author: LMcCLENDON, J. hPER CURIAM.

text:
    Huston R. WILLIAMS, et al. v. CITY OF BATON ROUGE, Parish of East Baton Rouge, et al. John B. Raby, et al. v. City of Baton Rouge, Parish of East Baton Rouge, et al.
    No. 2002 CA 0339, 2002 CA 0340.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 14, 2003.
    Opinion on Limited Grant of Rehearing July 3, 2003.

      Paula Cobb, Baton Rouge, Counsel for Plaintiffs/Appellees, Huston R. Williams, et al.
    Edwin A. Smith, III, Harry L. Shoemaker, III, Baton Rouge, Counsel for Plaintiffs/Appellees, John B. Raby, et al.
    James J. Zito, W. Shelby McKenzie, Baton Rouge, Counsel for Defendants/Appel-lees, City of Baton Rouge, Parish of East Baton Rouge, et al.
    Gracella Simmons Baton Rouge, Counsel for Defendant, Appellant, Fidelity and Casualty Company of New York.
    Before: FOIL, McCLENDON, and KLINE, JJ.

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

   LMcCLENDON, J.

This is an appeal by an insurer from a declaratory judgment setting forth the rights and responsibilities of parties to this action under various judgments. For the following reasons, we amend in part and affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiffs in this consolidated matter filed suit against the City of Baton Rouge and Parish of East Baton Rouge (City/Parish), its insurers and other individuals for wrongful entry and damage to plaintiffs’ property in connection with the digging of drainage canals. The insurers were The Fidelity and Casualty Company of New York (F & C), now CNA Insurance Company, and Chicago Insurance Company (Chicago).

Judgment was originally signed by the trial court on January 26, 1995, in favor of plaintiffs and against the City/Parish and other defendants, but finding no coverage under the provisions of the policies of insurance of F & C and Chicago. Thereafter, several defendants, including the City/Parish, filed a Motion for New Trial and Judgment Notwithstanding the Verdict, and, on September 12, 1995, the trial court signed an amended judgment. In its amended judgment, the trial court reversed its earlier ruling that neither insurer provided coverage to those defendants cast in judgment, finding that both F & C and Chicago provided coverage for the defendants cast. The amended judgment was appealed to this Court, which, after some adjustments to the property damage awards, upheld the trial court judgment. The judgment, as affirmed by this Court, ordered defendants to pay damages to plaintiffs, including property damage and mental anguish, in an amount exceeding $1,000,000.00, plus attorney fees, expert witness fees, and costs. Williams v. City of Baton Rouge, 96-0675, 96-0676 (La.App. 1 Cir. 4/30/98), 715 So.2d 15.

The City/Parish and Chicago, but not F & C, sought writs to the Louisiana Supreme Court, which were granted. Williams v. City of Baton Rouge, 98-1981, 98-2024 (La.11/25/98), 729 So.2d 579. The supreme court reduced the amount of the principal damage award to $460,970.09 and released Chicago from all liability. Williams v. City of Baton Rouge, 98-1981, 98-2024 (La.4/13/99), 731 So.2d 240.

Following this Court’s decision, but pri- or to the decision of the supreme court, F & C, on September 29,1998, deposited into the registry of the United States District Court for the Middle District of Louisiana, the sum of $1,025,745.47, an amount it contends satisfies its obligations under the judgment.

The parties, seeking a judicial declaration of their rights and responsibilities under these judgments, filed a joint motion for declaratory relief on September 28, 1999.

Action of the trial court

An evidentiary hearing on the Motion for Declaratory Relief was held on June 11, 2001, and a decision rendered in open court on July 9, 2001. Judgment was signed on October 16, 2001.

With regard to F & C, the trial court held:

1) That F & C could not benefit from the holding of the Louisiana Supreme Court reducing the total damage award to plaintiffs, as F & C did not seek relief from the judgment of the court of appeal and it is bound by that judgment. Therefore, F & C is liable for its policy limits of $400,000.00, plus attorney fees of $45,000.00, expert fees of $19,500.00 and costs, plus legal interest as shown below.

lfi2) That F & C is liable for legal interest on its policy limits ($400,000.00) from the date of judicial demand until date of judgment, and for legal interest on the entire amount of the Court of Appeal judgment ($1,087,470.09, including attorney fees and expert fees) from date of judgment until full and effective tender by F & C of “that part of the judgment which does not exceed [F & C’s] liability thereon” as provided in the supplemental payment clause of the F & C policy.

3) That F & C is entitled to a credit of $1,025,745.47 for the funds deposited into the registry of the federal court on September 29,1998.

4) That, since LSA-C.C. art. 1866 requires that the funds tendered be allocated first against the interest due at that time, and since the remaining funds were not enough to cover the principal damages due, the stipulated $126,177.81 shortage consisted entirely of principal liability. Accordingly, because F & C’s contractual obligations were not met, legal interest continues to inn against F & C “on the entire amount of any judgment therein” as provided for in the supplemental payment clause of the F & C insurance policy, until full and complete payment, tender or deposit is made.

It is from this declaratory judgment that F & C has appealed.

ASSIGNMENTS OF ERROR

F & C has raised five assignments of error:

1) The trial court erred in ruling that F & C could not benefit from the supreme court’s reduced judgment against F & C’s insured, and that F & C is liable for the original 1995 judgment;

2) The trial court erred in ruling that F & C is liable for interest on the original 1995 judgment rather than on the final judgment amount rendered in 1999 by the | fiSupreme court against F & C’s insured;

3) The trial court erred in ruling F & C liable for post-judgment interest after it deposited into the registry of the court its policy limits, costs, and pre-judgment interest on its policy limits;

4) The trial court erred in relying on LSA-C.C. art. 1866 to determine the application of F & C’s deposit; and

5) The trial court erred in allowing a shortfall in the deposit of accrued post-judgment interest to trigger the accrual of additional interest on the entire judgment amount.

DISCUSSION

Declaratory Judgments

Under the declaratory judgment articles of the Code of Civil Procedure, a court has the jurisdiction to declare rights, status, and other legal relations whether or not further relief is or could be claimed. LSA-C.C.P. art. 1871. The purpose of the articles is to settle and afford relief from uncertainty and insecurity with respect to those rights, status and other legal relations, and the articles should be liberally construed and administered. LSA-C.C.P. art. 1881. A person is entitled to relief by declaratory judgment when his rights are uncertain or disputed in an immediate and genuine situation and the declaratory judgment will remove the uncertainty or terminate the dispute. State, Department of Transportation and Development v. Sugarland Ventures, Inc., 476 So.2d 970, 973 (La.App. 1 Cir.), writ denied, 478 So.2d 909 (La.1985); Duplantis v. Louisiana Board of Ethics, 2000-1750, pp. 11-12 (La.3/23/01), 782 So.2d 582, 599 (Calogero, C.J., dissenting). The function of a declaratory judgment is simply to establish the rights of the parties or express the opinion of the court on a question of law without ordering anything to be done. ANR Pipeline Co. v. Louisiana Tax Commission, 2001-2594, p. 9 (La.App. 1 Cir. 3/20/02), 815 So.2d 178, 185; MKM, L.L.C. v. Rebstock Marine Transportation, Inc., 99-0431, p. 14 (La.App. 1 Cir. 9/7/00), 773 So.2d 776, 785, writ denied, 2000-2797 (La.12/8/00), 776 So.2d 460; State, Department of Transportation and Development v. Sugarland Ventures, Inc., 476 So.2d at 974.

Standard of Review

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993); MKM, L.L.C. v. Rebstock Marine Transportation, Inc., 99-0431 at p. 7, 773 So.2d at 781.

Assignments of Error One and Two

During the time of the excavation project, the City/Parish was insured by F & C under a commercial liability policy, in excess of the City/Parish’s $100,000.00 self-insurance retention. F & C’s policy limits were $400,000.00. The trial court determined that the City/Parish did not willfully commit a crime and, thus, exclusionary language in the F & C policy did not preclude coverage. This Court on appeal found no error in the trial court’s determination that the F & C policy provided coverage for all items of damages (in excess of the $100,000.00 self-insurance retention), which plaintiffs sustained due to the City/Parish’s actions. This Court further upheld the decision of the trial court finding Chicago provided excess coverage for all remaining damages over $500,000.00. Williams v. City of Baton Rouge, 96-0675, pp. 23-28 (La. 1 Cir. 4/30/98), 715 So.2d 15, 34-37.

The City/Parish and Chicago both filed writ applications with the Louisiana Supreme Court. The supreme court reduced the damage award and held that the |sexcess insurance policy of Chicago did not provide coverage, finding the City/Parish’s acts intentional. F & C did not file a writ application.

Therefore, and as stated by the supreme court, when F & C did not file a writ application, the lower courts’ finding that the City/Parish is covered under the F & C policy became final. Williams v. City of Baton Rouge, 98-1981, 98-2024, p. 18 (La.4/13/99), 731 So.2d 240, 252.

F & C contends, however, that it should benefit from the reduction of judgment against its insured. F & C argues that the supreme court only acknowledged that the judgment is final as to coverage under the F & C policy, and that, according to the terms of its policy, it cannot be cast in judgment for a greater amount than that of its insured. F & C’s argument is without merit.

When a court renders a judgment that decides the merits of the case in whole or in part, the judgment is a final judgment. LSA-C.C.P. art. 1841. A final judgment is conclusive between the parties except on appeal or direct review. LSA-R.S. 13:4231. In Avenue Plaza, L.L.C. v. Falgoust, 96-0173, p. 4 (La.7/2/96), 676 So.2d 1077, 1079, the Louisiana Supreme Court stated as follows: “A final judgment from which there can be no appeal acquires the authority of the thing adjudged. La. C.C. art 3506(31). Once a final judgment acquires the authority of the thing adjudged, no court has jurisdiction to change the judgment, regardless of the magnitude of the final judgment’s error. Tolis v. Board of Supervisors of Louisiana State University, 95-1529, pp. 2-3 (La.10/16/95), 660 So.2d 1206, 1206-07.” See also Dupre v. Floyd, 2001-2399, p. 4 (La.App. 1 Cir. 7/1/02), 825 So.2d 1238, 1241 (per curiam).

19Thus, an appellate court cannot amend a judgment in favor of a party who has neither appealed nor complained by way of an answer to the appeal and it is improper to reduce a damage award in favor of a party who doesn’t seek review. Blair v. Tynes, 621 So.2d 591, 601 (La. 1993); Blasingame v. Anderson, 236 La. 505, 108 So.2d 105, 110 (1959).

In Ridenour v. Wausau Insurance Company, 627 So.2d 141 (La.1993), the plaintiff filed suit against her automobile insurer seeking to recover under the policy’s uninsured motorist coverage following injuries she received in a motorcycle accident. State Farm, the insurer, appealed the trial court’s decision to impute a $10,000.00 tender to interest. The court of appeal amended the judgment and the insured sought writs to the supreme court. State Farm did not. The supreme court remanded the case to the trial court to determine what portion of the tender should be applied to accrued interest. The court stated:

State Farm did not apply for writs to this court from the court of appeal’s judgment; therefore, that judgment is final as to State Farm. For this reason, in the event the trial judge should find that the amount due is actually less than the amount State Farm was required to pay under the court of appeal judgment, he may not reduce [the insured’s] award below this level.

Ridenour v. Wausau Insurance Company, 627 So.2d at 143.

F & C contends, however, that the case of Parker v. Depriest, 94-0513 (La. 1 App. Cir. 12/21/95), 666 So.2d 433, writs denied, 96-0202, 96-0218 (La.4/8/96), 671 So.2d 335, allows an appellate court to amend a judgment even as to a non-appealing party. The facts of Parker v. Depriest, however, are clearly distinguishable from the present case, as it involved regulatory commission bonds and an indemnity agreement. Additionally, the court specifically determined that the bonds were not construable as liability insurance, and thus could not create a basis for rendering a judgment against the appellant trailer owner. The court recognized that the surety on the trailer owner’s regulatory commission bonds, |inneither appealed nor answered the appeal of plaintiff and stated that, ordinarily, a court may not grant relief to such a non-complaining party. LSA-C.C.P. art. 2133. But under these particular circumstances, because the appellant trailer owner was aggrieved by the judgment against the surety, the judgment against the appellant could not be effectively reversed without reversing as to the surety.

F & C’s failure to seek relief from the court of appeal judgment makes it bound by that judgment. The F & C judgment, having acquired the authority of the thing adjudged, became final as to F & C. Therefore, F & C cannot benefit from the reduced supreme court judgment. See Nunez v. Commercial Union Insurance Company, 2000-3062, p. 2 (La.2/16/01), 780 So.2d 348, 349 (per curiam). F & C’s first assignment of error is without merit.

Further, because F & C cannot benefit from the supreme court’s reduced judgment against its insured, it clearly cannot benefit from the 1999 judgment and be held liable for interest on that reduced judgment, instead of the court of appeal judgment. F & C’s second assignment of error is similarly without merit.

Assignments of Error Three and Four

F & C next contends that it deposited into the registry of federal court its policy limits, costs, and pre-judgment interest on its policy limits, and therefore the trial court erred in ruling that it is liable for further post-judgment interest. F & C also avers that the trial court erred in relying on LSA-C.C. art. 1866 for the application of the deposit.

LSA-R.S. 13:4208 provides:

Legal interest shall attach from date of judicial demand, on all judgments, sounding in damages, “ex delicto”, which may be rendered by any of the courts.

|nUnder LSA-R.S. 13:4203, all liability carriers owe interest on judgments in tort cases, up to their policy limits, from the date of judicial demand. Any policy provision which attempts to limit an insurer’s liability for legal interest on the policy limits contravenes the public policy of LSA-R.S. 13:4203. Martin v. Champion Insurance Company, 95-0030, p. 5 (La.6/30/95), 656 So.2d 991, 995; Hedgepeth v. Guerin, 96-1044, p. 16 (La.App. 1 Cir. 3/27/97), 691 So.2d 1355, 1365, writ denied, 97-1377 (La.9/26/97), 701 So.2d 983. However, this statutory provision does not prohibit insurers from limiting or extending their liability for interest on excess judgments. Insurers utilize supplemental payment provisions to outline their obligations with regard to interest. Thus, to determine an insurer’s interest obligation on an excess judgment, we must refer to the supplemental payment provisions contained in the applicable insurance contract. Martin v. Champion Insurance Company, 95-0030 at pp. 5-6, 656 So.2d at 995; Hedgepeth v. Guerin, 96-1044 at p. 16, 691 So.2d at 1365.

Under the Supplementary Payments section of the F & C policy, F & C has obligated itself to pay “in addition to the applicable limit of liability” the following:

(a) all expenses incurred by [F & C], all costs taxed against the insured in any suit defended by [F & C] and all interest on the entire amount of any judgment therein which accrues after entry of the judgment and before [F & C] has paid or tendered or deposited in court that part of the judgment which does not exceed the limit of [F & C’s] Lability thereon....

The supplemental pay provision in this case is the same as that in the Hedgepeth v. Guerin case. Hedgepeth recognized the jurisprudence interpreting similar supplemental pay clauses, stating that the courts have consistently held that, under these supplemental pay clauses, the insurer intended to provide its insured with supplemental protection for all interest and costs on the entire judgment |12which accrues after entry of judgment. (Citations omitted). Hedgepeth v. Guerin, 96-1044 at pp. 16-17, 691 So.2d at 1365.

In order for F & C to be relieved of the obligation of paying additional interest on the judgment in favor of plaintiffs, it was incumbent upon F & C to tender the actual amount owed. See Inabinet v. State Farm Auto. Insurance Company, 262 So.2d 920, 923 (La.App. 1 Cir.1972). F & C contends that its deposit into the registry of the federal court did just that, terminating its obligations, including that of post-judgment interest. The City/Parish argues, however, that F & C owes post-judgment interest on the entire judgment, and the tender, an amount in excess of the sum of its policy limits, pre-judgment interest and costs, was not sufficient to satisfy accrued post-judgment interest.

The imputation of interest is governed by LSA-C.C. art. 1866, which provides:

An obligor of a debt that bears interest may not, without the obligee’s consent, impute a payment to principal when interest is due.
A payment made on principal and interest must be imputed first to interest.

This article is found in Title III of Book III of the Civil Code, which is entitled “Obligations in General”. LSA-C.C. art. 1757, which is also included in Title III, provides that obligations can arise from contracts as well as from the law, as in instances of wrongful acts. Thus, an offense or quasi offense under LSA-C.C. arts. 2315 et seq. creates an obligation on the part of the wrongdoer in favor of the injured party. Payton v. Colar, 518 So.2d 1104, 1106 (La.App. 4 Cir.1987). In this case, the supreme court clearly agreed with the lower courts that the City/Parish was a bad faith trespasser and is hable for ah resulting damages under LSA-C.C. art. 2315.

11sThis Court has found the meaning of article 1866 to be clear and unequivocal. Magee v. Landrieu, 95-0437, 95-0438, 95-0474, p. 12, (La.App. 1 Cir. 3/17/95), 653 So.2d 62, 68, writs denied, 95-0790, 95-0800, 95-0805, 95-0870 (La.4/21/95), 654 So.2d 319, 320. The deposit made in federal court was clearly a payment made on principal and interest which under article 1866 must be first imputed to interest. Thus, we find no error in the trial court’s determination that LSA-C.C. art. 1866 requires that ah payments made by F & C be applied first to the interest owed, and thereafter to the reduction of the principal.

Furthermore, we find unpersuasive F & C’s argument that LSA-C.C. art. 1866 and the supplemental pay provision are in conflict. We agree with F & C that its policy provides that post-judgment interest no longer accrues after the insurer deposits or tenders its policy limits. F & C’s tender on September 29, 1998, however, did not accomplish that. Applying LSA-C.C. art. 1866, F &' C’s deposit first went to interest then to principal, resulting in the underpayment of principal (the policy limits). F & C has stipulated and agreed, in the event its other assignments of error were determined to be without merit as they have been, that the amount it should have deposited as of September 29, 1998, in order to fully satisfy the judgment against it was in the amount of $1,151,923.28. F & C actually tendered $1,025,745.47. The trial court determined that the stipulated shortfall, in the amount of $126,177.81, consisted entirely of principal liability. We find no error in this factual finding. Accordingly, on September 29, 1998, the date of the deposit into the registry of the federal court, there was a shortfall of $126,177.81 and, despite its tender, F & C is liable for post-judgment interest, according to the terms of its policy.

I uAssignment of Error Five

Having determined that post judgment interest continues to accrue because of the shortfall in principal, the only remaining issue is whether interest, after September 29, 1998, continues to run on the entire amount of the court of appeal judgment or whether it accrues on the shortfall only.

The insurer, by its supplemental payments clause agreeing to pay interest upon the entire amount of a judgment in excess of policy limits, intended to provide supplemental protection to its insured over the principal amount plus legal interest thereupon covered by its policy. See Doty v. Central Mutual Insurance Company, 186 So.2d 328, 386 (La.App. 3 Cir.) (per curiam), writ refused, 249 La. 486, 187 So.2d 451 (1966). Thus, the trial court did not err in finding F & C liable for legal interest on its policy limits from the date of judicial demand until date of judgment, and for legal interest on the entire amount of the court of appeal judgment from date of judgment until full and effective tender by F & C of that part of the judgment which does not exceed F & C’s liability thereon as provided in the supplemental payment clause of the F & C policy. Such a provision prevents the insured from being prejudiced by the delay in payment of the judgment, which delay is solely within the control of the insurer. Doty v. Central Mutual Insurance Company, 186 So.2d at 334.

In this matter, the court of appeal judgment was rendered on April 30, 1998, and F & C made its tender in federal court on September 29, 1998. At the time of the tender, interest was calculated on the entire judgment, in accordance with F & C’s policy provisions. The tender in effect satisfied interest which accrued up to September 29, 1998, and the remaining amount of the tender served to reduce the principal amount of $400,000.00 (the policy limits). Legal interest on the reduced amount of $126,177.81, therefore, began to run anew from the date of the tender |1B(September 29, 1998) and continues until the date the judgment is satisfied. See Ridenour v. Wausau Insurance Company, 627 So.2d at 143.

CONCLUSION

For the foregoing reasons, the October 16, 2001 judgment of the trial court is amended to award legal interest on the stipulated shortfall of the policy limits in the amount of $126,177.81, from September 29, 1998, until paid. In all other respects, the judgment is affirmed. All costs are assessed against appellant, The Fidelity and Casualty Company, now CNA Insurance Company.

AMENDED, AND AS AMENDED, AFFIRMED.

ON REHEARING

hPER CURIAM.

The application for rehearing filed by the defendants/appellees, the City of Baton Rouge and Parish of East Baton Rouge Parish (City/Parish), request this Court to amend its judgment rendered on February 14, 2003, to hold F & C liable for payment of interest on the City/Parish’s unpaid principal balance of $100,000.00 from September 29, 1998 until F & C makes “full and effective tender” of the balance it owes under the judgment, including interest. Additionally, plaintiffs/appellees have applied for a rehearing contending that this court erred by failing to hold that legal interest should continue to accrue on the entire amount of the judgment, despite a previous tender of a portion of the amount owed under the judgment. We now grant rehearing for the limited purpose of clarifying responsibility for the post-judgment interest on the City/Parish’s principal liability of $100,000.00. Accordingly, we amend the conclusion of our decision to read as follows:

For the foregoing reasons, the October 16, 2001 judgment of the trial court is amended to award legal interest on the stipulated shortfall of F & C’s policy limits in the amount of $126,177.81, from September 29, 1998, until F & C makes full and effective tender of all remaining sums due by F & C, 1 ¿including interest and principal. Additionally, F & C is responsible for the payment of interest on the City/Parish’s unpaid principal balance of $100,000.00 from September 29,1998, until full and effective tender by F & C of the balance owed by F & C, including interest and principal. In all other respects, the judgment is affirmed. All costs are assessed against appellant, The Fidelity and Casualty Company, now CNA Insurance Company.

In all other respects the requests for rehearing are denied.

      . Plaintiffs are comprised of three families, owners of three adjoining tracts of land on Staring Lane in Baton Rouge, Louisiana: the Williams family, the Gage family, and the Raby family. The excavation project, performed by the Department of Public Works, began on January 6, 1984, and continued for one to two months thereafter.

      .The petition incorrectly named Chicago as Chicago Fire Insurance Company.

      . F & C instituted a federal interpleader action in the United States District Court for the Middle District of Louisiana in September 1998.

      . Although both sets of plaintiffs have answered the appeal, asserting that the trial court judgment was in error in that the declaratory judgment reduced F & C’s liability for pre-judgment legal interest from that awarded in the original trial court judgment of January 26, 1995, this error was not briefed on appeal. Pursuant to Rule 2-12.4, Uniform Rules, Courts of Appeal, this error has been abandoned. Day v. South Line Equipment Company, 551 So.2d 774, 779, n. 7 (La.App. 1 Cir.), writ denied, 553 So.2d 474 (La.1989). Additionally, the Williams plaintiffs argue in brief that the ruling of the trial court in its declaratory judgment is accurate and should be affirmed.

      . It is doubtful that if an award was increased rather than decreased on appeal, that the insurer would argue that it should be bound by the higher amount.

      . LSA-C.C. art. 3506(31) was repealed by Acts 1999, No. 503, § 1. It read as follows:
      31. Thing Adjudged.—Thing adjudged is said of that which has been decided by a final judgment, from which there can be no appeal, either because the appeal did not lie, or because the time fixed by law for appealing is elapsed, or because it has been confirmed on the appeal.

      . Also, when the judgment of the court of appeal was rendered against F & C, its insured was bound by that judgment as well. At that time, F & C was cast in judgment for no more than that of its insured. But, again, since F & C did not apply for writs, the court of appeal judgment became final as to F & C.

      . We interpret the "entire amount of any judgment” referred to in the supplemental pay provision to be the final judgment rendered against F & C, from which it took no appeal.

      . None of the parties contend that there was creditor consent to impute the payment in any other manner.

      . The Ridenour case, 627 So.2d 141, at footnote 4, gave the following example:
      For example, assuming $6,000 in interest was 'due between July 9, 1981 and December 17, 1986, $6,000 of the tender would go to interest and the remaining $4,000 would serve to reduce the principal amount from $45,000 to $41,000. Interest would then run on the $41,000 from December 17, 1986 until paid.

      . September 28, 1998 reflects the date of the post-judgment tender by F & C.


source: Caselaw Access Project

author: J^LEON A. CANNIZZARO, JR., Judge.

license: Public Domain

text:
    STATE of Louisiana v. Peter RANDO, III.
    No. 2003-K-0073.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 9, 2003.
    Rehearing Denied June 30, 2003.

      John F. Rowley, District Attorney, Delores M. Crosbie, Assistant District Attorney, Chalmette, LA, for State of Louisiana/Relator.
    Richard Tonry, Michael C. Ginart, Jr., Kim C. Jones, Richard A. Tonry II, Chal-mette, LA, for Defendant/Respondent Peter Rando, III.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   J^LEON A. CANNIZZARO, JR., Judge.

On the application of the State of Louisiana, we grant this writ to review a judgment of the trial court granting the defendant, Peter Rando, Ill’s, motion to suppress the evidence seized against him.

FACTUAL AND PROCEDURAL HISTORY

On March 25, 2002, the defendant was charged by bill of information with one count of gambling, a violation of La. R.S. 14:90 . He pled not guilty. Following a hearing on the motion to suppress the evidence, the trial court took the matter under advisement. On October 9, 2002, the trial court rendered a judgment suppressing the evidence, but gave no oral or written reasons for his judgment.

The evidence in this case was seized pursuant to a search warrant. The affidavit for the warrant states that on July 27, 2001, an officer with the Louisiana State Police (“LSP”) Gaming Division received a call from a director for Park Place Entertainment, a corporation that operates Bally’s Casino in New Orleans. The director indicated that he had received a tip from an anonymous employee, concerning a bookmaking operation being conducted by Peter Rando, III, a pit manager at the casino. The employee indicated Rando was using both his home in St. Bernard Parish and the casino to take bets and make pay outs on an illegal football card operation. The LSP officer forwarded this information to the New Orleans Police Department’s gaming unit.

|3On November 9, 2001, the above information was forwarded to LSP Trooper Barry Ward. Trooper Ward verified that the defendant resided at 3801 Corinne Drive in Chalmette and was employed by Bally’s Casino in New Orleans as a pit manager. He drove past the indicated address, confirmed it existed, and took a picture of the house. He ascertained from the license plate of a car parked in the driveway that it was registered to Rando at that address. Trooper Ward further learned that garbage collection for that area occurred on Tuesday and Friday.

At approximately 5:00 a.m. on Tuesday, December 4, 2001, Trooper Ward and his supervisor, Sgt. Walgamotte, went to the defendant’s house and retrieved eight trash bags from a St. Bernard Parish trash container that had been placed on the sidewalk a few inches from the street. The officers took the bags to the state police office and searched them. Inside the bags the officers found several personal and business envelopes and newspapers containing the names Peter and Anne Ran-do and the address 3801 Corinne Drive. Two bags contained shredded documents with black and red ink. The officers were able to discern that these shredded documents had identifiable black lines and the words “ins” and “outs.” The writing on the documents consisted primarily of numbers. In two other bags the officers found non-shredded or whole documents and at least one ripped document which resembled those that had been shredded. On the whole documents were lists of numbers in red and black ink with the words “ins” and “outs” printed in the upper right corner. The affidavit indicated the pages were covered with columns of numbers that had been put into sections labeled “reg” (for Rregular bets) and “tea” (for teaser bets). The affidavit described the sheets as having three columns. The left column recorded the amount of money bet on a particular team, the middle set forth the odds on the teams, and the right contained numbers, some of which had been circled to indicate a winning bet. The documents also contained the names of various people, which the affiant theorized could have belonged to people acting as “runners or satellite bookies” for the principal bookmaker. The affidavit further provided that the documents also contained the words “teasers” and “owes me” written on them. The officers found these documents wrapped in the sports section of the Times-Picayune Newspaper dated November 29, 2001.

The officers additionally found envelopes from local businesses, including hotels and banks, as well as other forms containing various names and numbers on them. The affiant stated the envelopes were consistent with those used as payment envelopes in bookmakmg operations, and that the forms containing the names and numbers possibly indicated the number of bets taken by “runners.”

On Tuesday, December 18, 2001, the officers again returned to the defendant’s house at approximately 3:80 a.m. and retrieved four garbage bags from his garbage can, which was placed at the curb. The officers found personal and business envelopes with the names of Peter and Anne Rando, as well as a card with the following markings: a) numbers 1 through 32; b) the word “name”; c) the abbreviation “amt”; d) the word “team”; and e) the number “06094” printed in red ink. The card had perforation lines at the top, consistent with the bottom portion of á football card used in a bookmaking operation.

1 .¿Based upon this affidavit, Trooper Ward obtained a search warrant for 3801 Corinne Drive. The officers executed the warrant on January 6, 2002, and pursuant to the warrant seized various documents, including stacks of football cards, many of which had money attached to them, a sports tally sheet, various personal checks, an address book, various football spread sheets, bank deposit slips, various sports line sheets, various game result sheets, three Super Bowl sheets, a blank ins/outs wager form, a stats record book, a monthly planner book of wagers for 2001, and $632.00 in cash. Also, after the search warrant was issued, the officers obtained the defendant’s telephone records that indicated many calls, of a short duration, were made and received at times that corresponded to the times of football games. During the execution of the warrant, the defendant’s home phone rang several times, but when an officer answered the callers hung up.

APPLICABLE LAW

A judge may issue a warrant authorizing the search for and seizure of any thing within the territorial jurisdiction of the court which “[m]ay constitute evidence tending to prove the commission of an offense.” La.C.Cr. P. art. 161(A)(3). A search warrant may issue only upon probable cause established to the satisfaction of the judge, by the affidavit of a credible person, reciting facts that establish the cause for the issuance of the warrant. La. C.Cr.P. art. 162. As provided in the Louisiana Constitution and the Code of Criminal Procedure a search warrant shall particularly describe the person or place to be searched, the person or things to be seized, and the lawful purpose or reason for the search. La. Const, art. I, § 5; La.C.Cr. Pr. art. 162.

bin State v. Green, 2002-1022, pp. 7-9 (La.12/4/02), 831 So.2d 962, 968-970, the Louisiana Supreme Court, in considering whether an affidavit established the requisite probable cause for the issuance of a search warrant, stated:

Probable cause sufficient to issue a search warrant “exists when the facts and circumstances within the affiant’s knowledge and of which he has reasonably trustworthy information, are sufficient to support a reasonable belief that an offense has been committed and that evidence or contraband may be found at the place to be searched.” State v. Johnson, 408 So.2d 1280 (La.1982). A magistrate must be given enough information to make an independent judgment that probable cause exists to issue a warrant. See, e.g., State v. Manso, 449 So.2d 480, 482 (La.1984), cert. denied sub nom., Manso v. Louisiana, 469 U.S. 835, 105 S.Ct. 129, 83 L.Ed.2d 70 (1984). The United States Supreme Court held that “[sjufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” United States v. Leon, 468 U.S. 897, 915, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (citations omitted). Moreover, this Court previously held: “[t]he process [of determining probable cause] simply requires that enough information be presented to the issuing magistrate to enable him to determine that the charges are not capricious and are sufficiently supported to justify bringing into play the further steps of the criminal justice system.” State v. Rodrigue, 437 So.2d 830, 833 (La.1983) (citing Jaben v. United States, 381 U.S. 214, 85 S.Ct. 1365, 14 L.Ed.2d 345 (1965)).
An issuing magistrate must make a practical, common sense decision whether, given all of the circumstances set forth in the affidavit, there is a fair probability that evidence of a crime will be found in a particular place. State v. Byrd, 568 So.2d 554, 559 (La.1990). This affidavit must contain, within its four corners, the facts establishing the existence of probable cause for the warrant. State v. Duncan, 420 So.2d 1105 (La.1982); State v. Wells, 253 La. 925, 221 So.2d 50 (1969). In Wells, the source of the “four corners” doctrine” [sic] in this state, this Court noted that Article 162 required that the facts establishing probable cause be recited in the affidavit because the judge, not the affi-ant, is the one who must be satisfied as to the existence of probable cause. LA. CODE EVID. ANN. Art. 703(D) | .states that when evidence is seized pursuant to a search warrant, the defendant bears the burden of proof at a trial on his motion to suppress that evidence. The task of a reviewing court is simply to insure that under the totality of the circumstances the issuing magistrate has a “substantial basis” for concluding that probable cause existed. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Accordingly, in Ro-drigue, we stated, “The magistrate’s determination of probable cause, prior to issuance of a search warrant, is entitled to significant deference by the reviewing court and marginal cases should be resolved in favor of finding the magistrate’s assessment to be reasonable.” Rodrigue, 437 So.2d at 833. Moreover, if the magistrate finds the affidavit sufficiently detailed and reliable to show probable cause, reviewing courts should interpret the affidavit in a realistic and common sense fashion, aware that it is normally prepared by non-lawyer police officers in the midst and haste of a criminal investigation. Within these guidelines, courts should strive to uphold warrants to encourage their use by police officers. State v. Jenkins, 2001-0023 (La.6/22/01), 790 So.2d 626 (citing United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)); State v. Loera, 530 So.2d 1271, 1278 (La.App. 2 Cir.1988), writ denied, 536 So.2d 1252 (La.1989).
The determination of probable cause, although requiring something more than bare suspicion, does not require evidence sufficient to support a conviction. Probable cause, as the name implies, deals with probabilities. Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); Simms, 571 So.2d at 148. The determination of probable cause, unlike the determination of guilt at trial, does not require the fine resolution of conflicting evidence that a reasonable doubt or even a preponderance standard demands. Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Rodrigue, 437 So.2d at 830. The determination of probable cause involves factual and practical considerations of everyday life on which average men, and particularly average police officers, can be expected to act. Simms, 571 So.2d at 149; State v. Ogden and Geraghty, 391 So.2d 434 (La.1980).

IsDISCUSSION

The affidavit in this case set forth sufficient evidence to support the finding that, more likely than not, evidence of gambling would be found in the defendant’s house. The police received a tip that the defendant was conducting a bookmaking business involving illegal football cards from his Chalmette home and at his place of employment, Bally’s Casino. Bally’s personnel received the tip from the defendant’s co-employee and informed the LSP. The police then set out to verify the information. They determined that the defendant did five in Chalmette. On two occasions, troopers seized garbage bags from cans that had been placed at the curb in front of the defendant’s residence. The bags contained documents linking the garbage to the defendant and his wife, as well as documents that indicated someone was conducting an illegal football gambling business. Clearly, considering the totality of the circumstances and a common sense reading of the affidavit, the issuing judge had a substantial basis for concluding that probable cause existed for the issuance of the search warrant, and his assessment of the supporting affidavit was reasonable;

In opposition to the State’s writ application, the defendant argues that the affidavit supporting the issuance of the search warrant was deficient in several respects. Specifically, he alleges that the affidavit contained intentional misrepresentations and omissions, which invalidate it. In State v. Adams, 99-2123, pp. 5-6 (La.App. 4 Cir. 1/24/01), 779 So.2d 113, 117-118, this Court discussed the validity of an affidavit which contained intentional misrepresentations or omissions:

|9Making a material and intentional misrepresentation to a magistrate involves a fraud upon the courts and will result in the invalidation of the warrant and suppression of the items seized. State v. Byrd, 568 So.2d 554 (La.1990); State v. Brown, 93-2089 (La.App. 4 Cir. 12/16/94), 647 So.2d 1250, writ den. 95-0497 (La.12/6/96), 684 So.2d 921. “Intentional” means a deliberate act designed to deceive the issuing magistrate. State v. Lamartiniere, 362 So.2d 526 (La.1978); State v. Ceasar, 97-1506 (La.App. 4 Cir. 9/24/97), 700 So.2d 242. However, if the misrepresentations or omissions are inadvertent, the warrant will be retested for probable cause after supplying that which had been omitted or striking that which had been misrepresented. State v. Lingle, 436 So.2d 456 (La.1983).

See also State v. Rey, 351 So.2d 489, 491— 492 (La.1977).

As to the misrepresentations and omissions, the defendant first argues that the affiant should have known the tip received in July from the Bally’s employee concerning the illegal football card operation was untrue because no football games take place in July. However, the prosecutor noted at the suppression hearing that football leagues other than the NFL play games during the month of July.

The defendant also argues that the affidavit failed to disclose that the surveillance at the casino in the months leading to the request for the warrant did not show any illegal activity by the defendant. He notes that the affiant did not receive notice of the tip from the Bally’s employee until three months after the tip was given to the LSP, and the affidavit was not sought until five months after the tip was received. These arguments have no merit. The issuance of the warrant was not based solely on the tip. The affidavit also contained evidence of gambling seized from the defendant’s garbage, which supported the issuance of the warrant.

ImThe defendant next attacks the evidence seized from the garbage. He argues that the evidence was insufficient to support the affiant’s conclusion that the documents seized were related to a gambling operation. At the motion hearing, Trooper Ward testified that he and Sgt. Walgamotte went through the garbage with Sgt. Tumulte, who was an experienced gambling investigator. The affidavit described in detail the documents seized from the bags, and given their nature and Sgt. Tumulte’s expertise, Trooper Ward’s conclusions that the documents were related to an illegal gambling operation were not unreasonable or false.

The defendant also attacks Sgt. Tu-multe’s opinion due to his inability to remember exactly what documents were seized from the garbage. The documents were seized at least seven months prior to the hearing at which Sgt. Tumulte testified, and he could not recall what specific documents were found in the garbage. Contrary to the defendant’s argument, the fact that Sgt. Tumulte did not remember in July 2002, the date of the motion hearing, what was seized in December 2001 does not mean that he did not recognize in December 2001 that what was recovered was related to a gambling enterprise. Nor does the fact that he did not remember in July what was seized the previous December mean, as theorized by the defendant, that Sgt. Tumulte gave no opinion in December as to the nature of the documents seized. This argument is without merit.

Next, the defendant argues that the sole piece of a football card seized from the garbage was not the portion kept by the bookmaker, and thus it was not evidence of a bookmaking operation. Paragraph 5 of the affidavit indicates the bottom portion of a football teaser card was found in the garbage. At the suppression hearing defense counsel prefaced a question to Trooper Ward with the statement that the bettor keeps the top portion of the card and the bookmaker keeps Inthe bottom portion. In response, Trooper Ward acknowledged that Sgt. Tumulte had told him that the bookmaker keeps the bottom portion. Thus, the defendant’s claim that the bottom portion of the football card was not evidence of a bookmaking operation is without merit.

The defendant also argues that the gambling documents found in the garbage could not be linked to him because none had his name on it. Although the gambling documents did not contain his name, they were found in his garbage along with other documents bearing his and his wife’s names. Thus, it was reasonable for the officers to conclude that the documents came out of his house, since they were retrieved from the garbage can in the front of his house. Clearly, the contents of the garbage were sufficient to link the defendant to the gambling operation. Also, for purposes of establishing probable cause for the issuance of the search warrant, the officers did not have to prove that the defendant was guilty of the gambling offense, but rather only a reasonable probability that evidence of an illegal gambling operation could be found in the house.

Finally, the defendant points to the gap in time between the garbage searches, both in December, and the execution of the warrant in early January to argue that the information in the affidavit was stale. He notes that the last documents were thrown out on December 18, 2001, eighteen days prior to the date the warrant was issued and that during this time no intervening evidence was presented to indicate gambling paraphernalia would be found in his home in January 2002.

A warrant may become stale if facts and circumstances at the time of its execution show that probable cause no longer exists. State v. Casey, 99-0023, pp. 4-5 (La.1/26/00), 775 So.2d 1022, 1028. Thus, staleness is an issue only when|1gthe passage of time makes it doubtful that the object sought in the warrant will be at the place where it was observed. Id. In the instant case, the fact that the officers found gambling documents in the garbage two different times in December 2001 showed the operation was an ongoing one. Also, the NFL season had not yet ended in January 2002 when the warrant was executed. Thus, under these circumstances, the passage of time between when the officers searched the defendant’s garbage and found evidence of a gambling operation and the execution of the search warrant was not so lengthy as to render the information contained in the warrant stale.

CONCLUSION

In view of the circumstances of this case, the State has demonstrated that probable cause existed to support the issuance of the search warrant and that the warrant was valid. Thus, the trial court erred in suppressing the evidence seized pursuant to the warrant.

Accordingly, for the above reasons, the trial court judgment granting the defendant’s motion to suppress is reversed and the case is remanded to the trial court for further proceedings.

REVERSED AND REMANDED.

JjPER CURIAM.

The defendant’s application for rehearing is denied.

As stated in the April 9, 2003 opinion of this Court, the defendant was charged on March 25, 2002 with one count of gambling. The trial court held a hearing on the defendant’s motion to suppress the evidence on July 30, 2002 and took the matter under advisement. On October 9, 2002, the trial court granted the defendant’s motion to suppress, but gave no oral or written reasons for his judgment. The State requested that the trial court issue written reasons for judgment, but he failed to do so. The State timely filed its writ application, seeking this Court’s review of the trial court’s October 9, 2002 ruling. The defendant filed a response to the State’s writ application on January 21, 2003. However, nothing in the record indicated that the defendant had requested that the trial court give written reasons for his October 9, 2002 judgment.

The State supplemented its writ application with the transcript from the motion to suppress hearing. Based on our review of the witnesses’ testimony, the search warrant application, and the affidavits in support thereof, in the absence of the trial court’s reasons for judgment, this Court determined the trial court erred in granting the motion to quash. It was not until after this Court rendered its decision on April 9, 2003, reversing the trial court’s judgment in favor of the defendant, did | ¡.the defendant ask the trial court to issue written reasons for his judgment rendered six months earlier.

The record indicates that ample time existed for the defendant to have requested written reasons from the trial court for the October 9,. 2002 judgment and/or for the trial court to have provided them to this Court prior to the issuance of our April 9, 2003 opinion. Thus, we decline to consider, after the fact, the written reasons for judgment rendered and submitted by Judge Cresap to this Court on May 6, 2003, in support of the defendant’s application for rehearing.

      , La. R.S. 14:90 A(l)(a) defines Gambling as:
      the intentional conducting or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit.

      . A "teaser bet” would involve a more generous point spread for the bettor than would a "regular bet,” however, the pay off or winnings would be less for a successful teaser bet than for a regular bet.

      . In California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988), the United States Supreme Court held persons have no reasonable expectation of privacy in garbage that is placed on the curb for collection as it is "readily accessible” to anyone or anything passing by it. Thus, the seizure of the garbage in this case was legal.

      . It is also noted that the NFL preseason games begin in the month of July.


author: J^FITZSIMMONS, J.

text:
    Jackie WILLIAMS v. Renee Savoy HARRIS and State Farm Mutual Automobile Insurance Company. Montrell Williams and Darryl Maxwell v. Renee Savoy Harris and State Farm Mutual Automobile Insurance Company.
    Nos. 2002 CA 1615, 2002 CA 1616.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.
    Rehearing Denied July 7, and Aug. 25, 2003.

      Scott M. Emonet, Baton Rouge, Counsel for Plaintiff/Appellee Jackie Williams.
    Glen Scott Love, Stephen Dale Cronin, Baton Rouge, Counsel for Defendants/Appellants Renee Savoy Harris and State Farm Mutual Automobile Insurance Company.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J^FITZSIMMONS, J.

Renee Savoy Harris (Dr. Harris) and State Farm Mutual Automobile Insurance Company (State Farm) appeal the trial court’s award of damages to Jackie Williams for injuries allegedly sustained in an automobile accident. Following a review of the facts and associated law, this court amends the trial court judgment.

On June 19, 2000, as Dr. Harris was backing her vehicle out of a parking space, she hit the front right headlight of a vehicle in which Ms. Williams was riding. It is undisputed that the rear bumper of Dr. Harris’s vehicle sustained only scuff marks that did not necessitate repair. The vehicle in which Ms. Williams was riding incurred a broken front right headlight. The trial court awarded Ms. Williams the sum of $24,507.48. Dr. Harris and State Farm submit on appeal that the damage award was manifestly erroneous because the trial court relied on the credibility of Ms. Williams and because she failed to prove by a preponderance of the evidence the relationship of the accident to her claimed injuries.

CREDIBILITY

The record reveals numerous incidences in which Ms. Williams’ historical account of her accidents and physical condition are disparate. The most heinous include the following:

(1) In her deposition, she told defense counsel that on the day of the subject accident she was only experiencing calf pain and a cold, which accounted for her inability to drive her vehicle. Contrarily, at trial she admitted that, at the time of the accident, she had actually been on her way to a doctor’s appointment for back pains, she could barely move, and she was in enough pain to have her son drive her car.

(2) When Ms. Williams was treated by an orthopedist, Dr. Francis A. Johnston, only three days after the collision made the subject of this lawsuit, |3Ms. Williams failed to reveal to him that she had been treated recently by an internist, Dr. Victor Jackson, on March 30, 2000 for low back pain as a result of another unspecified accident. Instead, Ms. Williams limited her medical and physical history to a prior back injury on October 13, 1996. Moreover, Dr. Johnston was not aware that Ms. Williams was actually en route to an appointment with another physician for low back pain at the time of the controverted collision.

(3) On July 19, 2000, only one month following the subject automobile incident, Ms. Williams fell at an Albertson’s Grocery Store and claimed that her low back was bothering her. Notwithstanding her June 2000 automobile accident made the subject of this claim and the medical treatment by Dr. Johnston, she reported to the regional claims supervisor at Albertson’s that she had not experienced problems with her back “in a long time.” Ms. Williams also withheld the fact that she had suffered with low back problems less that than six months earlier in March 2000. Finally, Ms. Williams never related to Dr. Johnston that she had exacerbated her back condition when she fell at Albertson’s.

The litany of incidents, back injuries, and discrepancies in statements is disturbing. The trial judge recognized Ms. Williams’ dissemblance and remarked on the high number of accidents. He observed that she should not be given the benefit of the doubt. Nevertheless, because it was not disputed that Dr. Harris was at fault when she backed into Ms. Williams’ vehicle, the trial judge held that Ms. Williams should be entitled to recover for her injuries. It is in the unsubstantiated leap from the issue of negligence to a finding of causation of Ms. Williams’ medical condition that this reviewing court finds manifest error.

CAUSATION

Injuries suffered by Ms. Williams that are referenced in the record include:

(1) February 7, 1995 — a pole hit her at work resulted in head injuries;
14(2) October 13, 1996 — an automobile accident resulted in neck and back injuries;
(3) January 21, 1998 — an automobile accident resulted in neck and back injuries;
(4) June 17, 1999 — roofing material that hit her resulted in head injuries;
(5) June 19, 2000 — the automobile accident made the subject of this litigation;
(6) July 19, 2000 — a fall at Albertson’s Store resulted in back injury.

Assuming that Ms. Williams was accident-prone, as was suspiciously suggested by the trial judge from the bench, at no time did the court scrutinize the timing of the various medical tests and their relationship to the injuries. Following the automobile collision of June 2000, Dr. Johnston diagnosed Ms. Williams’ physical condition as cervical and lumbar strain with muscle spasm. This diagnosis was similar to Ms. Williams’ previous medical diagnoses, with the addition of the notation of muscle spasm. On July 13, 2000, because Ms. Williams complained that she was experiencing pain down her leg to her foot, Dr. Johnston ordered an MRI of her lumbar spine. It was only after the results of the MRI test were reviewed by Dr. Johnston that Ms. Williams was diagnosed with a herniated disc and assigned a ten-percent whole person physical impairment.

The variable that went unnoticed by the trial judge is that on July 19, 2000, Ms. Williams fell at Albertson’s and incurred lumbar injuries. Ms. Williams reported to her physical therapist an increase in low back pain on the right side after tripping over a plastic bag at Albertson’s. The MRI was conducted on July 22, 2000, after the fall at Albertson’s. Yet, the intervening accident at Albertson’s was not even considered by the trial judge in his attribution of fault for the full extent of Ms. Williams’ back condition. Moreover, on July 25, 2000, |„Ms. Williams deceptively told the regional claims supervisor for Al-bertson’s that she had not experienced problems with her back in a long time.

LEGAL ANALYSIS

A court of appeal may not set aside a trial court’s findings of fact unless there is manifest error or it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). However, when a trier of fact’s determination is derived by overlooking an applicable legal principle, an appellate court is not bound to accept that determination. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

The law provides that when two separate accidents produce injuries, the original negligent party is only responsible for the damages caused by his own fault. Rebstock v. Cheramie, 95-1388, pp. 5-6 (La.App. 1 Cir. 2/23/96), 673 So.2d 618, 621. Thus, a tortfeasor is liable for damages caused by his negligent act; he is not responsible for damages caused by separate, independent or intervening causes of damage. Thomas v. Hartford Insurance Company, 540 So.2d 1068, 1075 (La.App. 1st Cir.), writ denied, 542 So.2d 516 (La.1989). Moreover, the plaintiff bears the burden to prove by a preponderance of the evidence that his injuries were not the result of separate, independent and intervening causes. Thomas, 540 So.2d at 1074-1075.

In the instant case, Ms. Williams’ misleading statements and blatant omissions directed to her physicians, during her deposition prior to trial and in her testimony at trial, collectively negate the requisite proof by a preponderance of the evidence that her medical complaints after July 19, 2000 were caused by the June 19, 2000 incident. Accordingly, this court limits the award of damages to the period between June 19, 2000 and July 19, 2000.

The amended award to be granted to Ms. Williams amounts to a total figure of $6,918.23, together with legal interest thereon from date of judicial demand until paid, and all costs of the trial court proceeding. This sum is reached via the | (¡following calculations: $1,047.00 for treatment by Dr. Johnston between June 19 and July 19, 2000; $620.00 for physical rehabilitation between June 19 and July 19, 2000; $775.00 for the MRI, which was recommended by Dr. Johnston on June 13, 2000; $110.47 for prescriptions from Eck-erd’s Pharmacy; $1,865.76 in lost wages for the twenty-three work days following the automobile accident; and $2,500.00 in general damages based on one month’s pro-rata portion of the trial court judge’s general damages award. All costs associated with this appeal are assessed to Jackie Williams.

AMENDED, AND AS AMENDED, RENDERED.

      . It is noted that Ms. Williams did not pursue a claim against Albertson’s for her reported low back injuries. To do so, she would have been subject to the additional burden of proof in claims against merchants, which is greater than a negligence claim against an individual, such as Dr. Harris. La. R.S. 9:2800.6 B.

      . The record reveals that Ms. Williams missed twenty-three days of work between June 19, 2000 and July 19, 2000. She earned $10.14 per hour and worked eight-hour days.


author: JjDOWNING, J.

text:
    Edward W. GREENFIELD v. LYKES BROTHERS STEAMSHIP COMPANY.
    No. 2002 CA 1377.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.
    Rehearing Denied July 7, and July 22, 2003.

      Scott Bickford, Christopher Sherwood, New Orleans, Counsel for Plaintiff/Appellant Edward Greenfield.
    John D. Cosmich, W. Scott Brown, New Orleans, Counsel for Defendant/Appellee Owens-Illinois, Inc.
    Gary A. Lee, Johanna G. King, Brian Bossier, John M. Futrell, New Orleans, Counsel for Defendant/Appellee Avondale Industries, Inc.
    Avery Lea Griffin, Leon Gary, Jr., Baton Rouge, Jefferson Tillery, New Orleans, Counsel for Defendant/Appellee Viacom, Inc., formerly CBS Corporation, Westinghouse Electric Corporation.
    Charles V. Giordano, Tasha Hebert, Me-tairie, Counsel for Defendani/Appellee Rapid American Corporation.
    Lynn Luker, Patrick D. McMurtray, Ashley Carter, New Orleans, Counsel for Defendants A-P Green Industries, Inc. Foster Wheeler, L.L.C.
    Janet W. Marshall, New Orleans, Counsel for Defendant United Kingdom Mutual Steamship Association (Bermuda) Limited Marine Office of America Corp.
    A. Wendell Stout, III, Janet MacDonell, New Orleans, Counsel for Defendant Gasket Holdings, Inc., formerly Flexitallic, Inc.
    Stephen N. Elliott, Robert H. Wood, Metairie, Counsel for DefendanVAppellee Reilly-Benton, Co., Inc.
    P. Bruin Hays, III, New Orleans, Counsel for Defendant John Crane.
    Valerie T. Schexnayder, Metairie, Counsel for Defendant The Flintkote Company.
    Glen M. Swetman, Metairie, Counsel for Defendants Garlock, Inc. Anchor Packing Company.
    Kay B. Baxter, New Orleans, Counsel for Defendant ACandS, Inc.

      Larry G. Canada, New Orleans, Counsel for Defendant Combustion Engineering, Inc.
    Blaine A. Moore, Lori P. Moser, New Orleans, Counsel for Defendani/Appellee Hopeman Brothers, Inc.
    Before: KUHN, DOWNING and GAIDRY, JJ.
   JjDOWNING, J.

Edward W. Greenfield appeals a judgment denying his motion for new trial after the trial court maintained an exception of prescription against him and in favor of Viacom, Inc. Mr. Greenfield also appeals the trial court’s judgment maintaining the exception of prescription in favor of Hopeman Bros., Inc., Avondale Industries, Inc., Owens-Illinois, Inc., Reilly-Benton Co., Inc., and Rapid American Corporation. Concluding that appellees have failed to prove entitlement to judgment in their favor on the exceptions of prescription, we reverse the judgment of the trial court and remand this matter for further proceedings.

FACTS AND PROCEDURAL HISTORY

Mr. Edward Greenfield filed suit against his employer on September 19, 1995, alleging admiralty and maritime claims arising out of his exposure to materials containing asbestos fibers while servicing his employers’ fleet of vessels. His petition alleged that he worked as a marine engineer from 1946 to 1985. In his Fourth Supplemental and Amended Petition, filed on December 29, 1997, Mr. Greenfield added more defendants including those named in the judgment at issue: Viacom, Inc., Hopeman Bros., Inc., Avondale Industries, Inc., Owens-Illinois, Inc., Reilly-Benton Co., Inc., and 1 RRapid American Corporation. These defendants allegedly manufactured, distributed, or used asbestos-containing building products in the construction or repair of the vessels. Mr. Greenfield asserts negligence and products liability claims against these defendants. This fourth amending petition generally alleged products liability claims against these defendants.

On July 27, 2001, Viacom filed an exception of prescription, which was set for hearing on October 15, 2001. At the hearing on the exception neither party actually introduced any evidence. The matter was submitted on the briefs and argument of counsel. The trial court orally ruled that it would maintain the exception in favor of Viacom. On November 15, 2001, the trial court signed a judgment accordingly. On the same day, the trial court signed an ex parte order allowing Viacom to file certain discovery responses and deposition excerpts, referred to during argument at the hearing, into the record.

On November 29, 2001, Mr. Greenfield filed a motion for new trial, which was set for hearing on February 11, 2002. Several other defendants, appellees here, Hope-man Bros., Inc., Avondale Industries, Inc., Owens-Illinois, Inc., Reilly-Benton Co., Inc., and Rapid American Corporation, filed exceptions of prescription, which were also set for hearing on February 11, 2002. At the hearing, the trial court denied Mr. Greenfield’s motion for new trial against Viacom. The trial court maintained the exceptions of prescription in favor of the moving defendants and against Mr. Greenfield. Judgment was signed accordingly on March 20, 2002.

Mr. Greenfield now appeals assigning four assignments of error: (1) he alleges the trial court erred in granting Viacom’s exception of prescription because the claim was filed within the three year general maritime period of limitations; (2) he alleges the trial court erred in finding |fithat asbestos-related disease and asbestosis are not distinct diseases with different statutes of limitation under maritime law; (3) he alleges that the trial court erred in finding that the subsequent diagnosis of asbestosis does not begin a new prescriptive period under Louisiana law; and (4) he alleges that the trial court erred in finding that filing a lawsuit within one year of diagnosis of asbestosis does not interrupt prescription against solidary obligors sued more than one year after such diagnosis.

DISCUSSION

Preliminarily, we observe that “[t]he established rule in this circuit is that the denial of a motion for new trial is not an appealable judgment absent a showing of irreparable harm.” Pittman v. Pittman, 01-2528, p. 3 (La.App. 1 Cir. 12/20/02), 836 So.2d 369, 372. Even so, we note that “the supreme court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant’s brief that he intended to appeal the merits of the case.” Carpenter v. Hannan, 01-0467, p. 4 (La.App. 1 Cir. 3/28/02), 818 So.2d 226, 228-229, writ denied, 02-1707 (La.10/25/02), 827 So.2d 1153. Accordingly, we consider Mr. Greenfield’s appeal of the judgment signed on November 15, 2001 in favor of Viacom on its merits. The appeal here is an appeal of the March 20, 2002 judgment as to the other defendants.

Ordinarily, the party raising the exception of prescription has the burden of proving the facts supporting the exception. But where a plaintiffs claims are prescribed on the face of the petition, the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period. In the absence of evidence, the objection of prescription must be decided upon the facts alleged in the petition, and all allegations thereof are accepted as true. Doyle v. Mitsubishi Motor Sales of America, Inc., 99-0459, 99-0460, p. 5 (La.App. 1 Cir.3/31/00), 764 So.2d 1041, 1044.

No evidence was taken at the trial of Viacom’s exception of prescription or at the trial of the other defendants/appellants’, exceptions. While the record shows that Viacom filed certain interrogatories and deposition excerpts into the record approximately one month after the trial of its exception, these documents were never properly offered, introduced or admitted into evidence. Accordingly, neither the trial court nor the appellate courts can consider these documents. Welch v. Robert Campbell, Inc., 316 So.2d 822, 826 (La.App. 1 Cir.1975). Until such evidence was introduced, the opposing party would have no opportunity to legally confront possibly determinative evidence. Id.

We also note that we previously remanded this matter for the trial court to supplement the record with the evidence it considered in making its rulings on the exceptions by March 26, 2003. No such supplementation or other response has been submitted.

Accordingly, we look to the faces of the various pleadings to determine whether Mr. Greenfield’s claims against the several defendants have prescribed. For the following reasons, we conclude that they have not prescribed.

Here, Mr. Greenfield filed a petition and five amending petitions. Among his claims, he asserts that he suffers from a disease that developed from exposure over 39 years to various materials containing asbestos fibers. In Austin v. Abney Mills, Inc., 01-1598, pp. 25-26 (La.9/4/02), 824 So.2d 1137, 1154, the supreme court concluded “that the ‘significant tortious exposure’ theory for determining when a cause of action accrued in a long-latency occupational disease case in which the plaintiff suffers from an |sillness or disease is when the exposures are ‘significant and such exposures later result in the manifestation of damages.’ ” The Supreme Court then held, “that ‘tortious exposures are significant when asbestos dust has so damaged the body that the fibrogenic effects of its inhalation will progress independently of further exposure.’ ” Austin, 01-1598, p. 25, 824 So.2d at 1154.

Here, from the face of the petition, as amended, we cannot discern when or whether asbestos dust has so damaged Mr. Greenfield that the fibrogenic effects of its inhalation will progress independently of further exposure. Nor can we determine when, if ever, Mr. Greenfield was on notice of such damage. Accordingly, the appel-lees have failed to establish when Mr. Greenfield’s cause of action accrued for his claimed injuries. They, therefore, have failed to prove when prescription began to run. Further, even if we accepted the appellees’ arguments from the trials on the exceptions as evidence, which we cannot, such purported evidence does not provide an answer to when or whether Mr. Greenfield’s exposures to asbestos were significant under the supreme court’s standard.

Louisiana Civil Code art. 1794 provides that “[a]n obligation is solidary for the obligors when each obligor is liable for the whole performance.” And an interruption of prescription against one solidary obligor is effective against all other solidary obli-gors. La. C.C. arts. 1799 and 3503. The interruption continues while the suit is pending. La. C.C. art. 3463. Here, Mr. Greenfield has adequately alleged solidarity among the defendants such that timely interruption of prescription against one defendant would have interrupted prescription as to the others. And we observe that none of the appellees argue the nonexistence of solidarity if the lawsuit has been timely filed.

| ^Accordingly, we conclude . the trial court erred in granting the appellees’ exceptions of prescription. We pretermit consideration of the other alleged trial court errors.

DECREE

For the foregoing reasons, we reverse the judgments of the trial court that maintained the exceptions of prescription in favor of Viacom, Inc., Hopeman Bros., Inc., Avondale Industries, Inc., Owens-Illinois, Inc., Reilly-Benton Co., Inc., and Rapid American Corporation. We remand this matter to the trial court for further proceedings. Costs are assessed to the defendants/appellees.

REVERSED AND REMANDED.

      . The petition was filed against Westinghouse Electric Corporation. Viacom, Inc. is the successor in interest to Westinghouse and the named party in the judgment.

      . While all four assignments of error relate to "defendant, Westinghouse,” it is apparent from the argument in brief that Mr. Greenfield is also challenging the efficacy of the judgment as to the other five named defendants on the same grounds that he is challenging the judgment rendered in favor of Viacom, Inc. In considering Mr. Greenfield's arguments in these regards, we note that La. C.C.P. art. 2129 states that assignments of error are not necessary in any appeal. Under La. C.C. P. arts. 2129 and 2164, together with Uniform Rules of Louisiana Court of Appeal, Rule 1-3, we have clear authority to consider the matters before us even though there are no specific assignments of error regarding the judgment in favor of these defendants/appel-lees. See Nicholas v. Allstate Insurance Co., 99-2522, pp. 7-8 (La.8/31/00), 765 So.2d 1017, 1022-1023. We also note that these defendants/appellees were served with appellant's brief and responded with their own appellees’ briefs in which they generally adopted and supported Viacom's arguments.


author: J¿FITZSIMMONS, J.

text:
    Lee Allen HAYNES v. George Dewey HAYNES, et al.
    No. 2002 CA 0535.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.
    Rehearing Denied July 7, 2003.

      Lee Allen Haynes, Clinton, Plaintiff/Ap-pellee Pro Se.
    Peter G. Carmichael, Baton Rouge, Counsel for Defendant/Appellee Eula Lee McNeil Haynes.
    Spencer H. Calahan, Baton Rouge, Counsel for Defendant/Appellant George Dewey Haynes.
    Mary E. Tharp, Gregory E. Bodin, Baton Rouge, Counsel for Defendant/Appellant Michael McNeil Haynes.
    A. Vidal Davis, Natchez, MS, Defendant/Appellee Pro Se.
    John R. Junkin, II, Natchez, MS, Defendant/Appellee Pro Se.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   J¿FITZSIMMONS, J.

Mrs. Eula Lee McNeil Haynes and her children, in their own name or through a trust or corporation, were co-owners of various pieces of property. Mrs. Haynes held an undivided one-half interest and the other four co-owners each held a one-eighth interest. By a series of donations and an exchange of property, Mrs. Haynes’ one-half interest in all the properties was finally transferred to either one of her sons, Mr. Lee Allen Haynes (Lee), or to Haynes & Haynes, L.L.C. Haynes & Haynes (Lee’s company) is a limited liability company represented in the transfers by its managing member, Lee.

On October 10, 2000, Lee filed a suit for partition by licitation of the property known as tracts four and five of the “Farm Place” (Farm Place). Defendants, the other co-owners, Michael McNeil Haynes; the Charles Frank Haynes, Jr. Children’s Class Trust, represented by its trustee, George Dewey Haynes (Trust); and the Haynes Properties Corporation (Haynes Properties); answered the suit. Among other incidental actions, the defendants also filed third party demands against Mrs. Haynes and others. As to Mrs. Haynes, the defendants, now third party plaintiffs, alleged that the exchange and donations of Mrs. Haynes’ total interest in all of the properties were invalidated by the undue influence exerted by Lee and by Mrs. Haynes’ lack of consent. The third party plaintiffs argued that Mrs. Haynes unwillingly, mistakenly, or through confusion, transferred all of her interest to only one son, Lee, or Lee’s company. Further, the third party plaintiffs alleged that the transfers were invalidated by a failure to reserve enough for Mrs. Haynes’ subsistence, and by future tax problems that may arise from the transfers. In response, Mrs. Haynes filed peremptory exceptions raising the objection of no right of action to the third party demands.

The trial court sustained the exceptions and dismissed the third party demands against Mrs. Haynes. Although no motion for a temporary restraining | ¡¡order or in-junctive relief had been made, and no notice given or hearing held on that issue, the trial court also enjoined the parties from further alienation of the disputed property. The third party plaintiffs appealed. Lee, Lee’s company, and two purchasers of interest in some of the disputed property answered the appeal. They challenged the injunction and asked for damages. We affirm the dismissal of Mrs. Haynes from the third party demand, but vacate the injunction.

As a basis for nullification of the disputed exchange and donations, the third party plaintiffs have alleged undue influence, lack of consent, subsistence problems created by the donations, and possible tax problems. As a basis for standing or right of action, they argue that the exchange and donations have interfered with their ability to use and manage their property, and interfered with their right to have the property partitioned in kind. That interference, they believe, gives them an interest in the proceedings and, from that interest, flows the right to attack the exchange and donations. We disagree.

These co-owners own undivided interests in various properties, including the Farm Place, the subject of the principal demand for partition. An undivided share or interest is an incorporeal. See La. C.C. art. 812, Revision Comments-1990 (c). A co-owner may “freely ... alienate, or encumber his share,” or, in other words, his undivided interest. La. C.C. art. 805. Consent of the co-owners is required for alienation or encumbrance of the “entire thing.” Id. A co-owner does not have the overall right to use and manage the properties in disregard of the rights or wishes of the other co-owners. La. C.C. art. 801. If the co-owners cannot agree on use and management, the remedy is either partition, or sale, exchange, or donation by one or more of the co-owners. La. C.C. arts. 805 & 807. If the remedy of judicial partition is chosen, the court will partition in kind, unless that mode of partition is not available. La. C.C. arts. 809-811.

| ¿Except as provided by law, all persons have capacity to make or receive donations. La. C.C. art. 1470. If the donor has no forced heir, donations inter vivos may be made of all of the donor’s property with one primary exception. La. C.C. art. 1497. If a donor does not retain enough for his “subsistence,” the “donation of an immovable is null for the whole unless the donee has alienated the immovable by onerous title ....” La. C.C. art. 1498. Challenges to donations are allowed on the basis of fraud, duress, undue influence, and incapacity. See La. C.C. arts. 1471 & 1476-83. Although the section of the Louisiana Civil Code governing donations speaks of a “person who challenges,” the articles do not specifically define a category of challengers who may attack donations inter vivos for those causes before the death of the donor. La. C.C. arts. 1482-83. However, reference to other sections of the codal scheme and jurisprudence offer useful guidelines. For example, the code does provide a specific article for reduction of excessive donations, which forbids challenge until “after the death of the donor, and then only by a forced heir, the heirs or legatees of a forced heir, or an assignee of any of them .... ” La. C.C. art. 1504. Similarly, for sales of immovables from parent to child, Civil Code article 2444 provides for attack only by forced heirs. See Arsht v. Davis, 561 So.2d 58, 61 (La.1990).

An exchange, like a sale, is a contract, and requires capacity and consent. See La. C.C. arts.1918,1927, 2660 & 2661. Donations also require capacity and consent. See La. C.C. arts. 1470-88. In the absence of specific guidance, and “[t]o the extent compatible, ... rules for contracts are also applicable to ... donations.” Frederick William Swaim, Jr. and Kathryn Ventura-tos Lorio, Successions and Donations § 10.5, in 10 Louisiana Civil Law Treatise (1995).

The victim who made the contract, or his legal representative, may challenge the contract for lack of consent or capacity. See La. C.C. arts.1919-1921, 1949-1952, 1958-1959, and Revision Comments. Similar to donations, consent to a ^contract “may be vitiated by error, fraud, or duress.” La. C.C. art.1948; see La. C.C. arts. 1478-79 & 1488. “A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made.” La. C.C. art.2031. Attacks for those reasons on relatively null contracts is limited to “those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own initiative.” Id. Applying similar legal reasoning to donations, we have held that the right afforded by Civil Code article 1498, to attack a donation that renders the donor necessitous, can be asserted only by the donor, or a forced heir, not a third party or stranger to the donation. Maxwell v. Maxwell, 180 La. 85, 156 So. 166, 167 (La.1934); Succession of Moran v. Moran, 25 So.2d 302, 303 (La.App. 1 Cir.1946); Despart v. Darambourg, 2 McGl. 5 (La.Ct.App.1884).

Please note that a third party demand is an incidental action relating to the principal demand. See La. C.C.P. art. 1111. To state a third party demand, defendants in the principal demand “may bring in any person ... who is or may be liable to him for all or part of the principal demand.” Id. The peremptory exception raising the objection of no right of action assumes a viable cause of action and raises the question of whether the plaintiffs have a legal interest in judicially enforcing that right or remedy. Centofanti v. Diamond Offshore Drilling, Inc., 2001-1691, p. 4 (La.App. 1 Cir. 5/22/02), 819 So.2d 1101, 1103; Duplessis Cadillac, Inc. v. Creative Credit Services, Inc., 597 So.2d 1155, 1157-58 (La.App. 1 Cir.1992); see La. C.C.P. art. 681. To have a sufficient interest, or standing, a plaintiff must show a special interest; one peculiar to him and apart from the general public. Neighborhood Action Committee v. State, 94-0807, p. 7 (La.App. 1 Cir. 3/3/95), 652 So.2d 693, 697, writ denied, 95-0862 (La.5/12/95), 654 So.2d 352. “On the trial of the peremptory exception [of no right of action] at | fior prior to the trial of the case, evidence may be introduced to support or controvert” the exception, “when the grounds thereof do not appear from the petition.” La. C.C.P. art. 931. If the grounds of the objection may be removed by amending the petition, the plaintiffs should be given the opportunity to amend. If that is not possible, “the action shall be dismissed.” La. C.C.P. art. 934.

We begin by making some initial observations: this is neither a suit by a curator, donor, donee, heir, or creditor; nor is the third party demand, as argued, a vehicle for declaratory judgment. From the record before us, Mrs. Haynes, as an un-interdicted co-owner of an undivided interest or share, had the right to donate her interest in the property, including the Farm Place — -the only property at issue in the principal demand for partition. See La. C.C. art. 805. However, the issue here is not whether Mrs. Haynes was actually incompetent or consented to the transfers; the issue is whether the third party plaintiffs had standing to attack the disputed transfers to which they were not a party. In an attempt to establish standing or a right of action, the third party plaintiffs argue that Mrs. Haynes’ transfers of her undivided interests interfered with their legally protected interest to use and manage the properties in question, to obtain a partition in kind, and to receive clear title.

Only Mrs. Haynes can raise the claim that the donation of the undivided interest in the Farm Place, and the transfer of her interests in the other immovables, left Mrs. Haynes in necessitous circumstances. See Maxwell, 156 So. at 167; Succession of Moran, 25 So.2d at 308. The allegations of undue influence by Lee, and mistake or error by Mrs. Haynes, are attacks on the fullness or quality of her consent. See La. C.C. arts. 1478-80, 1483, 1948 & 2031. Challenges to |7consent and capacity are assertions that the transfers of property, including the donations, are relatively null and “may be invoked only by those persons for whose interest the ground for nullity was established ....” La. C.C. art. 2031. In this case, under the applicable contract articles and the reasoning employed for attacks under Civil Code article 1498, the legal remedy for defective consent was established for the protection of the donor, Mrs. Haynes. It is not for her family or former co-owners. In addition, we are guided by the extremely narrow category of challengers specifically recognized by the code: these attacks are limited, for the most part, to donors and postmortem attacks by forced heirs. See, e.g., La. C.C. arts. 1504 & 2444. An exchange, as a contract, is also subject to Civil Code article 2031, and the same result is achieved.

Under the particular facts here, the arguments for standing based on harm or interference of ownership interests do not create an exception to the requirements for a right of action or the result under Civil Code article 2031. Not every concern of a co-owner equates to a legal interest that would afford him standing. The third party plaintiffs do not argue that Mrs. Haynes transferred interests she did not own or that the transfers decreased the percentage of interests held by the third party plaintiffs. The future possibility that Mrs. Haynes could increase the interests of the third party plaintiffs is too speculative for consideration. The same is true for the alleged possible tax consequences. The potential that future attacks on the transfers, by Mrs. Haynes or an appointed representative, could create a cloud on the title the third party plaintiffs may receive through a judicial partition is equally speculative, and not evocative of a right to attack the disputed transfers. The attempt to establish standing by asserting interference with the use and | smanagement of the property, or a right to partition in kind, also does not create an independent basis to attack the transfers. Agreement by all the. co-owners may be required for use or management decisions, but agreement is not necessary for one co-owner to alienate her undivided interest in her property. See La. C.C. arts. 801 & 805. Similarly, while third party plaintiffs may be interested in the type of partition that will be selected by the court, that interest has no bearing on the question of standing to attack transfers to which they were not a party. Thus, under the particular facts of this case, the third party plaintiffs had no right, or standing, to invoke or enforce the remedy of nullification of the transfers by Mrs. Haynes.

Finally, as allowed by Louisiana Code of Civil Procedure article 927, we also recognize the failure of the third party demand to state a cause of action. The peremptory exception raising the objection of no cause of action is triable on the face of the pleadings. Well-pleaded facts in the petition are accepted as true, and the court must determine if the law affords the plaintiffs a remedy under those facts. Bland v. Bland, 97-0329, p. 5 (La.App. 1 Cir. 12/29/97), 705 So.2d 1158, 1161. To state a third party demand, defendants in the principal demand “may bring in any person ... who is his warrantor, or who is or may be liable to him for all or part of the principal demand.” La. C.C.P. art. 1111. Thus, a third party demand fails to state a cause of action if third party plaintiffs fail to allege that the third party defendant is their warrantor or liable for all or part of the main demand. Boyer v. Trinity Universal Insurance Company of Kansas, Inc., 576 So.2d 444, 446 (La.1991); Hubbs v. Canova, 427 So.2d 875, 877 (La.App. 1 Cir.1982).

In this case, the third party demand against Mrs. Haynes does not specifically assert, or set forth factual allegations, that Mrs. Haynes is a warrantor or hable to the third party plaintiffs for all or part of the principal demand. That main demand was a request for partition by licitation of the Farm Place. Without 19the proper allegations of warranty or liability, the third party demand failed to state a viable cause of action against Mrs. Haynes.

Therefore, we agree with the trial court that third party plaintiffs have no standing to sue the third party defendant, Mrs. Eula Lee McNeil Haynes, for rescission of the challenged transfers. We also hold that the third party plaintiffs failed to state a cause of action. Under the facts here, we see no evidence that the third party plaintiffs would be able to remove the objection by amendment and state a right of action, nor did the third party plaintiffs request such an opportunity. See La. C.C.P. art. 934; Hubbs, 427 So.2d at 877. Without a right of action, the question of possible amendment to state a cause of action is moot.

Finally, we address the issues of the validity of the injunction and the claim for damages raised in answers to this appeal by Lee, Lee’s company, and two subsequent purchasers of portions of the disputed property. From our review of the record, it is clear that the requisite procedures for temporary restraining orders or injunctions were not followed. See La. C.C.P. arts. 3601-06 & 3609-10. Therefore, we vacate the injunction ordered by the trial court. We deny, however, the request for a remand for consideration of damages from the injunction. From this record, it appears that the injunction granted was more a facility sought by the trial court, than the third party plaintiffs. At this time, and under these specific facts, we do not believe that an order from this court to consider damages would serve the interests of justice. See La. C.C.P. arts. 3608 & 2164. We also deny the request for damages for a frivolous appeal. The arguments asserted are not of a frivolous nature. See La. C.C. P. art. 2164.

For these reasons, we affirm the judgment of the trial court sustaining the exception of no right of action and dismissing Mrs. Haynes from the third party demand. In addition, we vacate the injunction, and remand for further proceedings consistent with this opinion. Costs of the appeal are assessed equally to the three |inthird party plaintiffs, Michael McNeil Haynes; George Dewey Haynes, as Trustee of the Charles Frank Haynes, Jr. Children’s Class Trust; and the Haynes Properties Corporation.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

      . Although the third party petition did not specifically allege incapacity as a ground for nullification, the third party plaintiffs attempt to argue incapacity on the part of Mrs. Haynes. To the extent that capacity was raised, the result would be the same under the facts here. See La. C.C. art.2031.