulled to a safe distance behind the motorcycle. Trooper Freese broadcast his observations to other officers in the area to get help in the arrest and to warn that the motorcyclist was armed. A second trooper, Richard Reggio, joined in the chase and observed Mr. Clark traveling at a high rate of speed in the center of the two-lane highway, forcing motorists off the roadway.

|4Two other troopers, Lieutenant Michael Sunseri and Sergeant William Dor-ris, who were in separate cars heard the broadcast and teamed up to set up a road block at the intersection of 1-10 and 1-610 to stop the armed motorcyclist. Traffic was stopped and the two marked vehicles were parked in the roadway, leaving only the north shoulder of the roadway passable. Sgt. Dorris armed himself with a 9mm automatic pistol, and positioned himself in the center of the right lane of the roadway. Lt. Sunseri stood on the north shoulder of the road armed with a departmental 12 gauge shotgun. Traffic stopped by the roadblock began to pile up, obstructing the troopers’ view of the roadway. However, Lt. Sunseri saw the motorcycle approaching the stopped traffic. The vehicle turned onto the shoulder and began passing the stopped traffic. Lt. Sunseri called to his partner to tell him of the approaching motorcycle. Sgt. Dorris stood on the shoulder of the road waving his hands. Instead of stopping the motorcycle, Mr. Clark crouched down and attempted to continue on past the roadblock. Both troopers fired at Mr. Clark hitting him several times and causing serious injuries including a spinal injury that left Mr. Clark a paraplegic.

The troopers maintain that as Mr. Clark approached the roadblock, he crouched down, gunned his motor and came straight for Lt. Sunseri, attempting to kill him. It was at that time that both officers discharged their weapons to protect Lt. Sunseri’s life. Plaintiff admits that he did not stop for the roadblock, but denies any attempt to kill either Trooper and maintains that the officers shot at him after he was past the roadblock and had eluded their capture. Thus, Mr. Clark argues it was error to find that Lt. Sunseri thought his life was endangered.

To address this assignment of error we must review the testimonial and documentary evidence introduced at trial. We begin with the testimony of Lt. Sunseri. He testified that he had been with the Louisiana State Police since 1973, had risen to the rank of Lieutenant in 1987, and was the executive officer for Troop |fiB. He is a specialist in traffic accident reconstruction and has taught many classes of state troopers on that subject.

Lt. Sunseri began his narrative of the events of March 19, 1994 by explaining that he was on his way to meet Sgt. Dorris for lunch at a restaurant in Metairie when he received a call from a fellow trooper who told him troopers in St. John Parish were in pursuit of a motorcyclist speeding in excess of 100 mph on I — 10. Lt. Sunseri switched to the live radio channel to hear the details. He heard that the suspect was driving erratically and forcing motorists off the road, and that troopers in pursuit saw a gun, tucked into his belt in the small of his back, when his shirt blew up. Lt. Sunseri also heard the troopers say that they perceived the gun to be a 9mm pistol, and that the suspect had reached back on at least two occasions to grab the gun.

Lt. Sunseri stated that at that time he knew that a motorcyclist was traveling at a high rate of speed, forcing other motorists off the road and brandishing a gun. This, he understood was a very dangerous situation. Consequently, he and Sgt. Dorris, who was following behind in a separate vehicle, drove westbound on 1-10, and decided to set up a roadblock at the intersection of 1-10 and 1-310. Sgt. Dorris got to the roadblock point first and parked his vehicle across some of the right lane and the shoulder of eastbound I — 10. When Lt. Sunseri arrived, he positioned his car across part of the right and part of the left lane. Lt. Sunseri explained that it is standard operating procedure when setting up a roadblock to leave open an avenue of apprehension or escape. Accordingly, the shoulder of the left lane was not blocked.

Lt. Sunseri got out of his vehicle and got a shotgun out of the trunk of his vehicle. Both troopers walked around trying to see the motorcyclist coming. Lt. Sunseri’s vision was obstructed by an 18-wheeler and a camper trailer stopped by the roadblock; so to gain a better vantage point, Lt. Sun-seri backed away from the | ¿police vehicles along the open escape route, which was located on the shoulder of the left lane. At that point Lt. Sunseri did not know the exact location of the motorcyclist, but he was still monitoring his radio and knew that the cyclist was heading toward the roadblock.

Shortly afterward Lt. Sunseri, who was dressed in his Louisiana State Trooper uniform, stood in the left shoulder with his shotgun pointing skyward. He spotted the cyclist coming out from the line of stopped vehicles in the left lane and on to the shoulder. Lt. Sunseri estimated the cyclist’s speed to be about 60 mph at that point and about 200 yards away. Lt. Sun-seri began waving to make sure that the cyclist saw him. Because the cyclist continued toward him, Lt. Sunseri began to yell and continued waving. He also contacted Sgt. Dorris on the radio to notify him that the cyclist was approaching. The cyclist crouched down on the motorcycle and sped up as he neared Lt. Sunseri. At that moment one of the other troopers said, “He’s got a weapon!” The cyclist continued coming straight at Lt. Sunseri, so Lt. Sunseri fired his weapon. As he jumped out of the way, Lt. Sunseri fired his weapon again. The cyclist continued on, and Lt. Sunseri, believing he had missed the cyclist, ran over to his vehicle. When he saw that Sgt. Dorris was not leaving the scene in pursuit, Lt. Sunseri realized that the cyclist was down further up the roadway. Sgt. Dorris called for emergency medical help and the troopers went over to the suspect. The cyclist was lying on the ground, nearby was a hand gun and several rounds of ammunition. Sgt. Dorris moved the gun out of reach of the suspect.

Lt. Sunseri got names of witnesses to the shooting who were among the drivers stopped by the roadblock and then returned to where Sgt. Dorris was watching over the suspect until medical help arrived. Lt. Sunseri described Clark as “out of control” and testified that Clark was “yelling and cursing and saying why didn’t we kill him.” By that time the two troopers who were in pursuit of 17Clark arrived on the scene. One of the troopers, Freese, picked up Clark’s gun. It was unlocked, had a round of ammunition in the chamber, and was cocked.

Lt. Sunseri testified that Clark was “going to kill me.” Clark was coming towards the trooper and was accelerating. Lt. Sunseri heard one of the troopers yell, “he’s got a weapon,” and at that point Lt. Sunseri testified that his thought was, “I’m not going home tonight.” That’s when he fired the first shot. Then, as he jumped out of the way of the speeding motorcycle to save his life, Lt. Sunseri fired a second shot. Lt. Sunseri testified that he fired both shots low to avoid hitting an innocent motorist stopped by the roadblock.

Lt. Sunseri also testified that Sgt. Dor-ris fired three shots, which were almost simultaneous with Lt. Sunseri’s shots. Lt. Sunseri explained that a total of five shots were fired, and it was one event happening quickly as Clark approached and passed Lt. Sunseri. According to Lt. Sunseri’s testimony, no shots were fired after Clark passed Lt. Sunseri. Lt. Sunseri explained that when he fired the first shot, Clark was right in front of him. Then as Lt. Sunseri jumped out of the way and Clark was right next to him, the trooper fired the second shot. Lt. Sunseri also stated that he had a difficult time getting out of the way because after the first shot, Clark jumped and swerved and almost lost control of the motorcycle.

The testimony of Lt. Sunseri continued and throughout his recitation of the events of that day, he reiterated his conviction that Clark was intentionally heading his motorcycle directly at him, causing Lt. Sunseri to fear for his life. When the motorcyclist passed Lt. Sunseri, the estimated speed was 30 to 40 mph, and the trooper testified that as he jumped out of the way he was close enough to touch the rider. He also testified that he stopped shooting as soon as the rider passed him and the danger had passed.

Lt. Sunseri also testified that there were two independent investigations of the shooting made by his office and the St. Charles Sheriffs Office. Both he and |sSgt. Dorris had to testify before the State police shooting review board, which ruled the shooting justified.

Lieutenant William Dorris, who was a sergeant at the time of the accident, also testified at trial. His testimony regarding how he and Lt. Sunseri heard about the dangerous condition on 1-10, and how they set up the roadblock in an effort to stop the motorcyclist, corroborated that of Lt. Sunseri.

Lt. Dorris stated that by monitoring radio transmissions, he heard from fellow officers in pursuit of the cyclist that the suspect was armed and reached for the gun several times. Lt. Dorris explained that he knew there was a reckless motorcyclist fleeing from police at a high rate of speed. That person had a handgun in his waist band and had reached for it on several occasions. Lt. Dorris’ assessment of the situation was that the suspect was armed and dangerous, and would attempt to get away from police even if it was necessary to use his gun.

Lt. Dorris testified that when the roadblock was set up, he got out of his car, armed himself with a 9mm handgun, and walked in the opposite direction from where Lt. Sunseri walked because he was unsure on which side of the highway the cyclist would approach the roadblock. He explained that the roadway was curved away from his view and as traffic began piling up, he could not see past about the third vehicle. Therefore, Lt. Sunseri spotted the cyclist first and notified the other officers over the radio. Lt. Dorris started over to where Lt. Sunseri was standing on the north side of the roadway. Lt. Sunseri was standing on the shoulder of the road waving one hand and holding a shotgun in the other. The shotgun was pointed in the air. Lt. Sunseri explained that these events happened quickly, and before he could get to the other side of the roadway the cyclist was approaching. He was riding in a crouched down position and appeared to be traveling at a high rate of speed. He did not appear to be slowing down, and even may have been accelerating, heading directly for Lt. Sunseri. Lt. Dorris stated that it was at that [ ^moment he made the decision to shoot the driver to save Lt. Sunseri’s life. Lt. Dorris- stated he believed the cyclist’s intention was to “run over Lt. Sunseri to avoid apprehension in any manner that he could.” Lt. Dorris said that he shot three times as the motorcycle cleared the first car stopped by the roadblock. Lt. Dorris stated that it all happened in a split second.

There were several motorists, stopped at the roadblock, who witnessed the incident, including Carl and Mona Roussel. The Roussels were returning to Metairie after a day of golf in LaPlace. Their vehicle was the first to be stopped by the roadblock. They were in the right lane and observed the incident. They saw Mr. Clark riding his motorcycle at a high rate of speed directly through the roadblock. Mr. Roussel testified that he was looking straight ahead and saw Lt. Sunseri fire his shotgun after the motorcycle passed. He only heard the other shots fired by Lt. Dorris. Mrs. Roussel also stated that she thought the officers shot after the motorcycle “zipped” by.

Jonathan Todd Cole testified that he was driving a 1994 Pontiac Trans Am from Baton Rouge to New Orleans.when he was stopped by the roadblock. He stated his was the first vehicle to be stopped by the roadblock in the left lane. Mr. Cole saw the motorcycle approaching from behind on the shoulder of the road. The cyclist accelerated as he got closer to the roadblock. The troopers began to shoot at the cyclist as he passed and continued to fire their weapons even after the cyclist had passed. Mr. Cole maintained that neither of the troopers was in danger of being hit by the cyclist as he passed.

Susan and Lehman Davis, who were also traveling from LaPlace to New Orleans, stated that they were in the first car in the left lane of travel at the roadblock. They both testified at trial.

Mrs. Davis refuted the testimony of Jonathan Todd Cole that his was the first car in the left lane. She stated she saw Lt. Sunseri, with a shotgun in his hand, hnstanding with at least one foot on the shoulder of the road. The motorcycle came up on the left shoulder. As he passed the car behind the Davis vehicle, the motorcycle rider hunched down and sped up. Lt. Sunseri was waving and screaming. He had a shotgun, pointed to the sky, in one hand. The officer lowered his shotgun, aimed low, and fired at the cyclist. Mrs. Davis recalls thinking that the cyclist was going to hit the officer. The officer jumped out of the way at the last second and shot a second time. Mrs. Davis stated that her impression was that the officer was shooting low trying to hit the motorcycle, not the rider. When Lt. Sunseri fired his weapon the second time, the motorcyclist was about even with him. Mrs. Davis stated emphatically there is no doubt in her mind that at the time of the first shot, the motorcycle was still ahead of the officer, and that if the officer had not moved out of the way, he would have been hit by the oncoming motorcycle.

Mr. Davis verified that his vehicle, rather than Mr. Cole’s, was first in line in the left lane of the roadblock. He first saw the motorcycle out of his side view mirror coming up the shoulder of the road. Lt. Sunseri was on the shoulder of the road, holding his shotgun with the muzzle pointed up. Mr. Davis saw the officer waving and trying to flag down the cyclist. Lt. Sunseri lowered his weapon, pointed it down the shoulder of the road and shot. Mr. Davis stated he felt some of the pellets hit the tire of his vehicle. Mr. Davis testified that the motorcycle was about to run over the officer who was trying to get out' of the way. That’s when Mr. Davis heard a second shot. Mr. Davis explained that everything happened very fast because of the speed of the oncoming motorcycle.

Mr. Randolph Peidrahita, who was returning to New Orleans after a visit with his parents in Baton Rouge, testified that he was traveling eastbound on I — 10 when a speeding motorcycle almost ran him off the road in St. John the Baptist Parish. At that time, Mr. Peidrahita estimated the speed of the motorcycle to bej^about 90 mph. After the motorcycle passed, Mr. Peidrahita observed a gun tucked into the back waistband of the rider’s pants. Mr. Peidrahita continued on and was the second car in the left lane of traffic stopped at the roadblock. He also testified that the motorcycle came up the left shoulder, accelerated and headed for the trooper standing there trying to flag the cyclist down. Mr. Peidrahita recalled hearing one shot fired at that time. He was sure the motorcycle was in front of the officer when the shot was fired, although he could not estimate how far.

The court also heard testimony from plaintiff, Ronnie Clark, who stated that he was living with his father in Texas in March of 1994. He left Texas on March 18th, armed with a handgun, to travel to Florida. He explained that he was on probation as a result of a DUI he received in Florida. He got a message from his patrol officer in Florida that it was urgent to return the call. Because he could not reach his parole officer by phone, he was traveling back to Florida.

Mr. Clark said that before the incident on March 19, 1994, he was in excellent health. After the shooting, Mr. Clark was taken to Charity Hospital in New Orleans where a shotgun pellet was removed from his spine. The shooting by state troopers at the roadblock left him paralyzed from the waist down. When questioned about the facts of the shooting, Mr. Clark admitted that his statement in his deposition, which indicated he raised his hands and came to a stop at the roadblock, could have been wrong. He stated at trial that the aftermath of the treatment at the hospital caused his memory of that day to be “mixed up.” He explained that, while in the hospital, he was given Demerol and other pain relieving drugs and he was having nightmares about the shooting. However, after sitting through the trial and hearing the testimony of eyewitness accounts of the events of March 19th, he now believes that he did not stop at the roadblock, but continued directly through it at a high rate of speed. It does not appear that Mr. Clark has an independent memory of the shooting. He simply stated that he could |1gnot disagree with testimony that he tried to aim his motorcycle at Lt. Sunseri as the officer stood on the shoulder of the road waving and trying to get him to stop.

Thomas Donner, M.D., a board certified neurosurgeon and plaintiffs treating physician, testified at trial. Dr. Donner stated that Mr. Clark had gunshot wounds to the chest and back. Dr. Donner stated that x-rays showed metal fragments of pellets in the central canal of the lower thoracic spine, which is consistent with the entry wound at the lower back of a motorcyclist in a crouched position. Mr. Clark also had an entry wound on his left side. The wound to the spinal cord ultimately resulted in paralysis in the lower part of the body.

The record also contains volumes of expert testimony and documents opining on the trajectory of the bullets and the effect of any possible factors, which would show where the motorcyclist was in relation to the troopers when the shooting occurred. In the reasons for judgment the trial court stated:

.The Court heard testimony from a total of twenty-four witnesses (14 fact and 10 expert witnesses) and reviewed over seventy-five separately identified trial exhibits (including numerous photographs, diagrams, sketches, scientific journal articles, deposition testimony, shooting test results, and physical evidence.)

This court has also considered all of the extensive evidence in this case to review the findings of fact made by the trial court. It is well settled that our review of the factual findings made by the trier of fact is based on an abuse of discretion or clearly wrong standard, Rosell v. ESCO, 549 So.2d 840 (La.1989). Recently this court summarized the law regarding our review of a factual finding in Griffin v. Kurica, 03-190 (La.App. 5 Cir. 6/19/03), 850 So.2d 807, 811, as follows:

There is a two-part test for the reversal of a factfinder’s determinations: (1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
|13An appellate court must be cautious not to re-weigh the evidence or to substitute its own factual findings just because it would have decided the case differently.
Where there is conflict in the testimony, reasonable determinations of credibility and reasonable inferences of fact should not be disturbed on appeal.
The reasons for these well-settled principles of review are not only the trial court’s better capacity to evaluate live witnesses, as compared to the appellate court’s access only to a cold record, but also the proper allocation of trial and appellate function between the respective courts.

Id. (citations omitted)

Given the testimony and documentary evidence presented at trial, we do not find that the trial court erred in its factual finding that Lt. Sunseri was in fear for his life when he shot plaintiff. Accordingly, we find no merit in plaintiffs assignment of error regarding the factual findings of the court.

Having settled the issue of fact presented for our review, we will now consider the law used by the trial court in the judgment.

As previously stated, the trial court gave extensive and very thoughtful reasons for judgment. The court concluded that the troopers committed an intentional tort against Mr. Clark, but were justified in their use of force due to the circumstances. The trial court began with a statement of the query as follows:

From this comprehensive record, the Court must determine whether the shooting of Ronnie G. Clark was an appropriate response in light of the danger faced by Lt. Sunseri and/or Sgt. Dorris, or instead constituted an unjustified use of deadly force that warrants a judgment of liability against the defendants.

After making findings of fact, which we find are well supported by the record, the trial court found that this was not an accidental shooting, but rather an intentional tort. The court further found that the troopers did not fire their weapons in an attempt to affect an arrest, but to defend themselves from harm. The trial court stated:

As in criminal cases, the defendants’ assertions of self-defense and defense of another are considered affirmative defenses or [^privileges to an intentional tort claim. Both defenses operate on the principle that where force (even deadly force) appears reasonably necessary to defend oneself from a real or reasonable perceived attack by another, then such force is justified.
In their post-trial argument, the defendants refer to the ‘aggressor doctrine’, which essentially involves the same concept. The ‘aggressor doctrine’ jurisprudence holds that a plaintiff is barred from recovery when his actions are such that they provoke a reasonable person to use physical force in fear of or anticipation of perceived injury. The ‘aggressor doctrine’, however, does not bar recovery where a defendant uses excessive force to repel or subdue the initial aggression by a plaintiff.

The trial court continued on to explain that the burden of proof in affirmative defense issues rests on the defendant raising the defense. Ultimately, after applying the facts to the legal concepts, the trial court concluded that:

.plaintiff, Ronnie Clark was the aggressor on March 19, 1994, that his actions placed Lt. Michael Sunseri in reasonable fear of death or great bodily harm, that his actions gave Sgt. William Dorris reasonable fear that a fellow law enforcement officer was in danger of death or great bodily harm, and that the use of deadly force by both Lt. Sunseri and Sgt. Dorris was reasonably necessary under the circumstances.

In the other assignment of error, it is asserted that the trial court erred in relying on the aggressor doctrine to determine Ronnie Clark was barred from recovery. Plaintiff argues that the aggressor doctrine has been abolished in Louisiana law because an absolute bar to recovery against a provoking plaintiff cannot exist in a pure comparative fault state.

In defense of his argument plaintiff cites Landry v. Bellanger, 02-C-1443 (La.5/20/03), 851 So.2d 943. In Landry, an intoxicated bar patron (Landry) made hostile and belligerent remarks and gestures to another bar patron (Bellanger) with whom he had been drinking. When Landry’s actions became more aggressive and threatening, Bellanger struck plaintiff in the head with a partially closed fist causing plaintiff to fall backwards and hit his head on some concrete. Landry sued for personal injury and received a judgment against Bellanger. On appeal the First Circuit found that the trial court erred in refusing to apportion fault in accordance 11Bwith La. C.C. art. 2323(C). The appellate court reasoned that Landry’s actions in provoking the incident were intentional rather than negligent; therefore, they warranted a comparative fault analysis. The appellate court found fault should be equally proportioned between the parties. Landry v. Bellanger, 00-2029 (La.App. 1 Cir. 3/28/02), 813 So.2d 598. Bellanger filed a writ application with the Louisiana Supreme Court that was granted. Landry v. Bellanger, 02-C-1443 (La.5/20/03), 851 So.2d 943.

In their review of the matter, the Supreme Court considered the origins and history of the aggressor doctrine in Louisiana, as well as current law. The Supreme Court concluded that La. C.C. art. 2323(C), relied on by the appellate court, must be read in conjunction with the other sections of that article. Consequently, the Supreme Court concluded:

. Thus, reading each section of La. C.C. art. 2323 and giving effect to each portion of the Article, we find that the fault of all persons causing or contributing to injury, regardless of the basis of liability, is to be determined, and, if a negligent plaintiff is injured as a result of the fault of an intentional tort-feasor, his claim for recovery of damages shall not be reduced by his percentage of fault.
Landry v. Bellanger, supra. 851 So.2d at 953.

The Supreme Court continues on to explain that the above article does not provide for an instance in which both parties are intentional tortfeasors, ultimately finding that Article 2323(C) is inapplicable.

We find that plaintiff is correct in his statement that the Landry court held the aggressor doctrine is inconsistent with Louisiana’s pure comparative fault regime. However, the court also concluded that when the conduct of the defendant constitutes an intentional act, rather than an act of negligence, self-defense can operate as a defense to defendant liability. In that regard the Supreme Court explained in Landry, 851 So.2d at 954-5:

In a suit for damages resulting from an intentional tort, the claimant must carry the burden of proving all prima facie elements of the tort, including lack of consent to the invasive conduct. In turn, the 11fidefendant may seek to prove that he is without fault because his actions were privileged or justified, such as self-defense. Self-defense, unlike the aggressor doctrine, is a true defense in that it operates as a privilege to committing the intentional tort. In such a case, a plaintiffs conduct must have gone beyond mere provocation under the aggressor doctrine.

The Landry court reviewed the case de novo, because it found the appellate court made an error of law by the application of negligence principles in Article 2323(C), and concluded that the defendant was not liable under the privilege of self-defense.

La. R.S. 14:19, although a criminal statute, is applicable in civil intentional tort cases. See, Hattori v. Peairs, 95-0144 (La.App. 1 Cir. 10/6/95), 662 So.2d 509; writ denied, 95-2677 (La.1/12/96), 666 So.2d 322. That statute provides that:

The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or forcible offense or trespass against property in a person’s lawful possession; provided that the force of violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide.

Likewise, La. R.S. 14:22 provides a similar defense for the defense of others.

In applying those principles to the matter before us, we do not find the trial court erred in its finding of law. A careful reading of the reasons for judgment shows that the trial court found both parties to be intentional tortfeasors and, although it used the aggressor doctrine in its analysis, the finding was that the defendants were not liable as a result of the defense or privilege of self-defense and defense of others. That is consistent with the law as it stands now on intentional torts, and is consistent with the facts in this matter. Accordingly, we affirm the trial court’s judgment and assess all costs of this appeal to appellant.

AFFIRMED.