text:
    Robert A. BARNETT, et al. v. Candace WATKINS, et al.
    No. 2006 CA 2442.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.
    Writ Denied Dec. 14, 2007.

      Robert A. Barnett, William Christopher Beary, R. Ray Orrill, Jr., Angel L. Byrum, New Orleans, Peyton B. Burkhalter, Dennis H. Carriere, Metairie, Counsel for Plaintiffs/Appellants Robert A. Barnett and Lisa Z. Barnett.
    Glen E. Mercer, Kourtney Twenhafel French, New Orleans, Counsel for Defendant/Appellee Assurance Company of America.
    Richard S. Vale, Christopher K. Lem-ieux, Pamela F. Noya, Metairie, Counsel for Defendants/Appellees Ashland Homes, Inc., Candace Watkins, and Gregory Gordon.
    Deborah Cunningham Foshee, Jon A. Van Steenis, Covington, Counsel for Defendants/Appellees Candace Watkins, Inc. and Trevor Watkins.
    Thomas L. Gaudry, Jr., William H. Voight, Gretna, Counsel for Defendants/Appellees Gregory C. Gordon, Inc., Lynn Arnold Gordon, and Gregory G. Gordon.
    Before: GAIDRY, McDONALD, and McClendon, jj.
   GAIDRY, J.

[sThis is an appeal of a partial summary judgment dismissing some, but not all, of the plaintiff homeowners’ claims against the liability insurer of their general contractor, based upon a finding that the New Home Warranty Act, La. R.S. 9:3141, et seq., barred the assertion of the dismissed claims and related damages. We affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiffs, Robert A. Barnett and Lisa Z. Barnett, are husband and wife and the parents of three minor children. Sometime in 1996, plaintiffs retained Locus, A Louisiana Partnership (Locus) to provide professional design and construction administration services for the construction of a new residence in Covington, Louisiana. Matthew C. Voelkel, one of Locus’s partners, acted as the primary designer for the construction project. On August 28, 1996, plaintiffs entered into a written construction contract with Ashland Homes, Inc. (Ashland), as general contractor, for the construction of their residence. The stated construction price was $438,428.00.

Plaintiffs accepted the construction project on August 29, 1997, and their written acceptance was filed for recordation the same day. They occupied the residence on September 1, 1997. Ashland, or one or more of its principals or alleged successors, supposedly undertook to complete additional construction items, or “punch list” items, through the spring of 1998.

According to their petition, plaintiffs discovered defects in their home in November 2004, including severe water leakage and moisture retention, resulting in toxic mold growth. Plaintiffs allege that on May 8, 2005, they Rsent written notice of the defects and their claims by certified mail to Ashland, Locus, Voelkel, and other defendants involved in the design and construction.

Plaintiffs instituted this litigation against Ashland, Locus, Voelkel, and other defendants, including various liability insurers, on July 13, 2005, seeking damages for themselves and for their children. Their original petition contained 224 numbered paragraphs. In the title and in multiple paragraphs of the petition, plaintiffs specifically invoked the NHWA as a legal basis for recovery of damages, in addition to La. C.C. arts. 2315 and 2769 and various other statutes. Assurance Company of America (Assurance), as alleged liability insurer of Ashland, answered plaintiffs’ petition, denying any liability on its part or the part of its insureds. Plaintiffs subsequently amended their petition twice,1 adding additional defendants and allegations of wrongful conduct on the part of original and newly-added defendants.

On April 7; 2006, Assurance filed a motion for summary judgment, seeking the dismissal of all claims by plaintiffs other than those for “major structural defects” under La. R.S. 9:3144(A)(3), on the grounds that the NHWA is plaintiffs’ exclusive remedy and excludes most of the elements of consequential damages alleged by plaintiffs. On June 14, 2006, plaintiffs filed a memorandum in opposition to the motion, together with a number of attached exhibits. Assurance’s motion was heard by the trial court on June 22, 2006, along with a number of other motions. After the hearing, the trial court took the matter under advisement.

On August 31, 2006, the trial court signed its judgment granting Assurance’s motion and “dismissing all claims by plaintiff [sic ] against [Assurance] in this matter.” It also issued written reasons for judgment in | ¿which it characterized the motion as seeking to dismiss “all claims against [Assurance] that are not under the [NHWA] ” and “all claims under that Act other than defects that fall under the ten year warranty provisions of the Act.” On September 14, 2006, the trial court signed an amended judgment, correcting its original judgment to provide that in granting the motion, it dismissed “all claims by plaintiff [sic ] against [Assurance] that are not under the [NHWA] in this matter.”

Plaintiffs appealed, assigning as error the trial court’s failure to find a genuine issue of material fact based upon the pleadings and evidence. This court subsequently issued a rule to show cause why the appeal should not be dismissed for noncompliance of the judgment with La. C.C.P. art. 1915(B). On joint motion of plaintiffs and Assurance, the amended judgment was again amended on February 15, 2007 by the trial court to certify it as final for purposes of appeal, there being no reason for delay.

PROPRIETY OF APPEAL

The judgmént appealed dismisses some of the claims or theories of recovery asserted by plaintiffs against only one party defendant, the liability insurer of Ashland, the defendant general contractor. Appellate courts have the duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. McGehee v. City/Parish of East Baton Rouge, 00-1058, p. 8 (La.App. 1st Cir.9/12/01), 809 So.2d 258, 260. Accordingly, we must first consider whether this partial judgment is properly appealable to confirm the basis of our jurisdiction.

| ^Louisiana Code of Civil Procedure article 1915(B)(1) provides that when a court renders a partial summary judgment as to “one or more but less than all of the claims, demands, issues, or theories” presented in an action, that judgment is not final for the purpose of an immediate appeal “unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.” This provision “attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties.” R.J. Messinger, Inc. v. Rosenblum, 04-1664, p. 13 (La.3/2/05), 894 So.2d 1113, 1122.

In R.J. Messinger, the Louisiana supreme court held that the required designation of finality, or certification, need not include nor be accompanied by explicit reasons for the determination that there is “no just reason for delay” in order for an appeal to be taken from a partial judgment under La. C.C.P. art. 1915(B). However, the court emphasized that the trial court ideally should provide such reasons, and, if it does so, the standard of review of its certification is whether it abused its discretion. R.J. Messinger, 04-1664 at p. 13, 894 So.2d at 1122.

Because neither the trial court’s judgment nor its subsequent order certifying the judgment as final provided explicit reasons for such certification, we are required to determine de novo whether the certification was proper. R.J. Messinger, 04-1664 at pp. 13-14, 894 So.2d at 1122; Motorola, Inc. v. Associated Indemnity Corp. [Motorola II], 02-1351, p. 16 (La. App. 1st Cir.10/22/03), 867 So.2d 723, 732. In conducting this review, we consider the “overriding inquiry” of “whether there is no just reason for delay,” as well as the other non-exclusive criteria trial courts should use in making the determination of whether certification is appropriate:

|7(1) The relationship between the adjudicated and the unadjudicated claims;
(2) The possibility that the need for review might or might not be mooted by future developments in the trial court;
(3) The possibility that the reviewing court might be obliged to consider the same issue a second time; and
(4) Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

R.J. Messinger, 04-1664 at pp. 13-14, 894 So.2d at 1122.

Although the limited nature of the judgment presents a close question on the procedural issue, based upon our consideration of all relevant factors, we find that the trial court’s certification was appropriate. The adjudicated (non-NHWA) claims certainly are related to the unadjudicated (NHWA) claims, being based upon the same operative facts, but those different claims are not dependent upon each other for common resolution, nor inextricably related. Cf. Gold Dust Graphics, Inc. v. Diez, 06-0323, p. 6 (La.App. 1st Cir.12/28/06), 951 So.2d 270, 273-74.

There does not appear to be any possibility of the need for review at this point being mooted, given the nature, procedural significance, and relative finality of the ruling. Although the trial court’s judgment dismisses the non-NHWA claims only as against Assurance, and those claims technically remain pending as against Ashland, any practical possibility of this court being obliged to consider this issue again is clearly outweighed by the importance to the parties of resolution of the issue at this stage of the litigation. In short, our review of the judgment now “best serves the needs of the parties.” See R.J. Messinger, 04-1664 at p. 13, 894 So.2d at 1122. Additionally, the possible elimination of irrelevant testimony and evidence relating to impermissible theories of recovery and unrecoverable elements of Isdaimed damages against some defendants will certainly expedite the trial of this action involving numerous party defendants. Considering all the circumstances, we conclude that a delay in appellate review until final determination of all issues would be unjust.

Based upon the foregoing considerations, we maintain this appeal.

STANDARD OF REVIEW

The judgment from which this appeal is taken is a partial summary judgment, and therefore subject to de novo review as to whether summary judgment was appropriate. Motorola v. Associated Indemnity Corporation [Motorola III ], 02-0716, p. 6 (La.App. 1st Cir.6/25/04), 878 So.2d 824, 828, writs denied, 04-2314, 04-2323, 04-2326, 04-2327 (La.11/19/04), 888 So.2d 207, 211, 212.

DISCUSSION

Summary Judgment

The summary judgment procedure is expressly favored in the law, and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B).

The mover has the burden of proof that he is entitled to summary judgment. See La. C.C.P. art. 966(C)(2). If the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent’s claim, action, or defense. La. C.C.P. art. 966(C)(2). If the moving party points out that there is an absence of factual 19support for one or more elements essential to the adverse party’s claim, action, or defense, then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial. La. C.C.P. art. 966(C)(2). If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. La. C.C.P. art. 967(B).

In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Hines v. Garrett, 04-0806, p. 1 (La.6/25/04), 876 So.2d 764, 765. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

Here, however, the determination of the motion depends more upon the legal character of the claims pleaded rather than upon any dispute as to material fact. Although plaintiffs contend that the trial court erred in failing to find that a genuine issue of material fact exists, they also concede in their brief that “[t]he facts ... are not generally in dispute,” and frame the central issue as “whether or not ... the undisputed non-structural defects of 1997-1998 discovered in 2005 are precluded from recovery [by virtue of] the NHWA.”

The New Home Warranty Act

The NHWA was originally enacted in 1986, and amended in various respects in 1997,1999, 2001, and 2003. As plaintiffs occupied their home [inon September 1, 1997, the version of the NHWA in effect on that date controls, and later amendments are inapplicable. Louisiana Revised Statutes 9:3141, as then written, expressed the NHWA’s purpose:

The Legislature finds a need to promote commerce in Louisiana by providing clear, concise, and mandatory warranties for the purchasers and occupants of new homes in Louisiana and by providing for the use of home owners’ insurance as additional protection for the public against defects in the construction of new homes. This need can be met by providing for uniform building standards in those parishes and municipalities that have not yet adopted building codes; by requiring that all new residential buildings comply with building standards; by adopting provisions that clearly state the scope and the time of warranties; by providing for insurance protecting home owners from breaches of warranty; and by making the required warranties mandatory in most cases.

To effectuate that purpose, the NHWA “provides the exclusive remedies, warranties, and prescriptive periods as between builder and owner relative to home construction and no other provisions of law relative to warranties and redhibitory vices and defects shall apply.” La. R.S. 9:3150 (Emphasis supplied).

The NHWA’s “minimum required warranties” are mandatory, and cannot be waived by the owner or reduced by the builder. La. R.S. 9:3144(C). As applicable to this action, La. R.S. 9:3144(A) sets out those warranties:

|nA. Subject to the exclusions provided in R.S. 9:3144(B), every builder warrants the following to the owner:
(1) One year following the warranty commencement date, the home will be free from any defect due to noncompliance with the building standards.
(2) Two years following the warranty commencement date, the plumbing, electrical, heating, cooling, and ventilating systems exclusive of any appliance, fixture, and equipment will be free from any defect due to noncompliance with the building standards.
(3) Ten years following the warranty commencement date, the home will be free from major structural defects due to noncompliance with the building standards.

Unless the parties otherwise agree in writing, the above three “minimum required warranties” exclude such items as fences; landscaping, “shrubs, trees, and plantings”; improvements separate from the home itself; damage caused by the negligence or fault of parties other than the builder, his agents, employees, or subcontractors; dampness or other damage due to the owner’s failure to maintain proper ventilation or drainage; damage which the owner has failed to timely mitigate; any condition not resulting in “actual physical damage to the home”; “[b]odily injury or damage to personal property”; any “incidental expense related to relocation during repair”; and “[cjonsequential damages.” La. R.S. 9:3144(B). If a builder breaches the NHWA’s warranties, the owner can recover any non-excluded “actual damages, including attorney fees and court costs,” but “damages with respect to all defects in the home shall not exceed the original purchase price of the home.” La. R.S. 9:3149(A); Thibodaux v. Arthur Rutenberg Homes, Inc., 04-1500, p. 6 (La.App. 1st Cir.12/22/05), 928 So.2d 80, 85.

| ^Because the NHWA provides “minimum required warranties,” it does not prohibit a builder from agreeing to increase, rather than reduce, his warranties to the owner of a new home. Thus, a builder may contractually assume greater obligations or warranties than those afforded by the NHWA, and under those circumstances the owner would presumably have a separate cause of action based upon the breach of those specific contract provisions. Id. Similarly, the builder may agree in writing to assume obligations or be responsible for items otherwise excluded from the NHWA’s minimum required warranties under La. R.S. 9:3144(B). Id.

As Assurance correctly points out, plaintiffs have neither contended nor proven, in either their pleadings, affidavits, or brief to this court, that the construction contract contained provisions incorporating additional warranties beyond those afforded under the NHWA, or waiving any of the relevant items excluded from warranty under La. R.S. 9:3144(B). The construction contract at issue contains the following language pertinent to this issue:

I.
Contractor agrees and does hereby covenant and agree with Owners to erect and finish, in accordance with the conditions hereinafter set forth, the entire work described in the Contract and attached documents, plans, letters, specifications and addendum and to deliver to Owners, free from all claims or liens, improvements on the property .... Contractor warrants it shall pursue the work with diligence and in a professional and workmanlike manner, handle the job efficiently, properly supervise and direct all labor and use its best efforts and attention to safeguard and protect Owners’ interest at all times. Contractor warrants it has visited the site and is familiar with the local conditions under which the work is to be performed by it. (Emphasis supplied.)
II.
_b- • •
... Contractor warrants it has reviewed and compared the plans, Letters, addendum and specifications and found no conflicts, with the exception of those noted in the Letters, including the exclusion of any driveways. However, if any other variances or conflicts are discovered, Contractor shall immediately notify Owners and their Architect. Contractor shall be responsible to correct any work not done in accordance with the aforesaid documents ....
Contractor shall indemnify and hold Owners harmless from and against claims, damages, losses and expenses whatsoever arising from the performance of the work under this Contract by Contractor or anyone directly or indirectly employed by Contractor or for whose acts Contractor may be liable. Contractor shall comply with all applicable laws, ordinances and regulations or public authorities dealing with construction and work pursuant to this contract and shall take all reasonable safety precautions whatsoever.

XII.
Contractor agrees to protect and safeguard plants, trees, shrubbery and any other related living foliage in and near the construction site and approaching roadway to the home site as is reasonably possible under the circumstances.

With the possible exception of the last paragraph above (which might constitute a waiver of the exclusion relating to landscaping), the foregoing language does not add additional or greater warranties than those afforded by the NHWA. The emphasized language arguably might constitute “additional performance standards ... [with] which the builder may undertake to be in compliance,” but any such standards fall within the “building standards” to which the NHWA requires compliance. La. R.S. 9:3143(2). Similarly, the language does not reflect the intent to waive any mandatory statutory exclusion relating to the various elements of bodily injury damages, consequential damages, and nonpecu-niary damages sought by plaintiffs.

| uPlaintiffs’ primary argument against the exclusivity of the NHWA to their action is that Ashland failed to complete the construction contract and abandoned the project. In that regard, they rely upon Thorn v. Caskey, 32,310 (La.App. 2nd Cir.9/2/99), 745 So.2d 653. In that case, the home was 90 to 95% complete, but the contractor refused to return to the construction site to perform additional work until the final amount of the contract price was paid. The court found that the contractor abandoned the job before it was completed. The owners asserted a breach of contract claim, in addition to a claim for breach of the NHWA warranties: The court held:

The NHWA ... was designed to protect the owner from faulty workmanship, but not to insure completion of the construction of a home under the terms of the contract between the owner and builder. Accordingly, we find that where the builder abandons construction of the home and fails to fulfill his obligations under the contract, he may be found liable in an action for breach of contract; however, he may also be liable for breach of the warranties outlined in the NHWA. Our finding that the [owners’] breach of contract claim was, in fact, a valid one, becomes significant in determining which damages proven at trial are recoverable and under what theory.

Id., 32,310 at pp. 6-7, 745 So.2d at 658.

We find Thom clearly distinguishable. Although plaintiffs contend that Ashland and its principals “abandoned” the construction project in 1997, they also allege that the construction project was “accepted on or about August 26, 1997”; that their house “was constructed and completed under the direction of [Ashland’s two principals]”; and that they “took possession and commenced occupancy of their house on or about September 1, 1997.” 11sPIaintiffs’ written acceptance, dated August 29, 2007, states that plaintiffs accepted their residence “in full compliance with the contract” between them and Ashland. Although plaintiffs contend on appeal that the construction project was not completed, their petition alleges that only “punch list” items were not completed or finalized, and that Candace B. Watkins, one of Ash-land’s principals, attempted to complete those items through 1998. “Punch list” items are “minor or inconsequential matters [that] remain to be finished” or “minor defects or errors in the work [that] are to be remedied.” La. R.S. 9:4822(H); C & S Safety Sys., Inc. v. SSEM Corp., 02-1780, pp. 7-8 (La.App. 4th Cir.3/19/03), 843 So.2d 447, 452. Thus, such minor items certainly cannot constitute “major structural defects” within the meaning of the NHWA. See La. R.S. 9:3143(5) and 9:3144(A)(3). They likewise would not seem to fall within the definition of redhi-bitory defects. See La. C.C. art. 2520.

The record before us does not contain any policy issued by Assurance to Ashland, its principals, or its successors. Although the existence of Assurance’s policy issued to Ashland has been established, its precise contents have not. As the parties claiming the benefit of that policy, plaintiffs would bear the burden of proof at trial that Assurance is liable to them under the terms of that policy. Thus, it was incumbent upon plaintiffs to establish factual support that Assurance’s policy somehow affords them greater rights than they might have against its insureds. The written insurance policy is an essential element of evidence in that regard. See Johnston v. Broussard, 41,477, p. 4 (La.App. 2nd Cir.9/20/06), 940 So.2d 79. Although plaintiffs claim that Assurance, as Ash-land’s insurer, “should not be able to hide behind the NHWA” and that the NHWA “runs in favor of a builder — not in favor of the insurance company,” they offer no legal authority or factual support for their novel contention that the scope of a liability insurer’s liability to a third party extends beyond the scope of its insured’s liability for .a particular loss or occurrence. Their contention has no merit.

In its reasons for judgment, the trial court observed:

Assurance Company of America contends the [NHWA] is the exclusive remedy available to plaintiffs. Plaintiffs have asserted a laundry list of claims but they all arise from the alleged faulty and defective construction of the home. It is clear to the Court that this Act “is an exclusive remedy and that all other theories of recovery are excluded.” [Citation omitted.] Seeking to get around the exclusivity by crafting recovery claims through “other theories” as done by plaintiffs in this case does not do away with the exclusivity of the remedy....
Whether the Court agrees the [NHWA] was a fair tradeoff between the construction industry and homeowners cannot enter into the Court’s ruling. It is clear that exclusivity is the tradeoff the legislature accepted and the Court must apply it despite temptations to judicially ameliorate its [effect] by latching onto one or more of a laundry list of claims that all relate to alleged faulty and defective construction.

We agree with the trial court’s succinct analysis of the issue presented. Despite plaintiffs’ detailed and frequently repetitive pleading of factual contentions and theories of recovery against Ashland, its principals, alleged successors, and Assurance, all of those various claims essentially coalesce into “claims between a builder and an owner relative to construction defects in a new residence.” See Carter v. Duke, 05-0390, p. 10 (La.1/19/06), 921 So.2d 963, 970. Thus, the NHWA is clearly plaintiffs’ exclusive remedy against Ash-land and any other defendant “builder.” Id. See also Thibodaux, 04-1500 at pp. 6-7, 928 So.2d at 85; Sowers v. Dixie Shell Homes of America, Inc., 33,390, pp. 2-3 (La.App. 2nd Cir.5/15/00), |17762 So.2d 186, 188-89, writ denied, 00-1770 (La.9/22/00), 768 So.2d 1286. By extension, the NHWA is also plaintiffs’ exclusive remedy against Assurance as the liability insurer of Ash-land. See La. R.S. 9:3147 and La. R.S. 22:655.

Assurance sought summary judgment dismissing all of plaintiffs’ claims against it other than those for the ten-year warranty for “major structural defects” under La. R.S. 9:3144(A)(3), and the trial court in its reasons seems to have agreed to grant that relief. However, the actual judgment, as amended, limits the dismissed claims to “all claims by plaintiff [sic] against [Assurance] that are not under the [NHWA] in this matter.” The judgment’s language necessarily must control, so the issue of the viability of any claims under the one-year and two-year warranties of La. R.S. 9:3144(A)(1) and (2) remains to be decided.

The judgment of the trial court is affirmed. All costs of the appeal are assessed against the plaintiffs, Robert A. Barnett and Lisa Z. Barnett.

AFFIRMED.

      . Plaintiffs have alleged that Ashland was incorporated by two principals, Candace B. Watkins (its president) and Gregory G. Gordon, also named as defendants individually. Those defendants were dismissed by a separate summary judgment of July 6, 2006, which is the subject of another appeal in this court, bearing Docket No. 2006 CA 2315.

      . Plaintiffs also contend in their assignments of error that the trial court "abused its discretion,” but fail to adequately address in their brief the nature of the trial court's action in that regard, or the basis for their contention that that standard of review is somehow applicable. Accordingly, we consider that assignment of error as abandoned. Uniform Rules of Louisiana Courts of Appeal, Rule 2-12.4.

      . If the NHWA affords a remedy to an owner, such remedy comes into existence on the “warranty commencement date,” defined as "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.” La. R.S. 9:3143(7). If the NHWA applies, its mandatory provisions determine the essential elements of the owner’s cause of action and remedy, rather than the building contract. The "warranty commencement date” seems to be the operative date for determining which version of the NHWA applies, rather than the date of the contract. See, e.g., Carter v. Duke, 05-0390, p. 10 n. 9 (La.1/19/06), 921 So.2d 963, 970 n. 9 (implicitly recognizing that the "time of the sale” determined whether a statutory amendment to La. R.S. 9:3145 applied). The warranty commencement date here was September 1, 1997. Therefore, the 1997 amendments, effective August 15, 1997, apply to this action.

      . By Acts 2001, No. 179, § 1, the NHWA’s prescriptive periods in La. R.S. 9:3146 were changed to peremptive periods. See also Acts 2003, No. 333, § 1, amending La. R.S. 9:3150.

        . "Building standards” are defined as those applicable standards adopted by the local political subdivision and in effect when construction begins, or, absent such standards, the Standard Building Code, "together with any additional performance standards, if any, which the builder may undertake to be in compliance.” La. R.S. 9:3143(2).

      . Under the Private Works Act, La. R.S. 9:4801, et seq., a work is considered “substantially completed” when the last work is performed on the immovable property or when "[t]he owner accepts the improvement” or "possesses or occupies the immovable.” La. R.S. 9:4822(H). Plaintiffs' acceptance of the construction project and their occupancy of their house are material because the date of recordation of the owner's acceptance of the work or the date of occupancy establishes the commencement of the deadline for filing of contractors’ privileges. See La. R.S. 9:4822(B), (C). Those events also determine the commencement of the peremptive period for an action by the owner against a contractor for breach of a building contract under the Private Works Act. La. R.S. 9:2772.

      . The Civil Code articles on redhibition do not apply to hidden defects discovered in a new home governed by the NHWA. La. C.C. art. 2520, Revision Comments — 1993, (e).


source: Caselaw Access Project

author: GAIDRY, J.

license: Public Domain

text:
    Rene L. BROUSSARD v. Alice Joyce VOORHIES, David Voorhies, State Farm Mutual Insurance Company, and Southern Farm Bureau Insurance Company.
    No. 2006 CA 2306.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.
    Writ Denied Dec. 14, 2007.

      Lawrence K. Burleigh, Sr., Lawrence K. Burleigh, Jr., Lafayette, Counsel for Plaintiff/Appellant Rene L. Broussard.
    Jackson B. Bolinger, Lafayette, Counsel for Defendants/Appellees Alice J. Voorhies and State Farm Fire & Casualty Company.
    Michael W. Campbell, Lafayette, Counsel for Defendants/Appellees David Voor-hies and Louisiana Farm Bureau Casualty Insurance Company.
    Before: GAIDRY, McDONALD, and McClendon, jj.
   GAIDRY, J.

|aThe owner of a boat shed destroyed by a fire originating on neighboring property appeals a judgment finding the owner and the primary user of the neighboring property free from liability for the fire. For the following reasons, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Rene L. Broussard, and the defendant, Alice J. Voorhies, owned adjacent property in Cypremort Point, Louisiana, on which each had a camp. Ms. Voorhies’s camp was built around 1965 by her father, from whom she inherited the property. Although Ms. Voorhies owned the camp, she only seldom visited it after the late 1980s, and she allowed her three brothers and their families to use it. Her brother, David Voorhies, was the primary user of the camp beginning around 1988 to 1990, and assumed the general responsibility for its maintenance.

An electrical circuit breaker box for Ms. Voorhies’s camp was situated on the inside wall of the raised camp’s first-floor boat slip, five feet above ground level, with the electrical meter in another box opposite it on the outside wall. The boat shed on Mr. Broussard’s property was located only three feet from the outside wall of Ms. Voorhies’s camp.

On the morning of February 3, 2001, David Voorhies went to his sister’s camp for a few hours to clean it in preparation for the weekend. He washed and dried some clothes, and upon leaving the camp left some appliances running, including a water pump and the refrigerator. At about 6:00 p.m. that evening, he received a telephone call informing him that the camp was on fire. The fire destroyed the camp and Mr. Broussard’s nearby boat shed, including a boat and other contents.

|sMr. Broussard filed suit against Ms. Voorhies, Mr. Voorhies, and their respective liability insurers, alleging that the fire was caused by their negligence and defective conditions in the Voorhies camp. The defendants answered the petition, denying liability. The defendants subsequently amended their answers to allege the negligence and fault of third parties, including Central Louisiana Electric Cooperative (CLECO), the utility company who owned the electrical meter.

A bench trial took place on April 19, 2006. At the conclusion of the presentation of the plaintiffs case, the defendants moved for involuntary dismissal. The trial court granted the defendants’ motions, finding that it was not proven that either Ms. Voorhies or David Voorhies knew or should have known of any defect causing the claimed damages. Its judgment dismissing Mr. Broussard’s cause of action was signed on July 12, 2006.

Mr. Broussard appeals, contending that the trial court erred in finding that Ms. Voorhies and David Voorhies exercised reasonable care under the circumstances and in failing to apply the doctrine of res ipsa loquitur.

STANDARD OF REVIEW

Louisiana Code of Civil Procedure article 1672(B) provides for a motion for involuntary dismissal of a plaintiffs action in the course of a bench trial:

In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff 14and in favor of the moving party or may decline to render any judgment until the close of all the evidence.

The trial court’s grant of an involuntary dismissal is subject to the well-settled manifest error standard of review. Gauthier v. City of New Iberia, 06-341, p. 3 (La.App. 3rd Cir.9/27/06), 940 So.2d 915, 918. Accordingly, in order to reverse the trial court’s grant of involuntary dismissal, we must find, after reviewing the record, that there is no factual basis for its finding or that the finding is clearly wrong or manifestly erroneous. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). The issue is not whether the trial court was right or wrong, but whether its conclusion was reasonable. Id.

DISCUSSION

Louisiana Civil Code articles 2315 and 2316 provide the basic codal foundation for delictual liability in our state. In addition to those articles, La. C.C. arts. 2317.1 and 2322 define the basis for delictual liability for defective things and buildings. Louisiana Civil Code art. 2317.1 provides:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. (Emphasis supplied.)

Louisiana Civil Code article 2322 provides the same standard of proof for liability for a defective “building” and its components:

The owner of a building is answerable for the damage occasioned by its ruin, when this is caused by neglect to repair it, or when it is the result of a vice or defect in its original construction. However, he is answerable for damages only upon a showing that he knew or, in the exercise of reasonable care, should have known of the vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such | ¿reasonable care. Nothing in this Article shall preclude the court from the application of the doctrine of res ipsa loquitur in an appropriate case. (Emphasis supplied.)

The 1996 legislation enacting La. C.C. art. 2317.1 and amending La. C.C. art. 2322, effective April 16,1996, abolished the concept of strict liability governed by prior interpretation of the pre-1996 versions of La. C.C. arts. 2317 and 2322. See Dennis v. The Finish Line, Inc., 99-1413, 99-1414, p. 5 n. 8 (La.App. 1st Cir.12/22/00), 781 So.2d 12, 20 n. 8, writ denied, 01-0214 (La.3/16/01), 787 So.2d 319; 12 William E. Crawford Louisiana Civil Law Treatise: Tort Law §§ 19.1, 19.2 (2nd ed.1996). A more appropriate term now for liability under La. C.C. arts. 2317.1 and 2322 might be “custodial liability,” but such liability is nevertheless predicated upon a finding of negligence. See Rogers v. City of Baton Rouge, 04-1001, pp. 4-5 (La.App. 1st Cir.6/29/05), 916 So.2d 1099, 1102, writ denied, 05-2022 (La.2/3/06), 922 So.2d 1187.

In an action to recover damages for injuries allegedly caused by another’s negligence, the plaintiff has the burden of proving negligence on the part of the defendant by a preponderance of the evidence. Hanks v. Entergy Corp., 06-477, p. 19 (La.12/18/06), 944 So.2d 564, 578. Most negligence cases are resolved by employing the duty-risk analysis, which entails five separate elements: (1) whether the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) whether the defendant’s conduct failed to conform to the appropriate standard (the breach element); (3) whether the defendant’s substandard conduct was a cause-in-fact of the plaintiffs injuries (the cause-in-fact element); (4) whether the defendant’s substandard conduct was a legal cause of the plaintiffs injuries (the scope of liability or scope of protection element); and 1R(5) whether the plaintiff was damaged (the damages element). Id., 06-477 at pp. 20-21, 944 So.2d at 579.

The plaintiff in a negligence case may meet his burden of proof by presenting both direct and circumstantial evidence. Cangelosi v. Our Lady of the Lake Med.Ctr., 564 So.2d 654, 664 (La.1990)(on rehearing). Res ipsa loquitur is not a substantive legal tenet, but rather an evi-dentiary doctrine under which a tort claim may be proved by circumstantial evidence. Gisclair v. Bonneval, 04-2474, p. 5 (La. App. 1st Cir.12/22/05), 928 So.2d 39, 42. The doctrine permits the inference of negligence from the surrounding circumstances, and merely assists the plaintiff in presenting a prima facie ease of negligence when direct evidence is not available. Can-gelosi, 564 So.2d at 665. Because application of res ipsa loquitur is an exception to the general rule that negligence is not to be presumed, it should be sparingly applied. Spott v. Otis Elevator Co., 601 So.2d 1355, 1362 (La.1992). Generally, it may be applied when three requirements are met: (1) the circumstances surrounding the accident are so unusual that, in the absence of other pértinent evidence, there is an inference of negligence on the part of the defendant; (2) the defendant had exclusive control over the thing causing the injury; and (3) the circumstances are such that the only reasonable and fair conclusion is that the accident was due to a breach of duty on the defendant’s part. Id.

Called by the plaintiff as an adverse witness, David Voorhies confirmed that he assumed the responsibility for most of the maintenance of his sister’s camp when he began to use it regularly. The camp had two circuit breaker boxes, one downstairs and one in the upstairs living quarters. Mr. Voorhies acknowledged that he had never specifically requested an electrician to inspect the circuit breaker box, and that he did not routinely 17inspect the interior of the box himself. After the fire, in the course of trying to determine its cause, he was informed by neighbors that they observed sparking at the CLECO electrical meter and up the power line. He was never able to locate the remains of the electrical meter, however. A few weeks after the fire, Mr. Broussard telephoned him and “wanted [Mr. Voorhies] to say that there was a problem with the water pump.” He asked Ronnie Bourque, an acquaintance and the fire chief of the New Iberia Fire Department, to inspect the scene to attempt to determine the cause of the fire. Mr. Voorhies testified that he had central air conditioning installed by an air conditioning company in the camp “a couple of years before the fire,” and that an electrician performed the actual connection of the air conditioning unit to the circuit breaker box. After that time, he experienced no problems with the camp’s electrical system, appliances, or the water pump installed in the camp, and he knew of no problems with the camp that needed repair prior to the date of the fire.

Ms. Voorhies testified that she had last visited her camp during the fall before the fire. She confirmed that her brother David handled all routine maintenance of the camp, but testified that they and another brother shared the expenses in that regard. She was not familiar with the circuit breaker box at issue, and denied prior knowledge of any problems with the camp’s electrical system, the box, or the water pump. She admitted that if high water rose from the canal on which the camp was located, the water would flood the first-floor boat slip, and if it rose high enough, it could have flooded the circuit breaker box.

The plaintiff, Mr. Broussard, testified that on the night of the fire, bystanders told him that they had observed sparks and fire in the electrical meter. Mr. Broussard admitted that he and David Voorhies discussed the ^possibility of the water pump causing the fire, but denied that he suggested that Mr. Voorhies advise his insurer that the water pump was the cause. Mr. Broussard also admitted that David Voorhies told him that he suspected OLE CO might have been responsible for the fire, and that he was aware that Mr. Voorhies was looking for the electrical meter. Although Mr. Broussard eventually found the “burnt and melted” meter, he never informed Mr. Voorhies of the discovery, and simply discarded the meter in a debris pile. Mr. Broussard admitted that he had no personal knowledge that either David Voorhies or his sister failed to maintain the camp’s electrical equipment or the circuit breaker box.

Ronnie Bourque, the fire chief of the New Iberia Fire Department, was offered by the plaintiff as an expert in fire investigation. He testified that he inspected the fire scene at the request of David Voor-hies, but that his inspection was on an informal basis, as his department had no jurisdiction in Cypremort Point. Based upon the facts that the most heavily damaged area of the camp was in the area of the circuit breaker box and that the box itself had heavy fire damage, Mr. Bourque concluded that the fire started within the box, probably as the result of a circuit breaker overheating and igniting wiring and insulation. He discounted the relevance of the reported description of sparks emanating from the electrical meter conduit, explaining that such occurrences were not uncommon in fires originating in adjacent circuit breaker boxes. Mr. Bo-urque agreed that it would generally be prudent for a building owner to have a circuit breaker box’s condition inspected from time to time, but he conditioned that opinion upon the existence of a “problem with circuit breakers tripping,” and admitted that he had no knowledge of any reported problem existing in the Voorhies camp. Mr. Bourque testified that flooding, especially by salt water, would cause | ¡¡deterioration over time of a circuit breaker box’s components, requiring their replacement, but admitted that he had no knowledge that the box at issue had ever been inundated. He also admitted that he would have expected the electrician connecting the central air conditioning to have inspected the circuit breaker box and to have seen any visible problem if one existed.

Although the evidence as to the precise source or origin of the fire was conflicting, the trial court in its reasons concluded that the circumstantial evidence, combined with Mr. Bourque’s testimony, pointed to a malfunction in the circuit breaker box. Thus, the trial court found that a defect existed in the building or thing for which Ms. Voorhies or David Voorhies, or both, were responsible, and the requisite elements of defect and legal custody under La. C.C. arts. 2317.1 and 2322 were met. But in addition to showing that a defect in the circuit breaker box caused the fire, Mr. Broussard was required to show that Ms. Voorhies and her brother knew or, in the exercise of reasonable care, should have known of that defect, that the damage could have been prevented by the exercise of reasonable care, and that they failed to exercise such reasonable care. Thus, Mr. Broussard had the burden of establishing their actual or constructive knowledge of the defect and their failure to exercise reasonable care to prevent damages from the defect. The evidence was undisputed that they had no actual knowledge of any problem with the circuit breaker box or other component of the camp’s electrical system, so the ultimate issue confronting the trial court was whether they had constructive knowledge of any problem. The concept of constructive knowledge under La. C.C. art. 2317.1 imposes a reasonable duty to discover apparent defects in the thing in the defendant’s garde or legal custody. Johnson v. Entergy Corp., 36,323, p. 5 (La.App. 2nd Cir.9/20/02), 827 So.2d 1234, 1238.

11 nAlthough there was testimony suggesting that the circuit breaker box might have been inundated by floodwaters or storm surges on some indeterminate prior occasions, there was no evidence of the duration or actual effect of any such inundation on it, and there was no evidence of any apparent electrical problem prior to the fire. The issue of whether Ms. Voor-hies and David Voorhies exercised reasonable care in the maintenance of her camp, including the circuit breaker box, forms the breach element of the duty-risk analysis, and was a factual issue to be determined by the trial court. The trial court expressly resolved that issue in favor of the defendants, and in light of the record, its decision in that regard was not manifestly erroneous.

In summary, the trial court was correct in concluding that the doctrine of res ipsa loquitur was inapplicable to prove negligence in this matter, as it did not apply to establish the required proof of constructive knowledge and failure to exercise reasonable care. See Harper v. Advantage Gaming Co., 38,837, p. 8 (La.App. 2nd Cir.8/18/04), 880 So.2d 948, 953. We likewise find no manifest error in the trial court’s judgment ordering the involuntary dismissal of Mr. Broussard’s action, considering the totality of the evidence presented in his case.

The judgment of the trial court is affirmed. All costs of this appeal are assessed to the plaintiff-appellant, Rene L. Broussard.

AFFIRMED.

      . The defendants’ counsel orally moved for a "directed verdict,” which may be granted in a jury trial under La. C.C.P. art. 1810, rather than for an involuntary dismissal under La. C.C.P. 1672(B), which may be granted in a bench trial. Although Mr. Broussard points out the nominal use of the incorrect procedural vehicle, we consider such error to be one of form rather than substance.


text:
    Stacey HOLLEY and Patrick Holley v. TOTAL REHAB OF BATON ROUGE, LLC, Sullen Cloudet, P.T., and J. Gregory Ward, M.D.
    No. 2006 CA 2146.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.
    Writ Denied Dec. 14, 2007.

      Richard J. Guidry, Jeffrey A. Mitchell, New Orleans, Counsel for Plaintiffs/Appellants Stacey Holley and Patrick Holley.
    Joseph G. Glass, Metairie, Counsel for Defendant/Appellee Sullen Cloudet, P.T.
    Before: GAIDRY, McDONALD, and McClendon, jj.
   GAIDRY, J.

| ¾⅛ this suit for damages, the plaintiffs appeal a judgment dismissing their claims against one defendant with prejudice for prescription. We affirm.

FACTS AND PROCEDURAL HISTORY

This suit for damages arose from Stacey Holley’s claim that she sustained a serious neck injury due to malpractice committed by her physical therapist, Sullen Cloudet. Mrs. Holley first underwent an MRI of her cervical spine on October 4, 2001 due to her complaints of pain between her shoulder blades. The MRI revealed a C6-7 central disc herniation, and her treating physician, Dr. J. Gregory Ward, prescribed physical therapy at Total Rehab of Baton Rouge, L.L.C.

On October 25, 2001, Mrs. Holley reported for physical therapy at Total Rehab, bringing with her the prescription from Dr. Ward. At this appointment, Mrs. Holley was examined by Mr. Cloudet and then underwent cervical traction and an ultrasound of her upper back. Mrs. Holley testified that she experienced a stinging sensation during the ultrasound, which the ultrasound technician told her was normal. After the therapy session ended, she made an appointment for the next day. When she woke up the next morning, her neck, which had never hurt prior to that morning, was “killing” her. When she arrived at Total Rehab for her therapy appointment, she told the therapist that her neck was hurting. Mrs. Holley testified that the therapist told her that it was probably due to the exercises that had been done during therapy the day before. The therapist massaged her neck with a machine and applied ice to it and then performed another ultrasound. Mrs. Holley never returned to physical therapy after her October 26, 2001 session.

|aA little over a year after her last physical therapy session, Mrs. Holley sought treatment for her persistent neck pain with Dr. Charles Eberly on November 11, 2002. In a letter to the referring doctor, Dr. Eberly states the following regarding Mrs. Holley’s history:

She has been experiencing some mid scapular pain and episodic paresthesias in this region following starting some physical therapy for this. She noted the acute onset of some lower neck pain. She states that this began following being placed on a cervical traction machine .... [T]he neck discomfort had been present for about the past year.... She only had the one treatment of physical therapy, where she feels that it was felt that her symptoms were exacerbated with cervical traction.

Mrs. Holley testified that she told Dr. Eberly that she had no neck pain prior to physical therapy and she felt that “something happened” at physical therapy that caused her neck pain. Dr. Eberly ordered an MRI, after which he recommended surgery. Mrs. Holley testified that she saw several doctors before ultimately deciding to have surgery. On patient history forms completed on December 12, 2002 and January 15, 2003, in response to the question “How did this problem begin?,” Mrs. Holley wrote “After PT Last October” and “After visit to Physical Therapy.”

In December 2002 or January 2003, Mrs. Holley contacted Total Rehab and asked to see her records. When she received the records, she became suspicious that she “had been given the wrong therapy,” which caused her injury. Mrs. Holley testified that she is a respiratory therapist by training and that she felt, after reviewing the records, that Mr. Cloudet "committed malpractice.

Mrs. Holley filed a request for a medical review panel on October 27, 2003, alleging that Total Rehab, Mr. Cloudet, and Dr. Ward committed acts of medical malpractice which caused a significant worsening of her disc herniation that required surgery. After being notified on December 19, 2003 | ¿that the defendants were not qualified healthcare providers under the Louisiana Medical Malpractice Act, she and her husband, Patrick Holley, filed suit against the three defendants on February 6, 2004.

Mr. Cloudet filed an exception raising the objection of prescription on May 5, 2006, asserting that the plaintiffs’ claims arising out of his October 25, 2001 treatment of Mrs. Holley were prescribed. Mrs. Holley argued that her claims were not prescribed because she did not begin to suspect that malpractice had occurred until she received the December 2002 MRI results and reviewed her records from Total Rehab.

After a hearing, the trial court granted the exception and dismissed the plaintiffs’ claims against Mr. Cloudet with prejudice. This devolutive appeal by the Holleys followed.

DISCUSSION

The prescriptive period for medical malpractice is:

one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect.

La. R.S. 9:5628.

The supreme court discussed the application of this statute in Campo v. Correa, 01-2707 (La.6/21/02), 828 So.2d 502, 510-11:

Prescription commences when a plaintiff obtains actual or constructive knowledge of facts indicating to a reasonable person that he or she is the victim of a tort. A prescriptive period will begin to run even if the injured party does not have actual knowledge of facts that would entitle him to bring a suit as long as there is constructive knowledge of same. Constructive knowledge is whatever notice is enough to excite attention and put the injured party on guard and call for inquiry. Such notice is tantamount to knowledge or notice of everything to which a reasonable inquiry may lead. Such information or ^knowledge as ought to reasonably put the alleged victim on inquiry is sufficient to start running of prescription. Nevertheless, a plaintiffs mere apprehension that something may be wrong is insufficient to commence the running of prescription unless the plaintiff knew or should have known through the exercise of reasonable diligence that his problem may have been caused by acts of malpractice. Even if a malpractice victim is aware that an undesirable condition has developed after the medical treatment, prescription will not run as long as it was reasonable for the plaintiff not to recognize that the condition might be treatment related. The ultimate issue is reasonableness of the patient’s action or inaction, in light of his education, intelligence, the severity of the symptoms, and the nature of the defendant’s conduct. (Citations omitted)

Although the Holleys’ claim against Mr. Cloudet was filed more than one year from the date of the alleged malpractice, it was filed within one year of the date they alleged Mrs. Holley discovered that her injury may have been related to the physical therapy and within three years of the date of the alleged malpractice. Because Mrs. Holley is attempting to rely on the “discovery rule” contained in La. R.S. 9:5628, the heart of the trial court’s inquiry was the reasonableness of the her action or inaction. Reasonableness is a factual determination which an appellate court cannot disturb, absent a finding of manifest error. Stansbury v. Accardo, 03-2691 (La.App. 1 Cir. 10/29/04), 896 So.2d 1066, 1070, turit denied, 04-2898 (La.2/4/05), 893 So.2d 881.

In ruling on the exception of prescription, the trial judge found that:

[I]t was unreasonable for [Mrs. Holley] to wait as long as she did. I’m of the opinion that she knew what was the cause of the problem because she told the doctor what the cause of the problem was and she said she and the doctor discussed that.

Considering Mrs. Holley’s own testimony, as well as her medical records, specifically her notes on the patient history forms as to the source of her problem, we cannot conclude that the trial judge was manifestly erroneous in finding that Mrs. Holley should have known, through the | ^exercise of reasonable diligence, that her problem may have been caused by an act of malpractice.

DECREE

The judgment of the trial court granting Sullen Cloudet’s exception raising the objection of prescription and dismissing the plaintiffs’ claims against him with prejudice is affirmed. Costs of this appeal are to be borne by the plaintiffs.

AFFIRMED.

      . Mrs. Holley could not remember whether Mr. Cloudet was her therapist at the second session, or if she saw someone else.

      . Dr. Ward was in fact a qualified health care provider, and the claims against him were dismissed without prejudice on May 5, 2004.


author: McClendon, j.

text:
    SUCCESSION OF Vera Ferguson FISHER.
    No. 2006 CA 2493.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.

      Mark R. Callender, Baton Rouge, Counsel for Plaintiffs/Appellants Guy Bruno, Jr., Charles H. Fisher, Christian Kijora as the Successor of Mary Ann Kijora, John Robert Fisher, J.W. Bruno, Margaurite Brueck, and Carl Glen Ferguson.
    Linda S. Melancon, Prairieville, Counsel for Defendants/Appellees Elaine Toups, Priscilla Newman, Laverne Parnell, Juanita Barbay, Huey Simms, and Lee Gilchrist.

      Dana K. Larpenter, Plaquemine, Counsel for Defendant Masonic Lodge of Plaquemine.
    Paul Borron, III, Plaquemine, Counsel for Defendant First Methodist Church.
    Before: GAIDRY, McDONALD, and McClendon, jj.
   McClendon, j.

| gPlaintiffs appeal a summary judgment rendered in favor of defendants dismissing their petition to annul a testator’s will due to lack of testamentary capacity and undue influence. For the reasons that follow, we reverse the judgment and remand the matter to the trial court for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

The Fishers were an elderly married couple who had no children. Their closest living relatives primarily consisted of various nieces and nephews who visited them often. In April 1986, Mrs. Fisher executed her will. Therein, she bequeathed her entire estate to her husband; however, in the event he predeceased her, her estate was to be divided among various family members, including certain nieces and nephews.

In 1999, the Fishers hired Elaine Toups. Initially, Ms. Toups’ job was to prepare meals and run errands for the Fishers. However, following the recurrence of Mr. Fisher’s cancer, Ms. Toups ultimately became the Fishers’ paid caregiver/sitter and routinely stayed overnight in their home.

On April 12, 2000, Mrs. Fisher executed a new will. Therein, she again manifested her desire to leave her entire estate to her husband. However, in the event he predeceased her, she bequeathed her home to her nephew, Guy Bruno, Jr., $25,000 to her church, and $25,000 to Ms. Toups. Subject to these particular legacies, the remainder of her estate was to be divided among the Fishers’ nieces and nephews.

On April 25, 2002, the Fishers executed reciprocal wills wherein each bequeathed their entire estate to the other. In the event her husband should predecease her, Mrs. Fisher’s will granted eight particular legacies of $50,000. Subject to these bequests, and in contrast to her prior wills, Mrs. Fisher bequeathed the remainder of her vast estate to Ms. Toups.

| oOn January 22, 2003, five days after Mr. Fisher’s death, Mrs. Fisher again met with her longtime attorney to execute a new will. In this will, Mrs. Fisher made specific bequests of $50,000 to her church and $40,000 to Ms. Toups, in addition to granting substantially lesser amounts to five other individuals. Mrs. Fisher then bequeathed one-half of the residue of her estate to her nieces and nephews and the other half to Mr. Fisher’s nieces and nephews. On this date, Mrs. Fisher also executed a power of attorney in favor of her cousin, Curtis Larson.

Less than two weeks later, Mrs. Fisher contacted another attorney, at Ms. Toups’ behest, and had him draft yet another will. While omitting any provision in favor of her husband who had just died, this new will, dated February 3, 2003, was essentially identical to her April 2002 will. Hence, Ms. Toups was once again made Mrs. Fisher’s universal legatee. At this time, Mrs. Fisher also executed an instrument to revoke the power of attorney that she had granted to her nephew, Guy Bruno, Jr. This document was apparently the product of some confusion on Mrs. Fisher’s part since she had granted power of attorney to her cousin, Curtis Larson, not her nephew. Mrs. Fisher then proceeded to grant a power of attorney in favor of Ms. Toups.

On February 5, 2003, Mrs. Fisher executed her last known will. This final will was essentially the same as the one she had executed two days earlier, except that it contained an additional provision specifying that each bequest would be subject to a reduction for taxes due as a result of the bequest as well as a pro rata share of the attorney fees, executrix fees, and other succession costs.

|4Upon learning that Mrs. Fisher had changed her will to exclude her family members and to favor Ms. Toups, two of her nephews instituted interdiction proceedings. Mrs. Fisher subsequently was interdicted and a restraining order was issued against Ms. Toups enjoining her from having any further contact with Mrs. Fisher. Following entry of the order, Ms. Toups had to be forcibly evicted from Mrs. Fisher’s home by police officers.

In the interim, Mrs. Fisher’s nephews also filed a separate suit in their capacity as curator and undercurator of Mrs. Fisher, naming Elaine Toups as defendant. That suit sought to annul Mrs. Fisher’s February 5, 2003 will, as well as the power of attorney granted in favor of Ms. Toups. The nephews alleged that Mrs. Fisher did not possess the requisite capacity to comprehend the nature and consequences of her acts. They also alleged that Mrs. Fisher’s estate consisted of approximately two million dollars in liquid assets, and that Mrs. Fisher executed the pertinent documents only as a result of Ms. Toups’ ability to have undue influence over her. These claims were still pending when Mrs. Fisher died on June 27, 2005.

Within eight and a half hours of Mrs. Fisher’s death, Ms. Toups filed a petition to probate her February 5, 2003 will. On July 1, 2005, two of Mrs. Fisher’s nephews filed an emergency petition seeking to annul the will. On August 22, 2005, an amended petition to annul was filed, adding all of the Fishers’ nieces and nephews as plaintiffs and adding as named defendants eight purported legatees of Mrs. Fisher’s February 5, 2003 will. Again the plaintiffs claimed that Mrs. Fisher lacked the requisite capacity to execute the will and/or that she had been unduly influenced by Ms. Toups.

| ^Thereafter, Ms. Toups and several other legatees of the will filed a motion for summary judgment seeking to dismiss the plaintiffs’ petition to annul, claiming that there was no genuine issue of material fact “relating to the questions of incapacity or undue influence.” In support of their motion, the defendants primarily relied on the affidavits of the two attorneys who had drafted wills for Mrs. Fisher in 2003, as well as the affidavits of some of the witnesses to those wills who stated that Mrs. Fisher seemed competent and did not appear to be under the influence of anyone.

In opposing the defendants’ motion, the plaintiffs submitted the affidavits of numerous individuals. En masse, the affi-ants asserted Mrs. Fisher greatly feared being placed in a nursing home, yet her family members had absolutely no intention of ever putting her in one. Nevertheless, Ms. Toups repeatedly told Mrs. Fisher the falsehood that her relatives were planning to take her money and put her in a nursing home, thereby causing Mrs. Fisher to be continually upset and fearful. They further maintained that Ms. Toups had gained complete control over the Fishers by September 2002, that she controlled all of their finances, and denied Mrs. Fisher access to her checkbook and to her money. They further claimed that Ms. Toups isolated Mrs. Fisher from her family by prohibiting her from speaking to her relatives on the phone and restricting their visits with her. When they did visit, Ms. Toups would not allow them to be alone with Mrs. Fisher at any time.

Furthermore, after Mrs. Fisher had revised her will in January 2003 to make various nieces and nephews, rather than Ms. Toups, her universal legatees, Ms. Toups began calling Mrs. Fisher’s attorney seeking to have Mrs. Fisher’s will changed. According to one affiant, Ms. Toups stated that | Rif she ever lost control of Mrs. Fisher, she would do whatever it took to regain control of her. The plaintiffs maintain that Mrs. Fisher had ultimately come to fear Ms. Toups. In fact, after Ms. Toups was forcibly evicted from her home, Mrs. Fisher said of her: “If she comes back, I’ll commit suicide.”

In addition to the numerous affidavits, the plaintiffs also submitted the deposition testimony of Dr. Robert Blanche, a geriatric psychiatrist. Dr. Blanche had examined Mrs. Fisher on June 27, 2003, less than five months after she executed her final will. According to Dr. Blanche, Mrs. Fisher was in the early “middle” stage of dementia of the Alzheimer’s type. Based on the administration of various diagnostic tests, he found that Mrs. Fisher showed impairment of a variety of cognitive faculties, including attention and concentration, short-term memory acquisition, and her orientation to person, place, and time. He further concluded that her remote memory recall was impaired. For example, she was unable to tell Dr. Blanche where she had been born. She also suffered visual spatial deficits and a speech deficit. Dr. Blanche’s conservative estimate was that Mrs. Fisher’s cognitive impairment had been going on for at least three to four years. In his opinion, Mrs. Fisher’s “capacity to give informed consent, to make ... important transactions about her estate... would have been impaired for at least several years.” He did not believe that she could understand the nature of a transaction such as a will or comprehend the import of her actions or their consequences. He further stated that a person with dementia could be very easily manipulated.

Attached to Dr. Blanche’s deposition was a copy of his report. Pursuant to this report, the stated purpose of Dr. Blanche’s examination was to “determine if Mrs. Fisher had (or still has) the mental capacity to change her will or grant power of Attorney at the time she did so to the control of |7Elaine Foret Toups.” His examination consisted of a comprehensive clinical interview, a discussion with Dr. Gerald Falgoust, Mrs. Fisher’s treating physician, and a review of her records. His conclusion, as stated in the report, provides as follows:

It is my opinion that Mrs. Fisher has not had the requisite mental capacities to freely and willingly consent to sign over power of attorney or change her will for at least 3 years. This would require an ability to recall specific information about her estate (short and long term memory fonctions-which are severely impaired), abstraction ability (e.g. — knowing and understanding what all the issues are and consequences to the signing over “power of attorney” or changing her will.[) ]
Also, persons with Dementia (at this stage) are highly suggestible and easy to manipulate, as their capacity to discern manipulation is impaired. Person[s] at the stage of dementia as Mrs. [Fisher is], live in “real time” —that is, they cannot recall the immediate past, nor fully appreciate the future. Especially in a trusting woman as Mrs. Fisher, she could have been easily manipulated to sign over power of attorney or change her will by convincing her that family does not care about her (e.g. it is a common delusion in demented persons that they have been abandoned by family, since one could not recall when they were seen last). Her emotions, and thus her behavior, could easily be influenced by convincing her of false hoods— such as the family being only interested in her money, when the evidence is to the contrary, since Mrs. Fisher has lost the capacity to discern the truth, much less negotiate any legal transaction. In such a person, it is easy to play on normal fears that elderly persons have (such as loss of security and independence and having to move away from home to a nursing home, etc— normal issues/fears that persons with dementia maintain until well into the middle stage of the disease). It is also my opinion, based on the information described in the petition for interdiction, that the reported efforts to restrict contact of Mrs. Fisher from her relatives is highly suspicious of wrong doing and manipulation of Mrs. Fisher.
It is my recommendation that immediate legal action be taken against Elaine Toups for the protection of Mrs. Fisher’s health and her rights. Elderly protection services should be alerted to this case.

A hearing on the defendants’ motion for summary judgment was held on June 21, 2006. Following argument, the trial court concluded that the plaintiffs would be unable to prove their allegations by clear and convincing | ^evidence at a trial. Accordingly, it granted summary judgment in favor of defendants and dismissed plaintiffs’ suit with prejudice. From this judgment, plaintiffs appeal.

DISCUSSION

Standard of Review

Appellate courts review summary judgments de novo under the same criteria that govern the trial court’s determination of whether a summary judgment is appropriate. Duplantis v. Dillard’s Dept. Store, 2002-0852, p. 5 (La.App. 1 Cir. 5/9/03), 849 So.2d 675, 679, writ denied, 2008-1620 (La.10/10/03), 855 So.2d 350. A motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Independent Fire Insurance Company v. Sunbeam Corporation, 1999-2181, p. 7 (La.2/29/00), 755 So.2d 226, 230-31. The initial burden of proof is on the moving party. However, on issues for which the moving party will not bear the burden of proof at trial, the moving party’s burden of proof on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows there is no genuine issue of material fact. LSA-C.C.P. art. 966(C)(2); Duplantis, 2002-0852 at p. 5, 849 So.2d at 679-80.

Summary judgment is seldom appropriate for determinations based on subjective facts of motive, intent, good faith, knowledge, or malice; indeed, it may only be granted on subjective intent issues when no issue of material | sfact exists concerning the pertinent intent. See Jones v. Estate of Santiago, 2003-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006. We are further mindful that, in deciding a motion for summary judgment, a trial court must assume that all of the affiants and deponents are truthful. In other words, a trial court is prohibited from making any credibility determinations on a motion for summary judgment. Hutchinson v. Knights of Columbus, Council No. 5747, 2003-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234.

Testamentary Capacity

On appeal, the plaintiffs argue that the trial court erred in finding that the evidence they submitted “did not show factual support sufficient to establish that they would be able to satisfy a clear and convincing standard” that Mrs. Fisher lacked testamentary capacity when she signed the February 5, 2003 will.

To have capacity to make a donation mortis causa, a person must be able to comprehend generally the nature and consequences of the disposition that he is making. LSA-C.C. art. 1477. This capacity must exist at the time the testator executes the testament. LSA-C.C. art. 1471.

There is a presumption in favor of testamentary capacity. Succession of Lyons, 452 So.2d 1161, 1164 (La.1984). A person who challenges the capacity of a donor must prove by clear and convincing evidence that the donor lacked capacity at the time the donor executed the testament. LSA-C.C. art. 1482(A). To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. In re Succession of Crawford, 2004-0977, p. 8 (La.App. 1 Cir. 9/23/05), 923 So.2d 642, 647, writ denied, 2005-2407 (La.4/17/06), 926 So.2d 511.

Comment (f) to LSA-C.C. Art. 1477, provides, in part:

| mCases involving challenges to capacity are fact-intensive. The courts will look both to objective and subjective indicia. Illness, old age, delusions, sedation, etc. may not establish lack of capacity but may be important evidentiary factors. If illness has impaired the donor’s mind and rendered him unable to understand, then that evidentiary fact will establish that he does not have donative capacity-The courts will look to the medical evidence that is available, such as the medical records and the testimony of treating doctors, and to other expert testimony, and to the testimony of lay witnesses. Clearly, no quick litmus-paper test exists to apply to the evaluation of mental capacity in all cases.

Thus, there are many sources of evidence to consider when evaluating a testator’s capacity. In addition to the affidavits of lay witnesses, the plaintiffs herein also submitted expert medical testimony to establish that Mrs. Fisher lacked the requisite capacity at the time she executed her will. Nevertheless, in his oral reasons for judgment, the trial court stated:

[I]t all revolves around her capacity at that moment when she wrote that will; her capacity at that moment. And I’ve seen nothing that’s going to be able to tell me at that moment, clear and convincing, she didn’t when all the other indication is that she, and the testimony of people who were there.. .indicates she [did].

In light of this statement, we are compelled to conclude that the trial court noted a credibility determination was necessary and therefore, should have found that genuine issues of material fact exist, making summary judgment improper. As we previously noted, a party seeking a summary judgment is entitled to a favorable judgment only if “there is no genuine issue as to a material fact” and the “mover is entitled to judgment as a matter of law.” Hutchinson, 2003-1533 at p. 8, 866 So.2d at 234. The credibility of witnesses and the capacity of a testator are questions of fact. Id.; In re Succession of Brantley, 1999-2422, p. 5 (La.App. 1 Cir. 11/3/00), 789 So.2d 1, 4, writ denied, 2001-0295 (La.3/30/01), 788 So.2d 1192.

|nNo rule of law requires the court to only consider and/or credit the testimony of witnesses who were present at the execution of the will, while disregarding and/or discrediting the testimony of those who were not. Indeed, the jurisprudence has long held that testimony regarding the actions of the decedent both prior to and after the execution of the will are relevant in determining whether the testator had capacity at the time he executed his will. See In re Succession of Brantley, 1999-2422 (La.App. 1 Cir. 11/3/00), 789 So.2d 1, writ denied, 2001-0295 (La.3/30/01), 788 So.2d 1192; Succession of Keel, 442 So.2d 691 (La.App. 1 Cir.1983); Succession of Brown, 251 So.2d 465 (La.App. 1 Cir.1971); Succession of Herson, 127 So.2d 61 (La.App. 1 Cir.1961); Succession of Ellis, 486 So.2d 260 (La.App. 3 Cir.1986); Succession of Landry, 545 So.2d 1107 (La.App. 5 Cir.1989).

In In re Succession of Pardue, 40,177 (La.App. 2 Cir. 11/8/05), 915 So.2d 415, writ denied, 2006-0125 (La.4/28/06), 927 So.2d 284, the second circuit affirmed a trial court’s determination, made after a trial, that a testator had lacked the necessary capacity to execute a will. In that case, the trial court concluded that subsequently obtained expert medical testimony was clear and convincing evidence that a testator had lacked capacity despite the fact that it conflicted with testimony proffered by the witnesses to the disputed will.

Accordingly, we simply cannot say as a matter of law, with the facts at issue still unresolved, that the plaintiffs in the present matter are not entitled to present their case to a factfinder at a trial. Indeed, a trial is | ^designed specifically to evaluate the facts when credibility is at issue. Hutchinson, 2003-1533 at p. 8, 866 So.2d at 234.

Accordingly, we find that the trial court erred in granting the defendants’ motion for summary judgment on the issue of testamentary capacity based upon its conclusion that the plaintiffs would be unable to prove this allegation by clear and convincing evidence at trial. A fortiori, we also find that summary judgment was improperly granted with respect to the issue of undue influence, which, in this case, need only be proven by a preponderance of the evidence.

Undue Influence

A donation mortis causa shall be declared null upon proof that it was the product of influence by the donee or another person “that so impaired the volition of the donor as to substitute the volition of the donee or other person for the volition of the donor.” LSA-C.C. art. 1479. Louisiana Civil Code article 1479, comment (b) further elaborates:

[T]he objective aspects of undue influence are generally veiled in secrecy, and the proof of undue influence is either largely or entirely circumstantial. ... [Ejveryone is more or less swayed by associations with other persons, so this Article attempts to describe the kind of influence that would cause the invalidity of a gift or disposition. Physical coercion and duress clearly fall within the proscription of the previous Article. The more subtle influences, such as creating resentment toward a natural object of a testator’s bounty by false statements, may constitute the kind of influence that is reprobated by this Article, but will still call for evaluation by the trier of fact. Since the ways of influencing another person are infinite, the definition given in this Article is used in an attempt to place a limit on the kind of influence that is deemed offensive. Mere advice, or persuasion, or kindness and assistance, should not constitute influence that would destroy the free agency of a donor and substitute someone else’s volition for his own.

| ^Generally, a person who challenges a donation because of fraud, duress, or undue influence, must prove it by clear and convincing evidence. However, if at the time the donation was made or the testament executed, a relationship of confidence existed between the donor and the alleged wrongdoer and the alleged wrongdoer was not then related to the donor by affinity, consanguinity or adoption, the person who challenges the donation need only prove the fraud, duress, or undue influence by a preponderance of the evidence. LSA-C.C. art. 1483.

In its oral reasons, the trial court noted: “If this were a preponderance of the evidence case, then we need to look at some things. But clear and convincing, I just don’t see you showing me anything that’s going to be able to overcome what’s in the record here.” Thus, it is apparent that the trial court believed that the plaintiffs would be required to prove undue influence by clear and convincing evidence. However, the relationship between a donor and an unrelated caregiver has been recognized as a relationship of confidence. In re Succession of Gilbert, 37,047, pp. 7-8 (La.App. 2 Cir. 6/5/03), 850 So.2d 733, 737, writ denied, 2003-1887 (La.11/7/03) 857 So.2d 493. Accordingly, at trial, the plaintiffs herein would only be required to prove undue influence by a preponderance of the evidence. The evidence submitted by the plaintiffs unquestionably presented a genuine issue of material fact regarding Ms. Toups’ alleged undue influence, as implicitly recognized by the trial court in the aforementioned quote. Accordingly, we find that the trial court erred in granting defendants’ motion for summary judgment on the issue of undue influence as well.

CONCLUSION

For all of the foregoing reasons, the summary judgment rendered in favor of defendants is hereby reversed, and this matter is remanded to the 114trial court for further proceedings consistent with the opinions expressed herein. All costs of this appeal are assessed to the defendants: Elaine Toups, Priscilla Newman, Laverne Parnell, Juanita Barbay, Huey Simms, and Lee Gilchrist.

REVERSED AND REMANDED.

GAIDRY, J., concurs without reasons.

      . On February 21, 2003, Mrs. Fisher revoked the power of attorney she had granted to Curtis Larson.

      . This suit had been consolidated with the interdiction proceedings; however, on July 23, 2004, a final judgment interdicting Mrs. Fisher had been signed, thus ending that particular matter.

      .In July 2005, the succession proceedings were transferred and consolidated with the two prior suits.

      . It is undisputed that Mrs. Fisher was never placed in a nursing home, but rather died at her home.

      . At trial, the trial court is charged with assessing the credibility of witnesses and, in so doing, is free to accept or reject, in whole or in part, the testimony of any witness. See Morrison v. Morrison, 1997-0295, p. 5 (La. App. 1 Cir. 9/19/97), 699 So.2d 1124, 1127.

      . According to LSA-C.C. art. 1479, comment (b), this article presumes a donor has capacity. Obviously, if a donor lacks capacity, then the entire donation or will is invalid for that reason alone, and issues of fraud and undue influence are irrelevant.


author: PER CURIAM. HUGHES, J.,

text:
    David DECULUS, Clara Deculus, Della Neely and Nancy Salemi v. Doug WELBORN, Clerk of Court for East Baton Rouge Parish and Candidate Cleo Fields.
    No. 2007 CE 1836.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 2007.

      Frank P. Simoneaux, Gray Sexton, Dayne Freeman, Donald C; Hodge, Jr., Baton Rouge, Counsel for Plaintiffs/Appellants, David Deculus, Clara Deculus, Della Neely, and Nancy Salemi.
    Brace B. Godfrey, Jr., Lewis 0. Ungles-by, Baton Rouge, Counsel for Defendant/Appellee, Cleo Fields.
    Sheri Morris, Baton Rouge, Counsel for Defendant/Appellee, Doug Welborn, Clerk of Court, EBRP.
    Before: CARTER, C.J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDonald, McClendon, hughes, and WELCH, JJ.
   PER CURIAM.

| aThis is an election suit challenging the eligibility of defendant, Senator Cleo Fields, as a candidate for the office of Senator for Senate District 14 in the election to be held on October 20, 2007.

FACTS AND PROCEDURAL HISTORY

The facts of this case are fairly simple and not in dispute. On January 8, 1996, the four-year term of office for Senate District 14 began. The senator who began that term resigned, and on December 13, 1997, Senator Fields was elected to fill the vacancy. The Secretary of State promulgated the election results on December 18, 1997.

On December 23, 1997, Senator Fields timely took the oath of office mandated by LSA-Const. art. X, § 30. See LSA-Const. art. Ill, § 5(B). Upon taking the oath of office, Senator Fields began receiving state funds for items such as his salary, per diem, and medical health benefits. On March 23, 1998, on the first day of the First Extraordinary Session of the 1998 Legislature, Senator Fields took a second oath of office, again reciting the text specified in LSA-Const. art. X, § 30.

Senator Fields was subsequently elected to serve second and third consecutive four-year terms as Senator for Senate District 14. The election for the second term was held on October 23, 1999; the election for the third term was held on October 4, 2003.

Senator Fields filed a notice of candidacy with the Clerk of Court for the Parish of East Baton Rouge stating his intention to run a fourth time for |4the office of Senator for Louisiana Senate District 14 in the primary election to be held on October 20, 2007.

On September 10, 2007, David Deculus, Clara Deculus, Della Neely, and Nancy Salemi filed a petition objecting to Senator Fields’s candidacy. In response, Senator Fields filed a declinatory exception raising the objection of lack of subject matter jurisdiction, a peremptory exception raising the objection of no cause of action, and a motion for summary judgment.

The district court held an expedited trial of this matter as required by the Louisiana Election Code. See LSA-R.S. 18:1406 C; LSA-R.S. 18:1409 A. On September 14, 2007, at 12:15 p.m., the district court judge signed a judgment finding it had subject matter jurisdiction, overruling the peremptory exception raising the objection of no cause of action, denying the motion for summary judgment, and dismissing the plaintiffs’ petition objecting to the candidacy of Senator Fields. This expedited appeal follows. See LSA-R.S. 18:1409 F.

DISCUSSION

Subject Matter Jurisdiction

Before addressing the merits of this appeal, we must first decide the question of whether the district court had subject matter jurisdiction over the plaintiffs’ petition challenging the candidacy of Senator Fields. Jurisdiction | ¡js the legal power and authority of a court to hear and determine an action of the parties and to grant the relief to which they are entitled. LSA-C.C.P. art. 1. Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. LSA-C.C.P. art. 2. The issue of subject matter jurisdiction addresses the court’s authority to adjudicate the cause before it, and the issue may be raised at any time and at any stage of an action. McPherson v. Foster, 03-2696 (La.App. 1 Cir. 10/29/04), 889 So.2d 282, 288.

Senator Fields maintains that under LSA-Const. art. Ill, § 7(A), the legislature has the exclusive constitutional authority to judge the “qualifications and elections of its members.” The legislature’s authority under LSA-Const. art. Ill, § 7(A) to judge the “qualifications and elections of its members” occurs after an individual has been elected to a legislative position, after the individual has become a member of the legislative body. To conclude otherwise would make the disciplinary remedies provided for therein— punishment for disorderly conduct or contempt, or expulsion — nonsensical.

Louisiana Constitution article III, section 7(A) has no bearing on the district court’s authority to adjudicate the plaintiffs’ challenge to Senator Fields’s qualifications as a candidate in the October 20, 2007, election for | fithe office of Senator of Senate District 14, pursuant to LSA-R.S. 18:492. District courts have original jurisdiction over disputes regarding the “right to office or other public position.” LSA-Const. art. V, § 16(A). District courts “shall have exclusive original jurisdiction of actions objecting to candidacy.” LSA-R.S.18:1403.

The district court had subject matter jurisdiction over this Election Code challenge to candidacy, and the appeal to this court is proper pursuant to LSA-R.S. 18:1409 and LSA-Const. art. V, § 10 A. Objection to Candidacy

We turn now to the issue of whether Senator Cleo Fields is prohibited by law from becoming a candidate in the October 20, 2007, election for Senator of Louisiana Senate District 14. See LSA-R.S. 18:492 A(4).

As the facts of this case are not in dispute, this court is faced with the resolution of a purely legal issue. On legal issues, an appellate court gives no special weight to the findings of the trial court but, instead, exercises its constitutional duty to review questions of law and render a judgment on the record. City of Baker School Bd. v. East Baton Rouge Parish School Bd., 99-2505 (La.App. 1 Cir. 2/18/00), 754 So.2d 291, 292-93. Appellate review of questions of law is simply to determine whether the trial court was legally correct. LaCombe v. McKeithen, 04-1880 (La.App. 1 Cir. 8/30/04), 887 So.2d 48, 51, writ denied, 04-2240 (La.9/2/04), 882 So.2d 588.

Because election laws must be interpreted to give the electorate the widest possible choice of candidates, a person objecting to candidacy bears the burden of proving that the candidate is disqualified. Landiak v. Richmond, 05-0758 (La.3/24/05), 899 So.2d 535, 541. In determining whether the person objecting to candidacy has carried his burden of proof, courts must liberally construe the laws governing the conduct of elections so as to promote rather than defeat candidacy. Landiak, 899 So.2d at 541. Any doubt concerning the qualifications of a candidate should be resolved in favor of allowing the candidate to run for public office. Landiak, 899 So.2d at 541.

Plaintiffs maintain that Senator Fields is prohibited from running for this fourth consecutive term under the clear language of LSA-Const. art. Ill, § 4(E), which was adopted by Louisiana voters on October 21, 1995, and which provides in pertinent part:

No person who has been elected to serve as a member of the Senate for more than two and one-half terms in three consecutive terms, that service being during a term of office that began on or after January 8, 1996, shall be elected to the Senate for the succeeding term.

(Emphasis supplied.)

Legislative terms are four years. See LSA-Const. art. Ill, § 4(C). A vacancy in the legislature shall be filled for the remainder of the term by election. LSA-Const. art. Ill, § 4(D). “A person elected to fill the remainder of an unexpired term shall take office within thirty days after the secretary of state promulgates the election returns.” LSA-Const. art. Ill, § 5(B). All public officers are required to take and subscribe to the oath required by LSA-Const. art. X, § 30 before “acting” in their respective offices. LSA-R.S. 42:161. In the event an elected official fails “to take office for any reason[,]” a vacancy “shall occur” in that office. LSA-Const. art. X, § 28.

|sThe four-year term of office to which Senator Fields was first elected in 1997 began on January 8, 1996; the halfway point of that term was January 9, 1998. Senator Fields was elected on December 13, 1997, and the Secretary of State promulgated the election returns on December 18, 1997. Senator Fields took his first official oath of office on December 23, 1997, within thirty days of his election as Senator of Senate District 14, thereby receiving full authority to act in his official capacity. All of these events occurred pri- or to the halfway point of the first four-year term to which he was elected.

Senator Fields offers that LSA-R.S. 18:601 B, enacted by 2006 La. Acts No. 403, § 1, clarifies when the term of office begins for a legislator elected to fill an unexpired legislative term. Specifically, Louisiana Revised Statutes 18:601 B provides:

For purposes of Article III, Section 4(E) of the Constitution of Louisiana only, the service of a person who is elected to fill an unexpired term in the office of state legislator shall begin at the time such person takes the oath of office before his house of the legislature.

Senator Fields maintains that, under the express terms of LSA-R.S. 18:601 B, his first term of office did not begin until he took the second oath of office before his legislative peers on March 23, 1998 (after the halfway point of the first four-year term). Senator Fields offers that LSA-R.S. 18:601 B makes the administration of the oath for those elected to fill an unexpired term similar to the administration of the oath for those members of the legislature elected to serve full four-year terms. See LSA-Const. art. Ill, § 2(D).

laPIaintiffs maintain that construing LSA-18-.601 B as Senator Fields suggests would be contrary to the clear language of LSA-Const. art. Ill, § 4(E), as well as LSA-Const. art. Ill, § 5(B).

The constitution is the supreme law, to which all legislative acts and all ordinances, rules, and regulations of creatures of the legislature must yield. Macon v. Costa, 437 So.2d 806, 810 (La.1983). Our state constitution’s provisions are not grants of power, but instead are limitations on the otherwise plenary power of the people, exercised through the legislature. World Trade Center Taxing Dist. v. All Taxpayers, Property Owners, 05-0374 (La.6/29/05), 908 So.2d 623, 632. In the exercise of the legislative power of the state, the legislature may enact any legislation that the state constitution does not prohibit. Board of Directors of Indus. Development Bd. of City of Gonzales, Louisiana, Inc. v. All Taxpayers, Property Owners, Citizens of City of Gonzales, 05-2298 (La.9/6/06), 938 So.2d 11, 20. When evaluating the constitutionality of a statute, the question is whether the constitution limits the legislature, either expressly or impliedly, from enacting the statute at issue. See Board of Directors, 938 So.2d at 20.

When a constitutional provision is plain and unambiguous and its application does not lead to absurd consequences, its language must be given effect. Board of Directors, 938 So.2d at 20. Unequivocal constitutional provisions are not subject to judicial construction and should be applied by giving words their generally understood meaning. Board of Directors, 938 So.2d at 20.

|inThe Louisiana Constitution is the highest expression of the will of the people. The people of Louisiana are served only if the courts recognize and enforce the provisions of the constitution. Under the clear language of LSA-Const. art. Ill, § 4(E), “[n]o person who has been elected to serve as a member of the Senate for more than two and one-half terms in three consecutive terms ... shall be elected to the Senate for the succeeding term.” “A person elected to fill the remainder of an unexpired legislative term shall take office within thirty days after the secretary of state promulgates the election returns.” LSA-Const. art. Ill, § 5(B). Failure to timely assume an elected office will result in a vacancy. See LSA-Const. art. X, § 28.

Senator Fields has been elected to serve, and has served, as a member of the Senate for Louisiana Senate District 14 for more than two and one-half terms in three consecutive terms; therefore, he is prohibited by law from becoming a candidate in the October 20, 2007, election for Senator of Louisiana Senate District 14. To the extent LSA-R.S. 18:601 may be interpreted to be in derogation of the clear language of the Louisiana Constitution, it is unconstitutional.

CONCLUSION

The judgment of the district court dismissing plaintiffs’ Petition Objecting to Candidacy is reversed, and judgment is entered in favor of the plaintiffs, declaring Senator Cleo Fields ineligible as a candidate in the October 20, 2007, election for Senator of Senate District No. 14. Costs of this proceeding are assessed to the defendant, Cleo Fields.

REVERSED AND RENDERED.

HUGHES, J., dissents with reasons.

CARTER, C.J., and DOWNING, WHIPPLE and WELCH, JJ., dissent for reasons assigned by HUGHES, J.

HUGHES, J.,

dissenting.

|,I respectfully dissent. Statutes are presumed constitutional and any doubt is to be resolved in favor of the constitutionality of the statute. State v. Brenner, 486 So.2d 101, 103 (La.1986). The heavy burden of proving that an act is unconstitutional is upon the party attacking the act. St. Mary Anesthesia Associates, Inc. v. Hospital Service Dist. No. 2 of Parish of St. Mary, 01-2852 (La.App. 1 Cir. 12/20/02) 836 So.2d 379, 384, writ denied, 03-0220 (La.3/28/03), 840 So.2d 577. It is not enough for a person challenging a statute to show that its constitutionality is fairly debatable; it must be shown clearly and convincingly that it was the constitutional aim to deny the legislature the power to enact the statute. St. Mary, 836 So.2d at 384. To successfully challenge a legislative act as unconstitutional, the challenger must show that no circumstances exist under which the act would be valid. St. Mary, 836 So.2d at 384.

The concept of term limits as adopted by the legislature created a question when less than a full four-year term was involved. The legislature addressed this issue. Absent a finding of unconstitutionality, this solemn expression of legislative will should not be disturbed by judicial fiat. Qualified candidates should not be discouraged from running for legislative vacancies that will inevitably occur.

      .The appellate court shall sit en banc in all election contests involving candidates for membership in the state legislature. LSA-R.S. 18:1409 H.

      . As qualified electors in Senate District 14, the plaintiffs have standing to bring this action. LSA-R.S. 18:1401 A.

      . The judgment improperly attributes both the peremptory exception raising the objection of no cause of action and the motion for summary judgment to the plaintiff; however, it is clear from the record that the defendant, Senator Cleo Fields, filed these pleadings.

      . Judging Qualifications and Elections; Procedural Rules; Discipline; Expulsion. Each house shall be the judge of the qualifications and elections of its members; shall determine its rules of procedure, not inconsistent with the provisions of this constitution; may punish its members for disorderly conduct or contempt; and may expel a member with concurrence of two-thirds of its elected members. Expulsion creates a vacancy in the office.
      LSA-Const. art. Ill, § 7(A).

      . In their petition, the plaintiffs state although “the constitutionality of La. R.S. 18:601 B is an issue herein,... this is not an action for declaratory judgment.”