author: 11 GREMILLION, Judge.

text:
    Leonard BLOCKER, et ux. v. RAPIDES REGIONAL MEDICAL CENTER, et al.
    No. 03-745.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.

      Charles Henry Munsterman, Alexandria, LA, Todd A. Townsley, Townsley Law Firm, Lake Charles, LA, Counsel for Plaintiffs/Appellees, Leonard Blocker and Elizabeth Blocker.
    Victor Herbert Sooter, Sooter & Savoie, Alexandria, LA, Counsel for Plaintiff, Rap-ides Regional Medical Center.
    Marc W. Judice, Judice & Adley, Lafayette, LA, Counsel for Defendant/Appellee, Medical Protective Company and Dr. Par-maswara Kaimal.
    David Richard Sobel, Provosty, Sadler & deLaunay, Alexandria, LA, Counsel for DefendanVAppellant, Louisiana Patients’ Compensation Fund & Oversight Board.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   11 GREMILLION, Judge.

In this case, the defendant, the Louisiana Patient’s Compensation Fund (LPCF), appeals the judgment of the trial court in favor of the plaintiff, Leonard Blocker, granting his motion for Judgment Notwithstanding the Verdict and increasing his damage award. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Blocker and his wife, Elizabeth, filed suit against Dr. Parameswara Kaimal and Rapides Regional Medical center urging that Dr. Kaimal failed to diagnose and treat a condition that developed after Dr. Kaimal performed surgery on him. The Blockers alleged that the failure eventually led to the amputation of Leonard’s right lower leg and a large portion of his left foot. Rapides Regional was, thereafter, granted summary judgment and dismissed from the suit. Following a trial, the jury rendered a verdict finding Dr. Kaimal negligently treated Blocker and that this negligence was a proximate cause of his injuries. It awarded him the following sums and made the following finding:

(A) Leonard Blocker
(1) Past and Future Pain and Suffering $ 60,000
(2) Past and Future Mental Pain and Suffering $ 30,000
(3) Loss of Enjoyment of Life $ 10,000
(4) Scarring and Disfigurement $ 35,000
| 2(5) Past Medical Expenses $ 52,716.04
(é) Are Future Medical Expenses Needed YES
(B) Elizabeth Blocker
(1) Loss of Consortium $ 15,000
TOTAL AWARD $202,716.04
Judgment was rendered on December 16, 2002, after which Blocker filed a motion for JNOV, which was granted. Following a hearing, the trial court made the following damage awards:
(A) Leonard Blocker
(b) Elizabeth Blocker
(1) Loss of Consortium $ 15,000
TOTAL AWARD $417,716.04

The LPCF timely appealed to this court.

ISSUES

LPCF assigns as error:

1. The trial court’s award for future medical benefits when Blocker failed to establish, by a preponderance of the evidence, the need for such benefits and the probable cost.
|a2. The trial court’s award of open-ended future medical benefits, “where judgment is rendered for a total amount less than the maximum amount recoverable,” contrary to La.R.S. 40:1299.43(A)(5).
3. The trial court’s grant of Blocker’s Motion for JNOV and the increase in the general damage award by 143%.
4. The trial court’s allowing Blocker to recover for loss of enjoyment of life and past, present, and future mental and physical injuries.

FUTURE MEDICAL TREATMENT AND COSTS

LPCF first urges that the jury committed manifest error in finding that Blocker needed future medical treatment. Pursuant to La.R.S. 40:1299.43(A)(1), whether a patient is in need of future medical care is a question of fact for the jury to decide. Thus, we review the jury’s finding under the well-established manifest error rule. LPCF urges that Blocker failed establish that he was in need of any future medical treatment and that the jury was not presented with any medical evidence substantiating his claims for future treatment.

Although there was no physician testimony as to his future medical costs, Blocker testified that his prosthesis needs to be replaced often and that it had been replaced several times prior to trial. Blocker’s son, James, also testified that his father’s prosthetic device needs to be replaced. Louisiana Revised Statutes 40:1299.43(B)(1) specifically contemplates the need for the replacement of prosthetic devices as “future medical care.” Apparently, the jury found merit in the testimony |4of Blocker and his son. Future medical care need not be supported by expert medical testimony in cases where the medical care is obvious and necessary. See Thomas v. S.W. La. Hosp. Assoc., 02-645 (La.App. 3 Cir. 12/11/02), 833 So.2d 548, writ denied, 03-476 (La.4/25/03), 842 So.2d 401. Accordingly, we find no error in the jury’s finding that Blocker will need future medical care.

Next, LPCF urges that, pursuant to La.R.S. 40:1299.43(A)(1), the trial court erred in not having the jury determine the actual cost of the future medical care. Louisiana Revised Statutes

40:1299.43(A)(1) states (emphasis added):

In all malpractice claims filed with the board which proceed to trial, the jury shall be given a special interrogatory asking if the patient is in need of future medical care and related benefits and the amount thereof.

Additionally, LPCF urges that, pursuant to La.R.S. 40:1299.43(A)(5), in cases where the total judgment is less than $500,000, a lump sum award is required. Louisiana Revised Statutes

40:1299.43(A)(5) states:

In all cases where the judgment is rendered for a total amount less than the maximum amount recoverable, including any amount awarded on future medical care and related benefits, payment shall •be in accordance with R.S. 40:1299.44(A)(7) and 40:1299.44(B)(2)(a), (b), and (c).

Louisiana Revised Statutes 40:1299.44(A)(7)(a) states that: “Claims from the patient’s compensation fund exclusive of those provided for in R.S. 40:1299.43 shall be computed at the time the claim becomes final.”

First we note, as pointed out by Blocker, that LPCF did not lodge a contemporaneous objection to the jury verdict form, thereby preserving this issue for appeal. La.Code Civ.P. art. 1793(C). After examining the issue, we still find no error in the trial court’s interrogatories placed before the jury. We find the words “thej^amount thereof’ troublesome and in conflict with the very purpose of the Act. Louisiana Revised Statutes 40:1299.43(0 states:

Once a judgment is entered in favor of a patient who is found to be in need of future medical care and related benefits or a settlement is reached between patient and the patient’s compensation fund in which the provision of medical care and related benefits is agreed upon and continuing as long as medical or surgical attention is reasonably necessary, the patient may make a, claim to the patient’s compensation fund through the board for all future medical care and related benefits directly or indirectly made necessary by the health care provider’s malpractice unless the patient refuses to allow them to be furnished.

However, in this particular case, the total award is less than $500,000, and presumably La.R.S. 40:1299.43(A)(5) would require a single lump sum payment. After reviewing jurisprudence relating to the purpose of the act and functions of the LPCF, we do not find the failure to award a lump sum amount fatal to the claim.

In Kelty v. Brumfield, 93-1142 (La.2/25/94), 633 So.2d 1210, a case cited by both parties, the supreme court discussed the history and purpose of the provisions relating to future medical care and related benefits. It stated, pertaining to La.R.S. 40:1299.43(A)(1):

This feature of the statutory scheme alone clearly indicates that the agency has exclusive jurisdiction of future medical and related care claims, and this meaning becomes even more evident when other aspects of the legislation are taken into consideration. Third, the same agency that is granted the authority to receive and evaluate claims, and to pay, settle or reject them, is also vested with full powers to assure the cost-effectiveness of claims adjustment and the fiscal soundness of the PCF. The agency has the power to require a medical inspection of the need of each claimant for medical care benefits every six months without a court order and more often with a court order. La.R.S. 40:1299.43 G. The agency may reduce the payment of claims pro rata below actual cost of medical expenses if the agency determines that the PCF would be exhausted by payment in full of all claims during any semi-annual period....
Ir,In establishing the administrative program, the legislature gave statutory jurisdiction to the responsible agency for the purpose of granting, denying, or settling medical and related care services claims. Along with this initial decision-making responsibility the legislature gave clear authority to the agency to supervise the administration of continuing claims. The statutory provisions contemplate that the agency will develop expertise and experience in administering not only future medical care claims but also the moneys from which they are to be paid.
Finally, the statutory provisions referring to the courts clearly indicate that they are not vested with original jurisdiction or decision making responsibility over future medical care claims. The courts are authorized to perform two limited functions: (I) certification of whether a malpractice victim is a patient is need, i.e., whether the victim’s damages consumed the cap limits without affording her compensation for all actual medical expenses necessitated by the malpractice, and (ii) random and ephemeral housekeeping matters, viz., the court is granted a very limited continuing jurisdiction to award attorney fees when the PCF fails to pay timely, id. 43 E(2), and order more frequent physical examinations of a patient, upon reasonable cause.

Id. at 1218.

We find an award by the jury in the “amount thereof’ of future medical costs is beyond that contemplated by Act. Clearly, the trial court’s role is limited and the expertise of the LPCF in determining applicable costs of future medical care has been established. LPCF has the authority and resources to determine the amount of future medical costs. Unlike a lump sum award of future medical costs awarded in a medical malpractice case not involving the LPCF, an administrative agency does exist for the purpose of determining the amount. Thus, the argument set forth by LPCF, that future medical care costs must be determined with certainty, is not applicable in this instance. LPCF is an administrative body specifically authorized to determine such costs.

Further, we agree with our colleagues in the fourth circuit who, when l7faced with an identical situation where a specific amount was not awarded, stated:

[W]e see nothing wrong with a separate judgment approving each amount of expenses as they are incurred. The statute as a whole confirms our interpretation by providing that future medical expenses are generally to be paid as incurred and by giving the district court continuing jurisdiction for this very purpose. Because the court has continuing jurisdiction, the Commissioner has the opportunity to object to any particular expense as being unreasonable at the time it is submitted for judgment. In short, although the setting of an annual limit on medical expenses damages might be more convenient to the administration of the Fund than the method adopted by the district court, it is not mandated by the statute.

Lamark v. NME Hospitals, Inc., 522 So.2d 634, 638 (La.App. 4 Cir.), writ denied, 526 So.2d 803 (La.1988) (emphasis added).

LPCF cites Merritt v. Karcioglu, 95-1335 (La.App. 4 Cir. 1/19/96), 668 So.2d 469, writs granted in part and denied in part, 96-0435, 96-0454 (La.4/26/96), 672 So.2d 677, affirmed as amended, 96-0431 (La.2/25/97), 687 So.2d 1002, amended on rehearing in part, 96-0431 (La.5/9/97), 693 So.2d 153, another fourth circuit case, in support of its proposition that failure to award a specific amount nullifies the finding of future medical need. In Merritt, the jury verdict did not contain a special interrogatory pertaining to future medical care at all. Our colleagues on the fourth circuit found that is was not the duty of the plaintiff to request the special interrogatory, but the duty of the trial court and, where the trial court forgets to give the special interrogatory, it becomes the plaintiffs duty to correct the trial court’s error. Thus, because the plaintiff did not object to the lack of a special interrogatory for the jury, the appellate court limited the plaintiffs total recovery to $500,000. We decline to follow this holding and find the facts of this case more closely analogous to the Lamark case where the jury did indeed find the |sneed for future medical care, but did not award a specific amount. Further, we disagree with our colleagues’ holding that the trial court alone is responsible for giving the special interrogatory. It behooves the aggrieved party to register an objection if he feels the trial court has committed error. This allows the trial court the opportunity to correct the error and to preserve the error for appellate review.

Although this case differs in that the total award was less than $500,000, we still find that the principles enunciated in Kelty control to allow a plaintiff to submit his claims for future medical care on an as needed basis, particularly where the LPCF does not object to the interrogatory. The LPCF has the expertise and resources to determine the necessity and costs for such care, particularly in this case where the only future medical cost is the replacement of the prosthesis. Further, we agree with the findings of the Lamark court. Although adherence to the statute may be more convenient to LPCF, a jury’s factual finding that a plaintiff is in need of future medical care will not be disregarded because a specific amount was not listed on the jury interrogatory. Accordingly, this assignment of error is without merit.

JNOV

In Love v. Lewis, 00-06, pp. 4-5 (La.App. 3 Cir. 10/12/00), 771 So.2d 220, 222, writ denied, 00-3506 (La.2/16/01), 786 So.2d 102, we stated:

La. Code Civ.P. art. 1811 provides the basis for filing a Motion for JNOV. However, Article 1811 does not set forth any specific grounds on which a trial court may set a side a verdict. Therefore, we rely on the well-settled jurisprudence that a JNOV may only be granted when the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable people could not arrive at a contrary verdict on the facts at issue. Peterson v. Gibraltar Sav. & Loan, 98-1601(La.5/18/99); 733 So.2d 1198. Additionally, “[t]he trial court may not weigh the evidence, pass on the credibility of witnesses, or substitute the reasonable inferences of the facts for those of the jury.” McBride v. H. Brown Machine Shop, 98-1271, p. 3 (La.App. 3 Cir. 3/31/99); 732 So.2d 650, 652, unit denied, 99-1288 (La.7/2/99); 747 So.2d 20, quoting Webb v. Goodley, 512 So.2d 527, 530 (La.App. 3 Cir.1987). In reviewing the grant of a JNOV, an appellate court must first determine whether the trial court erred in granting the JNOV. The appellate court does this by applying the same criteria as the trial court. Anderson v. New Orleans Public Service, Inc., 583 So.2d 829 (La.1991). If reasonable people could have arrived at the same verdict, given the evidence presented to the jury, then the JNOV is improper. Id.

After reviewing the evidence, we find the trial court did not err in granting Blocker’s JNOV, as reasonable people could not have arrived at the awards it made. Blocker testified to the events leading up to the amputation of his leg. Since Dr. Kaimal’s negligence is not at issue in this appeal, we will proceed to discuss Leonard’s testimony regarding the affects the amputation had on his life. Prior to the amputation, Blocker recalled that his foot felt like a block of ice and was so cold that all he could do was “holler.” He testified that, following the amputation, he was in pain. He also testified that, following the first amputation, while he was in rehab, his leg became infected and he had to return to the hospital to have more of it removed. Blocker stated that, when he knew the doctors or nurses were coming to change the bandaging, he would administer pain medicine because of the pain. Finally, he described how several of his toes and a portion of his left foot had to be removed.

Blocker stated he had to modify his home to accommodate a wheelchair prior to getting his prosthesis and that he was depressed about the amputation. He testified that he lost forty pounds since the amputation. He went on to describe his prosthesis and how it has to be replaced because they wear out over time. Blocker also said wearing the prosthesis is very difficult.

Blocker went on to state that he and his wife planned to travel following [intheir retirement, but that they are unable to do that now without the assistance of their kids. He stated that it has strained his relationship with his wife and that they are no longer intimate as they were prior to the amputations. He also said he is more dependent on his wife to do things for him than he was prior to the amputation.

Blocker’s wife, Elizabeth, testified similarly as to the events leading up to the amputation. She described how Leonard was able to dispense the pain medication himself when needed and that he was also given oral pain medication. She also stated that Leonard was in so much pain he could not accomplish anything at the rehabilitation center. Following the amputation of his right leg, she stated that he began having pain in his left foot. Elizabeth stated that her husband was very depressed and would not eat. She also stated that they ceased having intimate relations. She further testified that they no longer go places like they used to. Finally, she stated that he becomes very uncomfortable when he wears his prosthesis too long and that he prefers to stay in the wheelchair.

James testified that, before the amputation, his father was in severe pain and that it was “wearing down” his mother. He said that, following the amputation, his father was still in pain and quit eating. He testified that changing the bandages in the hospital aggravated his dad’s pain. James states that he goes to his parents’ house two to three times per week and that his father cannot get around like he used to and no longer works in the yard or does stuff around the house. He also said that his father prefers not wear his prosthesis and that his stump festers and blisters when he wears it.

After reviewing the evidence, we find that the trial court properly 11T granted the JNOV on the issue of damages. Blocker’s injuries were extremely serious and resulted in the loss of his right leg and a large portion of his left foot. He underwent several surgeries, skin grafts, and rehabilitation. He described the discomfort he experiences when he wears his prosthesis and one can only imagine the abrupt lifestyle change the loss of a limb would result in. Reasonable people could not have arrived at the awards made by the jury, thus the JNOY was properly granted. This assignment of error is without merit.

GENERAL DAMAGES

Finally, LPCF argues that the award for loss of enjoyment of life is duplicative of the physical and mental pain and suffering awards. We disagree. In Richard v. Teague, 92-17, pp. 22-23 (La.App. 3 Cir. 5/4/94), 636 So.2d 1160, 1174, wrii denied, 94-1934 (La.11/11/94), 644 So.2d 388 (citations omitted), we held:

Clearly, loss of enjoyment of life may be included within the category of general damages. However, it is not, of necessity, duplicative of “physical and mental pain and anguish, past and future, and any permanent disability”.... In reviewing an award of general damages, a court of appeal is required to focus on the total award and not on each individual item.

We find no error in the trial court’s combined award of $150,000 for past and future mental pain and suffering and loss of enjoyment of life. This assignment of error is without merit.

CONCLUSION

The judgment in favor of the plaintiff-appellee, Leonard Blocker, is affirmed. All costs of this appeal are assessed against the defendant-appellant, the Louisiana Patient’s Compensation Fund.

AFFIRMED.

      . La.R.S. 40:1299.43(B)(1) stales: "future medical care and related benefits” for the purpose of this Sections means all reasonable medical, surgical, hospitalization, physical rehabilitation, and custodial services and includes drugs, prosthetic devices, and other similar materials reasonably necessary in the provision of such services, after the date of the injury.


source: Caselaw Access Project

author: h GREMILLION, Judge.

license: Public Domain

text:
    Howard HEBERT v. BILL-WOOD LIMITED LIABILITY COMPANY, d/b/a Billeaud Planters, Inc., et al.
    No. 03-758.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.

      J. Minos Simon, Ltd., J. Minos Simon, Lafayette, LA, Counsel for Plaintiff/Appellant, Howard Hebert.

      Ward Lafleur, Robert A. Mahtook, Jr., Robert Leyton Odinet, and Brenda Brown Maturin, Mahtook & Lafleur, L.L.C., Lafayette, LA, Counsel for Defendants/Ap-pellees, Scottsdale Insurance Company and Bill-Wood Limited Liability Company.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   h GREMILLION, Judge.

The plaintiff, Howard Hebert, appeals the judgment of the trial court granting a motion for summary judgment in favor of the defendants, Bill-Wood, Limited Liability Company, d/b/a Billeaud Planters, Inc., and its insurer, Scottsdale Insurance Company (collectively referred to as Bill-Wood), and dismissing his claim with prejudice. For the following reasons, we vacate the judgment and remand for further proceedings.

FACTS

Hebert, a delivery man for United Parcel Service, was called to pickup several packages at an office complex located at 1405 W. Pinhook Road, Lafayette, Louisiana, on May 9, 2001. His next delivery was to the Chateau Lafayette Apartments, located adjacent to the office complex. Hebert drove his delivery truck to that portion of the parking lot adjacent to the apartment complex. The parking lot of the office complex was separated from the apartment complex’s parking lot by a grassy strip of land measuring approximately two feet. Hebert stepped out of the passenger-side door of his truck carrying two small packages. As he attempted to traverse the strip of land, he stepped into a hole, fell, and fractured his right leg.

As a result of this accident, Hebert filed suit against Bill-Wood Limited Liability Company d/b/a Billeaud Planters, Inc. and its liability insurer, Scottsdale Insurance Company. After answering the petition, Bill-Wood filed a Motion for Summary Judgment seeking dismissal of Hebert’s claim. In response, Hebert filed an Exception of No Cause of Action alleging that Bill-Wood’s motion for summary judgment did not contain any allegations of fact showing that there was no genuine 1 tissue of material fact. Thereafter, Bill-Wood filed a Motion to Strike this exception and filed a Supplement to Motion for Summary Judgment, to which it attached various exhibits. Following a hearing on Hebert’s exception of no cause of action, the trial court rendered a judgment denying the exception, casting him with all costs of filing his exception and Bill-Wood’s motion. Bill-Wood later filed a Second Supplement to Motion for Summary Judgment. This matter proceeded to a hearing on the motion for summary judgment. Subsequently, the trial court granted summary judgment in favor of Bill-Wood and dismissed Hebert’s claim against it with prejudice. Judgment was rendered in this matter on January 29, 2003. This appeal by Hebert followed.

ISSUES

On appeal, Hebert raises two assignments of error. He argues that the trial court erred in denying his exception of no cause of action, which excepted to Bill-Wood’s failure to include factual allegations in its motion for summary judgment. He further argues that the trial court erred in granting the summary judgment based upon an untimely affidavit, which contained improper subjective determinations of fact.

SUMMARY JUDGMENT

The standard of review in summary judgment eases is well settled, as is the fact that summary judgment is now favored. La. Code Civ.P. art. 966. Pursuant to Article 966(B), a party seeking summary judgment shall serve its motion and any supporting affidavits on the opposing party at least ten days prior to the hearing on the motion. ' The adverse party may serve its opposing affidavits and memorandum |3in support at least four days prior to the hearing. 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 of material fact, and that the mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). The threshold question on appeal is whether a genuine issue of material fact remains. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97), 701 So.2d 498, writ denied, 98-0050 (La.3/13/98), 712 So.2d 882.

FAILURE TO COMPLY

In his first assignment of error, Hebert argues that the trial court erred in denying his exception of no cause of action, which excepted to Bill-Wood’s failure to include factual allegations in its motion for summary judgment.

After reviewing the record, we find that this was not the proper procedural device for contesting Bill-Wood’s alleged failure. A peremptory exception of no cause of action tests the legal sufficiency of the petition to determine, whether under the allegations of the petition, the law affords a remedy to the plaintiff. Crochet v. Cisco Systems, Inc., 02-1357 (La. App. 3 Cir. 5/28/03), 847 So.2d 253, writ denied, 03-1838 (La.10/17/03), 855 So.2d 765. In evaluating the exception, the trial court accepts the well-pleaded allegations of fact as true, and the issue at the hearing on the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Id. In this instance, we find that a motion to strike would have been the proper device to attack Bill-Wood’s motion for summary judgment.

Nevertheless, the trial court correctly denied Hebert’s exception since we find that Bill-Wood’s motion sufficiently complied with La.Code Civ.P. art. 966, Lsince it attached its memorandum to the motion. “The written motion for summary judgment is a ‘pleading’ under La. C.C.P. art. 852; and written documents may be attached to pleadings and made a part thereof for all purposes. La. C.C.P. art. 853; Anderson v. Allstate Ins. Co., 93-1102 (La.App. 1 Cir. 4/8/94), 642 So.2d 208, 213 (on rehearing), writ denied, 94-2400 (La.11/29/94), 646 So.2d 404.” Arnette v. NPC Servs. Inc., 00-1776, p. 5 (La.App. 1 Cir. 2/15/02), 808 So.2d 798, 801. Moreover, in Frisard v. Autin, 98-2637, pp. 5-6 (La. 1 Cir. 12/28/99), 747 So.2d 813, 817-18, writ denied, 00-0126 (La.3/17/00), 756 So.2d 1145, the court stated:

In this case, the Ulmers did not attach their supporting documentation as exhibits to their motion for partial summary judgment. However, in the motion, the Ulmers stated, “In support of their Motion for Partial Summary Judgment, intervenors submit their Memorandum in Support of Motion for Partial Summary Judgment, with the exhibits attached thereto, filed contemporaneously herewith, as though copied herein in extenso.” (Emphasis added.) We interpret this language as the incorporation of both the supporting memorandum and the attached exhibits into the Ulmers’ motion for partial summary judgment, and we conclude this language is the functional equivalent of attaching the memorandum and exhibits to the motion.

Although Bill-Wood did not use the all inclusive language found in Frisard, we still find that it attached its memorandum to its motion for summary judgment. To hold otherwise, would, as stated by the supreme court, undermine “the use of summary judgment to ‘secure the just, speedy, and inexpensive determination of every action.’ ” Aydell v. Sterns, 98-3135, p. 1 (La.2/26/99), 731 So.2d 189, 190. Furthermore, Bill-Wood twice supplemented its motion for summary judgment prior to the hearing on the motion.

Accordingly, we affirm the trial court’s denial of Hebert’s exception of no cause of action.

1,ACTION OF TRIAL COURT

In his second assignment of error, Hebert argues that he was untimely served with Bill-Wood’s Second Supplement to Motion for Summary Judgment and its supporting affidavit. He further argues that the trial court relied on this untimely affidavit in finding that the hole at issue was not unreasonably dangerous and that Bill-Wood had no notice or knowledge of the hole.

Hebert claims that Bill-Wood filed its Second Supplement to Motion for Summary Judgment on January 21, 2003, but that he was not served with a copy of the supplement until January 23, 2003, four days prior to the hearing on January 27, 2003, in contravention of La.Code Civ.P. 966(B). At the hearing on the exception, counsel for Bill-Wood stated that a copy of the supplement, including an attached affidavit by James L. Plumley, Jr., was hand delivered to both the trial court and counsel for Hebert on January 17, 2003, as stated in the motion’s certificate of service. He further stated that a copy of its Reply to Plaintiffs Opposition to Motion for Summary Judgment, including an attached affidavit by Kevin Vincent, was hand delivered to Hebert’s counsel four days prior to January 27, 2003. After listening to argument, the trial court held that the supplement was timely filed pursuant to La.Code Civ.P. art. 966, accepting the testimony of Bill-Wood’s counsel that the supplement was hand-delivered on January 17, 2003. It further stated that Bill-Wood complied with service upon Hebert as required by La.Code Civ.P. arts. 966 and 1313. We agree with the trial court.

A motion for summary judgment requires an appearance or an answer and, thus, mandates service by a sheriff. Clark v. Favalora, 98-1802 (La.App. 1 Cir. 9/24/99), 745 So.2d 666. However, in this instance, the hearing date was already set by the original motion for summary judgment, of which Hebert was aware. Rather than continue the hearing and reschedule it to conform with La.Code Civ.P. art. 966, the trial court overruled Hebert’s objection and admitted the supplement and its attached affidavit. Moreover, as pointed out by Bill-Wood, Vincent’s affidavit was filed in response to Hebert’s opposition to its motion and La.Code Civ.P. art. 966(B) is silent as to reply memoranda or exhibits. Thus, we find that the trial court did not err in finding that Bill-Woods second supplement to its original motion for summary judgment was properly served and in allowing both of the questioned affidavits into evidence. We agree with this finding since it furthers the goals of judicial efficiency and economy.

Next, Hebert argues that the trial court erred in finding that the hole at issue was not unreasonably dangerous and that Bill-Wood had no notice or knowledge of its condition. He claims that the trial court relied on Plumley’s affidavit, which he alleges contains conclusions of law pertaining to subjective facts. The jurisprudence pertaining to Hebert’s claim was laid out by this court in LeJeune v. Riviana Foods, 97-1091, pp. 2-4 (La.App. 3 Cir. 2/18/98), 707 So.2d 1038, 1039-40, writ denied, 98-0749 (La.5/1/98), 718 So.2d 418:

When an individual is injured as a result of an unreasonably dangerous condition existing on a landowner’s property, he can recover damages relying on either La.Civ.Code art. 2315, which is the basis of general negligence liability, or La.Civ.Code art. 2317, which provides for a strict liability theory of recovery. Owners and occupiers of land have a duty to discover any unreasonably dangerous conditions existing on their premises and to either correct those conditions or warn victims of their existence. Silliker v. St. Landry Parish Police Jury, 520 So.2d 880 (La.App. 3 Cir.1987).
|7The difference in proof between a negligence claim based on La.Civ.Code art. 2315 and a strict liability claim resting on La.Civ.Code art. 2317 is that Article 2315 requires that plaintiff show the owner, or person in custody of the premises, either knew or should have known of the risk, whereas Article 2317 relieves plaintiff from having to prove defendant’s scienter. Finley v. State Farm Insurance Co., 598 So.2d 537 (La. App. 1 Cir.1992). However, under either liability theory, plaintiff first has the burden of proving: (1) the property which caused the damage was in the custody of the defendant; (2) the property was defective because it had a condition that created an unreasonable risk of harm to persons on the premises; and, (3) the defect in the property was a cause-in-fact of the resulting injury. Morell v. City of Breaux Bridge, 94-1378 (La.App. 3 Cir. 5/31/95), 660 So.2d 882.
Property owners are not insurers of the safety of visitors, but only owe a duty to keep their premises in a safe condition for use in a manner consistent with the purposes for which the premises are intended. David v. Reon, 520 So.2d 820 (La.App. 3 Cir.1987), writ denied, 522 So.2d 564 (La.1988). Furthermore, not every minor imperfection or irregularity will give rise to strict liability. The defect must be of such a nature to constitute a dangerous condition, which would reasonably be expected to cause injury to a prudent person using ordinary care under the circumstances. Koppie v. Commercial Union Insurance Company, 478 So.2d 179 (La.App. 3 Cir.), writ denied, 479 So.2d 922 (La. 1985). In other words, the owner of the premises cannot be held responsible for any risk posed by his property, only those presenting an unreasonable risk of harm to others. David, 520 So.2d 820. In determining whether a given condition is unreasonably dangerous, the degree to which the danger may be observed by a potential victim who may then provide self-protection is a major factor. Silliker, 520 So.2d 880.

In support of its motion, Bill-Wood introduced the affidavit of Plumley, the president of Billeaud Planters, Inc. In his affidavit, he stated that he is personally familiar with the grounds and building located at 1405 W. Pinhook Road, that Billeaud Planters, Inc. had no knowledge of any holes in the grassy area of 1405 W. Pin-hook Road, and that no one had ever informed it of any holes at that location either before or after May 9, 2001. It further introduced the deposition of Hebert, in which he testified that he never saw the hole prior to falling, that he did not notice it afterwards, and that the hole was deep enough to cover his ankle. He further stated, |s“[J]ust by looking at the grassy area, you can’t see a hole. It’s fully covered with grass.”

In opposition to the motion, Hebert introduced Vincent’s affidavit, in which he stated that he was hired by Plumley in September 1994, to provide lawn maintenance for 1405 W. Pinhook Road, which he provided continuously through May 6, 2001. He further stated that, during his maintenance of the grounds, he was aware of the hole in the grassy area between the parking lot of that location and that of Chateau Lafayette Apartments, and he positively identified the hole as that causing Hebert’s injury. Hebert further introduced Bill-Wood’s answer to his second set of interrogatories, which stated that the grounds of 1405 W. Pinhook Road were mowed by Vincent’s Lawn Care on May 6, 2001, three days prior to his accident.

In response to Hebert’s opposition, Bill-Wood also introduced an affidavit by Vincent, in which he stated that he was hired as an independent contractor by Billeaud Planters, Inc., that he was never employed directly or indirectly by it, and, that, although he was aware of the grassy hole, neither he nor any of his employees reported the hole to Billeaud Planters, Inc.

In rendering its oral reasons, the trial court stated:

Concerning, first of all, the issue of whether or not the hole was an unreasonably dangerous condition, looking at the photographs which are introduced into evidence, the court finds that hole to be one that is very common in any grassy area in southwest Louisiana, not a very deep hole or a very large hole or a very dangerous hole and the court finds the hole not to be unreasonably dangerous. That’s the first point, but in addition, the court finds that the defendant had no notice of the condition and for those reasons and also reasons cited by the court in Alexander versus City of Lafayette [584 So.2d 327 (La.App. 3 Cir. 1991)] which would only be repetitive for me to go through — that portion has just been cited by defendant — that, of course, unless it’s a sidewalk, everything can’t be in perfect tabletop condition, and this is lathe life that we have and that we’re leading, so it doesn’t make it unreasonably dangerous if it’s not, and then you have the additional situation of no notice or knowledge by the defendants. So the court will grant the motion for summary judgment.

After reviewing the record, we find that the trial court erred in granting summary judgment in favor of Bill-Wood. In Brittain v. Family Care Services, Inc., 34,787, p. 4 (La.App. 2 Cir. 6/20/01), 801 So.2d 457, 460, the court stated:

Even though the summary judgment procedure is favored, it is not a substitute for trial and is often inappropriate for judicial determination of subjective facts such as motive, intent, good faith or knowledge. Oaks v. Dupuy, 32,070 (La.App.2d Cir.8/18/99), 740 So.2d 263 (citing Greer v. Dresser Industries, Inc., 98-129 (La.App. 3d Cir.7/1/98), 715 So.2d 1235). One reason is that these subjective facts call for credibility evaluations and the weighing of testimony and summary judgment is inappropriate for such determinations. Id. Moreover, it is not a function of the trial court on a motion for summary judgment to determine or even inquire into the merits of issues raised or to weigh conflicting evidence on the existence of material facts. See, Harrison v. Parker, 31,844 (La.App.2d Cir.5/5/99), 737 So.2d 160. When affidavits and exhibits present a choice of reasonable inferences, such inferences must be viewed in the light most favorable to the party opposing the motion for summary judgment. Tucker v. Northeast Louisiana Tree Service, 27,-768 (La.App.2d Cir.12/6/95), 665 So.2d 672; Schroeder v. Bd. of Supervisors of Louisiana State Univ., 591 So.2d 342 (La.1991).

See also Greer v. Dresser Indus., Inc., 98-129 (La.App. 3 Cir. 7/1/98), 715 So.2d 1235, writ denied, 98-2094 (La.11/6/98), 728 So.2d 867. In this instance, the trial court based its ruling, in part, on a finding that Bill-Wood did not have knowledge or notice of the existence of the hole. This a judicial determination of a subjective fact, for which jurisprudence has found summary judgment inappropriate.

The trial court further found that the hole did not present an unreasonably dangerous condition, for which finding it relied on Alexander v. City of Lafayette, 584 So.2d 327 (La.App. 3 Cir.1991). In Alexander, the plaintiff tripped over an exposed tree root, which the court held, by itself, did not create an | ^unreasonable risk of harm. However, we find this case distinguishable from the present case, as the hole at issue was not easily observable due to the grass growing inside it, as illustrated by the photographs. As stated above, “the degree to which the danger may be observed by a potential victim who may then provide self-protection is a major factor,” in determining whether a condition is considered unreasonably dangerous. LeJeune, 707 So.2d at 1038 (citing Silliker v. St. Landry Parish Police Jury, 520 So.2d 880 (La.App. 3 Cir.1987)).

Accordingly, we find that the trial court erred in granting summary judgment in favor of Bill-Wood. The judgment of the trial court is vacated and the matter is remanded for further proceedings.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is vacated and the matter is remanded for further proceedings. The costs of this appeal are cast twenty-five percent to the plaintiff-appellant, Howard Hebert, and seventy-five percent to the defendants-appellees, Bill-Wood, Limited Liability Company, d/b/a Billeaud Planters, Inc., and its insurer, Scottsdale Insurance Company.

JUDGMENT VACATED AND REMANDED.


author: JjPETERS, J. | WOODARD, J.,

text:
    Clementine FAIRROW, et al. v. James E. MARVES, et al.
    No. 03-169.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.

      Bradley Drell, Michael E. Trachtenberg, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Plaintiffs/Appellees, Clementine Fairrow, Eloise Ann Fairrow Parks.
    Edward A. Kaplan, Alexandria, LA, for Defendants/Appellants, James E. Marves, Succession of James Marves.
    Court composed of BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   JjPETERS, J.

This litigation involves the ownership of approximately eleven and one-half acres of immovable property located in Rapides Parish, Louisiana, and the basic facts are not in dispute. On February 9, 1945, Henry Fairrow purchased the property from Charles M. Roberts. The act of transfer stated that Mr. Fairrow was “married to and residing in community with Laura King.” This statement was not true. Although she was living with Mr. Fairrow on February 9, 1945, Ms. King was still married to Horace Marbs, whom she had married on June 21, 1924. In fact, Horace Marbs and Ms. King were not divorced until May 24,1956.

On February 7, 1956, Mr. Marbs filed a petition for divorce in Rapides Parish, asserting that he and Ms. King had lived separate and apart since February of 1929. He listed the children born of the marriage as James Marbs (born in 1925), Horace Marbs, Jr. (born in 1927), and Rosa Mae Marbs (born in 1929). Ms. King was personally served with the petition and citation on February 10, 1956. When she failed to respond to the petition, Mr. Marbs caused a preliminary default to be entered. He confirmed that preliminary-default on May 24, 1956, and obtained a judgment of divorce against his former wife.

Sometime after the purchase of the property at issue, Mr. Fairrow and Ms. King dissolved their relationship. In 1963, Mr. Fairrow married Ora Dee Fairrow, and that marriage produced three children: Clementine Fairrow, Angela Fair-row, and Eloise Ann Fairrow Parks.

| aHenry Fairrow died in 1968. On June 15, 1999, Clementine Fairrow and Eloise Ann Fairrow Parks obtained a judgment of possession in their father’s succession recognizing them as his sole heirs and placing them in possession of the immovable property at issue in this litigation. They instituted the instant suit on July 28, 1999, asserting that the reference to Ms. King as their father’s wife creates a cloud on the title to the immovable property at issue. Thus, they sought a declaratory judgment to the effect that Ms. King’s heirs have no interest in the property. They named as defendants: (1) James E. Marves, Rosa Mae Marves’ son; (2) the absent and unknown heirs of Rosa Mae Marves; (3) the absent and unknown heirs of Freddie Marves, now deceased; and (4) James Marves.

James E. Marves and James Marves personally answered the petition. In their answer, they each identified the heirs of Horace F. “Freddie” Marves by name. Despite this identification, the curator appointed to represent his heirs answered the petition on behalf of “the absentee defendant, Freddie Marves.” The record contains no responsive pleadings on behalf of the absent and unknown heirs of Rosa Mae Marves.

While numerous other legal steps were taken in the prosecution and defense of this matter, the appeals now before us arise from the trial court’s grant of summary judgments in favor of Ms. Fairrow and Ms. Parks, recognizing them as the sole owners of the immovable property at issue.

[sThe original motion for summary judgment filed by Ms. Fairrow and Ms. Parks sought relief against all of the defendants. However, when the motion first came to trial on August 5, 2002, the parties informed the trial court that James Marves had recently died and that no succession representative had been appointed for his estate. The trial court then severed the claim for relief against James Marves and, after considering the record and hearing the arguments of counsel, rendered judgment in favor of Ms. Fairrow and Ms. Parks and against all of the other defendants. The judgment signed by the trial court on September 13, 2002, states in part that “James E. Marves, the heirs of Rosa Mae Marves,[] and the heirs of Freddie Marvesc[] are hereby declared to have no interest in” the property at issue. James E. Marves timely appealed this judgment.

On November 4, 2002, Ms. Fairrow and Ms. Parks filed a second motion for summary judgment, naming the provisional administrator of the succession of James Marves as the party at interest in the motion. By court order signed February 25, 2003, James E. Marves, Edna Marves, Eddie Ray Marves, Jerrlean Marves, and Sims Marves were substituted as co-administrators in place of the original provisional administrator, Susan Fiser. After a February 24, 2003 trial of this motion for summary judgment, the trial court rendered judgment in favor of Ms. Fairrow and Ms. Parks and against the co-administrators, declaring that James Marves’ estate had no interest in the immovable property at issue. The trial court signed a judgment to this effect on March 6, 2003, and the co-administrators timely perfected this appeal. We 14have consolidated these appeals for consideration by this court.

OPINION

Summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). The movant bears the burden of proof. La.Code Civ.P. art 966(C)(2). “However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” Id.

Appeal of James E. Marves

The evidence available to the trial court at the August 5, 2002 hearing included the February 9,1945 credit sale deed in which Charles M. Roberts transferred the property at issue to “HENRY FAIRROW, married to and residing in community with Laura King.” Henry Fairrow signed the deed as vendee, thereby acknowledging the credit provisions contained therein. Laura King did not sign the deed and appeared nowhere on the deed as a co-vendee. The trial court also had before it the uncontroverted evidence that Ms. King was married to another man at the time Mr. Fairrow purchased the property.

Is As a matter of law, “[a] married person may not contract another marriage.” La. Civ.Code art. 88. Further, “[t]he legal regime of community of acquets and gains applies to spouses domiciled in this state.... ” La.Civ.Code art. 2334 (emphasis added). Thus, through the undisputed evidence, Ms. Fairrow and Ms. Parks established that their father was the sole purchaser of the property at issue and that he was not married to Ms. King at the time of the purchase. Therefore, based on those undisputed facts, as a matter of law Ms. Fairrow and Ms. Parks alone were entitled to be recognized as owners of the property. Accordingly, the trial court did not err in granting the September 13, 2002 summary judgment in favor of Ms. Fair-row and Ms. Parks.

Appeal of the Co-Administrators of the Succession of James Marves

Nevertheless, at the February 24, 2003 hearing, the co-administrators sought to create a material issue of fact so as to preclude summary judgment through the introduction of the affidavits of Joseph W. Marves, Bobbie Nell Phillips, and Boyd Williams. Specifically, in his affidavit, Joseph W. Marves asserted that he is a lifelong resident of Rapides Parish, that he knew Henry Fairrow and Laura King, that they lived together until her death and held themselves out as husband and wife, and that Ms. King worked the property by growing crops during the time she resided with Mr. Fairrow. Bobbie Nell Phillips’ affidavit added the assertion that Ms. King “worked during [the period she resided with Mr. Fairrow] outside of the home for her own income including employment at the Camp Clairborne [sic] Army Camp.” Mr. Williams’ affidavit included the following paragraphs:

3. I knew Laura King personally, I brought her and her children to work every night and picked them up every morning, in 1941. They were working at Army Camp Claiborne, located between what is now Forest Hill & Bringhurst.
Ir,4. I know that Laura King was living with Henry Fairrow whom [sic] was never employed at the time. The property they brought [sic] was Homestead exempt. I know that Laura King would go each year to sign the paper work. When her grandson James Marves became old enough, she would send him to the clerk[’]s office to sign the necessary paper work for her.
5. I know that the property on Robinson Road was purchased in 1945 which was during a time when only Ms. Laura King and her children, James Marves, Freddie Marves, and Rosie [sic] Mae Marves were working. Henry Fairrow never worked until 1949 or 1950 when he went to work for the Railroad.

Although these affidavits were submitted at only the February 24, 2003 hearing, it appears that both appeals currently before us rely on the assertions in the affidavits as establishing a genuine issue of material fact as to whether Ms. King made a contribution to the acquisition of the property through her own capital and industry. In support, the defendants cite jurisprudence to the effect that, as a matter of law, concubines are not prevented from asserting certain property claims against their paramours. See Heatwole v. Stansbury, 212 La. 685, 690, 33 So.2d 196, 197 (1947) (holding that “concubines, although under certain disabilities, in the interest of good morals, are not prevented from asserting claims arising out of business transactions between themselves, independent of the concubinage”); Lagarde v. Dabon, 155 La. 25, 29, 98 So. 744, 745-46 (1923) (holding that “if a man and woman contract to carry on business together, their subsequent cohabitation does not destroy or lessen any right which she may have upon him for a remuneration for her services”); Succession of LeBlanc, 577 So.2d 105, 108 (La.App. 4 Cir.1991) (holding that “public policy does not prohibit a paramour and concubine from acquiring real property as co-vendees” but that “the acquisition must be independent of the Rconcubinage; that is, the concubine must show that her contribution to the acquisition was obtained through her own capital and industry”); LeDoux v. LeDoux, 534 So.2d 103, 106 (La.App. 3 Cir.1988) (holding that “there is no public policy or legal impediment to a paramour and a concubine acquiring real property as co-vendees, and that when the concubine’s name appears on the deed as a co-vendee there is a presumption that she is the owner of an undivided half interest”); Broadway v. Broadway, 417 So.2d 1272, 1276 (La.App. 1 Cir.) (holding that “if the concubine can furnish strict and conclusive proof that her capital and industry, obtained independent of the concubinage, contributed a full share to the acquisition of the subject property, then equity dictates she be declared a one-half owner”), writ denied, 422 So.2d 162 (La.1982).

“Material facts are those that determine the outcome of the legal dispute. In deciding whether certain facts are material to an action, we look to the applicable substantive law.” Cobb v. Delta Exps., Inc., 03-0033, p. 4 (La.App. 3 Cir. 6/4/03), 847 So.2d 739, 742 (citation omitted), writs denied, 03-1906, 03-1936 (La.10/31/03), 857 So.2d 483, 485. As set forth above, Ms. King did not sign the deed and nowhere on the deed did she appear as co-vendee; thus, there is no presumption that she owned an undivided one-half interest in the property. The deed itself shows that Mr. Fairrow acquired the property for $1,500.00, $1,100.00 of which was paid “cash in hand” with the remaining $400.00 to be paid in one installment due within six months of the date of the deed. Importantly, there is no evidence to show that Ms. King actually contributed to the acquisition of the property at issue through her own capital and industry. The defendants’ evidence merely supports that Ms. King worked outside of the home and earned income at the time of the purchase of the property and that |sMr. Fairrow was not working at the time of the purchase of the property. These premises, even if accepted as true, do not compel or even permit for that matter, without more, the conclusion that Ms. King had to have contributed to the acquisition of the property because she was the only one working at the time of the acquisition. Mr. Fairrow might have had other financial sources such as savings, investments, disability benefits, an inheritance, etc. One is left only to speculate. The fact that Ms. King worked outside of the home and earned income at the time of the purchase and the fact that Mr. Fairrow was not working at that time are simply not material facts because they are not determinative of the outcome of this dispute. Without more, these affidavits do not create a genuine issue of material fact so as to preclude summary judgment in favor of Ms. Fairrow and Ms. Parks. Thus, we find no error in the trial court’s March 6, 2003 grant of their motion for summary judgment.

DISPOSITION

For the foregoing reasons, we affirm the judgments below at the appellants’ cost.

AFFIRMED.

WOODARD, J., dissents and assigns written reasons.

| WOODARD, J.,

dissenting.

I respectfully dissent from the majority’s opinion.

Ms. King’s heirs provided evidence, the inferences of which indicate that, more likely than not, it was her separate funds, not his, which were responsible for the property’s purchase. As our supreme court has instructed, “[Fjactual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion [for summary judgment], and all doubt must be resolved in the opponent’s favor.” (Emphasis added.) Thus, the inferences from Ms. King’s evidence should preclude summary judgment for Mr. Fairrow’s heirs. However, instead, the majority opinion ignores those inferences and affirms the judgment, and does so, solely, on the basis of a rebutted presumption; namely, because the two were not married, after all, Mr. Fairrow’s signature as vendee on the deed in 1945, leads to the presumption that he was the property’s only owner. They stop here. IgHowever, the material inferences from Ms. King’s evidence adequately rebuts this presumption.

Most telling was Ms. King’s direct evidence, which Mr. Williams’ affidavit provided, that he had personal knowledge that Laura King was the one who went to sign the paperwork on the property (in question) each year, until her grandson, James E. Marves became old enough, at which time, he began signing for her.

Also important is the direct evidence that $1,100.00 of the $1,500.00 purchase price was paid in cash, $400.00 being financed, and that, only, she and her children, not Mr. Fairrow, were employed at the time. Mr. Joseph W. Marves’ stated in his deposition that he had personal knowledge that she used to work the fields on the subject property. Ms. Bobbie Nell Phillips stated that she had personal knowledge that Laura King generated income by working outside the home, and that Camp Claiborne Army Camp employed her. Finally, Mr. Boyd Williams stated that, in 1941, he transported her and her children to and from Army Camp Claiborne, where they worked. Furthermore, Mr. Williams noted that he knew that the property was purchased in 1945 during a time when only Laura King and her children were working and that Henry Fairrow did not work until 1949 or 1950 when he began working for the railroad.

On the other hand, Mr. Fairrow’s heirs rested, completely, on the one presumption in the act of sale and mortgage and their evidence of a legal impediment to Mr. Fa-irrow’s and Ms. King’s marriage. His heirs presented no countervailing evidence of his contributions towards the purchase price nor did they satisfy their shifted burden to provide any evidence that he had the income means from a source, other than employment, to make contributions.

Furthermore, we do not know from the record whether he knew that there was a legal impediment to their “marriage.” All we know is that the two were living together and holding themselves out as husband and wife. Both were involved in cohabitation. Thus, we should not “punish” Ms. King’s heirs and reward Mr. Fairrow’s by denying her rightful and, apparently, well earned interest in this property because she “lived in sin,” especially when we have no reason to believe that his behavior was no different from hers.

| «Indeed, the most reasonable factual inferences to draw from all of the evidence in this record is that Mr. Fairrow, not Ms. King, is the one who obtained an interest in the property because of the concubinage — that it was he who enjoyed the fruits of Ms. King’s and her children’s labor — and that it was her separate funds which actually purchased the property.

Additionally, his recital of marriage in the deed, while incorrect, is useful for illuminating his intentions concerning the property. The deed is a contract. The main goal in contract interpretation is to determine the intent of the parties. In 1945, when the purchase of this property was made, there were legal and practical considerations which weighed against a “wife” signing a deed as co-vendee and would explain the instant situation. For example, the recital of marriage in the deed gave rise to a presumption that Ms. King owned a one-half undivided interest in the property, even if she did not sign it.

Additionally, for Ms. King to have signed the document as a co-vendee would have been pointless, as it would have given her no additional rights over the property. Even purchasing the property in her own name, instead of in Mr. Fan-row’s, would have given her no additional rights in the property. Although, the Plaintiffs have proved that the couple was not, in fact, legally married, this does not eradicate the parties’ intent, regarding ownership of this immovable property, which is expressly reflected in the act of sale. The two were holding themselves out in the community as a married couple who, obviously, wanted to share rights to this property.

To understand this couple’s dilemma and thinking in 1945, we must understand the legal backdrop and societal mentality of the time. At that time, La.Civ.Code art. 2404 established the presumption that property acquired in the name of only one of the parties during the marriage was community property; the husband was considered to be the “Head and Master” of the community, having the exclusive right to manage, alienate, and encumber the property regardless of whether his name, her name, or both |4names appeared in the act of sale. Further, given Mr. Fairrow’s declaration of marriage, if he had intended to own the property as his separate property, he was required to make a “double declaration,” stating that he intended to own the property as his separate property and that he had acquired it with his separate funds. Thus, his failure to do so gives rise to a presumption that he did not intend for the property to be his separate property and that he did not use his separate funds to purchase it. Indeed, the evidence, which Ms. Kings’ heirs provided, also, factually supports these conclusions.

Further, given the prevailing law and societal notions at that point in history, we must acknowledge the practical reasons that may have prevented Ms. King from purchasing the property in her own name. If she had purchased the property in her own name, it would not have been sufficient to put third parties on notice, without further investigation, that both of them owned the property; whereas, Mr. Fair-row’s purchase of the property, absent a double declaration, automatically, put third parties on notice that they both had an ownership interest.

Also, the purchase involved an extension of credit for $400.00. If Ms. King’s name had been listed as vendee, a third party, believing that she was married to Mr. Fa-irrow, would not likely have extended this credit to her, knowing that Mr. Fairrow had the power to invalidate the sale; whereas, that would not have been a concern if |fiMr. Fairrow was listed as the vendee because Ms. King had no power to invalidate the sale.

Thus, it appears from the evidence that the simple fact that Mr. Fan-row's name, alone, appears as vendee on the deed is more likely a result of the prevailing mentality in 1945 associated with the repealed “Head and Master” policy than it is a foregone conclusion that he, alone, paid for and owned the property.

I submit that to discover the true ownership of this property and to do justice, we must look deeper than to the rebutted presumption, the majority relies on, and that inquiry requires a trial, rendering summary judgment inappropriate.

      . The record reflects that James Marbs and James Marves are one and the same person, as are Horace Marbs, Jr., and Horace F. "Freddie” Marves and Rosa Mae Marbs and Rosa Mae Marves. It appears that at some point after Horace Marbs and Laura King separated, the spelling of the surname of the three children changed from "Marbs” to "Marves.” The record contains no explanation for this change.

      . Angela Fairrow apparently died at a young age. However, the record establishes only that at the time of her death, she left neither child nor spouse.

      . While the record does not establish the dates of their deaths, there is no dispute that both Laura King and Ora Dee Fairrow are deceased.

      . The initial pleadings filed by James E. Marves and James Marves assert that, at the time the litigation giving rise to this appeal was filed, Laura King, Rosa Mae Marves and Horace F. "Freddie” Marves had died. Rosa Mae Marves was survived by her son, James E. Marves. Horace F. "Freddie” Marves was survived by his children, Horace F. Marves, Jr., Sandra Marves, Cheryl Marves, and Lynn Marves.

      .This reference is made despite the fact that the record clearly establishes that Rosa Mae Marves’ only heir is James E. Marves.

      . The curator ad hoc who filed the original answer on behalf of Freddie Marves did not appear at the trial on the motion. However, subsequent to the trial, the curator ad hoc filed an answer to the motion for summary judgment wherein he voiced no opposition to the motion and agreed that Ms. Fairrow and Ms. Parks were entitled to judgment as a matter of law.

      . Because we find that the evidence presented at the February 24, 2003 hearing was insufficient to create a genuine issue of materia] fact, we need not address whether the appeal of James E. Marves may properly rely on this evidence.

      . Willis v. Medders, 00-2507 (La. 12/8/00), 775 So.2d 1049.

      . La.Code Civ.P. art. 966(C)(2).

      . La.Civ.Code art.2045.

      . See La.Civ.Code art. 2404 (1870), repealed by Act 627 (1978).

      . See Id.; See also W.K. Investment Co. v. Tyler, 303 So.2d 777 (La.App. 1 Cir. 1974), writ denied, 305 So.2d 543 (La.1975).

      . La.Civ.Code art. 2404 (1870), repealed by Act 627 (1978).

      . Id.

      . La.Civ.Code art. 2334 (1870), repealed by Act 627 (1978).

      .Nathan, Notes-Community Property, Sale and Resale of Immovable-Necessity of Double Declaration, 34 Tul.L.Rev. 385 (1960). See also Smith v. Smith, 230 La. 509, 89 So.2d 55 (1956); Succession of Hemenway, 228 La. 572, 83 So.2d 377 (1955); Borne v. Calmes, 284 So.2d 815 (La.App. 4 Cir.1973); Succession of Pittman, 282 So.2d 799 (La.App. 1 Cir.1973); Boulet v. Fruge, 221 So.2d 602 (La.App. 3 Cir. 1969); LaFleur v. Guillory, 181 So.2d 323 (La.App. 3 Cir. 1965).

      . See e.g. Sharp v. Zeller, 110 La. 61, 34 So. 129 (1902); Succession of Burke, 107 La. 82, 31 So. 391 (1902); Hero v. Block, 44 La.Ann. 1032, 11 So. 821 (1892); Huie, Separate Ownership of Specific Property, 26 Tul.L.Rev. 427 (1952); Wilcox, Civil Law-Comments-The Marital Status Of Property Purchased With Separate Funds, 9 Tul.L.Rev. 107.

      . La.Civ.Code art. 2404 (1870), repealed by Act 627 (1978). See also Wilcox, supra, n. 26.


author: PETERS, J.

text:
    Clementine FAIRROW, et al. v. James E. MARVES, et al.
    No. 03-837.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.
    Bradley Drell, Michael E. Trachtenberg, Gold, Weems, Bruser, Sues & Rundell, Alexandria, LA, for Plaintiffs/Appellees: Clementine Fairrow, Eloise Ann Fairrow Parks.
    Edward A. Kaplan, Alexandria, LA, for Defendants/Appellants: James E. Marves, Succession of James Marves.
    Court composed of BILLIE COLOMBARO WOODARD, JIMMIE C. PETERS, and MICHAEL G. SULLIVAN, Judges.
   PETERS, J.

For the reasons set forth in Fairrow v. Marves, 03-169 (La.App. 3 Cir.12/23/03), 862 So.2d 1234, 2003 WL 22999251 (2003) we affirm the judgments below at the appellants’ cost.

AFFIRMED.

WOODARD, J., dissents and assigns written reasons.


author: liWOODARD, Judge.

text:
    In re Cynthia WILEY, Individually and on Behalf of Lillie M. Wiley.
    No. 03-793.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.

      George Arthur Flournoy, Flournoy, Doggett & Losavio, Alexandria, LA, for Plaintiff/Appellant, Cynthia Wiley, individually and on behalf of Lillie M. Wiley.
    Marc W. Judice, Judice & Adley, Lafayette, LA, for Defendant/Appellee, Dr. Paul E. Miller.
    Court composed of BILLIE COLOMBARO WOODARD, GLENN B. GREMILLION, and ELIZABETH A. PICKETT, Judges.
   liWOODARD, Judge.

The Plaintiff, Cynthia Wiley, appeals the dismissal of her medical malpractice claim. The trial court granted Dr. Paul Miller’s motion to dismiss with prejudice when Ms. Wiley failed to respond timely to its order, compelling her to answer his interrogatories and requests for production. We reverse and remand.

* x X

Lillie M. Wiley, a sixty-seven-year-old diabetic and double amputee, was a patient of Dr. Miller, a Nephrologist, who supervised her dialysis treatment. Over time, her condition progressively deteriorated until she passed away.

Cynthia Wiley, Lillie’s daughter, alleges that Dr. Miller gave her mother too much dialysis fluid, causing a dangerously low drop in her blood pressure. Immediately afterwards, she was admitted into Opelou-sas General Hospital (OGH). When she was admitted, Ms. Wiley asserts that her mother had no bedsores, but sometime during her stay, they formed “on her buttocks and her back and on both of the stumps of her legs.” OGH’s staff treated the sores and, eventually, released her from OGH’s care. Not long after her release, Lillie was admitted into Doctor’s Hospital of Opelousas (DHO). Sometime later, after her discharge from DHO, she died, but the length of time between her discharge and her eventual death is unclear from the record.

In May of 2002, Ms. Wiley, individually and on behalf of her mother, filed a claim, with the Louisiana Patients’ Compensation Fund, naming Dr. Miller and others as Defendants.

On June 20, 2002, Dr. Miller’s counsel, Marc Judice, sent interrogatories and requests for production to George Flournoy, who was Ms. Wiley’s counsel at the time.

On June 24, 2002, Mr. Flournoy received Dr. Miller’s discovery requests, but he did not respond.

On July 9, 2002, Mr. Judice sent a follow-up letter, asking him to respond.

On July 19, 2002, Mr. Judice propounded a second set of interrogatories and requests for production on him.

hOn July 22, 2002, Mr. Flournoy received the discovery requests. That same day, Mr. Judice forwarded correspondence to him, requesting answers to all outstanding discovery.

On August 1, 2002, Mr. Judice sent another letter, asking him to contact the Defense. It stated:

Please contact [us] on or before Monday, 12 August 2002 to advise when we can expect full and complete discovery and signed medical authorizations. If we do not hear from you, we will he forced to file a Motion to Compel. Thank you for your attention to this matter.

(Italics added.)

On September 16, 2002, due to Plaintiffs failure to respond to any of his requests, Mr. Judice filed a “Motion to Compel Full and Complete Discovery, In the Alternative, Motion to Dismiss” which was set for hearing on October 21, 2002.

On October 18, 2002, Mr. Judice filed a motion to continue the hearing when he learned of Mr. Flournoy’s intent to withdraw as enrolled counsel for Ms. Wiley. Afterwards, with the understanding that he would later file a motion to withdraw, the trial court re-fixed the hearing date for December 6, 2002. However, the record does not contain a motion to withdraw.

On November 9, 2002, Ms. Wiley received correspondence from Mr. Judice, who personally served her with a courtesy copy of the discovery requests and motion to compel. In his correspondence, he informed her that: “Mr. George Flournoy has advised he no longer represents you.... If you intend to proceed with this matter, we request (1) full and complete answers to the discovery and (2) your cooperation in selecting an attorney to serve as attorney chairman of the Medical Review Panel.”

Again, the trial court changed the date of the hearing to January 3, 2003, after an attorney phoned to request additional time to review the case and possibly enroll as counsel of record for Ms. Wiley. Nevertheless, no new counsel enrolled before the hearing. Since Mr. Flournoy never formally withdrew, he was still enrolled as her counsel of record at this time.

On January 3, 2003, Ms. Wiley did not appear for the hearing on Dr. Miller’s motion to compel even though the trial court, previously, had her personally served Dwith its order, informing her that her appearance was mandatory. By failing to appear, she persuaded the trial court to grant the motion, which resulted in her being ordered to provide full and complete answers to all outstanding discovery within fifteen days of the date of service of its judgment. It, also, notified her that the dismissal of her claim would ensue from her failure to respond within the time allotted.

On January 23, 2003, again, the trial court served its judgment on Ms. Wiley. Yet, she remained unresponsive.

On February 10, 2003, Dr. Miller filed a “Motion to Dismiss with Prejudice” that was set for hearing on February 28, 2003.

On February 27, 2003, Mr. Flournoy filed a motion to re-enroll as Ms. Wiley’s counsel of record and a motion to continue. The trial court granted both motions and moved the hearing date to March 28, 2003.

On March 27, 2003, one day before the hearing on Dr. Miller’s motion to dismiss, Mr. Judice received Plaintiffs answers to interrogatories and requests for production sent by Mr. Flournoy.

Nonetheless, on April 23, 2003, the trial court rendered a judgment, dismissing with prejudice Ms. Wiley’s claim against Dr. Miller.

On appeal, Plaintiff asserts that the trial court’s actions were clearly improper because the circumstances of this case do not justify the harsh remedy of dismissal.

In his brief, Dr. Miller’s counsel asks us to address an additional issue. Louisiana Code of Civil Procedure Article 2133 states that an appellee “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” if s/he desires to have the trial court’s judgment modified, revised, reversed, or if s/he demands damages against the appellant. As such, due to Dr. Miller’s counsel’s failure to file an answer to Ms. Wiley’s appeal, we cannot address this issue.

Photos of Lillie’s Injuries

Ms. Wiley’s counsel directs our attention to photos of Lillie’s bedsores, which he attached to his appellate brief. Under La.Code Civ.P. art. 2164, we are to render |4a judgment based, solely, upon the record on appeal. Therefore, since the trial court never entered these photos in evidence and, more importantly, given that they have nothing to do with the procedural issue before us, we cannot consider them, and we caution counsel to refrain from arguing, in his brief, that which is outside the record.

Sanction of Dismissal with Prejudice

Next, we determine whether the trial court’s dismissal of Ms. Wiley’s suit was appropriate for her failure to respond to its order to produce discovery.

A trial court can impose sanctions for a litigant’s failure to respond to discovery. Louisiana Code of Civil Procedure Article 1471 provides, in part:

If a party or an officer, director, or managing agent of a party or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
| cfn lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

(Emphasis added.) The trial court has much discretion when choosing the appropriate sanctions, under La.Code Civ.P. art. 1471, for a party’s failure to comply with a discovery order, and we will not reverse its choice absent a clear showing that it abused its discretion.

However, there is a difference between the sanctions available to the trial court when a party merely fails to comply •with discovery and those that are available to it when a party refuses to provide court ordered discovery. “Refusal to comply with court ordered discovery is a serious matter.” Therefore, the trial court must have severe sanctions available to it to deter litigants from scoffing at its discovery orders.

Our supreme court in Horton v. McCary, identified four factors we should consider when determining whether a trial court’s grant of dismissal was an abuse of its discretion:

(1) whether the violation was willful or resulted from an inability to comply;
(2) whether less drastic sanctions would be effective;
(3) whether the violations prejudiced the opposing party’s trial preparation; and

(4) whether the client participated in the violation, simply misunderstood a court order, or innocently hired a derelict attorney.

[BIn Allen v. Smith, the supreme court further confirmed that the dismissal of a complaint with prejudice is a drastic penalty. The trial court can utilize this sanction only in extreme circumstances since it involves a property right. Accordingly, it should be reserved for the most culpable conduct. As such, the trial court’s dismissal of a claim with prejudice is an abuse of discretion when the record and the evidence submitted does not establish that the failure was due to the willfulness, bad faith, or fault of the plaintiff, herself, as opposed to that of her counsel. Generally, dismissal is reserved for those cases where the client and the attorney are at fault.

On January 3, 2003, Ms. Wiley did not appear in court for a hearing on Dr. Miller’s motion to compel answers to discovery. The judgment, signed on January 17, 2003, warned her that if she did not provide full and complete answers to discovery within fifteen days of the date of service, the trial court would “dismiss her complaint with full prejudice upon motion by the Defendant.” On January 23, 2003, the trial court personally served its judgment on her. Nevertheless, she still failed to respond to Dr. Miller’s discovery requests within the time allotted. Thereafter, on February 10, 2003, Dr. Miller filed a motion to dismiss. The trial court granted the dismissal on April 23, 2003.

To determine whether its dismissal of her action was an abuse of its discretion, we must apply the four factors outlined in Horton, However, we have no sworn testimony in the record with which to assess any of these factors. Counsel’s argument, which is all that is before us, is not evidence.

[/Thus, we vacate the judgment of dismissal and remand this case for an eviden-tiary hearing in accordance with Horton and Allen, after which the trial court is to render any judgment it deems appropriate based on the evidence adduced.

CONCLUSION

We set aside the trial court’s judgment and remand this case for proceedings consistent with this opinion, including a hearing to determine who should pay reasonable expenses that resulted from the discovery failures, including attorney’s fees and the cost of all proceedings in this court and the trial court.

REVERSED AND REMANDED.

      . La. Rules of Prof'l Conduct Rule 1.16; La. Dist. Ct. Rules Rule 9.13.

      . La. D.O.T.D. v. Kan. City S. Ry. Co., 02-2349 (La.5/20/03), 846 So.2d 734.

      . See Leyva v. Laga, 549 So.2d 914 (La.App. 3 Cir.1989).

        . See La. D.O.T.D., 846 So.2d 734.

      . Rice v. Sagrera, 95-155 (La.App. 3 Cir. 5/31/95), 657 So.2d 419, writ denied, 95-1657 (La. 10/6/95) 661 So.2d 470; Castille v. Melancon, 410 So.2d 1224 (La.App. 3 Cir.1982).

      . Horton v. McCary, 93-2315 (La.4/11/94), 635 So.2d 199.

      . Rice, 657 So.2d at 421 (quoting Horton, 635 So.2d at 203).

      . Id.

      .635 So.2d 199.

      . Allen v. Smith, 390 So.2d 1300 (La.1980).

      . Horton, 635 So.2d 199.

      . Rice, 657 So.2d 419; Horton, 635 So.2d 199.

      . Allen, 390 So.2d 1300.

      . Horton, 635 So.2d 199.

      . Id.

      . Ledet v. Nat’l Car Rental Sys., 96-1270 (La.App. 3 Cir. 6/4/97), 694 So.2d 1236.

      . 635 So.2d 199.

      . 390 So.2d 1300.

        .See Garza v. Int'l Maint. Corp., 97-317 (La.App. 3 Cir. 10/29/97), 702 So.2d 1021. See also La.Code Civ.P. art. 1471.


author: J^PETERS, J.

text:
    GREY WOLF DRILLING COMPANY v. William L. ENDRIS, Director of Finance, For the Sales & Use Tax Department of the Vernon Parish School Board.
    No. CA 03-860.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 23, 2003.

      Stephen H. Myers, Lafayette, LA, for Plaintiff/Appellee: Grey Wolf Drilling Company.
    Robert R. Rainer, Frederick Mulhearn, Ranier, Anding & McLindon, Baton Rouge, LA, for Defendant/Appellant: The Vernon Parish School Board Through its Sales And Use Tax Department.
    Court composed of ULYSSES GENE THIBODEAUX, OSWALD A. DECUIR, and JIMMIE C. PETERS, Judges.
   J^PETERS, J.

This litigation arises from a suit by Grey Wolf Drilling Company, L.P. (Grey Wolf) to recover taxes paid under protest to the Vernon Parish School Board. In its suit, Grey Wolf named as defendant the Director of Finance for the Sales and Use Tax Department of the Vernon Parish School Board (School Board). The School Board appeals rulings of the trial court that had the effect of requiring it to return the taxes paid under protest. For the following reasons, we reverse the trial court judgments and remand the matter for further proceedings consistent with this opinion.

DISCUSSION OF THE RECORD

The Vernon Parish School Board, through its Sales and Use Tax Department, is the single collector for sales and use taxes levied by all political subdivisions within Vernon Parish, pursuant to La. Const, art. VII § 3(B). Based on the results of an audit conducted for the periods of January 1996 through December 1999, the School Board issued Grey Wolf a sales and use tax assessment totaling $117,040.44 on two drilling rigs, Rig 519 and Rig 521.

At the time the rigs were brought into Vernon Parish, they were owned by Grey Wolf Drilling Company, a Texas corporation. Grey Wolf Drilling Company brought Rig 519 into Vernon Parish on March 1, 1996, and removed it from the parish on July 3,1996. It brought Rig 521 into Vernon Parish on April 26, 1997, and removed it from the parish on June 26, 1997.

|2On June 27, 1997, Grey Wolf Drilling Company merged with Drillers, Inc., a wholly owned subsidiary of D I Industries, Inc. As a result of the merger, Grey Wolf Drilling Company ceased to exist. Drillers, Inc. then changed its name and operated under the name of Grey Wolf Holding Company. Thereafter, on October 10, 1997, D I Industries, Inc. changed its name to Grey Wolf, Inc. Thus, as of that date, Grey Wolf Holding Company became a wholly owned subsidiary of Grey Wolf, Inc. Sometime after this name change occurred, the parent company apparently formed Grey Wolf Drilling Company, L.P. which, according to the answers to the interrogatories found in the record, is the current owner of Rig 519 and Rig 521.

Both rigs were brought into Louisiana and used by Grey Wolf to explore for oil and gas. Relying on a Vernon Parish ordinance, the School Board sought to collect the use tax on the drilling rigs pursuant to a provision allowing a use tax to be imposed when things brought into the jurisdiction would have been subject to a sales tax when acquired by the owner and when no sales tax was paid. Grey Wolf paid the amount claimed by the School Board under protest and, on November 27, 2000, filed a petition against the School Board for redetermination of the taxes due and for refund of any overpayment.

The School Board reconvened against Grey Wolf, seeking the recovery of attorney fees arising from the litigation. Grey Wolf responded to the reconventional demand by filing a motion to strike the attorney fee request, asserting that because it paid the taxes under protest, an action for attorney fees did not exist. Grey Wolf later filed an exception of no cause of action, raising the same defense asserted in the motion to strike.

On July 9, 2001, Grey Wolf filed a motion for summary judgment asserting that | ^because it acquired the rigs as a result of a merger, sales or use taxes could not be imposed. Additionally, Grey Wolf asserted that, even assuming the merger did not preclude the imposition of sales or use taxes in all cases, the acquisition of the rigs in this instance constituted an isolated or occasional sale, upon which no tax should have been imposed.

The trial court considered the motion to strike and exception of no cause of action at a January 15, 2002 hearing and considered the motion for summary judgment on September 10, 2002. At the completion of each hearing, the trial court took the issues under advisement and, on February 25, 2003, filed its written reasons for judgment in the trial record granting the exception of no cause of action and the motion for summary judgment. The trial court signed a judgment on April 23, 2003, granting the exception of no cause of action and the motion for summary judgment, as well as the motion to strike. The School Board appealed both judgments. Grey Wolf answered the appeal, seeking an order requiring the School Board “to immediately return the taxes paid under protest, with all interest from the date of judicial demand.”

OPINION

The Louisiana Supreme Court discussed the law governing a motion for summary judgment in Babin v. Winn-Dixie, Louisiana, Inc., 00-0078, pp. 3, 4 (La.6/30/00), 764 So.2d 37, 39-40, as follows:

A motion for summary judgment will be granted “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.Code Civ. P. art. 966(B). This article was amended in 1996 to 14provide that “summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action ... The procedure is favored and shall be construed to accomplish these ends.” La.Code Civ. P. art. 966(A)(2)

Grey Wolf is both the plaintiff and the moving party in the motion for summary judgment. Thus, Grey Wolf has the burden of establishing that there is no material factual dispute and that it is entitled to judgment as a matter of law. “Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion.” Id.

In granting the summary judgment, the trial court recognized that the School Board had the right to impose a use tax on property brought into the parish from another state if the property was subject to a sales tax when acquired by the owner in the other state. The trial court also recognized that if a sales tax could not be imposed in the state where the property was acquired, a use tax could not have been imposed by the School Board when the property arrived in Vernon Parish.

As one basis for concluding that Grey Wolf was entitled to summary judgment, the trial court concluded that the construction of a drilling rig results from a contract to build and, therefore, was not a sale wherein a sales tax could be imposed. We find this conclusion to be erroneous as La.R.S. 47:301(12) specifically includes within the definition of a sale the fabrication of tangible property.

“Sale” means any transfer of title or possession, or both, exchange, barter, conditional or otherwise, in any manner or by any means whatsoever, of tangible personal property, for a consideration, and includes the fabrication of tangible personal property for' consumers who furnish, either directly or indirectly, the materials used in fabrication work, and the furnishing, preparing or serving, for a consideration, of any tangible personal property consumed on the premises of the person furnishing, preparing or serving such tangible personal property. A transaction whereby the possession of property is 1 ¡^transferred but the seller retains title as security for the payment of the price shall be deemed a sale.

(Emphasis added.)

The trial court also agreed with Grey Wolfs argument that the School Board was improperly attempting to tax a merger transaction, concluding that “a merger of companies does not precipitate a taxable event in the nature of a sale of assets owned by one of the merging companies.” In its brief to this court, Grey Wolf asserts that when business entities merge, the merger wipes out any use tax liability in connection, with property purchased prior to the merger. We disagree. Louisiana Revised Statutes 12:115(E) provides that the surviving, entity is responsible for the liabilities of all businesses involved in the merger.

The surviving or new business, nonprofit or foreign corporation shall be responsible for all of the liabilities and obligations of each of the business, nonprofit and foreign corporations merged or consolidated, in the same manner as if such surviving or new corporation had itself incurred such liabilities or obligations; but the liabilities of such constituent corporations or of their shareholders, members, directors or officers shall not be affected, nor shall the rights of the creditors thereof, or of any persons dealing with such corporations, be impaired by such merger or consolidation; and any claim existing, or action or proceeding pending, by or against any of such constituent corporations may be prosecuted to judgment as if such merger or consolidation had not taken place, or the surviving or new corporation may be proceeded against, or substituted, in place of such constituent corporation.

(Emphasis added.)

As previously stated, during the entire time the rigs remained in Vernon Parish, they were the property of Grey Wolf Drilling Company. The day after Grey Wolf Drilling Company removed Rig 521 from Vernon Parish, the merger process began when that company merged with Drillers, Inc. Sometime thereafter, the current owner of the rigs, Grey Wolf Drilling Company, L.P., emerged through the merger [ (¡process. We need not address whether the merger activity in this litigation precipitated a taxable event because the taxable event at issue had already occurred— the acquisition of the rigs by Grey Wolf Drilling Company. If, while the property of Grey Wolf Drilling Company, the rigs were subject to a use tax because of the Vernon Parish activity, the new rig owners, created through the merger process, would be responsible for that unpaid use tax as required by La.R.S. 12:115(E). Thus, the various mergers are not relevant to the primary question, which is whether the activity of Grey Wolf Drilling Company in bringing the rigs into Vernon Parish between March 1,1996, and June 26, 1997, constituted a taxable event.

Analysis of this issue requires an examination of the pertinent provisions of the applicable tax laws. In. this case, the School Board is authorized to levy sales and use tax pursuant to La. Const, art. 6 § 29(A), which provides in pertinent part:

Sales Tax Authorized. Except as otherwise authorized in a home rule charter as provided for in Section 4 of this Article, the governing authority of any local governmental subdivision or school board may levy and collect a tax upon the sale at retail, the use, the lease or rental, the consumption, and the storage for use and consumption, of tangible personal property and on sales of services as defined by law, if approved by a majority of the electors voting thereon in an election held for that purpose.

The purpose of a sales and use tax scheme is to make all tangible personal property used or consumed within the state subject to a uniform tax burden irrespective of whether it is acquired in the state, making it subject to the sales tax, or acquired from without the state, making it subject to the use tax at the same rate. Chicago Bridge & Iron Co. v. Cocreham, 317 So.2d 605 (La.1975), cert. denied, 424 U.S. 953, 96 S.Ct. 1427, 47 L.Ed.2d 359 (1976).

The trial court concluded as fact that the drilling rigs were manufactured in another state. While such a fact is implied in the record, we find nothing to suggest 17that this is an undisputed fact. Additionally, in its answers to interrogatories propounded to it requesting tax payment information, Grey Wolf stated:

Respondent objects to this Interrogatory on the basis that it is overly broad, ambiguous, and unduly burdensome. Nevertheless, in the spirit of cooperation and subject to the foregoing objection Rigs 519 [and 521 are] a cost center and not a single purchase. Thousands of transactions compromise the various components ... Parts of - these components are repaired or replaced on a continuous basis. Taxes have been paid on the components ... to various authorities at various times as components are constructed, repaired or replaced. The exact number and amount can only be determined by audit. Vernon Parish assigned Revenue Recovery Group to conduct this audit.

This answer either carefully or inadvertently fails to state whether the rigs were purchased by Grey Wolf Drilling Company from another drilling company, were constructed for Grey Wolf Drilling Company by a separate entity, or were constructed by Grey Wolf Drilling Company itself. This is an unresolved genuine issue of material fact.

Additionally, while Grey Wolf asserts in its answers to the School Board’s interrogatories that sales taxes were paid on materials furnished and used in the fabrication of the rigs, it does not make it clear who actually paid the sales tax. Specifically, Grey Wolf offered no evidence to establish that Grey Wolf Drilling Company paid taxes on the drilling rigs prior to the merger and prior to the use of the rigs in Vernon Parish, or that it was entitled to a credit against any use tax due for previously paid sales taxes as provided for in La.R.S. 33:2718.2. These also are unresolved genuine issues of material fact.

Given these unresolved genuine issues of material fact, we find that Grey Wolf failed to carry its burden under La.Code Civ.P. art. 966(C)(2). Therefore, we find that the trial court erred in granting Grey Wolfs motion for summary judgment. This decision and the required reversal based on this decision preclude consideration of |sthe relief requested by Grey Wolf in its answer to the appeal.

The School Board also asserts on appeal that the trial, court erred in granting the exception of no cause of action on the attorney fee issue. In granting the exception of no cause of action, the trial court stated that “due process of law prohibits the taxing authority from collecting attorney’s fees on taxes which were paid under protest where the taxpayer was procedurally correct in contesting the tax unless bad faith was shown on the taxpayer or additional taxes were owed.” Thus, the trial court concluded that Grey Wolf followed the proper procedure in contesting the payment of taxes. Additionally, although the trial court did not specifically state such, it is clear from its ultimate decision that it found that Grey Wolf did not act in bad faith in contesting the payment of taxes. We find that the trial court erred in granting the exception of no cause of action and the motion to strike.

Louisiana Revised Statutes 47:1512 provides the statutory authority for the School Board to employ private counsel and provides that “[i]f any taxes, penalties or interest due under this title are referred to an attorney at law for collection, an additional charge for attorney fees, in the amount of ten per centum (10%) of the taxes, penalties and interest due, shall be paid by the tax debtor.” This court addressed a similar issue dealing with attorney fees in Lake Charles Memorial Hospital v. Parish of Calcasieu, 98-519, p. 6 (La.App. 3 Cir. 12/9/98), 728 So.2d 454, 457, writ denied, 99-0071 (La.3/12/99), 739 So.2d 213, and it concluded that “[ljiability for these attorney fees does not depend upon whether the-fees háve been incurred in a collection case or in a defense of a taxpayer’s suit for a refund.” See also South Cent. Bell v. Traigle, 367 So.2d 1143 (La.1978); United Companies Printing Co. v. City of Baton Rouge, 569 So.2d 186 (La.App. 1 Cir.1990), writ |9denied, 572 So.2d 73 (La.1991). Thus, a taxing authority may collect attorney fees if it is sue-cessful in defending a taxpayer’s suit for a refund. The trial court erred in concluding otherwise.

DISPOSITION

For the foregoing reasons, we reverse the trial court’s grant of the exception of no cause of action, motion to strike, and motion for summary judgment in favor of Grey Wolf and remand the matter to the trial court for further proceedings consistent with this opinion. We tax all costs of this appeal to Grey Wolf.

REVERSED AND REMANDED.

      . As is explained in this opinion, the actual owner of the drilling rigs that are the subject of this litigation is Grey Wolf Drilling Company, L.P., a subsidiary of Grey Wolf, Inc. All of the pleadings refer to the plaintiff as Grey Wolf Drilling Company without regard to the initials that follow. For the purposes of this opinion, we will assume that Grey Wolf Drilling Company, L.P. and Grey Wolf Drilling Company are one and the same.

      . The record reflects that Grey Wolf paid $63,568.86 in taxes, $37,579.35 in interest, and $15,892.23 in penalties. During the course of the litigation, the School Board conceded that a portion of the assessment attributable to 1996 had prescribed, and that portion of the assessment was returned to Grey Wolf.

      . The trial court issued separate written reasons for judgment on the issues raised in the two hearings. However, in doing so, the trial court did not mention disposition of the motion to strike.