author: 1 .WALTER J. ROTHSCHILD, Judge.

text:
    Maria WOODBURY, Silvia Moriel, Liliana Jackson, Lucrecia Hernandez, Magda Beckman, Julia Pullin, Carlos Villaverde, and Marta Rodriguez, v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. Value Rent-A-Car, Inc., v. Carlos Villaverde, et al.
    Nos. 03-CA-13, 03-CA-14.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Frank J. D’Amico, Darla D’Amico, Frank D’Amico, APLC, New Orleans, LA, for Maria Woodbury, Silvia Moriel, Liliana Jackson, Lucrecia Hernandez, Magda Beckman, Julia Pullin, And Martha Rodriquez, plaintiffs/second appellants.
    Michael R. Guidry, New Orleans, LA, for Carlos Villaverde, plaintiff/second appellant.
    Richard P. Ieyoub, Attorney General, Gary A. Cotogno, Special Assistant Attorney General, Pickering & Cotogno, New Orleans, LA, for Louisiana Department of Transportation and Development, defen-danVappellant.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and WALTER J. ROTHSCHILD.
   1 .WALTER J. ROTHSCHILD, Judge.

Following a lengthy bench trial in this single vehicle accident case, the trial court rendered judgment in favor of plaintiffs and against the Louisiana Department of Transportation and Development (“DOTD”). Both plaintiffs and DOTD have appealed from this judgment. For the reasons stated more fully herein, we affirm.

Facts and Procedural History

On the afternoon of June 16, 1991, Carlos Villaverde was driving a 1991 Mitsubishi Mirage which was owned by Value Renb-A-Car along La. Hwy. 18 near Ed-gard, Louisiana. His mother and two aunts accompanied him, and the group was returning to New Orleans after lunch and a plantation tour. Carlos’ mother, Julia, was seated in the front passenger seat, and his two aunts, Carmen Woodbury and Marta Rodriguez, were seated in the rear seat of the vehicle. Carlos Villaverde testified at trial that he was traveling south on River Road (La.18) when an oncoming vehicle crossed the center line into his lane of travel. He stated that he veered right in an attempt to avoid the vehicle, and his vehicle proceeded through a grassy roadside ditch and struck a utility pole. Both Julia Villaverde and Carmen Woodbury were killed in the collision; Carlos Villav-erde and Marta Rodriguez sustained serious injuries.

| ¿Plaintiffs, the two survivors of the accident and the relatives of the deceased passengers, filed the present lawsuit against DOTD for its acts of negligence in failing to properly mark and sign the roadway, in failing to have the proper elevation and shoulders, in placing stationery objects on the side of the roadway, and in failing to properly design and construct and maintain the roadway and the shoulder. Plaintiffs subsequently amended their petition to name as defendants Mit-subshi International Corporation, the manufacturer of the vehicle involved in the accident, Value Rent-A-Car, Inc., the owner of the vehicle, Louisiana Power and Light Company (n/k/a Entergy), the owner of the utility pole involved in the accident and American Express Company, which supplied insurance for the rental car. All defendants except DOTD settled plaintiffs’ demands prior to trial and were released from the lawsuit.

The matter proceeded to a bench trial solely against DOTD on May 26, 1998 and continued on an intermittent basis until the conclusion of trial on September 7, 1999. On May 30, 2001, the trial court rendered judgment in favor of plaintiffs. The trial court allocated 85% of the fault to Carlos Villaverde on the basis that the accident was primarily caused by his inattentiveness and inexperience. The remaining 15% of the fault was assessed to DOTD on the basis that the placement of the utility pole at the end of a ditch and culvert near the curve in the road created an unreasonably dangerous condition which rendered the roadway defective.

DOTD moved for a new trial on the basis that the utility pole was not in the custody of DOTD and that it did not create an unreasonable risk of harm. The trial court denied DOTD’s motion on August 15, 2001, and DOTD now suspensively appeals from this judgment on the basis of several assignments of error. The plaintiffs have also brought a devolutive appeal |fifrom the judgment on the basis that the trial court erred in its apportionment of fault.

Applicable Law

In Stobart v. State, 617 So.2d 880, 882 (La.1993), the Louisiana Supreme Court explained the standard of review the appellate courts must apply when reviewing the trial court’s findings of fact:

A court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840 (La.1989). There is a two-part test for the reversal of a factfinder’s determinations:
(1) The appellate court must find from the record that a reasonable factual basis does not exist for the finding of the trial court, and
(2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous).
See, Mart v. Hill, 505 So.2d 1120 (La.1987).
This test dictates that a reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court’s finding. Id. The reviewing court must review the record in its entirety to determine whether the trial court’s finding was clearly wrong or manifestly erroneous.
Nevertheless, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable one. See generally, Cosse v. Allen-Bradley Co., 601 So.2d 1349, 1351 (La.1992); Housley v. Cerise, 579 So.2d 973 (La.1991); Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the factfinder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

In order for the DOTD to be held hable under either a negligence or strict liability theory, the plaintiff must prove that (1) the DOTD had custody of the thing which caused plaintiffs’ damages, (2) the thing was defective because it had a condition which created an unreasonable risk of harm, (3) 16the DOTD had actual or constructive notice of the defect and failed to take corrective measures within a reasonable time, and (4) the defect was a cause-in-fact of plaintiffs’ injuries. Brown v. Louisiana Indem. Co., 97-1344 (La.3/4/98), 707 So.2d 1240; Lee v. State ex rel Department of Trans. and Dev., 97-0350 (La.10/21/97), 701 So.2d 676.

In determining whether liability exists under a duty-risk analysis, a plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, that defendant owed a duty to plaintiff which defendant breached and that the risk of harm was within the scope of protection afforded by the duty breached. Mundy v. Department of Health and Human Resources, 620 So.2d 811 (La.1998). The DOTD has a duty to maintain the public highways in a condition that is reasonably safe for persons exercising ordinary care and reasonable prudence. Brown, supra at 1242 (citing La. R.S. 48:21). This duty extends to the shoulders of highways as well. Brown, supra; Myers v. State Farm Mut. Auto. Ins. Co., 493 So.2d 1170, 1172 (La.1986). The highway department’s duty to maintain safe shoulders encompasses the foreseeable risk that for any number of reasons, including simple inadvertence, a motorist might find himself traveling on, or partially on, the shoulder. Id. This duty extends to drivers who are slightly exceeding the speed limit or momentarily inattentive. Ledbetter v. State, Through Louisiana Dept. of Transp. and Development, 502 So.2d 1383 (La.1987). As to the area off the shoulder of the road, but within the right of way, DOTD owes a duty to maintain the land in such a condition that it does not present an unreasonable risk of harm to motorists using the adjacent roadway or to others, such as pedestrians, who are using the area in a reasonably prudent manner. Oster v. DOT & D, 582 So.2d 1285 (La.1991). Whether DOTD breached its duty, that is, whether the roadway at the scene of the accident was in an unreasonably dangerous condition, will depend on the facts and circumstances of the case. Campbell v. Louisiana Dep’t. of Transp. & Dev., 94-1052 (La.1/17/95), 648 So.2d 898, 901-02.

DOTD’s Appeal

DOTD first contends that the trial court committed manifest error in determining that the vehicle in this case left the roadway and struck and a culvert when there is no evidence in the record to support the finding that a culvert was involved in the accident. Based on this manifest error, DOTD argues that a de novo review of the record is required. We do not agree.

In its reasons for judgment, the trial court stated as follows:

The court finds that the condition created by DOTD, where a telephone pole was placed at the end of a ditch and a culvert, created an unreasonably dangerous condition, which ipso facto rendered the roadway defective. The court makes such a finding based on both the documentary evidence submitted, coupled with the testimony of the witnesses. That is, the court finds that but for the location of the ditch, culvert and light pole, the injuries suffered by the victims in this case would not have been as severe. The court also finds that it should have been obvious to DOTD that if a car missed the instant turn, and proceeded straight off of River Road, it would likely enter the subject ditch. Once this happened, the driver would not be able to turn out of the ditch, but instead would crash into the culvert and utility pole. Moreover, it is apparent that in such an event, there is a greater likelihood that the driver would not be able to steer out of the ditch, and would thus strike the telephone pole situated at the far end of the ditch.

The testimony in the record indicates that the roadside ditch referred to by the trial court was part of a drainage system whereby a culvert was placed under the state highway to run from the levee to the ditch. The testimony and evidence further supports a finding that the two right wheels of plaintiffs vehicle entered the ditch prior to its impact with the pole. Although the trial court mentioned the presence of the culvert in its reasons |Rfor judgment, the trial court did not specifically find that plaintiffs vehicle struck the culvert. Rather, the court made a factual determination that the vehicle entered the ditch where the culvert was located and continued though, striking the pole at the end of the ditch. This determination is supported by the testimony of the witnesses and more particularly, by the police photographs of the accident scene. We find that the record supports the trial court’s mention of the presence of the culvert, and we fail to find that the trial court’s determinations are manifestly erroneous.

DOTD next contends that the trial court erred in finding any causative effects of the ditch on this accident. DOTD admits that the record contains expert testimony that the ditch channeled the vehicle into an impact with the pole, but appellant relies on the trial court’s reasons for denying the motion for new trial which state that the court did not rely on the testimony of plaintiffs’ experts on this issue in rendering its judgment. DOTD contends the only remaining evidence in the record as to the role of the ditch is the testimony of DOTD’s expert who stated that the presence of the ditch did not cause this accident. Thus, DOTD contends that the evidence is contrary to the findings of the trial court. We find no merit in this argument.

Carlos Villaverde testified at trial that as he traveled down River Road, he saw an oncoming vehicle in his lane of travel. He moved to the right to avoid an accident and attempted to go into a patch of grass, but the car did not go any further and hit a pole. He specifically stated that he could not “maneuver the vehicle.” Mr. Villaverde was unaware at the time of the accident that he had struck the ditch, but he stated he realized this fact when he went back to the scene after the accident and saw the ditch in front of the pole. In addition, the photographs of the accident scene taken by emergency 19personnel clearly show that Villaverde’s vehicle entered the ditch on two wheels and came into contact with the pole.

Although DOTD’s expert in accident reconstruction, Gerald Corwin, testified on direct examination that the ditch had no effect on this accident because there was not enough reaction time to make a corrective maneuver, the witness admitted on cross-examination that the car was riding along one side of the ditch with its tires, and that this would have some effect on the handling of a vehicle.

After a review of the record in this case in its entirety, we conclude that the trial court’s conclusions are not manifestly erroneous. Even without considering the testimony of plaintiffs’ expert witnesses, we find that that the testimony of other witnesses as well as the documentary evidence presented supports the trial court’s findings that the presence of the ditch played a substantial role in causing this accident.

DOTD next contends that it was legal error for the trial court to impose liability on DOTD based upon inapplicable design standards, also referred to as AASHTO standards. However, in its reasons for judgment, the trial court concluded that the highway design standards referred to by DOTD did not exist at the time La. Hwy. 18 entered the state highway system in 1921 and that there had been no reconstruction of the highway prior to the accident which would have made the standards applicable. Specifically, the trial court stated:

After considering all of the evidence, the court finds that plaintiffs have not met their burden of proving that the 1946 scarification, or any of the other projects were major reconstructions. Therefore, DOTD is not responsible for bringing Hwy. 18 up to current AASH-TO standards.

|inThus, the trial court concluded that the AASHTO design standards were not applicable in this case and did not impose liability on the DOTD based on a violation of these standards. This argument is therefore without merit.

However, while the failure to adhere to AASHTO standards may not alone attach liability, DOTD’s adherence to design standards both at the time of original construction and at the time of the accident are a relevant factor in determining whether the roadway is unreasonably dangerous. Dill v. DOTD, 545 So.2d 994 (La.1989); Aucoin v. State Through Dept. of Transp. And Development, 97-1938 (La.4/24/98), 712 So.2d 62, 66. In imposing Lability on the DOTD, the trial court relied on defendant’s legal duty to maintain its highways in reasonably safe condition. The trial court made a factual conclusion that the pole that was placed at the end of a ditch and a culvert created an unreasonably dangerous condition for which the DOTD is liable.

This factual determination is well supported by the record. James Clary, plaintiffs’ expert witness in highway design and safety, testified that the lane and shoulder widths of La. Hwy. 18 at the place where the accident occurred violated DOTD’s highway standards which were in effect at the time of the accident. Clary further testified that the ditch was located 11 feet from the edge of the shoulder and had a slope of 3:1, both of which violated DOTD’s clear zone guidelines that were also in effect at the time of the accident. Under the circumstances presented herein, we find no error of the trial court in considering the standards applicable to state highways in reaching its determination that the condition of the roadway in this case was defective and presented an unreasonable risk of harm.

InDOTD next contends that the trial court erred in finding that DOTD had custody of the utility pole. DOTD contends that the uncontroverted evidence offered at trial indicates that the pole was owned and maintained by Entergy. Thus, DOTD contends it was legal error for the court to impose Lability against it absent a showing of custody of the pole. Further, DOTD argues that because the pole was located outside of its right of way, DOTD had no duty to maintain the area.

In its reasons for judgment denying DOTD’s motion for new trial, the trial court considered this argument as follows:

The court notes initially that despite the implications of DOTD, the court did not find that the pole alone created the unreasonably dangerous condition of the roadway. Rather, the court specifically found that, “the condition created by DOTD, where a telephone pole was placed at the end of a ditch and a culvert, created an unreasonably dangerous condition, which ipso fact rendered the roadway defective.” Thus, contrary to DOTD’s assertions, the court found that the totahty of the circumstances, i.e., a ditch that is parallel to a road that turns, and leads directly into an obscured culvert, and also which terminates with a telephone pole, is an unreasonably dangerous situation.

The court did not find, as argued in brief, that DOTD had custody of the utiLty pole in this case. Rather, the court found that the placement of the pole at the end of the ditch in close proximity to the roadway rendered the roadway defective. It is undisputed that DOTD had custody of La. Hwy. 18 and the culvert and ditch in question. Further, the record in this case indicates that DOTD maintained ditches that were adjacent to culverts, including the ditch that was adjacent to La. 18. Thus, although DOTD may not have had custody of the pole itself, DOTD had custody of the culvert and the ditch that comprised this highway drainage system.

l-ipThe testimony in the record supports the trial court’s findings that because of the close proximity of the ditch to the edge of the highway and based on the placement of the pole in the center end of the ditch which was maintained by DOTD, this situation became unreasonably dangerous because vehicles which left the road and entered the ditch would be forced into a head-on impact with the utility pole. Under the specific circumstances of this case, we find no error in the trial court’s ruling imposing liability on DOTD where DOTD had custody of the culvert and the ditch and was responsible for maintaining this area adjacent to the roadway.

By its next argument on appeal, DOTD contends that the condition of the roadway was not proven to be defective. Whether the condition of a road is unreasonably dangerous is a question of fact and should only be reversed if it is manifestly erroneous or clearly wrong. Petre v. State, 01-0876 (La.4/3/02), 817 So.2d 1107. We recognize that the trial court did not reach the issue of whether the curvature of the roadway was defective based on the court’s rejection of plaintiffs’ claim of a phantom motorist which crossed the center line. However, DOTD nevertheless has the duty to maintain its right of way in a condition that does not present an unreasonable risk of harm. Oster v. DOT & D, supra, 582 So.2d 1285 (La.1991).

Although the testimony as to whether the ditch was completely within DOTD’s right of way is conflicting, it is undisputed that the ditch in this case was built and maintained by DOTD and was therefore within the custody of DOTD. James Clary testified that the ditch was 11 feet from the edge of the roadway and constituted a violation of established clear zone standards. James Clary further testified that the ditch was actually operating as a catch basin which could have been covered without compromising its utility. However, the evidence in the record shows that the ditch and culvert | 13were completely obscured by grass and other vegetation and that the placement of the ditch adjacent to the utility pole caused a vehicle entering the ditch to be channeled into the pole. Although DOTD cannot be held responsible for all injuries on the state’s highways, we find that plaintiffs successfully proved a defect in the roadway within DOTD’s custody that created an unreasonable risk of harm to the motoring public which ultimately caused plaintiffs’ harm in this case.

DOTD next contends that the trial court erred in failing to allocate fault among the settling defendants. DOTD contends that the record contains clear evidence as to Entergy’s ownership of the utility pole and as to the role of the seat belts in the vehicle in contributing to the injuries. DOTD argues that fault should have been assessed both to Entergy and to the owner and manufacturer of the vehicle, and that DOTD is entitled to a credit for the amount of these settling defendants’ fault.

When a defendant urges the fault of a non-party, it is incumbent upon that defendant to provide a preponderance of evidence that fault actually exists on the part of the non-party. Terro v. Casualty Reciprocal Exchange, 93-593 (La.2/2/94) 631 So.2d 651, writ denied, 94-0522(La.4/24/94), 637 So/2d 157. As previously stated herein, the trial court failed to find the utility pole involved in this accident to be unreasonably dangerous. Rather, the court found the pole was a secondary cause of plaintiffs’ injuries. We have found that the record supports this finding and that, the trial court did not manifestly err in its factual determinations. Thus, there is no factual support in the record for an allocation .of fault to Entergy.

With regard to the allegation of defects in the seat belts, our review of the record in this matter fails to reveal a preponderance of evidence that the seat belts in the vehicle malfunctioned or were defective, or that any such |udefect contributed to the injuries suffered by the occupants of the vehicle. Absent sufficient competent evidence to show that a defect in the seatbelts contributed to plaintiffs’ injuries, the trial court did not err in failing to allocate fault to the owner or manufacturer of the vehicle.

By its last two arguments, DOTD contends that as plaintiffs failed to establish all of the elements of a prima facie case, the trial court erred awarding damages and in denying its motion for new trial. We find no merit in these arguments.

A new trial is required when the verdict or judgment appears clearly contrary to the law and evidence. La. C.C.P. art.1972. Further, the trial court has the discretion to grant a new trial in the interest of justice. La. C.C.P. art.1973. As to quantum issues, the inquiry of the reviewing court is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the “much discretion” of the trier of fact.

As previously stated herein, the judgment of the trial court is not contrary to the law and evidence. After a careful and thorough review of the record, the testimony and the evidence presented, we conclude that the trial court did not err in finding DOTD negligent or strictly liable for a defective roadway condition that created an unreasonable risk of harm to the motoring public and ultimately caused plaintiffs’ injuries. Plaintiffs proved by sufficient competent evidence that DOTD breached its duty of care to the occupants of the Villaverde vehicle to -maintain its roadway in reasonably safe condition, and that this conduct was a cause-in-fact of the resulting harm. The record also contains evidence that the state was aware of the substandard condition of the roadway and that other accidents had occurred on this accident site. Thus, the trial court did not err or abuse its discretion 11Bin finding that plaintiffs had established a prima facie case and in denying the motion for new trial.

With regard to the award of damages, we find that plaintiffs made a prima facie showing of a defect in the state highway that contributed to their injuries and that damages were properly awarded on this basis. An award of damages is within the discretion of the trial court. La. C.G. art. 2324.1.

Although DOTD makes a general allegation in its brief as to the excessiveness of the damage award, this statement is presented in a conclusory fashion without reference to the record and supporting jurisprudence. Under these circumstances, we fail to find that the issue of the amount of the damage award rendered is properly before us. See, Uniform Rule 2-12.4; Soileau v. Southern Pacific R.R., 93-1064 (La.App. 3 Cir. 4/20/94), 640 So.2d 417, 421-22. Further, there is a substantial amount of evidence in the record regarding the extent of the injuries suffered by both the surviving victims of the crash and by their families. After a considered and thorough review of the lay and medical testimony, as well as the other evidence presented at trial, we find no abuse of the trial court’s discretion in its award of damages to plaintiffs. The damage awards will therefore be affirmed.

Plaintiffs ’ Appeal

By their appeal, plaintiffs first contend that the trial court erred in its apportionment of fault. Plaintiffs contend that the condition of the roadway was dangerous and defective, and that DOTD should be held at least 95% at fault for this accident. Further, plaintiffs assert that the trial court erred in finding Carlos Villaverde greater than 5% at fault where there was no evidence that he was speeding, driving while intoxicated, or driving in a reckless manner.

|1fiThe seminal case on the apportionment of fault between parties is Watson v. State Farm Fire & Casualty Ins. Co., 469 So.2d 967 (La.1985). In Watson, the Louisiana Supreme Court identified various factors which may influence the degree of fault assigned, including: whether the conduct resulted from inadvertence or involved awareness of the danger, how great a risk was created by the conduct, the significance of what was sought by the conduct, the capacities of the actors, whether superior or inferior, and any extenuating circumstances which might require the actor to proceed in haste, without proper thought. Watson, 469 So.2d at 974.

After reviewing all of the evidence submitted to the trial court, we cannot say that the trial court’s apportionment of fault between DOTD and Mr. Villaverde was unreasonable or not supported by the record.

In its reasons for judgment, the trial court found that this accident was primarily caused by Carlos Villaverde’s inattentiveness coupled with his inexperience in driving. The record indicates that although Mr. Villaverde was not speeding or intoxicated, he was engaged in a conversation with the passengers in his vehicle. Further, the record shows that Mr. Villaverde was not a regular driver, and in fact rarely used a car as a method of transportation.

In addition, the trial court determined that plaintiffs had failed to prove the existence of a phantom motorist which crossed the central line of travel and caused Mr. Villaverde to leave the roadway. This determination is supported by the record which contains conflicting testimony as to the presence of an oncoming vehicle at the time this accident occurred. The trial court apparently rejected Mr. Villaverde’s testimony regarding a phantom vehicle. Thus, Mr. Villaverde is unable to rely on the argument that he was forced off of the roadway by an oncoming vehicle. Rather, the record 117supports the trial court’s finding that Mr. Villaverde left the roadway due to his inattentiveness and inexperience, rather than based on the fault of a third party.

Although Mr. Villaverde’s inexperience and inattentiveness set the accident in motion, the driver had no control over the resulting harm caused by the impact of the vehicle with the ditch and subsequently the utility pole. DOTD must therefore bear responsibility for the location of the obscured ditch in close proximity to the roadway and adjacent to the utility pole. Under the circumstances presented here, we find no manifest error in the trial court’s apportionment of fault.

Conclusion

Accordingly, for the reasons assigned herein, the judgment of the trial court is affirmed. Each party is to bear its owns costs of these appeals.

AFFIRMED.

      . In this 1991 case, knowledge of the defect is not a prerequisite to a finding of strict liability. See, Jacobs v. City of Bunkie, 98-2510 (La.5/18/99), 737 So.2d 14, 23.


source: Caselaw Access Project

author: I «THOMAS F. DALEY, Judge.

license: Public Domain

text:
    Joan Martin Ory, Wife of/and Ernest J. ORY v. A.V.I. CONSTRUCTION, INC. and ABC Insurance Company.
    No. 03-CA-72.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Jack E. Morris, Metairie, Louisiana, Counsel for DefendanVAppellant, A.V.I. Construction, Inc.
    David C. Loeb, Daniel E. Zelenka, II, Milling Benson Woodward, L.L.P., New Orleans, LA, for Defendant/Appellant, The Homebuilders Association of Greater New Orleans, Inc.
    E. Jeffrey Perilloux, LaPlace, LA, for Plaintiffs/Appellees, Joan Martin Ory, Wife of/and Ernest J. Ory.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   I «THOMAS F. DALEY, Judge.

Appellant, A.V.I. Construction, Inc. (A.V.I.), appeals a judgment against it in favor of plaintiffs Mr. and Mrs. Ernest J. Ory (Orys) for construction defects in their home. On appeal, A.V.I. filed Peremptory Exceptions of No Cause of Action, No Right of Action, and Prescription, arguing that the Orys’ exclusive remedy against A.V.I. is under the New Home Warranty Act, LSA-R.S. 9:3141 et seq., and not in redhibition, as the Orys’ suit is styled, and that a suit under the New Home Warranty Act (NHWA) is prescribed. In the alternative, A.V.I. argues that if this court finds that the Orys’ petition states a cause of action under redhibition (LSA-C.C. art. 2520 et seq.), that action is also prescribed. A.V.I. also argues, in the appeal, that the judgment awarding damages to the Orys is contrary to the law and evidence because the defects are the result of normal wear and tear. The Orys argue in brief that the New Home Warranty Act does not apply, that redhibition applies to this case, and that they are entitled to additional damages.

|sUpon review of the entire record and applicable law, we conclude that the NHWA provides the exclusive remedies in this suit. Therefore, we grant AV.I.’s Exception of No Cause of Action regarding redhibition. We further conclude that under the NHWA, the Orys’ suit is prescribed. We grant A.V.I.’s Exception of Prescription, and dismiss this appeal.

The Orys purchased a home from A.V.I. located at 68 Country Club Drive in La-Place, Louisiana in March of 1995. A.V.I. built the home. Several months after they moved in, but within one year from the transfer of title, around late December of 1995, the Orys noticed hairline cracks in the sheetrock of several rooms. They notified Sam Bordelon (Bordelon), owner of A.V.I., about the cracking. He came over to the house on January 19, 1996, to see the cracking. Bordelon sent two people from Delta Drywall to the Orys’ house on January 23, 1996, to perform repairs. Mrs. Ory was unhappy with the scope of the repairs and asked the workers to leave. After further conversations between Mr. Bordelon and Mr. Ory regarding the repairs, workers performed additional taping, floating, and drywall repairs in March of 1996. At the time, according to Mr. Bordelon, Mr. Ory was pleased with the repairs, but when the painters went back to finish the job by painting the walls, Mrs. Ory would not let them finish. Both Mr. and Mrs. Ory were concerned that only the visible cracks had been repaired. They believed that the repair work was mostly cosmetic and were concerned that future cracking would appear.

Though the testimony of the Orys and Bordelon differs about that incident, it was an undisputed fact that the last time any workers from A.V.I. worked on the sheet-rock problems was in March of 1996. The Orys requested that Bordelon give them a check to pay for repairs that they would supervise themselves, but Bordelon did not agree with this proposal. Bordelon testified that he was ready, -willing, and Rabie to fix the problems, but that Mrs. Ory had repeatedly turned away his workers, and eventually he believed that nothing he did would make her happy.

The Orys hired a lawyer, who sent three letters to Mr. Bordelon between October of 1996 and October of 1997. The Orys also got several estimates to repair the drywall, at the request of their attorney. These estimates, dated January 13, 1997, April 15, 1997,' and an updated estimate dated August 17, 2000, showed the costs for repairing corner bead in many locations in the house. The Orys filed their petition on July 16, 1998, alleging that the defects in the sheetrock constituted redhi-bitory defects. At trial, the Orys acknowledged that there were no structural defects in the home, but that the corner bead was defectively installed.

Following a bench trial on November 2, 2001, the trial court signed a judgment on March 5, 2002, awarding plaintiffs damages pursuant to LSA-C.C. art. 2545 (red-hibition) in the sum of $3,538.20 and attorney’s fees in the amount of $1,000.00.

EXCEPTIONS

A.V.I. filed, in the appellate court, Peremptory Exceptions of No Cause of Action, No Right of Action, and Prescription. A.V.I. asserts that the Orys’ claims against A.Y.I. arise out of cracks in the sheetrock in a home constructed and sold to them by A.V.I. As such, A.V.I. argues that the Orys’ claims are limited to the “exclusive remedies, warranties, and prescriptive periods” provided by the NHWA, LSA-R.S. 9:3141 et «eg., LSA-R.S. 9:3150. Therefore, pursuant to R.S. 9:3150, the Orys’ Petition fails to state a cause of action against A.V.I. for redhibition, and the Orys have no right of action against A.V.I. for redhibition. Additionally, A.V.I. argues that under LSA-R.S. 9:3146, the Orys’ action to enforce a new home warranty is perempted and/or prescribed because the Orys Rfiled their Petition more than “thirty days after the expiration of the appropriate time period provided in La. R.S. 9:3144.”

Alternatively, in the event the court concludes that the Orys’ Petition states a cause of action for redhibition and that the Orys have a right of action against A.V.I. for redhibition, A.V.I. argues that the Orys’ action for redhibition is prescribed pursuant to LSA-C.C. art. 2534 because the Orys filed their Petition more than one year from the day A.V.I. delivered the home to them, more than one year from the day they discovered the alleged defects in the home, and more than one year from the day A.Y.I. tendered the home back to them and notified them of AY.I.’s refusal and inability to make additional repairs.

Art. 2163 of the Code of Civil Procedure states that the appellate court may consider the peremptory exception filed, as a separate pleading, for the first time in that court, if pleaded prior to a submission of the case for a decision, and if proof of the ground of the exception appears of record. Sowers v. Dixie Shell Homes of America, Inc., 33,390 (La.App. 2 Cir. 5/15/00), 762 So.2d 186. If the ground for the peremptory exception pleaded in the appellate court is prescription, the plaintiff may demand that the case be remanded to the trial court for trial of the exception. C.C.P. art. 2163. The plaintiffs have not demanded the remand of the case for trial of the exceptions of prescription. We find that proof of the grounds for the exceptions appear in the record.

The Peremptory Exception of No Cause of Action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Hall v. Zen-Noh Grain Corp., 01-766 (La.App. 5 Cir. 11/27/01), 803 So.2d 203, citing Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993).

The Orys respond that since A.V.I. was both the builder and the seller of the home, the NHWA does not provide their exclusive remedy and that they may | ^proceed against A.V.I. in redhibition, citing Garner v. Louisiana Housing, 2000-2226 (La.App. 4 Cir. 9/26/01), 798 So.2d 295, writ denied, 2001-2888 (La.1/25/02), 807 So.2d 250. Plaintiffs’ reliance on Garner, however, is misplaced. Gamer involved the sale of a mobile home. Jurisprudence has held that mobile homes are not subject to the NHWA. See e.g. Dalme v. Blockers Manufactured Homes, Inc., 2000-0244 (La.App. 3 Cir. 1/25/01), 779 So.2d 1014, writ denied 2001-1246 (La.6/15/01), 793 So.2d 1248.

In LSA-R.S. 9:3141, the NHWA defines the following pertinent terms:

For purposes of this Chapter the following words, phrases, and terms shall be defined and construed as follows:
(1) “Builder” means any person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or addition thereto, including a home occupied initially by its builder as his residence. A person, corporation, partnership, limited liability company, joint venture, or other entity which constructs a home, or any addition thereto, is a “builder”, whether or not the consumer purchased the underlying real estate with the home.
(3) “Home” means any new structure designed and used only for residential use, together with all attached and unattached structures, constructed by the builder whether or not the land was purchased from the builder. Such term includes structures containing multiple family dwellings or residences.
(4) “Initial purchaser” means any person for whom a home is built or the first person to whom a home is sold upon completion of construction.
(6) “Owner” means the initial purchaser of a home and any of his successors in title to a home during the time the warranties provided under this Chapter are in effect.
(7) “Warranty commencement date” means the date that legal title to a home is conveyed to its initial purchaser or the date the home is first occupied, whichever occurs first.

The Orys purchased the home from A.V.I., which built the home, upon completion of construction. It is evident from the evidence in the record that they meet the definition of “owner” and “builder,” respectively, under the NHWA.

|7Where the cause of action has not wholly arisen from construction defects, violations of the building code, or poor workmanship, Louisiana courts have determined the NHWA was not the sole remedy available to the home owner. Stokes v. Oster Development, Inc., 01-780 (La.App. 5 Cir. 1/15/02), 807 So.2d 987, citing Thorn v. Caskey, 32,310 (La.App.2 Cir. 9/22/99), 745 So.2d 653; Squyres v. Nationwide Housing, 98-8 (La.App. 3 Cir. 6/03/98), 715 So.2d 538; Melancon v. Sunshine Construction, 97-1167 (La.App. 1 Cir. 5/15/98), 712 So.2d 1011; Leon v. Deters Custom Homes, 97-0772 (La.App. 1 Cir. 4/08/98), 711 So.2d 346. The type of damage asserted by the Orys, the defective installation of the corner bead and defects in the corner bead itself, however, are the types of defects squarely addressed by the NHWA.

The Orys contend in the brief that they were not given notice of the NHWA at the closing, as per LSA-R.S. 9:3145. The trial court record is devoid of any mention of the New Home Warranty Act. LSA-R.S. 9:3145 states:

Before undertaking any repair himself or instituting any action for breach of warranty, the owner shall give the builder written notice, by registered or certified mail, within one year after knowledge of the defect, advising him of all defects and giving the builder a reasonable opportunity to comply with the provisions of this Chapter. • The builder shall give the owner written notice of the requirements of this Chapter at the time of the closing.

In 1995, when the Orys purchased the home from A.Y.I., R.S. 9:3145 did not contain the last sentence requiring the builder to give written notice to the homeowner of the NHWA. The statute was amended to include that provision by Acts 1997, no. 987, § 1. Because this added a substantive requirement, its application is prospective. See LSA-C.C. art. 6. In 1995, A.V.I. was not required to give the Orys notice of the provisions of the NHWA. Therefore, since there was no notice requirement at the time of the sale of this house to the Orys the lack of notice does not bar the application of the NHWA. We find that the NHWA act |sapplies to this suit and we grant the Exception of No Cause of Action relative to the Orys’ claims in redhibition.

In the Exception of Prescription, A.V.I. argues that the Orys’ suit is perempted under R.S. 9:3146. The peremptive language was not added to R.S. 9:3146, however, until the passage of Acts 2001, no. 179, § 1. The Orys filed suit in 1998. The Orys rights were already vested prior to the amendment of this statute. Therefore, the amendment does not apply to the Orys’ suit. At the time they filed suit, R.S. 9:3146 read:

§ 3146. Prescription
Any action to enforce any warranty provided in this Chapter shall prescribe thirty days after the expiration of the appropriate time period provided in R.S. 9:3144.

This court notices an apparent irreconcilability between R.S. 9:3145 and 9:3146. The former statute states that before instituting any action for breach of warranty, the owner shall give the builder written notice, by registered or certified mail, within one year after knowledge of the defect. R.S. 9:3146, however, causes a homeowner’s cause of action to be prescribed 30 days after the expiration of the applicable warranty period. It appears that in some cases, R.S- 9:3146 will cause a homeowner’s cause of action to be prescribed before they are even required to notify the builder about it under R.S. 9:3145.

We need not reach that issue in the instant case, however, because the Orys’ suit was filed well after one year from the date they discovered the defects and also well after one year from the last time A.V.I. attempted any repairs. Clearly the suit is prescribed.

It is unclear whether the prescriptive period in pre-2001 R.S. 9:3146 is subject to interruption or tolling, as is the prescriptive period for redhibition, found J^in LSA-C.C. art. 2534(C). Under the facts in this case, though, even using the provisions of art. 2534(C) by analogy, this suit is prescribed.

The Orys discovered the defects in the sheetrock, at the latest, in January of 1996. The last attempt A.V.I. made to send workers to repair the home was in March of 1996. At some point Mr. Bordelon told the Orys that he could do nothing else for them, at which time they hired an attorney, who sent three letters to Mr. Borde-lon asking for a meeting to resolve the issue. Though the exact date when Mr. Bordelon stated his refusal/inability to repair the home is not established with specificity in the record, the Orys’ counsel’s first letter to Mr. Bordelon is dated October 11, 1996. According to the Orys’ own testimony, Bordelon’s notice to them of his refusal/inability to repair the home predates this letter. The Orys filed suit in July of 1998, more than one year (and closer to two years) after Mr. Bordelon notified them of his refusal/inability to repair the home; more than one year after his workers’ last physical presence in the home to attempt repairs; well more than one year after they moved into the house or discovered the defects.

The Orys, in brief, argue that they continued to attempt to work with Mr. Borde-lon to resolve the defects and that their suit was filed less than one year after the last written correspondence with Mr. Bor-delon. The record shows that the Orys’ counsel’s last letter was sent to Mr. Borde-lon in October of 1997; however, the substance of that letter (and the two previous letters) reveals that there had been no ongoing progress in the repairs or in even setting up a meeting to discuss a remedy, since the time of the first letter in October of 1996. The Orys themselves testified that they had no further conversations with Mr. Bordelon after they secured counsel sometime in 1996. The October 1997 letter from the Orys to Mr. | inBordelon cannot be considered to have interrupted prescription. It is not an acknowledgment by the obligor of the debt.

Mr. Bordelon testified that he had no conversations with the Orys after they hired their attorney in the middle of 1996, but that his contact was with the attorney. He testified that he called her after he received every letter she sent him and expressed his willingness to find a solution, and that she would call and say she would get back to him regarding setting up a meeting between him and the Orys, but never did. He never met her face to face, and no meetings were ever set up between him and the Orys.

The Orys also argue in brief that they secured the repair estimates at the request of Mr. Bordelon. This assertion, however, is contradicted by their own testimony at trial that they secured these estimates at the request of their own counsel and specifically, Mrs. Ory testified that Mr. Bor-delon did not ask them to get estimates, but rather refused to entertain paying the Orys to supervise the repairs themselves.

Accordingly, A.V.I.’s Exceptions of No Cause of Action and Prescription are granted, and this appeal is hereby dismissed.

EXCEPTIONS OF NO CAUSE OF ACTION AND PRESCRIPTION GRANTED; APPEAL DISMISSED.

      . We do not address this last contention, as the Orys neither filed their own appeal nor filed an answer to the appellant's appeal. La. C.C.P. arts.2082, 2133; TeleRecovery of Louisiana, Inc. v. Gaulon, 98-1363 (La.App. 5 Cir. 6/1/99), 738 So.2d 662.

      . The NHWA was promulgated in 1986.

      . C. In any case prescription is interrupted when the seller accepts the thing for repairs and commences anew from the day he tenders it back to the buyer or notifies the buyer of his refusal or inability to make the required repairs.

      . In brief, the Orys state that Mr. Bordelon never advised them, either verbally or in writing, that he was unable or unwilling to make the repairs. Their own testimonies contradict this assertion in brief.


author: J^SUSAN M. CHEHARDY, Judge.

text:
    STATE of Louisiana, Department of Social Services, in the Interest of S.McC. v. J.A.McC.
    No. 03-CA-108.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.

      Paul D. Connick, Jr., District Attorney, Parish of Jefferson, State of Louisiana, Alan D. Alario, II, Tamithia D. Shaw, Terry M. Boudreaux, Assistant District Attorneys, Gretna, LA, for the State of Louisiana, Plaintiff-Appellant.
    Pat M. Franz, Metairie, LA, for J.A.McC., Defendantr-Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and CLARENCE E. MCMANUS.
   J^SUSAN M. CHEHARDY, Judge.

This is a child support matter originating in juvenile court pursuant to La.R.S. 46:236.1, et seq. We amend, affirm and remand.

The petition, filed by the State of Louisiana, Department of Social Services (hereafter DSS) in the interest of the minor 5.McC., seeks recovery of child support for T.P., recipient and mother of the child, from the father, J.A.McC., obligor and defendant. At the initial hearing on March 6, 2002, the parties agreed to support in the amount of $792.00 per month, based on the defendant’s admission that his income was $5,000.00 per month.

On April 10, 2002 the defendant filed a rule to reduce the child support payments, on the basis of a change in job/wages status. After several continuances at the defendant’s request, the matter came before a hearing officer, who denied the rule to reduce on the ground that the defendant had failed to show he is not intentionally underemployed.

|3The defendant sought review of the hearing officer’s recommendation and on December 9, 2002 the juvenile judge reduced support to $339.51 per month, retroactive to the date of filing, calculated on a reduction in the defendant’s income to $1,739 per month. DSS filed a motion for new trial, which was denied, and DSS appeals.

FACTS

The defendant works offshore as a diving supervisor for Specialty Diving. He testified that when the support proceedings began he had been working as a salesman and diver, but due to a decline in business his job status changed to being a diver only, for which he earns $18.00 an hour. He said the diving business has been slow and he has suffered a loss of wages as a result. He testified that in 2001 he made $60,000.00, but in 2002, as of the time of the December 9 hearing, he had net earnings of $22,428.00.

The defendant also testified that because of complaints by his ex-wife (T.P., recipient of the services in this case), resulting in arrests for domestic violence and for stalking, he had had to comply with an array of dates to report to court, which affected his ability to go offshore to work as a diver. He stated he had to turn work down in order to remain onshore and be available for his court dates. In addition, he had other dates on which he had to make himself available for child custody and visitation proceedings and examinations. The defendant stated he left Specialty for a while and worked for Torch Offshore, but as a result of the criminal complaints against him Torch terminated his employment and he returned to work for Specialty as a diver. At the time of the rule to reduce was tried, the criminal charges were still pending.

|4A representative of Specialty Diving, Deborah Wallace, testified that at the end of 2001 and the beginning of 2002 the company suffered some financial losses, so that sales were not warranting the salaries and employees had to be laid off. Wallace said that the company could not keep the defendant on as a salesman, but allowed him to stay on as a diver. Wallace further testified that the defendant had been unable to take on a number of the job assignments he had been offered because they required extended out-of-town travel, requiring stays of two weeks to three months at a time. Wallace said that the defendant is a good supervisor diver and has unquestioned working qualifications, but the company’s continued use of him will depend on the restrictions of his having to remain in residence locally. Wallace said the company will be limited to giving him one or two-day jobs, but will be unable to give him assignments requiring extended stays. As a result, he has been moved from the company’s list of set divers to the list of freelance divers.

T.P. testified that she had appeared on a couple of court dates for the criminal charges, but that the defendant had not shown up for those. She also said there had been approximately 15 court dates for the juvenile court proceedings since March 2001.

The judge expressly prohibited either party from discussing the substance or the merit of the criminal charges.

Ruling from the bench, the court found that the defendant was not in contempt. The court granted a reduction and ordered that the support be calculated based upon income of $1,739.00 per month, retroactive to April 10, 2002, subject to review in six months. The court directed that at the review hearing the defendant is to bring in proof of his income and checks from all the preceding six months. At that time, the judge stated, if the criminal charges have been resolved and the defendant’s income is improving, the child support -will be increased.

[fiOn appeal DSS contends the trial court’s determination that the defendant was not voluntarily underemployed is clearly wrong. DSS asserts that the defendant’s reduction in employment due to court appearances is a voluntary reduction because the incidents being prosecuted arise from the defendant’s interaction with his ex-wife and “[tjhis interaction cannot be entirely beyond the defendant’s control.” Further, DSS points out, the record shows that the defendant has filed numerous continuances in juvenile court, has missed hearings in juvenile court, and has filed motions on his own behalf in juvenile court. As a result, DSS contends, the numerous court appearances have resulted from the way the defendant has chosen to litigate the child support matter. Finally, “if the juvenile court will entertain continuances when the defendant is offshore working, then the proceedings in that court should not limit the defendant’s ability to work.... These charges and court dates interfered with the defendant’s ability to work because of his own fault or neglect.”

With respect to the amount of the reduction and retroactivity, DSS cites a recent case from this Court for its holding that the reduction should be based on the defendant’s income during his periods of employment and unemployment, rather than on the income he had at the time of the child support hearing. See Curet v. Curet, 02-212 (La.App. 5 Cir. 6/26/02), 823 So.2d 971. DSS contends that, if this Court finds the trial court did not commit manifest error in reducing the child support, we should find the court erred nevertheless in failing to base the retroactive support reduction on the defendant’s varying income during the relevant period.

In opposition, the defendant asserts that the evidence established that he is not voluntarily underemployed. Further, he contends, the trial court did not err in failing to create multiple periods of support during one eight-month period and, | fieven if it is error, it is “totally insignificant,” amounting to less than $200.00 over the eight-month period, and should not be changed in view of the pending six-month review hearing.

LAW AND ANALYSIS

The standard of appellate review of factual findings in a civil action requires the appellate court to find from the record that there is a reasonable factual basis for the finding of the fact finder and then to determine the record establishes the finding is not clearly wrong (manifestly erroneous). Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Factual findings should not be reversed on appeal unless there is manifest error. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

If the trial court’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse. Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990). Consequently, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Id.; Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 883 (La.1993).

The amount of a child support award will not be reversed absent an abuse of discretion. Walden v. Walden, 00-2911, p. 4 (La.App. 1 Cir. 8/14/02), 835 So.2d 513, 517.

La.R.S. 9:311(A) provides that an award for support shall not be reduced unless the party seeking the reduction shows a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award. In addition, in eases where the Department of Social Services is providing support enforcement services, La.R.S. 9:311(C)(1) |7provides that a material change in circumstance exists when a strict application of the child support guidelines would result in at least a twenty-five percent change in the existing child support award.

For purposes of the child support guidelines, La.R.S. 9:315(6) defines “income” as “actual gross income of a party, if the party is employed to full capacity” or “potential income of a party, if the party is voluntarily unemployed or underemployed.” La.R.S. 9:315(6)(b) states, “A party shall not be deemed voluntarily unemployed or underemployed if he or she is absolutely unemployable or incapable of being employed, or if the unemployment or underemployment results through no fault or neglect of the party.”

“Voluntary underemployment is a fact-driven consideration. The trial court has wide discretion in determining the credibility of witnesses and its factual determinations will not be disturbed on appeal absent a showing of manifest error.” [Citations omitted.] State v. Battson, 36,336, p. 5 (La.App. 2 Cir. 9/18/02), 828 So.2d 132, 135.

Voluntary underemployment is a question of good faith on the part of the obligor spouse. Havener v. Havener, 29,785, p. 10 (La.App. 2 Cir. 8/20/97), 700 So.2d 533, 539. The trial court, however, has wide discretion in determining the credibility of the witness; whether the ob-ligor spouse is in good faith in ending or reducing his income is a factual determination which will not be disturbed absent an abuse of discretion. Id.

Considering the above principles in light of the facts elicited at the hearing, we find no manifest error in the trial court’s determination that J.A.McC. is not voluntarily underemployed. To begin with, the evidence regarding downturn in the business climate affecting the industry is not disputed. Further, the judge properly refused to consider the merit or substance of the pending criminal charges in 18making that determination. Similarly, the unusual nature of the obligor’s work— requiring him to be out of town for days or weeks at a time — supports a determination that the numerous court appearances the defendant was required to make were the cause of his underemployment and subsequent drop in income. Finally, the court’s implicit finding that the defendant was truthful in asserting that his actions were not intended to reduce his child support obligations is a credibility determination and we find no manifest error in it.

We find merit, however, to the argument of DSS that the reduction in support should be based on the defendant’s varying income levels during the entire period between the support hearings. Where a modification in child support is at issue due to changes in the obligor spouse’s income, rather than using only the income amount at the time of the hearing the trial court should calculate child support based on the actual income from fluctuation to fluctuation during the period in question. See Curet v. Curet, supra; Saussy v. Saussy, 93-1303 (La.App. 3 Cir. 6/15/94), 638 So.2d 711.

As applied here, the period in question is from April 10, 2002 (the date the defendant filed his request for reduction) to December 9, 2002 (the date of the hearing on the rule to reduce). Further, calculation of child support under the child support guidelines should be based on the combined adjusted gross incomes of the parties, not on net income. See La.R.S. 9:315.2(D).

Despite the figures cited by counsel in their appellate briefs, however, we find the record confusing as to the variations in the defendant’s income as well as to the mother’s income. Accordingly, we remand to the juvenile court for recalculation of the amount of support due.

For the foregoing reasons, the judgment is affirmed, but is amended to provide that the amount awarded shall be calculated under the Schedule of Support laset out in La.R.S. 9:315.19 based on the adjusted gross incomes of the parties, adjusted for each period between changes in the income of the parties. The matter is remanded and the trial court is directed to recalculate the support in accordance with the principles set out herein.

AMENDED, AFFIRMED AND REMANDED.

      . Under these statutes, upon application of a parent the Department of Social Services may take direct civil action against an alleged biological parent of a child and may obtain an order, judgment, or agreement of support for the child against the responsible person. A separate and distinct cause of action in favor of the Department is created by these provisions. See State, Dept. of Social Services, Support Enforcement Services ex rel. A.M. v. Taylor, 00-2048, pp. 4-5 (La.App. 1 Cir. 2/15/02), 807 So.2d 1156, 1160.

      . We note that while the child support proceedings were pending in the juvenile court, the parties were involved in divorce proceedings in the district court, which rendered a judgment of divorce on August 28, 2002. The district court also ruled on ancillary matters, including child custody and visitation, but not on child support.

      . According to the record, the review hearing currently is set for June 9, 2003, which will be shortly after this Court’s decision is rendered,


author: j .DUFRESNE, Chief Judge.

text:
    CARGO CARRIERS DIVISION OF CARGILL MARINE & TERMINAL, INC. v. INDUSTRIAL MAINTENANCE PRODUCTS COMPANY, INC. (a/k/a IMPCO, Inc.), Jacqueline Laurent Lister and Emily Sue Laurent Harris.
    No. 03-CA-109.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    Atoundra C. Pierre, Attorney, Luling, LA, for Defendant-Appellant.
    Jules A. Carville, III, Attorney, LaPlaee, LA, for Defendant-Appellee.

      Panel composed of Judges EDWARD A. DUFRESNE, JR., JAMES L. CANNELLA and MARION F. EDWARDS.
   j .DUFRESNE, Chief Judge.

This is an appeal by Industrial Maintenance Products Company, Inc. (IMPCO) from a judgment in favor of Jacqueline Laurent Lister and Emily Sue Laurent Harris in this concursus proceeding. At issue are the proceeds of lease of batture property by Cargo Carriers Division of Cargill Marine and Terminal, Inc. We affirm that judgment.

The following facts are undisputed. Both IMPCO and Lister/Harris have titles which are traceable to a common ancestor as of 1911. In that year a tract of land measuring about one and one-half by 94 arpents was owned by members of the Laurent and Barre’ families. By an Act of Sale, Exchange and Partition, dated March 13, 1911, Placide Barre’ transferred his interest in the property to the Laurents, except for one portion described as follows:

One Hundred and Forty-Eight feet and three inches (148'-3") front of the said property commencing at the upper front line, adjoining the land of Barthelmy Haydel, by a depth of Six Hundred and Ninety-One feet and Three inches (691'-3") extending to a fence in the rear of a garden now on said place, thence One Hundred and Forty-Eight feet and Three inches (148'-3") to a line parallel with the line on the upper side of said property at a point Six Hundred and Ninety-One feet and Three inches (691'-3") from the front of said property, which boundary lines are equal and parallel.

However, the Judgment of Possession in Placide Barre’s succession in 1963 changed the above description to read as follows:

|3A certain lot of ground ... measuring 148 feet, and three lines front on the Mississippi River, same width in the rear by a depth counting from the Public Road of 691 feet 3 inches between parallel lines, and is bounded on the ■ upper side by property formerly belonging to Bartholomew Haydel and now to Hannon I. Barre, and on the lower and rear lines by the property formerly belonging to Emile Laurent and now to Lubin Laurent et als.

This description in effect added the bat-ture from the river to the public road, and then repeated the 148' 3" by 691' 3" dimensions of the lot as it appears in the 1911 description. IMPCO purchased the property according to the 1963 description from heirs of Placide Barre’ in 1990.

A surveyor’s plat prepared in 1978 in conjunction with the succession of Lubin Laurent by the Lister/Harris parties was placed in evidence, and this plat showed that the batture was a part of the Lister/Harris property rather than that of Placide Barre’. The plat further showed that the Placide Barre’ tract commenced at the public road and went back 691 feet, 3 inches. Testimony at trial was uniformly to the effect that the batture had never been used regularly, was never fenced off, and no structures had ever been placed upon it .by any of the litigants or their ancestors in title. Jerry Barre’, one of Placide’s heirs, testified that he had only intermittently gone on the batture to place shrimp boxes in the river in front of it.

In 1996 Cargo Carriers leased the bat-ture and apparently paid both claimants the yearly amount of the lease for the disputed portion of the batture. In 2000 Cargo Carriers apparently decided that this arrangement was not in its best interest so it deposited the rental payments for that year in the registry of the court and commenced this concursus proceeding. -

On the above evidence the trial judge ruled that the Lister/Harris parties were entitled to the proceeds and so rendered judgment in their favor. IMPCO now appeals.

When a eoneursus proceeding involves ownership of property, Code Civ. Pro., Art 3654 provides that judgment is to be in favor of the party:

|4(1) Who would be entitled to the possession of the immovable property or a real right therein in a possessory action, unless the adverse party proves that he has acquired ownership from a previous owner or by acquisitive prescription; or
(2) Who proves better title to the immovable property or real right therein, when neither party would be entitled to the possession of the immovable property or real right therein in a possessory action.

Article 3426 of the Civil Code provides that “one who possesses a part of an immovable by virtue of a title is deemed to have constructive possession within the limits of his title.” The evidence in this case shows indisputably that the Lister/Harris parties and their ancestors corporeally possessed their tract prior to 1911, as well as thereafter, by living on it. Thus, while there is no evidence to show corporeal possession of the batture over the years, this portion was constructively possessed because lying within their title. Article 3433 further provides that “possession is lost when the possessor manifests his intention to abandon it or when he is evicted by another by force or usurpation.” The evidence is equally clear that this possession by Lister/Harris was never abandoned, nor were they ever evicted by force or usurpation by IMPCO or its ancestors in title.

IMPCO argues that pursuant to Article 3426 it should be deemed to have possession of the batture because it lies within its title description, and further that because it has so possessed the batture for ten years it should be deemed to have acquired ownership by the 10 years prescription of Article 3473. However, Article 3476 requires that for purposes of the ten year prescription the possessor must have “corporeal possession, or civil possession preceded by corporeal possession,” and that this possession must be “continuous, uninterrupted, peaceable, public and unequivocal.” There is no evidence that IMPCO or its ancestors ever exercised such possession over the batture so as to have commenced the running of the ten year prescription. We further note that were IMPCO’s argument to be accepted here, then any alteration enlarging a tract in a title description would, after ten [Byears, cause ownership of the enlargement to accrue to the altered title owner, at the expense of the adjoining owner whose title had been Encroached upon. Such a result would simply be untenable.

IMPCO also argues that the 1978 plat was improperly admitted into evidence. We disagree. The Louisiana Code of Evidence, Article 103, provides that error may not be predicated on a ruling which admits evidence unless a contemporaneous objection has been made to its admission. Here the plat was introduced without objection. What IMPCO’s attorney did object to was not the document itself, but rather to the witness explaining what the document meant and marking it. The plat is self-explanatory when viewed in conjunction with the property descriptions contained in the other documents and therefore did not require any further explication by the witness. Thus, even were the admission of the witness’s explanation improper, that explanation did not affect any substantial right of the complaining party.

For the foregoing reasons the judgment of the district court is hereby affirmed.

AFFIRMED.


author: L.SOL GOTHARD, Judge.

text:
    SHELL OIL COMPANY v. ST. CHARLES PARISH SCHOOL BOARD, et al.
    No. 03-CA-116.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    David R. Kelly, David R. Cassidy, Breazeale, Sachse & Wilson, L.L.P., Baton Rouge, LA, for Plaintiff/Appellant.
    Andrew A. Lemmon, Lemmon Law Firm, New Orleans, LA, and Roy M. Lilly, Jr., Minden, LA, for Defendants/Appellees.
    Panel composed of Judges SOL GOTHARD, THOMAS F. DALEY and WALTER J. ROTHSCHILD.
   L.SOL GOTHARD, Judge.

The plaintiff, Shell Oil Co. (“Shell”), appeals the judgment of the trial court denying its motion for summary judgment and granting the motion for summary judgment filed by defendants, St. Charles Parish School Board and R.J. Lorio, Director of Tax Collection, St. Charles Parish School Board, Sales & Use Tax Department (“St.Charles”). For the following reasons, we affirm in part and reverse in part the decision of the trial court.

This suit arose out of an assessment made on Shell by St. Charles, subsequent to Shell’s filing of an amended tax return in 2001. With this amended return, Shell remitted an additional $267,876.19 in tax payments. St. Charles assessed penalties of $68,592.67 (25% of tax) and interest of $81,622.40 (12% per annum), resulting in a total payment of $146,165.53. Shell paid $102,561.62 on December 13, 2001, but refused to pay the excess on the grounds that it represented excessive interest and penalties under La. R.S. 33:2746 and the Louisiana Supreme Court decision in Elevating Boats, Inc., v. St. Bernard Parish, 2000-3578 (La.9/5/01), 795 So.2d 1153. Shell paid the remaining amount of | s$43,603.91 under protest on January 29, 2002; and filed its petition for refund on February 22, 2002. St. Charles filed an answer and reconventional demand on March 25, 2002, requesting an additional 10% in attorney fees. The parties filed cross motions for summary judgment.

After a hearing in July of 2002, the trial court denied Shell’s motion for summary judgment and granted St. Charles’ motion, dismissing Shell’s claims and transferring the funds deposited by Shell, together with interest earned on the deposit, to St. Charles. The trial court further granted judgment in favor of St. Charles for attorney’s fees of ten percent (10%). In his reasons, the trial judge stated that:

The total charges assessed against Shell rest on the Parish’s authority under the penalty provisions of Title 47 in conjunction with La. R.S. 33:2841. Therefore, the Elevating Boats decision does not apply. Furthermore, the Court finds that the Parish both has the right and is entitled to an award of reasonable attorney fees in this matter as similarly decided in Steve-Woodard (sic). (Cited infra.) ■

In this appeal, Shell argues that the trial court erred in not applying the decision of Elevating Boats, Inc., and in failing to find that the interest and penalties assessed exceeded the maximum allowed by law. Although the issue of attorney’s fees is not specifically designated as error, Shell does contend in brief that “the amount sought by the Defendant in additional interest, penalties and attorney’s fees exceeded the amount allowed under the law.”

St. Charles responds that Elevating Boats, Inc. is inapplicable to this case, as it merely held that La. R.S. 33:2746 super-ceded a parish ordinance, and that R.S. 33:2746 was not at issue in the present case. Furthermore, under La. R.S. 33:2841, local subdivisions may apply La. R.S. 47:1601, La. R.S. 47:1602, La. R.S. 47:1605, La. R.S. 47:1512, as St. Charles did in this case.

RLa. R.S. 33:2746 provides:

Upon local taxes not paid and delinquent thirty days after the date upon which the tax is due, there shall be an interest penalty of one and one-quarter percent per month on the amount of the tax due, which shall be collected by the tax recipient body, together with and in the same manner as the tax.

In Elevating Boats, Inc., the court considered a St. Bernard Parish Sales and Use Ordinance that provided for a 6% annual interest penalty, a one time delinquency penalty of 25%, and attorney’s fees of 10%. The court noted that the La. R.S. 33:2746 “sets the maximum allowable burden for delinquent taxes.” Thus, the assessment under the Parish Ordinance was excessive. The Court then remanded the matter to the district court for a determination of the exact amount due.

In Stowe-Woodard Co. v. Lincoln Parish School Board, 36,100 (La.App. 2nd Cir.6/14/02), 821 So.2d 694, writ denied, 2002-2389 (La.11/22/02), 829 So.2d 1049, the court found that La. R.S. 47:1512 allows a political entity to collect attorney’s fees of 10% in addition to a maximum interest and penalty of 15%.

R.S. 47:1512 provides:

The collector is authorized to employ private counsel to assist in the collection of any taxes, penalties or interest due under this Subtitle, or to represent him in any proceeding under this Subtitle. If any taxes, penalties, or interest due under this title are referred to an attorney at law for collection, an additional charge for attorney fees, in the amount of ten pereentum (10%) of the taxes, penalties and interest due, shall be paid by the tax debtor.
The Stowe-Woodard court noted that: This provision was not addressed by the court in Elevating Boats, but clearly it provides for the award of attorney fees in addition to the interest penalty set forth in La. R.S. 33:2746, which makes no mention of attorney fees. Moreover, La. R.S. 47:1512 provides for attorney fees whether incurred in a collection case or in defense of a taxpayer’s suit for a refund. The award of attorney fees by the trial court is permissible under La. R.S. 47:1512. (Citations omitted).

| KIn the case before us, the trial court assessed interest of 15% per annum, a penalty of 25%, and attorney’s fees of 10%. The court noted that it was assessing the penalties under the provisions of Title 47, in conjunction with R.S. 33:2841, and that La. R.S. 33:2746 and the decision of Elevating Boats, Inc. was not applicable. The court also noted that the award of attorney fees was supported by the decision in Stowe-Woodard.

We disagree with the trial court’s assessment that La. R.S. 33:2841 allows a local taxing authority to utilize all of Title 47 relating to state and sales use tax, and thereby ignore the provisions of La. R.S. 33:2746. La. R.S. 33:2746 clearly limits the interest and penalty that a local taxing authority can assess against the delinquent payment of sales and use taxes. The trial court’s ruling renders R.S. 33:2746 superfluous, a result clearly not compatible with our rules of statutory construction. See, Succession of Boyter, 99-0761 (La.1/7/00), 756 So.2d 1122.

Nevertheless, we do believe that the trial court did not err in assessing attorney’s fees of 10%, in addition to any interest and/or penalties. As the court in Stowe-Woodard noted, La. R.S. 33:2746 does not address attorney’s fees, and thus does not prohibit the assessment of those fees in addition to interest penalties.

We are mindful of the Third Circuit’s rulings in the cases of Anthony Crane Rental, L.P. v. Fruge, 2002-0635 (La.App. 3rd Cir.12/11/02), 833 So.2d 1070, writ of review granted, 2003-0115 (La.3/28/03, 842 So.2d 1082), and Unwired Telecom v. Parish of Calcasieu, 2002-839 (La.App. 3rd Cir.2/5/03), 838 So.2d 854. In both decisions, the court stated that, while it agreed with Stowe-Woodard, supra, concerning the Louisiana Supreme Court’s failure to address attorney’s fees, it felt constrained to follow Elevating Boats, Inc., and it declined to affirm an assessment for additional attorney’s fees. We do not agree with the Third Circuit, and we believe that the award of an additional 10% in attorney’s fees is not prohibited.

| (Accordingly, we reverse that portion of the trial court’s decision that awards interest of 15% per annum and a penalty of 25%, and we find that the interest and penalties combined may not exceed 15% of the delinquent tax. We affirm that portion of the decision that awards attorney’s fees of 10% of the taxes, penalties and interest owed. The costs of this appeal are assessed equally between the parties.

REVERSED IN PART; AFFIRMED IN PART.

      . R.S. 33:2841 provides that "A political corporation may through the officer whose duty it is to receive and collect the taxes and moneys due the corporation, enforce the collection of any taxes due to it, within the time and in the manner provided for the collection of taxes due to the state.”


text:
    SOUTHERN INSPECTION AND TESTING, INC. v. SKYLINE STEEL CORPORATION, GMC & W Fabricators, Recovery Systems, Inc., Kostmayer Construction, Inc. and National Fire Insurance Company of Hartford.
    No. 03-CA-203.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    William H. Langenstein, Joseph L. Alphonse, McCloskey & Langenstein, L.L.P., New Orleans, LA, for Defendants/Appellants, Kostmayer Construction, Inc. and National Fire Insurance Company of Hartford.
    Steven Dow Oliver, Windhorst, Gaudry, Ranson, Higgins & Gremillion, L.L.C., Gretna, LA, for Plaintiff/Appellee, Southern Inspection and Testing, Inc.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER C. ROTHSCHILD.
   I «THOMAS F. DALEY, Judge.

Appellee, Southern Inspection and Testing (Southern), has filed a Motion to Dismiss Untimely Appeal regarding appellant, Kostmayer Construction’s (Kostmayer), appeal taken from a judgment of the Second Parish Court, Parish of Jefferson. They note that LSA-C.C.P. art. 5002 requires that an appeal from city or parish court judgment be filed within ten (10) days from the date of service of the last judgment issued by the trial court denying a timely Motion for New Trial. They argue that appellant, Kostmayer’s, appeal is untimely because it was filed more than ten days after the date of service of the judgment denying Kostmayer’s Motion for New Trial. After review of the record and applicable law, we conclude that Kostmay-ers appeal is untimely, but for different reasons than those advanced by Southern. We find that Kostmayer’s Motion for New Trial was filed untimely. Thus, appellate delays were not suspended during the pen-dency of the motion, and the appeal was untimely filed.

|4New trial delays and appeal delays from city and parish courts are not governed by the same Code of Civil Procedure articles that govern new trial delays and appeal delays from the district courts. Pertinent to this appeal, articles 4907 and 5002 govern new trial delays and appeal delays from city and parish courts; articles 1974, 2087, and 2123 govern these delays from district courts. The appellate schemes created by these articles have important practical differences.

In the district court, under article 1974, parties have seven (7) days, exclusive of legal holidays, in which to file a motion for new trial. Appellate delays, whether for suspensive or devolutive appeals, do not begin to run until after the expiration of this seven day period, even if no Motion for New Trial is filed, or is untimely filed. See LSA-C.C.P. art.2087, 2123.

In city and parish courts, parties have three (3) days, exclusive of legal holidays, in which to file a Motion for New Trial. LSA-C.C.P. art. 4907. If no timely Motion for New Trial is filed, the appellate delays begin to run immediately from the date of the judgment or from service of Notice of Judgment, when such notice is necessary. The delays do not begin to run after the expiration of the time in which to file for a new trial, as in district court. See LSA-C.C.P. art. 5002; Jones v. Dillard Department Stores, Inc., 624 So.2d 4 (La.App. 5 Cir.1993). This is a critical difference in the two schemes.

Moreover, C.C.P. art. 4907(B) expressly declares the mailing of notice as the commencement date of the delay in which to file Motion for New Trial (as do C.C.P. arts. 2087(A), 2123(A), 1974, and 1914). Article 5002(A)’s delay commences upon “the service of notice.” The use of this different language suggests the legislature desired a different rule to apply to appeals from city court judgments. In Myles v. Turner, 612 So.2d 32 (La.1993), the Supreme Court noted that the wording of art. 4907(B) stood in stark contrast to the wording in art. 5002 regarding the commencement of the delays.

Southern’s argument, in its Motion to Dismiss Appeal,- that Kostmayers appeal was filed too long after the service of the Notice of Judgment denying Kostmayer’s Motion for New Trial, points out, as did the Supreme Court in Myles v. Turner, the problems inherent in proving when the Notice of Judgment is received. Kostmayer’s Motion for New Trial was denied on July 18, 2002, and Notice of Signing of Judgment was issued on July 29, 2002. Counsel for Southern asserts that both the judgment and the Notice of Signing of Judgment were served upon them by U.S. Mail on August 7, 2002, with the envelope postmarked August 3, 2002. Therefore, Kostmayers Motion for Appeal, filed on August 30, 2002, they argue, is untimely under LSA-C.C.P. art. 5002.

Kostmayer contends that it does not have a record of the date it received the Notice of Signing of Judgment, but stipulates that because it calendared the appeal for August 30, they must have received the Notice of Signing of Judgment no earlier than August 20. They argue that it is irrelevant when Southern received its Notice. They cite Myles v. Turner for the proposition that because of the ^general lack of reliable proof in determining the date of receipt, the court may accept the stipulation of counsel as evidence of when a notice of signing of judgment was received. Southern points out, however, that in that case counsel stipulated that it received the Notice one (1) day after it was postmarked, which was reasonable. Southern argues that it is not reasonable for this court to accept Kostmayers stipulation that it received the Notice seventeen (17) days after it was postmarked, espe-dally in light of the fact that Southern received its Notice only four (4) days after it was postmarked. Southern argues that all evidence indicates that Kostmayer was unaware that it had only ten (10) days, and not thirty (30), to perfect an appeal from this parish court judgment.

The Myles court notes the problems inherent in proving when the Notice of Judgment was received by Kostmayer. Kostmayer stipulated that it could not have received the Notice earlier than August 20, 2002, yet another party in the case, Southern, has shown that it received the same notice on August 7, 2002, with a postmark of August 8, 2002.

We find, however, that Kostmayer’s Motion for New Trial was untimely under LSA-C.C.P. art. 4907. If the Motion for New Trial is untimely, it does not suspend appeal delays. Unlike the delays for an appeal from parish court that began to run 10 days after service of Notice of Judgment, the delays for applying for a new trial expire three (3) days after the clerk has mailed the Notice of Judgment. The record reflects that the underlying judgment was signed on April 12, 2002. The Notice of Signing of Judgment was issued on April 15, 2002. The delay for applying for a new trial commenced on April 16, 2002, and expired on April 18, 2002. The record shows that Kostmayer applied for a new trial on April 22, 2002, which was untimely. Because the filing of this motion did not suspend appeal delays, appeal delays expired, therefore, well before Kostmayer filed its appeal on August 30, 2002.

| ^Accordingly, we dismiss appellant Kostmayer’s appeal as untimely.

APPEAL DISMISSED WITH FULL OPINION.

      . LSA-C.C.P. art.2087 states, in pertinent part:
      A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
      (1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
      LSA-C.C.P. art. 2123 states, in pertinent part:
      A. Except as otherwise provided by law, an appeal that suspends the effect or the execution of an appealable order or judgment may be taken, and the security therefore furnished, only within thirty days of any of the following:
      (1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.

      . LSA-C.C.P. art. 4907 states:
      A. After judgment is signed in the parish or city court, a party may make a written request or motion for new trial for any of the grounds provided by Articles 1972 and 1973.
      B. The delay for applying for a new trial shall be three days, exclusive of holidays. Where notice of judgment is required, this delay commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment.

      .LSA-C.C.P. art. 5002 states:
      A. An appeal from a judgment rendered by a city court or a parish court may be taken only within ten days from the date of the judgment or from the service of notice of judgment, when such notice is necessary.
      B. When an application for new trial is timely filed, however, the delay for appeal commences on the day after the motion is denied, or from service of notice of the order denying a new trial, when such notice is necessary.


author: J^CLARENCE E. McMANUS, Judge.

text:
    Bryon P. COULON, Sr. and Mary C. Coulon v. WITCO CORPORATION, Witco Chemical Corporation, Argus Chemical Corporation, Bacharach, Inc., Walk, Haydel and Associates, Inc., Gulf Environmental Service & Technology, Inc., and Corporate Health Resources, Inc.
    No. 03-CA-208.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 28, 2003.
    Robert E. Kleinpeter, Jay G. McMains, Kleinpeter & Schwartzberg, Baton Rouge, LA, for plaintiffs-appellees.
    S. Gene Fendler, Carol W. Reisman, Michael A. Golemi, Liskow & Lewis, New Orleans, LA, for defendant-appellant, Crompton Corporation.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., MARION F. EDWARDS and CLARENCE E. McMANUS.
   J^CLARENCE E. McMANUS, Judge.

Byron Coulon (“Coulon”) is a former employee of Witco Corporation (“Witco”), now known as Crompton Corporation (“Crompton”). Coulon worked for Witco as a chemical operator at the plant in Taft, Louisiana from 1978 to 1999. In September 1999, Coulon and his wife, Mary Coul-on, filed suit against Witco, now known as Crompton, and other defendants alleging Coulon was exposed to significant amounts of neurotoxins and several carcinogens while working in the Haley Unit at the Taft plant. He alleges that, as a result of the exposure, he suffered permanent neurological injuries.

Crompton answered the Coulons’ Petition and filed an Exception of Prescription. Crompton argued that Coulon knew or should have known of the causal relationship between his alleged exposure and alleged medical condition more than one year before he filed suit. Crompton produced Coulon’s deposition and medical reports to demonstrate that Coulon knew of his medical problems and ^exposure. Crompton further argued that prescription had not been interrupted as the Coulons argued it had. Crompton filed a Rule to Show Cause why the exception should not be granted. In response, the Coulons filed a Motion to Quash the Rule to Show Cause. The Coulons argued that the exception of prescription involved questions of fact and credibility determinations concerning the application of the contra non valentum theory which must be tried by a jury. The Coulons did agree that the question of whether this matter involved a continuous tort was a question of law, which could be heard by the Court. The Coulons filed a Motion for Partial Summary Judgment seeking to have the trial court overrule the exception of prescription based on the theory of continuing tort.

In support of their motion for partial summary judgment, the Coulons argued that a continuing tort exists where a defendant’s damaging conduct is of a continuing nature and gives rise to successive damages such that prescription does not begin to run until the day of the last harmful act. The Coulons contend that the day of the last harmful act was Coulon’s last day of employment with Crompton. Since they have alleged a continuing tort of toxic exposure, which didn’t stop until Coulon’s last day of work, the Coulons contend they timely filed their petition within four months after the last exposure.

In opposition to the Coulon’s motion for partial summary judgment, Crompton argued that factual issues remained as to whether Coulon was continuously exposed to harmful substances and whether Coul-on’s injuries were caused by toxic exposure during his employment. Thus, Crompton argued the Coulons’ continuous tort defense should be referred to the merits at trial. In addition, Crompton argued that the continuous tort doctrine does not suspend the running of prescription where a plaintiff knows or should know of possible injuries and their cause prior to a defendant stopping the continuous wrongful conduct. Therefore, Crompton argued that once the Coulons were aware that Coulon was [4being exposed to dangerous levels of toxic substances, prescription started running, regardless of his last day of exposure at work.

Following a hearing on the motion for partial summary judgment, the trial court agreed with the Coulons and relied on Wilson v. Hartzman, 373 So.2d 204 (La.App. 4th Cir.1979). In Wilson, the plaintiff claimed he was exposed to toxic substances on a daily basis up until his final day on the job. The Court focused on the end of the alleged conduct, or the plaintiffs last day of work, as the date prescription began to run. Therefore, the Court held that the continuing tort doctrine suspended the running of prescription.

The trial court in this matter found that the disputed factual issues alleged by Crompton did not preclude a partial summary judgment because they have more to do with the actual merits of the lawsuit than with the issue of prescription. The trial court applied the continuous tort doctrine and found that since the Coulons filed their petition within four months of Coulon’s last day of alleged exposure, the petition was timely filed. As a result, the trial court granted the partial summary judgment in favor of the Coulons.

Crompton now appeals the granting of the partial summary judgment alleging four assignments of error. First, Cromp-ton argues that the trial court erred in failing to apply the proper standards governing summary judgments under Louisiana Code of Civil Procedure article 966. Second, Crompton argues that the trial court erred in determining that the questions of fact raised by Crompton were not “material” to the prescription issue. Third, Crompton argues that the trial court erred in failing to recognize that prescription on a continuing tort cause of action begins to run at the time the plaintiffs knew or should have known of their injuries rather than from the last day of alleged tortuous conduct. And finally, Crompton argues that the trial court erred in ruling that the Coulons timely filed suit under the Lcontinuing tort doctrine, thus defeating Crompton’s exception of prescription because suit was filed within four months of the last alleged exposure.

For the reasons which follow, we agree with the trial court’s finding that the Coul-on’s timely filed their petition based on the continuous tort doctrine and we affirm the trial court’s granting of partial summary judgment in favor of the Coulons.

A continuing tort exists where a defendant’s damaging conduct is a continuing act and gives rise to successive damages from day to day. Wilson v. Hartzman, supra. As a result, prescription does not commence to run until the continuing cause of the damage stops. Id.

During his employment, Coulon was regularly exposed to potentially harmful chemicals. As part of a normal shift operation, which occurred six times a shift, he would perform sampling tests which exposed him to hydrogen sulfide. Hydrogen sulfide is one of the chemicals Coulon alleges was harmful to him and caused him injury. In addition, Coulon was exposed to carbon disulfide while performing routine unloading of railroad tank cars without respiratory protection. Carbon disul-fide is another chemical Coulon alleges was harmful to him. These procedures performed by Coulon were done on a regular basis. They were not one-time events and Coulon was exposed to these chemicals every time he performed one of those procedures.

Coulon also testified in his deposition that he would perform a smell test when he would sample the TGA reactor. He indicated it smelled like rotten eggs and he would get nauseated and his eyes would be irritated. He also testified that he was told in training that if the chemical was in low concentrations, then it smells like rotten eggs. If it was in high concentrations, then you could not smell it. He was also told that in high concentrations it could “knock you down”, but if you woke up then you were alright. He was also told that it was the people who didn’t | ¿wake up that eventually died, but if you woke up then you had it made. Coulon also testified that he was not told that he could have effects from the exposure later if there was a one time incident of exposure or if he was repeatedly exposed to low concentrations.

Based on this testimony, we find that Coulon was regularly exposed to potentially harmful chemicals. Therefore, Cromp-ton’s conduct was continuous and we find the continuous tort doctrine applies in this case.

Crompton also argues that the continuous tort doctrine does not suspend prescription, pursuant to the theory of contra non, when the plaintiff has knowledge of his injury and its possible cause prior to the last day of exposure. We agree with the trial court and find that the theories of contra non, or the discover rule, and continuing tort are distinct and separate. The continuous tort doctrine has no element of knowledge by the plaintiff to consider in order to decide when prescription will begin to run. The Fourth Circuit addressed this issue in Wilson v. Hartzman, supra. In Wilson, the court stated the following:

C.C. art. 3587 provides that C.C. art. 3536’s period of prescription begins to run from the date the damages were sustained. Thus, while prescription as a general rule begins to run from the date of commission of the tort, in those cases in which the damages are not immediately apparent, it has often been held that prescription begins to run from the time a reasonable person under similar circumstances would have become aware of both the tort and the damages. See Stone, Louisiana Civil Law Treatise Tort Doctrine s 120 (1977).
Another exception to commencement of prescription on the date of the tort is the situation in which the tortious conduct that is the operating cause of the damages is a continuing act, giving rise to successive damages from day to day. In such a case prescription does not commence to run until the continuing cause of the damages is abated. Craig v. Montelepre Realty Co., 252 La. 502, 211 So.2d 627 (1968); Devoke v. Yazoo & M.V.R.R., 211 La. 729, 30 So.2d 816 (La.1947); DiCarlo v. Laundry & Dry Cleaning Service, 178 La. 676, 152 So. 327 (1934).

We agree with the trial court and find that regardless of Coulon’s knowledge of his possible injuries or the possible cause, the alleged tortious conduct was |7continuous and gave rise to damages from day to day. Therefore, prescription did not begin to run until the alleged cause of the damages was abated, or the last day of Coulon’s employment, which was the last day he was exposed to the potentially harmful chemicals. He filed suit four months after that date. Therefore, we find the petition for damages was timely filed.

On appeal, Crompton also argues that Coulon’s medical conditions were not caused by the alleged chemical exposures. We will not address this issue. Causation is not relevant to the issue of whether there was an alleged continuous tort and it is an issue for a trial.

In accordance with the above, we affirm the trial court’s granting of partial summary judgment in favor of the Coulons, which overrules Crompton’s exception of prescription.

AFFIRMED.