author: GAIDRY, J. KUHN, J.,

text:
    William L. HANCHETT, Jr. and Cheryl Bajon St. Romain v. STATE of Louisiana, through The DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 2006 CA 1678.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 7, 2007.

      C. Jerome D’Aquila, New Roads, Louisiana, for Plaintiffs/Appellees William L. Hanchett, Jr. and Cheryl Bajón. St. Ro-main.
    Charles C. Foti, Jr., Attorney General by David E. Marquette, Baton’ Rouge, Louisiana, for Defendant/Appellant State of Louisiana, through the Department of Transportation and Development.
    Before WHIPPLE, KUHN, DOWNING, GAIDRY, and WELCH, JJ.
   GAIDRY, J.

12This highway-defect suit was filed by the parents of a driver killed in a single-vehicle accident on Highway 75 in Iberville Parish. For the following reasons, we amend and affirm as amended.

FACTS AND PROCEDURAL HISTORY

On August 28, 1994, William L. “Little Billy” Hanchett, III was killed in an automobile accident on Highway 75 in Iberville Parish. Little Billy had been out drinking and shooting pool with a friend on the night of the accident. He was driving south on Highway 75 when he lost control of his vehicle and was ejected from the vehicle.

Little Billy’s parents, William L. Han-chett, Jr. and Cheryl Bajón St. Romain, filed suit against the Louisiana Department of Transportation and Development (“DOTD”), alleging that the DOTD had the care, custody, control, and maintenance of Highway 75 and breached its duty to maintain the road in a reasonable and safe condition, resulting in Little Billy’s death. After a trial, the jury concluded that Highway 75 had a defect which created an unreasonable risk of harm and that the defect was a cause in fact of Little Billy’s accident. The jury also found that Little Billy was negligent in the operation of his vehicle and that his negligence was also a cause in fact of the accident. The jury allocated forty percent of the fault to Little Billy and sixty percent to DOTD. The jury awarded the sum of $30,000.00 to each of the plaintiffs for their loss of consortium due to their son’s death.

The trial court rendered a judgment on December 15, 2005 incorporating the jury verdict and ordering DOTD to pay each of the plaintiffs $18,000.00 plus legal interest. Pursuant to a stipulation, the court also ordered DOTD to pay the plaintiffs $9,962.54, which represents sixty percent of the funeral expenses and medical expenses resulting from the | .-¡accident. The court also set the expert witness fee for the plaintiffs’ expert, taxed that fee as court costs, and ordered DOTD to pay all court costs.

The plaintiffs filed a “Motion for a Judgment Notwithstanding the Verdict or in the Alternative, For Additur or New Trial.” The plaintiffs asked the court to grant a judgment notwithstanding the verdict (“JNOV”) on the issue of quantum, or in the alternative, to grant a new trial on the issue of quantum. DOTD filed its own motion for JNOV or for remittitur or new trial on the issues of the allocation of fault and quantum. The trial court granted the plaintiffs’ motion for JNOV, increased the amount of the awards to the plaintiffs to $75,000.00 each, and denied the motions for new trial.

DOTD appealed the December 15, 2005 judgment and the February 22, 2006 judgment on the issues of liability, quantum, and the assessment of costs. The plaintiffs answered the appeal, assigning error to both the allocation of fault and quantum.

DISCUSSION

Anthony Pelotto was a passenger in Little Billy’s vehicle at the time of the accident. He testified that he and Little Billy visited several bars on the night of the accident. Pelotto was drinking that night, and he saw Little Billy have one or two drinks in a five-hour period. Pelotto’s description of the accident was that they were going into a “pretty deep curve” when the vehicle made a “little jump” like going over a railroad track, and the rear of the vehicle slid to the left. Little Billy tried to correct it, then it slid to the right, and the vehicle started flipping. Pelotto’s next memory is of waking up in the road with people standing over him. He did not remember howj^fast Little Billy was driving at the time of the accident, but admitted telling a police officer at the hospital on the night of the accident that he guessed they were going about 60 miles per hour.

Kermit W. Smith, a now-retired state trooper, investigated the accident in which Little Billy was killed. Upon arriving at the accident scene, he interviewed Pelotto and took measurements at the scene. When testifying at the trial, Trooper Smith had no independent recollection of his investigation, but he was able to testify based on his report from the accident. He testified that the speed limit on the section of road where the accident occurred was 55 miles per hour on the date of the accident and that he estimated the speed of Little Billy’s vehicle as 55 miles per hour on his report because he was unable to determine the actual speed. Tests performed on blood drawn from Little Billy after the accident showed a blood alcohol level of .05 grams percent; Trooper Smith testified that in 1994, a blood alcohol level of .05 grams percent was not high enough to raise a legal presumption of intoxication, but such level was within the officer’s charging discretion. Trooper Smith testified that he inspected hundreds of feet of the roadway and found no skid marks or defects in the road. He also testified that if someone had mentioned a dip in the road that would have been noted in his report.

Charles Cook, a retired sheriffs deputy, testified that he lives on Highway 75 and is familiar with the section of the road where the accident occurred. In 1994, he considered the road “very poorly maintained.” In the area of the culvert, the right-hand side of the southbound lane had “dips,” the shoulder “caved off,” and it was “in bad shape.” Deputy Cook normally tried to drive in the left lane at that point in the road because “it was real rough and I was in that curve one time and I like to have lost control of my |Bear because there was a truck coming, I had to stay in. And from then on I either slowed down or I moved over.” He also warned his wife and children to be careful when they drove in the southbound lane. He testified that the dangerous section of road was occasionally patched, only to deteriorate again.

Rhodie Sanchez, a detective with the Iberville Parish Sheriffs Department, also testified about the condition of Highway 75 in 1994. Although Detective Sanchez did not investigate the accident in which Little Billy was killed, he was familiar with that part of Highway 75. Detective Sanchez testified there was a “substantial dip” in the inside of the southbound lane at the location of the culvert and that “[i]f you traveled that particular curve in the southbound lane at any substantial speed it would tend to dip your vehicle and kind of throw your vehicle towards the northbound lane.” According to Detective Sanchez, vehicles traveling at the posted speed limit of 55 miles per hour also experienced this effect. Detective Sanchez considered this dip to be hazardous and had reported it to his supervisor on several occasions.

Marion Weatherford testified that he lived on Highway 75 and the accident occurred in front of his house. He did not witness the accident, but went out to the scene after someone knocked on his door to tell him there had been an accident. Mr. Weatherford was the second person on the scene. He saw Little Billy lying on the road and observed that he could smell alcohol when Little Billy breathed. There were beer bottles in the road and he found half a pint of whiskey on the seat in Little Billy’s vehicle. Mr. Weatherford said that he was aware of a dip in the road, but that the dip did not bother him because he did not speed in that curve. He disagreed with the | r,descriptions of the road given by Deputy Cook and Detective Sanchez and said that the dip was not as bad as they described it.

Dr. Olin Dart testified as an expert in accident reconstruction on behalf of the plaintiffs. In preparation for his testimony, Dr. Dart visited the site of the accident in 2001. He noted that there is a culvert running under Highway 75 in the area of the accident. Dr. Dart testified that there is an inherent problem with building a road over a culvert due to the fact that, as time passes and vehicles travel over the area, the material used as backfill around the culvert begins to compact end eventually results in a dip in the road. Prior to Dr. Dart’s 2001 visit to the site, Highway 15 was overlaid and widened. Dr. Dart testified that in 2001, the area where the culvert ran under Highway 15 contained a very slight depression, not a major dip, due to the overlay that had been performed. Although he was not able to examine the dip in the road as it existed in 1994, Dr. Dart testified that if there had been a pronounced dip at the location of the culvert that affected vehicles driving over it, that dip would be a defect and would likely be the cause of Little Billy’s accident. Dr. Dart acknowledged, however, that excessive speed may have also been a cause of the accident, based on the point where Little Billy’s vehicle first left the roadway. At a speed of 55 miles per hour, it would have taken Little Billy one hundred and forty-four feet to come to an emergency stop after encountering a defect in the road. With moderate braking as soon as he hit the dip, Little Billy could have brought his vehicle to a stop in three hundred and twenty-five feet if he had been traveling at a speed of 55 miles per hour. However, Little Billy’s vehicle first left the roadway three hundred and sixty feet from the location of the culvert.

Dean Tekell, Jr. testified as an expert in accident reconstruction and traffic engineering on behalf of DOTD. Like Dr. Dart, Mr. Tekell did not [7inspect the accident site until years later, after the road had been overlaid. When he went to the accident site approximately one year before the trial, he observed cars driving over the culvert and through the curve and saw no adverse impact on the traffic. Mr. Tekell testified that he is unable to determine, from looking at pictures of the accident scene, whether a depression actually existed and how deep it was, as the pictures were not very clear. However, assuming that there was a significant enough depression to cause a ear traveling at a speed of 55 miles per hour to lose control, Mr. Tekell would expect that ear to exit the roadway on the left side. According to the police report, Little Billy’s vehicle did not do this. Mr. Tekell also testified that if the dip in the road caused Little Billy to lose control of his vehicle while traveling at a speed of 55 miles per hour, his vehicle would have left the roadway much sooner than it actually did; he would have had to be going at a much higher speed to end up where he did. Mr. Tekell calculated that the truck was going about 30-48 miles per hour at the time it started to flip; if Little Billy was going 55 miles per hour, he could have brought the vehicle to a complete stop by the time he first left the road, yet he was still going 30-48 miles per hour when he started rolling. Based on his calculations, Mr. Tekell was able to conclude “definitively [that] this [dip] was not the source of that crash.” Despite his conclusion, Mr. Tekell agreed with the plaintiffs’ expert that if a road contained a dip that caused drivers to lose control when traveling below the speed limit, that was a defect which posed an unreasonable risk of harm.

William L. Hanehett, Jr., Little Billy’s father, testified that he and his son had a very close father/son relationship and shared several hobbies. Mr. Hanehett and Cheryl St. Romain, Little Billy’s mother, were divorced, and Little Billy initially lived with Mr. Hanehett. Little Billy would visit his | smother and talk to her on the phone, and Mr. Hanehett testified that Little Billy had a good relationship with his mother. When he was seventeen, Little Billy went to live with his mother, but still saw his father often. At the time of the accident, Little Billy worked with his father as a sandblaster and painter. On the night of the accident, Mr. Hanehett saw Little Billy at a pool tournament and bought him a beer. He said that Little Billy was not a person who drank a lot, and before Little Billy left, he bought him a Coke. The next time he saw Little Billy was in the hospital when “[h]e was on life support and I had to pull the plug, he was brain dead.” Mr. Hanehett testified that the loss of his son has been really hard on him, that he wonders what his grandchildren would have looked like, and that he has suffered nightmares in which his son told him that he was not really dead. Mr. Hanehett described the condition of Highway 75 around the date of the accident:

The road had the dip in the road, it was like an eight to ten-inch dip. And you had to stay to the left of it to try to straddle it sometimes. And if a vehicle was coming to you you had no choice but to stay in the lane and maintain control of your vehicle if you could. They had overlays that they go out and do patchwork and they had different stages on the road in that curve, they could throw you to the left and it also could throw you to the right, all depends, you know, on what the situation when a car is coming_And at nighttime, people going through there at night they didn’t know. I mean, it jusb — they didn’t know.

Mr. Hanehett said that he taught Little Billy to drive and had instructed him that if he ever lost control of his vehicle, he should get control of his vehicle and try to slow down as much as possible, rather than slamming on his brakes.

Cheryl Bajón St. Romain testified that she also had a close relationship with her son. Even when he was living with his father, she saw him three or four times a week and would talk to him on the phone. Little Billy was living with her at the time of his death. She testified that they did |9not live near Highway 75, and she did not know of an occasion when Little Billy would have traveled that section of the road before his accident. On the night of the accident, she received a phone call that he had been in an accident and went out to the scene. She saw him lying on the road and went to him, but was not allowed to hold him. She testified that she has had a hard time dealing with Little Billy’s death.

Liability

On appeal, DOTD alleges that the jury erred in finding it liable for Little Billy’s accident and death because the record did not establish that a condition of the roadway caused the accident. DOTD bases its argument on the fact that a dip cannot be clearly seen in the pictures of the accident scene and also that, according to the experts’ calculations, if Billy had lost control due to a defect in the area of the culvert, he should have left the road in a different location than he ultimately did.

From our review of the record, however, it is clear that there was sufficient evidence presented from which the jury could reasonably conclude that there was an unreasonably dangerous defect on Highway 75 which caused Little Billy to lose control of his vehicle. Although the expert witnesses were not able to observe the condition of the road on the date of the accident, the existence of a dip in the road in 1994 was confirmed by several witnesses. It appears from the verdict that the jury believed Anthony Pelotto, Little Billy’s passenger, that Little Billy hit something in the road before he lost control. Although both experts did agree that if Little Billy was going 55 miles per hour, he could have stopped his vehicle before the point where he first left the road even with moderate braking, and Mr. Tekell calculated that Little Billy was still going 30-48 miles per hour at the point where his vehicle began to flip, this does not prove that the highway defect |indid not cause Little Billy to lose control. The jury could have reasonably concluded that Little Billy was going faster than 55 miles per hour or that his consumption of alcohol slowed his reaction time. Given that the jury assigned 40 per cent of the fault to Little Billy, it is likely that they found that he was speeding and/or impaired, by alcohol. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State Through Department of Transportation and Development, 92-1328, 617 So.2d 880, 883 (La.1993). The jury’s verdict on liability is supported by the evidence, and we find no merit in DOTD’s argument that the jury erred in finding it partially liable for the accident. This assignment of error is without merit.

In their answer to the appeal, the plaintiffs allege that the jury erred in assigning any fault to Little Billy in the accident because there was no evidence of speeding in the record, nor was there any evidence that he was under the influence of alcohol. As noted above, there was sufficient evidence in the record from which the jury could, and likely did, conclude that speed and/or alcohol were factors in this accident. These claims by plaintiffs lack merit.

Quantum

Both parties have challenged the amount of general damages awarded in this matter. DOTD alleges that the trial court erred in increasing the amount of the award to the plaintiffs from $30,000.00 each to $75,000.00 each, because the jury made its award after having the opportunity to observe the demeanor of the witnesses. The plaintiffs allege that the award |nof $75,000.00 per parent was so low as to constitute an abuse of discretion and the award should be increased.

A JNOV may only be granted when the evidence, viewed in the light most favorable to the party opposing the motion, points so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict. In deciding whether to grant a JNOV, the trial court may not weigh the evidence, pass on the credibility of the witnesses, or substitute its reasonable inferences from the facts for those of the jury. When a JNOV is granted on the issue of quantum because the trial court concludes that reasonable men could not disagree on the fact that the award is abusively high or low, the trial court must next determine the proper amount of damages to be awarded. The judge is not constrained in making this determination as courts of appeal are to raising or lowering the award to the lowest or highest point which is reasonably within the discretion afforded the court. This is because a trial judge is in a better position to make a damage assessment than an appellate court, since the trial judge hears the testimony, views the evidence;, and is able to evaluate witnesses’ credibility. After granting JNOV on the damage award, the trial court becomes the trier of fact and makes an independent assessment of the damages and awards a proper amount of compensation under the facts of the case. Miley v. Louisiana Farm Bureau Cas. Ins. Co., 90-0689, 599 So.2d 791, 802 (La.App. 1 Cir.1992), writ denied, 604 So.2d 1313 (La.1992).

In reviewing a JNOV, the appellate court must first determine if the trial court erred in granting the JNOV on the quantum. This is done by using the same criteria the trial judge used in determining whether to grant the motion, i.e., whether reasonable men could differ as to the fact that the jury 112award was abusively high or low. If the appellate court determines that the JNOV was properly granted, the trial court’s independent assessment of the damages is then reviewed for an abuse of discretion. In reviewing general damage awards, an appellate court must accord much deference to the trial court. Robinson v. North American Salt Co., 02-1869, p. 18 (La.App. 1 Cir. 6/27/03), 865 So.2d 98, 111, unit denied, 03-2581 (La.11/26/03), 860 So.2d 1139. The discretion vested in the trial court is great, and even vast, and an appellate court should only disturb an award of general damages if the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of that discretion. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

The role of an appellate court in reviewing awards of general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trial court. Robinson, 02-1869 at pp. 18-19, 865 So.2d at 111. Once the appellate court has determined that an abuse of discretion has occurred, it may look to prior awards for the purpose of determining the lowest point which is reasonably within the court’s discretion. Youn, 623 So.2d at 1260-61.

The trial court was correct in granting JNOV and increasing the general damages award because reasonable minds could not differ on the fact that an award of $30,000.00 to each of the plaintiffs for the loss of their eighteen-year-old son was abusively low. However, the court’s award of $75,000.00 to each of the plaintiffs is so low as to constitute an abuse of discretion. After reviewing awards made in similar cases, we conclude that the lowest award reasonably within the discretion of the court is $125,000.00 for each plaintiff. The judgment of the trial court is amended to increase the |13general damages award to the plaintiffs from $75,000.00 each to $125,000.00 each.

Costs

The jury in this case found DOTD to be 60 percent at fault. DOTD argues on appeal that the trial court erred by casting all court costs against it, contending that it should have been cast with only 60 percent of the court costs in accordance with the jury’s allocation of fault.

While the assessment of costs may be made to reflect the percentage of negligence attributable to each party, La. C.C.P. art. 1920 grants the trial court discretion to assess costs in any equitable manner. This article has been liberally interpreted as granting broad discretion to the trial court. Upon review, an appellate court will not disturb the trial court’s fixing of costs absent an abuse of the sound discretion afforded the trial court. Gauthier v. Wilson, 04-2527, p. 6 (La.App. 1 Cir. 11/4/05), 927 So.2d 383, 387, writ denied, 05-2402 (La.3/31/06), 925 So.2d 1258. In this case, the jury concluded that DOTD was substantially at fault in causing the death of the plaintiffs’ son. We do not believe the trial court abused its broad discretion in taxing all costs in this matter to DOTD.

■DECREE

The judgment of the trial court is amended to increase the award to the plaintiffs to $125,000.00 each and as amended, affirmed. Plaintiffs’ answer to appeal is granted in part. All costs of this appeal, which have been confirmed by the 18th Judicial District Court in the amount of $1,800.00, are assessed to DOTD.

AMENDED AND AFFIRMED AS AMENDED; ANSWER TO APPEAL GRANTED IN PART.

KUHN, J., dissents and assigns reasons.

DOWNING, J., dissents for the reasons assigned by KUHN, J.

KUHN, J.,

dissenting.

hi disagree with the majority’s substitution of its judgment for that of the jury and the trial judge. I do not believe the record supports the grant of the JNOV of the jury’s verdict in the first instance; and certainly do not see that the trial court abused its discretion in the quantum awarded in the second.

A JNOV is warranted when the facts and inferences point so strongly and overwhelmingly in favor of one party that the trial court believes reasonable jurors could not arrive at a contrary verdict. The motion should be granted only when the evidence points so strongly in favor of the moving party that reasonable persons could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. The motion should be denied if there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions. Simoneaux v. Amoco Production Co., 02-1050, p. 11 (La.App. 1st Cir.9/26/03), 860 So.2d 560, 567, writ denied, 04-0001 (La.3/26/04), 871 So.2d 348. The trial court may not evaluate the credibility of witnesses in ruling on the motion, and all reasonable inferences or factual questions should be resolved in favor of the nonmoving party. Id. This rigorous standard is | abased on the principle that “[w]hen there is a jury, the jury is the trier of fact.” Id.

I disagree that in this case the facts and inferences point so strongly and overwhelmingly in favor of Mr. Hanchett and Ms. St. Romain that reasonable persons could not arrive at a contrary verdict. Clearly, there is evidence opposed to the motion which is of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions.

Moreover, when the trial judge adjusted the wrongful death award upward from $30,000 to $75,000 for each of the decedent’s parents, there was no abuse of his much discretion in making the award. Exactly what evidence does the majority rely upon to find the abuse of discretion?

The jury heard the witnesses and evaluated the losses based on the evidence presented. For a reviewing court to reweigh that evidence and determine different amounts of money are better warranted for the losses suffered is an obvious usurpation of the jury’s role.

For these reasons, I dissent.

      . A second judgment was rendered by the court on December 15, 2005. Both the first and second judgments were filed into the record on December 23, 2005 at 11:00 a.m. In this second judgment, the court fixed the expert witness fee for the plaintiffs' expert (same expert, same amount as the first judgment), taxed that fee as court costs, and ordered DOTD to pay all court costs.

      . The first person on the scene did not testify at trial.

      . DOTD argues that the trial court erred in granting the "additur.” Although there is no transcript of the hearing on these motions in the record, it is clear from a review of the judgment and the minute entry that the trial court actually granted the plaintiffs' motion for JNOV and then increased the award of general damages.


source: Caselaw Access Project

author: PETTIGREW, J.

license: Public Domain

text:
    QUALITY DESIGN AND CONSTRUCTION, INC. v. CITY OF GONZALES Through Its Duly Elected Mayor, Johnny BERTHELOT.
    No. 2006 CA 2211.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 28, 2007.

      Rick A. Alessi, Christian T. Avery, Gonzales, LA, and Joseph C. Wiley, Baton Rouge, LA, for Plaintiff-Appellant Quality Design And Construction, Inc.
    Robert Ryland Percy, III, Katherine Tess Percy, Gordon Dallon Bush, II, Gonzales, LA, For Defendant-Appellee City of Gonzales.
    Before CARTER, C.J., PETTIGREW, and WELCH, JJ.
   PETTIGREW, J.

| j>The instant appeal arises out of a public works construction contract in which appellant contractor was the successful low bidder on a municipal water park for children. A date for the substantial completion of the project was fixed, and when the project was not completed by the deadline, the city withheld payment on a portion of the contract as retainage.

The contractor subsequently filed suit claiming, that unforeseen obstacles and/or items not contained in the contract had increased costs and lengthened construction time. The trial court rendered judgment awarding the contractor the amount retained, subject to a deduction for 14 days of liquidated damages. From this judgment, the contractor has appealed.

FACTS

In late 2003, the City of Gonzales (“City”) solicited bids on a public works project for the construction of a children’s “sprayground” and other improvements (“the facility”) at a public recreational facility located within the City known as Jambalaya Park. The bid specifications were written around water fixtures and products manufactured by Raindrop Manufacturing; however, the bid specifications allowed a contractor to substitute equivalent engineering-approved products.

The City ultimately received three bids for the construction of the facility with the bid submitted by Quality Design and Construction; Inc. (“Quality”) being considerably lower than the other two. As the successful low bidder, Quality entered into a written contract with the City on January 14, 2004. The total price specified in the contract for the construction of the facility was $890,663.00.

Throughout the course of its construction, the facility was plagued with delays and other obstacles that caused additional expenses to be incurred and delayed the construction process. On or about August 4, 2004, Quality presented an application for |sfínal payment to the City and thereafter submitted a clear lien certificate obtained from the Ascension Parish Clerk of Court. Following the City’s approval of Change Order Number 1, the total price of the adjusted contract was $407,487.24. Quality received payments totaling $350,246.70, leaving a final balance of the contract price of $57,240.54. On August 6, 2004, Quality was presented with a punch list that identified sixty-six items that needed to be addressed with respect to the project. It is undisputed that the punch list, prepared on behalf of the City, failed to set forth an estimate of the costs necessary to complete the items identified on the punch list.

Ultimately, a Certificate of Substantial Completion, signed by the project engineer and the City’s mayor, fixed July 30, 2004, as the date that the project was substantially complete. Said certificate was thereafter recorded in the mortgage records of Ascension Parish on August 20, 2004. The facility at issue in this litigation has been continuously used for its intended purpose since on or about the date of substantial completion.

The City thereafter refused to pay the outstanding balance and made no payments subsequent to the date of substantial completion.

ACTION OF THE TRIAL COURT

On October 20, 2005, Quality filed a Petition for Mandatory Injunction against the City in the 23rd Judicial District Court. Quality alleged that the City was in violation of Louisiana Public Works statutes that prohibit a public entity from withholding more than 10 percent of the contract price after the expiration of forty-five days from the date of substantial completion. Quality sought to recover the full amount of the unpaid balance of the contract price together with legal interest from the date payment was due, reasonable attorney fees based upon the City’s failure to pay as set forth in La. R.S. 38:2191, and for all costs of these proceedings. Quality further prayed that the City be ordered to appear and show cause why a mandatory injunction should not be issued ordering the City to make the full final payment owed pursuant to the public works contract at issue.

The City answered the lawsuit and put forth a reconventional demand to recover funds in excess of $15,000.00 that the City alleged it was required to expend in order to | complete the project. The City further alleged that it was entitled to “delay” and/or “liquidated” damages in excess of $60,000.00 as a result of Quality’s failure to properly complete the project in a timely manner.

On December 14, 2005, Quality filed an Amended and Supplemental Petition against the City wherein Quality re-asserted the demands set forth in its original Petition for Mandatory Injunction and sought additional expenses documented on the written change orders in an amount to be determined by the court. Quality further sought any and all applicable statutory penalties based upon the City’s failure to comply with the provisions of the Louisiana Public Works Act, together with damages representing the additional costs and financial losses occasioned by Quality’s attempts to satisfy the unreasonable demands of the City.

Following a trial on January 30, 2006, the trial court rendered judgment on March 9, 2006, ruling that Quality was entitled to $54,000.00 from the City together with all costs. With respect to the City’s reconventional demand against Quality, the trial court ruled that the City was entitled to recover $2,800.00 from Quality as liquidated damages for the overrun of the completion date. Following rendition of this judgment, both parties requested that the court issue written reasons for its judgment.

In its written reasons, the trial court noted that the work performed by Quality with respect to the “sprayground” facility “was done in a timely manner, with the exception of the twenty-one (21) days for which liquidated damages were awarded.” The court further ruled that any future work authorized by the City to remedy or repair defective products or workmanship would be considered warranty work, which would not be covered by the March 9, 2006 judgment. Similarly, the trial court ruled that the City’s claim to recover amounts it had yet to expend for warranty work constituted a separate action; however, the court reserved the City’s right to pursue said warranty claims. Finally, noting an absence of evidence in the record that would support the reasonableness of the fees requested, the trial court denied Quality’s request for attorney fees.

| ^Quality filed a motion for a partial new trial seeking an opportunity to present evidence as to the total amount of legal fees that it incurred as well as the reasonableness of such fees. Quality further prayed that the trial court render judgment awarding a reasonable attorney fee. The City opposed the motion for a partial new trial on the ground that same was not timely filed.

On May 2, 2006, the trial court issued a judgment finding that while a Certificate of Substantial Completion had been recorded for the construction project at issue, the court could find no evidence of the City’s formal, final acceptance of the work as required by La. R.S. 38:2191 for the recovery of attorney fees. For this reason, the trial court denied Quality’s request for attorney fees. From this judgment, Quality has appealed.

ASSIGNMENTS OF ERROR

In connection with its appeal in this matter, Quality specified the following assignments of error for review and consideration by this court:

1. The trial court erred in denying Quality reasonable attorney fees based upon the City’s failure to make timely payment pursuant to the Public Works Law;
2. The trial court erred in assessing liquidated damages when the project engineer was responsible for a lengthy delay in resolving the issue of brand name vs. “or equal” products;
3. The trial court erred in failing to find that Quality carried its burden of proving that the multiple change orders should have been approved; and
4. The trial court erred in failing to award legal interest on the sum awarded from the date of substantial completion, which is the date from which it was due and owing.

STANDARD OF REVIEW

The Louisiana Constitution of 1974 provides that the appellate jurisdiction of the courts of appeal extends to both law and facts. La. Const., art. V, § 10(B). A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882, n. 2 (La.1993). If the trial court or jury findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been ^sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

ANALYSIS AND DISCUSSION

Denial of Attorney Fees

The initial error assigned by Quality is that the trial court erred in denying it reasonable attorney fees based upon the City’s failure to make timely payment pursuant to the provisions of the Public Works Law. In its brief to this court, Quality recognized the well-settled precept of Louisiana law which holds that attorney fees are generally not recoverable unless provided by statute or contract. Tassin v. Golden Rule Insurance Company, 94-0362, p. 14 (La.App. 1 Cir. 12/22/94), 649 So.2d 1050, 1058.

As support for its claim for attorney fees, Quality relied upon La. R.S. 38:2191(B), which states that “[a]ny public entity failing to make any final payments after formal final acceptance and within forty-five days following receipt of a clear lien certificate by the public entity shall be liable for reasonable attorneys fees.” Quality also argued in its brief that it:

has been forced to incur considerable legal fees in order to obtain a judgment awarding [Quality] the contract balance/retainage which has been owed to [Quality] for over two years and, in fact, has still not been paid. The [Trial] Court made no reference whatsoever to [Quality’s] prayer for attorneys fees in the judgment rendered on March 9, 2006.... In response to [Quality’s] request for written reasons for judgment, specifically as to the attorney fee issue, the Trial Court stated no attorneys fees were awarded because there was no evidence in the record that the requested fees were reasonable.... When the Court was reminded that there was an agreement, on the record, that the legal bills submitted by [Quality] were introduced into evidence and a subsequent hearing on reasonableness would be held if [Quality] prevailed, a second set of written reasons was sent out. The [Trial Courts] reasons for judgment provide, in it’s [sic] entirety, as follows:
[“]The trial in this matter was held on January 30, 2006. In addition to the Reasons for Judgment rendered by this Court on March 24, 2006, the Court makes the following findings of fact and law.
Although there was a Certificate of Substantial Completion recorded for the construction project at issue, there is no evidence in the record that there was ever a formal, final acceptance of the 17work by the City of Gonzales, as required by La. R.S. 38:2191 in order to recover attorney fees. Therefore, in accordance with Diamond B Constr. Co. v. City of Plaquemine, 673 So.2d 636 (La.App. 1 Cir. 4/30/96), and All Seasons Constr., Inc. v. City of Shreveport, 742 So.2d 626 (La.App. 2 Cir. 8/18/99), review or rehearing denied by 752 So.2d 168 (La.12/17/99), [Quality’s] request for attorney fees is denied.!”]

Quality further argued that the trial court’s reliance upon Diamond B Construction Company, Inc. v. City of Plaquemine, 95-1979 (La.App. 1 Cir. 4/30/96), 673 So.2d 636, was misplaced as the factual scenario presented therein is distinguishable from the facts presented in the case at bar. Quality asserted that although the City of Plaquemine was ordered to pay to the contractor the funds it had retained, the court did not award attorney fees presumably because the City of Plaquemine and its project engineer expressed differing opinions as to the quality of the finished work. Quality argued that the record in the instant case is devoid of evidence to indicate that the City disagreed that the facility was substantially complete as the City’s mayor personally signed the Certificate of Substantial Completion. In addition, Quality argued that the “sprayground” facility has been open to the public and used as a children’s playground since August 2004. Thus, Quality asserted that the argument that the facility had never been accepted as complete was untenable. Quality urged that the trial court’s award of attorney fees be reversed and the matter remanded for a proper determination of the fees owed.

In response, the City argued that in correspondence dated September 30, 2005, Quality acknowledged that the facility remained incomplete, and that this fact supported the- City’s decision to withhold formal, final acceptance.

Upon review of this matter, we note that La. R.S. 38:2241.1 provides as follows:

Whenever the public entity enters into a contract for the construction, alteration, or repair of any public works, in accordance with the provisions of R.S. 38:2241, the official representative of the public entity shall have recorded in the office of the recorder of mortgages, in the parish where the work has been done, an acceptance of said work or of any specified area thereof upon substantial completion of the work.... The re-cordation of an acceptance in accordance with the provisions of this |sSection upon substantial completion shall be effective as an acceptance for all purposes under this Chapter.

The record in this matter reflects that the City, through its authorized representative, the mayor, executed a certificate of substantial completion in accordance with La. R.S. 38:2241.1 on August 16, 2004, which was filed into the mortgage records of Ascension Parish on August 20, 2004. Thus, said certificate of substantial completion was effective as an acceptance for all purposes, including a “formal final acceptance” of the work as required by La. R.S. 38:2191(B), thereby entitling Quality to an award of attorney fees.

It is further evident from the record that the City failed to tender final payment within 45 days following its receipt of a clear lien certificate and after what amounted to formal final acceptance. Based upon the mandatory provisions of La. R.S. 38:2191(B), the City is liable for the reasonable attorney fees incurred by Quality. Accordingly, the trial court’s denial of reasonable attorney fees to Quality based upon the City’s failure to make timely payment pursuant to the provisions of the Public Works Law is reversed. We hereby remand this matter to the trial court for a hearing and determination as to the appropriateness and reasonable nature of the attorney fees incurred by Quality.

Entitlement to Liquidated Damages

The second error assigned by Quality is that the trial court erred in assessing liquidated damages when the City’s project engineer was responsible for a lengthy delay in resolving the issue of brand name vs. “equal” products. In its brief to this court, Quality alleged that the project engineer’s consideration of an equivalent product line that Quality proposed for use on the facility project delayed Quality from starting on the project for a period of time well in excess of the 14 days that the trial court assessed as liquidated damages. Quality argued that this delay (between the awarding of the contract in January 2004, and its subsequent receipt of a letter dated April 1, 2004, from Glen Shaheen, the project engineer for the City, advising that the alternate equipment | ¡proposed by Quality would not be accepted) prevented Quality from ordering the requisite equipment necessary to begin meaningful work on the project. Quality contended that this initial delay of approximately 90 days more than offset the 14 days that Quality was penalized in liquidated damages at the rate of $200.00 per day. Quality further contended the trial court’s assessment of 14 days of liquidated damages against it at the rate of $200.00 per day constituted reversible error.

The City responded to this assertion with the argument that although Quality contested the trial court’s assessment of liquidated damages, Quality offered no evidence challenging the validity of the liquidated damages provision of the construction contract that it entered into with the City. The City further pointed out that the evidence adduced at trial established that the initial deadline for substantial completion of the project was July 16, 2004, but that Quality did not substantially complete construction of the project until July 30, 2004. The City further asserts that pursuant to the explicit terms of the construction contract, Quality’s failure to meet the substantial completion deadline subjected it to an assessment of liquidated damages and the trial court properly awarded the City $2,800.00, which the City claimed represents 14 days of delay at a rate of $200.00 per day, as prayed for in the City’s reconventional demand.

Again, following our review of the record in this matter, we find no manifest error in the trial court’s assessment of liquidated damages against Quality occasioned by its failure to meet the substantial completion deadline set forth in its contract with the City. Pursuant to its judgment signed on March 9, 2006, the trial court awarded the City $2,800.00 for liquidated damages; however, in written reasons for judgment signed on March 24, 2006, the trial court noted that the work performed by Quality with respect to the “sprayground” facility “was done.in a timely manner, with the exception of the twenty-one (21) days for which liquidated damages were awarded.”

In its brief to this court, the City also claimed that the trial court erred by failing to award an amount for the remaining seven days of delay that were attributed to Quality pursuant to the trial court’s written reasons for judgment. In light of the trial court’s finding that Quality was responsible for 21 days of delay, the City argued that the trial lincourt failed to award an amount for the remaining seven days of delay. The City asserted that it should be awarded an additional $1,050.00 (representing seven days of delay damages at a rate of $150.00 per day for Quality’s failure to meet the deadline for completion and readiness for final payment).

Upon our review of the record in this matter, we note that the City has neither taken a separate appeal from the trial court’s judgment, nor has it answered the appeal filed by Quality. Inasmuch as the City failed to seek modification or revision of the trial court’s judgment in this court, we are barred from consideration of this issue. La.Code Civ. P. art. 2133. Accordingly, we find this assignment to be without merit.

Failure to Approve Multiple Change Orders

The third error assigned by Quality is that the trial court erred in failing to conclude that Quality carried its burden of proving that its numerous change order requests represented valid requests for additional contract time and additional funds necessary to address issues that arose and were not attributable to Quality. In its brief to this court, Quality pointed out that at the trial of this matter, it presented the testimony of its president, as well as its project manager. Quality asserted that these individuals were present on the job-site and dealt directly with the problems giving rise to the change order requests. Quality also pointed out the only witness called by the City was its project engineer who, Quality claimed, testified as to his impression of the reasons for denying various change order requests based upon his review of file documents.

The City argued in response that the trial court reviewed the documentary evidence and testimony presented at trial, made determinations as to credibility, and reached its factual findings. The City argued that said findings must not be overturned absent a showing of manifest error.

We cannot say that the trial court manifestly erred in failing to make reference in its judgment to the City’s denial of Quality’s numerous change order requests. Accordingly, we also find this assignment to be without merit.

In Failure to Award Legal Interest on Sum Awarded

The final error assigned by Quality is that the trial court erred in failing to award legal interest on the sum awarded from the date of substantial completion. In its brief to this court, Quality pointed out that while the trial court ruled in its favor with regard to the contract retain-age, the judgment was silent with respect to the issue of legal interest on the amount awarded. Quality pointed out that as part of its original petition it had prayed that legal interest be awarded “from the date that such payment was due.” Quality further cited and relied on La. Civ.Code art. 2000, which provides in pertinent part:

When the object of the performance is a sum of money, damages for delay in performance are measured by the interest on that sum from the time it is due, at the rate agreed by the parties or, in the absence of agreement, at the rate of legal interest as fixed by R.S. 9:3500. [Underscoring supplied].

The City responded with the argument that Quality offered no argument to support its contention that legal interest should be awarded from the date of substantial completion; and for this reason, Quality failed to meet its burden of proof and the trial court’s judgment should not be disturbed. In the alternative, the City argued that as the trial court’s award of $54,000.00 did not equal the $57,240.54 prayed for by Quality in its original petition, it must be presumed that the trial court made adjustments to the amount sought by Quality.

In a contractual situation, interest is recoverable from the time the debt becomes due unless otherwise stipulated. La. Civ.Code art.2000 (formerly La. Civ. Code art.1938); United States Fidelity & Guaranty Company v. Southern Excavation, Inc., 480 So.2d 920, 925 (La.App. 2 Cir.1985), writs denied. 481 So.2d 1337, 1339 (La.1986). The time the debt becomes due is the date of substantial completion. Ortego v. Dupont, 611 So.2d 792, 795-796 (La.App. 3 Cir.1992); American Druggists Insurance Company v. Henry Contracting, Inc., 505 So.2d 734, 740-41 (La.App. 3 Cir.) writ denied, 511 So.2d 1156 (La.1987); United States Fidelity & Guaranty Company v. Southern Excavation, Inc., 480 So.2d at 925; National Roofing & Siding Co., Inc. v. Gros, 433 So.2d 403, 405-06 (La.App. 4 Cir.1983).

Accordingly, we find that the trial court erred in failing to award legal interest on the sum awarded from the date of substantial completion of the contract.

CONCLUSION

For the above and foregoing reasons, the trial court’s denial of reasonable attorney fees to Quality based upon the City’s failure to make timely payment pursuant to the provisions of the Public Works Law is hereby reversed. Accordingly, we remand this matter to the trial court for a hearing and determination as to the appropriateness and reasonable nature of the attorney fees incurred by Quality. We further amend the trial court’s judgment to include legal interest on its award of $54,000.00 to Quality from July 30, 2004, the date of the substantial completion of the contract. In all other respects, the judgment of the trial court is affirmed. Costs in the amount of $3,609.50 shall be assessed against defendant-appellee, City of Gonzales.

REVERSED IN PART AND REMANDED, AMENDED IN PART, AND AS AMENDED, AFFIRMED.

      . Retainage is a portion or percentage of payments due for the work completed on a contract that is held back until the entire job is completed satisfactorily.

      . Quality's letter of September 30, 2005, was introduced as City’s Exhibit #11.

      . The Certificate of Substantial Completion was introduced as Quality's Exhibit # 4.

      . As the comment to Article 2000 indicates, this article reproduces the substance of several former articles on the subject and eliminates others as unnecessary. It does not change the law with respect to the issue involved in this case.


author: CLARENCE E. McMANUS, Judge.

text:
    Roy RASPANTI v. Janine M. RASPANTI.
    No. 07-CA-295.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 2007.

      Roy A. Raspanti, Attorney at Law, Me-tairie, LA, and Douglas M. Schmidt, Attorney at Law, New Orleans, LA, for Plaintiff/Appellee.
    Thomas W. Milliner, Salvador Anzelmo, Brian Burke, Attorneys at Law, Metairie, LA, for Defendant/Appellant.
    William E. Wright, Jr., Beverly A. De-laune, Deutsch, Kerrigan & Stiles, New Orleans, LA, for Julie Anne Gardner.
    Panel composed of Judges THOMAS F. DALEY, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
   CLARENCE E. McMANUS, Judge.

| ^Defendant, Janine Raspanti, appeals from two judgments. The first judgment is the granting of an exception of prescription dismissing her reconventional demand against plaintiff. The second is a judgment finding her in contempt and assessing penalties of $5,000.00.

The plaintiff and the defendant are siblings. On January 8, 2003, Roy Raspanti filed suit for breach of contract and for defamation, alleging that he was hired to represent Janine in two separate legal proceedings, and that she failed to fully reimburse him in accordance with the contracts of representation entered into by the parties in both instances. He further alleged that she was liable for damages for defamation.

On May 15, 2003, Janine filed a recon-ventional demand, alleging that Roy had mishandled her claim and further had been paid excessive attorney’s fees. She sought reimbursement for the overpaid fees, as well as damages for “emotional pain and suffering.” Janine also filed an exception of prescription, alleging that Roy’s claim for professional fees was prescribed under C.C. art. 3494 and the claim for defamation was subject to a liberative prescription of one year (as well as subject to an absolute privilege because they were communications with the Office of Disciplinary Counsel and the Courts).

|4On October 16, 2003, Janine filed for summary judgment, seeking dismissal of Roy’s claims that were based on her communications with the Office of Disciplinary Counsel. She also filed a motion to strike the defamation claims relating to her communications with the courts. She also requested sanctions against Roy for violation of C.C.P. art. 863.

On November 20, 2003, Roy filed a motion for partial summary judgment seeking a judgment on the issue of defamation, and a judgment on one of the two employment contracts.

On December 9, 2003, the trial court rendered judgment granting Janine’s motion to dismiss those claims of defamation based on her complaints to the Office of Disciplinary Counsel. He further granted her exception of prescription as to plaintiffs claims for fees that were incurred more than three years before the filing of suit. He denied Janine’s motion to strike the defamation claims based on statements made in the Courts or arising out of statements made or faxes sent to individuals. The court deferred Janine’s request for sanctions to the trial on the merits. The court also denied Roy’s motion for partial summary judgment.

On January 15, 2004, Roy filed a notice of intent to apply for writ of review which was denied by the trial court as untimely.

Roy filed a motion for summary judgment on February 3, 2004, seeking a favorable resolution of his remaining claims, and a dismissal of Janine’s claims. He also filed a motion for ruling on Janine’s motion for sanctions, (which the trial court had deferred to trial).

On December 16, 2004, Roy filed an exception of prescription.

On February 17, 2005, Roy filed a motion for sanctions against both Janine and her counsel, Julie Gardner, alleging violation of C.C.P. art. 863. He alleges that defendant and her attorney knew that their cause of action was perempted | Bwhen they filed suit, and that her reconventional demands for misconduct had already been reviewed and dismissed by the Disciplinary Office and the Louisiana Supreme Court.

On March 3, 2005 State Farm, who had issued to Janine a homeowner’s and personal liability umbrella policy, filed its answer to Roy’s suit.

On March 23, 2005, the court rendered judgment granting Roy’s exception of prescription. Janine filed a motion for new trial on March 29, 2005, which was denied on April 1, 2005. Janine filed her motion for appeal on April 27, 2005.

On June 27, 2005, the trial court granted Roy’s motion for sanctions and ordered that Janine pay the sum of $5,000.00 to Roy. No judgment was rendered against Janine’s attorney. Janine filed a motion for new trial on July 6, 2005, which was denied on July 13, 2005. Janine filed a motion for appeal on August 4, 2005.

On August 10, 2005, Janine filed a motion for summary judgment seeking dismissal of Roy’s defamation claims. On August 22, 2005, the trial court rendered judgment denying both Janine’s motion for summary judgment filed on August 10th and Roy’s motion for summary judgment filed on February 3, 2005.

The two appeals were consolidated for review .in this Court. On March 3, 2006, this Court dismissed Janine’s appeals. The appeal from the judgment of March 23, 2005 was dismissed as a non-final judgment, and the judgment awarding sanctions was dismissed since the merits of the underlying claim had not been reviewed. Raspanti v. Raspanti, 05-738, 05-931 (La.App. 5 Cir. 3/3/06), 925 So.2d 676. On March 20, 2007, Janine filed a motion to designate the judgment of March 23, 2005 as final for purposes of immediate appeal. The trial court granted Janine’s motion on that date. On March 22, 2007, Janine filed a motion for appeal, which was granted by the trial court.

|fiOn May 14, 2007, Roy filed an answer in this Court, in which he alleges that the trial court erred in failing to assess sanctions against Janine’s attorney and in failing to award attorney fees and costs. He also alleges that Janine’s -appeal is frivolous and in bad faith, and - he requests damages on appeal.

EXCEPTION OF PRESCRIPTION— Judgment of March 23, 2005

Janine argues that the trial court erred in granting Roy’s exception of prescription. She alleges that not all claims asserted by her in her reconventional demand are for malpractice. She also seeks return of funds for excessive payment. She contends that this action is a personal action subject to a ten year liberative prescription.

Roy contends that Janine, by her own admission, sued him for breach of the contract between them, and that this action is clearly prescribed by R.S. 9:5605.

R.S. 9:5605 provides a one year/three year peremptive period for -an action against an attorney arising out of an engagement to provide legal services.

“Read in its entirety, section 5605 reflects an intent to cover all actions for damages predicated on traditional legal malpractice, but not more.” Thus, the prescriptive period does not apply to every action against every attorney under any theory whatsoever. Davis v. Parker, 94-40514 (5th Cir.7/17/95), 58 F.3d 183; Broussard v. F.A. Richard & Associates, Inc., 98-1167 (La.App. 3 Cir. 3/17/99), 732 So.2d 578. Fee disputes have been held to be outside of the peremptive period of 9:5606, as have duress and fraud. Shreveport Credit Recovery, Inc. v. Modelist, 33,-369 (La.App. 2 Cir. 5/15/00), 760 So.2d 681, writ denied 00-2159 (La.10/27/00), 772 So.2d 125.

Janine, in her reconventional demand alleges claims of breach of contract, intentional misrepresentations, excessive billing, failure to collect interest, failure to provide an accounting and other negligent and intentional acts. She specifically |7alleges that Roy “billed the Army Corps of Engineers for the samé time frame that he billed his client, and that he recovered payment from both his client and the Corps.” This claim involves a fee dispute, as does Roy’s claim against Janine. We believe that it would be inconsistent to allow Roy to pursue his claim for underpayment, while at the same time barring Janine’s claim for overpayment. Accordingly, we find that the trial court erred in granting Roy’s exception of prescription, and in dismissing those claims that relate to her allegations of overpayment of attorney fees.

SANCTIONS—Judgment of June 27, 2005

Roy filed for sanctions against Janine and her attorney, alleging that they knew that the causes of action had prescribed, and also that allegations charged by Janine had been previously reviewed by the office of Disciplinary Counsel, and by the United States District Court for the Eastern District of Louisiana and the United State Court of Appeals for the Fifth Circuit. He based his claim for sanctions on C.C.P. art. 863, which provides in part that:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

Roy argued that Janine’s petition was not filed in good faith, and that both Janine and her attorney knew that the causes of action were perempted at the time of the filing of the reconventional demand. Roy further argues that Janine and her attorney knew that their claim had no merit, having been rejected by the Office of Disciplinary Counsel, and the Federal Courts.

|sWe believe that the trial court committed error in imposing sanctions in this case. Our review of the record shows that the Office of Disciplinary counsel refused to consider Janine’s claims, as did the federal courts. Janine’s claims were not considered on the merits, as suggested by Roy. Furthermore, we have ruled that Janine’s claims, at least in part, were not prescribed. Therefore, we find that the trial court erred in imposing sanctions for an alleged violation of LSA-C.C.P. art. 863.

Because we find merit to Janine’s argument, and we reverse the judgment awarding sanctions, we need not address Roy’s answer, in which he requests additional sanctions against Janine and in which he requests an assessment of Sanctions against Janine’s former attorney.

For the above discussed reasons, we reverse the judgments of March 23, 2005, in which the trial court granted Roy’s exception of prescription and the judgment of June 26, 2005, in which the trial court imposed sanctions against Janine. This case is remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.


author: THOMAS F. DALEY, Judge. ROTHSCHILD, J.,

text:
    ELLSWORTH CORPORATION v. PETE VICARI GENERAL CONTRACTOR, INC., Vicari General Contractor, Inc., Vicari Contractors, INC., P M Contractors, Inc., Vicari Investments, Inc., Vicari Motorsports, Inc., Peter G. Vicari and Barbara T. Vicari.
    No. 07-CA-649.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      Salvador J. Pusateri, Nadia T. Torrega-no, Johnson, Johnson, Barrios & Yacoubi-an, New Orleans, Louisiana, for Plain-tiffAppellee-2nd Appellant.
    William W. Hall, William W. Hall & Associates, Metairie, Louisiana, for Defendants/Appellants.
    Panel composed of Judges THOMAS F. DALEY, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.
   THOMAS F. DALEY, Judge.

12Appellant, Pete Vicari General Contractors, Inc., appeals the grant of summary judgment in favor of plaintiff, Ells-worth Corporation (Ellsworth), that awarded Ellsworth attorney fees under the theory of quantum meruit. Cross-appellant, Ellsworth, also appeals the judgment. We affirm the judgment awarding attorneys’ fees to Ellsworth, but on a different legal basis than found by the trial court.

The attorney fees claim arose out of an underlying dispute over the payment of premiums for performance surety bonds issued by Gulf Insurance Company, with Vicari being the principal. Plaintiff, Ells-worth, is an agent/broker for Gulf Insurance Company who issued the bonds.

The bonds were issued in October of 2003, releasing liens filed by a subcontractor on a Vicari project. Vicari paid the initial premiums and renewals through October of 2005. For various asserted reasons, Vicari failed to thereafter pay the renewal premiums totaling $10,658.00. Ellsworth sued for the premiums, |splus costs and attorney fees, claiming authority under a Limited Agency/Brokerage Agreement between Gulf and Ellsworth.

Vicari deposited the sum of $10,658.00 into the registry of the court, while preserving the right to dispute Ellsworth’s claim for attorney fees. Ellsworth filed a Motion for Summary Judgment on both the issue of the bond premiums and the issue of attorney fees. Regarding the attorneys’ fees, Ellsworth argued that Vicari was liable under the terms of the General Indemnity Agreement between Vicari and Gulf Insurance, signed in May of 2002.

The matter was heard on April 26, 2007. On May 1, 2007, summary judgment was granted in part in Ellsworth’s favor on the underlying claim and the money was released to Ellsworth in satisfaction of that claim. The matter of attorneys’ fees was taken under advisement, and Ellsworth was given time to supplement the record with the fully executed Limited Agency Agreement between Ellsworth and Gulf Insurance.

Following supplementation of the record, on June 18, 2007, the trial court rendered judgment in favor of Ellsworth on the issue of attorneys fees in the amount of $3,500.00. The trial court specifically found that

“this action to collect unpaid insurance premiums lies in contract and that no contract provided to the Court provides for the collection of attorney fees or court costs to Ellsworth in the collection of .a premium owed by Vicari to Gulf. See [Fidelity and Casualty Company of New York v. A & M Construction, Inc.,] 692 So.2d 28, (La.App. 1 Cir., 1997). However, this Court finds that Plaintiff has a claim for Attorney Fees under the theory of quantum meruit.”

On appeal, Vicari argues that the trial court erred in awarding attorneys fees under a theory of quantum meruit, given that no contract or statute provided for an ^attorneys fees award under the facts of this case. Vicari argues that no attorneys’ fees are due to Ellsworth in this case.

Ellsworth also appealed the judgment. They argue that the trial court erred in finding that the contracts provided to the court did not provide for recovery of full attorneys’ fees and court costs; that the trial court erred in not granting judgment on open account and awarding attorneys’ fees pursuant to LSA-R.S. 9:2781; that the trial court erred in not awarding legal interest pursuant to LSA-C.C. art. 2000; and that they are entitled to additional attorneys’ fees and costs on appeal.

We agree that the attorneys fees are not due under a theory of quantum meruit. We find that the attorneys’ fees are clearly due Ellsworth under the two contracts at issue, the Limited Agency/Brokerage Agreement between Ellsworth and- Gulf, and the General Agreement of Indemnity between Vicari and Gulf. We reverse the amount of the award of attorneys fees, and remand for the trial court to conduct an evidentiary hearing on the reasonableness of the fees in accordance with this opinion.

Our review of summary judgments on appeal is de novo using the same criteria applied by the district court in order to determine whether the grant of summary judgment was appropriate. Gautreaux v. Dufrene, 04-970 (La.App. 5 Cir. 1/11/05), 894 So.2d 385, 387. Decisions as to the propriety of granting the motion must be made with reference to the substantive law applicable to the case. Mohsan v. Roule-Graham, 05-122 (La.App. 5 Cir. 6/28/05), 907 So.2d 804; writ denied, 05-1976 (La.2/3/06), 922 So.2d 1184.

It is well settled that, as a general rule, Louisiana law does not permit recovery of attorney’s fees in absence of a statutory provision allowing recovery or |fia contractual agreement by the parties to pay attorneys fees. Kinsinger v. Taco Tico, Inc., 03-622 (La.App. 5 Cir. 11/12/03), 861 So.2d 669.

Two contracts are at issue here. The first one is the Limited Agency/Brokerage Agreement between Ellsworth and Gulf Insurance that was executed in July of 2001 and was still in effect at the time Vicari executed the Release of Lien Bonds. This Agency Agreement allowed Ellsworth to represent Gulf Insurance Company in servicing contracts for bonds and collecting premiums due on the bonds on behalf of Gulf Insurance Company. The Agency Agreement does not contain any provision for attorneys’ fees.

Vicari and Gulf Insurance Company entered into a General Agreement of Indemnity on May 7, 2002. Therein, in paragraph 2, it is stated:

The Indemnitors will indemnify and save the Company harmless from and against every claim, demand, liability, cost, charge, suit, judgment and expense which the Company may pay or incur in consequence of having executed, or procured the execution of, such bonds, or any renewals or continuations thereof or substitutes, therefor, including fees of attorneys, whether on salary, retainer, or otherwise, and the expense of procuring, or attempting to procure, release from liability, or in bringing suit to enforce the obligation of any of the In-demnitors under this agreement. ... (emphasis added)

Ellsworth argues that as agent of the Gulf Insurance Company, the General Agreement of Indemnity extended to Ells-worth, and it was empowered to represent Gulf in the collection of premiums on the bonds comprising the subject matter of this litigation, and in fact did so without objection from Vicari. Ellsworth argues that the Indemnity Agreement shows Vi-cari’s intent and agreement to pay all attorneys’ fees and costs associated in bringing suit to enforce the obligation of any of the indemnitors (Vicari).

I (¡Quantum meruit, as a substantive law basis of recovery, does not apply where a contract exists. Dumas and Associates, Inc. v. Lewis Enterprises Inc., 29,900 (La.App. 2 Cir. 12/22/97), 704 So.2d 433.

It is clear that Ellsworth sued Vi-cari for the bond premiums owed to Gulf, as Gulfs agent. The question is, does filing suit against Vicari to collect unpaid premiums come within Ellsworth’s contractual authority, under the Limited Agency/Brokerage Agreement, to service contracts of insurance or bonds, or to collect premiums on Bonds? We find that the answer to this question is yes.

The next question is, does Vicari s General Agreement of Indemnity with Gulf Insurance extend to Gulfs agent Ells-worth? We find that it does. In that agreement, Vicari clearly obligates itself to indemnify Gulf for the expense Gulf may pay or incur, in consequence of having executed the bonds, including fees of attorneys, and the expense of bringing suit to enforce the obligation of any of the Indem-nitors (Vicari) under the Agreement. One of Vicari’s obligations under the Agreement was to pay the premiums of the bonds (Section 1 of General Agreement of Indemnity). Ellsworth ultimately sued Vi-cari for the unpaid bond premiums, which Vicari deposited into the registry of the court and which were released to Ells-worth following summary judgment in their favor. At no time has Vicari challenged Ellsworth’s right to sue Vicari for the unpaid bond premiums.

Accordingly, we find that the contracts clearly obligate Vicari to pay attorneys’ fees for the collection of unpaid bond premiums to Ellsworth as Gulfs agent.

Ellsworth argues that the trial court erred in not granting judgment on open account, relying on Brosset v. Childs Enterprises, 465 So.2d 89 (La.App. 5 Cir.1985). However, this case’s holding was called into question by Fidelity and Cas. Co. of New York v. A & M Construction, Inc., 96-1326 (La.App. 1 Cir. 3/27/97), 692 So.2d 28, relied upon by the trial court in its Judgment, which, after a thorough analysis of similar cases, held that a suit for unpaid insurance premiums was a suit in contract, not one on open account. We find no error in the trial court’s conclusion that this was a suit on contract, and thus attorneys fees are not due under LSA-R.S. 9:2781.

Ellsworth argues that the trial court erred in not awarding all of its attorneys’ fees, but only a portion thereof. At the hearing, counsel for Ellsworth submitted an affidavit attesting that plaintiff incurred fees of $7,632.25 and expenses in the amount of $1,291.96 in connection with the prosecution of this matter. Ellsworth argues that since the trial court did not find that these fees were unreasonable, the trial court erred in not awarding 100% of the fees sought.

The Louisiana Supreme Court, in determining the reasonableness of awards of attorney’s fees, have utilized the following factors: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances involved; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court’s own knowledge. Rivet v. State, Dept. of Transp. and Development, 96-0145 (La.9/5/96), 680 So.2d 1154, 1161.

There is no evidence in the record that the trial court considered any of these factors when setting the attorneys’ fees, becausé she set them under the theory of quantum meruit, which we have found does not apply in this case. The analysis conducted under quantum meruit is similar, but not identical to the analysis of the 1 sreasonableness of these attorneys’ fees and expenses. Accordingly, the matter must be remanded to the trial court for a determination of reasonable attorney fees.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ROTHSCHILD, J., dissents.

ROTHSCHILD, J.,

dissents.

11 Although I agree with the ruling of the majority that the trial court erred in imposing attorney’s fees on defendants based on a theory of quantum meruit, I disagree with its holding that attorney’s fees are due under the two contracts at issue. I therefore dissent from that portion of majority opinion which holds that plaintiff is entitled to attorney’s fees in this case.

As stated by the majority, Louisiana law does not permit recovery of attorney’s fees in absence of a statutory provision allowing recovery or a contractual agreement by the parties to pay attorney’s fees. In reaching its determination that attorney’s fees are part of a contractual agreement between the parties, the majority extends the terms of the indemnity contract between Gulf Insurance and Vicari to the terms of the agency contract between Gulf Insurance and Ellsworth. After a review of the terms of these two contracts, I find this approach to be flawed for several reasons.

It is well settled that only a party to a contract can be bound by its provisions. La.C.C. art. 1983. A written contract is the law between the parties, and the parties will be held to full performance of the obligations flowing from their contract. La.C.C. art. 1983. Interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. When the words of a contract are clear and explicit and lead to no absurd ^Inconsequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract. La. C.C. art. 2050. When the parties made no provision for a particular situation, it must be assumed that they intended to bind themselves not only to the express provisions of the contract, but also to whatever the law, equity, or usage regards as implied in a contract of that kind or necessary for the contract to achieve its purpose. La. C.C. art. 2054.

Applying these principles to the present case, I fail to find support in either of the contracts for an award of attorney’s fees to plaintiff in this ease.

The General Agreement of Indemnity executed between Vicari and Gulf Insurance obligates Vicari to indemnify Gulf Insurance against expenses, including attorney’s fees, which Gulf Insurance may pay or incur in bringing suit to enforce Vicari’s obligation under this agreement. However, there is no evidence in the record that Gulf Insurance is seeking indemnification from Vicari for expenses it incurred in the form of attorney’s fees. Further, Ellsworth is not a party to this indemnity agreement, and nothing therein obligates Vicari to indemnify Ellsworth for attorney’s fees incurred by Ellsworth. Thus, contractual attorney’s fees cannot be awarded to Ellsworth on the'basis of this indemnity agreement between Vicari and Gulf Insurance.

Moreover, a review of the agency agreement relied upon by Ellsworth and the majority fails to contain any authority for Ellsworth’s collection of attorney’s fees in this matter. In that agreement, Ells-worth’s authority is exclusively limited to a list contained, in Section I of the agreement, and the collection of attorney’s fees is not included therein. Further, Section II of the agreement provides that in the event Ellsworth is unable to collect | spremiums, such as is the case here, Gulf Insurance has the right to undertake direct collection of these premiums if notified by Ellsworth within 45 days and no commission will be paid to Ellsworth in this circumstance. The agreement further provides that if Ellsworth does not timely notify Gulf Insurance of its inability to collect premiums, Ellsworth will be obligated to Gulf Insurance for these sums upon reasonable notice. Finally, Section XI of the agreement contains a provision that Gulf Insurance is not responsible for expenses incurred by Ellsworth unless agreed in writing.

No evidence was submitted in the present matter that Ellsworth notified Gulf Insurance of its inability to collect premiums in this case, or that Gulf Insurance authorized Ellsworth as its agent to incur the expenses of attorney’s fees. Likewise, there is no evidence to support a holding that Vicari’s agreement with Gulf Insurance obligates Vicari to Ellsworth for the payment of attorney’s fees when such is not specified by the clear terms of the agreement. Thus, in my view,, neither of these agreements provides a contractual basis to Ellsworth for an award of attorney’s fees against Vicari.

Under these circumstances, I find that the trial court was correct in concluding that “no contract ... provides for the collection of attorney fees or court costs to Ellsworth in the collection of a premium owed by Vicari to Gulf.” Because I also find that there is no basis for an award of attorney’s fees based on quantum meruit, I would vacate the ruling of the trial court awarding attorney’s fees in this case and render judgment in favor of defendants.

      . The Limited Agency/Brokerage Agreement was signed in July of 2001 and is between Gulf and Ellsworth, LeBlanc, and Ellsworth, Inc. It is represented in the record that sometime after this Agreement was signed, Ells-worth, LeBlanc, and Ellsworth changed its name to Ellsworth Corporation. This agreement was in effect at the time the bonds were issued.

      . See Section 1, Authority of Agent/Broker, (A)(1) and (A)(3).

      . Considerations for determining quantum meruit attorney fees are time and labor required in prosecuting or defending the claim, the difficulty and novelty of the questions involved, the degree to which case precluded other employment, fees customarily charged in the locality for similar services, amount of money involved and results obtained, time constraints, and experience, reputation and ability of lawyer; quantum meruit analysis evaluates not merely the hours expended, but also the results and benefits obtained. Johnson v. Insurance Co. of North America, 27,847 (La.App. 2 Cir. 1/24/96), 666 So.2d 1286.


author: SUSAN M. CHEHARDY, Judge.

text:
    AMERICAN THRIFT & FINANCE PLAN INC. d/b/a State Farm Acceptance v. Charmaine B. RICHARDSON and Clifton G. Richardson.
    No. 07-CA-640.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 22, 2008.

      Rodney J. Madere, Attorney at Law, Metairie, Louisiana, Counsel for Appellant, American Thrift.
    Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   SUSAN M. CHEHARDY, Judge.

^Plaintiff, American Thrift & Finance Plan, Inc.(“American Thrift”), instituted this proceeding by executory process seeking to foreclose on a mortgage affecting immovable property in St. James Parish. The defendants are Charmaine B. Richardson and Clifton G. Richardson. In the course of that proceeding, the property was sold by the sheriff of St. James Parish, and it was adjudicated to the foreclosing creditor, American Thrift.

After the foreclosure sale was completed and recorded by American Thrift in the conveyance records for St. James Parish, defendant, Clifton G. Richardson(“Richardson”) filed a Petition to Nullify the Judicial Sale claiming that the original petition lacked the necessary documentary evidence to support executory process. Without hearing, the trial court granted relief in favor of Clifton Richardson after finding that there were discrepancies in the recitals of the note and the mortgage, which precluded the use of executory process. The trial court nullified the sheriffs sale, revested title to the property in Richardson, yet recognized and maintained American Thrift’s mortgage on the immovable property, and ordered Richardson to pay $30,905.00 at 18% interest per year, in monthly installments of $681.08 to begin 30 days after the judgment becomes | ¡¿final. American Thrift moved for and was granted a devolutive appeal from that judgment.

On appeal, American Thrift argues that the lower court erred in holding that there was a total lack of documentary evidence to support the petition for executory process. In its eight assignments of error, American Thrift specifies: (1) the lower court erred in holding that executory process was unavailable since the promissory note was paraphed for identification with the act of multiple indebtedness mortgage; (2) the lower court erred in holding that executory process was unavailable where there were discrepancies in signatures between the promissory note and the act of multiple indebtedness mortgage; (3) the lower court erred in holding that executory process was unavailable where there were discrepancies between the amount of the promissory note and the multiple indebtedness mortgage; (4) the lower court erred in considering evidence that had not been introduced into evidence; (5) the lower court erred in holding that executory process was unavailable due to a variance in language between the multiple indebtedness mortgage and the promissory note related to attorney’s fees; (6) the lower court erred in failing to consider the date the judicial sale was recorded; (7) the lower court erred in holding that the defendant carried the burden of proof; and (8) the lower court erred in changing the terms and conditions of the promissory note executed by the defendant.

Facts

On May 30, 2005, Clifton Richardson purportedly executed a promissory note for $57,210.72, made payable to American Thrift. That note was secured by and paraphed ne varietur for identification with an act of multiple indebtedness |4mortgage executed on that same date by Clifton Richardson and Charmaine Richardson in favor of American Thrift, affecting property in St. James Parish.

On October 2, 2006, American Thrift filed suit seeking to foreclose by executory process on the promissory note and mortgage. The petition contained a description of the immovable property at issue; a copy of the promissory note; and a certified copy of the multiple indebtedness mortgage that secured the note, which also contained a description of the immovable property at issue. The petition sought issuance of an order of executory process and a writ of seizure and sale.

On or about October 9, 2006, the Sheriff of St. James Parish seized the property described in the above mortgage, and notified them of the seizure and sale, which sale was scheduled for November 15, 2006, or any day thereafter. On or about October 11, 2006, Richardson, in proper person, filed an objection with exhibits to the Petition for Executory Process and Notice of Seizure and Sale. The record reflects that the sale, which was scheduled for December 6, 2006, was advertised properly.

On November 20, 2006, Richardson, in proper person, filed a Petition for Injunction alleging that the Sheriff should be preliminarily and permanently enjoined from selling his property on December 6, 2006 because Richardson did not sign the mortgage that is the basis of the foreclosure action. Richardson further avers that his estranged wife, Charmaine, forged his signature and conspired with a “principal of American Thrift to commit fraud in encumbering his separate property.” On November 22, 2006, the trial judge set the hearing on the injunction for December 11, 2006, five days after the scheduled sale.

15On December 6, 2006, American Thrift, the seizing creditor, purchased the property at the Sheriffs sale for $940.88, as evidenced by the Sheriffs return contained in the record. Richardson’s Petition for Injunction was denied as moot at the hearing on December 11, 2006. On December 22, 2006, the St. James Parish Sheriff filed the Sheriffs Sale for recordation with the St. James Parish Clerk of Court.

On or about January 20, 2007, Richardson filed a Petition for Nullity of Sheriffs Sale and for Damages, alleging that the sale was an absolute nullity because the petition did not contain the necessary documentation to justify the use of executory process. Richardson specifically alleged that the promissory note was erroneously paraphed to the multiple indebtedness mortgage; his purported signature on the mortgage does not correspond with his purported signature on the note; there was discrepancy between the interest rate listed in the promissory note (19.72%) and the petition (18%); he was not offered the mandatory three-day right of rescission at the time of the execution of the mortgage on his primary residence; and, finally, he is legally blind and cannot say that the signature on the mortgage is his “genuine signature.” The sole defendant named in that action was American Thrift. Defendant prayed for judgment invalidating the sale, declaring the alleged security interest as “null and void,” and awarding costs, damages, and attorney fees.

Although American Thrift specifies eight assignments of error on appeal, we will consolidate our analysis and concentrate on the central issues. We will first address the question of whether Richardson was entitled to maintain his action to annul the sale made under executory process on any of the grounds alleged, considering the fact that he did not enjoin successfully that sale and did not | fisuspensively appeal from the order directing that a writ of seizure and sale be issued.

The general rule is that defenses and procedural objections to a proceeding by executory process may be asserted only (1) through an injunction to arrest the seizure and sale, or (2) by a suspensive appeal from the order directing the issuance of a writ of seizure and sale, or both. See La. C.C.P. art. 2642, and Comment (a) under that article. Our courts, however, have recognized an exception to the above general rule.

The jurisprudence holds that a mortgagor who has failed to enjoin the sale of property by executory process, or who did not take a suspensive appeal from the order directing the issuance of the writ of seizure and sale, may institute and maintain a direct action to annul the sale on certain limited grounds, provided that the property was adjudicated to and remains in the hands of the foreclosing creditor. See Reed v. Meaux, 292 So.2d 557 (La.1973); League Central Credit Union v. Montgomery, 251 La. 971, 207 So.2d 762 (1968); Viley v. Wall, 154 La. 221, 97 So. 409 (1923); Powell v. Carter, 233 So.2d 369 (La.App. 1 Cir.1970); Ford Motor Credit Company v. Herron, 234 So.2d 517 (La.App. 3 Cir.1970); Jambois O. & M. Machine Shop, Inc. v. Dixie Mill Supply Company, 218 So.2d 672 (La.App. 4 Cir.1969).

In Reed v. Meaux, supra, the supreme court made it clear that, in specific circumstances, a sale through executory process can be attacked by means of a direct action, filed after the sale has been completed, solely on the ground that there were defects in the proceedings which are substantive in character and which strike at the foundation of the executory proceeding. In Bankers Life Co. v. Shost, 518 So.2d 563, 565-566 (La.App. 5 Cir.1987) this Court, citing Ellerd v. Williams, 404 So.2d 1271, 1273 (La.App. 2nd Cir.1981), held that “a sheriffs sale |7pursuant to judgment ordering executory process is subject to annulment for fraud or ill practices by the creditor and adjudicates where no third [party] rights have intervened.”

Fraud is defined in La. C.C. art. 1953 as “a misrepresentation or a suppression of truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.” Furthermore, La. C.C. art. 1957 provides that “fraud need only be proved by a preponderance of the evidence and may be established by circumstantial evidence.”

In this matter, Richardson alleged fraud and/or conspiracy on the part of his estranged wife and a “principal of American Thrift” in his Petition for Injunction, which was denied as moot. Richardson specifically contended that his signature on the loan was forged. Thus, under the current jurisprudence, Richardson was entitled to maintain a direct action to annul the sale to American Thrift on the grounds of fraud.

After a careful review of the record before us, we note, however, that Richardson did not allege fraud in his Petition to Annul the sheriffs sale to American Thrift. Thus, we find that the trial court erred in granting relief to Richardson pursuant to that filing. We note, further, that the judgment at issue was rendered without the taking of any evidence. Thus, even if we were to find that | ^Richardson had properly pled fraud, we find that the trial judge abused its discretion in finding in favor of plaintiff without accepting evidence at a contradictory hearing.

Based on the foregoing, we vacate the judgment of June 18, 2007 in its entirety. We order the Clerk of Court for St. James Parish to cancel and erase from its records the judgment dated June 18, 2007 and recorded as Instrument No. 137314 in Book 343, Folio 492. Costs of this appeal are taxed to appellee, Clifton G. Richardson.

JUDGMENT VACATED AND ORDERED ERASED.

      . In the lower court proceeding, Charmaine B. Richardson was deemed absent from Louisiana. A curator was appointed to represent her. Her representative did not object to the lower court proceeding at any point. She is not a party to this appeal.

      . The note of $57,210.72 was secured by a mortgage of $50,000.00 on the immovable property described in the act. In this case, the promissory note was undersecured; specifically, $7,210.72 of the promissory note was unsecured by the mortgage.

      . On October 23, 2006, the St. James Parish Sheriff filed its Notice of Seizure to Charmaine B. Richardson with the Clerk of Court for St. James Parish.

      . We also note that Richardson's Petition for Nullity was filed under the same district court number as the executory proceedings. Traditionally, Louisiana appellate courts have imposed a requirement that an action for nullity based on fraud or ill practices be brought in an ordinary proceeding, rather than collaterally in a summary proceeding. Charia v. Mungoven, 550 So.2d 939 (La.App. 5th Cir.1989); Ledford v. Pipes, 507 So.2d 9 (La.App. 2d Cir.1987). That rule is reflected in Official Revision Comment (d) to La. C.C.P. art. 2004, which states as follows: "No specific provision has been made regarding the manner of asserting the grounds of nullity in the above article. This was thought unnecessary in view of the established jurisprudence to the effect that such grounds must be asserted in a direct action and cannot be raised collaterally.” However, the First and Fourth Circuits have declined to apply the strict rule requiring that an action for nullity based on fraud and ill practices be brought in a separate proceeding. See Roach v. Pearl, 95-1573 (La.App. 1 Cir. 5/10/96), 673 So.2d 691; Gazebo, Inc. v. City of New Orleans, 97-2769 (La.App. 4 Cir. 3/23/98), 710 So.2d 354; Succession of Schulz, 622 So.2d 693 (La.App. 4th Cir.1993); Zatzkis v. Zatzkis, 632 So.2d 307 (La.App. 4th Cir.1993). Because Richardson failed to specifically allege fraud in his Petition to Annul, we need not reach that issue in this case.