author: I .PER CURIAM. |,PER CURIAM. h CALOGERO, Chief Justice, hWEIMER, Justice,

text:
    Edward Lewis BECKER v. Lynn B. DEAN, Individually and in His Capacity as Candidate for the Office of Councilman-at-Large (East), St. Bernard Parish, and Lena R. Torres, in her Official Capacity as Clerk of Court, etc.
    No. 2003-C-2493.
    Supreme Court of Louisiana.
    Sept. 18, 2003.
    Issuing Opinion Sept. 26, 2003.

      Sharon Marie Williams, Chalmette, Counsel for Applicant.
    Richard H. Gauthier, Frank Dean Ippol-ito, Chalmette, Counsel for Respondent.
   I .PER CURIAM.

Plaintiff, Edward Lewis Becker, filed this suit seeking to disqualify defendant, Lynn B. Dean, as a candidate for the office of councilman-at-large (East) for the Parish of St. Bernard in the election scheduled for October 4, 2003. Subsequent to a hearing held on August 29, 2003, the district court rendered judgment in favor of plaintiff, ordering that Lynn B. Dean be disqualified as a candidate for the office of councilman-at-large (East) for the Parish of St. Bernard and that Lena R. Torres, Clerk of Court, issue the necessary notification of the disqualification to the Secretary of State and the Commissioner of Elections as provided by law. Defendant appealed and the court of appeal affirmed the judgment of the district court. Becker v. Dean, 03-1561 (La.App. 4 Cir. 9/5/03), 852 So.2d 1290. On defendant’s application, we granted certiorari, Becker v. Dean, 03-2493 (La.9/12/03), 854 So.2d 338, and conducted oral arguments. For reasons that will follow at a later date, we reverse the judgments of the lower courts |2and find that Lynn B. Dean meets the qualifications to be a candidate for the office of councilman-at-large (East) for the Parish of St. Bernard.

Decree

The judgments of the lower courts are reversed. The candidacy of Lynn B. Dean for the office of councilman-at-large (East) for the Parish of St. Bernard is hereby reinstated.

Reversed; Candidacy Reinstated.

|,PER CURIAM.

This election matter presents the issue of whether plaintiff has met his burden of proving that defendant does not meet the qualifications of the office of councilman-at-large (East) for the Parish of St. Bernard. Specifically, plaintiff must prove that defendant is not a qualified elector of St. Bernard Parish and of the district or parish division for the office he seeks, or that, for at least two years immediately preceding the time established by law for qualification, defendant has not been domiciled in St. Bernard Parish, or has not actually resided in St. Bernard Parish. For the following reasons, we conclude plaintiff failed to meet his burden of proof and accordingly reverse the judgments to the contrary of the lower courts.

Facts and Procedural History

On August 21, 2003, Lynn B. Dean filed a Notice of Candidacy (Qualifying | ?Form) for the office of councilman-at-large (East) for the Parish of St. Bernard in the election scheduled for October 4, 2003. The qualifying form contained one line for “domicile address” and one line for “mailing address, if different.” On the fine marked “domicile address,” the candidate wrote “101 Dean Drive.” On the line designated “mailing address, if different,” the candidate wrote “Braithwaite, La. 70040.”

On August 27, 2003, plaintiff, Edward Lewis Becker, a registered voter and duly qualified elector of the Parish of St. Bernard, filed this action seeking to disqualify defendant, Lynn B. Dean, as a candidate for the office of councilman-at-large (East) for the Parish of St. Bernard. In his petition, plaintiff alleged defendant does not meet the qualifications for the office of councilman-at-large (East) for the Parish of St. Bernard as set forth in the St. Bernard Parish Home Rule Charter, Article II, § 2.01(C), (D), and (E). Specifically, plaintiff alleged that defendant is not qualified for the office at issue because he is domiciled and actually resides in Plaque-mines Parish, not in St.. Bernard Parish. Additionally, plaintiff alleged defendant is not qualified to run for councilman-at-large (East) for the Parish of St. Bernard because he is not a qualified elector of the parish.

Trial of this matter was held on August 29, 2003. At trial, plaintiff introduced the testimony of defendant, Mr. Daniel Baiam-onte, the Safety and Permits manager for the St. Bernard Parish Government, and Mrs. Dean. The defense, in turn, introduced the testimony of Mr. Stephen Esto-pinal, an expert in land surveying and civil engineering, and defendant. The principal issue at trial concerned the location of defendant’s domicile and actual residence within a single tract of land located in both Plaquemines and St. Bernard Parishes.

| ¡¡Defendant testified he has been domiciled for about 32 years in a second-story apartment located directly above a building housing his business, Elevating Boats, Incorporated (“EBI”). Defendant further testified this apartment is located entirely within St. Bernard Parish. According to defendant, he and his wife vote in St. Bernard Parish and have voted in that parish for many years. Defendant’s Form of Application for Registration filed in the St. Bernard Office of Registrar of Voters indicates his last registered address to be 101 Dean Drive. Defendant testified he resides in the apartment in St. Bernard Parish, as well as in other homes he owns outside of St. Bernard Parish. Defendant confirmed that he sleeps in the bed in the apartment. Defendant stated his wife “sometimes” fives in the apartment, although she sleeps there only “very rarely.” Defendant identified several pictures of the interior of the apartment that depicted a kitchen containing a refrigerator, sink, stove, coffee maker, and a washer and dryer, a front room containing chairs, a sofa, and an office desk, a bedroom containing a bed, shelves, and an office desk and chair, and a rear room connected to a bathroom containing a shower, wash basin, and toilet.

Defendant stated the apartment has an address of 101 Dean Drive, Braithwaite, Louisiana. Prior to changing to this address, defendant’s address was Route 1, Box 216, Braithwaite, Louisiana. Defendant explained that although Braithwaite, Louisiana is in Plaquemines Parish, his St. Bernard properties have a Braithwaite address because they are served by the Braithwaite post office. Defendant testified that the parish did not lay out Dean Drive, but that he made up the address of 101 Dean Drive at the request of either the post office or the fire department. Defendant stated that the address of the EBI building is 900 St. Bernard Parkway, Braithwaite, Louisiana. Defendant also testified that 101 Dean Drive “is a mailbox setting on St. Bernard Parkway, about 100 feet from the Parish fine between it and Plaquemines Parish, all in |4St. Bernard Parish.” Defendant explained that the EBI building and the apartment have different addresses to clarify the separate locations of the business and the apartment.

Defendant also testified that he owns a home located on the portion of the tract of land at issue that is in Plaquemines Parish. Defendant stated he and his wife sometimes reside in the Plaquemines Parish house. According to defendant’s testimony and evidence introduced by plaintiff, in 1997 defendant took a homestead exemption in Plaquemines Parish on 101 Dean Drive, Braithwaite, Louisiana for tax purposes. Plaintiff also introduced a transcript of testimony given by defendant on June 1,1998, in a lawsuit captioned Elevating Boats, Inc. v. Parish of St. Bernard, in which defendant stated he took a homestead exemption on his home in Plaque-mines Parish, but did not have one at the time of his testimony in that suit. In the instant case, defendant indicated he has never taken a homestead exemption for the apartment and has not taken any homestead exemption since the one referred to above on the Plaquemines Parish house. Defendant stated the home in Plaquemines Parish does not have an address, or a “101,” on it.

Plaintiff also produced the testimony of Mrs. Dean, who stated that she and defendant bought a house in St. Bernard Parish in 1961 that had an address of Route 1, Box 216, Braithwaite, Louisiana. They lived in that house for four years and then moved to the house in Plaquemines Parish. Mrs. Dean testified that she and her husband reside in the Plaquemines Parish house “most of the time.” Mrs. Dean stated, however, that she lives at the apartment “some,” which was “[wjhenever my husband wants me to live with him.” She further testified she keeps some of her clothes in a closet in the apartment, food is kept in the refrigerator and in the cabinets, and she reads on the sofa in the apartment. She explained that her family celebrates holidays and special occasions in the Plaquemines Parish house and not in the apartment | .¡because they can spread out in the Plaquemines Parish house. Mrs. Dean stated that defendant goes to the apartment often to work and to watch the business because he is concerned about crime in the plant.

Finally, plaintiff produced the testimony of Daniel Baiamonte, the Safety and Permits manager of St. Bernard Parish Government. Mr. Baiamonte testified that he issues all building permits and address changes for any resident or business within St. Bernard Parish. Mr. Baiamonte stated that, to his knowledge, there is no street in St. Bernard Parish named Dean Drive. Further, he testified that no application has ever been filed to change the name of a street from something else to Dean Drive. Mr. Baiamonte identified an official listing of all private and public streets in St. Bernard Parish and stated Dean Drive does not appear on that list.

In addition to producing the testimony of defendant, the defense also presented the testimony of Mr. Steven Estopinal, an expert in land surveying and civil engineering. Mr. Estopinal identified a survey he performed that clearly shows the political boundary between St. Bernard and Plaquemines Parishes and an aerial photograph of the property at issue. Mr. Esto-pinal testified that the part of the building containing the apartment is located in St. Bernard Parish. He further testified that defendant’s house on the same tract is located in Plaquemines Parish.

Following trial, the district court determined that 101 Dean Drive referred to the house in Plaquemines Parish, that defendant was domiciled in the house in Plaque-mines Parish, and that he did not actually reside in the apartment located in St. Bernard Parish. Accordingly, the district court rendered judgment disqualifying defendant as a candidate for the office of councilman-at-large (East) for the Parish of St. Bernard.

| (¡Defendant appealed, and, upon review, the court of appeal affirmed the judgment of the district court. Becker v. Dean, 03-1561 (La.App. 4 Cir. 9/5/03), 852 So.2d 1290. The court of appeal concluded that the property located at 101 Dean Drive is situated in Plaquemines Parish, not St. Bernard Parish. Furthermore, the court of appeal found defendant was not domiciled in St. Bernard Parish. The court of appeal therefore concluded the district court did not err in disqualifying defendant’s candidacy for councilman-at-large (East) for the Parish of St. Bernard.

Upon defendant’s application, we granted certiorari to consider whether defendant is domiciled in and actually resides in St. Bernard Parish such that he may be qualified as a candidate for councilman-at-large (East) for the Parish of St. Bernard. Becker v. Dean, 03-2493 (La.9/12/03), 854 So.2d 338. Because of the expedited nature of these proceedings, we issued our decree shortly after oral argument, reversing the judgments of the lower courts and reinstating defendant’s candidacy. We now provide the following reasons for our ruling.

Discussion

There is nothing more fundamental to our society than the ability of our electorate to choose its leaders. The purpose of the election process is to provide the electorate with a wide choice of candidates. Williams v. Ragland, 567 So.2d 63 (La.1990). See also Roe v. Picou, 361 So.2d 874 (La.1978); Jumonville v. Jewell, 317 So.2d 616 (La.1975); Langridge v. Dauenhauer, 120 La. 450, 45 So. 387 (1908). Because encouraging qualification is an integral component of the pro cess, laws 17regulating the process must be interpreted with this purpose in mind. Williams, 567 So.2d at 66. Thus, the interests of the state and its citizens are best served when election laws are interpreted so as to give the electorate the widest possible choice of candidates. See Rich v. Martin, 259 So.2d 113 (La.App. 1 Cir. 1971).

In an election contest, the person opposing the candidacy bears the burden of proving the candidate is disqualified. La. R.S. 18:492, Russell v. Goldsby, 00-2595 (La.9/22/00), 780 So.2d 1048; Dixon v. Hughes, 587 So.2d 679 (La.1991); Mes-ser v. London, 438 So.2d 546 (La.1983). Thus, where a particular domicile is required for candidacy, the burden of proof rests upon the party objecting to the candidacy to show a lack of domicile. Pattan v. Fields, 95-2375 (La.9/28/95), 661 So.2d 1320. The laws governing the conduct of elections must be liberally construed so as to promote rather than defeat candidacy. Russell, 00-2595 at p. 4, 780 So.2d at 1051; Dixon, 587 So.2d at 680. Any doubt as to the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office. Russell, 00-2595 at p. 4, 780 So.2d at 1051; Dixon, 587 So.2d at 680.

La. R.S. 18:451, entitled “Qualifications of candidates,” provides in pertinent part:

A person who meets the qualifications for the office he seeks may become a candidate and be voted on in a primary or general election if he qualifies as a candidate in the election. Except as otherwise provided by law, a candidate shall possess the qualifications for the office he seeks at the time he qualifies for that office. In the event that the qualifications for an office include a residency or domicile requirement, a candidate shall meet the established length of residency or domicile as of the date of qualifying, notwithstanding any other provision of law to the contrary....

Section 2.01 of the Home Rule Charter for St. Bernard Parish provides for the qualifications for councilman-at-large (East) as follows:

|s(c) One (1) councilman-at-large shall be a resident of the eastern half of the parish....
(d) All council members shall be qualified electors of the parish and of the district or parish division from which elected at the time of qualification.
(e) All council members shall have been legally domiciled and shall have actually resided in St. Bernard Parish for at least two (2) years immediately preceding the time established by law for qualifying for office.

Thus, in order for defendant to qualify for councilman-at-large (East), § 2.01(e) of the St. Bernard Parish Home Rule Charter requires that he was legally domiciled and actually resided in St. Bernard Parish for at least two years immediately preceding his qualification.

In the instant case, the district court’s reasons for judgment make it clear that the district court did not apply the proper legal standard when it ordered defendant disqualified as a candidate for councilman-at-large (East) for the Parish of St. Bernard. Although the district court cited the correct law and burden of proof as stated above, its reasons for judgment make it clear that it imposed upon defendant the burden of proving his domicile and actual residence were in St. Bernard Parish rather than imposing upon plaintiff the burden of proving that defendant was not qualified to run for the office. For example, the district court stated, “The apartment does not become 101 Dean Drive because Mr. Dean says it now is. He simply offers no acceptable proof to support that allegation.” Plaintiffs own evidence establishes that 101 Dean Drive is the basis for defendant’s current voter registration in St. Bernard Parish. It is plaintiffs burden to establish that 101 Dean Drive does not include the apartment in St. Bernard Parish. The district court, however, placed the burden on defendant to show that the apartment is located at 101 Dean Drive in St. Bernard Parish. Additionally, the district court stated that even if defendant had been domiciled in St. Bernard, “he | Jailed to meet the second requirement of actually residing within St. Bernard. His claim of residence] in the EBI apartment fails to meet the legal standard of actual residence.... ” It appears the district court improperly placed the burden of proving residence in St. Bernard Parish on defendant, rather than requiring plaintiff to prove defendant did not reside in the apartment in St. Bernard Parish. Because the district court committed legal error by applying the wrong legal standard, the manifest error standard of review does not apply and we must determine the facts de novo from the record. Wallmuth v. Rap-ides Parish School Bd., 01-1779, p. 7 n. 2 (La.4/3/02), 813 So.2d 341, 345 n. 2 (“Where the trial court commits legal error by applying an incorrect legal standard, this court is required to determine the facts de novo from the entire record and render a decision on the merits.”).

The record before us makes it clear that the address 101 Dean Drive has been used to describe both the Plaquemines Parish house and the St. Bernard Parish apartment. In 1996, defendant changed his address on his voter’s registration in the St. Bernard Parish Office of Registrar of Voters to 101 Dean Drive. This address appears to be the current address on file for defendant. Because defendant is registered to vote in St. Bernard Parish, 101 Dean Drive on his voter’s registration form obviously refers to the apartment since defendant testified the apartment is his only residence in St. Bernard Parish. Defendant testified that the St. Bernard Parish Registrar of Voters has never challenged his ability to vote in St. Bernard Parish. In contrast, defendant received a Plaquemines Parish Homestead Exemption in 1997 for 101 Dean Drive. For purposes of the homestead exemption, 101 Dean Drive clearly refers to the home in Plaquemines Parish as the exemption was issued by the Plaquemines Parish assessor. The transcript of defendant’s testimony in the Elevating Boats case reveals only that defendant testified he had a home in Plaquemines Parish |infor which he took a homestead exemption in at least one year. The address of the home referred to in defendant’s previous testimony is not provided.

The evidence reveals that neither dwelling contains on its structure a physical address or the number “101.” The record in this case reveals only that the address 101 Dean Drive appears on the property on a mailbox situated in St. Bernard Parish. Although plaintiff presented testimony that Dean Drive does not officially exist in St. Bernard Parish records, the physical evidence is to the contrary. Obviously, Dean Drive exists at least as a mailing address for postal purposes since a photograph in evidence shows several mailboxes next to the one marked “101 Dean Drive” that contain the designations 103 Dean Drive, 105 Dean Drive, and 107 Dean Drive.

Defendant unequivocally testified that the apartment in St. Bernard Parish is located at 101 Dean Drive. In light of the conflicting evidence presented, we cannot find that plaintiff proved 101 Dean Drive refers solely to the Plaquemines Parish house. Because plaintiff did not prove the domiciliary address on defendant’s qualifying form is not located in St. Bernard Parish, we turn now to the issue of whether plaintiff proved defendant was not legally domiciled at the St. Bernard Parish apartment.

It is well settled that the terms residence and domicile are not synonymous, and, while a person can have several residences, he can have only one domicile. La. C.C. art. 38; Russell, 00-2595 at p. 5, 780 So.2d at 1051; Messer v. London, 438 So.2d 546 (La.1983). An individual’s domicile is the principal establishment wherein he habitually resides. Russell, 00-2595 at p. 5, 780 So.2d at 1051. Domicile consists of two elements, residence and intent to remain. Id. The question of domicile is one of intention as well as fact, and where it appears domicile has been assumed in another location, the party seeking to show it has been changed must overcome the legal presumption that it has not been changed. Id. The opposing party must overcome lathis legal presumption “by positive and satisfactory proof of establishment of domicile as a matter of fact with the intention of remaining in the new place and of abandoning the former domicile.” Id. When there is no declaration that a person has changed his domicile, proof of his intention depends upon circumstances. Id. There is a presumption against change of domicile. Id.

Defendant first registered to vote in St. Bernard Parish on December 12, 1962. Defendant’s testimony that he has was legally domiciled in the apartment in about 1968 or 1972 is uncontroverted. Defendant testified that it has been his intention to retain the apartment as his domicile since that time. While it is true defendant has resided in several other homes, some in St. Bernard Parish and some in other parishes, plaintiff produced no evidence indicating defendant intended to abandon his domicile at the apartment in favor of any other residence. Defendant explicitly testified that he has been domiciled in the apartment for about 32 years. Additionally, he testified that while he bought a residence in Chalmette in 1991 when he was St. Bernard Parish President, he continued to be domiciled at the apartment. This testimony of defendant’s intent is corroborated by the fact that defendant ceased to claim a homestead exemption in Plaquemines Parish when a new law took effect in 1998 requiring a person to register and vote in the precinct where property upon which a homestead exemption is claimed is located. We therefore find plaintiff failed to prove defendant intended to change his domicile to a location outside St. Bernard Parish at any time after 1972.

The next issue presented is whether plaintiff proved defendant had not “actually resided” in the St. Bernard Parish apartment for at least two years immediately preceding his qualification for the office of councilman-at-large (East) for the Parish of St. Bernard. This court has not previously interpreted the phrase “actually resided” |iaas it is used in § 2.01(e) of the St. Bernard Parish Home Rule Charter. However, as used in La. Const, art. Ill, § 4(A) in connection with the qualifications of candidates for the legislature, the phrase “actually domiciled” requires “that the person seeking to hold legislative office must have a ‘real rather than fictitious domicile in the area represented.’ ” Russell, 00-2595 at p. 6, 780 So.2d at 1052 (quoting Messer, 438 So.2d at 547). In Russell, this court applied the interpretation of the term “actually domiciled” to the phrase “actually resided” in La. R.S. 33:384, and determined that the inquiry of whether someone “actually resides” in a particular place should focus on whether plaintiff established that the residence at issue is a fictitious residence rather than a real residence. Because the St. Bernard Parish Home Rule Charter uses the phrase “actually resided” in a context virtually identical to that in La. R.S. 33:384 and interpreted in the Russell case, we will apply the same standard to the facts of this case. Accordingly, the pertinent inquiry is whether plaintiff established that defendant’s apartment is a fictitious residence rather than a real residence.

Defendant testified he resides in the apartment at different times, depending on the time and date. The record establishes that defendant eats, sleeps, and works at the apartment. The apartment contains all the modern requirements for everyday living, including a refrigerator with food in it, sink, stove, bed, chairs, washer, dryer, shower, toilet, and lavatory. Defendant’s wife sometimes lives in the apartment with him and keeps clothes there. Although there was testimony that defendant spends the majority of his time in the home in Plaquemines Parish, there is no evidence that defendant intended to abandon the apartment as his actual residence merely because he spent less time there. See Russell, 00-2595 at p. 7, 780 So.2d at 1052. As we explained in Russell, “[cjourts must be cognizant of the realities of modern life, in which the demands of a career and other factors often require people to spend a large | ^amount of time at different locations.” Id. Nothing in § 2.01(e) of the St. Bernard Parish Home Rule Charter prevents a candidate for councilman-at-large (East) from having several actual residences. Instead, the Charter provision focuses on whether the residence is in fact an actual, rather than a fictitious, residence. Based upon the record before us, we must conclude that plaintiff has failed to prove the St. Bernard apartment is merely a fictitious residence.

Finally, subsection (d) of § 2.01 of the St. Bernard Parish Home Rule Charter requires that a council member “shall be qualified electors of the parish and of the district or parish division from which elected at the time of qualification.” The record contains absolutely no evidence that defendant is not a qualified elector as required by this section.

We recognize that the record does not contain irrefutable, conclusive proof that defendant is both domiciled in and actually resides in the St. Bernard Parish apartment. However, such proof is not required to be in the record in this case. Rather, what is required is that plaintiff prove that defendant is not domiciled in the apartment, that he does not actually reside in the apartment, or that he is not a qualified elector of St. Bernard Parish and of the district or parish division for the office he seeks. Such proof was simply not sufficiently presented in the instant case. As explained above, any doubt as to the qualifications of a candidate must be resolved in the candidate’s favor so that he is permitted to run for public office. This policy furthers the interests of both the state and her citizens by giving the electorate the widest possible choice of candidates. Because we cannot find that defendant did not meet the qualification requirements for the office of councilman-at-large (East) of St. Bernard Parish, the instant case presents a situation in which this policy must be applied.

For all of the above reasons, we find that defendant, Lynn B. Dean, meets the | ^qualifications to be a candidate for the office of councilman-at-large (East) for the Parish of St. Bernard. Accordingly, the judgments of the lower courts to the contrary are reversed.

Decree

For the reasons assigned, the judgments of the lower courts are reversed. The candidacy of Lynn B. Dean for the office of councilman-at-large (East) for the Parish of St. Bernard is hereby reinstated. All costs in this court are assessed to plaintiff.

Reversed; Candidacy Reinstated.

CALOGERO, C.J., and WEIMER, J., dissent and assigns reasons.

TRAYLOR, J., dissents for the reasons assigned by WEIMER, J.

h CALOGERO, Chief Justice,

dissenting.

For the period January 1, 1984, to August 31, 1994, when defendant, Lynn B. Dean, preferred to pay the lesser sales tax on his business transactions to Plaque-mines Parish, rather than St. Bernard Parish, he took the position that his business, Elevating Boats, Inc. (“EBI”), as well as his residence were in Plaquemines Parish, notwithstanding the fact that the EBI building and the apartment atop that structure were actually located in St. Bernard Parish. See Elevating Boats, Inc. v. St. Bernard Parish, 2000-3518 (La.9/5/01), 795 So.2d 1153.

On August 21, 2003, when Mr. Dean qualified to run for the office of councilman-at-large for St. Bernard Parish, he claimed that he had actually resided for a number of years in the apartment atop the EBI business in St. Bernard Parish. The district court judge and the court of appeal in this case, on the strength of all the evidence in the record, determined that Mr. Dean did not meet the qualifications for the office of councilman-at-large as set forth in St. Bernard Parish Home Rule Charter § 2-01(E), which requires that “[a]ll council members shall have been legally domiciled Rand shall have actually resided in St. Bernard Parish for at least two (2) years immediately preceding the time established by law for qualifying for office.”

Two lower courts correctly found on the basis of the record evidence that Mr. Dean had not been both a legal domiciliary and an actual resident of St. Bernard Parish for at least two years immediately prior to the date of qualifying for office. I agree with those findings. Accordingly, I dissent.

hWEIMER, Justice,

dissenting.

I agree with the premise that fundamental to our system of democracy is the right of our citizens to choose their leaders. The purpose of the election process is to provide citizens with an opportunity to chose their representatives and, in this regard, it is beneficial to have a choice of candidates. I acknowledge that, in accordance -with the above principles, laws governing the conduct of elections must be liberally interpreted so as to promote rather than defeat candidacy. Any doubt as to the qualifications of a candidate should be resolved in favor of permitting the candidate to run for office. Russell v. Goldsby, 00-2595 (La.9/22/00), 780 So.2d 1048, 1051. However, while promoting candidacy is unquestionably a laudable goal, this goal cannot be achieved at the expense of rendering the words of a provision meaningless. Underlying policy cannot supercede the clear language of the law.

The Home Rule Charter for St. Bernard Parish is the fundamental law of the parish government for the people of St. Bernard. Article II, Section 2.01(e) of the St. Bernard Parish Home Rule Charter sets forth mandatory requirements for the office of councilman-at-large:

All council members shall have been legally domiciled and shall have actually resided in St. Bernard Parish for at least two (2) years ^immediately preceding the time established by law for qualifying for office. [Emphasis added.]

The charter requires a candidate to be “legally domiciled” and to have “actually resided” in the parish and division to be represented. Thus, the charter establishes two requirements which must be met by a candidate. Failure to meet either requirement can result in the candidate being disqualified. In this case, the trial court concluded that Senator Lynn B. Dean satisfied neither of the two requirements. The court of appeal focused on the “legally domiciled” requirement finding he failed to satisfy that requirement.

As to the “actually resided” requirement, the trial court noted that, pursuant to this court’s decision in Russell, supra at 1052, actually resided requires “a real residence, not a fictitious residence simply designed to circumvent the residency requirements.”

The obvious purpose of the charter in requiring a candidate to have “actually resided” in St. Bernard is to make certain that those who serve on the parish council have actually resided within the boundaries of the parish. This provision prohibits those who fictitiously reside, as opposed to those who have actually resided in the parish, from serving on the council. It is not enough to simply establish a “residence” within the parish. The charter requires the candidate to have “actually resided” within the parish. The word “actually” modifies “resided.” “Actually” is defined as “the truth or facts of a situation; really.” The New OxfoRD AMERICAN Dictionary 16 |3(Elizabeth J. Jewell & Frank Abate eds., 2001). The combination of the two requirements, coupled with the adverb “actually” modifying “resided,” makes it abundantly clear that to be a candidate an individual must not only intend to make St. Bernard Parish his home, but also must actually reside there physically.

The trial court concluded that the apartment in which Mr. Dean claims to “actually reside” is in fact a fictitious residence, based on the following:

The apartment is located less than one block from Mr. and Mrs. Dean’s primary residence. It is spartan at best. It is abundantly clear that the sole purpose of this apartment is to establish a residence for political purposes in St. Bernard.... There was absolutely no testimony of any other need for the residence except to establish a residence for political purposes. This evaluation of actual residence is not aided by Mr. Dean’s continued testimony that he re-
sides wherever his skin is located because he lives in his skin. That answer certainly shed doubt in the Court’s mind as to what he meant when he claims to actually reside at the apartment at EBI. It is additionally pointed out that despite Mr. Dean asserting the apartment is his it is actually owned by EBI. There is absolutely no testimony of any lease or rental agreement by EBI allowing Mr. Dean the exclusive use of the property. That simply is not enough to satisfy the charter requirements of actual residence.

The trial court’s ruling that Mr. Dean does not meet the “actually resided” requirement of the home rule charter is based on factual findings made by the trial court. Whether a person is or is not a resident of a particular place is a question of law and fact and is to be determined from the facts of each particular case. Gedward v. Sonnier, 98-1688 (La.3/2/99), 728 So.2d 1265. A logical rule restraining courts of review, such as this court, is that a trial court is reversed on factual determinations only if manifestly erroneous or clearly wrong. Lasyone v. Kansas City Southern Railroad, 2000-2628 (La.4/3/01), 786 So.2d 682; Stobart v. State, Department of Transportation and Development, 617 So.2d 880 (La.1993). This rule assures parties that the facts of their case will not be tried on the transcript or “cold record” filed in this court but rather before a fact finder who can evaluate the live testimony.

The majority attempts to circumvent the constraints of the manifest error rule |4by concluding that the trial court applied an incorrect legal standard. In reaching this conclusion, the majority expressly acknowledges that the trial court cited the correct law and burden of proof in its reasons; the majority simply accuses the court of not applying that law as recited. To support the accusation, the majority excerpts a single sentence from the lengthy reasons assigned by the trial court. That sentence, however, reflects not that the trial court impermissibly shifted the burden of proof to the defendant, but rather reflects that the trial court did not accept the defendant’s evidence. The trial court’s statement simply points out that the defendant failed to present any evidence that would corroborate his testimony although that evidence was within the defendant’s control. The trial court comments on his testimony and explains the court’s reasons for rejecting that testimony, but it does not impermissibly shift the burden of proof to the defendant. When the reasons assigned by the trial court are read in their entirety, it is clear that the trial court applied the law as recited and simply rejected the defendant’s testimony. In fact, to read the majority opinion, and the conflicting and confusing explanation afforded for the Dean Drive address, is to understand why the trial court chose not to credit the defendant’s testimony. Based on the entirety of the evidence presented, the trial court was justified in doing so.

|KThe findings of fact and the logical conclusions to be drawn from those facts stand unrefuted by the majority, which simply accepts the defendant’s testimony. However, it is the province and obligation of the trial court to find the facts in the first instance, and the majority has not, nor can it, demonstrate clear error in the factual findings and credibility determinations of the trial court.

In law, as in life, boundaries have to be drawn. The law often imposes boundaries. The boundary between the parishes of Plaquemines and St. Bernard, an artificial line, imperceptibly and infinitely thin, nevertheless establishes a legal boundary.

Senator Dean may appropriately consider himself a citizen of St. Bernard in heart and soul. He has served the people of both Plaquemines and St. Bernard Parish in the State Senate. He previously served the people of St. Bernard on the School Board for a decade and as President of St. Bernard Parish. However, the boundary line between the parishes governs whether he is a candidate.

Constrained by the manifest error rule, I cannot find the trial court erred.

      . Pursuant to La. R.S. 18:1402(A)(2), Lena R. Torres was named a nominal defendant in her official capacity as Clerk of Court for the Thirty Fourth Judicial District Court for the Parish of St. Bernard.

      . The district court's judgment also ordered Lena R. Torres, Clerk of Court for the Thirty-Fourth Judicial District Court, to notify “according to law the Secretary of State and the Commissioner of Elections that Lynn B. Dean has been disqualified as a candidate for the office of Councilman-at-large (East) for the Parish of St. Bernard.”

      . Based on this finding, the court of appeal determined it was unnecessary to address the issue of whether defendant maintained an "actual residence” in St. Bernard Parish.

      . This court implicitly recognized two requirements in Russell, supra, which involved LSA-R.S. 33:384, a provision listing "domiciled and actually resided” as qualifications for mayor.

      . Senator Dean serves District 1 in the Louisiana Senate.

      . The "legally domiciled” requirement can be pretermitted if the "actually resided” requirement is not met.

      . In his concurrence in Russell, supra note 1 at 1053, Justice Lemmon pointed out, "I further agree that the statutorily required actual residence is one that is not a fictitious residence, such as an office in which the candidate keeps a bed and some clothes.”

      . A judgment and reasons for judgment are two separate and distinct documents. LSA-C.C.P. art.1918. Appeals are taken from the judgment, not the written reasons for judgment. McCalmont v. Jefferson Parish Sheriffs Office, 99-940, p. 6 (La.App. 5 Cir. 1/12/00), 748 So.2d 1286, 1290, writ denied, 2000-0679 (La.4/20/00), 760 So.2d 1160. See Cenac v. Public Access Water Rights Association, 02-2660 (La.6/27/03), 851 So.2d 1006, Weimer, J. dissenting in part.

      . The majority notes at page 870:
      The record before us makes it clear that the address 101 Dean Drive has been used to describe both the Plaquemines Parish house and the St. Bernard Parish apartment ... [Djefendant received a Plaque-mines Parish Homestead Exemption in 1997 for 101 Dean Drive. For purposes of the homestead exemption, 101 Dean Drive clearly refers to the home in Plaquemines Parish as the exemption was issued by the Plaquemines Parish assessor.

      . Paraphrasing Justice Felix Frankfurter in Pearce v. Commissioner of Internal Revenue, 315 U.S. 543, 558, 62 S.Ct. 754, 86 L.Ed. 1016 (1942).


source: Caselaw Access Project

author: I,SULLIVAN, Judge.

license: Public Domain

text:
    SOUTHERN INGENUITY, INC. and Daryn R. Clark v. Effie BENJAMIN.
    No. 02-1426.
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2003.
    Writ Denied Sept. 19, 2003.

      Vincent J. Booth, Booth & Booth, APLC, New Orleans, LA, for Plaintiffs/Appellants: Southern Ingenuity, Inc., Daryn R. Clark.
    Otis E. Dunahoe, Jr., Dunahoe Law Firm, Natchitoches, LA, for Defen-dani/Appellee: Effie Benjamin.
    Court composed of OSWALD A. DECUIR, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   I,SULLIVAN, Judge.

Southern Ingenuity, Inc. and Daryn Clark (Plaintiffs) appeal the trial court’s denial of their claims for damages and attorney fees as provided for in La.R.S. 23:303(B). For the following reasons, we affirm.

Facts

Effie Benjamin, a black woman, was employed by Southern Ingenuity, Inc. when she learned of an organization known as We Care Ministries through her church. We Care Ministries provides the same or similar services as those provided by Southern Ingenuity, Inc. When Ms. Benjamin learned of We Care Ministries, it was not doing business in Louisiana and was a potential competitor of Southern Ingenuity, Inc. While employed by Southern Ingenuity, Inc., Ms. Benjamin provided assistance to We Care Ministries, including obtaining applications from state offices, preparing documents, and attending audit meetings. Southern Ingenuity, Inc. learned of her involvement with We Care Ministries and discharged her.

Ms. Benjamin contacted an attorney regarding her discharge. Ms. Benjamin testified that she consulted an attorney because a co-worker in a similar situation was not discharged. She explained that a white co-worker worked part-time for an agency, which provides the same services that Southern Ingenuity, Inc. provides, but she was not discharged and that the agency she worked for is not a religious organization as is We Care Ministries. After conferring with the attorney and on his advice, Ms. Benjamin filed suit against Southern Ingenuity, Inc. and Mr. Clark, the corporation’s sole shareholder, alleging a number of claims, including racial, gender, and religious discrimination.

After Ms. Benjamin’s suit was filed, Southern Ingenuity conducted discovery. Ms. Benjamin decided not to pursue her suit and terminated her attorney’s services. | ¡.Her attorney filed a motion to withdraw as counsel of record. In April 2000, Ms. Benjamin contacted Mr. Clark and informed him that she was dismissing her suit. On June 1, 2000, she filed a motion to dismiss her suit with the Clerk of Court, which was misplaced in the Clerk’s office. Mr. Clark testified that he knew the motion to dismiss was misplaced and was not presented to the trial judge for his signature.

On May 24, 2000, Southern Ingenuity, Inc. and Mr. Clark had filed a motion for summary judgment on Ms. Benjamin’s employment discrimination claims. Ms. Benjamin did not file an opposition to the motion or appear at the hearing on the motion for summary judgment, and it was granted.

In November 2000, Southern Ingenuity, Inc. and Mr. Clark filed a motion to set the matter for trial. The trial court ordered that Ms. Benjamin be served with an order to appear at the pretrial conference. Two days after being served with the notice to appear at the pre-trial conference, Ms. Benjamin filed another motion for dismissal which was signed on December 11, 2000.

Plaintiffs filed suit against Ms. Benjamin pursuant to La.R.S. 23:303(B) which provides:

A plaintiff found by a court to have brought a frivolous claim under this Chapter shall be held liable to the defendant for reasonable damages incurred as a result of the claim, reasonable attorney fees, and court costs.

Five other Southern Ingenuity employees also filed and dismissed suits against Plaintiffs, alleging claims of discrimination. Plaintiffs only sued Ms. Benjamin. After a trial on the merits of Plaintiffs’ claims, the trial court determined that Ms. Benjamin’s suit was not “frivolous.” Plaintiffs appeal.

13Issues

The issues presented herein are: 1) what is the appropriate standard applicable to claims brought under La.R.S. 23:303(B) and 2) was Ms. Benjamin’s suit a “frivolous claim”?

Appropriate Standard under La.R.S. 23:303(B)

La.R.S. 23:303 does not define the term “frivolous claim,” and there are no cases which address this issue. The trial court concluded that La.Code Civ.P. art. 863 is the appropriate standard to apply to Plaintiffs’ claims. Plaintiffs assert that the appropriate standard is that found in La. Code Civ.P. art. 2164, which allows for an award of damages for frivolous appeal.

Article 863 allows for the imposition of sanctions and attorney fees for an attorney or litigant who signs a pleading without having made a

reasonable inquiry [to insure that] it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

The trial court rejected Plaintiffs’ argument that the appellate standard of Article 2164 is appropriate here, “[because it is post-trial, it does not allow for the consideration of what could be discovered before trial.” Damages for frivolous appeal under Article 2164 are not awarded unless the appeal was taken solely for the purpose of delay, no serious legal question was raised by the appeal, or the attorney does not seriously believe in the position he advocates. Courville on Behalf of Vincent v. City of Lake Charles, 98-73 (La.App. 3 Cir. 10/28/98), 720 So.2d 789. Plaintiffs argue that the “no serious legal question” component of this standard applies here because, under the facts related by Ms. Benjamin, she could not establish |4a prima facie case regarding her claims; therefore, her claims were frivolous under La.R.S. 23:303(B).

Claims for frivolous appeals are made after discovery has been conducted and, more importantly, after a trial on the merits has been held in which the facts and the applicable law were determined. Even at that point, courts are reluctant to award damages under Article 2164 because it is penal and must be strictly construed. Guarantee Sys. Constr. & Restoration, Inc. v. Anthony, 97-1877 (La.App. 1 Cir. 9/25/98), 728 So.2d 398, writ denied, 98-2701 (La.12/18/98), 734 So.2d 636.

We find no error with the trial court’s conclusion that the appropriate standard to apply herein is that of La. Code Civ.P. art. 863.

Sanctions

The trial court concluded that sanctions were not appropriate here, stating:

What we know about the suit at issue is that after she was fired for helping We Care Ministries, Ms. Benjamin knew or learned that another Southern Ingenuity, Inc. employee who was white was working for another agency, and one that was not religion based. She had no easy means to delve into the circumstances of that without the legal process being available.

Ms. Benjamin’s attorney signed her petition. Article 863 “imposes a personal, nondelegable duty upon the signing attorney to make an objectively reasonable inquiry into the facts and law, thereby satisfying himself that the pleading is factually and legally responsible.” Cooks v. Rodenbeck, 97-1389, p. 8 (La.App. 3 Cir. 4/29/98), 711 So.2d 444, 449. Sanctions are intended only for exceptional circumstances, and the slightest justification for the exercise of a legal right precludes the imposition of sanctions. Cooks, 711 So.2d 444.

Article 863 is written in terms of reasonableness. The record reveals that Ms. Benjamin acted reasonably. She believed that she was discriminated against by Ifiher employer, and she sought the advice of an attorney. On his advice, she filed suit, alleging that her employer’s actions were discriminatory. Her belief was sincere, and her actions were not for an improper purpose.

Appellate review of claims for sanctions is governed by the manifest error and abuse of discretion standard. Doe v. Jeansonne, 98-183 (La.App. 3 Cir. 10/7/98), 719 So.2d 690. We find no manifest error in the trial court’s conclusion that Ms. Benjamin’s suit was not a “frivolous claim.”

The trial court’s dismissal of Plaintiffs’ claim for sanctions against Ms. Benjamin is affirmed. Costs of this appeal are assessed against Plaintiffs.

AFFIRMED.


author: |, SULLIVAN, Judge.

text:
    NATIONAL UNION FIRE INSURANCE COMPANY OF LOUISIANA v. Burt HARRINGTON, et al.
    Nos. 02-832, 02-833.
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2003.

      G. Edward Williams, Jr., F. Douglas Gatz, Jr., Jennifer A. Wells, Preis, Kraft & Roy, Lafayette, LA, for Plaintiff/Appellant, National Union Fire Insurance Company of Louisiana.
    Tracy P. Curtis, Perret Doise, APLC, Lafayette, LA, for Defendants/Appellants, Progressive Security Insurance Company Burt Harrington.
    J. Minos Simon, Chris P. Villemarette, J. Minos Simon, Ltd., Lafayette, LA, for Plaintiff/Appellant, Mary Electa LeBlanc.
    William F. Bologna, Habans, Bologna & Carriere, New Orleans, LA, for Defendant/Appellee, DaimlerChrysler Corporation.
    Stephen E. Broyles, Glusman, Broyles & Glusman, LLC, Baton Rouge, LA, for Defendant/Appellant, DaimlerChrysler Insurance Company.
    John S. Thibaut, Jr., Thibaut, Thibaut & Vogt, Baton Rouge, LA, for Defendant/Ap-pellee, Royal Insurance Company of America.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   |, SULLIVAN, Judge.

This appeal arises out of a vehicle fire which resulted in the total loss of Mary Electa LeBlanc’s residence. After a jury trial, judgment was rendered in favor of Mrs. LeBlanc and her homeowner’s insurer, National Union Fire Insurance Company of Louisiana (National Union). All parties to the judgment, except one defendant, appeal. For the following reasons, we affirm.

Facts

On November 3, 1996, a 1996 Dodge Neon, owned by Acadiana Dodge, Inc. (Acadiana Dodge) and in the possession and use of Burton Harrington, caught on fire while parked under the carport of Mrs. LeBlanc’s home in Lafayette. The fire spread quickly, totally destroying the Neon and Mrs. LeBlanc’s home. At the time the fire ignited, Mr. Harrington was seated in the Neon. He escaped from the car without harm and unsuccessfully tried to extinguish the fire with a water hose. Mrs. LeBlanc was not at home when the fire started, but returned home when she learned of the fire.

Mr. Harrington rented a mobile home from Mrs. LeBlanc, which was situated on her property behind her home. He testified that he picked up the Neon at Acadia-na Dodge on Friday, November 1, 1996, because his car, which was in the body shop there for repairs, was not ready. According to Mr. Harrington, the Neon stayed parked at Mrs. LeBlanc’s until he went out Saturday evening at about 8:00 p.m., when he went to Scandals, a lounge located in Lafayette. Mr. Harrington remained at Scandals until it closed at 2:00 a.m. At that time, he returned to Mrs. LeBlanc’s. He testified that he drank three to four beers during the evening.

When he arrived back at Mrs. Le-Blanc’s, Mr. Harrington parked the Neon under her carport which was his custom. He and Mrs. LeBlanc testified that after an evening out he would often stay in his car and listen to music. Mr. Harrington | ^testified that he did the same the morning of the fire, explaining that he parked the car, turned off the ignition, but then turned the ignition to the auxiliary position to operate the radio. Evidently, he fell asleep as he listened to the music and woke up some time later. He testified that he did not remember anything between 2:15 a.m. when he parked the Neon and 4:06 a.m. when he awoke. He further testified that after being awakened by the cold air, he turned on the ignition to turn on the heater. He explained that he turned the ignition, but the car did not start. He denied that he fell asleep with the engine on and his foot on the accelerator. Mr. Harrington testified that he heard a “pop, pop, pop” sound and saw flames shooting out from under the hood when he tried to start the car. He described the car as a “flame thrower.” He turned off the car, exited the driver side door, ran to his mobile home, and called 911. He returned and tried to extinguish the fire with a water hose.

National Union paid Mrs. LeBlanc for the loss of her home, then filed suit to collect what it had paid her from the parties liable for the fire. Mrs. LeBlanc also filed suit for damages which exceeded the coverage provided by National Union’s policy. Her suit was consolidated with National Union’s suit. Named defendants in the consolidated suits were DaimlerChrys-ler Corporation (DaimlerChrysler); Acadi-ana Dodge; Hertz Claims Management Corporation (Hertz); DaimlerChrysler Insurance Company (DaimlerChrysler Ins.), insurer of Acadiana Dodge; Royal Insurance Company of America (Royal), insurer of Acadiana Dodge and alleged insurer of Mr. Harrington, as customer of Acadiana Dodge; Mr. Harrington; and Progressive Security Insurance Company (Progressive), his insurer. Mr. Harrington filed cross-claims against DaimlerChrysler and Royal.

IsjMr. Harrington and Progressive filed a motion for summary judgment on the issue of their liability which was denied. An application for writs of certiorari on this issue was denied by this court. Daimler-Chrysler Ins. filed a motion for summary judgment, asserting that Acadiana Dodge and Hertz were entitled to summary judgment on the issue of liability. Summary judgment in favor of Hertz was not opposed and was granted. After a hearing, summary judgment was granted in favor of Acadiana Dodge. Royal also filed a motion for summary judgment on the basis that, under the facts of this case, neither its liability policy nor its umbrella policy provided coverage for Acadiana Dodge or Mr. Harrington. The motion was granted by the trial court.

The matter was tried before a jury which found Mr. Harrington solely at fault in causing the fire. The jury also determined that Mr. Harrington rented the Neon from Acadiana Dodge, rather than Acadiana Dodge loaning it to him. It awarded $125,000.00 in general damages and $161,500.00 in special damages. National Union, Mrs. LeBlane, Mr. Harrington and Progressive, and DaimlerChrysler Ins. filed appeals. We first address assignments of error pertaining to the trial court. Assignments of error pertaining to the jury’s actions follow.

Summary Judgment

The trial court’s grants of summary judgment in favor of Acadiana Dodge, Da-imlerChrysler Ins., and Royal are assigned as error. The denial of summary judgment in favor of Mr. Harrington and Progressive is also assigned as error.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether a summary judgment is appropriate. Schroeder v. Bd. of Sup’rs of La. State Univ., 591 So.2d 342 (La.1991). I ¿The mover is entitled to judgment if the pleadings, depositions, answers to interrogatories and admissions on file, together with supporting affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B).

Acadiana Dodge & DaimlerChrysler Ins.

National Union, Mr. Harrington, and Progressive complain that the trial court should not have granted summary judgment in favor of Acadiana Dodge and Da-imlerChrysler Ins. Their opposition is based upon Acadiana Dodge’s maintenance of the Neon. The Neon was purchased by Acadiana Dodge from DaimlerChrysler and used exclusively as a rental unit from the time of its purchase until the time of the fire. The owner’s manual for the Neon recommended an oil and filter change at 7,500 miles; however, maintenance records reflect that the oil and filter were not changed until the Neon had been driven 8,704 miles. Additionally, Acadiana Dodge was not able to produce all of the rental agreements for the Neon and approximately 522 miles are not documented.

Acadiana Dodge’s alleged liability is based upon La.Civ.Code art. 2317.1 which provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case.

The claims that Aeadiana Dodge’s lack of maintenance caused the fire are not supported by evidence. The only theory of liability regarding Aeadiana Dodge is that the jury could have concluded that the lack of maintenance caused the fire. It is nonsupported by any factual or expert evidence. Furthermore, for Aeadiana Dodge to be liable under La.Civ.Code art. 2317.1, it had to know, or it should have known, that its maintenance procedures could cause the Neon to catch on fire. Nothing in the record indicates any such knowledge by Aeadiana Dodge.

Defendants also argue that Acadia-na Dodge had true garde of the Neon and under the evidentiary rule of res ipsa lo-quitur the jury could have assessed fault to it. Res ipsa loquitur is a rule of circumstantial evidence. It is applicable only when the facts and evidence indicate that the defendant’s negligence is the most plausible explanation for the plaintiffs injury. Montgomery v. Opelousas Gen. Hosp., 540 So.2d 312 (La.1989). There was no evidence that Aeadiana Dodge’s maintenance of the Neon was the most plausible explanation for the fire.

Defendants also argue that, because Aeadiana Dodge removed the Neon from Mrs. LeBlanc’s home after the fire and it was destroyed some time thereafter, it should be held liable under the spoliation of evidence rule. Spoliation of evidence is the intentional destruction of evidence to deprive the plaintiff of its use. See Kammerer v. Sewerage & Water Bd. of New Orleans, 93-1232 (La.App. 4 Cir. 3/15/94), 633 So.2d 1357, writ denied, 94-0948 (La.7/1/94); 639 So.2d 1163; Williams v. Gen. Motors Corp., 607 So.2d 695 (La.App. 4 Cir.1992). Where suit has not been filed and there is no evidence that a party knew suit would be filed when the evidence was discarded, the theory of spoliation of evidence does not apply. Smith v. Jitney Jungle of Am., 35,100 (La.App. 2 Cir. 12/5/01), 802 So.2d 988, writ denied, 02-0039 (La.3/15/02), 811 So.2d 913. There is no evidence that this rule is applicable to Aeadiana Dodge.

|fiWe find no error with the trial court’s grant of summary judgment in favor of Aeadiana Dodge and DaimlerChrysler Ins. Royal Insurance Company

In its motion for summary judgment, Royal, as insurer of Aeadiana Dodge, sought dismissal from the proceedings on the basis that summary judgment had been granted in favor of Aeadiana Dodge. As the alleged insurer of Mr. Harrington, Royal asserted that neither its Business Protection Portfolio policy (liability policy) nor its Big Shield Commercial Catastrophe liability policy (umbrella policy) provided coverage to Mr. Harrington.

Having affirmed summary judgment in favor of Aeadiana Dodge, we affirm summary judgment in favor of Royal, as insurer of Aeadiana Dodge.

Liability Policy

Now, we consider whether summary judgment in favor of Royal, as liability insurer of Mr. Harrington, was proper. The basis of Royal’s motion for summary judgment regarding its liability policy is the following provision:

WHO IS AN INSURED
The following are “insureds” for covered “autos”
(1) You for any covered “auto.”
(2) Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
(d) Your customers, if your business is shown in the Declarations as an “auto” dealership. However, if a customer of yours:
(i) Has no other available insurance (whether primary, excess or contingent), they are an “insured” but |7only up to the compulsory or financial responsibility law limits where the covered “auto” is principally garaged.
(ii) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered “auto” is principally garaged, they are an “insured” only for the amount by which the compulsory or financial responsibility law limits exceed the limit of their other insurance.

Royal asserts that Mr. Harrington is not an insured under this provision because Acadiana Dodge is identified in the policy as an “auto” dealership and his $20,000.00 liability coverage with Progressive exceeds the $10,000.00 minimum compulsory motor vehicle liability insurance required by La. R.S. 32:861. Opponents to the motion argue that Acadiana Dodge’s form of business is identified in the declarations of the Commercial Auto Coverage Part of the Lability policy as “Corporation,” not “ ‘auto’ dealership;” therefore, the exception does not apply. This argument ignores the basic rules of contract interpretation and the terms of the policy itself.

Recently, in Succession of Fannaly v. Lafayette Insurance Co., 01-1144, 01-1343, 01-1355, 01-1360, pp. 3-4 (La.1/15/02), 805 So.2d 1134, 1137-38, the supreme court reviewed the basic rules for insurance policy interpretation, stating:

An insurance policy is an aleatory, nominate contract subject to the general rules of contract interpretation as set forth in our civil code. See LSA-C.C. arts.1912,1914-15. The extent of coverage under an insurance contract is dependent on the common intent of the insured and insurer. See Ledbetter v. Concord General Corp., 95-0809 (La.01/06/96), 665 So.2d 1166, 1169. Thus, when interpreting an insurance contract, courts must attempt to discern the common intent of the insured and insurer. See LSA-C.C. art.2045.
In ascertaining the common intent of the insured and insurer, courts begin their analysis with a review of the words in the insurance 18contract. Words in an insurance contract must be ascribed their generally prevailing meaning, unless the words have acquired a technical meaning, in which case the words must be ascribed their technical meaning. See LSA-C.C. art.2047. Moreover, an insurance contract is construed as a whole and each provision in the contract must be interpreted in light of the other provisions. One provision of the contract should not be construed separately at the expense of disregarding other provisions. See LSA-C.C. art.2050; Peterson v. Schimek, 98-1712 (La.03/02/99), 729 So.2d 1024,1029.
When the words of an insurance contract are clear and explicit and lead to no absurd consequences, courts must enforce the contract as written. See LSA-C.C. art.2046.

Royal’s policy is a comprehensive policy which provides more than one type of coverage to Acadiana Dodge. The Common Declarations of the policy provide: “These declarations, together with the Common Policy Conditions, Coverage Part Declarations, Coverage Forms and Endorsements, if any, issued to form a part thereof, complete the contract of insurance,” and the Garage Part Declarations provide: “These declarations when combined with the common policy declarations, the common policy conditions, coverage form(s) and endorsements, if any, issued to form a part thereof, complete the contract of insurance.” Thus, the policy itself requires that it be read as a whole.

In the Common Policy Declarations of Royal’s liability policy, Acadiana Dodge is identified as the “Named Insured” and its “Business Description” is “Franchised Dealer.” (Emphasis added.) The Commercial Auto Coverage Part of the policy is identified as “Garage Coverage Form,” and the following statement appears at the end of the first page- of the Garage Coverage Part Declarations:

THESE DECLARATIONS MUST BE COMPLETED BY THE ATTACHMENT OF A SUPPLEMENTARY SCHEDULE.

Three “Garage Coverage Part — Auto Dealers Supplementary Schedules” follow the Declarations. (Emphasis added.) Furthermore, Item Seven of the supplementary | schedules defines the physical damage coverage provided by the policy as comprehensive and collision coverage for new and used automobiles, demonstrators, and service vehicles. Additionally, there are endorsements to the liability policy entitled “Automobile Dealers Legal Defense Cost Coverage” and “Automobile Dealers Errors and Omissions Insurance.” (Emphasis added.) We find no error with the trial court’s grant of summary judgment in favor of Royal on its liability policy-

Mrs. LeBlanc cites Hargrove v. Missouri Pacific Railroad Co., 00-0228 (La.App. 3 Cir. 1/10/01), 780 So.2d 454, writ granted, 01-1228 (La.6/29/01), 794 So.2d 804, in opposition to the summary judgment. We note that writs were granted by the supreme court; however, the matter must have been resolved by the parties because there is no reported ruling on the writ by the court. In Hargrove, the liability policy treated the defendant’s auto dealership and garage operations as two separate businesses. The policy had separate insuring statements and agreements and provided different limits of liability for the auto dealership and the garage operations. That is not the case here: Royal’s policy provides the same coverage and limits for Acadiana Dodge’s garage operations as its auto dealership operations.

Royal’s liability policy identifies Acadia-na Dodge as an “auto” dealership. The trial court did not error in granting summary judgment in favor of Royal on its liability policy.

Umbrella Policy

With regard to its umbrella policy, Royal asserted in its motion for summary judgment that, under the terms of the policy and the Automobile Dealer/Garage Endorsement thereto, Mr. Harrington was an insured but only to the extent that Mrs. LeBlanc’s damages exceeded Acadiana Dodge’s “Retained Limit” which is Imdefined by the terms of the policy as $500,000.00. Mr. Harrington and Progressive argue that the trial court committed error in granting summary judgment on the umbrella policy because it made an assessment of damages when it determined that Mrs. LeBlanc’s damages would not exceed the policy’s Retained Limit of $500,000.00.

The jury awarded Mrs. LeBlanc $286,500.00 in damages, which she has not appealed. Therefore, any error committed by the trial court in determining that her damages would not exceed $500,000.00 was harmless. Greene v. Taylor, 01-1137 (La.App. 3 Cir. 2/27/02), 809 So.2d 1187, unit denied, 02-0975 (La.4/26/02), 814 So.2d 567.

DaimlerChrysler’s Expert Witness

Mr. Harrington and Progressive also assign as error the trial court’s acceptance of Robert Banta, a career employee with DaimlerChrysler, as an engineering expert. The requirements of expert testimony are set forth in La.Code Evid. art. 702, which states: “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” In Mistich v. Volkswagen of Germany, Inc., 95-0939, p. 8 (La.1/29/96), 666 So.2d 1073, 1079, the supreme court noted, “[fjormal education or training in a particular field is not always necessary to qualify as an expert in a particular field. Experience alone is sufficient.” On appeal, a trial court’s acceptance of a witness as an expert will not be disturbed, unless it is clearly erroneous. Id.

luMr. Banta has an associate’s degree in mechanical technology and has held four or five engineering positions with DaimlerChrysler since he began working with the company in 1967. During his thirty-five years at DaimlerChrysler, his work has included the determination of the cause and origins of fires, and he has attended a significant number of seminars concerning vehicle fire investigation and determination of the cause and origin of fires. He teaches vehicle fire investigation to DaimlerChrysler employees and at the Michigan State Police Academy. Although he does not have a degree in engineering, Mr. Banta has been awarded full membership in the Society of Automotive Engineers, which normally requires an engineering degree. Considering Mr. Banta’s extensive experience, training, and continuing education, we find no error with the trial court’s acceptance of him as an expert.

Harrington and Progressive also argue that Mr. Banta should not have been allowed to present his theory of how the fire originated to the jury because it was speculative. Their arguments reveal that the real basis for this contention is the fact that Mr. Banta’s opinion did not accept Mr. Harrington’s testimony regarding his actions in the car before the fire. Specifically, he rejected Mr. Harrington’s testimony that the Neon was off while he was sleeping and that there were no flames under the hood until he started the car after waking.

It was the jury’s function to consider the testimony of Mr. Harrington and Mr. Ban-ta in light of the evidence presented during the trial, to determine the credibility of each, and to decide the case in light of its credibility determinations and the other evidence. Mr. Banta explained the differences between his theory of the fire and Plaintiffs’ expert’s theory of the fire and the physical evidence that led him to his | ^determination that Mr. Harrington had not turned off the ignition of the Neon before falling asleep. We find no merit in this assignment of error.

Jury Challenges

Mr. Harrington and Progressive next assign as error the trial court’s refusal to treat them as adverse to DaimlerChrysler for the purpose of jury challenges. They assert that their position is adverse to Mrs. LeBlanc and to DaimlerChrysler and that they should not have had to share jury challenges with DaimlerChrysler.

La.Code Civ.P. art. 1764 provides in pertinent part:

B. If trial is by a jury of twelve, each side is allowed six peremptory challenges. If there is more than one party on any side, the court may allow each side additional peremptory challenges, not to exceed four.
C. Each side shall be allowed an equal number of peremptory challenges. If the parties on a side are unable to agree upon the allocation of peremptory challenges among themselves, the allocation shall be determined by the court before the examination on the voir dire.

In Abadie v. Metropolitan Life Insurance Co., 00-344 to 00-856, p. 26 (La.App. 5 Cir. 3/28/01), 784 So.2d 46, 69, writs denied, 01-1533, 01-1534, 01-1543, 01-1544, 01-1629, 01-1853, 01-1931, 01-1953 (La.12/14/01), 804 So.2d 642, 643, 644, 645, the court observed:

For purposes of [La.Code Civ.P. art. 1764], the number of sides in a lawsuit is determined by the legal posture of the parties. Smith v. State Farm Ins. Co., 446 So.2d 1269 (La.App. 4th Cir.1984), writ denied, 449 So.2d 1356 (La.1984). For the purposes of exercising peremptory challenges, multiple party defendants with adverse interests may constitute a single side. Id. The trial court’s determination of the number of sides in a lawsuit is subject to the manifest error standard of review. See Atkinson v. Celotex, 93-924 (La.App. 3rd Cir.3/2/94), 633 So.2d 383.

The trial court required Mr. Harrington and Progressive, DaimlerChrysler, and DaimlerChrysler Ins. to share the six peremptory challenges allowed by La.Code _L¡2Civ.P. art. 1764(B), allowing each defendant two peremptory challenges. We find no manifest error with the trial court’s determination on this issue.

Mr. Harrington and Progressive used only one of their two peremptory challenges during jury selection, so they were not prejudiced by the trial court’s allocation of peremptory challenges. Therefore, even if the trial court’s allocation of the challenges was error, it was harmless. Greene, 809 So.2d 1187.

For the selection of an alternate juror, the trial court limited all of the Defendants to one collective peremptory challenge. The problem at issue arose when DaimlerChrysler wanted to dismiss one juror that Mr. Harrington and Progressive wanted to retain. The trial court allowed DaimlerChrysler to exercise the one peremptory challenge over the objection of Progressive and Mr. Harrington. The alternate juror was not needed for deliberations and was dismissed by the trial court when the jury retired to deliberate. Again, Progressive and Mr. Harrington were not prejudiced by the trial court’s allocation of the peremptory challenge. Therefore, if the trial court’s requiring the Defendants to use one peremptory challenge for the selection of an alternate juror was error, it was harmless error. Id. This assignment has no merit.

lies Ipsa Loquitur

Mr. Harrington, Progressive, and Daim-lerChrysler Ins. assign as error the trial court’s application of the doctrine of res ipsa loquitur to this case, arguing that the doctrine can only be applied when the plaintiff is attempting to establish the liability of one defendant.

Generally, a plaintiffs burden of proof in a civil suit is preponderance of the evidence. The plaintiff can meet this burden of proof with direct or circumstantial |uevidence. Sonnier v. Bayou State Mobile Homes, Inc., 96-1458 (La.App. 3 Cir. 4/2/97); 692 So.2d 698, writ denied, 97-1575 (La.10/3/97), 701 So.2d 201. Circumstantial evidence is “evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred.” W. Page Keeton, ET AL., PROSSER & KEETON On THE LAW OF Torts § 39, at 242 (5th ed.1984). When direct evidence of a defendant’s negligence is not available, the doctrine of res ipsa loquitur assists the plaintiff in presenting a prima facie case of negligence. Cangelosi v. Our Lady of the Lake Reg’l Med. Ctr., 564 So.2d 654 (La.1989). If applicable, the doctrine allows, but does not require, the trier of fact to infer negligence from the circumstances of the event. Id. Generally, three criteria must be present for the doctrine to be applicable: 1) the facts must indicate that the plaintiffs injuries would not have occurred in the absence of negligence; 2) the plaintiff must establish that the defendant’s negligence falls within his scope of duty to plaintiff; and 8) the evidence should sufficiently exclude inference of the plaintiffs own responsibility or the responsibility of others besides defendant in causing the accident. Id. The second factor is often established by showing that the defendant had exclusive control of the injury-causing instrumentality. Id.

Res ipsa loquitor has been applied in cases with multiple defendants. See Ham-iter v. Duncan, 78 So.2d 80 (La.App. 2 Cir.1955); Watkins v. Gulf Ref. Co., 206 La. 942, 20 So.2d 273 (1944); Am. Sec. Ins. Go. v. Griffith’s Air Conditioning, 317 So.2d 256 (La.App. 3 Cir.), units denied, 320 So.2d 915, 916 (La.1975); Moak v. Linkr-Belt Co., 229 So.2d 395 (La.App. 4 Cir.1969), rev’d on other grounds, 257 La. 281, 242 So.2d 515 (1970); Arrington v. Hearin Tank Lines, Inc., 80 So.2d 167 (La.App. 2 Cir.1955). The doctrine is often applied in medical malpractice cases where there are | ^multiple defendants. See McCann v. Baton Rouge Gen. Hosp., 276 So.2d 259 (La.1973); Boudoin v. Crawford & Marshall, Ltd., 97-224 (La.App. 5 Cir. 1/14/98), 709 So.2d 798; Johnston v. Southwest La. Ass’n, 96-1457 (La-App. 3 Cir. 4/2/97), 693 So.2d 1195; Goodliffe v. Parish Anesthesia Assoc., 95-357 (La.App. 5 Cir. 10/18/95), 663 So.2d 769, writ denied, 95-2780 (La.2/16/96), 667 So.2d 1051; Hastings v. Baton Rouge Gen. Hosp., 498 So.2d 713 (La.1986); Holliday v. Peden, 359 So.2d 640 (La.App. 1 Cir.1978); Meyer v. St. Paul-Mercury Indem. Co. of St. Paul, Minn., 61 So.2d 901 (LaApp. Orl.1952).

Louisiana courts have not refused to apply the doctrine simply because there was more than one defendant. Rather, courts have refused to apply the doctrine where a possible tortfeasor was not joined. See Arrington, 80 So.2d 167; Winans v. Rockwell Int’l Corp., 705 F.2d 1449 (5th Cir.1983). In Moak, 229 So.2d 395, res ipsa loquitur was applied to a situation where an explosion occurred in a sugar factory. The factory owner and a contractor which installed some new mechanical equipment in the factory were sued for damages which resulted from the explosion. The defendants argued that res ipsa loquitur is not applicable where one or the other defendant, or both, could be found liable for the explosion. Upholding the application of res ipsa loquitur, the court of appeal pointed out that the factory owner had

full control of the conveyor system which somehow caused the explosion, at the moment of the explosion, and [the other defendant] had had full control during refabrication and its responsibility for its prior full control was not extinguished by the period of nonuse prior to the disastrous first full use of the system by American.

Id. at 410. The situation here is very similar. Mr. Harrington had full control of the Neon at the time of the fire and DaimlerChrysler had full control of the Neon when 11fiit was manufactured and its responsibility for any manufacturing defect which may have caused the fire was not extinguished by Acadiana Dodge’s possession and use of it.

In Arrington, 80 So.2d at 170, one of two defendants challenged the application of res ipsa loquitur on the basis that the “plaintiffs failure to allege the exclusive management and control was in a single defendant and where there is such divided responsibility the doctrine of res ipsa lo-quitur is inapplicable.” The court found there was no authority “which denies application of the doctrine of res ipsa loqui-tur where the operations producing the damage complained of were activities and operations conducted solely by several defendants.” Id. The court further observed:

The presumption of negligence arising from the mere happening of the accident does not attach, therefore, to one who from reference to plaintiffs petition or the evidence adduced upon trial, is not shown to be in control of the operations which produced the injury. This is especially true where there is but one defendant. But it does not follow there cannot be more than one defendant who may be required to rebut an inference of negligence which may be the proximate cause of the damage.

Id. (emphasis added).

Two theories of the Neon fire emerged from the facts, the physical evidence, and the opinions of the experts. Under these theories, DaimlerChrysler and Mr. Harrington were the only possible tortfeasors and they were before the jury for trial of this matter. The only other alleged possible tortfeasor was Acadiana Dodge, which, as previously discussed, was dismissed on summary judgment.

We find no error with the application of res ipsa loquitur under the facts of this case.

117Assessment of Fault

All parties, except DaimlerChrys-ler, assign as error the jury’s failure to assess fault to DaimlerChrysler. Two theories of the cause and origin of the fire were presented to the jury. Plaintiffs’ theory of the fire was presented by their expert, George Casellas, an electrical engineer. Mr. Casellas testified that he believed the fire was an electrical fire caused by a mis-routed wiring harness that came into contact with an exhaust recirculation tube. DaimlerChrysler’s expert, Robert Banta, theorized that when Mr. Harrington fell asleep in the Neon, the engine was running and that, at some point during his sleep, he put his foot on the accelerator, causing it to run at full throttle, and that this, along with the car being stationary, caused the car to catch on fire.

The fire was investigated by the Lafayette Fire Department and an investigator retained by National Union. Mr. Terrance Gahn, fire investigator for the Lafayette Fire Department, testified that he arrived at the scene of the fire one or two hours after it was out. He placed the origin of the fire at the Neon under the carport. He testified that he did not know whether the fire started inside or outside of the vehicle. He had no opinion as to how the fire started.

National Union retained Mervin Stringer, an accident investigator, to investigate the fire. Mr. Stringer conducted his investigation on November 11, 1996. He testified that he could not find any definitive physical evidence of the point of origin of the fire and that he could only narrow it down to some place between the front bumper and the front seat of the car. When he conducted his investigation, the car had been removed from the carport. There was no oil or residue on the floor of the carport, and he testified that this indicated to him that engine failure had not 11scaused the fire. He also testified that he could not rule out that some action by Mr. Harrington may have caused the fire.

Mr. Casellas’ theory was based upon the recall of Neons manufactured at a Daim-lerChrysler plant in Mexico because of a mis-routed wiring harness. The Neon in this case was manufactured in Illinois. However, Mr. Casellas testified that he had investigated another fire in a Neon, which was manufactured in Illinois, that he also attributed to a mis-routed wiring harness. He theorized that the mis-routed wiring harness came into contact with the exhaust gas recirculating tube, which reaches temperatures of 400 to 500 , causing the wire harness’s insulation protection sheath to melt. As a result, he believed there was a failure of the engine control module which caught on fire. He thought the popping noise described by Mr. Harrington was the clicking sound that occurs when the ignition is turned on and the battery has been drained of power by an electrical short.

Mr. Casellas explained that he considered the fire patterns shown in photographs of the vehicle, the consumption of components in the engine, and the heat in the area of the engine to rule out other factors that could have caused the fire. In his opinion, an inherent defect in the Neon caused the fire. Further, he explained that he knew the fire came from under the hood in the general area of the harness and that he concluded by the process of elimination that the fire was electrical in nature. He also testified that he ruled out a fuel leak as the cause of the fire because, according to Mr. Harrington’s testimony, the engine was not running at the time the fire started. Continuing, he explained that the only way an engine can catch on fire from running at high speed would be if there was a total breakdown of the engine, ie., throw a rod or have a cracked engine block. He testified that he knew that did |19not happen because a photograph of the dipstick taken by Mr. Stringer showed that there was plenty of oil, which would not have been the case if a rod had been thrown.

On cross-examination, Mr. Casellas agreed that, if Mr. Harrington forgot, made a mistake, or was sleeping soundly and did not remember that the Neon was running when he awoke, there was no basis for his opinion. Further, he testified that if an engine is running very hot— maybe for a couple of hours while someone sleeps with his foot on the accelerator, and fluid leaks on the manifold — a fire could start. Finally, he testified that he could not rule out that some action of Mr. Harrington may have led to the fire.

In explaining his theory to the jury, Mr. Banta testified that testing has established that a stationary vehicle running at full throttle will catch on fire within a period of fifteen to twenty minutes; occasionally, one may go for up to an hour before catching on fire. He also testified that only one to one and one-half pound of pressure is required to completely depress an automobile accelerator and that a human’s leg weighs thirty to forty pounds. Further, he testified that he has investigated fires that occurred under similar circumstances.

According to Mr. Banta, Mr. Harrington’s testimony that, when he woke up and turned on the ignition, he heard an explosion and a popping noise, like gunfire, and saw flames eighteen to twenty-four inches high coming out from under both sides of the hood of the Neon, and that the flames got higher when he turned off the ignition, supports his theory. He explained that the fire described by Mr. Harrington was a “mature” fire, not a beginning fire, as he would expect if the fire had been caused by a short circuit when Mr. Harrington turned the key in the ignition. Mr. Banta further explained that a fire caused by a short circuit in electrical wiring begins |2nas a small fire and in his opinion would not have grown to the size described by Mr. Harrington in such a short time. He did admit, however, that if an electrical fire had started during the time that Mr. Harrington was sleeping, it could have accelerated into a larger fire.

Mr. Banta refuted Mr. Casellas’ opinion that this fire was not a fuel fire because there was no oil on the dipstick in a picture taken by Mr. Stringer, explaining that oil on the dipstick was not significant here because coolant can be added to engine oil when there is a failure of the cooling system. He testified further that the Neon is a front-wheel-drive car which has transmission fluid and differential fluid in the same device and that, if there was a failure of the cooling system, transmission fluid would get into the cooling system, causing the temperature to increase. He then pointed out a photograph taken by Mr. Stringer which showed that the transaxle dipstick was dry, even though his report indicated that there was fluid in the tran-saxle. According to Mr. Banta, this proved that Mr. Casellas’ explanation regarding the invalidity of his theory that the Neon caught on fire because the engine overheated was wrong. He also testified that it does not take a complete loss of engine oil for a vehicle to overheat and catch on fire.

In Mr. Banta’s opinion, Mr. Harrington’s description of the fire was conclusive evidence that the engine was running at high speed at the time of the fire, explaining that the noises Mr. Harrington heard were probably hoses bursting and fluids making popping sounds as they hit other hot components under the hood. This indicated to him that the fire was caused by Mr. Harrington’s improper operation of the engine; in particular, running the engine over speed for some period of time.

12iMr. Banta testified at length regarding the recall issued for the Neons with mis-routed harnesses that were manufactured at the Mexico plant, explaining what wires were contained in the harness and the voltage of the wires. He testified that the wires within the harness did not possess enough energy to actually start a fire and that when the wiring fails the computer becomes confused because it does not receive the correct information, causing the engine to stall or die. Further, he testified that only two fires were reported as resulting from this problem: this fire and the other case discussed by Mr. Casel-las, which was also being handled by Mrs. LeBlanc’s attorney. Using photographs taken by Mr. Casellas, Mr. Banta identified the wiring harness and testified that the harness was correctly routed, explaining that what Mr. Casellas had identified in the photograph, as the wiring harness, was actually the starter cable. Mr. Banta was questioned extensively on cross-examination regarding his opinion, the recall of the Neons manufactured in Mexico, and his rejection of Mr. Casellas’ opinion.

The manifest error standard is applicable to our review of this matter. Under this standard, when the inferences drawn by the trier of fact from the record are reasonable, those inferences will not be set aside on appeal. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Here, the jury heard Mr. Harrington’s testimony, the testimony of the two persons who investigated the fire, the extensive testimony of the experts in support of their theories and rejecting the opposing theories. We find the jury’s conclusion reasonable.

Therefore, there is no need to address Mr. Harrington’s and Progressive’s assignment of error that the trial court erred in denying summary judgment in their favor on the issue of liability.

| ??Loaner versus Rental

National Union, Mrs. LeBlanc, Mr. Harrington, and Progressive assign as error the jury's finding that the Neon was rented, not loaned, to Mr. Harrington. National Union, Mr. Harrington, and Progressive also assign as error the trial court’s failure to find, as a matter of law, that the Dodge Neon was loaned to Mr. Harrington.

When Mr. Harrington picked up the Neon at Acadiana Dodge, he was presented with a document entitled “Rental Agreement.” The agreement identifies the Neon, the daily rental rate of $25.00, the three-day rental, and the $75.00 total for the rental. Mr. Harrington signed the agreement in the designated space which states: “THIS IS YOUR INVOICE-PAYMENT DUE ON RECEIPT,” and he paid the rental charges when he paid for the repairs to his car. He testified that he did not rent the car and explained that he was instructed to sign the agreement to indicate his rejection of insurance on the car during his use of it.

Article 2670 of the Louisiana Civil Code provides that there are three essential elements to a lease: a thing, a price, and consent. The rental agreement evidences all of these elements. Furthermore, a “signature is not a mere ornament. One is presumed to know what he or she has signed.” See Thibodeaux v. Am. Land & Exploration, Inc., 450 So.2d 990 (La.App. 3 Cir.), unit denied, 458 So.2d 118 (La.1984). The burden of proof is on the person denying knowledge of the document to establish that they were deceived. Id. Mr. Harrington’s signature on the agreement evidences his consent to the terms of the agreement, unless he establishes that he was deceived. The jury did not accept his explanation regarding why he signed the rental agreement. Considering the contents of the rental agreement and the fact that Mr. Harrington paid the rental charges, we find the evidence sufficient for the jury to | ^conclude that the Neon was rented, not loaned, to Mr. Harrington by Acadiana Dodge. This assignment is without merit.

Damages

Harrington, Progressive, and Daimler-Chrysler Ins. assign as error the jury’s damage awards, complaining that general damages should not have been awarded and that the property damage award should have been reduced for depreciation.

General Damages

The jury awarded Mrs. LeBlanc $125,000.00 in general damages. Defendants assert that the award was improper because she was not endangered by the fire and she chose to go to her home when she knew it was burning.

We find no merit in Defendants’ argument that Mrs. LeBlanc is not entitled to damages for mental anguish because she chose to return to her home when she knew it was burning, finding she reacted no differently than anyone else in her situation would have.

At the time of the fire, Mrs. LeBlanc was a sixty-nine-year-old widow. Even though she had diabetes and suffered with osteoarthritis and osteoporosis, she worked as a sitter with elderly, terminally ill patients. Mrs. LeBlanc described for the jury what she felt when she saw her home on fire:

[I]t was still in flames. [I][f]elt numb all over. Thought [I was] going to drop dead right there. I got very clammy and weak and faint. And then I asked my sister and her husband if they would take me home. I was afraid I was going to go into a diabetic coma. I started quivering on the inside which is what usually happens before a coma comes on.

She testified further that she can no longer control her diabetes as she had before the fire.

124Mrs. LeBlanc described for the jury her life in her home, explaining that two of her four children lived away and that her family gathered at her home for special occasions and holidays. She testified how much she enjoyed preparing their favorite meals and sharing those times with them and how special her memories of those occasions are to her. She also described the extreme personal loss that she felt and the inconvenience she endured upon the loss of her home.

Three months before the fire, Mrs. Le-Blanc had made certain improvements to her home, preparing it for her later years. She installed a hot tub with a trapeze lift over it to allow her to relieve the pain she suffered from her osteoarthritis and osteoporosis. She changed flooring and siding. She installed handrails in various places and had the doors modified to maintain her accessibility to her entire home, even if she became disabled.

After the fire, she had to move into an apartment. She fell as she descended a stairwell when a fire alarm was sounded, fracturing several bones. She had to attend physical therapy for ten months as a result of her injuries. Thereafter, she moved to another apartment where she lived for some time before moving to the apartment she lived in at the time of the trial. She described how living in an apartment was nothing like living in her home. She no longer had her hot tub, handrails, or other items that she had had installed to make her life easier. More importantly, she no longer had a home where her family could gather to visit and celebrate special occasions.

“As a general rule, if a defendant’s conduct is merely negligent and causes only mental disturbance, absent accompanying physical injury, then the defendant is not liable for that emotional disturbance.” Johnson v. First Nat’l Bank of Shreveport, 00-870, p. 20 (La.App. 3 Cir. 6/20/01), 792 So.2d 33, 50, writs denied, 01-2770, 01-2783 (La.1/4/02), 805 So.2d 212, 213. However, a mental anguish victim who watches his property as it is destroyed is not required to show that he suffered a simultaneous physical injury when the victim’s property is damaged.

Mental anguish occasioned by damage to property also is compensable if the mental anguish victim was present or nearby and suffered psychic trauma as a direct result of watching the destruction of his or her property.... Although the plaintiff does not suffer contemporaneous personal injury or property damage, he or she nevertheless may recover for negligently inflicted emotional distress if the defendant’s conduct placed the plaintiff in fear or concern for his or her safety.... [In] Louisiana ... an award is proper when the conduct is directed at the mental anguish victim and the circumstances show an “especial likelihood of genuine and serious mental distress.” Cases in which a plaintiff fears for his personal safety or in which he watches his property destroyed probably are the most common....

Frank L. Maraist & Thomas C. Galligan, Jr.. LOUISIANA TORT LAW § 5-8, at 124-125 (1996).

Mrs. LeBlanc’s home, all of her physical and personal possessions, and, more importantly, her way of life were destroyed. Additionally, her diabetic condition has worsened. We find no error with the jury’s award of general damages.

Property Damages

Defendants complain that the jury’s award for the loss of Mrs. LeBlanc’s property is excessive because it did not factor in depreciation. Charles Cummings, an appraiser, valued Mrs. Le-Blanc’s property at $178,000.00. Defendants did not present any evidence on the value of the property. The jury awarded her $161,000.00.

The general rule of damages ... for valuation of tortiously damaged property without market value is the actual or intrinsic value of the 'property to the owner. While this is certainly a realistic and praiseworthy rule, it is not of much practical use for ascertaining a dollar amount. However, certain factors could be relevant to determine whether the rule is met by a particular award, including, but not limited to, the true nature of the loss; the costs of producing or acquiring the property in terms of reasonably spent time, effort and money; the present | ¡^and potential future use of the item had it not been destroyed; and the cost and practicability of restoration.

Emerson v. Empire Fire & Marine Ins. Co., 393 So.2d 691, 693 (La.1981) (emphasis added) (footnote omitted). In Emerson, the issue was the appropriate award for the loss of research records .which had no market value at all.

In Roman Catholic Church of the Archdiocese of New Orleans v. Louisiana Gas Service Co., 618 So.2d 874 (La.1993), the court noted that reasons personal to an owner are often the basis of a property damage award, which exceeds the property’s value before it was damaged. In the Archdiocese case, the supreme court observed that the goals of our Civil Code and the Louisiana Constitution are to “compensate the victim to the full extent of his loss and restore him to as good a position as he held prior to the damage.” Id. at 879.

Mrs. LeBlanc cannot be restored to the position she was in before her home was destroyed. Monetarily, most of her property had depreciated. However, for her the value of her personal items appreciated more and more as time progressed. Such items like family photographs, her family Bible, the rosary she received when she made her First Communion, a teacup collection, items her husband had given her or built for her, are irreplaceable.

Under these circumstances, we find no error with the jury’s award of damages for Mrs. LeBlanc’s lost property.

Peremptory Exception of No Cause of Action

DaimlerChrysler Ins. filed an exception of no cause of action after this appeal was lodged. According to the allegations of the motion, Progressive Ins. and Mrs. Le-Blanc entered into a settlement and satisfaction of judgment, pursuant to which Mrs. LeBlanc granted subrogation rights to Progressive in connection with the 127settlement. Mrs. LeBlanc opposed the exception alleging that she is entitled to recover additional sums from Progressive. The settlement documents are not before this court. Therefore, this matter is remanded to the trial court for determination of -any additional rights Mrs. LeBlanc may have in light of the settlement.

Decree

The judgment of the trial court is affirmed. This matter is remanded to the trial court for determination of any additional rights Mrs. LeBlanc may have in light of her settlement with Progressive Security Insurance Company. All costs of this appeal are assessed to Burton Harrington and Progressive Security Insurance Company and DaimlerChrysler Insurance Company.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.


author: SULLIVAN, Judge.

text:
    Mary Electa LEBLANC v. CHRYSLER CORPORATION, et al.
    Nos. 02-833, 02-832.
    Court of Appeal of Louisiana, Third Circuit.
    April 17, 2003.
    G. Edward Williams, Jr., F. Douglas Gatz, Jr., Jennifer A. Wells, Preis, Kraft & Roy, Lafayette, LA, for Plaintiff/Appellant: National Union Fire Insurance Company of Louisiana.
    Tracy P. Curtis, Perret Doise, APLC, Lafayette, LA, for Defendants/Appellants: Progressive Security Insurance Company Burt Harrington.
    J. Minos Simon, Chris P. Villemarette, J. Minos Simon, Ltd., Lafayette, LA, for Plaintiff/Appellant: Mary Electa LeBlane.
    William F. Bologna, Habans, Bologna & Carriere, New Orleans, LA, for Defendant/Appellee: DaimlerChrysler Corporation.
    Stephen E. Broyles, Glusman, Broyles & Glusman, LLC, Baton Rouge, LA, Defendant/Appellant: DaimlerChrysler Insurance Company.
    John S. Thibaut, Jr., Thibaut, Thibaut & Vogt, Baton Rouge, LA, for Defendant/Ap-pellee: Royal Insurance Company of America.
    Court composed of ULYSSES GENE THIBODEAUX, MICHAEL G. SULLIVAN, and BILLY H. EZELL, Judges.
   SULLIVAN, Judge.

For the reasons expressed in National Union Fire Insurance Co. of Louisiana v. Harrington, 02-832 (La.App. 3 Cir. 4/17/03), 854 So.2d 880, the judgment of the trial court is affirmed. This matter is remanded to the trial court for determination of any additional rights Mrs. LeBlane may have in light of her settlement with Progressive Security Insurance Company. All costs of this appeal are assessed to Burton Harrington and Progressive Security Insurance Company and Daimler-Chrysler Insurance Company.

AFFIRMED AND REMANDED WITH INSTRUCTIONS.