author: DREW, J.

text:
    TOWN OF HAYNESVILLE, INC., Plaintiff-Appellee, v. ENTERGY CORPORATION and Entergy Louisiana, Inc., Defendants-Appellants.
    No. 36,519-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 31, 2003.

      Michael Lee Dubos,for Appellants.
    James Henry Colvin, for Appellee.
    Before GASKINS, DREW and HARRISON (Pro Tempore), JJ.
   DREW, J.

In a dispute over the amount the utility company owed to the Town of Haynesville pursuant to a franchise agreement, Enter-gy Louisiana, Inc. (ELI, formerly Louisiana Power and Light or LPL) and Enter-gy Corporation appealed the summary judgment in favor of the Town of Haynes-ville. Also before this court is the denial of ELI and Entergy’s motion for summary judgment. The trial court designated the December 27, 2001, judgment as a “final judgment” under La. C.C.P. art. 1915(B)(1), further declaring there was no just reason for delaying the appeal, since the ruling adjudicated one of the plaintiffs theories of recovery. For the following reasons, the judgment is affirmed.

PROCEDURAL BACKGROUND

Haynesville’s Petition for Damages

In June 2000 the Town of Haynesville sued Entergy Louisiana, Inc. (ELI) and Entergy Corporation seeking damages for higher franchise fees under a “most favored nation” provision of the town’s contract with the utility provider. The town alleged in its petition:

• The town entered into an irrevocable franchise agreement with Louisiana Power and Light (LPL) on January 15, 1985, for a term of 25 years until January 15, 2010. (LPL became ELI in 1996 and, for simplicity, will be referred to as ELI.)
• The franchise permitted ELI to sell electricity to Haynesville, for which the town was to receive 2% of the gross revenues received by ELI from commercial and residential customers in Haynesville.
• The franchise agreement provided that should ELI enter into a franchise agreement with another municipality to pay more than 2%, then the payment to Haynesville would automatically increase to the higher percentage, a “most favored nation” clause (MFN).
]?• Entergy purchased LPL, changed LPL’s name to ELI and became responsible under and bound by the terms of the franchise agreement.
• In 1995 Entergy purchased Gulf States Utilities (now EGS), which paid franchise fees of 5% or more and continues to do so.
• Despite amicable demand, ELI refused to pay Haynesville the increased percentage of gross proceeds pursuant to the “most favored nation” clause.
• Haynesville’s claim against Entergy was that Entergy and its numerous affiliated companies, including EGS, act as a “single business enterprise” and/or “alter egos” of one another.
• Entergy, EGS and ELI share common directors, officers, employees, co-mingled funds, centralized accounting, common offices, unified administrative control and other conduct.
• Entergy holds itself out as a single business enterprise.
• The seven (at least) separate entities, including Entergy, ELI and' EGS, are a legal fiction. Therefore, the “most favored nation” clause has been triggered by EGS’s payment of 5% franchise fees.
• Alternatively, if the separateness of the entities is maintained, then ELI is paying other towns in excess of 2% franchise fees; therefore, ELI owes Haynesville those larger percentages from the time they commenced the larger payments.

ELI/Entergy’s Answer

ELI’s and Entergy’s answer was filed August 1, 2000. Attached thereto was a June 21, 1999, letter from Entergy to the Town of Haynesville which stated:

• Entergy paid Harahan and Kenner more than 2% but the excess was passed on to the customers through a line item added to their bill. Haynes-ville was offered and declined the same opportunity.
• According to ELI, a general order of the Public Service Commission required ELI to include the part of the fee over 2% as a line item on the customers’ bills.
Is* Haynesville had not decided whether to adopt the higher franchise fee in the future.
• The town’s indecision caused the “damages” allegedly due from ELI to continue to accrue.
• Entergy sent a check for $10,080.52, which Entergy stated would cut off any future claims by Haynesville.
• The agreement imposed no obligation on ELI to pay any higher franchise amount paid by any other Entergy affiliate, such as Entergy Arkansas and EGS.

Haynesville’s Motion for Summary Judgment

Haynesville filed a Motion for Summary Judgment (MSJ) on July 11, 2001, and urged that ELI’s 1989 franchise agreement with West Monroe triggered the “most favored nation” clause in favor of Haynesville. In the memo supporting its MSJ, Haynesville noted that the 5% franchise fees paid by EGS were not at issue in its MSJ. Moreover, Haynesville observed that at the time the suit was filed, Haynesville was relying upon the 23/£% franchise fees paid to Kenner and Hara-han. Only during discovery did Haynes-ville learn of the 3% plus $180,000 franchise fee paid to West Monroe beginning in 1989. Haynesville demanded the same 3% and fixed franchise fees as paid to West Monroe since 1989.

In addition to the Haynesville contract, MFN letter, Haynesville ordinances and minutes of the town council concerning the franchise agreement, Haynesville supported its MSJ with the depositions of Norman Colvin, an ELI representative, and John Grantham, retired ELI district manager of the West Monroe district. Haynesville also supplied ELI’s responses to its requests for production and affidavits from an economist which projected Haynesville’s damages.

LAccording to Haynesville, the 3% payments along with the nine payments of $20,000 each to West Monroe beginning in 1989 replaced the free and discounted services under the 1966 franchise agreement and were a “franchise fee” under the 1989 ELI franchise agreement with West Monroe. By virtue of its MFN clause, Haynesville contended it should have begun receiving 3% of its gross revenues plus $180,000 beginning January 1, 1989.

ELUEntergy’s Motion for Summary Judgment

ELI/Entergy sought a summary judgment dismissing Haynesville’s claim for an additional 1% franchise fee plus $180,000 based upon ELI’s 1989 agreement with West Monroe. Further, Entergy sought a summary judgment dismissing Haynes-ville’s action for an increased franchise fee based upon any franchise agreement by EGS under the “single business entity” theory. ELI/Entergy’s MSJ was negative; i.e., that Haynesville was not entitled to recover under either theory.

Concerning Haynesville’s claim based upon the West Monroe franchise, the defendants stated that on May 30, 1925, ELI entered into a contract to provide West Monroe electricity and to purchase the town’s light and power facilities. The contract was amended and supplemented in February 1929. According to ELI/Enter-gy--

• The free and discounted electrical service began under the 1925 and 1929 agreements and was compensation for the purchase price and the electrical franchise.
• The contract provided that those provisions were to be carried over as long as ELI supplied electricity to West Monroe.
|r* In 1988, ELI began negotiations to extend the 1966 contract expiring in 1991.
• To avoid continuing free and discounted electrical service under non-standard rate schedules and to terminate ELI’s obligations under the 1925 and 1929 contracts, ELI sought to convert West Monroe to a standard franchise agreement with a 2% standard fee and to enter a settlement terminating the 1925 and 1929 contracts by paying an additional 1% fee.
• Calculations showed that with the 2% franchise fee and the 1% payment, West Monroe would have a shortfall of $74,000 annually from 1989 until the 1991 expiration date based upon the value of the previously-received free and discounted services.
• To compensate West Monroe for entering into the new contract prior to the 1991 expiration of the contract for free and discounted services, ELI agreed to pay West Monroe $20,000 a quarter through the first quarter of 1991, a total of $180,000.
• The West Monroe city council on December 13, 1988, passed ordinances and voted authority to the mayor to enter a 25-year franchise agreement with ELI for 2%.
• In a separate ordinance, the West Monroe city council, for an additional 1% and the quarterly payments, agreed to terminate ELI’s obligations under the 1925 and 1929 agreements.

Taking the position that the 2% franchise fee is completely separate from the settlement of the prior contractual obligations, ELI/Entergy argued that Haynes-ville’s claim that ELI pays West Monroe a 3% franchise fee is unfounded. In other words, the defendants urged that the 1% and $180,000 payments were not franchise fees but settlement of a dispute over whether the utility company had to supply West Monroe with free and discounted electricity. Based on the foregoing, ELI/Entergy urged that Haynesville’s motion for summary judgment was erroneously granted, and ELI/Entergy’s motion for summary judgment incorrectly denied.

| ^ELI/Entergy also urged there was no legal authority for binding ELI/Entergy based upon the franchise agreements of EGS which was not acquired by Entergy for a number of years after the Haynes-ville MFN agreement was reached with ELL Therefore, ELI/Entergy sought to have summary judgment granted on this issue also.

ELI/Entergy supported its MSJ with the Haynesville MFN letter from ELI, the 1925 contract between the utility and West Monroe along with the 1925 West Monroe ordinance and a 1929 amendment to the 1925 contract. ELI/Entergy also supplied the same deposition of John Grantham, a 1988 ELI letter seeking a renewal of the 1966 West Monroe contract, the 1988 West Monroe ordinances, contract and agreement with ELI, 1984 Haynesville town council minutes along with a letter from the town attorney concerning the MFN clause, the Kenner and Harahan agreements, the deposition of Haynesville’s mayor, and a 1985 organizational chart of Mid South Utilities, Inc. (later, Entergy, Inc.).

Trial Court Action

A hearing was conducted on August 16, 2001. On August 29, 2001, the trial court signed a judgment granting Haynesville’s MSJ and denying ELI/Entergy’s MSJ. On September 19, 2001, ELI/Entergy also filed an exception of prescription and a motion for reconsideration of quantum figures supplied by Haynesville in support of its MSJ.

The trial court conducted a hearing on November 12, 2001, at which ELI/Enter-gy’s motion for reconsideration and exception of prescription were heard. The parties signed and filed stipulations stating:

|71. Prior to the commencement of the instant litigation, Entergy Louisiana, Inc., through its duly authorized representatives, advised the Town of Haynesville, Inc., that the only municipalities to which it pays a franchise fee in excess of its standard 2% are Kenner and Harahan.
2. Kenner and Harahan receive franchise fees in excess of the standard 2% (up to a maximum overall of 2.5%); however, the amount so received over the standard 2% is reflected as a line item on the customer bills for the residential and commercial customers of Kenner and Harahan.
3. No representative of Entergy Louisiana, Inc. has advised the Town of Haynesville that the City of West Monroe receives a franchise fee in excess of the standard 2% franchise fee, it being the position of Entergy Louisiana, Inc. that the City of West Monroe received the standard 2% franchise fee and that the 1% payment and the nine (9) $20,000 quarterly payments were not and are not franchise fees.
4. Entergy Louisiana, Inc. entered into the Kenner franchise agreement on or about February 5, 1996.
5. Entergy Louisiana, Inc. entered into the Harahan franchise agreement on or about April 18, 1996.
6. Entergy Corporation acquired Gulf States Utilities Company on or about December 31,1993.
7. The Town of Haynesville has not voted to accept an increased franchise fee if the amount over the standard 2% would be included as a line item on the customer bill.
8. The present action by the Town of Haynesville, Inc., does not seek prospective relief at this time.

On November 30, 2001, the trial court entered reasons for judgment which delineated two issues for decision: (1) In Haynesville’s MSJ, did ELI’s West Monroe franchise agreement effective January 1, 1989, trigger Haynesville’s MFN clause? (2) In ELI/Entergy’s MSJ, in addition to the foregoing issue, did ELI establish that Haynesville was not entitled to recover under the “single business entity” theory because other Entergy companies were paying more than 2% franchise fees? Finding that |sHaynesville had established there was no genuine issue of material fact, the trial court granted Haynesville’s MSJ. The trial court found genuine issues of material fact as to the energy defendants’ MSJ, which was denied.

The final judgment signed on December 27, 2001, granted Haynesville’s MSJ based upon ELI’s franchise agreement with West Monroe. The trial court granted the defendants’ motion for reconsideration of quantum calculations and awarded Haynesville $629,458.75 “plus legal interest to accrue on the principal balance due of $364,763.38 from August 16, 2001, until paid.” In all other respects, ELI/Enter-gy’s motion to reconsider the summary judgment previously granted in favor of Haynesville was denied. The trial court also overruled ELI/Entergy’s exception of prescription. Further, the order • denied ELI/Entergy’s MSJ seeking rejection of Haynesville’s action (1) based upon the West Monroe franchise agreement and (2) under 5% franchise fees paid by EGS under the “single business entity” theory.

Thereafter, ELI/Entergy filed a supervisory writ seeking review of the denial of its MSJ on both grounds. In denying the writ as moot (No. 36,484-CW), this court noted that the appeal of the partial summary judgment designated as final for purposes of immediate appeal brought with it for review the related interlocutory orders of the trial court. ELI/Entergy suspen-sively appealed the December 27, 2001, judgment. In its argument and briefs on appeal, ELI/Entergy made no complaint about the prescription ruling and neither side objected to the quantum award.

^DISCUSSION

Appellate review of the grant or denial of a motion for summary judgment is de novo. Green v. State Farm General Ins. Co., 35775 (La.App.2d Cir.4/23/2002), 835 So.2d 2. La. C.C.P. art. 966 provides that the plaintiff or defendant may move for a summary judgment in its favor for all or part of the relief for which it has prayed. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of an action. The procedure is favored and the trial court should construe it to accomplish the stated goals. Summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require it to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its eviden-tiary burden of proof at trial, there is no genuine issue of material fact. A summary judgment can dispose of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, |ineven though the granting of the summary judgment does not dispose of the entire case. La. C.C.P. art. 966.

In Merlin B. Smith, Inc. v. Travelers Property Cas., 35695 (La.App.2d Cir.2/27/02), 811 So.2d 1097, this court explained that the likelihood that a party will be unable to prove his allegations at trial does not constitute a basis for rendering summary judgment. The function of the court on summary judgment is not to determine the merits of the issues involved, but only whether or not there is a genuine and material factual issue. Merlin B. Smith, Inc., supra.

Summary Judgment in Favor of Haynesville Based upon West Monroe Contract

On appeal, the defendants maintained the 1% and $180,000 were not franchise fees but settlement of any dispute arising from the earlier contracts with West Monroe to provide free and discounted services. Haynesville’s position was that ELI’s agreement to pay West Monroe 3% plus $180,000 in franchise fees triggered Haynesville’s MFN clause.

Included in the filings in support of its MSJ, Haynesville filed the deposition of John Grantham, retired LPL district manager of the West Monroe district. Both Haynesville and ELI/Entergy referred to Grantham’s statements to support their positions. According to Grantham:

• When the utility sought to renew the 1966 agreement with West Monroe, ELI wished to discontinue the impractical free and discounted services, a practice begun in the 1920’s when the company acquired the electrical facilities and the West Monroe franchise.
• Provision of free and discounted services had been carried forward in subsequent agreements including the 1966 contract which was to expire in 1991.
Iii«The free and discounted services were not desirable to ELI because the utility had to perform complex and burdensome calculations and were nonstandard rates.
• ELI had to come up with something to make up the difference between the value of what West Monroe was getting under the 1966 agreement and what the city would receive under the 1989 renewal agreement.
• ELI was still paying for facilities bought in 1925.
• Grantham acknowledged that the 2% was to get the city on a standard rate and the 1% was to make the city whole and induce it to give up the free and discounted services.

Specifically, the defendants maintained that the 1989 agreement negotiated in 1988 with West Monroe was embodied in West Monroe Ordinance No. 2268, which authorized the 25-year franchise, and West Monroe Ordinance No. 2269, which authorized the standard 2% franchise fee and the Municipal Contract. ELI/Entergy relied upon the separate contract and ordinance, No. 2271, the stated consideration for which was the termination of any obligation on ELI to continue the free and discounted services found in “all previous Franchises and related Agreements” along with the resolution and termination of any claims arising out of “any and all previous Franchises and related Agreements” for free electricity or electricity billed under non-standard rates. In the defendants’ view, the foregoing language was not limited to the renewal of the 1966 franchise agreement but covered all other agreements.

The trial court rejected ELI’s argument that the 1% plus $180,000 (above the standard 2% of gross revenues) was paid to West Monroe in settlement of claims because one document provided for the standard 2% while another separate written document provided for the additional 1%. 1T ¡.Specifically, the trial court found that the 2%, the 1% and the payment of $180,000 were all franchise fees for the right to supply electricity to the City of West Monroe. After reviewing all the documents, the trial court noted that the 1966 agreement (Ordinance 1355) stated that ELI agreed to provide enumerated free and discounted services as consideration for the franchise rights. Moreover, Ordinance 2271 of 1988 stated that in the 1966 ordinance, the consideration for franchise rights was free and discounted electricity. The 1966 ordinance did not mention the 1925 agreement. The trial court concluded that the free and discounted services from 1966 through 1988 were given solely as consideration for the franchise fees. In order to cease providing free and discounted services, ELI apparently calculated that 3% franchise fees were necessary to replace the value of the free and discounted services paid under the 1966 agreement for franchise rights. The $180,000 payment was to compensate West Monroe for entering into the new franchise agreement on January 1, 1989 instead of the 1991 expiration of the 1966 agreement. While ELI/Entergy characterizes the 1% plus $180,000 as settlement of its obligation to provide free and discounted services, the free and discounted services were, in fact, payment of franchise fees to West Monroe.

The documents in the record belied ELI/Entergy’s contention that the 1% payment over the course of the 25-year franchise and $180,000 payment were continued compensation for property sold to the utility in 1925. In 1925, the West Monroe system served only 844 customers. Moreover, the |131925 contract stated the company provided West Monroe electrical service as the purchase price for the equipment and as consideration for franchise rights. The 1925 contract required that, if the town declined to renew the franchise at the end of the 25-year term, then West Monroe was to purchase all of the utility lines and property owned by the utility at the current appraised value. If during the term of the 25-year agreement, the utility chose to sell the lines, wires and other property, the utility was required to give West Monroe the right of first refusal. As the trial court observed, ELI made no showing to the court that West Monroe, at the time of the renegotiation, still had any ownership in the property transferred in the 1925 agreement. Clearly, the utility long ago bought and paid for the physical property purchased in the 1925 contract, which stated the utility bought the utility equipment in “full and complete ownership.” The trial court did not err in finding the 3% and the $180,000 to be franchise fees, not payments for 1925 assets.

Next, ELI/Entergy pointed out that Ordinance No. 2271 was enacted after the West Monroe city council had already passed Ordinance Nos. 2268 and 2269 related to the term and the 2% franchise fee. We find the sequence in which West Monroe enacted its ordinances to be a somewhat misleading argument. All of the West Monroe ordinances were passed on December 13, 1988, and are an integral part of the franchise arrangement.

ELI/Entergy’s argument is refuted by the deposition of Norman Colvin, a ELI representative, who explained that agreements aside from the standard 2% were typically placed in other documents. According to luColvin, all municipalities signed the same 2% municipal contract form that had been in use for 30 to 40 years. Concerning Haynesville, Colvin stated the MFN letter was part of the consideration for Haynesville granting ELI the right to supply the town’s electricity. Colvin explained that the MFN clause was separate from the franchise agreement because ELI was very particular about not changing its standard 2% franchise agreement form. In the 25-year franchise agreement signed January 15, 1985, ELI agreed to pay Haynesville 2%. To protect the town, the town council sought a MFN clause which was granted in the letter to the Haynesville Mayor and Town Council signed January 8, 1985, by D.E. Knowles, another ELI official. At the deposition of Christopher Screen of ELI Services, counsel for ELI/Entergy and Haynesville stipulated that the MFN letter constituted part of the Haynesville franchise agreement. By the same token, the various documents enacted by ELI and West Monroe in 1988 are all part of the franchise agreement.

Moreover, the defendants relied upon a 1985 cover letter from Haynesville’s town attorney transmitting the MFN letter to the council. The attorney stated that the MFN clause was limited to the 2% franchise fee and “would not cover any other agreements [ELI] may make with any other municipality.” ELI/Entergy contended that letter was an acknowledgment by Haynesville that ELI had the full right and authority to contract with any other town to pay additional fees other than franchise fees without implicating the MFN clause. What the Haynesville MFN clause specifically required was that ELI pay Haynesville the equivalent of any franchise fees |15above 2% should ELI pay more than 2% to another municipality. In this case, the 1988 agreement reached between ELI and West Monroe was for payment of franchise fees in excess of 2%.

Our de novo review of the material filed in support of and in opposition to Haynes-ville’s MSJ based on ELI’s franchise agreement with West Monroe shows that the trial court did not err in finding no genuine issue of material fact and in granting Haynesville’s summary judgment predicated upon ELI’s West Monroe contract.

Denial of ELIlEntergy’s MSJ That Haynesville Was Not Entitled to Recover Under Haynesville’s “Single Business Entity” Theory

In seeking a summary judgment that Haynesville was not entitled to recover under the “single business entity” theory, ELI/Entergy stated that Entergy was a publicly-traded utility holding company of which ELI and EGS were wholly-owned subsidiaries. At the time the 1985 MFN agreement was made with Haynesville, EGS was a separate and distinct corporation from ELI. EGS was not acquired by Entergy until 1993. In addition to supplying documents establishing that Mike Rud-dick, the town attorney, was authorized by the Haynesville town council to obtain the MFN agreement, ELI/Entergy relied on the fact that the MFN letter stated the MFN clause was triggered only if ELI (not other entities) agreed to pay another municipality more than 2% in franchise fees. The utility defendants vigorously disputed Haynesville’s assertions that En-tergy and its subsidiaries formed a “single business entity.” Noting that a corporation’s separate status is disregarded only in exceptional circumstances, 11fiELI/Entergy challenged Haynesville to produce legal authority to support this portion of its action.

In opposing ELI/Entergy’s MSJ, Haynesville acknowledged that the “single business entity” issue is res nova, that ELI was acquired by Entergy’s predecessor in 1949, that Haynesville’s MFN agreement was made in 1985, and that Entergy did not acquire EGS until 1993. Haynes-ville supported its opposition with the deposition of Christopher Screen, an Enter-gy Services, Inc., employee who stated that Entergy owned 100% of the stock of ELI and EGS which shared common offices and directors. Via deposition, Nathan Langston, Chief Accounting Officer for Entergy, Entergy Services, Inc., ELI and EGS, explained that Entergy Services was .the service company for various En-tergy-owned companies including ELI and EGS. Entergy Services paid franchise fees to municipalities for both ELI and EGS. Each company had separate payrolls, federal tax ID numbers and separate filings with the federal government for withholding. As further support of its opposition to the utilities’ MSJ, Haynesville submitted copies of 1999 through 2001 checks issued by Entergy Services to West Monroe, all stubbed “franchise tax.”

In addition, Haynesville supplied a newspaper advertisement which ran May 9, 1996, in the Homer, Louisiana, newspaper stating that LPL was now Entergy which had unified “five separate power companies into one cohesive whole.” The advertisement extolled various advantages to the citizens by having one “world class energy company” supply its electricity. After stating that Entergy was putting 12,000 employees and 80 years of 117experience to work for the customers, the ad concluded with “One company. One name. And one commitment to serve you like no other company can. Entergy.”

Citing Green v. Champion Ins. Co., 577 So.2d 249 (La.App. 1st Cir.1991), writ denied, 580 So.2d 668 (La.1991), the trial court noted the courts may disregard the concept of corporate separateness to extend liability to affiliated corporations to achieve equity. The Green court stated that whether an affiliated group of entities is a “single business enterprise” is a question of fact! In determining whether a corporation is an “alter ego” or part of a “single business entity,” the court must look at the substance of the corporation rather than the form. The Green court supplied a non-exclusive list of considerations similar to those used to “pierce the corporate veil.”

Neither Haynesville nor the defendants presented authority for liability under the “single business theory” under the facts of this case. Nor did ELI/Entergy establish that it was legally entitled to summary judgment denying Haynesville relief under the “single business entity” hypothesis. We agree with the trial court’s conclusion that there are genuine issues of 11smaterial fact as to whether Entergy operated as a “single business entity.” The trial court properly denied ELI/Entergy’s request for summary judgment on this issue.

CONCLUSION

The bottom line is that West Monroe historically had a great deal for free and discounted services. This advantageous arrangement negotiated by the leaders of West Monroe was burdensome for the utility. In order to entice the city fathers of West Monroe to depart from the longstanding and favorable arrangement, the utility calculated the monetary value of the free and discounted services provided to the city. The standard 2% franchise fee was insufficient to insure that the city continued to receive the same rate of benefit from the utility franchise. Therefore, the utility and the city agreed to the additional 1% over the 25-year term of the franchise plus the $180,000 payments to compensate the city for value it lost by renewing the contract in 1989 instead of at its expiration in 1991. ELI’s 1989 franchise agreement to pay West Monroe 3% plus $180,000 in franchise fees triggered the 1985 MFN clause in Haynesville’s franchise agreement. A deal is a deal.

Based upon our de novo review of the pleadings, depositions, documents, answers to interrogatories, and admissions on file, together with the affidavits filed, the trial court did not err in granting the Town of Haynesville’s MSJ based upon the West Monroe franchise agreement and in denying the defendants’ MSJ on the West Monroe issue and the “single business entity” issue.

|19The judgment of the trial court is affirmed at the defendants’ costs. The matter is remanded for further proceedings.

AFFIRMED AND REMANDED.

      . Entergy Corporation is the parent company of ELI, Entergy Gulf States Utilities (EGS) and other utility suppliers.

      . The PSC General Order dated October 18, 1988, orders "... that all jurisdictional public utility companies including but not limited to electric ... providers, shall describe each charge that is unrelated to a tariff for that service to their customers. These charges shall appear as a line item on each customer bill....’'

      . The illustrative list are considerations of whether a group of entities constitute a "single business enterprise”:
      1. corporations with identity or substantial identity of ownership, that is, ownership of sufficient stock to give actual working control; 2. common directors or officers; 3. unified administrative control of corporations whose business functions are similar or supplementary; 4. directors and officers of one corporation act independently in the interest of that corporation; 5. corporation financing another corporation; 6. inadequate capitalization ("thin incorporation"); 7. corporation causing the incorporation of another affiliated corporation; 8. corporation paying the salaries and other expenses or losses of another corporation; 9. receiving no business other than that given to it by its affiliated corporations; 10. corporation using the property of another corporation as its own; 11. noncompliance with corporate formalities; 12. common employees; 13. services rendered by the employees of one corporation on behalf of another corporation; 14. common offices; 15. centralized accounting; 16. undocumented transfers of funds between corporations; 17. unclear allocation of profits and losses between corporations; and 18. excessive fragmentation of a single enterprise into separate corporations. Green, supra at pp. 257-258.

      . To avoid further piecemeal litigation and waste of judicial resources, the parties should resolve all outstanding issues prior to seeking further appellate review.


source: Caselaw Access Project

author: TOBIAS, Judge.

license: Public Domain

text:
    Larry BETHLEY v. NATIONAL AUTOMOTIVE INSURANCE COMPANY.
    No. 2002-CA-1572.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 2003.
    Shelly R. Sessions, Lance J. Robinson, J. Ronald Denman, Kenner, LA, for Plaintiff/Appellee.
    Gary T. Breedlove, R. Vaughn Cimini, Karen G. Arena, Cimini & Associates, Me-tairie, LA, for Defendant/Appellant.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY, III, Judge MAX N. TOBIAS, JR.).
   TOBIAS, Judge.

The defendant/appellant, National Automotive Insurance Company (“National Automotive”) appeals from the trial court’s judgment which failed to set aside a default judgment entered against it. For the reasons below, we reverse the trial court and remand the case for a new trial.

The plaintiff, Larry Bethley, was injured in an automobile accident on 1 August 2000. He settled his claims against the other driver and her insurance company for her policy limits without filing suit. The plaintiff also filed a claim with his underinsured motorist carrier, National Automotive, which it did not pay.

The plaintiff filed the present suit against the defendant, National Automotive, on 30 July 2001, alleging that the defendant has failed to timely pay his claim and that the failure was arbitrary and capricious. The plaintiff sought his policy limits of $10,000.00, as well as penalties and attorney’s fees. The defendant was served with the petition and citation on 9 August 2001. Counsel for the defendant filed a motion for extension of time to file responsive pleadings on 16 August 2001. The trial court signed an order that same day granting the defendant an extension of thirty days to file responsive pleadings. On 26 September 2001, the plaintiff filed a written motion for a judgment of default pursuant to La. C.C.P. |Part. 1701, which was granted that same day. The plaintiff confirmed the default on- 2 November 2001 and a judgment was signed that day. Unbeknownst to the plaintiff and the trial court, the defendant filed its answer on 2 November 2001.

When the defendant became aware of the judgment, it filed a motion for new trial to vacate the default judgment on 8 November 2001. On 11 January 2002, the plaintiff filed a motion to amend the judgment to correct an error of calculation. A hearing was held on 11 January 2002. The trial court rendered an amended judgment on 7 February 2002, granting the defendant’s motion for new trial to amend the judgment concerning the calculation of penalties under La. R.S. 22:658. The defendant filed a motion for a suspensive appeal on 14 February 2002, which was granted on 23 April 2002.

On appeal, the defendant argues that the trial court should have granted the motion for new trial and vacated the entire judgment, not just part of it, due to the lack of notice required by La. C.C.P. art. 1702(A). The defendant also suggests that the plaintiffs failure to notify its counsel of his intent to obtain a judgment of default and confirm it by judgment constituted an ill practice, therefore rendering the judgment of 2 November 2001 null.

La. C.C.P. art. 1702(A) provides:

A judgment of default must be confirmed by proof of the demand sufficient to establish a prima facie case. If no answer is filed timely, this confirmation may be made after two days, exclusive of holidays, from the entry of the judgment of default. When a judgment of default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the judgment of default must be sent by certified mail by the party obtaining the judgment of default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the judgment of default. [Emphasis added.]

IjjThe statute was amended by Acts 2001, No. 512, to conform the procedure for default judgment with the Louisiana Supreme Court’s decision in Russell v. Illinois Central Gulf Railroad, 96-2649 (La.1/10/97), 686 So.2d 817, which held that it is an “ill practice” to confirm a judgment of default, without notice, against a party that has filed pleadings constituting an appearance of record in the litigation. Id. at p. 2, 686 So.2d at 819. The amended statute became effective on 15 August 2001, prior to the entry of the judgment of default or confirmation of the default.

The Official Comments to La. C.C.P. art. 1702 further state that:

“[ajppearance of record” is intended to have the same meaning as in Article 1671, and include filing a pleading such as any one or more of the exceptions, appearing at a hearing, and formally enrolling as counsel of record. See the 1997 Comment to Article 1671.

Official Comment 1997 to La. C.C.P. art. 1671 provides that “Mppearance of record includes filing a pleading, appearing at a hearing, and formally enrolling as counsel of record.” Under La. C.C.P. art. 852, written motions are considered pleadings.

The defendant’s filing the motion for extension of time constituted an appearance of record in the case, and the plaintiff should not have proceeded to confirm the default on 2 November 2001 without sending the defendant notice of the date of the entry of the judgment of default by certified mail. Further, the trial court should not have confirmed the default judgment without evidence that the plaintiff had sent the defendant such notice. The failure of the plaintiff and the trial court to follow the procedures set forth in La. C.C.P. art. 1702 requires the | ¿granting of a new trial. Consequently, the judgments of 2 November 2001 and 7 February 2002 are invalid.

Furthermore, the defendant is correct that the plaintiffs failure to notify its counsel of his intent to seek a judgment of default after the defendant made an appearance in the case is an “ill practice” and is sufficient to nullify the judgment. In Conerly v. Jefferson, 2001-2220 (La.App. 4 Cir. 5/29/02), 820 So.2d 1173, we held that the plaintiffs counsel committed an “ill practice” when he did not notify the defendant’s counsel of his intention to confirm a default. We stated:

The fact that the Code of Civil Procedure does not mandate that counsel attempt to notify opposing counsel of his intent to confirm a default against opposing counsel’s client does not mean that failure to do so in an on-going petitory action is not an ill practice under La. C.C.P. art.2004. Russell v. Illinois Central Gulf Railroad, 96-2649, p. 2 (La.1/10/97), 686 So.2d 817, 819. La. C.C.P. art.2004 “is not limited to cases of actual fraud or wrongdoing, but is sufficiently broad enough to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.” Id. (citing Kem Search, Inc. v. Sheffield, 434 So.2d 1067, 1070 (La.1983)). In Russell, the Supreme Court found it improper for the plaintiff to obtain a default judgment without notifying the defendant, when the defendant had participated in the litigation proceedings and inadvertently failed to file an answer to the plaintiffs amended petition. In the instant case, Jefferson filed a motion for extension of time to file his answer, clearly indicating his intent to contest Conerly’s claims. Although he filed his answer after the extension of time had expired, it is obvious that Jefferson was participating in the litigation. Conerly presented no evidence that he attempted to inform Jefferson of his intention to confirm the default. As such, Conerly’s actions constitute an ill practice under La. C.C.P. art.2004.

Id. at pp. 4-5, 820 So.2d at 1176.

^Accordingly, the judgment of the trial court is reversed and the matter is remanded for new trial. All costs of this appeal are assessed against the plaintiff.

REVERSED AND REMANDED.

      . The plaintiff contends that the amendment should not apply to the present case as the statute was amended subsequent to the filing of his suit. However, the amendment to the article was procedural in nature and therefore is retroactive.

        . The pleading does not waive a party's right to assert an exception of lack of jurisdiction.

      . La. C.C.P. art.2004 provides that "[a] final judgment obtained by fraud or ill practices may be annulled.”


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

text:
    Bruce ELSENSOHN v. FARRINGTON PRODUCTIONS, INC. and Robert Beal.
    No. 2002-CA-2017.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 2003.
    Avram C. Herman, Metairie, LA, for Plaintiff/Appellee.
    Gilbert R. Buras, Jr., New Orleans, LA, for DefendanVAppellant.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY and Judge MICHAEL E. KIRBY).
   I,WILLIAM H. BYRNES III, Chief Judge.

STATEMENT OF THE CASE

On 11 August 2000, Bruce Elsensohn sued Farrington Productions, Inc. and its local representative, Robert Beal, alleging breach of contract. Mr. Elsensohn contended that on or about 12 August 1999 he and Farmington entered into a written employment contract for a term of one year commencing 28 October 1999 and ending 27 October 2000 providing for compensation of $1,000 per six-day week with an additional $100 per week for serving as a band leader.

Mr. Elsensohn contends that Mr. Beal libeled, slandered and defamed his reputation and tortiously interfered with Mr. El-sensohn’s contractual rights. Furthermore, Mr. Elsensohn claims that Mr. Beal interfered with his right to obtain other employment contracts by his defamatory actions. During the course of trial, counsel for Mr. Elsensohn stated that he made no claim for constructive discharge.

Farmington and Mr. Beal answered and reconvened, alleging Mr. Elsensohn breached the contract in question by having failed to perform, having provoked an altercation with Mr. Beal in the presence of witnesses and having declared that he | ¡.would no longer work for Farmington, thereby unilaterally terminating the contract in question. Farmington and Mr. Beal contend that this breach of contract was made with the intention of causing harm to Farmington and was, therefore, a bad faith breach of contract. Farmington claims damages for costs it suffered in having to obtain a replacement for Mr. Elsensohn and for attorneys’ fees incurred in this action. Farmington and Mr. Beal did not offer evidence at trial to support their counterclaim for damages and attorneys’ fees.

The case was tried to the trial court which, on 26 March 2002, rendered judgment in favor of Mr. Elsensohn in the amount of $24,200 on the breach of contract claim, and in favor of Farmington and Mr. Beal dismissing Mr. Elsensohn’s various defamation claims. From this judgment Farmington and Mr. Beal appeal. Mr. Elsensohn has not answered the appeal, from which we infer that he has abandoned his defamation claims.

We reverse the judgment of the trial court insofar as it casts defendants/appellants for damages caused by alleged breach of contract.

| ¡¡STATEMENT OF FACTS

In its reasons for judgment the trial court found that Mr. Elsensohn entered into a one-year employment contract as a musician with Farmington, commencing 28 October 1999 and ending 27 October 2000 at the rate of $1000 per week with an additional $100 for leading the band.

The trial court found that working conditions were often difficult, causing Mr. Elsensohn’s and Mr. Beal’s working relationship to become strained. The trial judge did not find that this strain was caused by the fault of either party to the contract or by Mr. Beal.

The court found that Farmington violated the employment contract when Mr. Beal discharged Mr. Elsensohn for misconduct, effective 23 June 2000.

The trial court found no substantial evidence to support Mr. Elsensohn’s defamation claims.

Mr. Elsensohn, a local pianist and piano tuner, testified that, in response to a print media advertisement, he auditioned to perform in a show Farmington produced to Harrah’s Casino. The show involved a mini-parade that included a float on which Mr. Elsensohn performed on keyboard. After having been accepted, he met with Farmington in Las Vegas, Nevada, to put the music for the show down on tracks, record the songs and confer with Farring-ton as to which songs would be chosen and how they would be recorded. The show was to be a daily mock Carnival parade, with a float, marching band, dancers and stilt walkers. |4 The parties stipulated to the contract as described by the trial court in its reasons for judgment.

Mr. Elsensohn testified that Mr. Beal was his immediate supervisor. Mr. Elsen-sohn’s duties included creation of a New Orleans music track, help in putting together instrumentalists and rehearsals of the musicians. Mr. Elsensohn was allowed to perform work that was not within the terms of the contract for other employers while at Harrah’s, and was additionally compensated for that work, which included tuning instruments, making repairs and otherwise performing outside of his work for Farrington.

According to Mr. Elsensohn, he felt that he was “getting engineered out” of his position at Harrah’s at about the same time that a new singer, Cory, was brought in. Subsequently, Mr. Elsensohn testified he was “kind of emasculated from doing anything that a music director did.” He testified that his recommendations concerning choices of band members were ignored, and he did not approve of the quality of the newly hired singer and saxophone player. Mr. Elsensohn also testified that Mr. Beal was complaining about things Mr. Elsensohn viewed as minor, such as attendance at staff meetings and riding on the float in the casino mini-parade.

Around 23 June 1999, Mr. Elsensohn testified he asked Mr. Beal if he needed a piano player, Mr. Beal stormed off and Mr. Elsensohn went to his car to call the supervisor, Joy Moráis, with whom he testified he had a “personal relationship” to tell her what was happening, but Ms. Moráis was on vacation. An |5unidentified person asked him why he wanted to talk to Ms. Moráis, but he refused to discuss the situation with anyone but her. When Mr. El-sensohn returned to do the show, Mr. Beal met him and said someone from the Far-rington office was on the phone and would like to talk to him. Mr. Elsensohn testified:

“Putting two and two together, I called the office. The office calls him, or he calls them. And at the same time, I called. And I know Joy’s not in town. I don’t want to take that call. I want to talk to you [plaintiff counsel], an attorney, or I want to talk to Moráis. I don’t want to sign anything, nothing.”
I told him I didn’t want to make the phone call. And then I don’t remember exactly how — the door was open. And I think the bathroom’s right past me. And I walked past it. And it was like, “Can you come in here a minute?” And I kind of looked in there for a minute. And I said, “Robert, I can’t, I can’t work with you, man. We’re not communicating, you know.” And, you know, he’s like, you know, “Shut up, man.” He says, “I’m trying to give you three days’ administrative leave.” I said, “I really don’t want three days of administrative leave. I wanted to play. That’s all. And I want to wait and talk to Joy.” He says, “Well, you got three days. I need your pass.” I said, “You’re not gonna have any argument from me.”
It was just this little featherweight. And there was this copy machine. I put it down on the copy machine. This is a hollow desk; it made a noise too. I put a little, plastic badge down there. But it was a badge that hung around your neck, which the hanging part of it was mine. And I use it at the Jazz Fest, and I use it at other fests when I play with other known acts that I need a pass for. I even use it sometimes for piano tuning.

After having voluntarily surrendered his pass, one of the security guards came in to escort him from the property. Without that pass, he was unable to get into secure areas in the casino.

|fiMr. Beal testified that Mr. Elsensohn took off his badge, threw it across the room onto the fax machine and said, “You want that? F— that. I don’t need your f-money. I quit. I don’t need this f-job.” Mr. Beal remained seated, and Mr. Elsensohn said, “You have all these witnesses here. You goading son of a bitch. I’m gonna juice you,” and patted a bag he was carrying. Mr. Beal testified that from his experience in Las Vegas he took the “juice” comment as a threat. Mr. Beal memorialized this confrontation by a memorandum dated 23 June 2000. According to the memorandum, Mr. Elsen-sohn did not ask for or fill out a request to perform outside work in the Jazz Court.

Following this confrontation, Mr. Beal wrote a letter dated 23 June 2000 to Har-rah’s Casino CSO (security) department, noting that Mr. Elsensohn was placed on Administrative Leave from Farrington Productions, and his badge was confiscated. According to Mr. Beal’s letter, in the presence of Donald Eckert, the security person present, and Patricia Tieperman of Farrington’s wardrobe department, Mr. Elsensohn threatened to have Mr. Beal “juiced.” Therefore, Mr. Beal was requesting extra security and advising Harrah’s that any incidents with Mr. El-sensohn on Harrah’s premises would be Harrah’s responsibility. Mr. Beal identified the letter during his direct examination.

Mr. Elsensohn testified that some time later he played at Harrah’s, but not on so regular a basis as previously, probably no more than six times. Mr. Elsensohn claims he was essentially “black-listed” by Farrington and Mr. Beal. However, on cross-examination, the defense counsel introduced an e-mail transmission sent from Mr. Beal to Harrah’s, with copies to Ms. Moráis and Mr. Elsensohn, dated 30 June 2000 and providing:

|7Please be advised that Farrington Productions has no problem with Bruce Elsensohn working sessions in Jazz Court or Hideaway Lounge with any artists or musical groups.

Mr. Beal testified that after having received notice from his corporate headquarters that Mr. Elsensohn was no longer a Farrington employee, on 30 June 2000 he wrote to Mr. Whitley, director of security for Harrah’s casino, informing him that as of 26 June 2000 Mr. Elsensohn was no longer a Farrington employee.

Mr. Elsensohn admitted on cross-examination that he did not attempt to go to Harrah’s after 23 June 2000, and that he had no written directive from Farrington or Mr. Beal keeping him out of the casino. In his deposition, Mr. Elsensohn had testified that he was out of business for about a month.

Mr. Elsensohn received payments under his contract with Farrington through 1 July 1999, and was not paid from 1 July 1999 through 31 October 1999. An administrative law review panel found Mr. El-sensohn was entitled to state unemployment compensation, which he has received. Mr. Beal testified that he had no knowledge of the unemployment hearing and did not testify before the administrative judge.

On cross-examination, Mr. Elsensohn admitted that between 23 and 30 June he received several messages from Mr. Beal, but refused to return them. He was shown his own e-mail transmission to Mr. Beal admitting, “I have truly not been available when you’ve called.”

Mr. Elsensohn denied having vandalized property upon his leaving Farrington’s employ.

|sMr. Elsensohn offered certain testimony and evidence allowed by the trial court to address his defamation claims, but which were inadmissible hearsay as to the claim at issue on this appeal.

Mr. Elsensohn testified that the personal relationship he had with Ms. Moráis ended shortly before his alleged termination.

On cross-examination, Mr. Elsensohn admitted he called Mr. Beal a “goading son of a bitch” as he was leaving the office. He also admitted that the administrative judge had found that on 22 June, the day before the alleged termination, Mr. Beal and his assistant, Ms. Embry, presented him with a written warning, alleging he was not performing his duties as instructed after having been warned orally on 11 June 2000 and on 16 June 2000. Mr. Elsensohn contended that he would not sign the written warning without having consulted plaintiff counsel.

Mr. Elsensohn identified a Notice of Corrective/Disciplinary Action dated 10 December 1999 and signed by him showing a complaint by Edward Paris, a band member. According to the acknowledgment signed by Mr. Elsensohn on 11 December 1999, on 10 December at approximately 12:15 a.m. in the men’s dressing room, Paris, who is blind in one eye and has some difficulty making spatial judgments, hung his costume by mistake on Mr. Elsensohn’s hanger. This led to a curt and abrupt response from Mr. Elsen-sohn who said, “You don’t have to go ghetto on me,” a comment perceived as a racial remark by a fellow performer, inappropriate behavior, yelling in the public hallway and in the co-manager’s office. This activity was also observed by casino employees David Poe, Cranston Clements, George Cruz, Mark Braud and Joe Terragano.

| ¡A-ceording to the document signed by Mr. Elsensohn, he agreed to a counseling session and a mandatory apology to be given to the fellow performers who observed the actions. Mr. Beal signed a follow-up report that he came upon the scene in the hallway and took the parties to the office to try to placate the performers and to hear both sides of the story, and spoke to the witnesses. Braud, the leader of the marching band, demanded that Mr. Elsensohn apologize to everyone in the dressing room for his speech and behavior. Mr. Elsensohn did so that evening, and a written counseling session was held in the office between Mr. Beal and Mr. Elsen-sohn. Upon observation for two months, Mr. Beal stated he did not believe Mr. Elsensohn made the statement as an intentional racial remark; however, he did what he was told to do to correct the matter.

Mr. Elsensohn also signed an Employee Acknowledgement of Verbal Note given on 16 December 1999, admitting that Farring-ton had warned him (1) against removal of personal stereo equipment from dressing rooms and use of private headsets; (2) to remove offensive photos and/or love notes from mirrors; and (3) to avoid any sexual conversations of any kind, in accordance with his orientation.

Mr. Elsensohn refused to sign a report of correetive/disciplinary action issued 22 June 2000, setting forth a written warning. The document alleges that Mr. Elsensohn failed to work as directed by two verbal directives of 11 and 16 June to ride the parade float at the keyboard. On 20 June he left the float before reaching the Jazz Court and did not ride after Jazz Court 2. The report warns that Mr. Elsensohn must work as directed and any future disregard may lead to termination. According to the witness, A.J. Embry, Mr. Elsensohn refused to sign the document, claiming to be under duress. According to the witness:

[10He also feels that Robert Beal is picking on “his ass.” He was yelling and trembling and claims that the driver left without him. He complained that the current latch on the gate is the reason he cannot get in or out of the float. When reminded that he got out of the float while it was moving on his own directive, he became more irate. He claimed he didn’t think it was a problem for him to get out early. He also said that he must speak to Joy about this incident. When asked to calm down, he said that was his normal attitude when he was being picked on. I also feel that had Robert [Beal] not been here, Bruce [Elsensohn] would have been completely out of control. His violent temper made me feel very threatened.

Mr. Elsensohn also denied a complaint made by Rick Knowles that Mr. Elsensohn found a picture of Knowles’ boyfriend offensive and made disparaging comments about Knowles’ sexual orientation.

Kelly Hackenjos, a/k/a Kellie Karl, testified that she is a dancer, singer and choreographer formerly employed by Farring-ton and Harrah’s casino. She stopped working for Farrington because her costume was painful. According to Ms. Hack-enjos, Mr. Beal was not responsive to her complaints that the costume was ill fitting and caused her discomfort. However, former wardrobe manager Patricia Tieper-man testified that Ms. Hackenjos constantly complained about her costume, although both Ms. Tieperman and the wardrobe mistress she supervised alternatively tried to comply with Ms. Hackenjos’ wishes to no avail. She found no objective evidence of any problem with the costume. Furthermore, she testified that Ms. Hackenjos lied to her concerning her participation in a traveling production company.

Ms. Hackenjos testified that she was required to pay for alterations to the costume when she asked for and was granted an early contractual release. Mr. Beal testified that this was standard procedure. When Farrington granted an early | ncontractual release to an employee, the employee was required to pay for any wardrobe alterations for his or her replacement, including replacement shoes.

Ms. Hackenjos also identified a sexually explicit and offensive e-mail transmission allegedly from Mr. Beal, dated 27 April 2001, ten months after Mr. Elsensohn’s alleged termination. On cross-examination, Ms. Hackenjos admitted that this email was sent after she had eonsensually terminated her employment contract with Farrington, and that she and Mr. Beal exchanged jokes by e-mail during and after her employment with Farrington. Mr. Beal denied having sent the email to Ms. Hackenjos.

Rebecca Barry testified that she is a saxophone player and vocalist who employed Mr. Elsensohn to play with bands on late shift for $100 per performance or “gig”. After Mr. Elsensohn either quit or was terminated, she was unable to hire him to play at Harrah’s. Charlie Brent, who was a go-between for Harrah’s music, told her that Mr. Elsensohn was not allowed to play at Harrah’s. On cross-examination, she could not recall whether Mr. Elsensohn played for her around the 30th of June. Mr. Elsensohn contacted her after June 1999, asking for dates outside of the casino. She testified that at no time did Mr. Elsensohn show her the email from Mr. Beal to Harrah’s that said Far-rington had no problem with Mr. Elsen-sohn working sessions in Jazz Court or Hideaway Lounge with any musical groups. She admitted that she never asked Mr. Brent for permission to use Mr. Elsensohn.

Ernie Cosse, III testified that he worked as a bandleader with his own band in Harrah’s Hideaway Lounge from right after Harrah’s opening in 1999 to 2001. He used Mr. Elsensohn twice before the termination, paying him $100 per performance. Subsequently, he had a brief discussion with Mr. Brent who told him he couldn’t use Mr. Elsensohn any longer.

ImMr. Beal testified on cross-examination that he has performed for thirty years as a professional singer and dancer. He was involved in the preproduction of the Harrah’s casino show while in Las Vegas, and was paid $1,000 weekly. He testified that Mr. Elsensohn was more than adequate as a keyboard artist. He was not up to the position of band director because of several altercations that occurred during the run of the show at Harrah’s. Furthermore, Mr. Elsensohn was not playing the keyboard, not riding the float where the keyboard was located, was leaving the float and was failing to assist the two singers when they asked for assistance. He also failed to resolve the singers’ musical problems. Mr. Beal testified that the majority of Mr. Elsensohn’s playing time was to be spent on the float.

Farrington responded to Mr. Elsen-sohn’s complaint that the float smelled bad by allowing him to install an electric fan to blow fresh air into his face and blow áway the unpleasant smell.

Mr. Beal testified to the dressing room incidents, and incidents with Eddie Bo and Cory Lear. Furthermore, Mr. Elsensohn did not support the singers under his supervision.

Mr. Beal testified that Mr. Elsensohn told him in his office that he quit. Mr. Beal denied having received a copy of the email dated 31 May 2001 from Mr. Brent to Mr. Elsensohn forwarding a message from Jim Boa head of Harrah’s audiovisual department to Mark Conner, Har-rah’s entertainment director, with a copy to Steve Jeandron of customer safety and risk management. The original message from Boa read:

Mark,
|13I have been told by my technicians that one of the musicians informed them that Bruce Ellsinsohn [sic] has been cutting piano strings and purposely messing up the tuning of the Jazz Court Grand Piano. Please do not hire this guy to play here. I am sure he is disgruntled after being let go from the parade show. I have a[sic] invoice for $65.00 for string repair that I will bring you today.

Mr. Beal testified that the email was incorrect in saying that Mr. Elsensohn was “let go”, and reaffirmed that the pianist had quit. He denied having banned Mr. Elsensohn from the casino.

According to Mr. Beal, when Farrington has an issue with an employee, it issues a paid administrative leave in order that the employee might “cool down”, and go over his thoughts concerning why he was sent home on administrative leave. The casino has a rule that bars a person placed on administrative leave from coming back for thirty days, after which they must be escorted by a customer safety officer directly to Harrah’s manager’s office for review. Farrington’s rules mirrored the casino’s regulation in this respect. This coincides with Mr. Elsensohn’s testimony that he missed about a month of work after he left Farrington’s employ.

In Mr. Elsensohn’s case, since the pianist quit after having been placed on administrative leave, Mr. Beal called his corporate vice-president in Las Vegas who said she would review the situation. When Ms. Moráis returned from vacation, she called Mr. Beal and told him Mr. Elsen-sohn would no longer be working with Farrington at Harrah’s in New Orleans. She did not disclose the substance of her conversation with Mr. Elsensohn to Mr. Beal.

Mr. Beal testified that by email he informed Harrah’s security and audiovisual directors, Messrs. Whitley and Boa, that they were free to hire Mr. Elsensohn although he had quit his job with Farring-ton, and supplied a copy of the l14email message. Furthermore, he followed up the memo with a verbal conversation with those gentlemen and with Mr. Brent.

Mr. Beal testified that after Mr. Elsen-sohn quit his job, he saw Mr. Elsensohn a number of times working in the Jazz Court at the keyboard.

Mr. Beal testified that he encouraged his employees to file grievances stating any personnel issues that may have arisen; however, neither Mr. Elsensohn nor any other employee filed a grievance during Mr. Beal’s tenure with Farrington at Har-rah’s casino.

Officer Michael J. Field, a New Orleans Police Department sergeant, testified that he had a detail working at Harrah’s Casino through the NOPD Gaming Division from October 1999 to November 2001. Mr. El-sensohn contacted him and said he was forbidden to go into the casino, and would be arrested for trespass were he to enter the casino. Officer Field said he had no paperwork that would support that conclusion. He was unaware of any charges having been brought against Mr. Elsen-sohn. He testified that he was told about Mr. Beal’s request to Harrah’s safety officers saying Mr. Elsensohn was barred from the casino based on an allegation of criminal damage to the piano; however, he did not produce any written evidence to support this claim. Mr. Beal specifically denied having authored such a letter.

Patricia Smith Tieperman testified that she was employed by Farrington as wardrobe manager from October 1999 to July 2001. She was present on 23 June 2000 at a meeting between Mr. Elsensohn and Mr. Beal at the casino, and at the seven o’clock meeting that preceded it. According to Ms. Tieperman, Mr. Beal told Mr. Elsen-sohn he needed him to come into the office to participate in a telephone call to the company’s office in Las Vegas. Ms. Tiep-erman testified that |1BMr. Elsensohn said he would not go into the office and “worry about that office b— s — ” and that he would not go in there. Subsequently, she came to Mr. Beal’s office, and security officer Donald Eckert was present. Mr. Elsensohn walked in and said, “You want me to leave? I’m leaving. Here, you want this?” Mr. Elsensohn threw his employee badge across the fax machine. Mr. Beal told him he was given three days’ paid administrative leave. According to Ms. Tieperman, Mr. Elsensohn replied with

the F word. “I quit. I won’t work for you anymore, Robert.” And then he said, “Robert, I’m gonna juice you, man. You are a goading son of a bitch.”

Ms. Tieperman testified that she took the “juice” comment to be a threat. Ms. Tieperman then said that this kind of obscenity was “par for the course” for Mr. Elsensohn, and that Mr. Elsensohn used “MF” in normal conversation.

STANDARD OF REVIEW

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous or clearly wrong. When findings are based on determinations regarding the credibility of witnesses, the manifest error—clearly wrong standard demands great deference to the trier of fact’s findings; for only the fact-finder can be aware of the variations in demeanor 11fiand tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Where the story itself is so internally inconsistent or implausible on its face, that a reasonable fact finder would not credit the witness’s story, the court of appeal may well find manifest error or dear wrongness even in a finding purportedly based upon a credibility determination. See, Rosell v. ESCO, 549 So.2d 840, 844-845 (La.1989); Hill v. Morehouse Parish Police Jury, 95-1100 (La.1/16/96), p. 4, 666 So.2d 612, 614; Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 745; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993).

We are instructed that before a fact-finder’s verdict may be reversed, we must find from the record that a reasonable factual basis does not exist for the verdict, and that the record establishes the verdict is manifestly wrong. Lewis v. State Through Dept. of Transp. and Development, 94-2370 (La.4/21/95), 654 So.2d 311, 314; Stobart, supra. Although we accord deference to the fact-finder, we are cognizant of our constitutional duty pursuant to LSA-Const. Art. 5, section 10(B) to review facts, not merely to decide if we, as a reviewing court, would have found the facts differently, but to determine whether the trial court’s verdict was manifestly erroneous, clearly wrong based on the evidence, or clearly without evidentiary support. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099 (La.7/5/94), 639 So.2d 216, 221; Ferrell v. Fireman’s Fund Ins. Co., 650 So.2d at 745.

Thus, we must inquire as to whether there was sufficient evidence before the trier of fact to support its finding that Farmington and Mr. Beal breached Mr. Elsensohn’s employment contract,

h .ASSIGNMENT OF ERROR: The trial court was manifestly erroneous in holding Farrington and Mr. Beal breached an employment contract with Mr. Elsen-sohn absent evidence that plaintiff was discharged and in light of evidence that Mr. Elsensohn quit his job.

The record contains several statements by counsel during trial that the issue in this case is actual termination, and that Mr. Elsensohn does not claim constructive termination. Therefore, this Court has the duty of determining whether there is evidence of record from which the trier of fact reasonably could determine that Farrington actually terminated Mr. Elsensohn.

The record is clear and unequivocal that at his meeting with Mr. Beal, Mr. Elsen-sohn grew angry and, either with obscenity, as testified to by Mr. Beal and Ms. Tieperman, or without obscenity, as testified by Mr. Elsensohn, threw his badge across the room and did not accept the three-day administrative leave cooling off period offered by Mr. Beal o^ behalf of Farrington.

This action clearly constituted Mr. El-sensohn’s breach of the employment contract in question. Having relinquished his badge and indicated his unwillingness to take advantage of the administrative leave option, he cannot now be heard to claim that Mr. Beal and Farrington terminated him involuntarily. His failure to file a grievance against Mr. Beal or to appeal his alleged termination to Farrington’s corporate office provides the sort of objective evidence that, together with the appellants’ evidence, contradicts the contrary testimonial evidence given by Mr. Elsensohn.

There is simply no evidence that Mr. Elsensohn was blacklisted by Farrington or Mr. Beal. To the contrary, he admitted he received work at Harrah’s [ ^subsequent to his termination. The evidence is clear and uncontroverted that the Harrah’s management, in spite of the email message from Mr. Beal to its security and audiovisual departments advising them that Farrington had no objection to their hiring Elsensohn, chose independently and, presumably, based on their own observation of Mr. Elsensohn, not to hire him at their New Orleans casino.

From the record it is quite clear that even if we were to accept as totally credible all of the evidence offered on Mr. Elsensohn’s behalf, the fact remains that he unilaterally terminated his employment contract by refusing to take advantage of the three day cooling off period, turning in his identification badge, leaving the premises and refusing to return his employer’s telephone calls. Therefore, in the absence of supporting evidence, we find the judgment of the trial court to be manifestly erroneous and clearly wrong insofar as it concludes that Farrington and Mr. Beal breached Farrington’s contract with Mr. Elsensohn by untimely termination.

CONCLUSION AND DECREE

For the foregoing reasons, we reverse the judgment and the trial court and render judgment in favor of defendants/appellants Robert Beal and Farrington productions, Inc. dismissing the petition of Bruce Elsensohn with prejudice at plaintiffs cost.

REVERSED AND RENDERED.

      . Appellee’s brief includes in its argument the following: "The trial Court denied Elsen-sohn's claim for defamation. The trial Court erred in this regard. Certainly the publication of a falsehood about Bruce [sic] damaging a piano should be grounds for recovery of damages.” However, the appellee did not file a timely Answer to Appeal as required by LSA-C.Civ.P. art. 2133(A), which provides in pertinent part: "An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer.” Matthews v. Consolidatged Companies, Inc., 95-1925 (La.12/8/95), 664 So.2d 1191; U.S. Fid. & Guar. Co. v. Hurley, 96-1421 (La.App. 4 Cir. 8/6/97), 698 So.2d 482; Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971); Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 (1968); and Britt Builders, Inc. v. Brister, 618 So.2d 899 (La.App. 1st Cir.1993).


author: LBYRNES, Chief Judge.

text:
    Raymond JONES v. The CITY OF NEW ORLEANS, John Doe, XYZ Insurance Company, and Harry Thompson. Howard Sullivan v. The City of New Orleans and Harry Thompson.
    Nos. 2002-CA-2021, 2002-CA-2022.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 12, 2003.

      James R. Hashek, Michael E. Kartz, LLC, New Orleans, LA, for Plaintiff/Ap-pellee.
    Kimlin Lee, Assistant City Attorney, Charles L. Rice, Jr., City Attorney, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge PATRICIA RIVET MURRAY and Judge MICHAEL E. KIRBY).
   LBYRNES, Chief Judge.

Plaintiff-appellant, Raymond Jones, appeals a judgment dismissing his claim for damages against the defendant-appellee, the City of New Orleans. We affirm.

The plaintiff sued for damages suffered as a guest passenger in a pick-up truck driven northbound on Alvar Street by Harry Thompson at the intersection of Alvar Street and Claiborne Avenue. Plaintiff initially filed suit against the City of New Orleans because of a defective traffic signal at the intersection, but subsequently amended to add Howard Sullivan, the driver of the other vehicle and his insurer, Progressive Security Insurance Company, as well as his employer, Christian Community Center Youth Against Drugs Foundation, Inc. Plaintiffs claims against these three defendants added by amendment were compromised and dismissed, which dismissal was memorialized in a Limited Motion of Partial Dismissal.

Plaintiff proceeded to a trial on the merits against the City of New Orleans as a result of which his claims were dismissed based on a finding by the trial judge that Mr. Sullivan, the driver of the other vehicle was 100% at fault.

LI. PLAINTIFF’S SOLE FORMAL ASSIGNMENT OF ERROR

The plaintiff appeals stating that:

[T]he sole issue for review presented in this case of an intersectional collision in which a municipality has notice of a defective traffic light but breaches its duty of proper repair, is whether it is manifestly erroneous to assign no percentage of negligence to the municipality simply because of a finding that a defendant motorist should have yielded under the circumstances.

In other words, the only issue briefed by the plaintiff was his complaint that the trial court erred in its allocation of fault by assigning no fault to the City in connection with the malfunctioning semaphore for which it was responsible.

Plaintiffs host driver, Mr. Thompson, testified that he had the green light when he entered the intersection. An independent witness, Ms. Carmen A. Hillard, who was following the vehicle in which the plaintiff was riding as a passenger, confirmed the fact that the light was green for Mr. Thompson’s vehicle. Neither party to this appeal challenges that testimony.

Mr. Sullivan, the driver of the other vehicle testified that none of the lights directing his travel on Claiborne Avenue crossing Alvar Street were illuminated on the day of the accident. Neither party challenges this assertion.

The trial court noted in its written reasons that for some two months prior to this accident there had been numerous problems with the traffic signal at this intersection, but that each time such a problem was reported that it was promptly fixed. However, the frequency and ongoing nature of the problems would permit a reasonable fact finder to conclude that the City’s efforts to fix the signal failed to get at the root cause of the problem and the City’s failure in this regard amounted 13to negligence, much like prescribing aspirin for a brain tumor. In an analogous situation this Court in Howard v. Derokey, 98-0893 (La.App. 4 Cir. 02/10/99), 729 So.2d 654, sustained the trial court’s finding that the City failed to properly effect repairs based on repair records showing that the traffic light had to be fixed a second time shortly after being fixed the first time. Similarly, in the instant case the trial court in its written reasons for judgment found that:

[Plaintiffs] have demonstrated by a preponderance of the evidence that the City owed them a duty to keep the traffic lights in proper repair, that the City breached this duty, that the City had notice of the dangerous condition, that the city had an opportunity to remedy the defect and that the City failed to remedy this defect....
The court finds that having to replace the same relay on two consecutive days indicates that there was a problem with the work purportedly done the day before the accident. Furthermore, the court finds that this demonstrates that the City had notice of the defect and breached its duty by failing to properly repair the traffic signal light.

The City initiates its argument by a strenuous assertion of the manifest error standard of review supporting the trial court’s factual findings, citing the usual suspects: Rosell v. ESCO, 549 So.2d 840 (La.1989); Stobart v. State, 617 So.2d 880 (La.1993); Cosse v. Allen-Bradley Co., 601 So.2d 1349 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins.Co., 558 So.2d 1106 (La.1990); and Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Based on the manifest error standard of review, the City contends that this Court should not overturn the trial court’s finding that in spite of the fact that Mr. Sullivan knew that the traffic signal was broken he sped into the intersection. The trial court noted in its written reasons that Mr. Sullivan testified that he yielded at the intersection, but that this testimony was contradicted by that of the independent witness, Ms. Hillard. This is a stereotypical credibility call made by the trial court, 14where the trial court has the opportunity to observe the demeanor of the witnesses and we do not. The plaintiff does not contend that there are inconsistencies in the testimony of the independent witness and makes no showing that her testimony is contradicted by documentary evidence or that it is implausible on its face, i.e., the plaintiff makes no showing and we find nothing in the record that would suggest to this Court that the trial court was not entitled to believe her testimony. Stobart v. State, supra, 617 So.2d at 882. Therefore, we find no manifest error in the credibility call made by the trial court in favor of the testimony of the independent witness regarding the issue of whether Mr. Sullivan failed to yield and sped into the intersection knowing that the traffic signal was not functioning.

If there is any inconsistency, it is in the City’s insistence at the outset of its brief that this Court apply the deference due the trial court’s findings mandated by the manifest error standard of review, but then closing the argument in its brief with the assertion that we should overturn the trial court’s finding that the City was negligent in repairing the traffic signal — although that contention is not strenuously made and appears to be perfunctory in nature. The City argued that it had fixed the light on every occasion. In its thorough and extensive written reasons for judgment the trial court painstakingly reviewed the litany of traffic light repair problems at this intersection. The City does not dispute those findings. The City only disputes the inference drawn from those findings by the trial court as discussed earlier in this opinion, i.e., the City disagrees with the trial court conclusion that the City breached its duty to properly repair the traffic signal. We cannot say that no reasonable fact finder could draw such a conclusion from the record. The fact that this Court or another reasonable fact finder could look at the same record and conclude that the City’s repair efforts were entirely reasonable under the circumstances, is not a sufficient basis under the manifest error standard of review to justify the rejection by this Court of the reasonable finding of the trial court on the question of the repair of the traffic signal:

Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Howevei", where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, the court of appeal may find manifest error or clear wrongness even in á finding purportedly based upon a credibility determination. Rosell, 549 So.2d at 844-45. Nonetheless, this Court has emphasized that “the reviewing court must always keep in mind that ‘if the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.’ ” Housley v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)). This court has recognized that “[t]he reason for this well-settled principle of review is based not only upon the trial court’s better capacity to evaluate live witnesses (as compared with the appellate court’s access only to a cold record), but also upon the proper allocation of trial and appellate functions between the respective courts.” Canter v. Koehring Co., 283 So.2d 716 (La.1973). Thus, where two permissible views of the evidence exist, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Id.

Stobart, supra, at 882-883.

Ut would be wrong to accede to the City’s demand that we apply the manifest error standard of review to Mr. Sullivan’s actions behind the wheel, but ignore that same standard when reviewing the conduct of the City. Finally, we note regarding this issue that the plaintiff does not deny Mr. Sullivan’s fault and liability. Plaintiff merely denies that Mr. Sullivan was 100% at fault in the accident, contending that the City should share some of the blame.

The trial court relied on Hayes v. City of New Orleans, 527 So.2d 1002 (La.App. 4 Cir.1988) and Rosemond v. Diggs, 468 So.2d 652 (La.App. 4 Cir.1985), in support of its decision to let the City off the hook and assign all fault to Mr. Sullivan. In Rosemond this Court held that a motorist who approaches an intersection with an inoperative traffic light has a duty to proceed with extreme caution. To enter such an intersection without slowing down or stopping to ascertain whether crossing can be negotiated in safety constitutes negligence. Id.

However, as there is no real dispute on this appeal concerning Mr. Sullivan’s negligence, the trial court’s reliance on Rosemond in support of its findings concerning Mr. Sullivan’s negligence is not nearly as important to our deliberations as is our analysis of the question of the City’s comparative negligence when viewed through the eyes of this Court in Hayes, supra:

That the City may have a duty, and may have breached that duty, does not make the breach automatically a cause of the accident. If the cause of the accident is one hundred per cent the fault of third parties, then the City is exonerated from liability. A duty-risk analysis should not be short-circuited to find cause as a necessary conclusion of a finding of a duty and a breach. Whether a defendant’s actions caused an injury is an independent inquiry from whether the defendant owed plaintiff a duty and whether that duty was |7breached. If the actions of defendant did not cause the injury, then it becomes immaterial whether there was a duty or a breach. Lack of causation, particularly a finding of one hundred per cent third-party causation, defeats liability under either LSA-C.C. Art. 2315 or LSA-C.C. Art. 2317.
In Norris v. The City of New Orleans, 433 So.2d 392 (La.App. 4th Cir.1983), and Orazio v. Durel, 407 So.2d 75 (La.App. 4th Cir.1981), a motorist’s negligence in entering an intersection when he knew the traffic light was malfunctioning was the cause of the accident, exonerating the City from liability under LSA-C.C. Art. 2315 or LSA-C.C. Art. 2317. In this case, the trial court found the negligence of the two drivers to be one hundred per cent of the cause of the accident. While third-party fault should be applied on a comparative fault basis, when the third-party fault is found to be one hundred per cent of the cause of the injury, defendant necessarily bears no fault.
After reviewing the record, we agree with the trial court’s assessment of causation. The negligence of the two drivers combined to establish one hundred per cent of the cause of the accident. The City, therefore, bears no liability.

Hayes, supra, 527 So.2d at 1004.

We find that the reasoning in Hayes is still good law and supports the decision of the trial court to assign all fault to Mr. Sullivan regardless of the negligence of the City.

In support of its contention that some fault should be allocated to the City, the plaintiff cites, and the trial court notes in its reasons for judgment, the case of Howard v. Derokey, 98-0893 (La.App. 4 Cir. 02/10/99), 729 So.2d 654, 656. Although fault was allocated to the City in Howard, that allocation was sustained by this Court, citing Clement v. Frey, 95-1119, p. 7-8 (La.1/16/96), 666 So.2d 607, 610-611, based on the manifest error standard of review and the broad discretion of the trial court in the allocation of fault which this Court analogized to quantum ^determinations. In other words, in Howard this court did not find that as a matter of law where the City is negligent in failing to properly and timely repair a traffic signal that some percentage of fault must automatically be assigned to the City, and we may safely assume that had the trial court made a different allocation of fault in Howard based on its broad discretion in such matters, such a different finding would have likewise been sustained by this Court. In Howard the plaintiff driver was assigned 35% fault for what this Court described as being “forced to cautiously enter the intersection with on-coming traffic” after coming to a full stop. In the instant case, Mr. Sullivan was found to have speeded into the intersection without stopping, an act sufficiently more egregious in comparison with the driving activity of the plaintiff in Howard to justify the trial court in the exercise of its broad discretion concerning the allocation of comparative fault to allocate all fault to Mr. Sullivan. This does not mean that the trial court could not have made an equally reasonable finding allocating some fault to the City, for an allocation of fault to the City would be sustainable under theories of cause-in-fact, legal cause and ease of association depending on how the trial court viewed the actions of Mr. Sullivan relative to those of the City. However, in the instant case the negligence of Mr. Sullivan was sufficiently egregious so as to allow this Court to find that an allocation of 100% fault to him to be within the broad discretion of the fact finder.

The plaintiff also cites this Court’s opinion in Bourgeois v. State, Through the Department of Highways, 255 So.2d 861 (La.App. 4 Cir.1971). In that case this Court amended the trial court’s judgment exonerating the Department of Highways for any fault in failing to timely fix a malfunctioning traffic signal, holding that the malfunctioning light contributed to the accident. First, we note that there is no indication in Bourgeois that the plaintiff driver in that case sped 13into the intersection as Mr. Sullivan did in this case. In that case the light was green for the plaintiff driver, but the trial court found that she should have suspected that it was malfunctioning because she knew that it had been malfunctioning only three hours earlier and she should not have relied on the assumption that it had been repaired in the meantime. This is very different from the situation Mr. Sullivan faced when he arrived at the intersection and noted that the light was not lit, i.e., Mr. Sullivan knew absolutely that the light was not working but chose to speed through the intersection regardless. Mr. Sullivan had no reason to believe that the light had been repaired. He could see that it was out. Additionally, we note that Bourgeois was decided over thirty years ago, in the era of contributory negligence prior to the time this state adopted the concept of comparative negligence and, per force, prior to the time the standards of review for comparative negligence were first contemplated. We conclude that there is nothing in Bourgeois that would cast doubt on our decision to sustain the exoneration of the City in Hayes and in the instant case.

II. DAMAGES

While we are aware that our decision above to sustain the trial court’s holding that no fault should be allocated to the City should obviate the necessity to delve into the question of the plaintiffs damages, we will touch on the subject briefly in order to explain for the benefit of a reviewing court how the Uniform Rules— Courts of Appeal, Rule 2-12.4 bears on this issue. Rule 2-12.4 provides in pertinent part that:

All specifications or assignments of error must be briefed. The court may consider as abandoned any | ^specification or assignment of error which has not been briefed.

The only error assigned as such by the plaintiff is “whether it is manifestly erroneous to assign no percentage of negligence to the municipality simply because of a finding that a defendant motorist should have yielded under the circumstances.” The plaintiff does not formally designate any other error. However, in the concluding paragraph of his brief, the plaintiff states that:

THEREFORE, the Judgment of the Civil District Court for the Parish of Orleans should be reversed insofar as it does not apportion any liability to the City of New Orleans, and, since all relevant factual information is already in the record, this Court should render Judgment in favor of Raymond Jones and against the City in an amount representing the City’s portion of fault and liability, together with all costs of these proceedings and those below, with legal interest from the date of judicial demand until paid.

Although this concluding paragraph in the plaintiffs brief is not formally designated as an assignment of error, in view of the consistent line of cases favoring appeals and La. C.C.P. art. 2129, stating that no formal assignments of error are required, we find the above statement adequate to raise the issue of damages.

However, it is not sufficient for the plaintiff to merely raise the issue of damages in order to establish his right to a certain amount of damages. The burden is on the plaintiff to prove the extent of his damages. Just as proof of negligence is not adequate to prove fault where the plaintiff fails to establish a causal connection between the negligence and his damages, the plaintiff also bears the burden of proving the amount of those damages. While we have allowed a liberal reading of the plaintiffs brief to permit us to conclude that the plaintiff succeeded in raising the issue of damages, even the most generous reading of the plaintiffs brief permits no other conclusion than that the plaintiff failed to address the issue. Pursuant to Rule 2-12.4, it is incumbent upon the plaintiff to suggest to this Court what damages he claims and where in the record this court might seek evidentiary support for those claims. As the plaintiff has completely failed to do so, we deem his claim for damages to have been abandoned.

However, as we indicated earlier, this entire discussion of damages is probably just academic, as the question of damages only becomes an issue should the Supreme Court reverse this Court and the trial court on the issue of allocation of fault.

DECREE

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.

MURRAY, J., CONCURS.

      .This motion listed one Darrell Bell as a defendant although he was never a named defendant in the suit.

      . Emphasis added.

      . Emphasis original.

      . Emphasis original.

      . Emphasis added.