author:
11 McKAY, J.
      | jWALTZER, J., | TOBIAS, J.,

text:
    CANAL 66 PARTNERSHIP v. Gus A. REYNOIR, as Succession Representative of the Succession of Fred M. Reynoir.
    No. 2002-CA-0355.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2003.
    Writ Denied April 25, 2003.
    James M. Garner, Neal J. Kling, Timothy B. Francis, Emma E. Daschbach, Sher Garner Cahill Richter Klein McAlister & Hilbert, L.L.C., New Orleans, for Plaintiff/Appellee.
    John C. Reynolds, Virginia W. Gund-lach, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P., New Orleans, for Defendant/Appellant.

      Court composed of Judge MIRIAM G. WALTZER, Judge JAMES F. McKAY III, Judge DENNIS R. BAGNERIS, Sr., Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, Jr.
   11 McKAY, J.

The appellant, Gus Reynoir (Reynoir), as Succession Representative of Fred M. Reynoir, seeks a review of the trial court’s granting of a partial summary judgment in favor of appellee, Canal 66 Partnership (Canal 66), and denying his cross motion for summary judgment.

The pertinent issue for this Court to address concerns the interpretation of a ground and building lease agreement on an immovable property, entered into by the parties. On cross motions for summary judgment, the trial court was presented with the issue of the meaning of the rent recalculation provision of the lease agreement, which provides: “[t]he rental for the new period shall be the base rental of $24,000 per year plus the six (6) percent real estate commission, multiplied by a fraction,” In appellee’s motion for summary judgment, it urged the court to delete the entire phrase “plus the six (6) percent real estate commission” from the recalculation formula maintaining that “the Lease recalculation provision can be easily misunderstood,” and that “to actually include the 6% real estate commission Lis the base rental recalculation [was] folly.” In its cross motion for summary judgment appellant argued that Canal 66 was requesting that the trial court basically rewrite the contract by deleting the phrase from the recalculation provision. On June 6, 2001, the trial court entered a Judgment, granting Canal 66’s motion for partial summary judgment and denying the appellant’s cross motion. The trial court determined that the base for the rent recalculation was $24,000; we find no error in this particular portion of the judgment. Nevertheless, we do question the judgment of the trial court’s interpretation of the lease in the area of recalculation, in particular the 6% real estate commission payments.

In its reasons for judgment the trial court found that “the language in § 3(B) of the lease implies that the 6% real estate commission should be added to the base annual rent before the annual rent is plugged into the formula,” and that “ the language in § 3(B) in its literal terms identifies the 6% real estate commission as part of the formula to recalculate the rent.” The trial court further concluded that: “it is the opinion of this Court that the 6% increase used in the recalculation and described as a real estate commission but never paid to the real estate agent unjustly enriches the lessor.” The trial court held that Canal 66 was due compensation in the amount of $407.79 a month for all the months paid to the lessor since January 1992, and that Reynoir owes Canal 66, $43,215.00.

On June 14, 1971, Reynoir, Lessor, entered into a lease agreement on an immovable with Florentine Development Corporation, with a stated term of the [3lease as sixty years, commencing on January 1, 1972. Under the terms of the lease, § 3(A), the base annual rental for the first five years was $24,000.00, “and in addition thereto shall pay an additional sum equal to six per cent thereof, which shall be the amount of the real estate commission payable to Clement J. Dufau, (emphasis added) real estate agent....”. Under the terms of the lease, after the first five years, the annual rental is to be recalculated based on a formula set forth in § 3(B) of the lease:

Thereafter, the annual rental shall be recalculated periodically using the changes in the U.S. Consumer Price Index, “All Items,” column in Table I, using the 1967 = 100 standard reference base, as published from time to time by the U.S. Department of Labor, Bureau of Labor Statistics, as the basis for recalculation. As a further identification of the index to be used, the “All Items” index for February 1971, as released in March 1971, is 119.4. The rental for the new period shall be the base rental of $24,000.00 per year, plus the six (6%) percent real estate commission, multiplied by a fraction, (emphasis added), the denominator of which shall always be the “All Items” figure contained in Table I of the Consumer Price Index for the month immediately prior to the effective date of this lease. The numerator shall be the same “All Items” figure of Table I of the Consumer Price Index for the month immediately prior to the commencement of the term for which the rent must be recalculated. The rental shall be recalculated for each of the following periods and the adjusted rental shall be paid throughout each such period for which it was recalculated:
1. For the five (5) year period commencing at the beginning of the sixth (6th) year and ending at the close of the tenth (10th) year of the lease.
2. For the ten (10) year period commencing at the beginning of the twentieth (20th) year of the lease.
3. For each of the successive ten (10) year periods thereafter through the end of the term of this lease.

Appellant presents three issues for review by this Court. First, appellant argues that the trial court committed reversible error by ignoring the literal terms of |4the lease agreement. Second, appellant agues that the trial court failed to consider appellee’s conduct of paying the recalculated rent owed spanning over eight plus years or one hundred (100) months without objection. Finally, appellant argues that the trial court erred in relying on an unjust enrichment theory to rule in favor of Canal 66, as it is an equitable remedy that cannot be invoked when the enrichment is based on a contract.

STANDARD OF REVIEW

In determining whether summary judgment is appropriate, appellate courts review the evidence de novo. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Id. at 1182. The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Two Feathers Enterprises v. First National Bank, 98-0465 (La.App.4.Cir.lO/14/98), 720 So.2d 398, 400. This procedure is now favored and shall be construed to accomplish these ends. La. C.C.P. art. 966(A)(2). This standard of review requires the appellate court to look to the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to show that there is no genuine issue as to a material fact, and that the mover is entitled to a judgment as a matter of law. La. C.C.P. art. 966(B). To affirm summary judgment, we must find reasonable minds would inevitably conclude that the mover is entitled to judgment as a matter of the applicable law on the facts before the court. Monts v. Board of Supervisors of the Louisiana State University, 2001-1497, (La.App. 4 Cir. 2/27/02), 812 So.2d 787; Washington v. State, Dept. of Transp. & Development, 96-14 (La.App. 3 Cir. 7/5/95), 663 So.2d 47. Taking into 1 «¡accounts these standards, we find that summary judgment is improper in the case sub judice.

While we acquiesce that summary judgments are favored, summary judgment requires that there be no genuine issue of material fact and the mover is entitled to a judgment as a matter of law; this threshold must be surmounted prior to granting summary judgment. Mr. Bryan’s affidavit merely states that Canal 66’s records indicate that they paid the succession of Dufau the 6% commission. Furthermore, appel-lee’s representations that appellant’s interpretation of the lease is both absurd and folly cannot be considered as support for the assertion that the succession of Dufau was in fact paid the commission. The record is fraught with accusations and innuendo not supported by the record before this Court. For example, who paid or who was required to pay the pre-1992 real estate commission and to whom was it paid? Who paid the commissions after-1992 and to whom? In what manner was the Dufau succession to be compensated for the 6% real estate commission or even proven that they had been paid? There is insufficient information in the record to determine the answers to these and other questions. Therefore, it was not reasonable for the trial court to grant summary judgment in this case. It is paramount that these issues are resolved before any recalculation can be accomplished.

The Louisiana Supreme Court instructs that: “Courts lack the authority to alter the terms of contracts under the guise of contractual interpretation when the [contract] provisions are couched in clear and unambiguous terms.” Peterson v. Schimek, 98-1712 (La.3/2/99), 729 So.2d 1024, 1029; Louisiana Ins. Guar., Ass’n v. Interstate Fire & Cas. Co., 93-0911 (La.1/4/94), 630 So.2d 759, 764.

| RUnder Louisiana law the court is required to either enforce the contract as written, which clearly means that an amount equal to 6% real estate commission is included in the rent recalculation formula, or, if the trial court found the language of the lease ambiguous or susceptible to multiple interpretations, require them to hold an evidentiary hearing to determine the intent of the parties. We find merit to the appellant’s argument and agree that summary judgment is inappropriate in this instance. Accordingly, we find that the trial court erred in granting Canal 66’s motion for summary judgment.

Therefore, we reverse the trial court’s granting of the summary judgment in favor of appellees and remand the matter for further proceedings.

REVERSED AND REMANDED.

WALTZER, J., dissents with reasons.

TOBIAS, J., concurs in part and dissents in part.

| jWALTZER, J.,

Dissenting with Reasons.

Because the majority opinion ignores the burden of proof provisions of Louisiana’s law of summary judgment, I must respectfully dissent.

A summary judgment 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 the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2).

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a | ¡.genuine issue of material fact for trial. La.C.C.P. art. 967; Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

Once mover has properly supported the motion for summary judgment, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. The amendments to La.C.C.P. art. 966 bring Louisiana’s standard for summary judgment closely in fine with the federal standard under Fed.Rule Civ.Proc. 56(c). Hayes v. Autin, 96-287 (La.App.3 Cir. 12/26/96); 685 So.2d 691, 694, wrii denied, 97-0281 (La.3/14/97), 690 So.2d 41. The summary judgment law was amended by La.Acts No. 483 of 1997 to incorporate the Hayes analysis.

Under Fed.Rule Civ.Proc. 56, when the nonmoving party bears the burden of proof at trial, there is no genuine issue of material fact if the nonmoving party cannot come forward at the summary judgment stage with evidence of sufficient quantity and quality for a reasonable juror to find that the party can satisfy his substantive evidentiary burden. In construing the federal summary judgment rule, the United States Supreme Court held that summary judgment shall be granted where the evidence is such that it would require a directed verdict for the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If a defendant in an ordinary civil case moves for summary judgment or a directed verdict based on the lack of proof of a material fact, the judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the non-moving party on the evidence presented. Id. The Anderson court further held that the mere existence of a scintilla of evidence on the non-moving party’s position would be insufficient; there must be evidence on which the jury could reasonably find for that party. In Lujan v. National Wildlife, 497 U.S. 871, 110 S.Ct. 3177, UlJjjL.Ed.2d 695 (1990), the court held that Fed.Rule Civ.Proc. 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party’s case and on which that party will bear the burden of proof. Berzas v. OXY USA, Inc., 29,835 (La.App. 2 Cir. 9/24/97), 699 So.2d 1149, 1152-53; Martello v. State Farm, Fire and Cas. Co., 96 2375 (La.App. 1 Cir. 11/7/97), 702 So.2d 1179, 1183-84.

The majority finds disputed material fact in a series of rhetorical questions, asking who paid or was required to pay the real estate commission at issue herein. A fact is material if it is essential to a plaintiffs cause of action under the applicable theory of recovery and without which plaintiff could not prevail. Generally, material facts are those that potentially insure or preclude recovery, affect the litigant’s ultimate success, or determine the outcome of a legal dispute. Prado v. Slo-man Neptun Schiffahrts, AG., 611 So.2d 691, 699 (La.App. 4th Cir.1992), writ not considered 613 So.2d 986 (La.1993).

The uncontroverted affidavit of Canal 66’s Controller, Donald E. Bryan, states upon personal knowledge that Canal 66 paid the contractual real estate commission on a timely monthly basis to Clement J. Dufau during his life (from January 1987 to December 1991) and to Mr. Du-fau’s succession after his death (from January 1992 to January 2001).

When a motion for summary judgment is made and supported with affidavits, depositions and/or answers to interrogatories, the adverse party may not rest merely on the allegations or denials contained in the pleadings. Poydras Square Assoc, v. Suzette’s Antique, 614 So.2d 131, 132 (La.App. 4th Cir.1993).

The Bryan affidavit establishes that the real estate commissions were paid. In the absence of sworn evidence to the contrary, the opposing party has failed to carry its burden of providing contrary evidence, showing a genuine issue of |4material fact as to which it will have the burden of proof at trial. Therefore, I would affirm the judgment of the trial court.

| TOBIAS, J.,

Concurring in Part and Dissenting in Part.

I respectfully concur in part and dissent in part..

As I read the lease as a whole, (a) § 3 thereof fixes the initial rent at $24,000 plus a 6% real estate agent’s commission, and (b) § 20 thereof requires that the lessee pay the real estate agent’s commission of 6% directly to the agent. I find no ambiguity. That is, the parties specified initially that the lessor was to receive a net rent of $24,000. As the lease matured in age, the rent increased in accordance with a formula tied to the Consumer Price Index (“CPI”). It therefore follows that whether one applies the CPI simultaneously to the aggregate of rent plus commission, or independently to the rent and then the 6% commission, the resulting rent and agent’s commission parts results in the identical dollar amounts for rent and commission.

In that regard, it is my view that the case should be remanded to the trial court for purposes of checking the calculation of the sums that are or are not duej^between the parties, for the record lacks sufficient information as to whether the correct CPI formula has been used.

      . The original parties to the contract are not parties to this lawsuit. Fred M. Reynoir is deceased and Florentine Development Corporation assigned to International Hotel Company its interest in the lease in June of 1986. Reynoir is a party to this lawsuit as the Succession Representative of the Succession of Fred M. Reynoir, and Canal 66, the appellee, is a party by virtue of a transfer of interest from the original assignee.

      . These payments were to be paid to Clement J. Dufau; now the succession of Clement J. Dufau.

      . The leased premise at 213 Tchoupitoulas Street is presently used as a parking facility for the Doubletree Hotel.

       Note: Judge Miriam G. Waltzer authored this dissent prior to her retirement.

      . ".. .Lessee shall pay rental at the base annual rate of $24,000.00, and in addition thereto shall pay an additional sum equal to six (6%) per cent thereof, which shall be the amount of the real estate commission payable to Clement J. Dufau, real estate agent, as hereinafter provided.”

      . "... Lessee agrees to pay Clement J. Dufau, real estate agent, his successors and assigns, a commission of six (6%) per cent of the rentals paid by Lessee to Lessor as previously provided herein; Lessor shall have no responsibility to the real estate agent for the payment of this commission.”


source: Caselaw Access Project

author: Ii ARMSTRONG, J. | MURRAY, J.,

license: Public Domain

text:
    Hilda N. GARRISON, et al. v. ST. CHARLES GENERAL HOSPITAL, et al.
    Nos. 2002-C-1430, 2002-C-1431, 2002-C-1446, 2002-C-1454, 2002-C-1460.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 15, 2003.

      Eve Barrie Masinter, Monica A. Frois, Joe Giarrusso, Jr., Nathalie G. Simon, McGlinchey Stafford, PLLC, New Orleans, Counsel for St Tammany Parish Hospital Service District No. 1 D/B/A St. Tammany Parish Hospital, et al.
    Michael C. Luquet, Peter J. Butler, Peter J. Butler, Jr., Richard G. Passler, Breazeale, Sachse & Wilson, L.L.C., New Orleans, Counsel for Jefferson Parish Hospital District No. 1, et al.
    T. Allen Usry, Craig E. Frosch, Usry, Weeks & Matthews, New Orleans, Counsel for Carrie H. Ingram, et al.
    Catherine M. Williams, Thomas P. An-zelmo, Campbell, McCranie, Sistrunk, An-zelmo & Hardy, Metairie, Counsel for Jefferson Parish Hospital District No. 2, etc.
    Daniel A. Reed, Seale, Smith, Zuber & Barnette, Baton Rouge, Counsel for Hospital Service District No. 3 of Lafourche Parish, etc.
    Peter T. Dazzio, Chris J. Leblanc, Watson, Blanche, Wilson & Posner, Baton Rouge, Counsel for Vermillion Parish Hospital Service District No. 2, et al.
    Court composed of Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge JAMES F. McKAY, III.
   Ii ARMSTRONG, J.

The dispositive issue of these consolidated writ applications is whether the trial court erred by ordering transfers to proper venues as opposed to dismissing for improper venue. We find the trial court did have authority to transfer rather than dismiss and did not abuse its discretion by doing so.

This case has both plaintiff and defendant classes. The plaintiff class consists of persons allegedly infected with Hepatitis C allegedly as a result of blood transfusions. The defendant class consists of hospitals that provided blood transfusions to the members of the plaintiff class. Included among the defendant class representatives are a number of hospital service districts that operate public hospitals in various parishes.

Various of the hospital service districts excepted to venue on the ground that suit was filed in Orleans Parish, that they are located in parishes other than Orleans, and that, statutorily, the only proper venue for a suit against a hospital service district is the parish where it is located. The plaintiffs opposed the venue exceptions on the ground that, in the case of a defendant class, venue is proper as Rto the entire defendant class wherever it is proper as to any member of the defendant class. The trial court agreed with the plaintiffs and overruled the venue exceptions. On previous consolidated writ applications, another panel of this court reversed the trial court, maintained the venue exceptions, and, importantly to the present consolidated writ applications, ordered: “This case is remanded to the trial court to determine whether the actions against the relators should be dismissed, or whether those actions should be transferred to the courts of proper venue.” Garrison v. St. Charles General Hospital, et al., 2001-C-1294 c/w 2001-C-131 c/w 2001-C-1312 c/w 2001-C-1523 (La.App. 4 Cir. 01/10/2002).

The decision on the previous consolidated writ applications clearly provides that the trial court had authority and discretion to decide whether to transfer or dismiss. Thus, it is “the law of the case” that the trial court had authority and discretion to decide whether to transfer or to dismiss. E.g., Tsatsoulis v. City of New Orleans, 99-2544 (La.App. 4 08/30/2000), 769 So.2d 137, writ dismissed, 2001-0684 (La.05/04/2001), 791 So.2d 647. In the absence of patent error or manifest injustice, once an issue is determined upon an appeal or writ application, we will not revisit that issue upon a subsequent appeal or writ application. Id.

As to whether or not the trial court was properly given authority and discretion to decide whether to transfer or to dismiss, there is at least no patent error. The trial court normally has discretion to transfer rather than dismiss “in the interests of justice.” La.Code Civ. Proc. arts. 121,932. Further, unless the action |3was knowingly filed in the wrong venue, the case should be transferred rather than dismissed. Marler v. Petty, 94-1851 (La.04/10/95), 653 So.2d 1167.

In the present case, dismissal, rather than transfer, might result in claims being prescribed. It is certainly in the interests of justice to transfer rather than dismiss when dismissal might cause claims to be lost through prescription and, thus, to never be considered on the merits. Of course, in the present decision, we express no opinion as to the prescription issue.

Also, in view of the fact that the plaintiffs prevailed in the trial court as to the venue issue, and that the venue exceptions were maintained only on writ applications, it cannot be said that the plaintiffs knowingly filed suit in the wrong venue. Further, a review of the decision on the previous consolidated writ applications shows that there was a fair issue to be determined as to whether venue was proper. Under Marler, the trial court quite properly decided to transfer rather than dismiss.

The defendants argue that, because the present case assertedly involves improper cumulation of actions, under Article 464 of the Code of Civil Procedure, dismissal, rather than transfer, is mandatory. Of course, this argument could have been presented, on original hearing or by an application for rehearing, to the panel which, in deciding the previous consolidated writ applications, determined that the trial court had authority and discretion to either transfer or dismiss. In any event, as we read the decision on the previous consolidated writ applications, only venue exceptions, and not exceptions of improper cumulation, were decided. Lastly, to 14the extent that there is any conflict between Article 464, and Articles 121 and 932, the latter Articles prevail, as they are more specifically directed at the available remedies when it has been determined that venue is improper. Also the articles of the Code of Civil Procedure must be construed together to provide for the speedy and efficient administration of substantial justice, and the use of transfer, rather than dismissal, normally is consistent with that approach to the Code. See Marler, Supra.

Initially, upon receiving the direction from another panel of this court to either transfer or dismiss, the trial court decided to dismiss. The plaintiffs filed a motion for reconsideration and pointed out the possible impact of dismissal (as opposed to transfer) upon the prescription issue. The trial court then ordered transfer rather than dismissal. The defendants argue that the trial court did not have proper grounds to reconsider its decision. However, the authorities cited by the defendants deal with motions for new trial after final judgments and are not applicable to the trial court’s interlocutory procedural ruling as to whether to transfer or dismiss. In any case, the trial court did have good grounds to reconsider its decision. The record reflects that the trial court’s initial decision to dismiss was done as a matter of administrative convenience to avoid the necessity for the voluminous record being sent to the various parishes where venue is proper. The record also reflects that, at the hearing on the plaintiffs’ motion for reconsideration, the trial court was concerned with the possibility that dismissal would impact the prescription issue. The trial court did not abuse its discretion by deciding that | ^avoiding the possible impact on the prescription issue outweighed the greater administrative burden of transferring rather than dismissing.

The defendants urge, in the alternative, that, if we uphold the trial court’s decision to transfer, that we allow the transfer only in the named plaintiffs’ individual capacities and not in their class representative capacities. In effect, the defendants urge us to dismiss the class action aspects of the case. The defendants argue that the class described in the petition includes persons from all over Louisiana, that plaintiffs would generally have received blood transfusions from only one of the defendants and, now that there will be separate cases in the separate parishes where the various defendants are located, the class will be overbroad in each of those separate cases. We acknowledge the defendants’ point as to overbreadth, but we do not think the solution involves the issue of transfer. Rather, once the transfers to the various proper parishes are accomplished, the transferee courts can address the proper scope of the plaintiff class in each separate case. For example, the plaintiff class in a particular case might be limited to persons who received blood transfusions from the defendants in that case i.e. the defendants located in the parish where that case is pending.

For the foregoing reasons, the writ applications are denied and the ruling of the trial court is affirmed.

AFFIRMED.

MURRAY, J., dissents with reasons.

| MURRAY, J.,

Dissenting with Reasons.

For the reasons that follow, I respectfully dissent.

The issue presented in these consolidated applications is whether the trial court was authorized to transfer the actions against the hospital service districts. This court’s prior writ disposition remanded the matter to the trial court with instructions to either dismiss or transfer the claim; that disposition could not and did not give to the trial court authority it did not possess.

A trial court’s authority when an action is commenced in an improper venue generally includes both dismissing the action or “in the interest of justice” transferring the action to a court of proper venue. La. C.C.P. arts. 121 and 932. “One limitation upon the court’s power to transfer to a proper forum is when an action brought in an improper venue is cumulated with an action in which venue is proper; in such cases, the Code directs that the court dismiss the action brought in improper venue.” 1 Frank L. Maraist and Harry T. Lemmon, Louisiana Civil Law Treatise: Civil Procedure, § 6.5 (1999)(citing La. C.C.P. art. 464).

No conflict exists between La. C.C.P. arts. 121 and 932, which authorize a trial court to transfer, and La. C.C.P. art. 464, which mandates a court to dismiss. The former articles apply to single actions; the latter article applies to multiple actions cumulated in a single suit. This case involves multiple actions cumulated in La single suit. The controlling provision in this case is La. C.C.P. Article 464. Pursuant to that provision, the trial court was mandated to dismiss the actions against the hospital service districts.

      . See La. C.C.P. art. 421 (defining a "civil action” as "a demand for the enforcement of a legal right”) and La. C.C.P. art. 461 (defining cumulation as "the joinder of separate actions in the same judicial demand").


author: JACHARLES R. JONES, Judge.

text:
    Sara SEGAL, Florette Neuwirth, Leona G. Stamler, Suzanne George, Edward George, Evelyn Debardeleben, Individually and as Trustee for the Geismar Real Estate Trust, and the Geismar Real Estate Trust v. SMITH, JONES & FAWER, L.L.P., Randall Smith, Gladstone N. Jones, III, APLC, Michael Fawer and L. Tiffany Hawkins.
    No. 2002-CA-1448.
    Court of Appeal of Louisiana, Fourth Circuit.
    Jan. 29, 2003.
    Rehearing Denied March 14, 2003.
    Campbell E. Wallace, Alexandra M. La-mothe, Philip R. Sims, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, LA, for Plaintiffs/Appellants.

      William E. Wright, Jr., Margaret L. Sunkel, Deutsch, Kerrigan & Stiles, L.L.P., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, and Judge MICHAEL E. KIRBY).
   JACHARLES R. JONES, Judge.

This case arises out of a claim for legal malpractice pursuant to the appellant, Smith, Jones, & Fawler, LLP’s (hereinafter “SJF”) representation of the appel-lees, Sara Segal, Florette Neuwirth, Leona G. Stamler, Suzanne and Edward George (hereinafter “The Geismars”) in a Federal Environmental Protection Agency case for injunctive relief and a separate state court action for damages. The Geis-mars suspensively appeal the district court’s October 8, 2001 judgment granting SJF’s motion for summary judgment and the January 14, 2002 summary judgment in favor of Westport Insurance Co. The Geismars also appeal the January 14, 2002 judgment denying their peremptory exception of res judicata. We reverse.

Procedural History

On March 5, 1999, the Geismars instituted a suit for damages in the Civil District Court for the Parish of New Orleans against SJF, alleging legal malpractice. The family petitioned to have the case removed to the United States District Court for the Eastern District of Louisiana pursuant to 28 U.S.C. § 1441 and 28 U.S.C. § 1331 governing the district courts’ jurisdiction to hear a federal 1 ¡¡question. After removal was granted, the case was remanded back to the Civil District Court.

On January 12, 2001, the Geismar family filed a supplemental and amending petition, adding Westport Insurance Co., the insurer for SJF, as a defendant. The family next filed a Motion for Forum Non Conveniens, and requested that the case be transferred to the Twenty-Third Judicial District Court in Ascension Parish. After a hearing on the motion, the district court denied the motion to transfer, finding that the transfer was not in the best interest of the parties to the litigation. The Geismars made notice of their intent to file supervisory writs on the matter, which was later denied by this Court.

SJF subsequently filed a Motion for Summary Judgment on June 7, 2001. On September 12, 2001, the Geismars filed a peremptory exception of res judicata and sought an expedited hearing because a partial summary judgment had been rendered in the Twenty-Third Judicial District on July 14, 2001. The Geismars also filed a Motion to Continue the trial date until November 5, 2001, and a new Motion for Forum Non Conveniens. A hearing was later held on SJF’s motion for summary judgment, and the district court granted the motion on October 8, 2001. The district court later denied the motion to continue the trial and the motion to transfer on forum non conveniens grounds.

On October 19, 2001, the Geismars requested a motion for new trial resulting from the October 8, 2001 judgment. West-port Insurance Co. subsequently filed a Motion for Summary Judgment alleging that the Geismars had no basis for a claim against them as a result of the October 8, 2001 judgment in favor of SJF. After a hearing on the Geismars’ motion for new trial, the peremptory exception of res judi-cata, and Westport’s motion for summary | ¡judgment, the district court rendered a judgment on January 14, 2002, denying the Geismars’ motion for new trial and exception of res judicata, and granting West-port’s motion for summary judgment.

On October 22, 2002, the Geismars filed a motion seeking suspensive appeal of the October 8, 2001 judgment and the January 14, 2002 judgment. On December 30, 2002, the Geismars filed a Motion to Continue Oral Argument and a Motion To Strike Exhibit In Appellee’s Original Brief. This Court denied the motion to continue and noted that the motion to strike was taken under advisement. The Geismar’s suspensive appeal is the subject of the matter before this Court.

Facts

In 1995, Smith, Jones, and Fawer LLP represented Florette Neuwirth, Leona Stamler, Suzanne and Edward George in a Federal EPA Corrective Action for injunc-tive relief and a separate state action for damages. The actions were instituted by the Environmental Protection Agency to compel the Borden Chemical Co. to initiate corrective actions relating to the contamination of groundwater in the vicinity of property owned by the Geismars. During May 1995, SJF and four members of the Geismar family executed an agreement for legal services. The fee agreement did not specifically address the recovery of attorney’s fees pursuant to the Resource Conservation and Recovery Act, which were sought in the EPA action.

On May 26, 1995, SJF filed a Motion For Leave to Intervene in the federal court EPA Corrective Action, which was granted. The Geismars were permitted to intervene, asserting rights under § 6972 of RCRA entitled the “Citizen Suit Provision,” which allows private citizens to bring suit against a generator of ^hazardous wastes. After filing the federal complaint, SJF initiated a suit in the Twenty-Third Judicial District Court seeking damages on behalf of the Geismars.

In the RCRA action, the parties entered into a settlement agreement in which Borden acknowledged responsibility for the intervenors’ costs, attorneys fees, and experts. The costs totaled $489,650. The Geismar’s family representative, Evelyn Debardeleben agreed to the settlement offer after further negotiations, and Borden agreed to pay $349,600 in satisfaction of costs, attorney fees, and experts in the federal litigation.

On April 29, 1998, a draft of the settlement agreement was forwarded to Ms. Debardeleben, which included an accounting describing the disbursement of fees and expenses to be paid by Bordelon. After discussions with SJF, adjustments were made to the costs, and funds were disbursed in accordance with a revised schedule, in which SJF received the sum of $246,671.29 for attorney fees and Ms. De-bardeleben received $79,334.39 as reimbursement for the family expenses. The Geismars then signed a formal settlement agreement that recognized the Geismars’ right to pursue damages in state court.

After becoming disgruntled with the progression of the state litigation, the Geismars discharged SJF in a letter dated November 25, 1998. On March 5, 1999, the Geismars instituted a legal action for malpractice alleging that SJF committed a number of acts and omissions, breaching their professional and fiduciary responsibilities, and asserted that they were entitled to a portion of the fees paid by Borden in the federal action.

| ^Discussion

Appellate courts review summary judgments de novo. Lawyer v. Kountz, 97-2101 (La.App. 4 Cir. 7/29/98), 716 So.2d 493. A summary judgment 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 of material fact, and that the mover is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(b).

The Geismars contend that the October 8, 2001 and the January 14, 2002 judgments should be reversed on the grounds that the findings of the district court were contrary to Louisiana law governing the award of attorney’s fees and failed to take into consideration supporting affidavit testimony. The Geismars further argue that the October 8, 2001 judgment is precluded under the doctrine of res judicata and issue preclusion by the final partial summary judgment rendered in the Twenty-Third Judicial District Court. While this Court finds merit in the Geismars’ contentions, we pretermit discussion of these issues and focus on the argument that the September 12, 2001 judgment of the Twenty-Third Judicial District was final for purposes of res judicata, and thus precludes the granting of summary judgment by the Civil District Court.

La.R.S. 13:4231 states that a valid and final judgment is conclusive between the same parties. The statute provides that all causes of action arising out of the same transaction or occurrence are merged into the judgment and are barred by subsequent litigation on those causes of action. La. R.S. 13:4231. Under the principle of issue preclusion in R.S. 13:4231(3), “once a court decides an issue of fact or law necessary to its judgment, that decision precludes relitigation of the same issue in a different cause of action between the same parties.” Hudson v. City \Rof Bossier, 33,620 (La.App. 2nd Cir.8/25/00), 766 So.2d 738, 743. Official comment (d) further states that “the preclusive effect of a judgment attaches once a final judgment has been signed by the trial court and would bar any action filed thereafter unless the judgment is reversed on appeal.” This statute was designated in accordance with the current law on lis pendens. Comment (d) of La. R.S. 13:4231.

Pursuant to the article governing lis pendens, when two or more suits are pending in Louisiana courts, which arise from the same transaction or occurrence, the defendant may have all but the first suit dismissed. La. C.C.P. Art. 531. If the defendant fails to except, the plaintiff may continue the prosecution of any suit, but the first final judgment reached is conclusive as to all parties. Id.

In the case at bar, the October 8, 2001 district court judgment is precluded by the prior judgment rendered by the Twenty-Third Judicial District. On September 12, 2001, the district court in Ascension Parish ruled on the Geismar’s Motion for Partial Summary Judgment on Lack of Proprietary or Ownership Interest (sic) arising from the same legal malpractice suit that was simultaneously pending in Civil District Court between the same parties. The September 12, 2001 judgment stated that summary judgment was granted in favor of the Geismars and that the monies collected resulting from the Borden settlement were not governed by federal statute, but should be awarded according to the existing fee agreement between the parties. In the brief in support of their motion for new trial and exception of res judicata, the Geismars attached an exception of lis pendens filed by SJF, which was denied by the 23rd JDC. Accordingly, the first final judgment, or the September 12, 2001 judgment, is conclusive as to all the parties.

|7Although SJF contends that the partial summary judgment was not a final judgment for purposes of res judicata, the judgment was designated a partial final judgment along with reasons set forth by the court on September 12, 2001, prior to the judgment rendered in Civil District Court. This is consistent with La. C.C.P. Art.l915(A), which states that a partial judgment is not final unless it is so designated by the court. The finality of the September 12, 2001 judgment is further supported by the First Circuit’s denial of a motion to dismiss filed by SJF on appeal, which is attached to the Geismar’s reply brief. The First Circuit stated that it had appellate jurisdiction because of the partial final judgment’s designation as both final and appealable. The very fact that SJF and its insurer, Westport Insurance Co., subsequently sought devolutive appeal of the September 12, 2001 judgment is indicative of the finality of the judgment.

In determining whether or not the summary judgment motion should be granted, the Twenty-Third Judicial District Court assessed whether SJF had the legal right to retain settlement funds in excess of those set forth by the Agreement for Legal Services between the parties. SJF argues that the motion for summary judgment filed by the Geismars was framed in the context of SJF’s interest in the settlement funds of the Borden case in a claim for conversion. However, the determination of SJF’s interest in the settlement monies was also essential to the Civil District Court judgment in determining whether SJF was guilty of legal malpractice in retaining the fees. Therefore, the issue addressed by the partial final judgment was in fact relitigated in the granting of SJF’s motion for summary judgment in Civil District Court.

Although SJF argues that the September 12, 2001 judgment is currently on appeal before the First Circuit, the judgment is final for res judicata purposes | ¿unless it is reversed on appeal and was, therefore, final at the time the Civil District Court judgment was rendered. Since the October 8, 2001 judgment constitutes a final judgment, involves the same parties as the prior judgment, arises from the same transaction or occurrence, and addresses the essential issues of the prior judgment, it is precluded under principles of res judi-cata and issue preclusion.

Further, the Geismars contend that there is no independent course of action against Westport Insurance Co. without a finding of liability on the part of SJF. The judgment of September 12, 2001 opposes this finding, and the summary judgment granted in Westport’s favor must be reversed.

DECREE

For the reasons stated herein, we reverse the October 8, 2001 judgment of the district court granting SJF’s motion for summary judgment. Further, the January 14, 2002 judgment of the district court denying the Geismar’s peremptory exception of res judicata and Westport’s motion for summary judgment is also reversed.

REVERSED


author: hMICHAEL SULLIVAN, Judge.

text:
    Mark BULLER v. AMERICAN NATIONAL PROPERTY & CASUALTY COMPANIES, et al.
    No. 02-820.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Reba S. Powers, Attorney at Law, Oak-dale, LA, for Plaintiff in Cross-Claim/Appellant, Derrick Marcantel.
    Michael B. Holmes, Hebert, Holmes & Bertrand, Kinder, LA, for 'Defendant/Ap-pellee/Appellant, John Mayes.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   hMICHAEL SULLIVAN, Judge.

At about noon on January 23, 2000, Derrick Marcantel and his passenger, Mark Buller, were traveling east on Parish Line Road in Allen Parish, Louisiana, when Mr. Marcantel’s pickup truck struck an adult white cow that had wandered onto the road. That portion of Parish Line Road was included in a local “stock law” ordinance, enacted pursuant to La.R.S. 3:3003, that prohibited owners of livestock from “knowingly, willfully or negligently” allowing their livestock to roam at large on certain public highways.

Mr. Buller filed suit against Mr. Mar-cantel and his insurer, as well as John Mayes, the alleged owner of the cow. Mr. Marcantel then filed a cross-claim against Mr. Mayes. After Mr. Buller settled the main demand, the remaining parties proceeded to a bench trial of Mr. Marcantel’s cross-claim. At the close of evidence, the trial court apportioned 75% fault to Mr. Marcantel and 25% fault to Mr. Mayes. The trial court awarded Mr. Marcantel $1,000.00 in general damages and $631.53 in medical expenses, subject to a reduction for his percentage of fault, but it denied his claim for property damages. Mr. Mar-cantel filed an appeal, to which Mr. Mayes filed an answer. For the following reasons, we affirm the judgment in favor of Mr. Marcantel, but we amend it to include an award of property damages.

Discussion of the Record

Mr. Marcantel testified that he was traveling at about 35 m.p.h. in clear weather conditions on Parish Line Road, which is a straight, brown gravel road, when his passenger asked him to check the fast forward button on his tape player. He looked down at the tape player, and when he looked up he saw a white cow standing in the road. He testified that he “jerked” his wheel to avoid hitting the cow, but that he still hit the rear of the animal. After the accident, he noticed that about four other cows Lwere also on the road. (The white cow survived the accident and was able to walk away.) According to Mr. Marcantel, Mr. Mayes admitted at the scene that he owned the cows and that he would take care of any medical bills. The day after the accident, Mr. Marcantel obtained an estimate that repairs to his truck would total $2,182.19. However, he testified at trial that he could not afford to repair the truck, so he gave it to his grandfather, who was a mechanic.

Mr. Mayes testified that his family owns 550 acres to the north of the accident site where he keeps about 110 cows. The field to the south of the accident site is owned by the Manuel family, but they do not keep cattle on that land. Mr. Mayes testified that, at the scene of the accident, he presumed the cows on the road were his; therefore, with the help of a sheriffs deputy, he returned them into his field. After the accident, however, he discovered that the white cow, a Charoláis breed, did not have an ear tag or a brand. In his herd, Mr. Mayes kept three to five Charoláis, all of which he believed were marked. Hence, he denied that the white cow belonged to him, although he admitted that the other cows found on the road were his. He testified that he contacted Hine Unkel, who operated the only other cattle business in the area, but Mr. Unkel stated that the white cow was not his. Because no one else claimed the injured Charoláis, Mr. Mayes kept it with his cattle, and it later had a calf.

Mr. Mayes testified that his cattle were enclosed by a four-strand barbed wire fence that was only one-and-half years old. He further testified that the fences were inspected either daily or every other day, particularly in the winter months when the cows had to be fed often, and that he did not observe any deficiencies in his fence after this accident. However, he also testified that he and the sheriffs deputy attempted to guide the escaped cows through a gate after the accident, but that the [ P,cattle turned before they reached the gate and “jumped into the fence and went through it.” In his deposition, Mr. Mayes stated that the sheriffs department had contacted him two or three times in the previous six months about cattle escaping from his property. Mr. Mayes also recalled another accident in which Mr. Bul-ler’s mother struck one of his cows.

Ownership or Control of the Cow

In his answer to the appeal, Mr. Mayes first argues that the trial court erred in finding that he owned or controlled the white cow involved in the accident, given that the animal had no identifying brand or ear tag and that it was seen coming out of the pasture owned by the Manuels to the south of Parish Line Road.

A court of appeal may not set aside a trial court’s finding of fact unless it is manifestly erroneous or clearly wrong. Stobart v. State, through the Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). Thus, “[i]f the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1112 (La.1990) (citing Ro-sell v. ESCO, 549 So.2d 840 (La.1989)).

In State Farm Mutual Automobile Insurance Co. v. Thompson, 433 So.2d 376, 377 (La.App. 3 Cir.), writ denied, 441 So.2d 212 (La.1983), this court recognized that “[t]he ownership of cattle involved in an accident may be proved by circumstantial evidence.” In Thompson, we found that the evidence excluded every reasonable hypothesis but that the defendant owned the cattle involved in an accident, where the two animals that were killed were in the company of five to seven other cows, one of Rwhich the defendant admitted was his, and where the defendant removed the dead cattle from the roadway.

In the present case, Mr. Mayes denied ownership of the Charoláis involved in the accident because it did not have an ear tag or a brand and because it was seen coming from the south field, which was not his. However, that animal was found wandering with other cows that undisputedly belonged to Mr. Mayes, and the south field was not used for cattle operations. Mr. Mayes explained that he kept only three to five Charoláis, all of which he believed had either a brand or an ear tag. However, he admitted that his cows did lose their ear tags from time to time. The only other explanation for the white cow’s presence with Mr. Mayes’ cows was that it belonged to Mr. Unkel, who raised cattle nearby; however, Mr. Mayes admitted that Mr. Unkel denied ownership of the cow. Additionally, Mr. Mayes testified that, on occasion, Mr. Unkel’s cows would mingle with his, and that one of Mr. Unkel’s cows was currently in his pasture. Finally, Mr. Mayes testified that he still has possession of the white cow because no one else has claimed it. After reviewing the entirety of the record, we find no error in the trial court’s finding that Mr. Mayes either owned the Charoláis or exercised control over it for some time before the accident.

Apportionment of Fault

In apportioning 75% fault to Mr. Mar-cantel, the trial court considered Mr. Mar-cantel’s admission that he looked down to check the tape player immediately before he struck the cow. After viewing a picture of Parish Line Road near the accident site and considering that the accident occurred in daylight on a straight road without any obstructions, the trial court found no reason why Mr. Marcantel should not have seen the white cow sooner than he did. In assessing the remaining 25% fault | ¿to Mr. Mayes, the trial court found that Mr. Mayes failed to exculpate himself from the presumption of negligence applied in “stock law” cases by explaining how the cow escaped from its enclosure. Both Mr. Mayes and Mr. Marcantel have appealed these findings.

Negligence of Mr. Mayes

Mr. Mayes argues that the trial court applied an improper burden of proof by requiring him to prove his freedom from fault. He contends that the 1996 amendment to La.Civ.Code art. 2321, overruling the strict liability interpretation given that article in Holland v. Buckley, 305 So.2d 113 (La.1974), has also eliminated the presumption of negligence that the courts have applied in “stock law” cases.

In his oral reasons, the trial court alluded to the burden of proof articulated in Young v. Sentry Insurance Co., 315 So.2d 93 (La.App. 3 Cir.), writ denied, 319 So.2d 419 (La.1975) and Ourso v. Grimm, 92-1274 (La.App. 3 Cir. 1/5/94); 630 So.2d 963, writs denied, 94-339 (La.3/25/94); 635 So.2d 231, and 94-346 (La.3/25/94); 635 So.2d 230. In Young, 315 So.2d at 95, we stated the following in interpreting La.R.S. 3:2803, the “stock law” statute applicable to state highways:

The jurisprudence interpreting said statute is well settled that when an automobile strikes a horse or cow on one of the aforementioned “stock law” highways, the burden of proof rests upon the owner of the animal to exculpate himself from “even the slightest degree of negligence”. Schexnider v. Allstate Ins. Co., 304 So.2d 825 (La.App. 3rd Cir.1974); writ refused, “no error of law”, Feb. 14, 1975, 307 So.2d 639 (La.1975). Womack v. Rhymes, 300 So.2d 226 (La.App. 2nd Cir.1974), writ refused, “no error of law,” Nov. 22, 1974, 303 So.2d 179 (La. 1974).
Thus, a legal presumption of fault or negligence on the part of the animal’s owner is created in such cases. In order to rebut same the ^defendant must not only show that he has taken all reasonable and prudent measures and precautions to enclose his livestock, but must also explain the presence of the animal on the highway by showing when, where, and how the animal escaped from its enclosure, that is, his complete freedom from fault. Womack v. Rhymes, supra; concurring opinion in Ross v. Del Valle, 277 So.2d 163 (La.App. 3rd Cir. 1973) and cases cited therein.

Louisiana courts had consistently applied a presumption of negligence against the owner of livestock in “stock law” cases well before the Holland decision. In Parker v. Young, 122 So.2d 699, 703 (La.App. 1 Cir.1960), also construing La.R.S. 3:2803, the court reasoned:

It would completely vitiate a stock law if the burden of proof of defendant’s negligence were placed upon the passing motorist who strikes a cow on an open highway. The proof of where, when, and how the cow escaped from the enclosure is logically and fairly placed upon the individual who has a duty to keep that cow within a proper enclosure.

Further, writing for the court in Young, 315 So.2d at 95-96, Judge Domengeaux clearly stated that the reasoning and outcome of that case was not based upon the strict liability interpretation of Article 2321 in Holland:

We feel, however, that it is not necessary for us to make a comment [on Holland], insofar as its applicability herein, in light of the fact that this action was brought and argued under traditional negligence theory. Justice Tate, as organ of the court in Holland, clearly indicated that application of strict liability was “an exception to or in addition to any ground of recovery on the basis of negligence, Art. 2316” — 305 So.2d at 119. The correctness of this conclusion is also supported by the fact that the Supreme Court denied writs, “no error of law”, in both of the previous mentioned cases, Womack v. Rhymes, and Schexnider v. Allstate Ins. Co., supra (after deciding the Holland case) both of which relied solely on the negligence of the animal owner. We have likewise determined herein that the owner of the horse in question was liable under negligence theory.

Thus, it seems clear that the presumption that Mr. Mayes challenges is not solely based upon Article 2321, but also originates with the “stock law” found in |7La.R.S. 3:2803 and 3:3003. As Justice Summers pointed out in his dissent from the denial of writs in Young at 319 So.2d 419:

Taken together, these enactments [Article 2321 and La.R.S. 3:2803] require as a prerequisite to liability of the animal owner that he shall “knowingly, willfully or negligently” permit his livestock to go at large. This requirement is a far cry from the rule the Court of Appeal applies imposing the burden of proof upon the owner of the animal to exculpate himself from “even the slightest degree of negligence” instead of requiring, as in all other tort and civil cases, that the plaintiff establish by a preponderance of evidence that the animal owner has “knowingly, willfully or negligently” permitted his livestock to go at large.

Nonetheless, this is the interpretation that our courts of appeal have consistently applied in “stock law” cases. Accordingly, we find the trial court did not err in referring to Young, 315 So.2d 93, and its progeny in its oral reasons. Additionally, we find that the trial court’s conclusion that Mr. Mayes was negligent is supported by the present language of Article 2321. Article 2321 (emphasis added) now provides:

The owner of an animal is answerable for the damage caused by the animal. However, he is answerable for the damage only upon a showing that he knew or, in the exercise of reasonable care, should have known that his animal’s behavior would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nonetheless, the owner of a dog is strictly liable for damages for injuries to persons or property caused by the dog and which the owner could have prevented and which did not result from the injured person’s provocation of the dog. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

In Granger v. Guillory, 01-1539, 02-88 (La.App. 3 Cir. 6/5/02); 819 So.2d 477, writs denied, 02-1841, 02-1862 (La.10/4/02); 826 So.2d 1132, this court relied on the last sentence of Article 2321 to find that the doctrine of res ipsa loqui-tur permitted an inference of negligence against the owner of horses that had escaped onto a “closed stock” highway. To rely on the doctrine, the plaintiff must (1) present |sevidence that indicates at least a probability that the injury would not have occurred without negligence; (2) sufficiently exclude an inference of his or her own responsibility or the responsibility of others besides the defendant in causing the accident (although with comparative fault, the effect of the plaintiffs negligence is to reduce recovery and not relieve the defendant of liability); and (3) establish that the negligence falls within the scope of the duty to the plaintiff. Cangelosi v. Our Lady of the Lake Regional Med. Ctr., 564 So.2d 654 (La.1989) (on rehearing). In Granger, 819 So.2d 477, we found that the defendant had control of the horses, that normally two domestic horses would not be found on a closed range highway in the absence of negligence, and that the defendant’s complicated latching system on his gate sufficiently negated the possibility that an unknown person permitted the horses to escape.

In the present case, Mr. Mayes testified that the cows were able to reenter his pasture through his fence, rather than through his gate. We find that this testimony, when considered with his other admissions of the animals escaping, permits an inference that his fence was not sufficient to contain his livestock.

Negligence of Mr. Marcantel

Mr. Marcantel argues that the trial court erred in assessing him with 75% fault, considering that he was faced with a sudden emergency of the presence of a cow on the road. However, as explained in Anderson v. May, 01-1031, p. 7 (La. App. 5 Cir. 2/13/02); 812 So.2d 81, 86 (footnote omitted):

The rule of sudden emergency cannot be invoked by one who has not used due care to avoid the emergency. The sudden emergency doctrine is applicable to the standard of conduct after an emergency has arisen. It does not apply to lower the standard of care required of motorists before the emergency occurs.

[ Given Mr. Marcantel’s admission that he looked down to check his tape player before he saw the cow, we find no error in the trial court’s conclusion that he should bear a greater percentage of fault in the cause of this accident. The evidence established that it was a clear day and that a white cow on a brown gravel road should have been easily seen. The trial court’s apportionment of fault is affirmed.

Property Damages

In his oral reasons, the trial court stated that it denied Mr. Marcantel’s claim for property damages because Mr. Mar-cantel never had his vehicle repaired. Mr. Marcantel argues that this was error, given that he introduced an estimate and testimony that his vehicle needed $2,182.19 in repairs as a result of the accident. We agree.

In Rogers v. Commercial Union Insurance Co., 01-443 (La.App. 3 Cir. 10/3/01); 796 So.2d 862, this court found that the trial court properly awarded property damages based upon the estimated cost of repairs, where the defendants failed to offer any evidence as to the value of the car or them own estimate of repairs. We based that finding on the following language from Coleman v. Victor, 326 So.2d 344, 346-47 (La.1976) (emphasis added) (footnotes omitted):

When property is damaged through the legal fault of another, the primary objective is to restore the property as nearly as possible to the state it was in immediately preceding the damage, it is well settled that the measure of damage is the cost of restoring the property to its former condition. In assessing damage to property, generally, courts have considered the cost of restoration as the proper measure of damage where the thing damaged can be adequately repaired. ... In our view, no mechanical rule can be applied with exactitude in the assessment of property damage under article 2315. Each case must rest on its own facts and circumstances as supported by the proof in the record.

The plaintiff in Coleman testified that her vehicle needed approximately $800.00 in repairs, but that she chose to sell it for $350.00 because she was unable |10to borrow the money to have it repaired. The supreme court held that the proper measure of property damages was the cost of repair, in the absence of any proof that the vehicle was a total loss.

In the present case, Mr. Marcantel offered the testimony of James Smith, who inspected and prepared an estimate of Mr. Marcantel’s vehicle on the day after the accident. (Mr. Smith had been in the paint and body repair business for twenty-two years, and the trial court apparently accepted him as an expert, as it set an expert witness fee of $100.00.) Mr. Mayes did not challenge the accuracy of Mr. Smith’s estimate or establish that the vehicle was totaled, but only questioned whether all damages were from this accident. Mr. Marcantel testified that his truck had no pre-existing damage, and he introduced pictures showing that most of the damage occurred to the left front, which was consistent with his description of the accident. In denying the claim, the trial court considered that the truck was never repaired; it did not comment on the accuracy of the estimate. Under these circumstances, we find the evidence clearly supports an award of property damages in the amount of the cost of repair, $2,182.19, subject to a reduction for Mr. Marcantel’s percentage of fault.

Court Costs

Mr. Mayes argues that the trial court erred in assessing 25% of the court costs to him. However, in light of our affirmation of the trial court’s allocation of fault, we find no error in the trial court’s apportionment of court costs in accordance with the percentages of fault assigned.

Decree

For the above reasons, the judgment of the trial court in favor of Mr. Marcantel is amended to include an award of property damages in the amount of $545.55 In($2,182.19 less 75% fault attributable to Mr. Marcantel). In all other respects, the judgment is affirmed. Costs of this appeal are assessed one-half to Mr. Marcantel and one-half to Mr. Mayes.

AFFIRMED AS AMENDED.

      . Just as La.R.S. 3:3003 and the ordinances at issue here, La.R.S. 3:2803 provides that no one owning livestock shall “knowingly, wilfully, or negligently” permit his livestock to roam on certain public roads.


author: hGREMILLION, Judge.

text:
    STATE of Louisiana v. Robert Paul DAY.
    No. 02-1039.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 2003.

      Robert Richard Bryant, Jr., District Attorney, Lake Charles, LA, for PlaintiffiAp-pellee, State of Louisiana.
    Paula Corley Marx, Louisiana Appellate Project, Lafayette, LA, for Defendant/Appellant, Robert Paul Day.
    Court composed of SYLVIA R. COOKS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges.
   hGREMILLION, Judge.

In this case, the defendant, Robert Paul Day, pled guilty to cultivation of marijuana in violation of La.R.S. 40:966(A)(1). He was sentenced to serve five years at hard labor without benefit of probation, parole, or suspension of sentence, with credit for time served. He now appeals claiming that the sentence imposed was cruel, unusual, and constitutionally excessive; the trial court erred in finding the amendments to La.Code Crim.P. art. 893 did not apply to this case; and the trial court failed to adequately articulate the factual basis and reasons which supported the sentence imposed. For the following reasons, we affirm.

FACTS

On or about May 19, 2000, detectives arrived at Defendant’s house to investigate a tip from his wife, regarding his use and cultivation of marijuana. Upon the detectives’ entry into his house, they detected the smell of burnt marijuana. Defendant admitted smoMng a joint shortly before the detectives arrived. He was searched and three partially burnt marijuana cigarettes and a metal clip were found. Also found were a metal pan with green plant material, rolling papers, scissors, and four hand-rolled cigarettes. Defendant maintained that he was growing the marijuana plants so he would not have to purchase the drug. He was arrested for possession of marijuana, possession of drug paraphernalia, and cultivation of marijuana.

RETROACTIVE APPLICATION ARTICLE 893

Defendant argues Acts 2001, No. 403, § 6, amending La.Code Crim.P. art. 893 and effective June 15, 2001, affords him the benefit of probation, parole, or suspension of sentence since he was sentenced after the acts’ effective date, even | ¡.though the offense was committed prior to its effective date. Since this issue affects the outcome of Defendant’s other assignments of error, we shall review it first.

Defendant contends that the amendments to Article 893 apply to persons convicted after June 15, 2001, and thus, the trial court erred when it applied the law in effect at the time of the offense when sentencing him. The State asserts that the sentencing provisions of La.R.S. 40:966(A) and La.Code Crim.P. art. 893 in effect prior to the most recent amendments apply to Defendant, which precludes him from receiving benefits.

The Louisiana Supreme Court recently rendered three opinions on the same day that made important distinctions between the Legislature’s enactment of 2001 Acts, No. 403, which amended Article 893, and Acts 2001, No. 1163, which concerns the DWI statute. First is State v. Michael J. Mayeux, 01-3195 (La.6/21/02), 820 So.2d 526. Defendant relies on this case as authority for his contention that the new amendment should be retroactively applied to his sentence.

In Mayeux, the supreme court stated that the enactment of Act 1163, which amended the sentencing provisions of La. R.S. 14:98, applied to defendants convicted after the effective date of the statute based on “1) the words ‘upon conviction’; 2) the legislative purpose of favoring treatment over incarceration; and 3) allowing home incarceration for those previously convicted.” Id. at 530. The supreme court acknowledged the longstanding rule that the law in effect at the time of the offense determines the applicable penalty. However, the supreme court noted that the enactment of Act 1163, in relation to the DWI law, made changes to how the sentence was to be served, in addition to the Legislature stating its underlying policy ^considerations for the changes. The changes were not merely adjustments to the term of imprisonment. Therefore, the new amendment applied to cases where the conviction occurred after the effective date.

In State v. Sugasti, 01-3407 (La.6/21/02), 820 So.2d 518, the defendant was sentenced to five years imprisonment for possession of heroin and alprazolam, and six months in parish jail for possession of marijuana, with a fine, court costs, and commission fees. The crimes were committed in 1998, and he was sentenced after the amendment to La.R.S. 40:966(C) became effective on June 15, 2001. The supreme court stated:

Policy reasons mitigate against holding that the amendment to LSA-R.S. 40:966(C) applies to anyone sentenced after June 15, 2001, regardless of when the offense was committed. To do so would encourage defendants to continually delay prosecution in hope that the legislature would enact more lenient sentences. Additionally, it would be grossly unfair to two defendants who commit the same crime on the same day to be sentenced under different penalties should one defendant successfully delay punishment until after the benefits of a reduced penalty go into effect.

Id. at 522 (footnote omitted). Furthermore, the supreme court reasoned that, had the Legislature intended for the amendment to be retroactive, it would have expressly stated so in the act. Id. See also State v. Weaver, 01-0467 (La.1/15/02), 805 So.2d 166. The act amending La.R.S. 40:966(A) does not expressly state that the amendment is to be applied retroactively.

In Sugasti, the supreme court distinguished Act 403 from Act 1163 by writing:

We distinguish Act 403 from the provisions of 2001 La. Acts No. 1163, which amended the sentencing provisions of LSA-R.S. 14:98(E) related to driving while intoxicated. The new provisions in Act 1163 retained the sentencing ranges provided for third and fourth offense | ¿driving while intoxicated violations, but radically changed the way the offender may or must serve the sentence imposed by the court. The statute encompassing the penalty provisions specifically states “upon conviction” the defendant shall be punished to a specific term. Additionally, the act did not include language specifying “prospective only” application. Act 1163 simply went into effect on August 16, 2001.

Id. at 521 (footnote omitted).

In State v. Wayne Mayeux, 01-3408 (La.6/21/02), 820 So.2d 524, the supreme court held that a defendant, charged with possession of heroin in June 2000, and convicted of the charge in September 2001, after the effective date of amended Article 893, would be sentenced under the law in effect at the time of the offense. The court ruled, “The fact that a statute is subsequently amended to lessen the possible penalty does not extinguish liability for the offense committed under the former statute.” Id. at 525. This case supports the general rule stated in Sugasti, that the statute in effect at the time the offense was committed governs the sentence of the defendant, but the case only briefly mentioned the newly amended Article 893. However, the supreme court did defer to the assigned reasons contained in Sugasti, which adequately discussed Act 403 and its effect on the sentencing provisions of Article 893.

Defendant overlooks the clear reading of the act itself. Act 403, § 6 provides that “[t]he provision of this Act shall only have prospective effect.” It is clear the Legislature intended the newly amended provision of Article 893 to apply to only those defendants whose crimes were committed after June 15, 2001; the fact that the new provision became effective before Defendant’s conviction does not extinguish his liability for the offense committed under the prior statute. Therefore, |Bthe penalty provision under the prior law is applicable to this case. This assignment of error is without merit.

EXCESSIVE SENTENCE

Defendant alleges, in this assignment of error, that the sentence imposed was cruel, unusual, and constitutionally excessive. Article 1, § 20 of the Louisiana Constitution of 1974, prohibits “cruel, excessive, or unusual punishment.” A sentence within the statutory limits may still be deemed excessive under the particular circumstances of the case. State v. Sepulvado, 367 So.2d 762 (La.1979). He also contends his sentence is constitutionally excessive in light of the fact that the marijuana he was growing was for his own personal use.

Defendant was convicted of cultivation of marijuana in violation of La.R.S. 40:966(A), which carries a term of imprisonment at hard labor for not less than five years nor more than thirty years, and a fine of not more than fifty thousand dollars. As we have noted, he was sentenced to the minimum allowed under the statute in effect at the time of the offense, which was five years at hard labor without benefit of probation, parole, or suspension of sentence.

At the hearing on the motion for reconsideration of sentence, Defendant argued that the marijuana plants were for his personal use and the small amount found on his premises did not warrant such an excessive sentence. In response to this contention, the trial court stated:

I struggled with it, I wish you could have gotten a plea less than what it was, but that’s exactly what it is,—
Whether it was a small amount or baby plants or however you want to consider it. I think the legislature, you know, they chose five years, that may be high. I don’t think it’s cruel and unusual, okay. They | fiput in a provision that it would be five years served without benefit of parole, probation, or suspension of sentence. I’m not going to declare the statute unconstitutional, so your motion for reconsideration is denied.

A sentence which falls within the statutory limits may, nevertheless, be excessive under the circumstances. Sepulvado, 367 So.2d 762; State v. Naquin, 527 So.2d 601 (La.App. 3 Cir.1988). To constitute an excessive sentence this court must find that the penalty is so grossly disproportionate to the severity of the crime as to shock our sense of justice, or that the sentence makes no measurable contribution to acceptable penal goals and, therefore, is nothing more than needless imposition of pain and suffering. State v. Brown, 94-1290 (La.1/17/95), 648 So.2d 872, State v. Campbell, 404 So.2d 1205 (La.1981); State v. Dubroc, 99-730 (La.App. 3 Cir. 12/15/99), 755 So.2d 297. The trial court is given wide discretion in imposing a sentence, and a sentence imposed within the statutory limits will not be deemed excessive in the absence of manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982). The five year sentence is not so grossly disproportionate as to shock our sense of justice, particularly in light of Defendant’s prior criminal record and the fact that it is the minimum sentence allowed under the law for the crime to which he has pled guilty. Defendant has failed to show his sentence is constitutionally excessive. Accordingly, this assignment of error is without merit.

COMPLIANCE WITH ARTICLE 894.1

In this assignment of error, Defendant claims that the trial court failed to adequately articulate reasons and the factual basis for the sentence, relying on La. Code Crim.P. art. 894.1. In State v. Hopkins, 96-1063, p. 4 (La.App. 3 Cir. |73/5/97), 692 So.2d 538, 541, we stated with respect to the issue of compliance with that article:

The trial judge is given wide discretion in imposing a sentence, and a sentence imposed within statutory limits will not be deemed excessive lacking a manifest abuse of discretion. State v. Howard, 414 So.2d 1210 (La.1982).
The Legislature has provided criteria to aid a sentencing court in determining whether a sentence of imprisonment should be imposed and whether suspension of a sentence or probation is warranted. La.Code Crim.P. art. 894.1; State v. Klause, 525 So.2d 1076 (La.App. 3 Cir.1988). Paragraph (c) of Article 894.1 requires the court to state for the record the considerations taken into account and the factual basis used when imposing a sentence. The trial court need not refer to every aggravating and mitigating circumstance in order to comply with the article. However, the record must affirmatively reflect that adequate consideration was given to the codal guidelines in particularizing the defendant’s sentence. State v. Smith, 433 So.2d 688 (La.1983).
If there is an adequate factual basis for the sentence contained in the record, the trial court’s failure to articulate every circumstance listed in Article 894.1 will not require a remand for resentenc-ing. State v. Cottingin, 476 So.2d 1184 (La.App. 3 Cir.1985), appeal after remand, 496 So.2d 1379 (La.App. 3 Cir. 1986); State v. Morgan, 428 So.2d 1215 (La.App. 3 Cir.1983), writ denied, 433 So.2d 166 (La.1983).

See also State v. Iron, 00-1238 (La.App. 3 Cir. 2/14/01), 780 So.2d 1123, writ denied, 01-1232 (La.3/15/02), 811 So.2d 898.

As stated in State v. Cottingin, 476 So.2d 1184, 1186 (La.App. 3 Cir.1985) (cita tion omitted):

There are two underlying purposes of the codal requirement that the sentencing court articulate the specific reasons based on particular facts and considerations for imposing a sentence. First, it ensures that the sentence is particularized to the defendant. In addition, it aids the reviewing court in the determination of whether the sentence imposed is excessive by providing an actual indication of whether the sentencing court adequately considered the statutory guidelines.

Furthermore, in State v. Campbell, 404 So.2d 1205, 1207 (La.1981), quoting State v. Bonanno, 384 So.2d 355, 358 (La.1980), the court stated,

To determine whether the penalty is so grossly disproportionate to the crime we must consider the punishment and the crime in light of the harm to society caused by its commission and determine whether the penalty is so disproportionate to the crime committed as to shock our sense of justice. State v. Beavers, 382 So.2d 943 (La.1980).

Defendant contends the marijuana plants were for his own personal use and not for sale or distribution. He also alleges that his cooperation with the police, coupled with letters from his wife and supervisor attesting to his character, should have been considered as mitigating factors in his sentencing.

The trial court noted it had reviewed all of the information pertaining to Defendant, namely the pre-sentence report and Defendant’s supplemental report, which contained letters from his friends and family. The trial court also considered Defendant’s work history and a prior felony offense in 1991. It was also noted that Defendant cooperated with the police, was gainfully employed, paying his child support, and had a relatively small amount of marijuana for his personal use.

We find that the trial court complied with the sentencing guidelines under Article 894.1. The trial court imposed the minimum term of imprisonment under La. R.S. 40:966, and noted Defendant’s prior felony conviction as the basis for the sentence. In this instance, we hold that the mandatory minimum sentence of five years is not excessive. This assignment of error is also found to be without merit.

ERRORS PATENT

In accordance with La.Code Crim.P. art. 920, all appeals are reviewed for errors patent on the face of the record. After reviewing the record, we note there is one error patent. The trial court informed Defendant of the two-year period for lafiling post-conviction relief at the time of the guilty plea, rather than at the time of sentencing as required by La.Code Crim.P. art. 930.8. In State v. Green, 94-617 (La.App. 3 Cir. 12/7/94), 647 So.2d 536, we found such notice to be sufficient. However, out of an abundance of caution, we asked the trial court to inform the defendant of the prescriptive period for filing post-conviction relief by sending appropriate written notice within ten days of the rendition of our opinion and to file written proof that the defendant received notice in the record of these proceedings. Accordingly, the trial court is asked to do the same in this case.

CONCLUSION

Defendant’s sentence is affirmed. Additionally, the trial court is requested to inform him of the prescriptive period for filing post-conviction relief by sending appropriate written notice within ten days of the rendition of this opinion and to file written proof that he received notice in the record of these proceedings.

AFFIRMED.