text:
    LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT v. Kevin FITCH and Bayou Land Investment, Inc.
    No. 03-377.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 1, 2003.
    Rehearing Denied Nov. 5, 2003.

      John Alfred Mouton, III, Lafayette, LA, for Plaintiff/App elle e: Lafayette City-Parish Consolidated Government.
    Kaliste Joseph Saloom, III, Saloom & Saloom, Lafayette, LA, for Defendant/Appellant: Kevin Fitch, Bayou Land Investment, Inc.
    Court composed of JOHN D. SAUNDERS, MARC T. AMY, and GLENN B. GREMILLION, Judges.
   LAMY, Judge.

The Lafayette City-Parish Consolidated Government brought this enforcement action against the defendant property owners asserting violations of an ordinance related to the operation of salvage yards. In particular, the City complained that the defendants failed to comply with the enclosure requirements relevant to this type of business. The trial court found in favor of the City, ordering enforcement. The defendants appeal. For the following reasons, we affirm.

Factual and Procedural Background

Defendants, Bayou Land Investments, Inc. and its owner, Kevin Fitch, purchased a tract of land in the City of Lafayette in 1993. The property abuts Ambassador Caffery Parkway. The defendants operate an auto salvage yard on that property. Prior to purchase, use of that portion of property zoned for fight industry as an auto salvage yard was approved by the zoning board of the City. The record indicates that, by March 1995, the City, through the Director of Zoning and Development, notified Mr. Fitch that his business was in violation of zoning requirements due to the use of the residentially zoned portion of the property for salvage operations. Furthermore, he was ordered to remove junked vehicles not contained in the area zoned for fight industrial use. Mr. Fitch was also ordered to comply with City fencing requirements. Subsequently, in May 1995, Mr. Fitch sought approval of the City, through Environment Quality Manager Bette Vidrine, to erect a fence using a specific type of fabric. The City approved the proposal, notifying Mr. Fitch by letter dated March 3, 1995. An internal memo indicates that | ?Mr. Fitch informed the City that he was proceeding with the work. According to Ms. Vidrine, however, the approved cloth was not used for the fence. She explained that, despite Mr. Fitch’s efforts, there has never been a sight-proof fence on the property and that she knew of several prosecutions regarding the fence.

This case, which commenced with the City of Lafayette filing a Petition for In-junctive Relief and For Abatement of a Nuisance in June 1998, involves, in part, the question of whether the defendants complied with the fencing requirements attendant to auto salvage businesses. The City alleges that the defendants have consistently failed to meet those requirements. The City presented evidence indicating this failure is not only ongoing, but is of a longstanding nature. The defendants contend that they should.be subject to the City Ordinance existing at the time their business commenced and not to more stringent fencing requirements subsequently enacted. The issue of which ordinance was to be enforced became an issue in the instant litigation.

At the time of the purchase, the City Code of Ordinances, adopted in 1965, was in effect. A portion of that ordinance related to salvage yards. In particular, Chapter 1414 was entitled “Junked Property.” Section 1414-12, which is entitled “Enclosure required,” provided at that time as follows:

No person, firm, or corporation shall store or offer for sale any iron and steel junk, rags or wreckage of motor-driven vehicles or automobiles or trucks, including parts and accessories thereof, and no person, firm, or corporation shall wreck or dismantle said items for commercial purposes on any open lot or parcel of ground that is not properly enclosed on all boundary lines with a substantial fence not less |3than seven (7) feet nor more than ten (10) feet high and properly screening said enclosed area from public view. Such areas or parcels of land, or premises, shall be enclosed with a solid, nontransparent wall or fence, excepting for entrances and exits. Chain-link fencing is permissible if appropriate slates are inserted into the wire mesh to make the fencing nontransparent. The fence or wall shall not contain any poster or advertising of any kind excepting one sign of the owner, lessee, operator, or licensee of said premises' on each street frontage not exceeding one hundred (100) square feet in size. Said seven (7) feet minimum height requirement for fences shall not apply to those storage facilities which are in compliance with section 24-106. (Ord. No. 0-1484, § 1, 4-19-77)

Section 14 Vi-5 of the Code provided that the City could file a petition for abatement in the City Court of Lafayette.

The 1965 Ordinance was repealed and rescinded in 1997, with the Lafayette City-Parish Council adopting Ordinance 0-863-97, which again contained an enclosure requirement at Article TV, Section 14 34 — 15. The provision contained a more stringent fencing requirement, providing:

No person, firm, or corporation shall store or offer for sale any recyclable items, paper, iron or steel junk, rags or wreckage of motor-driven vehicles or automobiles or trucks, including parts and accessories thereof, and no person, firm, or corporation shall wreck or dismantle said items for commercial purpose on any open lot or parcel of ground that is not properly enclosed on all boundary lines, except where prohibited by any law or regulation, which enclosure shall be by a substantial fence not less than seven (7) feet nor more than ten (10) feet high and properly screening said enclosed area from public view. In such instances where a law or regulation prohibits the complete enclosure on all boundary lines, there shall be substantial compliance by making as much enclosure as possible of the lot or parcel of ground, except as prohibited by any law or regulation. Any decision as to whether or not the enclosure substantially complies shall be made by the Director of Public Works and/or his des-ignee. The fence shall be uniform in color and in height with all material, including posts and fencing, being of uniform height, color and construction. Said fence shall be wind resistant and able to withstand fifty (50) mile per hour winds, constructed of a solid rigid material, and completely non-transparent and of uniform color. The uniform color shall be any shade of beige, brown, black, dark green or gray. The color shall be approved by the Director of Public Works or his designee prior to installation of the enclosure. Such areas or parcels of land, or premises, shall be |4enclosed with the aforedescribed solid, non-transparent wall or fence. The fence or wall shall not contain any poster or advertising of any kind excepting one sign of the owner, lessee, operator, or licensee of said premises on each street frontage not exceeding one hundred (100) square feet in size. Said seven-foot minimum height requirement for fences shall not apply to those storage facilities which are in compliance with Section 24-107 of the City of Lafayette Code of Ordinances or any successor provisions in the City-Parish Code of Ordinances.

Section 14 54-23 provided for a one-year phase-in period. Article V, Section 14 %~ 26 provided for violations of the chapter to be punishable as a misdemeanor by fine or a period of imprisonment. It noted that “[e]ach day of violation shall constitute a separate offense.” Section 14 ]4-27 instructed that: “The prosecution of any such misdemeanor shall be tried in any Court of competent jurisdiction.”

Subsequently, in 1998, by Ordinance 0-107-98, the Lafayette City-Parish Council amended the 1997 enclosure provision, further strengthening the wind resistance required of the nontransparent material described in the ordinance. Following the 1998 amendment, Section 1414-15 required:

No person, firm, or corporation shall store or offer for sale, commercially and/or for profit, any recyclable items, paper, iron and steel junk, rags or wreckage of motor-driven vehicles or automobiles or trucks, including parts and accessories thereof, and no person, firm, or corporation shall wreck or dismantle said items for commercial and/or for profit purposes on any open lot or parcel of ground that is not properly enclosed on all boundary lines, except where prohibited by law or regulation, which enclosure shall be by a substantial fence not less than seven (7) feet nor more than ten (10) feet high and properly screening said enclosed area from public view. In such instances where a law or regulation prohibits the complete enclosure on all boundary lines, there shall be substantial compliance by making as much | ^enclosure as possible of the lot or parcel of ground, except as prohibited by any law or regulation. Any decision as to whether or not the enclosure substantially complies shall be made by the Director of Public Works and/or his des-ignee. The fence shall be uniform in color and in height with all material, including posts and fencing, being of uniform height, color and construction. Said fence shall be wind resistant and able to withstand one-hundred (100) mile per hour winds, constructed of a solid rigid material, and completely nontransparent and of uniform color. The uniform color shall be any shade of beige, brown, black, dark green or gray. The color shall be approved by the Director of Public Works or his designee prior to installation of the enclosures. Such areas or parcels of land, or premises, shall be enclosed with the aforesaid solid, non-transparent wall or fence. The fence or wall shall not contain any poster or advertising of any kind excepting one sign of the owner, lessee, operator, or licensee of said premises on each street frontage not exceeding one-hundred (100) square feet in size. Said seven (7) foot minimum height requirement for fences shall not apply to those storage facilities which are in compliance with Section 24-107 of the City of Lafayette Code of Ordinances or any successor provisions in the City-Parish Code of Ordinances.

The City complained in its petition that, despite prior prosecution, the defendant failed to comply with the ordinance requiring sight-proof fencing and that he was storing junked vehicles on that portion of the property zoned as R-2. Further, the City asserted that the defendant improperly stored vehicles outside of the existing fence and permitted ingress and egress of the facility by individuals who would jump the curb rather than enter through a designated entrance. The City alleged that: “Such activity not only violates the Site Proof Fence Ordinance, but constitutes a nuisance subject to abatement through in-junctive relief.” The City continued, stating:

The entire operation of Defendants constitutes nuisance in that it is operated in a manner which is offensive to the natural sensibilities of any reasonable person. Petitioner is entitled to a judgment enjoining Defendants from continuing any further junked car dismantling or salvage operations and commanding Defendants to cease and desist all such operations unless and until Defendants are willing to conduct operations in compliance with the provisions of the City of Lafayette Zoning Ordinance and other provisions of the City of Lafayette Code of Ordinance.

|fiIn May 1999, the City filed a supplemental petition, informing the court that the City Ordinance had been amended and that all those facilities affected by the ordinance were provided with a one-year period for compliance. The City stated that the defendants were provided notice of the statute and the one-year period, but that there had been no compliance with the sight-proof fencing requirement. The City alleged that: “In view of the fact that Defendants never complied with the requirements of the previously existing si[ght] proof fence ordinance, they can hardly be heard to allege that they should somehow have their facility grandfathered and not subject to the requirements of the new si[ght] proof fence ordinance.”

The matter was heard in September 2002. The trial court heard from City officials regarding their course of dealing with the Fitch property and the alleged failures to comply with the ordinance. The City also presented owners of property near that of Mr. Fitch, who explained their course of dealing with the alleged violations.

Following the hearing, the trial court orally ordered that the R-2 zoned property be cleared of junked vehicles within ninety days. Failure to do so would result in the assessment of a $100 per vehicle, per day fine. Those vehicles located outside the existing fence were ordered cleared within ten days. Failure to clear those vehicles would also result in a fine. The gate on Ambassador Caffery was ordered sealed and no access permitted onto Ambassador Caffery.

Post-trial briefs were ordered on the issues raised by the defendants, namely, whether: the trial court had subject matter jurisdiction over the enforcement of the ordinance; the action had prescribed; the defendants had to comply with the 1965, 1997, or 1998 version of the Ordinance; the material used by the defendant met the ^requirements of the applicable ordinance; and the fence required by the ordinance was to be located on the line of the R-2 property or the 1-1 property.

Following the briefing period, the trial court rendered written reasons and concluded that subject matter jurisdiction existed due to the wording of the 1997 Ordinance, that the matter had not prescribed, and that the suit sought enforcement of the 1998 Ordinance. Finally, the trial court concluded that the fence as it exists is located on the line of the R-2 portion of the defendants property and that its location substantially complied with the ordinance. The issue of whether the material used by the defendant satisfied the requirements of the 1998 Ordinance was bifurcated. Following a subsequent, February 2003 hearing, the trial court concluded that the material used did not satisfy the Ordinance.

The defendants appeal, asserting the following issues in their brief to this court:

1. Whether the trial court has subject matter jurisdiction to hear all or part of this matter.
2. The application of prescription to the instant ordinance at issue.
3. The retroactivity and applicability of the amended ordinances to the instant matter (i.e., which amended version of the instant ordinance applies).
4. Whether the materials used by Defendants meets ordinance requirements.

Discussion

Subject Matter Jurisdiction

The defendants assert that the trial court lacks subject matter jurisdiction to hear the matter. They contend that it is the 1965 version of the Ordinance which is applicable. Section 1414-5 of the 1965 Ordinance states that if a “notice to abate has not been complied with, the city may file a petition for abatement in the city court 18of Lafayette to have the offending junked items declared a public nuisance and to order their abatement.” The City contends that subject matter jurisdiction over the matter was vested to the district court through the wording of the 1997 Ordinance.

The trial court found as follows with regard to subject matter jurisdiction:

This Court finds itself to be a “court of competent jurisdiction” in compliance with the requirements of the 1997 and 1998 versions of the Lafayette City-Parish Code of Ordinances. In December 1997, when the City-Parish Council Amended the Ordinance, the first proviso stated:
ORDINANCE No. 0-363-97
An ORDINANCE OF THE LAFAYETTE City-Pajrish Counoil
Rescinding and Repealing the Existing Chapter 14 — %
(Junked Property) of the Code OF ORDINANCES OF THE ClTY of Lafayette,
Louisiana, and Rescinding and Repealing the
Existing Chapters 12.5 (Junked Property) and 15 (Nuisances) of the Code
Of Ordinances of the Parish of Lafayette, Louisiana,
And Establishing Revised Regulations Concerning,
Nuisances, Junked Items, and Enclosures
Thus, both the old city ordinances and parish ordinances were repealed and the consolidated government came into effect, establishing jurisdiction of this matter in any “court of competent jurisdiction.” Because this Court has jurisdiction over the entire Parish of Lafayette, it follows, that this Court has subject matter jurisdiction over this matter involving property located in this parish.

The defendants are correct in their assertion that the 1965 Ordinance vested jurisdiction for enforcement of that Ordinance in Lafayette City Court. However, as noted by the trial court, the 1997 Ordinance repealed the prior version along with the specific assignment of jurisdiction to the City Court of Lafayette. Further, the 19971 gOrdinance refers to the filing of a petition for abatement in a “Court of competent jurisdiction[.]” See La. Const, art. 5, § 16. Again, the 1965 Ordinance was repealed prior to the filing of the instant matter. As the trial court stated, because the district court “has jurisdiction over the entire Parish of Lafayette, it follows, that this Court has subject matter jurisdiction over this matter involving property located in this Parish.” The proceedings reveal that the complaints relate to, not only past behavior that may have been violative of an Ordinance over which the city court had jurisdiction, but to ongoing, allegedly daily violations now controlled by the more recent ordinance.

Furthermore, the defendants reference Lowenburg v. Entergy New Orleans, Inc., 99-1270 (La.App. 4 Cir. 5/17/00), 763 So.2d 751, writ denied, 00-1577 (La.8/31/00), 766 So.2d 1279, for the proposition that enforcement of municipal ordinances and zoning regulations that reserve enforcement to a court of limited |mj urisdiction leaves a district court with only appellate review of the lower court’s determination. However, the case before the fourth circuit in Lowenbwrg is unlike that in the present case. In Lowenbwrg, the district court was found to lack subject matter jurisdiction over the issue presented as the Home Rule Charter of the City of New Orleans vested original jurisdiction over issues involving the regulation of utility rates to the City Council. Because the matter before the court was found to involve regulation of utilities, the district court was found to be without jurisdiction. In the present case, however, we have no indication of any such designation of original jurisdiction in the City Court of Lafayette. Rather, references are to concurrent jurisdiction and, in fact, the 1965 Ordinance designating City Court was repealed by the subsequent Ordinance. We find no error in the trial court’s determination regarding subject matter jurisdiction. Prescription

The defendants contend that the trial court erred in faffing to find that the action for abatement had not prescribed. They contend that by operation of libera-tive prescription, the instant cause of action has prescribed. They point to La.R.S. 9:5625 Infer the proposition that enforcement of the longstanding condition of the fence has prescribed. Referencing the statute, the defendants assert that any cause of action prescribed before the enactment of the 1997 statute as evidence indicates that the City was aware of the condition of the fence by 1994, but did not file suit until 1998.

In denying the exception of prescription, the trial court found:

This Court finds that this action is not prescribed. Defendants have repeatedly and continuously assured both the City and Lafayette City-Parish Consolidated Government that they would comply with the requirements of the ordinances. Negotiations started in 1995 as to the type of fence to be constructed, and although construction began as early as 1995, the fence has never been fully completed from a standpoint of total enclosure or sight proof requirements as per the ordinance. Pictures taken of the yard at the time of trial show that portions of the fence are still not secured leaving the yard in full public view. Due to the continuing nature of the violations, this Court hereby denies the exception of prescription.

It is correct that the evidence reveals the City’s longstanding knowledge of the condition of the fence. The record contains citizen complaints, indication of criminal prosecutions, and substantial evidence of the City’s continued negotiations with Mr. Fitch regarding compliance with the Ordinances. Although there is evidence of knowledge of past violations, the suit alleges ongoing, daily violations. While the early conduct from 1994 and 1995 may be relevant to the factual background of the City’s case, the current violations are the City’s focus. The question of whether a 11P!petition could be maintained for early violations is not before the court. Rather, the record supports the view that the City is alleging ongoing, daily infractions under the current ordinance. In short, the defendants cannot be grandfathered into a regulation that did not exist at the time they allege the City was ignoring their violation. The present ordinance requires a specific, wind resistant type of material. The defendants’ contention that they should benefit from a grandfather clause due to violations of an older ordinance that did not contain a requirement this stringent is without merit.

Retroactivity

The defendants next contend that the City’s practice of passing ever more onerous Ordinances after business was begun in 1993, has deprived them of due process rights. They contend that “the only applicable zoning restrictions and ordinance applicable to the instant litigation, the violation of which is categorically denied, are those which were in effect at the time Appellee issued to Appellants their business license and up to two years thence, that is the City of Lafayette, Ordinance effective May 15, 1965 to November 20,1997.”

The defendants point to La.Civ.Code art. 6, which provides: “In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretative laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary.” In Walls v. American Optical Corp., 98-455, p. 5-6 (La.9/8/99), 740 So.2d 1262, 1267, the Louisiana Supreme Court considered whether a statute had retroactive application, inquiring as to whether the statute “either (1) evaluates the conditions of the legality of a past act, or (2) modifies or suppresses the effects of a right already acquired.” The supreme court found that if neither of the consequences were produced, the statute operates prospectively, and lisbars a cause of action that arose after the statute’s effective date. Id. Quoting United States Supreme Court jurisprudence, the supreme court further explained: “A statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment, or upsets expectations based in prior law. Rather the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Id. at 1266, quoting Landgraf v. USI Film Products, 511 U.S. 244, 269-70, 114 S.Ct. 1483, 1499, 128 L.Ed.2d 229 (1994) (citations omitted)(footnote omitted).

Addressing the issue of retroactivity, the trial court found:

Defendants argue that any attempt to apply the amended ordinances to them is an attempt to retroactively apply the law. However, this Court is impressed by the plaintiffs argument that defendants are not being prosecuted for having violated the 1998 ordinance provisions prior to 1998. Rather, they are being pursued for failing to construct a fence in compliance with the new ordinance after the phase-in period elapsed and that all persons in the junk storage business were given the same phase-in period and are subject to the same fence requirements.
This Court finds defendants to be subject to the requirements of the 1998 Ordinance and hereby orders the parties to set for hearing a determination as to whether the materials used by defendants in constructing the fence comply with those requirements.

This view is supported by the record.

Although the City presented evidence regarding failure to comply with the 1965 Ordinance, that in effect at the time the defendants commenced business, and failure to comply with a variance approved by the City, the enforcement action relates to ongoing, daily violations. While the defendants’ past conduct may be relevant to the trier of fact, it is clear that the City is alleging ongoing violations and seeking remedy under the current ordinance.

| uCompliance

Returning to the argument that the 1965 Ordinance is the provision applicable to their business, the defendants assert in their brief “that the evidence and testimony adduced at trial proves that Appellants have installed around the totality of their premises a substantial, safe, sight proof fence, albeit not to the arbitrary and subjective liking of Appellee’s interpretation of its ordinance, which ever one it is now seeking to enforce.” They contend that they have “continuously maintained, albeit with regular maintenance” a fence made of treated telephone poles, high strength wire and dark, opaque material.

Following presentation of the evidence regarding the suitability of the material used by the defendants, the trial court found that it did not comply with the statute, that it lacks adequate UV protection for long-term durability and offers insufficient wind resistance for compliance with the statute. The trial court briefly recounted the history of the March 1995 letter ordering the defendant to comply with the fencing requirement and further explained:

Mr. Fitch then began negotiations with the City for the construction of a fence and requested approval of a black fabric to be used as covering on the fence. This fabric was approved by the City; however, Mr. Fitch used a different but similar fabric to complete the fence. According to a memo prepared by the City of Lafayette, Mr. Fitch had purchased all the grid work by May 30, 1995 and had begun construction of the fence. Mr. Fitch testified at trial that construction and maintenance of the fence has been ongoing and continuous since that time. Despite these efforts, the sight proof fence has not been properly maintained and there are many areas left uncovered by the black material, exposing the yard to full public view.

The record fully supports these factual findings. Testimony presented indicates that the fabric used by the defendants was, not only, different from that which was approved by the City prior to the 1997 Ordinance, but that when installed, it was I ^inadequate. Testimony indicates that the fabric would often become unattached and would blow from the fencing frame. The owner of property adjacent to that of the defendants explained that he had filed inquiries with the City regarding the state of the fence. He also stated that there has not been a time when a sight-proof fence surrounded the entirety of the facility. The testimony in the record supports the view that this condition existed at the time of trial. The trial court’s factual findings in this regard are not manifestly erroneous.

Post-Trial Proceedings

In their final assignment of error, the defendants question the trial court’s determination to bifurcate the issues and hold an additional hearing following the September 2002 trial. It was at the subsequent trial that the trial court heard evidence related to the issue of whether the material used by the defendants was adequate under the ordinance. The defendants argue that this opportunity provided the City with an additional opportunity to prove its case.

The defendants’ objection regarding the opening of evidence was presented to the trial court at the time of the February 2003 hearing. The trial court explained that it had bifurcated the issue of the suitability of the material stating:

And bifurcated the issue of whether the material — because in my ruling the issue initially, while we didn’t have an issue with regard to the material at the first trial, was because we were to determine which ordinance it was. So how could we have had a trial or evidence with regards to material that we didn’t know which material was to apply? Will [sic], I think that’s what I said at the first hearing, that I would not allow that testimony to come until I made that decision.

This explanation by the trial court is reflected in the proceedings at the September 2002 trial after which the trial court ordered briefs regarding the exceptions raised by the defendants and the issue of which Ordinance was at issue. The trial court’s | ^determination to not accept evidence regarding the sufficiency of the material was dependant on that initial determination. Furthermore, with regard to the defendants’ assertion that the trial court should have granted a directed verdict in their favor after the original hearing, that argument is without merit given the consistency of the City’s witnesses’ testimony regarding the state of the fence around the property. This assignment lacks merit.

DECREE

For the foregoing reasons, the decision of the trial court is affirmed. All costs of these proceedings are assigned to the defendants, Kevin Fitch and Bayou Land Investments, Inc.

AFFIRMED.

      . The letter states:
      The City is granting its approval to your proposed fence, consisting of: an eight-foot high grid as you have already erected on parts of Des Jacques Road, covered by a double thickness of Nico-Shade Fabric, Style 43419, with specifications as on the attached spec sheet. This fence is to surround the property owned by Bayouland Investments on Des Jacques Road being utilized as a salvage yard.
      I am enclosing a copy of Mr. Don Fuselier’s memo of April 10, 1995, approving same. You are expected to proceed with construction of this fence immediately

      . Section 14 {4-23, states:
      The requirements set forth in Article IV— Enclosures, including but not limited to the necessity for a substantial fence set forth in Sec. 14 14-15 shall not become effective until one (1) year after the effective date of this Ordinance. During such period of time, the Director of Public Works or his designee shall inform all parties to be affected by the requirements of this Ordinance and this one (1) year period shall enable and allow such parties a sufficient time to comply with the provisions of Article IV — Enclosures and the required fencing.

      . The subject matter jurisdiction of the City Court of Lafayette is defined by La. Code Civ.P. art. 4843 which provides, in part:
      A. Except as otherwise provided for in this Article, the civil jurisdiction of a city court is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed ten thousand dollars.
      B. The civil jurisdiction of a city court in which the population of the territorial jurisdiction is greater than fifty thousand is concurrent with the district court in cases or proceedings instituted by the state, a parish, a municipality, or other political subdivision of the state or injunctive relief or other civil relief for the cessation or abatement of any acts or practices which may violate a parish or municipal ordinance or state law. In such case, the court has jurisdiction regardless of the amount in dispute or the value of the property involved.

      G. In the City Court of Lafayette, the civil jurisdiction is concurrent with the district court in cases where the amount in dispute, or the value of the property involved, does not exceed fifteen thousand dollars.

      . Entitled "District Courts; Jurisdiction,” La. Const, art. 5, § 16 provides:
      Section 16. (A) Original Jurisdiction. (1) Except as otherwise authorized by this constitution or except as heretofore or hereafter provided by law for administrative agency determinations in worker’s compensation matters, a district court shall have original jurisdiction of all civil and criminal matters. (2) It shall have exclusive original jurisdiction of felony cases and of cases involving title to immovable property, except as provided in (3) below; the right to office or other public position; civil or political right; probate and succession matters; except for administrative agency determination provided for in (1) above, the state, a political corporation, or political subdivisions, or a succession, as a defendant; and the appointment of receivers or liquidators for corporations or partnerships. (3) The legislature may provide by law that a family court has jurisdiction of cases involving title to movable and immovable property when those cases relate to the partition of community property and the settlement of claims arising from matrimonial regimes when such action arises as a result of divorce or annulment of marriage.

      . La.R.S. 9:5625, entitled "Violation of zoning restriction, building restriction, or subdivision regulation” presently provides:
      A. (1) All actions civil or criminal, created by statute, ordinance, or otherwise, except those actions created for the purpose of amortization of nonconforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, which may be brought by parishes, municipalities, or their instrumentalities or by any person, firm, or corporation to require enforcement of and compliance with any zoning restriction, building restriction, or subdivision regulation, imposed by any parish, municipality, or an instrumentality thereof, and based upon the violation by any person, firm, or corporation of such restriction or regulation, must be brought within five years from the first act constituting the commission of the violation.

      (2)Where a violation has existed for a period of two years prior to August 1, 1956, except those actions created for the purpose of amortization of nonconforming signs and billboards enacted in conformity with the provisions of R.S. 33:4722, the action must be brought within one year from and after August 1, 1956.
      (3) With reference to violations of use regulations all such actions, civil or criminal, except those actions created for the purpose of amortization of nonconforming signs and billboards in conformity with the provisions of R.S. 33:4722, must be brought within five years from the date the parish, municipality, and the properly authorized instrumentality or agency thereof if such agency has been designated, first had been actually notified in writing of such violation.
      (4) Except as relates to nonconforming signs and billboards, any prescription heretofore accrued by the passage of two years shall not be interrupted, disturbed, or lost by operation of the provisions of this Section.
      (Emphasis added.)


source: Caselaw Access Project

author: |-WALTER J. ROTHSCHILD, Judge.

license: Public Domain

text:
    William J. BAGLEY, Jr., James Layerle and Keith Osborne v. PROFESSIONAL SERVICES GROUP, INC. and City of Kenner.
    No. 03-CA-461.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 15, 2003.
    Rehearing Denied Nov. 3, 2003.

      Clement P. Donelon, Metairie, LA, for William J. Bagley, Jr., Keith Osborne, James Layerle and Catherine Simon, Plaintiffs-Appellees.
    Glenn B. Ansardi, Kurt C. Garcia, Ken-ner, LA, for The City of Kenner, Defendant-Appellee.
    Allan Kanner, Conlee Schell Whiteley, Allan Kanner & Associates, P.L.L.C., New Orleans, LA, Robert E. Kerrigan, Jr., Ellis B. Murov, Duris L. Holmes, Deutsch, Ker-rigan & Stiles, L.L.P., New Orleans, LA, for Professional Services Group, Inc., Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., CLARENCE E. McMANUS and WALTER J. ROTHSCHILD.
   |-WALTER J. ROTHSCHILD, Judge.

Appellant, Professional Service Group, Inc., (hereinafter “PSG”) appeals from a summary judgment rendered in favor of plaintiffs in this suit for wrongful termination of employment. For the reasons stated more fully herein, we reverse and remand.

Facts and Procedural History

In July of 1995, PSG entered into a contract with the City of Kenner (the “City”) to operate and maintain the City’s three waste water treatment plants and its related waste water collection system, including the City’s seventy-six pumping stations. Prior to this contract, these facilities were operated and maintained by the City of Kenner and its employees.

At the time the contract was executed, the parties agreed that PSG would offer employment to the City of Kenner employees who had been previously assigned to work at these facilities. Specifically, Paragraph 3.3 of the contract provided as follows:

PSG shall offer employment to all personnel of Kenner currently assigned full-time to the Project and those Kenner employees whose names appear on Appendix PSG shall provide such employees with wage and benefits packages comparable to or better than |4those packages provided by Kenner. The initial PSG benefits package to be provided former Kenner employees consists of, at a minimum, the benefits handout provided employees of February 20, 1995, plus any additional written guarantees agreed to by the City and PSG. The handout and additional guarantees are found in Appendix “J” to this document. It is understood by both parties that as benefits are changed by PSG for general employees within the company, such changes shall apply to former Kenner employees as well. PSG will continue to provide employment to all personnel who accept employment with PSG so long as they are proven acceptable for performing job related functions based upon PSG’s pre-assignment physical examination and drug screening testing and they continue to perform their duties in a satisfactory manner. Where applicable, all such personnel must hold current licenses, certificates or authority to perform the work required hereunder. Nothing herein shall be construed to create in any third party a right to employment with PSG. Except as herein provided, the personnel identified in Appendix “I” shall be maintained, except as reduced by normal attrition.

The term of the agreement is contained in Section 9.1, which provides:

The term of this Agreement shall be five (5) years commencing on July 1, 1995. Kenner shall have the option to terminate this agreement for convenience at the end of the third contract year by notifying PSG of its election at any time prior to April 1998. In the event the Internal Revenue Service lifts or modifies its proscription of ten (10) year service contracts as presently set forth in I.R.S. Rev. Proc. 93-19, the initial term of this Agreement shall be extended automatically ten (10) years and the option to terminate after three years shall become void.

Effective May 16, 1997, the I.R.S. lifted its proscription as to ten-year service contracts, and, as a result of the above contractual provisions, the term of the original agreement was extended automatically ten years. In July of 1999, PSG and the City entered into an amended and restated agreement which contained the following provision:

PSG employees who were formerly Ken-ner employees and whose duties are no longer necessary for operation of the Project shall be offered employment within PSG, should an opening exist for their skill level and at an Inappropriate rate of pay for the position, at other PSG facilities that might have openings, or be terminated should such options not be acceptable or be available to the employee(s).

Additionally, the amended agreement deleted the provision in the original contract whereby PSG agreed to “continue to provide employment to all personnel who accept employment with PSG so long as they are proven acceptable for performing job related functions.” In August of 1999, PSG terminated the employment of four former employees of the City of Kenner.

On July 25, 2000, plaintiffs William J. Bagley, Jr., James Layerle and Keith Osborne filed the instant petition for damages, alleging that they were terminated in violation of the 1995 contract. Plaintiffs named as defendants in this suit both PSG and the City of Kenner. The original petition was subsequently amended to include as plaintiff Catherine Simon, also a former Kenner employee who was terminated by PSG. Specifically, plaintiffs allege three claims: that they were third party beneficiaries to the original agreement, that they were parties to the agreement and that they relied on the agreement between PSG and the City to their detriment.

Defendants initially filed a Joint Motion for Summary Judgment on the basis that under the terms of the agreement, plaintiffs were neither third party beneficiaries nor parties to the agreement. Further, defendants contended that plaintiffs had no factual or legal basis for its claim of detrimental reliance. By judgment dated June 5, 2001, the trial court denied defendants’ motion for summary judgment as to plaintiffs’ claims of third party beneficiary and detrimental rebanee. However, on the same date, the trial court granted defendants’ motion for summary judgment dismissing plaintiffs’ claims that they were actual parties to the agreement.

1 fiBoth plaintiffs and defendants sought supervisory review of these trial court rulings by way of supervisory writs. A panel of this Court denied defendants’ application for writs as to the third party beneficiary and detrimental rebanee claims on the basis that these issues were not ripe for summary judgment. Bagley v. Professional Services Group, et al., 01C727 (La.App. 5 Cir. 7/25/01). However, the panel granted the plaintiffs’ appbeation for writs from the dismissal of their claim that they were actual parties to the agreement. In that disposition, the panel stated as follows:

WRIT GRANTED

We find that the trial court erred in its determination that the plaintiffs were not parties to the contract. We find that, pursuant to clauses 3.3, 10-6 and Appendix I in the 1995 contract, the plaintiffs are parties to the contract.
Bagley, et al v. Professional Services Group, et al, 01C745 (La.App. 5 Cir. 7/25/01).

Defendants sought review from this ruling in the Louisiana Supreme Court and this writ appbeation was denied on January 11, 2002. Fobowing this ruhng, proceedings resumed in the trial court.

On June 27, 2002, plaintiffs filed a motion for partial summary judgment on the issue of bability of defendants, PSG and the City of Kenner. By this motion, plaintiffs contended that the writ disposition of July 25, 2001 by this Court was the law of the case, and that defendants violated the 1995 agreement when PSG terminated plaintiffs. By judgment dated September 5, 2002, the trial court granted the summary judgment in favor of plaintiffs. In its oral reasons for judgment, the trial court found that the writ disposition of this Court dated July 25, 2001 is the law of the case and that the plaintiffs are parties to the 1995 contract. The trial court determined that PSG’s termination of plaintiffs was a violation of the 1995 contract and rendered judgment in favor of plaintiffs on this basis.

|7On October 15, 2002, plaintiffs moved for summary judgment on the issue of monetary damages owed to them as a result of the trial court’s finding of liability. Plaintiffs argued that based on the provisions of La. C.C. art. 2749 , they were entitled to receive the fub amount which they would have received had they worked the entire term of the original agreement. By judgment dated January 13, 2003, the trial court granted the plaintiffs’ motion as to defendant PSG, but denied the motion as to defendant the City of Kenner based on the court’s finding that PSG was plaintiffs’ employer. The total award given by the trial court for ab four plaintiffs was $976,597.78.

PSG now appeals from the judgment of the trial court which awards damages to the plaintiffs on the basis that they were parties to the original agreement that was breached by PSG. For the reasons stated more fully herein, we find that the trial court erred in its determination of PSG’s liability, and we therefore reverse the summary judgment.

Law and Discussion

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any show there is no genuine issue of material fact such that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342, 345 (La.1991).

In reaching its determination that PSG breached the terms of the 1995 contract by terminating plaintiffs’ employment, the trial court relied on the | adoctrine of law of the case. In its reasons for judgment signed on January 13, 2003, the court stated as follows:

This Court holds as the Fifth Circuit decision held in this case “that we find pursuant to clauses 3.3, 10.6 and Appendix I in the 1995 contract, that the plaintiffs were parties to the contract.” Clearly it is a service contract with regard to Kenner and Professional Services Group, Inc. (“P.S.G.”). It cannot be anything but an employment contract as to the plaintiffs, because they did not have the ability to individually contract to provide services. They did not have the legal authority. They are parties to the contract, because the Fifth Circuit determined that Kenner and P.S.G. agreed to make them parties to it. For the above reasons, this Court finds that it is an employment contract.

The trial court then determined that the term of the contract had been extended to ten years as of May 16, 1997 pursuant to Section 9.1 of the original agreement. Further, the court found that PSG, as plaintiffs’ employer, was liable for damages based on the provisions of La. C.C. art. 2749. Finally, the court awarded plaintiffs damages based on plaintiffs’ rate of pay at the time of termination of their employment through the balance of the contract.

Appellant contends that the trial court erred in relying on the previous writ disposition in by this Court as law of the case. Conversely, plaintiffs contend that this Court’s ruling must be construed as law of the case and therefore, the trial court correctly found that the plaintiffs were actual parties to the contract executed in 1995.

In rendering the disposition on the writ application in this case, the Court was presented with the issue of whether plaintiffs had standing to contest the terms of the contractual agreement between the City of Kenner and PSG. Defendants had brought a motion for summary judgment based in part of the argument that plaintiffs were not “parties” to the agreement and therefore had no basis to bring the suit. The trial court agreed with defendants as to this argument, and the previous panel of this Court determined that plaintiffs did have standing to bring |9the suit based on the contractual provisions contained in sections 3.3, 10.6 and Appendix “I.” We acknowledge that the specific language of the writ disposition may have reasonably caused the trial court to believe that the appellate court had made a legal determination that the plaintiffs were parties to the agreement and had all of the attendant rights thereof.

We have carefully reviewed the entire record in this matter, including the initial motion for summary judgment filed by defendants, the trial court’s ruling, this Court’s resulting writ dispositions and the subsequent proceedings in the trial court. Our review of the record indicates that the language of the prior writ disposition was not intended as a legal determination as to the merits of the case. Rather, the panel intended to convey its finding that the plaintiffs had a right under the contract to maintain its suit against defendants. While the trial court’s interpretation of this Court’s holding is understandable, we nevertheless conclude that there has been no clear legal finding that the plaintiffs are entitled to judgment for breach of contractual provisions that they were parties thereto. Based on this determination, we now turn to the provisions of the subject contract to determine whether plaintiffs were entitled to judgment as a matter of law in this case.

Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art.2045. 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. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole. La. C.C. art.2050.

By the express terms of the agreement between PSG and the City of Kenner, PSG agreed to offer employment to former Kenner city employees listed in Appendix “I” to the agreement, and to continue to provide employment “so long as they are proven acceptable for performing job related functions based upon PSG’s ImPre-assignment physical examination and drug screening testing and they continue to perform their duties in a satisfactory manner.” Agreement, Section 8.3. This section of the agreement also contained a provision that “nothing herein shall be construed to create in any third party a right to employment with PSG.” Agreement, Section 3.3.

Section 10.6 of the contract, which was relied upon by the previous panel of this Court in determining that plaintiffs were parties to the agreement, provides as follows:

This Agreement, including Appendix “A” through Appendix “M” is the entire Agreement between the parties. This Agreement may be modified only by written agreement signed by both parties to which shall be attached appropriate authority to enter into such modification. Wherever used, the terms “PSG” and “Kenner” shall included the respective officers, agents, directors, elected or appointed officials and employees and, where appropriate, subcontractors.

Further, the agreement provided that amendments or changes are authorized by the mutual consent of Kenner and PSG, but such amendments or changes must be in writing. Agreement, Section 10.11.

The original agreement was signed by a representative of PSG on June 30, 1995 and by a representative of the City of Kenner on July 5, 1995. Further, the names of the four plaintiffs were included in Appendix “I” which was entitled “Ken-ner employees to be offered employment by PSG.” None of the former Kenner employees signed the original agreement.

On July 28,1999, the City of Kenner and PSG entered into an amended and restated agreement which replaced the original agreement in its entirety. Section 3.3.1 of the amended agreement provided as follows:

PSG employees who were formerly Kenner employees, and whose duties are no longer necessary for operation of the Project shall be offered employment within PSG, should an opening exist for their skill level [nand at an appropriate rate of pay for the position, at other PSG facilities that might have openings, or be terminated should such options not be acceptable or be available to the employee(s).

This amended agreement was signed on July 28, 1999 by a representative of the City of Kenner and on July 30, 1999 by a representative of PSG. Plaintiffs argue that the City of Kenner and PSG modified the agreement without plaintiffs’ consent, and thereby violated plaintiffs’ rights under the 1995 agreement.

However, our review of the 1995 agreement fails to conclusively show that the employment offered to plaintiffs was guaranteed for a specific term. The contract is a contract for services for a specified term, and although it contains a provision regarding the employment of former Kenner employees, it is unclear whether the term specified applies to the offer of employment as well. Under the circumstances presented here, we fail to find that the plaintiffs are entitled to judgment as a matter of law of their claim for wrongful termination of their employment.

Further, we find that the original agreement specifically provided that it could be modified in writing by the mutual consent of Kenner and PSG. As indicated by their signatures of appointed representatives on the 1999 amended agreement, both Kenner and PSG mutually consented and approved of the changes to the agreement. Although plaintiffs contend that any amendment or change to the 1995 contract required their individual consent or approval, nothing in the agreement between the parties specifically requires such individual consent. Rather, the 1995 agreement was originally executed by representatives of the City of Kenner and PSG, and plaintiffs were not required to approve or consent to the terms of the original agreement.

For these reasons, we conclude that the trial court erred in concluding as a matter of law that the 1995 agreement between the City of Kenner and PSG | ^constituted an employment contract for a definite time,, period which was breached by the subsequent amendment thereto entitling plaintiffs to damages as a matter of law. Rather, we find that the 1995 agreement clearly provided that the agreement could be amended upon mutual consent of the parties. Reading the original contract as a whole, we find that it fails to unequivocally provide that plaintiffs were guaranteed employment with PSG for a specified term notwithstanding any modification of the agreement. As such, we find that plaintiffs failed to prove as a matter of law that the termination of their employment constituted a breach of the original agreement, or that they were entitled to damages as a result thereof. The status of the litigants and any rights or entitlements under this agreement are to be determined by the trier of fact.

Accordingly, we conclude that the summary judgment finding PSG hable and awarding damages to plaintiffs against PSG for the termination of plaintiffs’ employment was improperly granted and is hereby reversed and vacated. The case is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

      . La. C.C. art. 2749 provides: Liability for dismissal of laborer without cause

      If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived.


author: CHARLES R. JONES, Judge.

text:
    Ellen BRANDAO and John Christy v. Estelle McMAHON, Thomas McMahon, Jr. Adn Mary An Richter Richard.
    No. 2003-CA-0207.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 2003.
    James R. Swanson, Joseph C. Peiffer, Loretta G. Mince, Correro, Fishman, Hay-good, Phelps, Walmsley & Casteix, L.L.P., New Orleans, LA, for Plaintiffs/Appellants.
    Gus A Fritchie, III, Bennett H.H. Biever, Irwin, Fritchie, Urquhart & Moore, LLC, New Orleans, LA, for Muriel Cassi-bry and Re/Max Real Estate Partners.
    Philip A. Gattuso, Gretna, LA, for Mary Ann Richard, Estelle McMahon and Thomas McMahon, Jr.
    (Court composed of Chief Judge WILLIAM H. BYRNES III, Judge CHARLES R. JONES, Judge TERRI F. LOVE).
   CHARLES R. JONES, Judge.

The Plaintiff/Appellants appeal the judgment granting of a Motions for Summary Judgment in favor of the Defendants/Ap-pellees and the Third-party Defendants/Appellees, thus dismissing the lawsuit. We affirm.

The Appellees, Estelle McMahon, Thomas McMahon and Mary Richard, acquired the property located at 2430 and 2432 Constance Street in New Orleans, in a succession proceeding. They listed the property for sale with the Third-Party Defendants and Appellees, Muriel Cassibry, a real estate agent, and ReMax, her real estate agency. The McMahons executed a power of attorney in favor of Ms. Richard to sell the property. They also entrusted Ms. Richard as their “agent”, who then contracted with Ms. Cassibry as the selling agent. On February 11, 1999, the Appellants, Ellen Brandao and John Christy executed a Purchase Agreement for the property owned by the McMahons. Ms. Brandao and Mr. Christy were given a property disclosure form indicating that there was termite damage to the property. On February 26, 1999, Ms. Brandao and Mr. Christy signed a wood destroying inspection report executed by RLR Termite Services. This inspection report also indicated that the property had visible evidence of wood destroying insects. On March 1, 1999, Ms. Brandao and Mr. Christy obtained a roof inspection report lafrom Guaranty Sheet Metal Works, indicating that there was non-termite damage to the roof of the property. On February 26, 1999, the report of Gurtler Bros. Consultants, Inc., indicated that there was structural damage due to the termites.

The act of sale took place on April 28, 1999. The Purchase Agreement did not contain the words “as is” or “waiver of redhibition.” The Appellants argue that at the act of sale, where only a representative of ReMax, Ms. Brandao and Mr. Christy were present, the closing attorney indicated that the above stated language was not included in the paperwork and at that time the parties agreed to set aside $10,000 as “liquidated damages” in the event that damages were later discovered.

After Ms. Brandao and Mr. Christy moved into the premises, they discovered extensive termite and water damage behind the walls which caused all of the sheetrock to be taken down, the damage to be treated and the walls to be replaced.

On April 3, 2000, Ms. Brandao and Mr. Christy filed a Petition in Civil District Court for the Parish of Orleans against the McMahons and Ms. Richard seeking a reduction in price, expenses incurred for repair and other damages to be proven at trial. In their Answer, the McMahons filed a Third Party Demand against Ms. Cassibry, ReMax and their insurance company alleging that these third party defendants are liable to them for any damages because of the failure to include a waiver of redhibition clause. The McMahons, Ms. Cassibry and ReMax filed Motions for Summary Judgment.

In a judgment signed October 25, 2002, the district court granted the Motions for Summary Judgment on behalf of “Estelle McMahon, Thomas McMahon, Mary Richard, Muriel Cassibry and ReMax”, dismissing all of them from suit. It is from this judgment that Ms. Brandao and Mr. Christy appeal. Ms. | .-¡Cassibry and Re-Max also appealed. The district court provided no Reasons for Judgment.

On appeal, Ms. Brandao and Mr. Christy offered one assignment of error and Ms. Cassibry and ReMax offered four assignments of error. However, we find that the sole question on appeal is whether the district court erred in granting the motions for summary judgment.

Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230. Although the district court fails to provide Reasons for Judgment, the instant case is full of documented evidence to support the district court’s summary judgment in favor of the Appellees.

Ms. Brandao and Mr. Christy rely on La. Civ.Code art. 2520 and art. 2521, arguing that there were redhibatory defects and that the termite and water damage should have been apparent through an inspection by a reasonably prudent buyer. La. Civ.Code art. 2520 reads as follows:

The seller warrants the buyer against redhibitory defects, or vices, in the thing sold. A defect is redhibitory when it renders the thing useless, or its use so inconvenient that it must be presumed that a buyer would not have bought the thing had he known of the defect. The existence of such a defect gives a buyer the right to obtain rescission of the sale. A defect is redhibitory also when, without rendering the thing totally useless, it diminishes its usefulness or its value so that it must be presumed that a buyer would still have bought it but for a lesser price. The existence of such a defect limits the right of a buyer to a reduction of the price.

La. Civ.Code art. 2521 reads:

LThe seller owes no warranty for defects in the thing that were known to the buyer at the time of the sale, or for defects that should have been discovered by a reasonably prudent buyer of such things.

Further, the Appellants rely on Amend v. McCabe, 95-0316, (La.12/1/1995), 664 So.2d 1183, arguing that the question of whether termite damage should be apparent to a reasonably prudent buyer is “a matter of fact” that “produces varied and unpredictable results from case to case.”

Ms. Brandao and Mr. Christy base most of their argument on the testimony of Gurtler, the termite inspector, who testified at trial that the termite damage he found was not out of the ordinary, and that this type of termite damage did not call for an inspection behind the walls.

Ms. Cassibry and ReMax argue that at the very least, a genuine issue of material fact exists as to whether Ms. Cassibry was asked to insert an “as is” clause or a waiver of redhibition clause and failed to do so making them negligent. They rely on La. C.C. art. 2521 and La. C.C. art 2522, Notice of existence of defect, arguing that once termite damage was discovered, Ms. Brandao and Mr. Christy had a duty to investigate further. We find however, that this argument is secondary as these parties are third-party defendants whose basis for appeal becomes moot per the rendering of this opinion.

According to the record, all of the inspections on the home performed by Ms. Brandao and Mr. Christy revealed some type of damage to the property. The RLR Termite report states that the property has “active termites,” and that there is evidence of termite damage. Further, Guaranty Sheet Metal Works documents that the roof is damaged, old, and possibly leaking. Ms. Brandao and Mr. Christy, however, continuously argue that they acted as reasonably prudent buyers in | ¡¡accordance with Amend, and that the Appellees covered up the extent of the damage with “shoddy” work.

Whether termite damage should be apparent to the buyer of a home is a question of fact. Typically, when all of the termite damage is concealed within the home’s structure (e.g., walls and floors) it is considered unapparent because it is not discoverable by a simple inspection. Pursell v. Kelly, 244 La. 323, 152 So.2d 36,(1963), (discussing, with approval, Ruehmkorf v. McCartney, 121 So.2d 757 (La.App. 2d Cir.1960), and Foreman v. Jordan, 131 So.2d 796 (La.App. 3d Cir.1961)). See e.g., Abdelbaki v. University Presbyterian Church, 380 So.2d 35, 37 (La.1980); Fraser v. Ameling, 277 So.2d 633, 638 (La.1973). In such situations, there is no obligation on the part of the buyer to inspect further. Fraser, supra; Pursell, supra. On the other hand, when some of the termite damage is detectable by a simple inspection, the buyer has a duty to investigate further. If he chooses to purchase the home without further investigation, he waives the right to sue for redhibition or reduction based upon the termite damage. See, e.g., Pursell, supra; Ingraffia v. Coleman, 467 So.2d 616 (La.App. 3d Cir.1985); Bonhagen v. Hooper, 195 So.2d 447 (La.App. 4th Cir.1967), writ refused, 250 La. 634, 197 So.2d 652 (1967).

Evidence of “shoddy” work and reports of damage of any kind should have prompted a reasonably prudent buyer to further investigate the damage and perhaps conduct further inspections in order to obtain more professional opinions. _

Further, while Ms. Brandao and Mr. Christy continue to argue that their knowledge of the termite damage does not prohibit them from recovering in redhibition, we disagree. They rely on Brouillette v. Ducote, 93-990 (La.App. 3 Cir. 3/2/1994) 634 So.2d 1243, arguing that they could recover in redhibition for termite damage even though they knew of a report noting the presence of active | fitermites. However, this case is distinguishable because the home in Brouillette was treated, the seller failed to provide the buyers with a “graph” which indicated the termite infestation, and the home inspector did not fill out an area on the inspection report which required a listing of areas where visible damage had been found. Further, the buyers in Brouillette sued the inspector and the Third Circuit found that the inspector failed to inspect on the dates indicated, and failed to show the areas of termite infestation.

Ms. Brandao and Mr. Christy had a duty to perform further inspections once the home inspections revealed damage. Their failure to do so indicates a tacit acceptance evidencing that they were willing to purchase the property as the inspections revealed without further investigation. Also, this acceptance was reinforced at the act of sale when Ms. Brandao and Mr. Christy agreed to set aside $10,000 as “liquidated damages” in the event that damages were later discovered.

The argument of Ms. Cassibry and Re-Max regarding the failure to include the “as is” language in the closing documents is of no relevance at this time. This argument serves as their defense if we were to find that the district court erred. A review of the record and testimony reveals that the district court did not err in granting the Motions for Summary Judgment. The Appellants desired to “fix up” and/or renovate the property at issue to some extent, and should have taken a more active role in getting estimates as to the amount of damage the property had sustained, in accordance with Amend. Further, our de novo review indicated that there is nothing in the record which indicates that the district court erred in the judgment rendered.

[7Pecree

For the reasons stated above, we affirm the judgment of the district court granting the Motions for Summary Judgment in favor of Estelle and Thomas McMahon, Mary Richard, Muriel Cassibry and Re-Max.

AFFIRMED.


author:
I PATRICIA RIVET MURRAY, Judge.
      11 CANNIZZARO, J.

text:
    Patrick J. SPEZIO v. Phillip J. SPEZIO, Jr.
    No. 2001-CA-1789.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 10, 2003.
    Jeffrey D. Salzer, Gardner & Kewley, A.P.L.C., Metairie, LA, for Plaintiff/Appellant.
    Harold E. Molaison, Adrian F. LaPey-ronnie, III, Beau Sagona, Molaison & Greenberg, L.L.C., Gretna, LA, for Defendant/Appellee.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge MICHAEL E. KIRBY, Judge LEON A. CANNIZZARO, JR.).
   ON REMAND FROM THE SUPREME COURT

I PATRICIA RIVET MURRAY, Judge.

This case is before us on remand from the Louisiana Supreme Court to reconsider the appeal by the plaintiff, Patrick Spezio, in light of its opinion in Burguieres v. Pollingue, 2002-1385 (La.2/25/03), 843 So.2d 1049. For the reasons that follow, we again affirm the trial court’s decision dismissing Patrick Spezio’s present suit based on res judicata.

FACTUAL AND PROCEDURAL BACKGROUND

This case involves a dispute between two half brothers, Patrick Spezio and Phillip Spezio, Jr., over the revocation of a trust created on April 16, 1997, by their father, Phillip Spezio, Sr., as part of his estate planning. Patrick Spezio was the sole beneficiary of the trust, and Phillip Spezio, Jr., was the trustee. The sole corpus of the trust was Phillip Spezio, Sr.’s 75% interest in a piece of immovable property; the property was the former community home of Phillip Spezio, Sr., and his predeceased spouse, Lorraine Spezio, located at 1801 River Oaks Drive in New Orleans (the “Trust Property”). Patrick Spezio, Jr., the beneficiary, was the sole | ¡¡child born of the marriage between Phillip Spez-io, Sr., and Lorraine Spezio. Phillip Spez-io, Jr., the trustee, was a child of Phillip Spezio, Sr., born of a previous marriage.

Until his death on February 20, 1999, Phillip Spezio, Sr., remained in the house. Thereafter, Phillip Spezio, Sr.’s 75% interest in the house (the same property that formed the corpus of the trust) was included in his judgment of possession rendered on March 20, 2000. Although Patrick Spezio appeared with counsel as a defendant-in-rule at the February 4, 2000 contradictory hearing in his father’s succession, he failed to assert any claim to the house.

On August 31, 2000, Patrick Spezio filed this action against Phillip Spezio, Jr., captioned “Petition for Damages for Breach of Fiduciary Duty, Breach of Trust, and Rules for Accounting, and to Compel Trustee to Redress Breach of Trust under LSA R.S. 9:2221(3).” According to the petition, on January 7, 1998, Phillip Spezio, Jr., acting as trustee, entered into an Act of Revocation of the Patrick J. Spezio Irrevocable Trust, which was recorded on January 21, 1998. The petition alleges that such Act of Revocation was entered into without Patrick Spezio’s knowledge or consent and was in opposition to Patrick Spez-io’s interest as sole beneficiary. The petition further alleges that Phillip Spezio, Jr., is residing in the residence and has failed to provide any rental for such occupancy. The petition still further alleges that Phillip Spezio, Jr.’s entering into the Act of Revocation and failing to acquire any consideration for the trust corpus (the house) was a breach of his fiduciary duty as trustee, entitling Patrick Spezio to an |saccounting. Finally, Patrick Spezio alleges that since his appointment as trustee Phillip Spezio, Jr., has failed to render any accounting.

In response, Patrick Spezio filed several peremptory exceptions, including res judi-cata and prescription. Although the trial court sustained both the prescription and res judicata exceptions, we affirmed based solely on res judicata. Spezio v. Spezio, 2001-1789 (La.App. 4 Cir. 4/24/02), 817 So.2d 513 (unpub’d decision). As noted at the outset, the Louisiana Supreme Court granted Patrick Spezio’s writ application and remanded this case with instructions that we reconsider our prior ruling in light of its recent Burguieres decision. Spezio v. Spezio, 2002-1451 (La.6/6/03), 845 So.2d 1075.

BURGUIERES DECISION

Burguieres was a suit for damages by a decedent’s children against their aunt arising out of alleged breaches of fiduciary duties by the aunt in handling their father’s estate before and after his death. In a prior suit, the plaintiffs sought to annul their father’s will and to remove their aunt as executrix of their father’s succession. After prevailing in that suit, the plaintiffs filed the Burguieres suit. In response, the aunt asserted several exceptions, one of which was res judicata. Although the trial court denied the aunt’s exception, this court, in an unpublished decision, granted it, finding the actions asserted against the aunt should have been brought in the succession proceeding. Affirming in part and reversing in part, the Supreme Court divided the plaintiffs’ claims into two categories: those arising from the aunt’s pre-death conduct in her roles as trustee and curator and those |4arising from her post-death conduct in her role as executrix. The Supreme Court found this court was correct as to the latter, post-death claims, but incorrect as to the former, pre-death claims.

In reversing as to the pre-death claims, the Supreme Court in Burguieres articulated the following five requirements that must be met under the present res judica-ta statute, La. R.S. 13:4231; to wit: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause of causes of action asserted in the second suit existed at the time of final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres, 2002-1385 at p. 8, 843 So.2d at 1053. Applying that standard to the case before it, the Court concluded that the third and fourth requirements were not satisfied.

The Court found the third requirement of identity of parties was not satisfied because the plaintiffs’ aunt did not appear in the second suit in the same fiduciary capacity that she appeared in the first suit. The aunt appeared in the first suit to annul the will as a succession representative, i.e., as executrix. The second suit concerned her actions before her brother’s death in her capacities as trustee and curator; “it follows that the second suit does not implicate her in her capacity as executrix of his succession.” Burguieres, 2002-1385 at p. 11, 843 So.2d at 1055.

I.Jn addition to the lack of identity of parties, the Court found the fourth requirement that the cause of action asserted in the second suit exist at the time of final judgment in the first suit was not met. The plaintiffs’ claims in the second suit for breach of fiduciary duty against their aunt were based on her actions in writing the testament. The Court noted that before any cause of action for breach of the aunt’s fiduciary duties as trustee and curator arose in the plaintiffs’ favor it was necessary that the will contest be decided. The Court further noted that those claims did not arise until the trial court’s judgment of nullity of the will became final. Given these two requirements were not satisfied, the Court found merit to the plaintiffs’ argument that the present res judicata statute did not mandate that they cumulate their damage claim for pre-death breach of fiduciary duties with their prior suit to annul the testament brought in a succession proceeding against the succession representation.

Arguing that Burguieres is directly on point, Patrick Spezio asserts that there is a lack of identity of parties in the two cases. The first litigation was a succession proceeding in which the parties appeared as heirs of Phillip Spezio, Sr.; whereas, this second suit was brought by Patrick Spezio, as beneficiary, against Phillip Spez-io, Jr., as trustee. He further argues that he was not required, and indeed procedurally could not, assert his claims regarding the revocation of the trust in the prior succession proceeding. We find these arguments unpersuasive.

Although we recognize the superficial similarity between this case and Burgui-eres, we find a detailed analysis reveals there are dramatic factual and legal differences between these two cases. A review of the filing the parties made in the prior succession proceeding in this matter demonstrates the dramatic factual difference between this case and Burguieres.

lfiOn September 7, 1999, Patrick Spezio filed a petition for probate of his father’s statutory testament. In that pleading, he also asserted the validity of the trust and sought to claim ownership of the Trust Property, asserting:

Petitioner seeks to take possession of a certain piece of real, non-movable property located and described an [sic] Irrevocable Donation Inter Vivos Trust executed in his name and attached hereto. The donation gives PATRICK J. SPEZ-IO ownership of the property thirty (30) days following the death of the donator, PATRICK J. SPEZIO, JR. The property is currently being occupied by PHILIP J. SPEZIO, JR. and the petitioner seeks an Order requiring PHILIP J. SPEZIO, JR. to vacate the premises.

That pleading concluded with a prayer that Patrick Spezio be placed in possession of the Trust Property “donated to him before the death of the Donator.” Patrick Spezio took no further action to pursue the succession proceeding he opened.

On November 29, 1999, Phillip Spezio, Jr. filed a separate Petition for Possession, asserting that Phillip Spezio, Sr., died testate, leaving his property to be divided equally among four universal title legatees, one of whom was Patrick Spezio. Attached to the petition was a Detailed Descriptive List, which included the Trust Property as one of the succession assets. In his Petition for Possession, Phillip Spez-io, Jr. also asserted that Patrick Spezio had filed a prior petition for probate, yet had failed to produce a testament or to appoint a succession representative. Phillip Spezio, Jr., requested that the trial court issue a rule to show cause ordering Patrick Spezio to appear and to establish why a judgment of possession should not be rendered as prayed for in the petition.

On March 6, 2000, Patrick Spezio responded by filing a Motion to Traverse the Descriptive List, asserting that the list improperly included the Trust Property; particularly, he asserted:

The detailed descriptive list filed in this matter improperly includes as property of the deceased certain real estate located at the following ^municipal address: 1801 River Oaks Drive, New Orleans, Louisiana. Mover further avers that he is the sole beneficiary of the Patrick J. Spezio Irrevocable Inter Vivos Trust, and that the property in question was donated to said trust by Philip Spezio, Sr. on April 16, 1997. The trust and donation thereto were recorded on May 9,1997.

In this motion, Patrick Spezio requested that the court order Phillip Spezio, Jr., to show cause why he should not be required to amend the detailed descriptive list to delete any reference to the Trust Property.

Thereafter, the trial court set for contradictory hearing the rule to show cause requested by Phillip Spezio, Jr. At that hearing held on February 8, 2000, Patrick Spezio, represented by counsel, appeared, but failed to voice an objection to the inclusion of the Trust Property in his father’s succession. On March 20, 2000, the trial court rendered a judgment of possession in which it expressly rejected Patrick Spezio’s claim; the trial court stated that the rule to show cause filed by the plaintiff-in-rule, Phillip Spezio, Jr., against the defendant-in-rule, Patrick Spezio, is “made absolute” and that the law and evidence is “in favor of the plaintiff-in-rule.” The judgment also placed the four universal legatees equally into possession of their share of the succession assets, which included the Trust Property. As a result, Patrick Spezio was placed into possession of a one-fourth interest in the Trust Property. No appeal was taken from that ruling, and it is a final judgment for purposes of res judicata.

As Patrick Spezio stresses, there was no claim asserted in the succession proceeding against Phillip Spezio, Jr., in his fiduciary capacity as trustee. He Largues, therefore, that, as in Burguieres, there is a lack of identity of parties in this case and the succession proceeding. However, we find two significant differences between this case and Burguieres, which dictate a different result in this case.

The first distinction is that this case involves a dispute over immovable property. Disputes over ownership of immovable property were jurisprudentially recognized to be an exception even under the former narrowly defined res judicata doctrine; that exception, similar to current La. C.C.P. art. 425(A), required that parties assert all their claims to property in the first suit. As the Louisiana Supreme Court explained in Ward v. Pennington, 523 So.2d 1286 (La.1988):

In such actions both plaintiff and defendant in the first suit must present all claims that they have to establish their title or be precluded from asserting theories that might have been asserted in the first action. Dixon, Booksh & Zimmering Res Judicata in Louisiana Since Hope v. Madison, 51 Tul. L.Rev. 611 (1977). This exception to the narrow interpretation of res judicata is predicated upon the necessity of protecting and insuring stability and security of title, preventing undue hardship or fraud with respect to third party purchasers, and obviating unnecessary successive litigation.

523 So.2d at 1292.

The crux of this case, contrary to Patrick Spezio’s contention, is the post-death ownership of the Trust Property, i.e., Phillip Spezio, Sr.’s interest in the house. Indeed, Patrick Spezio admitted in a memorandum he filed in the trial court that the redress he seeks in this second suit is to “compel the Trustee to deliver to plaintiff clear title to the property” or the fair market value of the house. He further admitted that Phillip Spezio, Jr., listed the house on the sworn descriptive list in his father’s succession proceeding and assigned a value to it of $67,000. Nonetheless, when Phillip Spezio, Jr. ruled him into court in the succession |flproceeding, Patrick Spezio failed to assert any interest in the house at that contradictory hearing.

Although not expressly referencing the revocation of the trust, the judgment of possession does so implicitly by including the Trust Property as an asset of the succession. Patrick Spezio was required to assert any claim to that property in the prior proceeding. Having failed to do so, we find that he is precluded by res judica-ta principles from doing so in this subsequent suit. We further note that this trust included nothing except Phillip Spezio, Sr.’s interest in the house. It follows then that the “[t]he only demands for accounting in the present case were those which were ancillary to the demand for recognition of ownership.” Ward, 523 So.2d at 1292, n. 14. It also follows that given the revocation of the trust and the inclusion of the Trust Property in the succession, there was nothing for the trustee to account. For these reasons, we conclude that Patrick Spezio’s claims asserted in this case were settled by the judgment rendered in the first litigation.

In addition, this case presents a converse scenario to that presented in Bur-guieres, in which the plaintiffs’ claims against their aunt did not arise until their father’s will was declared null. In this case, Patrick Spezio’s claims against Phillip Spezio, Jr., which arise out of the revocation of the trust, clearly were in existence at the time of the succession proceeding. Indeed, Patrick Spezio placed the validity of the trust at issue in that proceeding by filing two pleadings asserting that interest. When presented with Phillip Spezio, Jr.’s conflicting claim that the property was an asset of the succession, Patrick Spezio failed to pursue his claim based on the trust. Stated otherwise, Patrick Spezio went into the succession proceeding asserting that the Trust Property belonged to him as a result of the donation in trust, yet allowed a final judgment to be rendered dividing that same | inproperty equally between the universal legatees under his father’s will. He could and should have asserted his claims against Phillip Spezio, Jr., as trustee, in that prior proceeding. We thus conclude that res judi-cata applies and bars the claims asserted in this case.

DECREE

For the forgoing reasons, we affirm the judgment of the trial court dismissing plaintiffs action based on res judicata.

AFFIRMED.

CANNIZZARO, J., dissents with reasons.

11 CANNIZZARO, J.

Dissents With Reasons.

I agree with the majority opinion insofar as title to the immovable property at 1801 River Oaks Drive in New Orleans (the “Property”) is concerned. However, title to immovable property is not the subject of the suit which Patrick Spezio instituted. I respectfully disagree that Patrick Spezio’s action against Phillip Spezio, Jr. is res judicata.

Patrick Spezio appeared in his father’s succession proceeding at a contradictory hearing on a petition for possession, and he did not dispute the inclusion of the Property in the judgment of possession when he had the opportunity to do so. Therefore, the issue of title to the Property has been adjudicated.

I disagree with the majority, however, on the issue of whether the claims brought by Patrick Spezio in the Petition for Damages for Breach of Fiduciary Duty, Breach of Trust, and Rules for Accounting, and to Compel Trustee to Redress Breach of Trust under LSA-R.S. 9:2221(3) are barred by the doctrine of res judicata. Those claims were never considered, nor could they have properly been considered, in the succession proceeding. In his father’s succession proceeding, Patrick Spez-io appeared in his capacity as an heir to his father’s estate. He is appearing in the instant case as the beneficiary of a trust, which was established for his benefit by his father. Patrick Spezio is alleging that Phillip IpSpezio, Jr., in his capacity as a trustee for the benefit of Patrick Spezio, breached the fiduciary duty that a trustee owes to a trust beneficiary. The instant lawsuit arose out of the revocation of the trust by Phillip Spezio, Sr., as settlor of the trust, and by Phillip Spezio, Jr., the trustee of the trust. The petition in the instant case alleges that the trustee breached his fiduciary duty to Patrick Spezio by entering into an agreement to revoke the trust and by failing to account properly to the trust beneficiary, Patrick Spezio.

Although the Property was involved in the succession proceeding, in which Patrick Spezio appeared in a contradictory hearing, it is only involved in this case as the corpus of the trust prior to its revocation. Patrick Spezio, however, appeared in each of the proceedings in different capacities, seeking different remedies, as did Phillip Spezio, Jr.

In Burguieres v. Pollingue, 2002-1385 (La.2/25/03), 843 So.2d 1049, the decedent’s sister was named as the executrix of the decedent’s succession. In the succession proceeding, the decedent’s children sought to have the decedent’s testament nullified and his sister disqualified as executrix, and they prevailed. After the succession proceeding had become final, the decedent’s children filed a lawsuit against the decedent’s sister. The children alleged that the decedent’s sister was liable to them for the breach of the fiduciary duties owed by the sister as the trustee and as the eura-trix for the decedent while he was still alive. The sister filed an exception of res judicata, alleging that the claims in the second suit should have been addressed in the succession proceeding. The Louisiana Supreme Court found otherwise.

The Supreme Court held in Burguieres that “in order for a second suit to be barred by the doctrine of res judicata, the parties must appear in the same | ¡¡capacities in both suits.” 2002-1385, p. 10, 843 So.2d at 1054. In the succession proceeding, the decedent s sister appeared m her capacity as executrix of her brother’s succession. In the second suit instituted by the children against the sister, the sister was sued as her brother’s curator and trustee prior to his death. The Supreme Court found that the sister did not appear in the second suit in the same capacity in which she appeared in the succession proceeding. The Supreme Court then stated that “[bjecause of this difference in capacities, there is a lack of identity of the parties between the two suits.” 2002-1385, p. 12, 843 So.2d at 1056. Therefore, the court of appeal had been incorrect in granting the sister’s exception of res judi-cata as to those claims in the second suit that did not arise out of her capacity as executrix of her brother’s succession.

Based on the holding of the Burguieres case, the trial court should not have granted the exception of res judicata in the instant case. Phillip Spezio, Jr. was sued in his fiduciary capacity as the trustee of the trust. In the succession proceeding he did not appear in that capacity. The succession proceeding was not dispositive of the claims made in the instant suit, and those claims are not res judicata.

      . We note that the name "Phillip” is spelled Phillip in some pleadings and documents and Philip in others. For consistency sake, we spell the name Phillip, as it appears in the caption of the case.

      . Given that Phillip Spezio, Sr.’s spouse predeceased him, he owned a 75% interest in the immovable property; the other 25% interest was owned by the Succession of Lorraine Spezio. Patrick Spezio was the sole heir of Lorraine Spezio. It follows then that Patrick Spezio’s receipt of the 75% interest from the trust combined with his receipt of the 25% interest from his mother's succession would have given him full ownership of the former community home. Although the trust document refers to $100 being placed in the trust, the parties refer to the trust corpus as consisting solely of the settlor’s 75% interest in the house.

      . Actually there were two defendants in Bur-guieres: the aunt and her husband. However, the defendant-husband was not a party to the first action. The first action thus could not be res judicata as to the claims against him. The defendant-aunt served in various fiduciary capacities for her brother who was mentally and physically injured in a 1965 automobile accident; particularly, she served as his trustee of the trust created for him in 1965, as his curator when he was interdicted, and as his executrix when he died in 1995.

      . The Supreme Court expressly took note that the distinction it was making was "somewhat blurred because of the unique facts of this case in which Mrs. Pollingue [the aunt] occupied several representative and fiduciary positions over many years for her brother.” Burguieres, 2002-1385 at p. 11, 843 So.2d at 1055. The court noted it was aided in drawing this line by the plaintiffs’ prudent concession that any claims arising out of the aunt’s actions in her capacity as executrix were barred by the first suit in the succession proceeding. Indeed, the Court commented that their concession allowed it to narrow the plaintiffs’ claims at issue in the second suit to those "concerning only those allegedly tortuous actions committed while Mrs. Pollingue [the aunt] was acting as William Sr.'s [the decedent’s] trustee and curator.” Burguieres, 2002-1385 at p. 11, 843 So.2d at 1055.

      . Focusing on the requirement that the parties be the same in both suits, the Supreme Court engaged in an extensive historical analysis of the civilian concept of res judicata. Based on that analysis, the Court concluded that the current statutory provision, La. R.S. 13:4231, incorporates the prior identity of parties requirement.

      . Apparently that rule to show cause was never separately set. Instead, Patrick Spezio on April 20, 2001, filed a Motion to Dismiss With Prejudice his Rule to Traverse, which the trial court granted on that same day.

      . Patrick Spezio argues that the March 20, 2000 judgment of possession was not a final judgment for res judicata purposes. That argument, however, ignores the contradictory nature of the proceeding in this case as it pertained to the issue of the inclusion in the succession of the property formerly included in the trust. For this reason, the line of cases upon which Patrick Spezio relies, which hold that a judgment of possession, which is generally rendered ex parte, is not considered a final judgment for purposes of res judicata is inapposite here.

      .La. C.C.P. art. 425(A) provides that "[a] party shall assert all causes of action arising out of the transaction or occurrence that is the subject matter of the litigation.”

      . As demonstrated above, Patrick Spezio filed two pleadings expressly asserting his rights to be placed in possession of the Trust Property donated to him through the trust. When presented with Phillip Spezio, Jr.'s conflicting claim that the property belonged to the succession, Patrick Spezio failed to pursue his motion to traverse; rather, he dismissed it with prejudice after the judgment of possession was rendered. Nor did he appeal that judgment rendered in the succession proceeding.

      . The act establishing the trust provided that ‘‘[t]he trust property shall consist of ... One Hundred Dollars ... together with such other property as may be added.” The act further stated that the real estate listed on an addendum would be included in the trust property