author: |,FOGG, J. hWHIPPLE, J.,

text:
    STATE of Louisiana BOARD OF ETHICS v. Corbett OURSO, Jr.
    No. 2001CA1417.
    Court of Appeal of Louisiana, First Circuit.
    June 21, 2002.
    Writ. Granted Oct. 14, 2002.
    R. Gray Sexton, Maris L. McCrory, Jennifer G. Magness, Baton Rouge, for Plaintiff-Appellant State of Louisiana, Board of Ethics.
    John 0. Braud, Independence, for Defendant-Appellee Corbett Ourso, Jr.
    Before: WHIPPLE, FOGG, and GUIDRY, JJ.
   |,FOGG, J.

The salient issue raised on appeal in this action by the State of Louisiana, Board of Ethics to investigate the campaign finances of a political candidate is whether the term provided by LSA-R.S. 18:1511.11 is prescriptive or peremptive. For the following reasons, we affirm the trial court’s determination that the statute is peremptive.

Corbett Ourso, Jr. ran unsuccessfully for the office of District Court Judge, 21st Judicial District Court, Division G in the October 3, 1998 primary election and in the November 3, 1998 general election. Within one year of filing his campaign disclosures, Ourso executed the following document:

I, Corbett Ourso, Jr., do hereby acknowledge the following:
• my campaign for the October 1998 primary election has been subject to investigation by the Board of Ethics, acting as the Supervisory Committee on Campaign Finance, for the possible receipt of excessive loans;
• the Board of Ethics may take enforcement action for this alleged violation by virtue of the filing of a civil lawsuit for penalties;
• I have been offered the opportunity to enter into a consent agreement with the Board concerning the alleged violation;
• I have asked the staff of the Board for the opportunity to appear before the Board at its October 14, 1999 meeting in order to request that any consent opinion reached allow me to seek judicial review of that opinion; and
• I understand that the staff of the Board is opposed to allowing judicial review of the consent opinion.
In consideration of the foregoing, and to preserve my opportunity to appear before the Board at its October 14, 1999 meeting, I do hereby agree to renounce, waive, and abandon any defense related to prescription or limitation of actions, particularly as to the provisions of R.S. 18:1511.11, that may have already accrued or which may accrue before November 19,1999.

On November 19, 1999, more than one year after Ourso filed his campaign disclosures, the Board of Ethics filed a rule to show cause, asserting that Ourso violated LSA-R.S. 18:1505.2(H) by exceeding the $2,500 per person contribution l3limit for both primary and general elections and seeking civil penalties pursuant to LSA-R.S. 18:1505.2(J). On June 13, 2000, Our-so responded by filing peremptory exceptions, asserting the action was either prescribed or perempted under LSA-R.S. 18:1511.11. On May 1, 2001, the trial court rendered judgment in favor of Ourso, sustaining the exception of peremption and dismissing the action of the Board of Ethics. This appeal followed.

Subsequently, the trial court wrote reasons for judgment which, by supplementation of the record, were added to the record on appeal. The Board of Ethics then filed with this court a motion to strike the trial court’s written reasons for judgment, asserting they were filed more than sixty days after the order of appeal was granted. The issue raised on appeal is solely the interpretation of a statute; issues of law are reviewed by this court with no deference afforded to the trial court. Considering the absence of weight given the trial court’s reasoning, we find the appellant’s motion is moot. Therefore, we deny the motion.

On appeal, the Board of Ethics asserts that the trial court erred in determining that LSA-R.S. 18:1511.11 is per-emptive rather than prescriptive and that the prescriptive period set forth in the statute was interrupted by the execution of the above waiver. LSA-R.S. 18:1511.11 provides:

§ 1511.11. Precedence of actions; limitations of actions
A. Any action brought under the provisions of this Chapter shall be advanced on the docket of the district court in which filed, and shall take precedence over and be considered in advance of all other actions other than actions brought under this Chapter.
B. Actions for violation of this Chapter must be commenced before three years have elapsed from the date of the violation or, if the violation is contained in a report, before one year has elapsed from filing of the relevant report.

In Reeder v. North, 97-0239, p. 12-13 (La.10/21/97), 701 So.2d 1291, 1298, quoting Hebert v. Doctors Memorial Hospital, 486 So.2d 717, 723 (La.1986), the supreme court discussed the difference between peremption and prescription:

| ¿Peremption differs from prescription in several respects. Although prescription prevents the enforcement of a right by legal action, it does not terminate the natural obligation (La. Civ.Code art. 1762(1)); peremption, however, extinguishes or destroys the right (La. Civ. Code art. 3458). Public policy requires that rights to which peremptive periods attach are to be extinguished after passage of a specified period. Accordingly, nothing may interfere with the running of a peremptive period. It may not be interrupted or suspended; nor is there provision for its renunciation. And exceptions such as contra non valentem are not applicable. As an inchoate right, prescription, on the other hand, may be renounced, interrupted, or suspended; and contra non valentem applies an exception to the statutory prescription period where in fact and for good cause a plaintiff is unable to exercise his cause of action when it accrues.

In determining whether a statute is prescriptive or preemptive the courts have often stated that a statute is preemptive when it both creates the right of action and stipulates the time within which that right may be executed. Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La. 1986); Succession of Pizzillo, 223 La. 328, 65 So.2d 783 (1953); Guillory v. Avoyelles Ry. Co., 104 La. 11, 28 So. 899 (La.1900). However, the specification of a time limit for bringing an action in the same statute that created the right of action is not the sole test of peremption as distinguished from prescription; “preemption, as differentiated from prescription, is a matter to be determined by legislative intent revealed by the statute in its entirety, including the purpose sought to be achieved.” Guidry v. Theriot, 377 So.2d 319, 325 (La. 1979). Furthermore, in Pounds v. Schori, 377 So.2d 1195 (La.1979), the court stated that the public policy behind a statute is a significant factor in distinguishing peremption from prescription.

Most recently in the case of State through Div. of Admin, v. Mcinnis Bros. Const., 97-0742 (La.10/21/97), 701 So.2d 937, 942, the supreme court summarized the test employed in distinguishing the doctrines of prescription and preemption as follows:

We conclude that “it is the legislative purpose sought to be achieved by a particular limitation period which has been found to be one of the most significant factors in distinguishing peremption from prescription,” Hebert, 486 So.2d at 724, and, although the presence or | .^absence of certain words may be beneficial to a court in its inquiry into the legislature’s intent, the use or nonuse of certain words, while relevant, should not be the determinative factor in the analysis.

The legislative intent and the public policy considered in promulgating Campaign Finance Disclosure Act, LSA-R.S. 11:1481 et seq., are reflected in the statement of its purpose set forth in LSA-R.S. 18:1482. That provision provides that “[t]he legislature recognizes that the effectiveness of representative government is dependent upon a knowledgeable electorate and the confidence of the electorate in their public officials.” The timeliness of actions against public officials is critical to the goal of maintaining an effective representative government based on a knowledgeable electorate. An extension of the delay for instituting actions under this legislation would hinder or defeat this goal. Therefore, the intent of the legislature, as well as public policy, dictate a conclusion that the statute is peremptive rather than prescriptive.

Furthermore, as discussed earlier, per-emption statutes generally create a right of action and stipulate the delay during which the right may be exercised. The Campaign Finance Disclosure Act was enacted by Acts 1980, No. 786, effective January 1, 1981. Prohibited practices, limitations and penalties for non-compliance were set forth in Part V of the statute; prohibitions and limitations on campaign contributions and expenditures were set forth in LSA-R.S. 18:1505.2. Therefore, the language of the statute both creates a right of action and stipulates the delay during which the right must be exercised, meeting the requirements of Guillory and reflecting an intent by the legislature to set forth a precise time period for the filing of suit against a candidate by the Board of Ethics.

In sum, considering the plain language of the statute, the clear legislative intent and public policy considerations on which this statute was based, we conclude that the time period set forth in LSA-R.S. 18:1511.11 is peremptive.

For the foregoing reasons, the judgment of the trial court is affirmed and the | (¡appellant’s motion is denied. Costs in the sum of $371.00 are assessed against the State of Louisiana Board of Ethics.

MOTION DENIED; JUDGMENT AFFIRMED.

WHIPPLE, J., dissents for reasons assigned.

hWHIPPLE, J.,

dissenting.

As the Board correctly argues:

The conclusion that the time period contained in R.S. 18:1511.11 is preemptive not only frustrates the public policy behind the CFDA, but also adversely affects candidates and elected officials subject to the restrictions contained in the CFDA. If faced with a short per-emptive period, the Board would have no choice but to hurriedly investigate alleged violations of the CFDA, which often times are prompted by political adversaries of the candidate or elected official, and file a civil suit against the candidate or elected official alleging various violations of the CFDA.

In my view, the approach taken by the majority under the particular (and egregious) facts of this case serves only to frustrate the purpose of the Act: to promote public confidence of the electorate in the election of public officials.

Thus, I respectfully dissent.


source: Caselaw Access Project

author: LWHIPPLE, J.

license: Public Domain

text:
    Danny D. BEZET v. The ORIGINAL LIBRARY JOE’S, INC., Leeway Corporation d/b/a Slinky’s, Spanish Moon, Inc., d/b/a the Bayou, Highland Coffees, Barco Enterprises, Inc., d/b/a the Chimes, River City Entertainment, Inc., d/b/a Varsity Theatre, Louie’s Café, Inc., Tiger Town Associates, L.L.C., A, B, C, D, E, F, G, H as Unknown Liability Insurers of Defendants, Jason Christopher Lavigne, Four-by-Two Development, Inc., St. Paul Reinsurance, State Farm Insurance and Scottsdale Insurance. Todd Moonshower v. The Original Library Joe’s, Inc., Leeway Corporation d/b/a Slinky’s, Spanish Moon, Inc., d/b/a the Bayou, Highland Coffees, Barco Enterprises, Inc. d/b/a the Chimes, River City Entertainment, Inc. d/b/a Varsity Theatre, Louie’s Café, Inc., Tiger Town Associates, L.L.C., Four by Two Development, Inc., St. Paul Reinsurance, State Farm Insurance, Scottsdale Insurance, A, B, C, D, E as Unknown Liability Insurers of Defendants and Jason Christopher Lavigne.
    No. 2001-CA-1586, 2001-CA-1587.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Joseph Hecker, Karen LaCount, Baton Rouge, Chris Richard, Lafayette, for Plaintiff/Appellant, Danny D. Bezet.
    A. Gregory Rome, Baton Rouge, Kent Mercier, Chris Richard, Lafayette, for Plaintiff/Appellant, Todd Moonshower.
    Simon Dupre, S. Brian Perry, Lafayette, for Defendants, Spanish Moon, Inc. d/b/a The Bayou and David N. Crawford.
    Stephen Emling, New Orleans', James Kokemor, Metairie, for Defendant, Scottsdale Insurance Company.
    Carey Guglielmo, Baton Rouge, for Defendant, Louie’s Café.
    Frances Bo Rougeou, Baton Rouge, for Defendant, Jason Christopher Lavigne.
    Diana L. Tonagel, Mandeville, for Defendant, St. Paul Reinsurance Company.
    David J. Halpern, Zara Zerinque, Me-tairie, Maryann Graham Hoskins, Jefferson, for Defendants, R. Keever Realty, Inc. and Regina Keever.
    Dominic Ovella, Laurence Larmann, David K Persons, Metairie, for Defendant/Appellee, Tiger Town Associates, L.L.C.
    Robert Barton, A. Michael Dufilho, Baton Rouge, for Defendant/Appellee, Four by Two Development, Inc.
    Amos Davis, Baton Rouge, for Defendant, Cadex, Inc. d/b/a Highland Coffees.
    Keith P. Richards, Baton Rouge, for Defendants, F.W.D., Inc. and Frank W. Du-vic.
    James L. Trinchard, New Orleans, for Defendant, Peter LoSavio, Jr.
    Before: WHIPPLE, FOGG and GUIDRY, JJ.
   LWHIPPLE, J.

Plaintiffs, Danny D. Bezet and Todd Moonshower, appeal from the judgment of the trial court, granting the motions for summary judgment filed by Four by Two Development, Inc. (“Four by Two Development”) and Tiger Town Associates, L.L.C. (“Tiger Town Associates”), and dismissing plaintiffs’ claims against these defendants with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The suit arises from an action for damages for injuries received by plaintiffs when they were attacked and stabbed in an alleyway and parking lot area located in the proximity of several businesses in Baton Rouge. The facts giving rise to this suit were set forth in this court’s prior opinion in Bezet v. Original Library Joe’s, Inc., 98-1467, 98-1468, pp. 5-6 (La.App. 1st Cir.6/25/99), 747 So.2d 77, 80-81, writ denied, 99-2836 (La.12/17/99), 751 So.2d 879, as follows:

On April 20, 1996, plaintiffs, Todd Moonshower and Danny Bezet, spent the evening socializing at a friend’s house in Baton Rouge, Louisiana. Shortly after midnight, on April 21, 1996, Moonshower, Bezet and a few of their friends decided to “go out” in an area of town just north of the gates of Louisiana State University at Highland Road. This area has several drinking establishments in an approximate two block area.
When the party arrived in the vicinity, plaintiffs and their friends parked their automobile in a parking lot situated in the block between West Chimes Street and West State Street near Highland Road. Bezet, Moonshower and their friends walked to Slinky’s, an area bar on West Chimes Street. Moonshower stayed at Slinky’s until near closing time. Bezet also went to The Bayou, another area bar on West Chimes Street, at some point in the course of the evening, where he stayed for a short time.
At approximately 1:45 a.m., plaintiffs and their friends decided to leave and began walking back to their automobile parked in the lot located off West State Street. They returned to their vehicle the way that they had come, through an alleyway connecting Chimes Street and the lot where their vehicle was parked. The alleyway ran between two buildings. One building houses The Bayou and was owned by the Losavio Trust; the other building was vacant at the time and owned by Four By Two [Development].
Is As they walked through the alleyway towards the lot, plaintiffs were physically attacked and beaten by an unidentified group of men who had been standing in the alleyway. The attack began in an area near the end of the alleyway across from The Bayou, closest to the rear corner of the vacant building, and proceeded into the parking lot. Both Moonshower and Bezet were ultimately stabbed and seriously injured by [Jason] Lavigne, in an area in the parking lot. Although initially charged with two counts of attempted murder, Lavigne later pleaded guilty to two counts of aggravated battery.

In addition to naming as defendants their attacker, Jason Lavigne, and several, but not all, of the businesses operating in the vicinity of the parking lot, plaintiffs also named Four by Two Development and Tiger Town Associates, as the owners of the alleyway and parking lot area in which the attack occurred.

Along with several of the businesses named as defendants, Four by Two Development and Tiger Town Associates filed motions for summary judgment, contending that they owed no duty to plaintiffs to prevent the attack upon them by third parties. In initially denying the motions for summary judgment filed by Four by Two Development and Tiger Town Associates, the trial court stated that “there is at least one genuine issue of material fact, which is whether these owners could have ‘foreseen’ that this private parking area and/or alleyway was unreasonabl[y] dangerous.” Tiger Town Associates and Four by Two Development applied to this court for writs of certiorari and review, challenging the trial court’s denial of their motions for summary judgment. The application for writs were denied. Bezet v. The Original Library Joe’s, 98 CW 1264, 98 CW 1279 (La.App. 1st Cir.10/22/98).

Subsequently, after the Supreme Court rendered its decision in Posecai v. Wal-Mart Stores, Inc., 99-1222 (La.11/30/99), 752 So.2d 762, Four by Two Development and Tiger Town Associates re-urged their motions for summary judgment, contending that under the legal precepts enunciated in Posecai, they Lowed no duty to plaintiffs under the facts presented herein. Following a hearing on the motions, the trial court rendered judgment granting the motions for summary judgment and dismissing with prejudice plaintiffs’ claims against Four by Two Development and Tiger Town Associates. From this judgment, plaintiffs appealed.

After the appeal of this matter had been lodged, this court determined that, despite the absence of a designation limiting the record plaintiffs wished this court to consider, the full record, and, more importantly, the exhibits relied upon by plaintiffs in opposition to the motions for summary judgment, were not included in the appellate record submitted for review. Accordingly, this court granted the parties a period in which to file a written designation if they chose to have this court consider only a limited record. In the event no limiting designation was filed, we ordered the district court to compile the complete record of the proceedings below within a specified period. Bezet v. The Original Library Joe’s, Inc., 2001-1586 c/w 2001-1587, p. 8 (La.App. 1st Cir.6/21/02), 835 So.2d 472, 476.

Thereafter, when plaintiffs did not timely pay the estimated costs to the district court, both Tiger Town Associates and Four by Two Development filed with this court motions to dismiss plaintiffs’ appeal. In response to these motions, this court issued two show cause orders, ordering plaintiffs to show cause by briefs why their appeal should not be dismissed. Plaintiffs then paid the estimated costs and responded to this court with a request that their appeal be maintained. Because this court has not formally acted upon the motions to dismiss, we shall first address the pending motions before addressing the merits of the appeal.

EMOTIONS TO DISMISS

Louisiana Code of Civil Procedure article 2126(E) provides that if an appellant fails to pay the estimated cost of the preparation of the record on appeal, the trial court, upon its own motion or upon motion by the clerk or any party, and after a hearing, shall either: (1) enter a formal order of dismissal on the grounds of abandonment; or (2) grant a ten-day period within which costs must be paid in full, in default of which the appeal is dismissed as abandoned.

A motion to dismiss an appeal for failure to timely pay estimated costs for the preparation of the record must be brought before the district court. LSA-C.C.P. arts. 2088 & 2126(E); Succession of Stafford, 424 So.2d 1244 (La.App. 1st Cir. 1982); Ware v. Duplechain, 583 So.2d 162, 164 (La.App. 3rd Cir.1991).

Accordingly, the motions to dismiss the appeal filed by Four by Two Development and Tiger Town Associates are denied. Succession of Stafford, 424 So.2d at 1244.

SUMMARY JUDGMENT

A motion for summary judgment is a procedural device used to avoid a full-scale trial, where there is no genuine factual dispute. Sanders v. Ashland Oil, Inc., 96-1751, p. 5 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, 1034, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. It should be granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966.

The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action and is now favored. LSA-C.C.P. art. 966(A)(2). The initial burden continues to remain with the mover to show that no genuine issue of material fact exists. If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s [sclaim, action or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. LSA-C.C.P. art. 966(C)(2). If the nonmoving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. LSA-C.C.P. arts. 966 and 967; Berzas v. OXY USA Inc., 29,835, pp. 7-9 (La.App. 2nd Cir.9/24/97), 699 So.2d 1149, 1153-1154.

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Sanders, 96-1751 at p. 7; 696 So.2d at 1035. Because it is the applicable substantive law that determines materiality, whether or not a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Rambo v. Walker, 97-2371, p. 4 (La.App. 1st Cir.11/6/98), 722 So.2d 86, 88, unit denied, 98-3030 (La.1/29/99), 736 So.2d 840.

DUTY OF BUSINESS OWNERS TO PROTECT AGAINST CRIMINAL ATTACKS BY THIRD PARTIES

On appeal, plaintiffs aver that the trial court erred in granting the motions for summary judgment filed by Four by Two Development and Tiger Town Associates, where the evidence presented in opposition to the motions demonstrated that these property owners should have known of the long-standing pattern of criminal conduct on the premises where plaintiffs were attacked.

Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under LSA-C.C. art. 2315. In order for liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (the breach of duty element); (3) the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4)|3the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of protection element); and (5) actual damages (the damage element). Pinsonneault v. Merchants & Farmers Bank & Trust Company, 2001-2217, p. 7 (La.4/3/02), 816 So.2d 270, 275-276.

The threshold question in any duty-risk analysis is whether the defendant owed a duty to the plaintiff. Posecai, 99-1222 at p. 4, 752 So.2d at 766. Whether a duty is owed is a question of law. Pinsonneault, 2001-2217 at p. 7, 816 So.2d at 276. In Posecai, the Supreme Court held that while business owners generally have no duty to protect others from the criminal acts of third person, “they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable.” Posecai 99-1222 at p. 5, 752 So.2d at 766. Noting that it had never squarely addressed the issue of whether business owners owe a duty to protect their patrons from crimes perpetrated by third parties, the Court held as follows:

We now join other states in adopting the rule that although business owners are not the insurers of their patrons’ safety, they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable. We emphasize, however, that there is generally no duty to protect others from the criminal activities of third persons. See Hams v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364, 1371 (La.1984). This duty only arises under limited circumstances, when the criminal act in question was reasonably foreseeable to the owner of the business. Determining when a crime is foreseeable is therefore a critical inquiry.

Posecai, 99-1222 at pp. 5-6, 752 So.2d at 766 (emphasis added).

After reviewing various approaches utilized by other states to resolve the issue of foreseeability, the Court adopted a balancing test to determine whether a business owner owes a duty of care to protect its customers from the criminal acts of third parties, as follows:

The foreseeability of the crime risk on the defendant’s property and the gravity of the risk determine the existence and the extent of the defendant’s duty. The greater the foreseeability and gravity of the | mharm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.

Posecai, 99-1222 at pp. 8-9, 752 So.2d at 768.

The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. Posecai, 99-1222 at p. 9, 752 So.2d at 768. In determining foreseeability and gravity of the harm, the Court further directed as follows:

The most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the property should also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business’ premises.

Posecai, 99-1222 at p. 9, 752 So.2d at 768.

DUTY OF FOUR BY TWO DEVELOPMENT AND TIGER TOWN ASSOCIATES TO PLAINTIFFS HEREIN

On appeal, plaintiffs contend that applying Posecai to the facts herein, a question of fact remains as to whether Four by Two Development and Tiger Town Associates owed a duty to implement reasonable measures to protect them from the harm they suffered in the attack by Lavigne, a third party. Specifically, they contend that the affidavits of record herein regarding ongoing criminal conduct and arrests in the parking lot and surrounding area set forth a question of fact as to whether this attack was foreseeable, thereby imposing upon these defendants a duty to offer some level of protection.

The evidence relied upon by plaintiffs to establish the foreseeability of this attack includes a computerized printout from the Baton Rouge City Police Department, purporting to list all criminal reports and complaints within a threejblockn area of the attack. This document contains references to hundreds of reports of various crimes within the three-year period preceding the attack at issue, including simple battery, aggravated battery, simple criminal damage to property, disorderly conduct and aggravated assault.

Additionally, plaintiffs rely upon the affidavit of Detective David Cantu with the East Baton Rouge Parish Sheriffs Department, who attested that in 1993 and 1994, when he performed a roving security patrol of the area encompassing West Chimes Street, West State Street and Highland Road, he made “many narcotics arrests” in the area in general and, in particular, in the alleyway and parking lot at issue. Likewise, Corporal Ray Offen-bacher of the Baton Rouge Parish Police Department, who also performed security patrols of the area during 1993 and 1994, attested that this area was a “rough area.” He further attested that the parking area at issue, which was being heavily used by patrons of nearby businesses that were open at that time of night, was “of particular concern” because of problems with groups of individuals congregating in the area.

However, despite this evidence of criminal activity in the vicinity of the attack upon plaintiffs, we note that the three lots in the Chimes Street area owned by Four by Two Development were all undeveloped or vacant at the time of the incident in question. Specifically, Four by Two Development owns Lot 12A of Campanile View Subdivision, which encompassed a portion of the alleyway where the attack allegedly began. Also located on this lot was a vacant building. The previous tenant of the budding, Chimes Textbook Exchange, had terminated its jalease on March 6,1996, approximately one and one-half months prior to the incident in question. Additionally, none of the businesses of the previous tenants of the building were open for business between the hours of 6:00 p.m. and 8:00 a.m. Thus, Four by Two was not operating any business nor leasing its property to anyone operating a business which would have been open to the public at the time of the attack at issue.

Similarly, Tiger Town Associates was leasing its property to four businesses that did not conduct business hours corresponding to the time of the attack. These businesses were the Gap, Foot Locker, Sunglass Hut and Highland Coffee. These tenants shared the use of the parking lot owned in part by Tiger Town Associates.

Thus, despite plaintiffs’ contention that the evidence of prior criminal incidents in the area present a material issue of fact as to the foreseeability of the attack herein, we conclude that duty outlined in Posecai simply does not apply to an attack on a business owner’s premises occurring outside of normal business hours, nor do we find a basis for extending the duty of business owners to apply to this situation. In Posecai, the plaintiff sued Sam’s Wholesale Club after she was robbed at gunpoint in the store’s parking lot during normal business hours. Posecai, 99-1222 at p. 1, 752 So.2d at 764. In considering what, if any, duty was owed, the Supreme Court held that while there is generally no duty to protect others from the criminal activities of third persons, a duty may arise under limited circumstances wherein a business owner has a duty to take reasonable measures to protect its patrons from criminal acts that are foreseeable. Pose-cai, 99-1222 at p. 5, 752 So.2d at 766. This duty was imposed to protect invitees from foreseeable criminal attacks. Posecai, 99-1222 at p. 5, 752 So.2d at 766. To extend this limited duty to require business owners to protect the general public at large at all times, including the hours during which the business is closed to the public, would require businesses to assume responsibility “for the endemic crime that plagues our | ^communities, a societal problem that even our law enforcement and other government agencies have been unable to solve.” Posecai, 99-1222 at p. 8, 752 So.2d at 768.

Accordingly, given that neither Tiger Town Associates and its lessees nor Four by Two Development was conducting a business to which the public was invited at the time of the attack upon plaintiffs herein, we conclude that, as a matter of law, these defendants owed no duty to plaintiffs to protect them from the criminal activity of third persons. Thus, we find no error in the trial court’s grant of summary judgment herein.

CONCLUSION

For the above and foregoing reasons, the December 28, 2000 judgment of the trial court, granting the motions for summary judgment of Four by Two Development, Inc. and Tiger Town Associates, L.L.C. and dismissing plaintiffs’ claims against them with prejudice, is affirmed. Costs of this appeal are assessed equally against plaintiffs, Danny Bezet and Todd Moonshower.

AFFIRMED; MOTIONS TO DISMISS APPEAL DENIED.

      . The Losavio Trust was also named as a defendant, as the alleged owner of part of the alleyway where the attacks occurred.

      . While plaintiffs contend on appeal that this printout lists all complaints in a three-block area of the attack, we note that the affidavit of Corporal Roger Tully, through which this printout was introduced, merely provides that this printout was compiled in relation to this suit. Corporal Tully does not specify that this printout encompasses only the three-block area surrounding the attack at issue. This court is able to determine from the printout that the referenced complaints related to occurrences on W. Chimes Street, Highland Road and West State Street.

      . Nor are we persuaded by plaintiffs’ argument that a duty was somehow assumed by Four by Two Development because it did not prohibit or limit in any way any of the area businesses from using the parking lot or alleyway. Given the limited scope of the duty of a business owner to protect its patrons from criminal attack by third parties, as clarified by the Supreme Court in Posecai, we conclude that there is simply no legal basis to extend a duty to protect under these circumstances.


author: | .GUIDRY, J. | FITZSIMMONS, Judge,

text:
    William HAMWAY d/b/a Interstate Transmission v. Ronnie BRAUD d/b/a Braud’s Towing Service.
    No. 2001 CA 2364.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 8, 2002.

      Paul R. Matzen, Baton Rouge, Counsel for PlaintiffiAppellant William Hamway d/b/a Interstate Transmission.
    Larry A. Babin, Jr., Gonzales, Counsel for Defendani/Appellee Ronnie Braud d/b/a Braud’s Towing Service.
    Before: FITZSIMMONS, GUIDRY, and PETTIGREW, JJ.
   | .GUIDRY, J.

Plaintiff, William Hamway d/b/a Interstate Transmission (Hamway), appeals the trial court’s granting of defendant’s, Ronnie Braud d/b/a Braud’s Towing Service (Braud), peremptory exception raising the objection of no cause of action. For the reasons that follow, we affirm the judgment of the trial court.

FACTS AND PROCDURAL HISTORY

Hamway, operator of a transmission shop, entered into a contract with Dave Jackson, Sr. to remove a transmission from Mr. Jackson’s vehicle, a corvette. However, a dispute arose between Ham-way and Mr. Jackson, whereupon Mr. Jackson contacted Braud to tow the vehicle to another location. During the relocation of the vehicle in August of 1999, the interior upholstery was damaged when Hamway’s employees placed transmission parts inside the vehicle.

Mr. Jackson ultimately brought suit against Hamway in Baton Rouge City Court, Small Claims Division. Braud, however, was not made a party. On March 14, 2000, judgment was rendered against Hamway in the amount of $1,632.23, plus legal interest and court costs. Thereafter, in a petition filed July 28, 2000, Hamway sought indemnification, or in the alternative, contribution from Braud. In his petition, Hamway claimed that Braud caused the damages assessed against him because he prohibited Ham-way’s employees from placing the transmission parts on the tow truck and instructed them to place the parts inside the vehicle. On December 26, 2000, Braud filed a Peremptory Exception of No Cause of Action. A hearing on the exception was held on February 28, 2001, and in a judgment signed on April 16, 2001, the trial court granted Braud’s exception and ordered that Hamway’s petition be dismissed with prejudice.

ASSIGNEMT OF ERROR

Hamway now appeals from this decision and asserts as his sole assignment of error that the trial judge erred in granting the defendant’s peremptory exception | .raising the objection of no cause of action, thereby denying Hamway’s right of indemnity or contribution.

DISCUSSION

No Cause of Action

A court of appeal reviews de novo a lower court’s ruling sustaining the exception of no cause of action because the exception raises a question of law based on the sufficiency of the petition. City of New Orleans v. Board of Directors of Louisiana State Museum, 98-1170, pp. 9-10 (La.3/2/99), 739 So.2d 748, 756. The peremptory exception raising the objection of no cause of action is designed to test the legal sufficiency of the petition by determining whether plaintiff is afforded a remedy in law, based on the facts alleged in the pleadings. Sinclair v. State, Louisiana Department of Public Safety and Corrections, 99-2290, p. 4 (La.App. 1st Cir.11/3/00), 769 So.2d 1270, 1272, writ denied, 00-3331 (La.1/25/02), 806 So.2d 665, cert denied, 536 U.S. 910, 122 S.Ct. 2369, 153 L.Ed.2d 189 (2002). For purposes of ruling on the exception, all well-pleaded allegations of fact in the petition must be accepted as true. Guzzardo-Knight v. Central Progressive Bank, 99-1449, p. 5 (La.App. 1st Cir.6/23/00), 762 So.2d 1243, 1246, writ denied, 00-2298 (La.6/15/01), 793 So.2d 208. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La. C.C.P. art. 931. A court should sustain an exception only if the law affords no remedy under any evidence that is admissible under the pleadings. Sinclair, 99-2290 at 4, 769 So.2d at 1272.

Indemnity

Indemnity, which is based in the concept of unjust enrichment, may lie when one party discharges a liability, which another rightfully should have assumed. Nassif v. Sunrise Homes, Inc., 98-3193, pp. 2-3 (La.6/29/99), 739 So.2d 183, 185; Mayo v. Benson Chevrolet Co., 97-1121, p. 2 (La.App. 5th Cir.8/25/98), 717 |4So.2d 1247, 1248. The obligation to indemnify may be express, as in a contractual provision, or may be implied in law, under a tort or quasi-contract theory, even in the absence of an indemnity agreement. Bienville Parish Police Jury v. United States Postal Service, 8 F.Supp.2d 563, 569 (W.D.La.4/29/98); Nassif, 98-3193 at 3, 739 So.2d at 185. An implied contract of indemnity, or tort indemnity as it applies in this case, arises only when the fault of the person seeking indemnification is solely constructive or derivative, from failure or omission to perform some legal duty, and may only be had against one who, because of his act, has caused such constructive liability to be imposed. Nassif, 98-3193 at 3, 739 So.2d at 185; see also Mayo, 97-1121 at 2, 717 So.2d at 1248. As such, a party who is actually negligent or actually at fault cannot recover tort indemnity. Sellers v. Seligman, 463 So.2d 697, 700 (La.App. 4th Cir.), writ denied, 464 So.2d 1379 (La.1985).

In the instant case, Hamway asserts in his petition that Braud directed Hamway’s employees to place the transmission parts inside Mr. Jackson’s vehicle. However, the facts as alleged admit that Hamway’s employees actually placed the transmission parts inside the car. Additionally, the petition acknowledges that judgment was rendered against Hamway, thereby finding him to be at fault for the resulting damage, in the amount of $1,632.23. These facts, as alleged, do not show the mere constructive or derivative fault of Hamway but rather, show that Hamway was actively negligent and was found to be actively at fault. As such, we find that Hamway has not stated a cause of action against Braud for indemnity.

Contribution

The substantive basis for the right to claim contribution is subrogation to the plaintiffs rights against the remaining tortfeasors. La. C.C. arts. 1804 and 1805; | Jlennis v. The Finish Line, Inc., 99-1413, p. 41 (La.App. 1st Cir.12/22/00), 781 So.2d 12, 44, writ denied, 01-0214 (La.3/16/01), 787 So.2d 319. Contribution permits a tortfeasor who has paid more than his share of a solidary obligation to seek reimbursement from the other tort-feasors for their respective shares of the judgment, which shares are proportionate to the fault of each. Dennis, 99-1413 at 41, 781 So.2d at 43-44. Therefore, contribution is allowed only among tortfeasors who are solidarity liable. Thompson v. Harrington, 99-571, p. 11 (La.App. 3rd Cir.10/13/99), 746 So.2d 652, 658.

In 1996, La. C.C. art. 2324 was amended to eliminate solidary liability, except where tortfeasors conspire to commit an intentional or willful act. Non-intentional tortuous acts are now considered joint and divisible, and each joint tortfea-sor is liable only for the degree of fault attributed to his actions. See La. C.C. arts. 2323 and 2324. In the instant case, Hamway’s petition asserts that Braud was negligent in ordering Hamway’s employees to place the transmission parts inside Mr. Jackson’s vehicle. The petition contains no facts upon which any claim of intentional or willful action could be asserted against Braud in order to invoke solidary liability and the right of contribution. Therefore, we find that Hamway also failed to state a cause of action against Braud for contribution.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court, granting Braud’s peremptory exception raising the objection of no cause of action and dismissing Hamway’s claim with prejudice. All costs of this appeal are to be borne by the appellant, Hamway.

AFFIRMED.

FITZSIMMONS, J., agrees and assigns additional reasons.

| FITZSIMMONS, Judge,

agreeing, with additional reasons.

I agree with the opinion and respectfully assign additional reasons.

In the absence of an intentional or willful act, joint tortfeasors are not solidarily liable and do not have the right to contribution by third party demand or a later suit. See La. C.C. arts. 2323 & 2324; La. C.C.P. arts. 1111 & 1113. What would have been a third party demand for contribution in the past, is now better pled as a type of affirmative defense. See La. C.C.P. art. 1005. Thus, to avoid being wrongfully held to be 100 percent liable in this case, Hamway, in his answer to the Jackson suit, should have alleged that Braud was a joint tortfeasor and was also liable for Mr. Jackson’s damages. By failing to make those assertions, Hamway lost the opportunity to have Braud’s fault determined in the appropriate proceeding.

      . We note that in the instant case, Hamway may be constructively or derivatively at fault in that his employees were actually the ones who triggered his liability. However, Ham-way only seeks indemnity from Braud and the facts as alleged do not show constructive or derivative fault in that regard.


author: JjDREW, J.

text:
    SPORT TECH, INC., Plaintiff-Appellant, v. SFI MANUFACTURING, INC., Outland Sports, Inc. and Robert D. Berkley, Defendants-Appellees.
    No. 36,413-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 20, 2002.
    Rehearing Denied Jan. 23, 2003.
    Writ Denied April 25, 2003.

      James Fleet Howell, Shreveport, for Appellant.
    Jerald R. Harper, Shreveport, for Ap-pellee.
    Before STEWART, WILLIAMS and DREW, JJ.
   JjDREW, J.

Sport Tech, Inc. appeals a judgment dismissing its breach of contract claim. We affirm the judgment.

FACTS

In 1986, Steven Lenert and Coleman Brown formed a company named “Dove Creations” to develop various products. Lenert came up with the idea of creating a light hunting decoy constructed of the type of foam generally used to insulate beverage cans and pipes. A cut was to be made in the foam to allow the placement of a duck head silhouette. A simple prototype of Lenert’s concept was made to show the material, but not to be placed on the market. On October 22, 1986, Lenert and Brown executed a record of invention for a “Decoy Lite” made of injected poly-foam rubber. Decoys to be made included “ducks, geese, dove, crow, owl, crane and coot.”

Lenert called Herb Jeane, an old friend who was a sporting goods sales representative. Wanting to learn if Jeane had ever seen something similar on the market, Le-nert showed Jeane his simple prototype. Jeane found the idea promising, so he arranged a meeting in 1987 with Robert Berkley, a plant engineer working for a toy company. Berkley, who was knowledgeable about the manufacturing process, would be able to assist with product development. Berkley and Jeane told Lenert that they could make a mold of a foam duck decoy that was similar in appearance to non-foam decoys on the market.

Berkley concluded that the decoys would have to be produced from polyethylene foam, so he began learning the process of using this foam to Lmake the decoys. Dow Chemicals was the only company making this foam at the time, and Berkley found their materials to be inconsistent. Working at Snellings Thermovac plant in Blanchard, Berkley created a mold and had sample products constructed through vacuum forming. Berkley was assisted by Jeane, who offered ideas on what designs were most likely to sell.

Jeane testified that in November of 1987, Sport Tech sold a total of four dozen decoys to two stores in Monroe because they wanted feedback on the decoys. In early 1988, Lenert came up with a name for the decoys: “Feather Flex.”

In January of 1988, Berkley, Jeane and Lenert attended the Shot Show in Las Vegas, taking 24 to 36 decoys with them and presenting them under the Feather Flex name. Jeane recalled taking orders for decoys at this show. They had a sign created which stated “Feather Flex Decoys,” and Berkley allegedly placed a “TM” across the bottom of the sign. Berkley testified that he did this because he wanted some protection for the name and because he had been assured that the name would be trademarked. However, later during the trial, Berkley denied putting the “TM” on the sign, testifying that the sign instead stated, “Patent Pending.”

At first, Berkley, Brown, Jeane and Le-nert worked together as a general partnership named “Sports Nuts.” Shortly after the 1988 Shot Show, they formed Sport Tech, Inc., with each receiving a 25% ownership stake. Lenert served as president. Brown handled the financing and taxes. |sBerkley was named vice-president of manufacturing. Jeane was responsible for marketing the decoys. It was agreed around this time that Dove Creations would be paid a royalty of 5% of income by Sport Tech.

On March 11, 1988, an agreement was reached between Berkley, Lenert and Sport Tech. The agreement recited that Berkley and Lenert were the inventors of the Feather Flex decoys and had a pending application for design and utility patents on the Feather Flex decoys. Berkley and Lenert warranted that the patent application was made for a game bird decoy known by the common law trademark name of “Feather/Flex Decoy.” The decoys were bird-like designs thermoformed from polyolefin. Berkley and Lenert granted to Sport Tech the exclusive right to manufacture, market and distribute the Feather Flex decoys worldwide.

On May 8, 1989, Lenert and Berkley applied for a patent on a game bird decoy to be “formed from flat sheet stock of closed cellular foam, preferably, of polyethylene.” The material would allow the decoy to be deformed for transport or storage and to return to its three-dimensional shape when unfolded or restraints were removed. The decoy would have an upper profile representative of the species, a waterline rim for surface resting of the decoy, a removable head and an open underside. The head was to be flexible and hollow, permitting mooring line and anchor weights to be stored there. The patent application was a continuation-in-part of a 1987 application that had been abandoned. The patent was granted on | ¿April 2, 1991. Berkley testified that this patent was never used because the design would not work.

Packaging Industries Group, Inc.

While attending a trade show in Atlanta in March 1988, Berkley sought a new supplier of foam materials because Dow had discontinued production. He approached John Bambara, the President of Packaging Industries Group, Inc. (“PI”), which produced foam materials, about supplying him with the foam. Bambara expressed an interest in manufacturing and marketing the foam decoys, so he began negotiations with Sport Tech. Berkley explained that at the time Sport Tech only had a viable idea, not a viable product. Because Sport Tech only had a single cavity tool to make the decoys, Sport Tech needed to convince a company to invest in the machinery and tools required to efficiently produce the decoys.

Under the terms of the March 11, 1988, agreement referenced above, Sport Tech had been given the right to convey, transfer and assign its rights. An agreement was signed between Sport Tech and PI on March 31, 1988. This agreement, prepared by PI, granted to PI the exclusive right to manufacture, market and distribute the Feather Flex decoys worldwide. PI became obligated to pay $150,000 and royalties of 5% of net sales to Sport Tech. PI was given the right to assign its rights and obligations under the agreement with Sport Tech’s written consent, which could not be unreasonably withheld. This agreement would be binding on successors and assignees of the parties thereto.

|sThe agreement between Sport Tech and PI provided that Sport Tech had “common law trademarked and service marked the Feather/Flex Decoysf.]” It further provided that Sport Tech owned or had applied for “common law trademark and/or trade name registrations.” PI agreed to obtain “all new trademark registrations ... necessary to increase the product line of Feather/Flex Decoys.”

Berkley began working as the Operations Manager at Pi’s plant in Bossier City. He recalled that during the first year approximately 80% of the material sent by PI was rejected. Berkley eventually developed a system of splitting the material so he could get to the raw foam cells in order to manipulate them. The duck decoy was created first, followed by decoys of geese and turkeys. Berkley stated that he designed injection-molding equipment, which was built in China and used in the production of the decoys.

In May of 1988, PI filed for Chapter 11 bankruptcy. The bankruptcy did not stop the production of the decoys as PI paid $25,000 and royalties through December 31, 1991, to Sport Tech. The agreement with PI was amended on May 10, 1991, to provide payments to Sport Tech of $200,000 and a reduced royalty of 3.5% of net sales commencing on April 1, 1991. Products covered by the amended agreement were (1) products in Pi’s 1991 Feather Flex brochure and (2) those products not displayed in the 1991 Feather Flex brochure but in existence for test purposes or otherwise, or contemplated by PI, to be marketed by PI under the Feather Flex trademark and/or trade name.

| «Q.P.I. Consumer Products Corporation

In March of 1993, PI was acquired by Quality Products, Inc. Feather Flex became a division of Q.P.I. Consumer Products Corporation (“QPI”), a wholly-owned subsidiary of Quality Products, Inc. QPI manufactured children’s toys, hydraulic presses and hunting decoys. QPI continued to operate the former PI facility in Bossier City, and Berkley continued to supervise operations at the plant. During this period Berkley developed a deer decoy and bird decoys, such as doves and pigeons.

There was never any written agreement between QPI and Sport Tech, and Sport Tech never gave written consent to the assignment as required by the agreement with PI. Nevertheless, QPI paid royalties to Sport Tech for at least three quarters ($45,456 through February 1993) before ceasing royalty payments.

On May 27, 1993, Merritt Chastain, an attorney for Berkley, submitted a letter to James Renaldo of QPI on behalf of Berk-ley. Chastain wrote that Berkley was interested in purchasing the “equipment, inventory and rights to use the name ‘Feather Flex’ and other associated assets” from QPI. Chastain requested all documents relating to any of the assets or rights of the Feather Flex Division. Gregory Tamborello, Senior Vice-President and Chief Operations Officer of Quality Products, Inc., responded on June 11, 1993. Tamborello wrote that Quality Products, Inc.’s intention was to “structure an asset sale which would include all machinery and equipment, inventories, customer lists and the rights to use the Feather Flex |7trade style.” Among the documents included in his response were the 1988 agreement and 1991 amended agreement between Sport Tech and PI.

Berkley was unsuccessful in acquiring the Feather Flex line because he lacked the necessary financial resources.

Sport-Flex

In 1995, Tamborello and Berkley joined forces and formed Sport-Flex, Inc. with the intent to purchase the Feather Flex product line. Tamborello told Berkley that he thought they could accomplish this goal because QPI was having financial problems. Berkley owned 45% of Sport-Flex and Tamborello owned the remaining 55%. Tamborello was the president of Sport-Flex; Berkley was the vice-president of manufacturing.

On March 8, 1995, Berkley met with Brown, Jeane and Lenert to discuss Sport-Flex’s interest in purchasing the Feather Flex product line from QPI. Berk-ley told the others that he and Tamborello had an agreement in principle to buy it. Berkley also stated that he hoped the others would go along with reducing the royalty obligation on the Feather Flex line from the 3.5% paid by PI and (sometimes by) QPI to a 1% royalty. Brown, Jeane and Lenert rejected this proposal, although they were amenable to accepting a 1% royalty on non-decoy items bearing the Feather Flex name.

On March 25, 1995, a contract styled “AGREEMENT FOR SALE OF ASSETS” was executed by QPI and Sport-Flex. QPI conveyed to Sport-Flex certain assets relating to its Feather Flex division, namely, |sspecific accounts receivable of Feather Flex (valued at $189,937.34) and its Feather Flex inventory as of March 17, 1995 (valued at $417,092.47). Sport-Flex agreed to pay the face value of the accounts receivable and the total value of the Feather Flex inventory. In addition, Sport-Flex agreed to lease the machinery and equipment used by QPI to manufacture the Feather Flex decoys. The agreement also contained a covenant not-to-compete prohibiting QPI, for a period of three years, from engaging in a business similar to or in competition with the business of Sport-Flex regarding the Feather Flex line of products. The agreement was amended four days later to modify the provisions concerning the amount of the accounts receivable. It was again amended in August 1996 to modify the lease provisions.

QPI declared Chapter 11 bankruptcy on August 25, 1995. Curiously, Sport Tech never filed a proof of claim in this bankruptcy for the unpaid royalties, and was never listed as a creditor in the bankruptcy. QPI was also never sued for unpaid royalties.

Trademark Registrations

On May 31, 1995, Sport-Flex filed an application for trademark registration of the mark, “FEATHER FLEX and Design.” The application stated that the trademark was first used on goods and in interstate commerce as early as March 1993, with use of the mark by predecessor-in-title Q.P.I. Consumer Products Corporation.

On August 7, 1996, Sport-Flex filed an application for trademark registration of the mark, “FEATHER FLEX.” The application again recited that the mark was first used on goods and in interstate commerce as early as RMarch 1993, with the use of the mark by predecessor-in-title Q.P.I. Consumer Products Corporation. Tamborello believed that these were the same design and trademark that had been used by PI and QPI.

SporL-Flex continued to manufacture and sell decoys under the Feather Flex name. Berkley testified that he and Tam-borello changed the Feather Flex artwork after registering the trademark. He added that he developed big game decoys, refined old products on an annual basis and began using different types of foam on some decoys.

Federal Court Proceedings

On April 8, 1996, Sport Tech filed a complaint for declaratory judgment, accounting, damages and injunctive relief against Sport-Flex and Berkley in the United States District Court for the Western District of Louisiana. Sport Tech asserted four causes of action in its complaint:

(1) copyright infringement;
(2) false designation of origin and false description — trademark infringement;
(3) declaratory judgment that Sporb-Flex had no rights in and to the Feather Flex trademark and copyrighted artwork; and
(4)Berkley’s breach of his fiduciary duty.

Attached to the petition as an exhibit was an October 1988 certificate of copyright registration with the United States Copyright Office showing that a copyright registration of artwork for “Feather Flex Decoys” had been made by Coleman Brown. Sport Tech’s complaint was later amended to allege a fifth claim for relief: failure to pay royalties.

ImSport-Flex and Berkley filed a motion for summary judgment. A judgment on this motion rendered on March 4, 1988, reveals that Sport Tech did not oppose SporNFlex’s motion for summary judgment insofar as it related to claims of trademark infringement and copyright infringement, but it opposed Sport-Flex’s motion to the extent Sporb-Flex, Inc. claimed it did not owe any royalties to Sport Tech. Accordingly, the court ordered that Sport Tech’s trademark and copyright claims (the first, second and third causes of action) were dismissed with prejudice. Because the court had dismissed the federal claims and then had only pendent jurisdiction over the remaining state law claims of failure to pay royalties and breach of fiduciary duties, those claims were dismissed without prejudice.

Outland Sports, Inc.

On February 10, 1998, Sport-Flex entered into an asset purchase agreement with Outland Sports, Inc. Among the assets purchased were:

(1) all raw materials, works in process and finished goods inventory;
(2) all prepaid expenses;
(3) all vehicles, computers, software, equipment, molds, dies, tooling and supplies;
(4) all accounts receivable;
(5) all cash and cash equivalents;
(6) all of SporNFlex’s rights under any agreements relating to patents, copyrights, trademarks or other proprietary rights relating to the acquired business and all of Sports-Flex’s rights under any other agreements relating to the acquired business;
(7) all trademarks and trade names (including the trademarks and trade names Feather Flex Decoys and Sport-Flex) owned or In controlled by Sport-Flex or used in connection with the acquired business; and
(8) all patents, patent applications, copyrights and trade secrets owned or controlled by Sport-Flex or used in connection with the acquired business.

Outland agreed to pay $2,260,000.00, less escrow funds of $500,000.00, and assume liabilities including $543,687.42 owed to Guaranty National Bank. According to a separate escrow agreement, part of the escrow fund was set aside as litigation escrow to compensate Outland “for the impact of prospective royalty obligations (if any) owed to Sport>-Tech[.]”

The representation/warranty section of the agreement has a subsection pertaining to intellectual property matters, which states:
(i) Attached hereto as Schedule 5(p)(i) is a true and accurate list of all patents, copyrights, trademarks, and trade names, both foreign and domestic, owned, licensed or used by the Company all of which are included in the Assets. The Company owns and will transfer to Buyer the entire right, title and interest in all such patents, copyrights, trademarks, trade names and service marks other than those that are the subject of an IP Contract described below.

Attached as Schedule 5(p)(i) were United States trademark registrations for “FEATHER FLEX” registered on June 17, 1997 and “FEATHER FLEX,” with feathers representing the letter “F,” registered on January 7, 1997, as well as a Canadian registration of the trademark “FEATHER FLEX” registered on November 1,1996.

Following the closing of the agreement, SporL-Flex changed its name to “SFI Manufacturing, Inc.” Berkley agreed to provide consulting services to Outland.

11;,State Court Proceedings

On May 21,1998, Sport Tech filed suit in state district court against SFI Manufacturing, Inc., Outland Sports, Inc. and Robert Berkley. Sport Tech alleged that:

(1) Sporb-Flex acquired from QPI the exclusive manufacturing and distribution rights to the Feather Flex product line as set forth in the original and amended agreements with PI; ■
(2) As assignee/purchaser of those rights, Sporb-Flex became obligated to perform the obligations of its predecessors in title (PI and QPI) under the PI agreements; and
(3) Sporb-Flex and Outland breached the agreements by failing to pay royalties and failing to provide verified financial statements disclosing the sales of Feather Flex products.

Sport Tech further alleged that Berkley breached the fiduciary duty he owed to Sport Tech.

In defendants’ answer, Berkley filed a reconventional demand against Sport Tech, Lenert and Brown, alleging that Le-nert and Brown breached the fiduciary duty owed to him.

Trial was held in this matter on September 25, 2000, and August 15, 2001. Judgment was rendered on January 3, 2002, rejecting all claims by all parties. In its reasons for judgment, the trial court stated:

To prevail on the contract claim plaintiff must prove by a preponderance that defendants were bound or could be said to have legally assumed the royalty obligation as originally set forth in the “Agreement” of March 31, 1988 between Packaging Industries Group, Inc. and Sport Tech, Inc. La. Civil Code art. 1823 states, “An obligee and a third person may agree on an assumption by the latter of an obligation owed by another to the former. That agreement must be made in writing.... ”
The March 3, 1995 agreement between Q.P.I and Sport-Flex was for the sale of assets only. No obligations were I ^assumed therein by SporlAFlex. There is no evidence of any written agreement to which plaintiff and defendants were parties that would obligate the defendants to pay royalties to the plaintiff.

Sport Tech appeals only that part of the judgment denying its claim for royalties due to an alleged breach of contract. It does not appeal that part of the judgment denying its claim that Berkley breached his fiduciary duty.

DISCUSSION

The focus of Sport Tech’s argument before this court is that Sporb-Flex’s actions in manufacturing and marketing decoys under the Feather Flex name violated Sport Tech’s common law trademark rights acquired through its status as the first bona fide user. Sport Tech never applied for a trademark registration. There is a distinction between trade names and trademarks, as set forth in 15 U.S.C.A. § 1127:

The terms “trade name ” and “commercial name” mean any name used by a person to identity his or her business or vocation.
The term “trademark ” includes any word, name, symbol, or device, or any combination thereof—
(1) used by a person, or
(2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this chapter,
to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.

(Our emphasis.)

While Sport Tech’s claim that it possesses a common law trademark may be valid, the trademark aspect of the case may have been conclusively | udealt with in federal court, where Sport Tech asserted five claims for relief in its original and amended petitions: copyright infringement, trademark infringement, a declaratory judgment that Sporb-Flex had no right to the Feather Flex trademark and copyrighted artwork, breach of fiduciary duty, and failure to pay royalties. For reasons not evident in this record, Sport Tech’s counsel at the time did not contest Sport-Flex’s motion for summary judgment insofar as it related to the claims of trademark infringement and copyright infringement. Accordingly, the federal district court dismissed the copyright infringement, trademark infringement and declaratory judgment causes of action with prejudice.

In any event, Sport Tech did not seek any relief based upon trademark infringement in its state court petition. Safeguarding against attempts by Sport Tech’s counsel to enlarge the pleading through testimony and evidence regarding trademark ownership, Sport-Flex’s counsel objected on the grounds that the trademark claims had been resolved in the federal court proceeding. The trial court allowed the testimony regarding trademarks for a limited purpose, as reflected in its reasons for judgment:

Regarding the common law trademark and/or licensing claims, some testimony was elicited and exhibits introduced at trial regarding intellectual property rights, but timely objection was made to prevent any enlargement of the pleadings and the objection was made general to any such testimony or evidence. The testimony was allowed for the limited purpose of “background” on the breach of contract issue. Also, as stated above, these issues were disposed of in federal court and are not before this court.

|1sWe are cognizant of the difficulties faced by Sport Tech’s counsel on this appeal, who did not enroll as counsel in this matter until after the dismissal of the federal court proceedings and after Sport Tech rested its case in the state court proceedings. Nevertheless, the common law trademark claims have not been pled and are not before this court.

What is before this court is a breach of-contract claim. The position of Sport Tech is essentially that Sport-Flex, by allegedly purchasing the license to manufacture and market the Feather Flex line of decoys from QPI, stepped into the shoes of PI and QPI and assumed their obligations under the 1988 agreement and 1991 amended agreement with PI. Sport-Flex answers that it did not purchase a

license from QPI, but only purchased assets and leased equipment.

Our review begins with Sport-Flex’s 1995 agreement with QPI. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art.2046. Only when the agreement is unclear, ambiguous, or will lead to absurd consequences, should a court go beyond the written agreement to gather the parties’ true intentions. State Dept. of Transp. and Development v. Unknown Owners, 27,150 (La.App.2d Cir.9/27/95), 661 So.2d 626, writ denied, 95-2497 (La.12/15/95), 664 So.2d 459.

| ^Whether a contract is ambiguous or not is a question of law. NAB Natural Resources, L.L.C. v. Willamette Industries, Inc., 28,555 (La.App.2d Cir.8/21/96), 679 So.2d 477. In the case of ambiguity in a contract, where factual findings are pertinent to the interpretation of a contract, those factual findings are not to be ■ disturbed unless manifest error is shown. However, when appellate review is not premised upon any factual findings made at the trial level, but instead is based upon an independent review and examination of the contract on its face, the manifest error rule does not apply. In such cases, appellate review of questions of law is simply whether the trial court was legally correct or legally incorrect. Lawrence v. Terral Seed, Inc., 35,019 (La.App.2d Cir.9/26/01), 796 So.2d 115, writ denied, 01-3134 (La.2/1/02), 808 So.2d 341; Spohrer v. Spohrer, 610 So.2d 849 (La.App. 1st Cir.1992).

The March 1995 agreement for sale of assets between Sport-Flex and QPI was clearly and explicitly limited to the acquisition of specific assets (inventory and accounts receivable), lease of equipment and a non-competition clause. The leased equipment enabled SporL-Flex to manufacture the Feather Flex decoys. The agreement does not include any acquisition by SporNFlex of licensing rights, nor is there any assumption by Sport-Flex of an obligation to pay royalties.

La. C.C. art. 1821 provides that an obli-gor and a third person may agree to an assumption by the latter of an obligation of the former; to be enforceable by the obli-gee against the third person, the agreement must be made in writing. La. C.C. art. 1823 provides that an obligee and a third |17person may agree on an assumption by the latter of an obligation owed by another to the former; that agreement must be made in writing. Sport Tech stipulated that the March 1995 agreement does not contain any reference to a royalty agreement. Upon our review of this record, we cannot conclude that the trial court erred in ruling that the 1995 agreement was for the sale of assets only.

Even if this court looked past the clear and explicit terms of the agreement in order to determine the intent of QPI and SporiAFlex, our conclusion would be the same. Tamborello testified that the asset purchase agreement between QPI and Sporb-Flex did not include the Feather Flex trademark or design. Tamborello remarked that because he began working for QPI in April of 1993, he was not confident in exactly what assets were acquired by QPI and had to rely on what Renaldo told him about what QPI possessed. Thus, he wanted to purchase specific assets only and wished to avoid assuming any liabilities or obligations.

Marvin Bubley, who first represented Sport-Flex in March of 1995, drafted the 1995 agreement. He testified that the agreement was not written in any way to be an assumption of QPI’s rights or obligations, nor was it written to obtain licensing rights. Bubley further explained that even though he felt the agreement clearly expressed that Sport-Flex was purchasing only the inventory and accounts receivable, he wanted to design the agreement to make it apparent that Sporh-Flex was not assuming any liabilities under any royalty agreement.

11sLenert stated that although there was no direct agreement between Sport Tech and Sport-Flex, Sport-Flex became obligated to pay the royalty when it purchased the product line from QPI. Lenert added that Berkley’s attempt to reduce the royalty is what caused him to believe that Sport-Flex entered into an agreement with Sport Tech. Brown testified that he thought no new agreement needed to be made with Sport-Flex and that Sport-Flex would be operating under the agreement with PI. Brown explained that he believed that the March 1995 meeting with Berkley suggested that Sport-Flex was obligating itself to pay royalties. Jeane testified that he assumed that Sport-Flex would be obligated to pay royalties under the terms of the agreement with PI just as QPI had been obligated and had paid some royalties. Much assuming was going on.

Berkley testified that had he been successful in 1993 in acquiring the Feather Flex product line from PI, then he would have paid royalties to Sport Tech. He also expected to pay royalties at the time of the March 8, 1995, meeting, although he thought 3.5% was excessive and floated the idea of a 1% royalty. Berkley explained that he assumed at the time that Sport Tech had registered the Feather Flex trademark because his colleagues at Sport Tech had previously represented to him that they had registered it. Regardless of Berkley’s belief regarding the status of a registered trademark at the time of the meeting, he lacked the authority at the time to even agree to a royalty obligation on behalf of Sport-Flex.

119SporNFlex apparently felt that the trademark could be acquired outside the agreement through registration because it was believed that Sport Tech did not own it. Bubley testified that he hired the University of South Florida to conduct a trademark search for Feather Flex before the agreement with QPI was executed. Two listings were found. One listing was for a mattress company, which had been cancelled, and the other listing was for a fishing rod company. No company engaged in the sale of animal decoys had registered the trademark. Bubley knew at the time the agreement was executed that no trademark had been registered by Sport Tech. Thus, he believed that QPI was incapable of conveying a registered trademark because they did not have one.

Berkley testified that shortly after the 1995 agreement with QPI, Tamborello asked him if Sport Tech had protected the trademark. He further testified that he and Tamborello then hired an attorney in Massachusetts, Richard Crowley, who told them the trademark had not been registered and asked them why they would consider paying royalties to Sport Tech because Sport Tech had nothing to convey. Tamborello testified that when Bubley told him that Sport Tech did not have a registered trademark, he did not tell Berkley about this at first. He then hired Crowley, an attorney more experienced in trademark and patent law, to do a more thorough search. Berkley testified that he wasn’t involved in the negotiations with QPI.

In support of its assertion that Sport-Flex acquired Sport Tech’s licensing rights from QPI, Sport Tech directs this court’s attention to:

| an* the 1993 letter from Tamborello to Chastain,
• the covenant not to compete in the March 1995 agreement with QPI,
• testimony from the attorney who drafted the 1995 agreement,
• statements in SporWFlex’s trademark registrations that QPI was the predecessor-in-title, and
• a motion to compromise filed in QPI’s bankruptcy.

The June 11, 1993, letter from Tambo-rello to Chastain was written in response to Berkley’s overtures about purchasing equipment, inventory and the rights to use the Feather Flex name from QPI. Tambo-rello answered in this letter that QPI wished to structure an asset sale which included, among other things, “the rights to use the Feather Flex trade style.” We emphasize that this letter was written almost two years prior to the 1995 agreement and, as such, provides no insight into exactly what Berkley and Tamborello desired to acquire from QPI in 1995.

The covenant not to compete prohibited QPI, for a period of three years, from competing with SporWFlex “with reference to Feather Flex (TM) line of products.” Sport-Flex was prohibited for a period of three years from competing with QPI “with reference to the products that [QPI] currently manufactures and/or sells, except for the Feather Flex (TM) product line.” There are several other references to a “Feather Flex (TM) product line” in this non-competition clause.

Tamborello agreed that the non-compete clause cut off QPI’s right to manufacture and market the Feather Flex decoys; otherwise, the inventory he purchased would be worth much less. Bubley denied that the purpose of Rithe non-competition clause was to transfer licensing rights from QPI to Sport-Flex. He explained that the purpose was to designate which products either company could not sell, not to grant rights to sell. He added that the “TM” was used after Feather Flex in the non-competition clause as a descriptive term to identify the product line subject to the covenant not to compete. It was not used to designate a trademark. Bubley recalled that QPI’s attorney used the “TM” to characterize the Feather Flex line of products.

Sport Tech contends that Sporb-Flex’s acquisition of Sport Tech’s licensing rights from QPI was confirmed and acknowledged by Bubley at trial. The following excerpt of Bubley’s testimony during examination by Sport Tech’s counsel is reproduced in Sport Tech’s appellate brief:

Q: Mr. Bubley, did I understand you correctly that you began representing Sporfi-Flex, Inc. or SFI Manufacturing, Inc., in 1995?
A: That’s correct.
Q: You hadn’t represented them before then?
A: No. No, sir.
Q: Have you represented them continuously since then to the present date?
A: Yes, I have.
Q: So you’re their retained counsel as we now speak?
A: Correct.
Q: Okay. Now, you gave testimony about exhibit — Defendant’s Exhibit Number Five, the agreement for sale of assets?
A: That’s correct.
LaQ: Would you turn to Article Nine of that agreement and tell me if you inserted that clause in the contract?
A: Yes. That was a clause that was drafted — correct, that was in the contract.
Q: So, as a result of those cross non-compete agreements in Article Nine, your client acquired the rights — the licensing rights to manufacture, market and sell the Feather Flex decoy products?
A: Whatever rights went along with the assets being sold, that would be correct.
Q: Yes, sir. Thank you very much. Your clients didn’t have those licensing rights prior to the execution of this agreement did they?
A: That was the purchase of the — the purpose of the agreement was to acquire those assets.

The answers given by Bubley cited by Sport Tech were taken out of context. First, we note the portion of Bubley’s testimony deleted by Sport Tech’s counsel in his brief and replaced by ellipses:

Q: Right. And was not the purpose of that clause to transfer the licensing rights of Feather Flex trademark line of products from Q.P.I. to your client?
A: No. That was — The second paragraph of that clause indicates — it’s a cross collateral covenant not to compete.
Q: Right.
A: The purchaser was — agreed not to sell certain things' and the seller agreed not to sell certain. The first paragraph was put in that — as a means by to provide description or kind of adjective of what would qualify as a Feather Flex-type product and the seller would be refrained from selling.
Q: And why did you want the seller to be refrained from selling Feather Flex line of products in this agreement?
laaA: Because they were — they were providing or selling to Sport-Flex the inventory, the assets. So, we did not want them to sell those assets — to sell that inventory items.
Q: They were also selling your client the equipment necessary to manufacture the products—
A: Right. They—
Q: —the Feather Flex products?
A: They were leasing — they were leasing — Correct. They were leasing under a machinery and equipment lease—
Q: In honor of this—
A: The right to produce those products. I’m sorry.
Q: No, I’m sorry. I didn’t mean to interrupt you. So, your clients, under this agreement, got the equipment — the rights to the equipment to manufacture the Feather Flex line of decoy products?
A: That is correct.
Q: And they got the accounts receivable?
A: Specific rights. — Specific accounts receivable.
Q: Right. And under Article Nine they got an agreement from the seller not to manufacture and sell Feather Flex decoy products anymore?
A: Correct. And we in turn agreed not to sell any other products that Q.P.I. Consumer Products made.
Q: Except—
A: Except—
Q: What?
A: Except the Feather Flex type products.

Bubley clearly denied that the purpose of the non-competition clause was to transfer licensing rights. Bubley later stated:

|?4Q: Is it not a fact, Mr. Bubley, that your clients wanted to acquire the licensing rights from Q.P.I. to manufacture, market and sell the Feather Flex decoys products under the trade name, Feather Flex, by the — under this Article Nine of the contract?
A: Well, there were no licensing rights which Q.P.I had which we were buying, otherwise, we’d have them transfer it to us. I mean there’d actually be some sort of transfer of licensing rights, trademarks, intellectual property law, whatever they had, but they had — they did not have any sort of licensing rights that we were going to purchase or that they actually even had to transfer to us.

When Bubley’s testimony is read in its entirety, it is apparent that he did not draft the agreement so as to acquire licensing rights from Sport Tech.

In its May 31, 1995, and August 7, 1996, applications to register the Feather Flex trademark, Sport-Flex stated that the Feather Flex trademark had first been used on goods and in interstate commere as early as March 1993 by a “predecessor-in-title, Q.P.I. Consumer Products Corporation.” We disagree that this is evidence that SporNFlex acquired licensing rights from QPI. It simply meant that QPI had previously used the trademark in commerce, but had not registered it. Moreover, this evidence is more relevant to the issue of trademark ownership, which is not an issue before this court.

Finally, Sport Tech directs this court to a “motion to compromise controversy with SporNFlex” filed by QPI in its bankruptcy proceedings on May 20, 1996. This motion stated that QPI sold the Feather Flex product line to SporNFlex, and the product line “involved equipment, patent and licensing rights used in connection with the production of decoys and related sports products.” At the time, Sport-Flex and QPI were involved in 125a dispute over the usability of some of the inventory and the status of the equipment that was being leased. As a result of their dispute, Sporh-Flex and QPI agreed to alter the terms of the equipment lease and to reduce the purchase price of the inventory from $417,092.47 to $267,347.53.

Bubley testified that the motion to compromise had been drafted by QPI’s attorney. Bubley related that he did not see the motion before it was filed, and he noted that the motion’s prayer for relief recited what the parties sought. Bubley claimed that he told the bankruptcy judge at the hearing on the motion that, although the prayer for relief was correct in the motion, the motion contained an error in its description of what was sold by QPI to Sport-Flex. Bubley also claimed that QPI’s attorney amended the motion at the hearing. We note that the order granting the motion to compromise refers only to the purchase of inventory and lease of equipment. In any event, the language used by QPI in the motion to compromise cannot alter the clear terms of the agreement for sale of assets.

Sport Tech’s argument that Sport-Flex acquired Sport Tech’s licensing rights to the Feather Flex trademark is unpersuasive.

Frivolous Appeal

Appellees contend that this appeal is frivolous and accordingly seek damages, costs and attorney fees. We disagree. This is a quite complicated area of the law. In any event, since appellees failed to appeal or answer the appeal, they would not be entitled to frivolous appeal damages, costs or attorney fees. See, La. C.C.P. art. 2133 and Hill v. Cloud, 26,391 (La. App^d Cir.1/25/95), 648 So.2d 1383, unit not considered, 95-0486 (La.3/17/95), 651 So.2d 260.

DECREE

At appellant’s costs, the judgment is AFFIRMED.

      . Berkley claimed that except for a white-tail fawn, he contracted for all of the master decoys to be built. He also claimed that he was the person primarily responsible for developing the manufacturing process, that he created the specifications for the materials used in the decoys, and that he was involved full-time in the designing and construction of the decoys.

      . Apparently Berkley had earlier attempted to acquire the Feather Flex line from PI but had been told that QPI was already in the process of doing so.

      . Sport-Flex later changed its name to "SFI Manufacturing, Inc.”

      . A federal court summary judgment (based upon the burden of proof and not lack of jurisdiction) is a final judgment for purposes of a subsequent state court plea of res judica-ta. Fust v. Fontenelle, 558 So.2d 715 (La. App. 4th Cir. 1990).

      . The 1995 agreement between QPI and Sport-Flex contains a choice of law provision stating the agreement is to be construed in accordance with Florida law. Neither party has cited Florida jurisprudence relative to interpretation of the contract. Sport-Flex cites Louisiana law. We note that Florida law on interpretation of contracts appears similar to Louisiana law. "When a contract is clear and unambiguous, the court is required to enforce the contract according to its plain meaning.” Feldman v. Kritch, 824 So.2d 274 (Fla. 4th DCA 2002).

      . Jeane testified that shortly before the first lawsuit was filed, Berkley approached him and said he had been authorized by Tambo-relio to offer a 0.5% royalty. Berkley denied this.