author: McKAY, Judge. BELSOME, J.,

text:
    CHEHARDY, SHERMAN, ELLIS, BRESLIN & MURRAY a Louisiana Partnership. v. Dr. Nicholas FRANCO.
    No. 2005-CA-0935.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 21, 2006.

      Robert G. Stassi, Chehardy Sherman Ellis Breslin Murray Reeile & Griffith, Metairie, Louisiana, for Plaintiff/Appellee.
    George F. Riess, Law Offices of George F. Riess <& Associates, LLC, New Orleans, Louisiana, for Defendant/Appellant.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge JAMES F. McKAY III, Judge ROLAND L. BELSOME).
   McKAY, Judge.

pThe defendant, Dr. Nicholas Franco, appeals a summary judgment granted in favor of the plaintiff, Chehardy, Sherman, Ellis, Breslin & Murray, on a suit on an open account. We affirm.

FACTS AND PROCEDURAL HISTORY

Dr. Nicholas Franco engaged the law firm of Chehardy, Sherman, Ellis, Breslin & Murray to perform legal services in connection with his attempt to commercialize a certain medical device on which he had obtained a patent. Dr. Franco paid the law firm an initial retainer of $5,000.00. Dr. Franco’s venture ultimately failed due to a lack of financing. The law firm presented Dr. Franco with a bill of $41,258.38 for legal services and related costs. Dr. Franco refused to pay this bill.

On April 25, 2002, after making amicable demand, the law firm filed suit against Dr. Franco for the fees and costs owed, plus interest, court costs and attorney’s fees pursuant to La. R.S. 9:2781. In his answer, Dr. Franco generally denied the law firm’s allegations and he also pleaded all of the affirmative | ^defenses enumerated in Louisiana Code of Civil Procedure Article 1005. Dr. Franco also engaged in a number of other dilatory actions. Shortly before the matter was scheduled to go to trial, the parties seemingly reached a settlement, which was even dictated into the record, for the amount prayed for in the petition and a forbearance providing for monthly installments totaling less than the amount prayed for. Dr. Franco refused to sign the consent judgment or make any payments. The law firm then filed a motion and order for summary judgment along with an affidavit of correctness of account. Dr. Franco filed a cross motion for summary judgment which stated that “there was no justiciable issue of material fact.” The district court entered summary judgment in favor of the plaintiff. The defendant appeals this judgment.

DISCUSSION

On appeal, the plaintiff raises the following specification of error: the district court erred in rendering a summary judgment in the face of countervailing affidavits of appellant in violation of Louisiana Code of Civil Procedure Article 966.

Our review of a grant or denial of a motion for summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/2000), 755 So.2d 226, 227. A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” La. [SC.C.P. art. 966(B). Louisiana Code of Civil Procedure Article 967 provides in pertinent part that:

A. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein ... Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.
B. When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be rendered against him.

La. C.C.P. art. 967.

In the instant case, the plaintiff filed an affidavit of correctness of account along with its motion for summary judgment. The defendant relies on his pleadings as well as affidavits that were contradictory to his pleadings and filed after the motions for summary judgment were heard to create a genuine issue of material fact. For purposes of summary judgment, general denials in an answer are not sufficient to rebut or overcome facts affirmatively established by affidavit. Delta National Bank of Yazoo City v. Holder, 398 So.2d 1072 (La.1981). Furthermore, the engagement letter of September 18, 2001 clearly illustrates the personal obligation of Dr. Franco to pay the law firm’s legal fees. Although, there also exists an engagement letter dated October 1, 2001, this letter is on behalf of Laser-Med, Inc. There is nothing in that letter which suggests that it is a novation of the agreement contained in the letter of September 18, 2001. In order to substitute a new debtor for the former debtor, the creditor must expressly declare [4his intent to discharge the former debtor. Harepour v. A.C. Collins Ford of New Orleans, Inc., 363 So.2d 1261 (La.App. 4 Cir.1978). Finally, “[a]n inconsistent affidavit offered only after the motion for summary judgment was filed is not sufficient to create a genuine issue of material fact where no justification for the inconsistency is offered.” George v. Dover Elevator Co., 2002-0821 (La.App. 4 Cir. 9/25/02), 828 So.2d 1194.

Our review of the record, including the pleadings and the affidavits submitted by the parties leads us to the same conclusion as the court below, that there are no genuine issues of material fact and the plaintiff is entitled to judgment as a matter of law.

DECREE

For the foregoing reasons, we affirm the district court’s granting of the plaintiffs motion for summary judgment.

AFFIRMED.

BELSOME, J., dissents.

BELSOME, J.,

dissenting.

hDr. Franco presented two documents that were neither “general denials” nor “inconsistent affidavits.” These documents created a genuine issue of material fact. It is clear from Keaty’s affidavit and Anderson’s letter that the disputed account of facts has gone beyond mere inconsistencies, and that there is a genuine issue of material fact that cannot be disposed of in a summary judgment proceeding. I respectfully dissent.

      . The majority does not reference two documents. The first is an affidavit by Thomas Keaty, Dr. Franco's original attorney. Thomas Keaty is an intellectual property attorney who represented Dr. Franco on patent issues. Keaty referred Dr. Franco to attorney John Anderson of the Chehardy, Sherman Law Firm. Keaty testified that during the course of his representation of Dr. Franco, he "maintained steady communications with the Law Firm, participating in meetings, initiating and receiving correspondence and maintaining a familiarity with the agreements and understandings between Dr. Franco and the Law Firm.” Keaty also testified in an affidavit: “[t]o the best of my knowledge and belief, it was the agreement between the Law Firm, Dr. Franco, and Laser-Med, Inc. that any and all attorneys' fees for development and commercialization of Dr. Franco's invention ... would be deferred until either successful commercialization of the invention was underway or until an investor or investors were located by the Law Firm ...”

        The majority also neglected to mention a letter from John C. Anderson to Dr. Franco dated Februaiy 19, 2002. Anderson was Dr. Franco's attorney at Chehardy. He left the firm during the course of his representation, and sent this letter from his new firm, Fenet, Jackson & Anderson. In the letter, Anderson writes,

        "Please excuse my oversight in not sending you the cumulative bills of the Chehardy, Sherman Law Firm’s time and services rendered on your behalf. I have told the firm that the initial attempt at commercialization did not work and that I would try to defer payment anyy (sic) fees and expenses to us until you can find some form of solution. Frankly, I have asked the firm to hold the bill and await what success will hopefully occur in the next attempt to commercialize your patented technology."


source: Caselaw Access Project

author: CHARLES R. JONES, Judge.

license: Public Domain

text:
    Peterson M. YOKUM, Nicholas H.K. Yokum, and Kenneth Van Calsem v. William F. VAN CALSEM, IV, Amy Van Calsem, Wife of/and Bill W. Wendel.
    No. 2005-CA-0797.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 21, 2006.

      Ralph R. Alexis III, William A. Porteous, III, Porteous, Hainkel & Johnson, LLP, and Stuart H. Smith, Smith Stag, L.L.C., New Orleans, LA, for Plaintiffs/Appellees.
    A. Justin Ourso III, Jones Walker Wae-chter Poitevent Carrere & Denegre, L.L.P., Baton Rouge, LA, and Matthew T. Brown, Coleman D. Ridley, Jr., Jones Walker Waechter Poitevent Carrere & De-negre, New Orleans, LA, for Defendant/Appellant, Willem F. Van Calsem, IV.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge LEON A. CANNIZZARO JR.).
   CHARLES R. JONES, Judge.

hThe Appellant, William van Calsem, seeks review of the district court’s judgment granting the Appellees’ (Peterson M. Yokum, Nicholas H.K. Yokum, and Kenneth van Calsem) Application for Preliminary Injunction. We amend the judgement and affirm as amended.

Statement of Facts:

Mr. van Calsem’s late wife, Julie Gay de Fazande Yokum van Calsem (“Julie”), drafted a will which she later signed on May 30, 1989. In the will she left naked ownership of a parcel of property at 824 Royal Street in the French Quarter to the Appellees, namely, her two brothers, Peterson Yokum and Nicholas Yokum, and her stepson, Kenneth van Calsem. In the same will, she also left a usufruct to her husband, William (“Bill”) van Calsem. The provision reads:

3.5 824 Royal Street Property. Subject to usufruct in favor of Bill, which I hereby grant for life, I give equal shares to my stepson Kenneth van Calsem, my brother Peterson M. Yokum, and my brother Nicholas H.K. Yokum, by roots in being at my death, my real property at 824 Royal Street, New Orleans, Louisiana. Bill, as my usu-fructuary, shall have the fullest right to deal with this property as he may see fit, with the greatest freedom to act that can be Rgiven to a usufructuary under the Louisiana Civil Code including, particularly, but not exclusively, the right to dispose of nonconsumable things pursuant to Article 568 of the Louisiana Civil Code and to enjoy the proceeds of any deposition. Bill shall not be required to give bond as usufructuary.

Julie died on May 31, 1989, and her will was subsequently probated in the Civil District Court for the Parish of Orleans. On January 23, 1990, the district court rendered a judgment of possession recognizing Peterson Yokum, Nicholas Yokum, and Kenneth van Calsem as the legatees and owners of the subject property, subject to Bill van Calsem’s usufruct. Subsequently, the succession was closed.

About thirteen (13) years later, in 2003, Bill van Calsem consulted the law firm of Jones, Walker, Waechter, Poitevent, Car-rere, & Denegre, L.L.P. (Jones, Walker), for a legal opinion concerning his respective rights (1) to dispose of the Royal Street property without permission of the naked owners, (2) his right to use the proceeds, (3) when he would have to account for the proceeds, and (4) whether the naked owners would have any claim against an insurance policy that he owned on which his new wife, Barbara Ann Downs van Calsem, was the beneficiary of the life insurance proceeds.

Jones, Walker later advised Bill van Cal-sem, via letter dated June 4, 2004, that: (1) the usufruct would terminate at his death; (2) based upon the authority conferred to him in the will, he could sell the property without the consent of the naked owners; (3) if Bill van Calsem sold the property, then his usufruct would attach to the proceeds of the sale, and his usufruct would then become a usufruct of | amoney, and he would be bound to pay to the naked owners at the end of the usufruct, the value that the property had at the time he sold it; (4) if his usufruct became a usu-fruct of money, that Bill van Calsem could do with the money as he saw fit; (5) the naked owners of the property would become creditors of his estate with a claim against his estate generally for the value the property was at the time Bill van Calsem sold it; and (6) the claim against Bill van Calsem’s estate would not lie against any life insurance proceeds.

After receiving the written response from Jones, Walker, Bill van Calsem sold the property to his niece, Wendy van Cal-sem, and her husband Bill W. Wendel via cash sale, for $650,000. The sale was made without the consent of the naked owners.

On or about September 23, 2004, the naked owners discovered that the sale of the subject property was made without their consent, and the naked owners, Peterson Yokum, Nicholas Yokum, and Kenneth van Calsem, petitioned the Civil District Court for injunctive and declaratory relief on October 19, 2004. The Appellees alleged that Bill van Calsem had no authority to sell the property, but that he may have had rights to sell his usufruct. They also alleged that Bill van Calsem sold the property for far less than its fair market value and that the buyers, Bill van Calsem’s niece and her husband, knew that the sale price was below fair market value. Based upon the reasons alleged in their petition, the Appellees |4claimed that the sale should be rescinded and Bill van Cal-sem’s usufruct terminated, and that they should be declared the owners of the subject property.

On December 1, 2004, the Appellees subsequently filed a Petition for Preliminary Injunction to enjoin Bill van Calsem from using the proceeds of the sale while the sale and ownership dispute were pending. After hearings on the preliminary injunction and affidavits were completed on January 10, 2005, the district court took the matter under advisement. On February 23, 2005, the district court granted the Appellees’ preliminary injunction, but did not issue a separate writ of injunction served on Bill van Calsem. No written reasons were given. Bill van Calsem timely perfected his appeal.

In the instant appeal, Bill van Calsem alleges that the district court erred as a matter of law by failing to require the Appellees to furnish security in connection with issuing the preliminary injunction. He further alleges that the district court committed legal error by failing to specify, in sufficient detail, what acts are prohibited by Bill van Calsem pursuant to La.Code Civ. Pro. Art. 3605. The Appellant’s brief asserts that both of these legal errors trigger de novo review before this Court.

Discussion:

The Louisiana Supreme Court reiterated the standard of review for legal errors, in Landry v. Bellanger, 02-1443, (La.5/20/03), 851 So.2d 943, 955, rehearing denied, 9/5/03, and opined that “[wjhere one or more trial court legal errors interdict the fact-finding process, the manifest error standard is no longer applicable, and, if the record is otherwise complete, the appellate court should make its own independent de novo review of the record and determine which party should prevail by a preponderance of the evidence.” citing Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742, 747; McLean v. Hunter, 495 So.2d 1298, 1304 (La.1986).

In his first assignment of error, Mr. van Calsem argues that the district court erred as a matter of law by failing to require the Appellees to furnish security in connection with issuing the preliminary induction.

Louisiana Code Civ. Proc. Art. 3610, titled Security for Temporary Restraining Order or Preliminary injunction, provides that:

A temporary restraining order or preliminary injunction shall not issue unless the applicant furnishes security in the amount fixed by the court, except where security is dispensed with by law. The security shall indemnify the person wrongfully restrained or enjoined for the payment of costs incurred and damages sustained. However, no security is required when the applicant for a temporary restraining order or preliminary or permanent injunction is seeking protection from domestic abuse, dating violence, stalking, or sexual assault.

This Court has strictly construed La. C.C.P. Art. 3610 to require the posting of security for temporary restraining orders and preliminary injunctions, when an express waiver is provided for by law. For example, in Liberty Bank and Trust Co. v. Dapremont, 00-2146 (La.App. 4 Cir. 12/12/01), 803 So.2d 387, 391-392, this Court stated:

Liberty cites La. C.C.P. art. 3610, asserting that the trial court erred by granting the preliminary injunction without requiring a bond be furnished. We agree. Said article states that the security is mandatory unless waived by law. Under the facts of this case, we find no such exemption from security exists in the law. Consequently, we find that the trial judge erred in granting the application for preliminary injunction | (¡without requiring defendants to post security. This court is faced with two alternatives, either to remand the case to the trial court with directions that security be furnished or reverse the judgment that granted the preliminary injunction. Advanced Collision Services, Inc. v. State Department of Transportation, 93-740 (La.App. 5 Cir. 1/25/94) 631 So.2d 1245; Bonomolo, 477 So.2d at 782.
The facts of this case lead this court to believe that the defendants’ right to an injunction seems beyond question and that dissolving the injunction would serve no useful purpose. In our opinion, a remand to the trial court for the posting of bond would best serve the interests of justice and efficient administration. Therefore, we remand the case for the trial court to fix the amount of the bond. For the foregoing reasons, the judgment of the trial court in granting the preliminary injunction is affirmed, and the case is remanded to fix security by the court in accordance with the law.

In a later case, Licfro, Inc. v. State, ex rel Dept. of Revenue, Office of Alcohol and Tobacco Control, 2003-0737 (La.App. 4 Cir. 10/1/03) 859 So.2d 739, 743, this Court briefly discussed the Liberty Bank ruling, above, and strictly construed La.Code Civ. Pro. Art. 3610 to require the posting of security. However, we reversed the district court’s issuance of the preliminary injunction on the grounds there was insufficient factual support and proof to justify the issuance of the preliminary injunction, coupled with the fact that no security was furnished.

Thus, in the instant matter, it appears that security is required. We follow our earlier rulings and strictly construe the application of La. C.C.P. Art 3610 to require that security be posted for the preliminary injunction. Thus, we amend this judgment to require that security be posted by the Appellees.

[7In his second assignment of error, Mr. Yokum argues that the district court committed legal error by failing to specify, in sufficient detail, the acts from which he was enjoined.

Louisiana C.C.P. Art. 3605, titled Content and Scope of Injunction or Restraining Order, provides:

An order granting either a preliminary or a final injunction or a temporary restraining order shall describe in reasonable detail, and not by mere reference to the petition or other documents, the act or acts sought to be restrained. The order shall be effective against the parties restrained, their officers, agents, employees, and counsel, and those persons in active concert or participation with them, from the time they receive actual knowledge of the order by personal service or otherwise.

Specifically, the February 23, 2005 district court judgment reads in part:

IT IS ORDERED, ADJUDGED, AND DECREED that the Application for Preliminary Injunction filed by the plaintiffs herein is hereby GRANTED. It is further ordered that there be an investment of the funds with the usu-fructuary receiving the proceeds from the investment pending the trial of the petition for declaratory judgment and permanent injunction.

We find that the district court judgment is clear concerning the acts to be enjoined; thus, this argument is without merit and this matter is affirmed.

DECREE

For the foregoing reasons, we AFFIRM the granting of injunctive relief by the district court, and AMEND the judgment to require the posting of bond, and REMAND.

AMENDED; AFFIRMED AS AMENDED; REMANDED.

      . After Julie’s death, Bill van Calsem remarried.

      . The actual appraised value of the property, per the Appellees’ brief, was approximately $1,900,000.00.

      . The Act of Sale was dated September 3, 2004.

      .The Appellees’ allege that the sale was kept secret from them because Bill van Calsem and the Wendels had previously approached the Appellees and asked them to sell the property, but the Appellees were not interested in selling the Royal Street property.


author: WILLIAMS, J.

text:
    Robert TREADWELL, Plaintiff-Appellant v. Olga Elizalde TREADWELL, Defendant-Appellee.
    No. 41,130-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Kenneth P. Haines, Shreveport, for Appellant.
    James H. Askew, Shreveport, for Appel-lee.
    Before WILLIAMS, DREW and MOORE, JJ.
   WILLIAMS, J.

h Plaintiff, Robert Treadwell, appeals the judgment of the district court sustaining exceptions of no right of action, lack of procedural capacity and lack of subject matter jurisdiction and dismissing his suit for divorce. For the reasons assigned below, the judgment of the district court is hereby reversed.

FACTS

On December 17, 2004, Mr. Treadwell filed a petition seeking a divorce under LSA-C.C. art. 102 from his wife of three years, Olga Elizalde Treadwell. According to the petition, the parties were married in October of 2001 in Las Vegas, Nevada, and thereafter established their matrimonial domicile in Arkansas. In 2003, the parties moved to Texas, where they remained until their separation in October of 2004. The petition alleges that Mr. Treadwell then moved to Louisiana where he established his permanent domicile in Caddo Parish.

On July 18, 2005, Mr. Treadwell’s daughter, Grace Anne Treadwell Vickers, filed a motion seeking to be substituted as the party plaintiff in the suit in her representative capacity as her father’s guardian. The motion alleged that Mr. Treadwell had been declared “incompetent” on July 18, 2002, by a circuit court in Lonoke County, Arkansas. The motion further declared that the initial guardian, Janet Turpin, ceased serving in that capacity about six weeks after her appointment and that Ms. Vickers was substituted as her father’s guardian by order of the same Arkansas court on July 13, 2005. Attached to the motion was a copy of the order issued by the Arkansas state court on July 18, 2002, in which Mr. Treadwell was declared 12an “incapacitated person, substantially without capacity to care for himself, or to meet the essential requirements for his health and safety” and Janet Turpin was appointed as the “Guardian of the Person.” Also attached was the order substituting Ms. Vickers for Ms. Turpin as the “Guardian of the Person.”

On August 30, 2005, Mrs. Treadwell filed a declinatory exception of lack of subject matter jurisdiction and, in a separate pleading, a dilatory exception of lack of procedural capacity and a peremptory exception of no right of action. Mrs. Tread-well argued in her declinatory exception that the Louisiana court did not have subject matter jurisdiction over the divorce proceedings because Mr. Treadwell’s domicile was with his curator, who at the time of filing was Janet Turpin, a resident of Arkansas. In her dilatory and peremptory exceptions, Mrs. Treadwell argued that the Arkansas court’s declaration of Mr. Tread-well as an incapacitated person prior to his filing of the divorce proceedings precluded him from having both the capacity and a right to bring an action for divorce.

The exceptions came for hearing on October 4, 2005, and after affording the parties very limited argument thereon, the trial court sustained all three exceptions. A final judgment to this effect dismissing Mr. Treadwell’s action was signed on November 3, 2005. Mr. Treadwell appealed.

| ^APPLICABLE LOUISIANA LAW

The Louisiana Code of Civil Procedure specially provides the proper venue for divorce actions. LSA-C.C.P. art. 3741(A) requires that an action for divorce “shall be brought in a parish where either party is domiciled, or in the parish of the last matrimonial domicile.” The venue of a divorce action is jurisdictional and cannot be waived. LSA-C.C.P. art. 3941(B); Lacroix v. Lacroix, 32,293 (La.App. 2d Cir.9/22/99), 742 So.2d 1036, writ denied, 99-3036 (La.12/17/99), 752 So.2d 167; Wallace v. Wallace, 25,366 (La.App. 2d Cir.1/19/94), 631 So.2d 40, writ denied 94-0627 (La.5/13/94), 637 So.2d 1066. A divorce judgment rendered in a court of improper venue is an absolute nullity. LSA-C.C.P. art. 3941(B).

The following are the pertinent Louisiana codal articles with regard to interdiction:

LSA-C.C. art. 39

The domicile of a minor not emancipated is that of his father, mother, or tutor; a person of full age, under interdiction, has his domicile with his curator.

LSA-C.C. art. 389

A court may order the full interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.

LSA-C.C. art. 390

A court may order the limited interdiction of a natural person of the age of majority, or an emancipated minor, who due to an infirmity is unable consistently to make reasoned decisions regarding the care of his person or property, or any aspect of either, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.

LLSA-C.C. art. 395

A full interdict lacks capacity to make a juridical act. A limited interdict lacks capacity to make a juridical act pertaining to the property or aspects of personal care that the judgment of limited interdiction places under the authority of his curator, except as provided in Article 1482 or in the judgment of limited interdiction.

LSA-C.C.P. art. 682

A competent major and a competent emancipated minor have the procedural capacity to sue.

LSA-C.C.P. art. 684

A. A mental incompetent does not have the procedural capacity to sue.

B. Except as otherwise provided in Articles 4431, 4554, and 4566, the curator is the proper plaintiff to sue to enforce a right of an interdict.

APPLICABLE ARKANSAS LAW

Arkansas law, A.C.A. § 28-65-101, defines an incapacitated person as follows:

... a person who is impaired by reason of a disability such as mental illness, mental deficiency, physical illness, chronic use of drugs, or chronic intoxication, to the extent of lacking sufficient understanding or capacity to make or communicate decisions to meet the essential requirements for his or her health or safety or to manage his or her estate.

Guardianship is to be used only as is necessary to promote and protect the well-being of the person and his or her property; is designed to encourage the development of maximum self-reliance and independence of the person; and should be ordered only to the extent necessitated by the person’s actual mental, physical and adoptive limitations. A.C.A. § 28-65-105. Furthermore, an incapacitated person for whom a guardian has been appointed is not presumed to be incompetent, and that person retains all legal and civil rights except those which have been expressly limited by | Rcourt order or have been specifically granted by order to the guardian by the court. A.C.A. § 28-65-106.

A guardianship proceeding in Arkansas is governed by Arkansas Code Sections 28-65-201, et seq., which allow for the appointment of a guardian of the estate for any incapacitated person and a guardian of the person for any incapacitated person except a married minor who is incapacitated solely by reason of his or her minority. Accordingly, if a person is found to be substantially without capacity to make or communicate decisions to meet the essential requirements for his or her health or safety or to manage his or her estate, a guardian for the person, estate, or both shall be appointed. A.C.A. §§ 28-65-101(7) and 28-65-213(c)(3).

DISCUSSION

The issue raised by this appeal is whether the effect of a declaration of incapacity under the statutory laws of Arkansas is to be given the same effect as that of an interdiction under Louisiana law. The trial court’s ruling on the various exceptions filed by the defendant depends upon the legal conclusion that a declaration of incapacity under Arkansas law and a judgment of interdiction under Louisiana law are one and the same. Because we find that the trial court erred as a matter of law in this regard, we need not address the question of whether Louisiana law permits a curator to bring an action for divorce on behalf of an interdict.

The Full Faith and Credit Clause, Article IV, Section 1, of the Constitution of the United States provides that full faith and credit shall be | figiven in each state to the public acts, records and judicial proceedings of every other state. It mandates that a judgment of a state court should have the same credit, validity, and effect in every other court of the United States that it has in the state where it is pronounced. Schultz v. Doyle, 2000-0926 (La.1/17/01), 776 So.2d 1158.

It is undisputed that on July 18, 2002, Mr. Treadwell was declared an incapacitated person, and a guardian over the person was appointed on his behalf by an Arkansas state court under Arkansas state law. The record gives no indication of the grounds for his incapacity.

Nevertheless, the trial court sustained the defendant’s exceptions by equating the judgment of the Arkansas court with a judgment of interdiction under Louisiana law, reasoning that as an incapacitated person, Mr. Treadwell’s domicile was that of his guardian, who until the appointment of his daughter in July of 2005, was Janet Turpin, an Arkansas resident. Thus, when Mr. Treadwell filed his petition for divorce in December 2004, he was domiciled in Arkansas, and per the allegations in his petition, his wife was domiciled in Texas. Accordingly, neither party would have been domiciled in Louisiana at the time of filing of the petition for divorce, and since they had never established a matrimonial domicile in Louisiana, there was no proper Louisiana venue for a divorce action. Because venue is jurisdictional, the trial court concluded that it lacked subject matter | jurisdiction over the divorce action.

After determining that it did not have subject matter jurisdiction, the trial court proceeded to exercise jurisdiction in determining that Mr. Treadwell did not have the capacity or right to file a suit for divorce. Again equating the declaration of incapacity under Arkansas law with a judgment of interdiction, the trial court concluded that as an interdict, Mr. Tread-well did not have the capacity to sue under LSA-C.C.P. art. 684 which dictates that an interdicted person’s curator is the proper plaintiff in a suit to enforce the interdict’s rights.

As noted above, the Full Faith and Credit Clause in the United States Constitution requires that the judgment of a state court be given the same effect in the courts of the other states that it would be given in the state which pronounced it. It is clear from the Arkansas statutes that incapacity in Arkansas does not carry the same consequences as that of an interdiction under Louisiana law.

Because its remedy is so harsh, interdiction has been aptly described as “a pronouncement of civil death.” Interdiction of F.T.E., 594 So.2d 480 (La.App. 2d Cir. 1992). In many respects the interdict ceases to exist independently from his curator. He lacks the capacity to contract, LSA-C.C. arts. 395 and 1918; to sue, LSA-C.C.P. art. 684; and he is not allowed to vote, Louisiana Constitution, Article I, § 10. The Louisiana Supreme Court described the status of interdiction as follows:

There is nothing which he is capable of doing legally. His curator acts and administers for him. In all matters pertaining to the possession, keeping, care, administration, and preservation of the interdict’s estate, | sthe curator stands in his place and stead. In such matters, the interdict has no legal existence, except through his curator, in whom ‘he lives, moves and has his being.’ His curator is substituted for him, is the human agency through whom the interdict acts, and the two are legally inseparable.

Converse v. Dicks, 179 La. 339, 154 So. 17 (1934).

While a declaration of incapacity under Arkansas law also gives rise to serious consequences, it appears as though the declaration itself is not intended to divest the subject of such a declaration of all his civil identity. Much to the contrary, A.C.A. § 28-65-106 expressly states that such a declaration does not give rise to a presumption that the subject is incompetent and preserves in him all legal and civil rights not expressly limited by the court.

Accordingly, the Arkansas statutory scheme differs in its effect from that of a Louisiana interdiction in that it does not deprive the subject of all autonomy. Absent some statutory or jurisprudential authority to the contrary, of which we have been able to find none, we can only presume this preservation of rights includes the right to change one’s domicile as well as the right to make and act on the very intimate decision regarding whether one desires to remain married.

This legal error tainted the trial court’s fact-finding process as to Mr. Treadwell’s domicile and his capacity to sue for divorce. Accordingly, we must conduct an independent de novo review in rendering our decision. Davies v. Johnson Controls, Inc., 36,498 (La.App. 2d Cir.10/23/02), 830 So.2d 462, writ denied, 2002-2855 (La.1/31/03), 836 So.2d 70.

With regard to the issue of capacity, Louisiana law requires only that [8a major be competent to have the capacity to sue. LSA-C.C.P. art. 682. The burden of proof is on the party challenging the person’s competence. Vance v. Ellerbe, 150 La. 388, 90 So. 735 (1922). As noted earlier, a declaration of incapacity does not give rise to a presumption of incompetence. There being no other evidence of Mr. Treadwell’s competence to bring an action on his own behalf, we conclude that the exceptions of lack of procedural capacity and no right of action were sustained in error.

The trial court also concluded that Mr. Treadwell’s domicile is in Arkansas, a state which his petition indicates he has not lived in since 2003. With regard to Mr. Treadwell’s domicile, we find, at least on the face of the petition, that he is entitled to the presumption that whenever a person has acquired a residence and actually resides there, it is presumed to be

his domicile. In re Kennedy, 357 So.2d 905 (La.App. 2d Cir.1978). As we stated in Kennedy, this presumption is applicable where there is only one obvious place of residence and the person, while maintaining some ties with his former domicile, does not actually have a place to reside there.

While the record may not provide conclusive evidence that Mr. Treadwell had established his domicile in Louisiana, his assertion of domicile in Caddo Parish is entitled to some presumptive value in the absence of any evidence of a different domicile. Having found that Arkansas law does not provide that his guardian’s domicile must be his domicile, the record in the present case is devoid of any evidence regarding an alternate domicile for Mr. Treadwell. Accordingly, the trial court erred in finding that it lacked subject matter jurisdiction to adjudicate the | mdivorce.

CONCLUSION

For the foregoing reasons, the trial court judgment sustaining the declinatory exception of lack of subject matter jurisdiction, the dilatory exception of lack of procedural capacity and the peremptory exception of no right of action is hereby reversed. The matter is remanded to the trial court for further proceedings. Costs of this appeal are to be borne by appellee.

REVERSED.

      . While the judgment purports to sustain a peremptory exception of no cause of action, no such exception was ever filed. We interpret that provision as an expression of the trial court’s intent to grant the peremptory exception of no right of action filed by the defendant.

      . The caption of the Arkansas order reads, "In the matter of Robert C. Treadwell, Incompetent.” Nevertheless, the actual body of the order signed by the Arkansas circuit court judge noted that Mr. Treadwell was an "incapacitated person, substantially without the capacity to care for his estate and that there was a danger of loss, damage or waste to the property of the respondent that requires the appointment of a guardian of his estate.” (Emphasis added).

      . The parties' focus on the issue of whether a curator can bring an action for divorce on behalf of an interdict is misplaced. While that is an interesting and, as of yet, unresolved question of law, it is not germane to the exceptions which were sustained by the trial court and from which this appeal has been taken [see Paul M. Adkins, Omnipotent or Impotent? The Curator’s Role in Separation and Divorce, 43 La. L.Rev. 1019 (1983) for a detailed discussion of the issue]. The petition was filed by Mr. Treadwell personally and not by his Arkansas guardian. Furthermore, the guardian’s motion to be substituted as the party plaintiff was not granted. Therefore, the propriety of a guardian's filing a petition for divorce on behalf of her ward is irrelevant.


author: CARAWAY, J.

text:
    Richard Carl UPTON, Plaintiff-Appellee v. James G. WHITEHEAD and Lullie Whitehead, Defendants-Appellants.
    No. 41,131-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Davis Law Office, LLC, by S.P. Davis, Sr., for Appellants.

      Robin S. Harvill, Bossier City, for Ap-pellee.
    Before BROWN, WILLIAMS and CARAWAY, J J.
   CARAWAY, J.

h Following the execution of a written two-year lease of a residence, plaintiff/lessor later agreed to allow the defendants/lessees to acquire the property and receive a deed upon the payment of $28,000 through monthly installments of $269.70. Defendants made payment of the monthly installments for over ten years and then ceased payment claiming the purchase price had been paid. Plaintiff brought this suit to evict defendants, and defendants reconvened asserting their acquisition of the property. Upon the plaintiffs motion for summary judgment, the trial court granted the judgment of eviction finding that any oral agreement concerning the property’s transfer was ineffective. For the following reasons, we reverse and remand.

Facts

Richard C. Upton leased residential property located at 1129 Baythorne Drive in Shreveport to James and Lullie Whitehead, husband and wife (hereinafter collectively “Whitehead”), on September 7, 1993. The agreement provided for a two-year term ending on October 1, 1995, with monthly rentals of $269.70 (“Lease Agreement”). Despite the two-year term, Whitehead retained occupancy of the property under an agreement with Upton through the time of this action and paid $269.70 monthly until December 2003.

In 2005, Upton sued for recognition as owner of the property and sought Whitehead’s eviction. His verified petition alleged the following:

Jap-
Subsequent [to the Lease Agreement], the parties orally agreed that, subject to the lease agreement, Petitioner would agree to sell the subject property to the Defendant and execute a deed of transfer upon receipt of the purchase price of $28,000.00 payable at eight (8%) per an-num in monthly payments of $269.70. In the event the Defendant opted to purchase the subject property, the Petitioner agreed to apply the monthly rental payments toward the purchase price.
7.
Petitioner shows that payments under the lease agreement are due from January 1, 2004 to present. Petitioner avers that Defendant has failed or refused to comply with his payment obligation and continues to possess the property, despite amicable demand.

Whitehead answered the petition and reconvened, asserting that they entered into a verbal agreement to sell the property for $28,000 at $269.70 per month at 0% interest. Whitehead further alleged that between September 7, 1993, and December 2003, payments totaling $33,173.10 were made to Upton, entitling Whitehead to a $5,173.10 refund.

Thereafter, Upton moved for summary judgment. His affidavit denied the existence of a verbal sale. He asserted that based upon his proof of title, he was entitled to judgment recognizing him as owner and ordering the Whiteheads to surrender possession.

In Whitehead’s opposition to the summary judgment, the affidavit of James R. Whitehead asserted the following:

That he and defendant in reconvention [Upton] entered into an oral verbal lease sale of the property known as 1129 Baythorne Drive Shreveport, Louisiana, 71129, on October 1, 1995 in the amount of $28,000 dollars at the monthly payment of $269.70 with zero (0) percent interest.

After argument, the trial court took the matter under advisement. Its written opinion found that Upton proved ownership of the property and that Whitehead had failed to prove a verbal transfer. The judgment recognizing |sUpton’s legal ownership and ordering Whitehead to surrender possession was signed on October 18, 2005. Whitehead appeals the judgment.

Discussion

In the trial court’s written ruling in this case, it cited Civil Code Article 1839 as the basis for its judgment, which provides in pertinent part as follows:

A transfer of immovable property must be made by authentic act or by act under private signature. Nevertheless, an oral transfer is valid between the parties when the property has been actually delivered and the transferor recognizes the transfer when interrogated on oath.

These principles are repeated in the Code’s Title VII on Sale, specifically Article 2440, and apply to contracts to sell.

Both parties admit that no written act exists transferring title or otherwise affecting ownership of this disputed immovable after the initial two-year lease. Further, the trial court found there were no admissions under oath by Upton acknowledging an oral agreement affecting the property. This was error. We find from the face of Upton’s verified petition and paragraph 6 thereof, as quoted above, an admitted oral agreement by him as owner, conveying rights in the immovable. That agreement, judicially admitted under oath as part of the pleadings, may be enforceable as between these parties to affect ownership of the immovable. La. C.C. arts. 1853 and 2440; Guillotte v. Wells, 485 So.2d 187 (La.App. 2d Cir.1986); Larido v. Perkins, 132 La. 660, 61 So. 728 (1913).

Upton’s description of the parties’ oral agreement in his petition sets forth the following crucial provisions:

|4(i) The agreement was reached subsequent to the execution of the written agreement for the two-year lease.
(ii) Upton agreed to sell the property.
(iii) A deed transferring the property would be provided by Upton to Whitehead upon the payment of $28,000 with eight percent interest in monthly installments of $269.70.

In addition to admitting the oral agreement, it is also undisputed by the parties that Upton initially delivered possession to Whitehead under the lease and that possession continued thereafter under the oral agreement. Notably, Whitehead asserted that the effective date of the oral agreement was October 1, 1995, which is the same time the two-year lease would have ended. Upton, whose admission of the oral contract is controlling, has not identified the specific date of his agreement to sell. Finally, the major dispute between the parties which precipitated this suit concerns the interest rate applicable to the payment of the $28,000 price. Again, under the controlling judicial admission of this contract by Upton, the eight percent rate applies, and contrary to Whitehead’s assertions, the $28,000 price plus interest had not been satisfied by the time Whitehead ceased making monthly payments in December 2003. As Upton asserts in brief, the amortization calculation reveals a 177-month payout for $28,000 at eight percent with $269.70 monthly installments.

Although the trial court erred in determining that no oral contract affecting the immovable was presented under Article 1839, the summary judgment in Upton’s favor may yet be affirmed if Whitehead’s admitted cessation of monthly payments under that contract may result in its dissolution. To answer that question, a proper characterization of the oral | ¡¡contract set forth in paragraph 6 of Upton’s petition must be made. When a contract can be construed from the four corners of the instrument, or in this case from Upton’s admission of the oral contract, the question of contractual interpretation is answered as a matter of law, and summary judgment may be appropriate. Scott v. Red River Waterway Commission, 41,009 (La.App. 2d Cir.4/12/06), 926 So.2d 830; Sea Trek, Inc. v. Sunderland Marine Mut. Ins. Co., 99-893, 99-894 (La.App. 5th Cir.2/16/00), 757 So.2d 805.

Upton’s contract was to sell the immovable and execute a deed upon the payment of 177 monthly installments by Whitehead. Significantly, delivery of possession was not executory but immediate. Also, while Upton would characterize the contract as a lease with an option to purchase, the contract clearly implies that at the end of a term of 177 months of timely payments, Whitehead would be entitled to delivery of a deed without the necessity of an election of an option which would amount to acceptance by Whitehead of an offer to sell. Likewise, the contract does not mirror the lease/contract to sell agreement in Kizer v. Burk, 439 So.2d 1051 (La.1980). There, the agreement provided for a three-year lease with rent totaling $12,000 to be applied to the $221,400 sale price. The balance of the sale price was to come due at the end of the three-year lease with the purchaser’s payment in the form of additional monies and his execution of a promissory note in conjunction with a credit sale deed.

The Civil Code provisions concerning agreements preparatory to the sale are set forth in Articles 2620, et seq. Article 2620 describes an option as “a contract whereby a party gives to another the right to accept an offer to [ fisell, or to buy, a thing within a stipulated time.” Article 2623 defines the contract to sell as “[a]n agreement whereby one party promises to sell and the other promises to buy a thing at a later time, or upon the happening of a condition, or upon performance of some obligation by either party, is a bilateral promise of sale or contract to sell.” Since the Code addresses these contractual agreements as preparatory to a sale, the contract to sell would not be expected to transfer possession of the immovable. Delivery of the immovable is deemed to occur under Civil Code Article 2477 upon execution of the writing that transfers its ownership, which would be the contemplated deed. Nevertheless, with the unique “contract to sell” addressed by Louisiana’s Bond for Deed Statute (La. R.S. 9:2941, et seq.) as construed by the jurisprudence, occupancy by the purchaser under a bond for deed results immediately, long before the release and recordation of the deed.

A bond for deed is defined as “a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.” La. R.S. 9:2941. Under this special contract to sell, possession of the immovable is delivered immediately to the prospective purchaser prior to the payment of the bond for deed installments. Thomas v. King, 35,857 (La.App. 2d Cir.4/3/02), 813 So.2d 1227. The bond for deed has been interpreted by the jurisprudence as a device to circumvent the normal prohibition against conditional sales, i.e., sales under which passage of title is postponed until payment of the price. Lyons v. Pitts, 40,733 (La.App. 2d Cir.3/8/06), 923 So.2d 962; Seals v. Sumrall, 03-0873 (La.App. 1st Cir.9/17/04), 887 So.2d 91; David Lev-ingston, Bond for Deed Contracts, 31 La. L.Rev. 587 (1971); F. Hodge O’Neal, The Conditional Sale in Louisiana, 2 La. L.Rev. 338 (1940). The bond for deed has also been viewed as a security device in favor of the seller. Lyons, supra. The legislature passed the bond for deed law in 1934 with the intent to protect purchasers, who are “generally not as well informed as sellers nor as qualified to protect themselves against sharp practices.” Leving-ston, Bond for Deed Contracts, supra at 587-588, and authorities cited therein. In 1993, recognizing the need for clarification of the substantive effects of the bond for deed legislation, the legislature made the following observation:

[T]he separation of occupancy and ownership under bond for deed may cause uncertainty in certain related areas of the law, such as taxation of property purchased under bond for deed, financing with tax-exempt bonds of property purchased under bond for deed, the application of “due on sale” clauses to bond for deed, general sales law, and the Uniform Commercial Code; ...

House Concurrent Res. No. 246, 1993 Reg. Sess.

One protection afforded the purchaser under a bond for deed is set forth in La. R.S. 9:2945(A) which provides: “If the buyer under a bond for deed contract shall fail to make the payments in accordance with its terms and conditions, the seller, at his option, may have the bond for deed cancelled by proper registry in the conveyance records, provided he has first caused the escrow agent to serve notice upon the buyer, by registered or certified mail, return receipt requested, at his last known address, that unless | ^payment is made as provided in the bond for deed within forty-five days from the mailing date of the notice, the bond for deed shall be can-celled.”

The leading Louisiana Supreme Court case interpreting this notice provision held that the notice requirement is “clear and mandatory.” Williams v. Dixie Land Co., 231 La. 834, 93 So.2d 185, 186 (1956). In Williams, the purchaser was delinquent in paying the bond for deed installments for eight years. As in the present case, there was no escrow agreement involved in the parties’ transaction. The seller, instead of giving the required statutory notice, sent the purchaser a letter returning all of the prior payments and claimed rescission of the bond for deed because of the default. The court ruled that the bond for deed had not been rescinded due to the seller’s failure to give the “mandatory” statutory notice.

This required statutory notice, as construed in Williams, allows the delinquent purchaser protection under a bond for deed. Like a delinquent purchaser/owner under a credit sale deed who may pay off the balance owed to prevent foreclosure and avoid losing any increased equity value of the property, a delinquent bond for deed purchaser receives a special 45-day grace period in which to cure his delinquency.

From our analysis of paragraph 6 of Upton’s petition describing the oral contract, we conclude that our law governing the bond for deed contract applies. We therefore reject Upton’s claim that he granted a lease purchase agreement or lease with an option to purchase the property. Instead, the agreement contemplated that at the conclusion of the payment of 177 installments, there would be no option requiring Whitehead’s election to 19purchase, but instead the delivery of a deed transferring title to the property would be owed by Upton. This comports with the definition of the bond for deed contract under La. R.S. 9:2941.

With this understanding of the contract as a bond for deed, we find that Upton’s motion for summary judgment must be denied and the trial court’s judgment reversed. There is no showing in this case that Upton complied with the notice requirement of La. R.S. 9:2945(A). With that material fact issue remaining, the case is remanded for further proceedings consistent with this ruling. Costs are assessed to appellee.

REVERSED AND REMANDED.


author: STEWART, J.

text:
    Michael Lane MARSHALL and Bobby W. Biscamp, Plaintiffs-Appellants v. Paul J. SEAGO, Mansfield Auto World, Inc., Federated Mutual Insurance Company and State Farm Mutual Automobile Insurance Company, Defendants-Appellees.
    No. 41,138-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Seale, Stover & Bisbey, by Blair A. Bis-bey, for Plaintiffs Appellants, Michael L. Marshall and Bobby W. Biscamp.
    Corkern & Crews, by Steven D. Crews, for Defendants Appellants, Paul J. Seago and State Farm Mutual Automobile Ins. Co.
    Cook, Yancey, King & Galloway, by Sidney E. Cook, Jr., Matthew R. May, Shreveport, for Defendants Appellees, Mansfield Auto World, Inc. and Federated Mutual Ins. Co.
    Before WILLIAMS, STEWART and PEATROSS, JJ.
   STEWART, J.

It The trial court rendered a summary judgment in favor of Mansfield Auto World, Inc. (“Auto World”) and its insurer, Federated Mutual Insurance Company (“Federated”), finding no coverage under the dealership’s liability policy for a test driver involved in an accident. For the reasons assigned below, the judgment of the trial court is hereby affirmed.

FACTS

On or about August 11, 2004, Michael Lane Marshall was driving a vehicle owned by his employer, Bobby W. Biscamp, along Louisiana Highway 509 in DeSoto Parish when he was involved in a collision with a vehicle being driven by Paul J. Seago. Seago was test driving a vehicle owned by Auto World. Seago’s grandmother, Joann Murray, was considering buying the vehicle for him. As a result of the accident, Marshall and Biscamp filed suit against Seago and his insurer, State Farm Automobile Insurance Company (“State Farm”), and Auto World and its insurer, Federated. The petition alleged negligence on the part of Seago in making an illegal U-turn, failing to yield the right of way, failing to maintain a proper lookout, failing to maintain control of his vehicle, and failing to brake properly. Auto World and Federated answered the petition with a general denial of the allegations therein.

On April 15, 2005, Auto World and Federated filed a motion for summary judgment seeking dismissal from the plaintiffs’ suit. As to Auto World, the motion asserted it was not liable for the negligence of its customers while test driving its vehicles. As to Federated, the motion asserted that Seago was not an insured under its policy, because he was an | ¡Auto World customer who was otherwise covered by liability insurance that met the minimum limits required by Louisiana’s omnibus coverage law. In support of the motion for summary judgment, defendants submitted a copy of the insurance policy issued by Federated to Auto World, the affidavit of Auto World’s manager, copies of various correspondence between the parties’ attorneys and a copy of the deposition testimony of Billy Williams, the Auto World salesperson assisting Seago and Murray on the date of the accident.

The pertinent portions of the policy state:

1. WHO IS AN INSURED
a. The following are “insureds” for covered “autos”:
* ⅜
(2) Anyone else while using with your permission a covered “auto” you own, hire or borrow except:
* * *
(d) Your customers, if your business is shown in the Declarations as an “auto” dealership. However, if a customer of yours:
(i) Has no other available insurance (whether primary, excess or contingent), they are an “insured” but only up to the compulsory or financial responsibility law limits where the covered “auto” is principally garaged.
(ii) Has other available insurance (whether primary, excess or contingent) less than the compulsory or financial responsibility law limits where the covered “auto” is principally garaged, they are an “insured” only for the amount by [swhich the compulsory or financial responsibility law limits exceed the limit of their other insurance.

The affidavit of Auto World’s manager, John Adams, attested to the fact that neither Murray nor Seago has ever been affiliated with Auto World as an employee, agent, or in any capacity other than as a customer on the date of the accident. Mr. Williams testified in his deposition that he was the salesman who dealt with Seago and Murray on the date of the accident. It was his understanding that the vehicle was to be purchased in Murray’s name but that she was purchasing it for Seago. He stated that he heard Murray and Seago discuss how she was going to buy the vehicle for him and how he was going to pay her for it.

After they had worked out the price and financing arrangements, but before any papers were signed, Seago asked to test drive the vehicle. Accordingly, Williams let them take the vehicle while he remained at the dealership to prepare the paperwork. He said that he did not ask for a copy of Seago’s driver’s license before letting him take the vehicle on the test drive. However, he testified that a state trooper informed him after the accident that Seago did in fact possess a valid driver’s license. He testified that while it was the general policy to accompany customers on test drives, it was not uncommon for customers to take test drives without being accompanied by a salesperson.

The motion for summary judgment was opposed by plaintiffs, Marshall and Bis-camp, and by co-defendants, Seago and State Farm, all of whom argued that there was a genuine issue of material fact on the issue of |4coverage under the Federated policy. While they did not dispute that Seago was otherwise covered by liability insurance sufficient to meet the minimum requirements under Louisiana law, they argued that Seago did not fit the definition of a “customer” to whom the exclusionary provision relied on by Federated applied. In addition to Mr. Williams’ deposition, plaintiffs offered copies of the financing application allegedly signed by Murray on the date of the accident. All opponents of the motion cited Mr. Williams’ deposition testimony that the car was being purchased by Murray for Seago, as evidencing that Murray was Auto World’s “customer.” Because Federated’s policy provisions only exclude coverage for “customers” using covered autos with Auto World’s permission, they argued that Seago was not a customer and was afforded coverage under the policy.

The motion came for hearing on June 13, 2005, and summary judgment was granted in favor of Auto World and Federated dismissing the plaintiffs’ claims against them. An appeal was taken by co-defendants Seago and State Farm. A second appeal was taken by plaintiffs Marshall and Biscamp.

DISCUSSION

Because neither appellant assigned error to that portion of the summary judgment which dismissed plaintiffs’ claims against Auto World, the propriety of the trial court’s ruling in this regard is not before us. Both sets of appellants, however, did challenge the trial court’s granting of summary judgment on the issue of whether Seago was an insured to whom coverage is available under Auto World’s liability policy with Federated. |sAlthough in separate briefs, the appellants make the identical two-fold argument. First, they argue that a genuine issue of fact exists as to whether Seago was a “customer” to whom the exclusion from coverage in Federated’s policy would apply. Second, they argue that the exclusion is against the public policy in favor of omnibus coverage by precluding coverage for permissive drivers and is, therefore, unenforceable.

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consolidated Government, 04-1459 (La.04/12/05), 907 So.2d 37. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions and shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966.

The mover has the initial burden of proof to show that no genuine issue of material fact exists. However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover must only point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. La. C.C.P. art. 966(C)(2).

| fiAn insurance policy is an aleatory contract subject to interpretation using ordinary contract principles. Ledbetter v. Concord General Corp., 95-0809 (La.1/6/96), 665 So.2d 1166, judgment amended by 95-0809 (La.4/18/96), 671 So.2d 915. Insurance companies have the right to limit coverage in any manner they desire, so long as the limitations do not conflict with statutory provisions or public policy. Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180. Accordingly, the policy provisions cannot conflict with the statutory requirement in Louisiana of omnibus coverage in favor of any person using an insured vehicle with the permission or consent of the named insured. La. R.S. 32:900(B)(2). This provision requires that a policy insure permissive drivers in an amount sufficient to satisfy the minimum legal requirements set forth in the Compulsory Motor Vehicle Liability Security Law, La. R.S. 32:861 et seq.

When determining whether or not a policy affords coverage for an incident, it is the burden of the insured to prove the incident falls within the policy’s terms. On the other hand, the insurer bears the burden of proving the applicability of an exclusionary clause within a policy. Broadmoor Anderson v. National Union Fire Ins. Co. of Louisiana, 40,096 (La.App. 2d Cir.9/28/05), 912 So.2d 400, writ denied, 2005-2462 (La.3/24/06), 925 So.2d 1239.

In bringing the motion for summary judgment, Federated pointed out that its policy excludes from the definition of “insureds” any customer of the dealership, except to the extent that the customer is uninsured or |7underinsured by law. As noted above, the parties opposing the motion for summary judgment do not contest that Seago was otherwise insured in the minimum amount required by Louisiana law. They rely entirely on the proposition that Seago was not a “customer” of Auto World.

Relying on a definition of customer meaning one who pays for goods or services, the opponents to the motion for summary judgment all argue that Seago’s grandmother was in fact the customer as evidenced by the facts that the vehicle was going to be in her name, that she had signed the financing application, and that she was going to be responsible, as far as Auto World was concerned, for payment. The appellants also cite Murray’s statement in the presence of the salesperson that she was buying the car for Seago as a conclusive admission that Murray, not Seago, was the customer of Autoworld. We disagree.

If the language in an insurance contract is clear and unambiguous, the agreement must be enforced as written. See La. C.C. art. 2046; Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. The interpretation of such a contract is nothing more than a determination of the common intent of the parties, with courts giving the contractual words their generally prevailing meaning unless the words have acquired a technical meaning. La. Civ.Code arts. 2045, 2047; See e.g., Louisiana Ins. Guar. Ass’n v. Interstate Fire & Casualty Co., 93-0911 (La.1/14/94), 630 So.2d 759. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. Further, words susceptible of different meanings must be | sinterpreted as having the meaning that best conforms to the object of the contract. La. C.C. art. 2048.

Murray’s status as a customer of Auto World on the date in question is unassailable. However, we do not agree that Seago was not also a customer simply because he was not going to be the contracting party in the purchase of the truck. The word “customer” is neither a term of art nor a technical term. Therefore, it should be given its generally prevailing meaning. The interpretation suggested by the opponents to summary judgment leads to the absurd consequence that only test drivers who intend to “pay for” or “buy” the vehicle would be excluded from coverage, while those test drivers who are the intended recipient of the vehicle but who will not be its titled owner or who test drive a vehicle before deciding whether to purchase are provided coverage. We do not discern, nor do the appellants posit, any logical reason for such an interpretation. The exclusionary provision in the contract is clearly intended to exclude coverage for those members of the public whom the dealership permits to drive its vehicles in the ordinary course of trying to make a sale. This interpretation clearly suits the generally prevailing meaning of the term customer.

It is undisputed that Seago was at Auto World on the date in question to look for a vehicle, which his grandmother had agreed to assist him with purchasing. Mr. Williams’ deposition testimony clearly indicates his understanding that the vehicle was being purchased for Seago even though his grandmother was lending her name, and presumably her credit, to the [ apurchase. Under these circumstances, we find that Seago qualifies as a “customer” as that term is used in Federated’s policy.

As to the question of whether the law permits the insurer to limit its coverage for permissive drivers in this way, our holding in Goodwin v. Western Heritage Ins., Co., 38,836 (La.App. 2d Cir.8/18/04), 880 So.2d 985, writ denied, 2004-2320 (La.11/24/04), 888 So.2d 231, controls. In Goodwin, supra, we held that an identical limitation of coverage was effective and not violative of the public policy mandating minimum liability coverage. Here, as in Goodwin, supra, the policy specifies that it provides liability coverage when the customer’s insurance is inadequate to satisfy the minimum requirements of our compulsory or financial responsibility law. As such, the policy complies with the minimum standard required by the law, and thus, does not violate public policy.

Appellants’ claim that Goodwin is distinguishable on its facts is without merit. While it is true that the negligent driver therein was the customer’s permittee and not the customer, our opinion treated the two as one and the same. Therefore, our conclusion that such an exclusion does not violate public policy is unaffected by that distinction.

The issue of coverage provided by an insurance contract may be resolved by summary judgment when the evidence supporting the motion does not offer any other reasonable interpretation of the policy. Goodwin, supra. Here, there is no genuine issue of material fact for trial. The evidence offered supports no reasonable interpretation other than that the Impolicy excludes coverage for customers such as Seago under the facts of this case.

CONCLUSION

For the foregoing reasons, the summary judgment is hereby affirmed. Costs of this appeal are to be borne equally by Michael Lane Marshall, Bobby W. Bis-camp, Paul J. Seago, and State Farm Mutual Automobile Insurance Company.

AFFIRMED.

      . This correspondence was purportedly submitted to prove Seago's status as a customer of Auto World based on representations made therein by the attorney for Seago and State Farm. Because such correspondence does not constitute competent summary judgment evidence, it was not relied on by this Court in the disposition of this appeal and, therefore, any elaboration on its content is not required.


text:
    Ryan HOLFORD, Plaintiff-Appellee v. ALLSTATE INSURANCE COMPANY, Defendant-Appellant.
    No. 41,187-CA.
    Court of Appeal of Louisiana, Second Circuit.
    June 28, 2006.

      Lemle & Kelleher, L.L.P., by Dale G. Cox, Shreveport, for Appellant.
    W. Brett Cain, Shreveport, for Appellee.
    Before GASKINS, CARAWAY and MOORE, JJ.
   CARAWAY, J.

| TThis case presents a dispute over the trial court’s discretion in fixing general damages for the plaintiff who suffered a back injury from a rear-end automobile collision. The trial court’s ruling determined that the injury resulted in a chronic condition. Finding support in the record for that ruling, which the appellate court should rarely disturb, we affirm the trial court’s exercise of its discretion for the award of general damages.

Facts

On December 8, 2002, around midnight, 24 year-old Ryan Holford (“Holford”) was rear-ended by a vehicle registered to Karen Cowden. The driver of Cowden’s vehicle drove away from the accident but Holford obtained the license plate number. About a half-hour later, at 12:25 a.m., Holford was triaged in the Emergency Room at Willis-Knighton’s Bossier Medical Center for upper back and neck pain. The nurse’s note described Holford’s pain as “provoked by movement, dull and constant,” and quantified the pain as 7 on an intensity scale ranging from 0 to 10. A physician examined Holford at 1:45 a.m. and diagnosed acute right trapezius strain — MVA. Holford was discharged at 2:05 a.m. and referred to his primary care physician for follow-up if his symptoms persisted for more than 3 or 4 days. Hol-ford missed 5 days of work immediately after the accident and a total of 14 days of work before the trial. At the time of trial, he had been employed by Swepco for 8 years. He testified that he also worked a second part-time job to help with his wife’s education expenses.

^Matters of record show that Holford’s first post-accident visit to his family doctor occurred about 3 weeks later. He saw Dr. Wayne Barksdale on December 26, 2002, complaining of body aches, sore throat and cough and was diagnosed with an upper respiratory infection. Holford has insulin dependent diabetes since childhood and is treated by an endocrinologist for this disease.

Holford went to Dr. Barksdale again on February 10, 2003, complaining of recurrent back pain and vomiting. Dr. Barks-dale’s progress note contained Holford’s description of the accident:

[Holford] was involved in an MVA on December 8th, hit and run accident. He was stopped at a light. A car ran into him from behind. He put his car in park and got out. The car ran off. He got the license plate and did catch who hit him from behind but nothing has been done yet in this regard. His back has hurt him ever since. He went to the ER at W-K Bossier. No x-rays were done. Describes as being pain in his lower lumbar area. No radiation of pain down his legs. Mainly a constant pain when he lies down at night and first gets up in the morning. Not had any history of any prior back trouble. States he does jump a lot of fences and does a lot of walking for his job for Swepco as a meter reader....

After obtaining lumbar and spine x-rays, Dr. Barksdale diagnosed lower back syndrome and viral gastritis, and wrote, “I suspect he probably has just strained his back.” Holford returned about 5 weeks later, on March 19, 2003, for unresolved lower and mid-back pain. An MRI of the lumbar sacral spine was scheduled for the next day. The radiology report disclosed:

... At Tll-2 (sic) level, there is some disc space narrowing with loss of signal involving this disc. There is mild generalized disc bulging at Tll-12 level causing mild effacement of the dural sac. There is mild generalized disc bulging at Ll-2 level causing mild effacement of the dural sac ...

JgIMPRESSION: Mild disc bulging Tll-12 and Ll-2 levels.

Dr. Barksdale’s follow-up progress note after Holford’s MRI states:

3/25/03 ... In light of his MRI findings, I am going to refer him to Physical Therapy. He is wanting to know if the accident could have caused his problem and I have told him that it is doubtful that it caused the mild disc bulging that we are seeing at this time, but it for sure could have aggravated the preexisting problem.... He is going to do his physical therapy and will follow up here afterwards. If he is still having problems, I will refer him to Neurosurgery for further evaluation.

Holford had physical therapy 3 times between March 27 and April 3, 2003, when he discontinued treatment. The subjective assessment portion of the physical therapy notes stated:

... [Holford] describes his pain as being around the intra scapular going down to the mid lumbar region. Patient states he is typically worse with sitting type activities and feels better when he gets up and moves around. He does report that when he walks for 1 or 2 hours, which he does routinely at work, the pain increases again as well.... He is presently taking Lortab at night for pain relief as well as Vioxx during the day.

On May 21, 2003, Holford saw Dr. Barksdale again for complaints of mid-thoracic back pain secondary to MVA. The progress note indicated “his symptoms are basically the same. His back is better, but still does have some lingering symptoms.” Dr. Barksdale’s plan states “I told Ryan today that I really do not have any further recommendations with regard to his back.” On August 19, 2003, the nurse’s note reflects that Holford requested a refill for a Medrol dose pack prescribed for back pain.

On October 13, 2003, Holford visited the doctor again for continued “low back pain.” Dr. Barksdale writes: “I told Ryan on his last visit in May there is really nothing else I can offer him other than physical therapy and Rback exercises. I told him he cannot take pain pills on a constant basis because of the addictive potential of the medication.... I have written Lortab 7.5 mg # 30 with no refill. He is to take this medication on a very sparing basis and is aware of the addictive potential of this medication.”

On November 24, 2004, Holford sued appellant, Allstate Insurance Company (“Allstate”), his uninsured/under insured motorist carrier, in Shreveport City Court. Cowden’s insurer, Progressive Insurance Company, had already tendered its $10,000 policy limit. Allstate tendered $2,000 on February 6, 2004. On July 1, 2005, Allstate deposed Holford.

Thereafter, Allstate set the matter for trial, which occurred on September 20, 2005. The medical records reviewed above were presented as evidence. Holford’s direct testimony described his injuries as follows:

Q.... [W]as there some point where Dr. Barksdale made some type of a final diagnosis for you about your back?
A. He just told me that I had two bulging discs and all that and said there was nothing he could really do about it except prescribe pain medicine.
Q.... And did he ever tell you that you suffered from chronic back pain?
A. Yes sir.
Q- Now before this accident occurred had you had any problems with your back?
A. No sir.
Q.... Had you had any treatment for back pain?
A. No sir.
Q.... And as I understand your testimony Dr. Barksdale told [you] that the only thing he could do for you was prescribe pain medication. Is that correct?
|bA. Yes sir.
Q. Did you tell Dr. Barksdale that your were still having back trouble after that visit in October?
A. I tell him periodically but he just tells me the only thing that he can do is give me pain medicine.
Q. Are you still having back pain?
A. Yes sir.

The trial court took the matter under advisement and rendered its opinion on October 31, 2005. The court determined a total general damage award of $25,000. Judgment was signed for $13,000 plus legal interest on November 17, 2005. Allstate suspensively appeals the judgment.

Discussion

Allstate argues that Holford failed to prove the causal relationship between his injury and the accident and that the trial court’s award for general damages must be reversed. Alternatively, Allstate claims that the amount of damages awarded should be reduced.

An appellate court may reverse the findings of the trial court only when a reasonable factual basis does not exist for the finding and the finding is clearly wrong or manifestly erroneous. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Though an appellate court may surmise that its own evaluations and inferences are reasonable, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of | fifact should not be disturbed on review. Pope v. Prunty, 37,395 (La.App. 2d Cir.8/20/03), 852 So.2d 1213, writ denied, 03-2496 (La.11/26/03), 860 So.2d 1137. When findings are based on determinations regarding the credibility of witnesses, the manifest error standard accords great deference to the trier of fact’s findings, for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what was said. Youngblood v. Lee, 40,314 (La.App. 2d Cir.11/2/05), 914 So.2d 1186, writ denied, 06-0088 (La.4/17/06), 926 So.2d 522; Pope v. Prunty, supra; Hayes v. Maxey, 35,294 (La.App. 2d Cir.12/28/01), 803 So.2d 466. The task of the reviewing court is not to assess whether the trial court’s factual findings are right or wrong in an absolute sense, nor to determine whether the court of appeal or another trier of fact might reasonably reach a different conclusion from the same evidence, but solely to ask whether this fact finder’s resolution of the conflicting evidence was reasonable in light of the record as a whole. Youngblood v. Lee, supra; Pope v. Prunty, supra.

In a personal injury suit, the plaintiff bears the burden of proving a causal relationship between the accident and the complained-of injuries. Maranto v. Goodyear Tire & Rubber Co., 94-2603, 94-2615 (La.2/20/95), 650 So.2d 757; Methvin v. Ferguson, 35,138 (La.App. 2d Cir.9/26/01), 796 So.2d 712. The test for determining this causal relationship is whether the plaintiff proved through medical testimony that it was more probable than not that the subsequent injuries were caused by the trauma suffered in the accident. Methvin v. Ferguson, supra. When the accident victim was in |7good health before the accident, and after the accident shows that a disabling injury manifested itself and that there is a reasonable possibility of a causal connection between the injury and the accident, it is presumed, subject to rebutting evidence, that the accident caused the disabling injury. Methvin v. Ferguson, supra; Boykin v. Washington, 401 So.2d 488 (La.App. 2d Cir. 1981).

In making damage awards, the discretion of the trier of fact is great, and even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp. 623 So.2d 1257 (La.1993). General damages cannot be fixed with pecuniary exactitude. Blue v. Donnie Baines Cartemps USA, 38,279 (La.App. 2d Cir.3/3/04), 868 So.2d 246; Vines v. Wood, 34,555 (La.App. 2d Cir.4/4/01), 785 So.2d 126. There is no mechanical rule for determining general damages; the facts and circumstances of each case control. Blue v. Donnie Baines Cartemps USA supra. Severity and duration are factors to be considered in assessing quantum for pain and suffering. Blue v. Donnie Baines Cartemps USA supra; Vines v. Wood, supra.

Allstate’s argument regarding the lack of proof of causation emphasizes certain gaps in time between Holford’s medical treatment and his failure to report the injury during his first visit to Dr. Barks-dale 18 days after the accident. These facts, however, do not automatically discredit the total body of evidence. Holford consistently complained of pain. It is undisputed that this young adult never suffered back pain before the accident and missed 5 days of work the week following the accident. His | «belated initial report of continued back pain to Dr. Barksdale on February 10, 2003, can reasonably be interpreted as that of a young patient who unsuccessfully expected recovery with time (7 weeks) and then sought help. Such reluctance or naiveté in seeking additional medical attention is a factor which the trial court must weigh and involves the court’s overall credibility analysis of the complaining victim. Accordingly, the trial court’s finding of a causal relationship between this injury and the automobile accident presents no manifest error.

Regarding the general damages, the $25,000 award was described in the trial court’s written reasons for judgment as relating to “chronic back pain” based upon its acceptance of Holford’s testimony that he had experienced pain and discomfort through the time of trial. In this case, following the MRI’s revelation of Holford’s mild bulging discs, his doctor opined that those conditions were probably aggravated by the accident. Thus, this case does not rest solely on Holford’s subjective reporting of a mere soft tissue injury, but has physiological support for a chronic condition. From this record, we therefore find that the trial court could conclude that Holford has suffered from a chronic pain condition lasting almost three years from the accident until trial. Other than raising certain issues of credibility, which are not for the appellate court to measure, Allstate offers no medical evidence rebutting the plaintiffs case. Accordingly, we find no abuse of the trial court’s discretion in fixing the amount of the general damage award.

The judgment of the trial court is affirmed. Costs of appeal are assessed to appellant.

AFFIRMED.