author: BROWN, C.J. STEWART, J.,

text:
    Betty Jo H. WRIGHT, Individually and as Natural Tutrix on behalf of the Minor Child, Peter B. Wright, and as Administratrix of the Estate of Ned D. Wright, and Ned D. Wright, Jr., Plaintiffs-Appellants v. LOUISIANA POWER & LIGHT, Mercedes-Benz of North America, Inc., and Daimler-Benz Aktiengesellschaft, Defendants-Appellees Betty Jo H. Harris, a/k/a Betty Jo H. Wright, Individually and as Natural Tutrix on behalf of the Minor Child, Peter B. Wright, and as Administratrix of the Estate of Ned D. Wright, and Ned D. Wright, Jr., Plaintiffs-Appellants v. Daimlerchrysler Aktiengesellschaft, formerly known as Daimler-Benz Aktiengesellschaft and Mercedes-Benz USA, LLC., formerly known as Mercedes-Benz of North America, Inc., Bernard, Cassisa, Elliott & Davis, and Carroll, Burdick & McDonough, LLP, Defendants-Appellees.
    Nos. 40,636-CA, 40,637-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 2006.

      Leger & Mestayer, by Michael J. Mes-tayer, New Orleans, Davenport, Files <& Kelly, by Michael J. Fontenot, Monroe, for Appellants.
    McGlinchey Stafford, PLLC, by Colvin G. Norwood, Jr., Gary G. Hebert, New Orleans, Hayes, Harkey, Smith & Cascio, LLP, by Thomas M. Hayes, III, Monroe, for Appellees.
    Before BROWN, WILLIAMS, STEWART, GASKINS and PEATROSS, JJ.
   BROWN, C.J.

11 Shortly after midnight on October 16, 1988, Ned D. Wright, a Monroe attorney, was killed in a one-vehicle accident. Wright, who was driving, had just left a local bar and had a blood alcohol level of 0.19%. Wright’s death launched almost two decades of litigation by Wright’s family primarily against Daimlerchrysler Ak-tiengesellschaft, formerly known as Daimler-Benz Aktiengesellschaft, and Mercedes-Benz USA, LLC., formerly known as Mercedes-Benz of North America, Inc. (hereafter referred to as “Mercedes-Benz”). Plaintiffs claimed that the death of Ned Wright was caused by deficiencies in the design and construction of Wright’s 1982 Mercedes-Benz 380SL vehicle. In April of 2000, a jury found in favor of all defendants. The case was settled on appeal.

The case now before this court was filed in December 2003. Plaintiffs then filed against Mercedes-Benz and its attorneys, Carroll, Burdick & McDonough of California and Bernard, Cassisa, Elliott & Davis of Louisiana, for “DAMAGES AND FOR EQUITABLE REMEDY NULLIFYING JUDGMENT AND ORDERING NEW TRIAL BASED UPON FRAUD OR ILL PRACTICES AND SPOLIATION OF EVIDENCE.” They also filed a separate rule to show cause to declare the judgments null and to order a new trial. The two actions were consolidated. Apparently, prior to trial of the original lawsuit, the attorneys for Mercedes-Benz had obtained possession and ownership of Wright’s vehicle; however, this was not disclosed to plaintiffs, the court, or even to defendant’s experts.

Exceptions of no cause of action and prescription and a motion for summary judgment were filed by defendants claiming that: 1) plaintiffs pled no facts supporting a finding that defendants owed them any duty to l2disclose; 2) plaintiffs could not meet the requirement of diligence as they did not exhaust obvious possibilities to find the vehicle; 3) because plaintiffs had earlier stated that the vehicle was irrelevant, its availability would not have changed the outcome of the trial; and 4) plaintiffs’ claims were untimely and had prescribed. The trial court agreed with all four propositions.

In a written opinion, the trial court granted the exceptions of no cause of action and dismissed plaintiffs’ case with prejudice. The court did not mention the alternative motion for summary judgment in its written opinion; however, in a standardized form entitled “Expedited Out Of Court Judgment,” the court sustained defendants’ exception of no cause of action, motion for summary judgment, exception of prescription and dismissed the action with prejudice. The trial court refused plaintiffs an opportunity to amend their petition relative to the exceptions of no cause of action and the issue of prescription. The court also refused to permit plaintiffs an opportunity to conduct any discovery before deciding the motion for summary judgement. This appeal followed. For the reasons set forth below, the judgment of the trial court is reversed, and the matter is remanded for further proceedings consistent with this opinion.

Facts

The underlying litigation arose out of an accident which occurred on October 16, 1988. Shortly after midnight, Ned Wright, an attorney, with a blood alcohol level of 0.19%, left the Sixth Street Bar and Grill in Monroe with his wife, Betty Jo Wright, in their Mercedes. Neither husband nor wife | ^buckled up their seatbelts. After driving two blocks, Wright drove the Mercedes over the left-hand curb, off the road, and up a guy-wire anchoring a light pole. The vehicle overturned. Wright was partially ejected from the Mercedes and died of asphyxiation as a result of the crash. Mrs. Wright survived the crash.

Within two days of the accident, Mrs. Wright, with the approval of her attorney, sold the Mercedes to Steven Taylor in Monroe for $11,455. Taylor paid by a check dated November 30, 1988. During the next year and a half, Taylor removed and replaced all of the Mercedes’ damaged parts, including the windshield frame (i.e., the A-pillars) above the beltline, the left front fender, the headlight assembly, and the left door. Taylor sold the repaired Mercedes in Texas in February 1990.

On October 23, 1989, plaintiffs propounded a request for production. Specifically, plaintiffs asked defendants to produce any evidence it had that was “retrieved from the accident site” or “taken from the vehicle.” Defendants responded on December 8, 1989, informing plaintiffs that it did not retrieve anything from the accident site or take anything from the vehicle. It is undisputed that at this time defendants’ discovery answer was correct.

Defendants filed a motion alleging that plaintiffs spoliated evidence by selling the vehicle to a person who would undoubtedly replace all of the Mercedes’ damaged parts, particularly, the A-pillars which were alleged to be defective. The trial court denied this motion. In opposing the spoliation |4motion, plaintiffs argued that defendants’ motion should be denied because defendants had waited until 1991 to ask plaintiffs for the Mercedes.

On June 31, 1998, defendants fried a second spoliation motion, claiming that plaintiffs had allowed the A-pillars to be destroyed. Again, plaintiffs opposed the motion, arguing that defendants could have inspected the A-pillars if they had acted quicker. While this motion was pending, on November 23, 1998, defendants informed the court and plaintiffs that the Mercedes had been tracked to Texas.

The trial court denied defendants’ second spoliation motion on August 23, 1999. Earlier, on March 1, 1999, Timothy Smith, an attorney for defendants, had purchased the Mercedes in Texas from Meredith Mi-senhelter and confirmed that the A-pillars had been removed. Smith did not transfer title to himself, but his name is on the bill of sale. This information was never disclosed to plaintiffs or the court.

Following the trial, plaintiffs allegedly searched the public DMV records for information about the Mercedes using the Vehicle Identification Number (VIN) and eventually, in 2003, learned of defendants’ purchase of the Mercedes. The present petition and rule was then filed in December 2003.

The trial court noted the following undisputed facts. Plaintiffs had full custody and access to the vehicle before they ever filed suit. Plaintiffs intentionally sold the vehicle knowing full well that it would be repaired. Plaintiffs twice argued against defendants’ spoliation motions, taking the position that the actual Mercedes and parts were irrelevant. Defendants | fjinformed plaintiffs that the Mercedes was in the Texas area in 1998; and plaintiffs made no effort to locate the vehicle until after the trial.

Considering the above facts, the trial court found that plaintiffs did not display the degree of industry, perseverance, care, and/or resourcefulness contemplated by the higher authorities in cases such as these, citing Gladstone v. American Automobile Association, Inc., 419 So.2d 1219 (La.1982).

As to the second question of duty to disclose, the trial court noted C.C.P. art. 1428(2), and concluded:

An examination of the response to [Request For Production] #20 finds same to have been true at the time it was provided and it stayed “true” throughout the proceedings because Defendant never retrieved [anything] from the accident site involved nor did Defendant take [anything] from the vehicle in question following the death of Ned D. Wright. However, the overall circumstances must still be evaluated.

The court concluded that defendants’ failure to inform plaintiffs of their purchase of the Mercedes was not, in substance and under the circumstances, a knowing concealment, because defendants informed plaintiffs that they were tracking the Mercedes, and plaintiffs made no effort at all to locate the Mercedes until after the case had been settled on appeal.

Finally, the trial court granted defendants’ exception of prescription as it found that more than one year had passed since the judgment of the original cause and found that plaintiffs’ petition contained only eonclusory language as to when the plaintiffs first learned of the possible “fraud or ill practices” committed by defendants.

| ,⅜Discussion

Peremptory Exception of No Cause of Action

In reviewing a trial court’s ruling on a peremptory exception of no cause of action, the appellate court should conduct a de novo review because the exception raises a question of law,' and the trial court’s decision is based only on the sufficiency of the petition. Short v. Short, 40,136 (La.App. 2d Cir.09/23/05), 912 So.2d 82.

C.C.P. art. 934 states:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed.

The trial judge, in his reasons for judgment, stated that it had been over a year since the conclusion of the original case, and that plaintiffs’ “eonclusory” statement that they “first learned of the possibility of the above recited fraud or ill practice less than one year from the date of the filing of this petition” should not be sufficient to overcome a plea of prescription.

It may be presumed that, given the chance to amend their petition, plaintiffs would state with more accuracy the time and manner that they first discovered or had reason to investigate the supposed act of fraud or ill practice. Given the mandatory language of C.C.P. art. 934, we find that the trial court committed error in not giving plaintiffs leave to amend their petition.

|7We also find that the other reasons given in granting the exception of no cause of action, i.e., due diligence, no duty to disclose, and that the disclosure would not have changed the outcome, are applicable to the summary judgment motion and not the exception of no cause of action. Certainly, these matters were factually pled and must be accepted as correct in deciding a no cause of action exception. Edmonds v. City of Shreveport, 39,893 (La.App. 2d Cir.08/31/05), 910 So.2d 1005.

Motion for Summary Judgment

A motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B. Summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.07/07/99), 739 So.2d 191. After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966 C(l).

The mover may point out to the court that there is an absence of factual support for one or more elements essential to the plaintiffs claim. The burden then shifts to the plaintiff who must demonstrate that he has evidence which, if believed, would support the essential elements of his Lclaim. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.09/08/99), 744 So.2d 606. Mere speculation is not sufficient. Babin v. Winn-Dixie La. Inc., 00-0078 (La.06/30/00), 764 So.2d 37. Appellate review of a grant or denial of summary judgment is de novo. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 (La.02/29/00), 755 So.2d 226; Belt v. Wheeler, 36,585 (La.App. 2d Cir.12/18/02), 833 So.2d 1256; McEachern v. Mills, 36,-156 (La.App. 2d Cir.08/16/02), 826 So.2d 1176.

We find defendants’ argument that their answer to the motion to produce was correct and that they had no duty to disclose to be specious. Defendants consciously hid the fact that they had the car. Whether an examination of the car could have benefited plaintiffs’ case is unknown. Clearly, C.C.P. art. 1428(2) imposed a duty on defendants to amend their prior response to discovery requests.

Plaintiffs argue that their accident reconstruction expert, Dr. Rudy Limpert, was criticized by the defense during trial for not producing detailed drawings or tests of the accident sequence, a failure, the expert explained, which resulted from a dearth of “physical evidence” available for his inspection. Plaintiffs further contend that, had Dr. Limpert had access to the Mercedes, plaintiffs could have effectively negated the testimony of the primary defense expert with respect both to the mechanism and severity of the accident.

Further, plaintiffs list many issues of contested fact about which discovery was sought and denied before the hearing on the motion for a summary judgment. These discovery requests center around the Mercedes | ¡¡while it was in the control of defendants, such as who examined the vehicle, whether any photographs were taken of the vehicle, the welding quality of the A-pillars, whether any expert conclusions were made after an examination of the vehicle, and other similar questions.

It is clear that there are genuine issues of material fact surrounding the Mercedes while it was in the custody of defendants. It is equally apparent that refusing any discovery prior to the granting of the motion for summary judgment is violative of the directive of La. C.C.P. art. 966 C(l).

Conclusion

For the reasons set forth above, the trial court’s judgments denying plaintiffs, Betty Jo Wright and the heirs of Ned Wright, the opportunities to amend their petition and to conduct discovery pursuant to La. C.C.P. art. 966 C(l), are reversed. Further, the granting of exception of no cause of action and summary judgment are also reversed, and the matter is remanded for further proceedings consistent with this ruling. Costs of this appeal are to be borne by defendants.

REVERSED AND REMANDED.

STEWART, J., dissents with written reasons.

STEWART, J.,

dissents.

hi must respectfully dissent. The trial court was correct in sustaining the defendants’ exception of no cause of action and motion for summary judgment in this nullity action brought by plaintiff.

There was no fraud or ill practices in the instant case regardless of the fact that defendants did not disclose to plaintiff that they had acquired the subject Mercedes until shortly before trial. The plaintiff had every opportunity to conduct any discovery needed on the Mercedes in 1988 when it was in the custody of Mrs. Wright, who with the blessing of her attorney, sold the vehicle to Steven Taylor. Plaintiff was aware of the location of the vehicle for the next year and a half while it remained in the possession of Mr. Taylor, yet she sought no inspection or discovery of the vehicle.

In 1998 the defendants notified the plaintiff of the name of the owner of the vehicle in Texas. The record further reveals that the defendants did not come into possession of the car until 1999 when it purchased the vehicle from the owner in Texas to confirm that the A-pillars had been removed following the initial accident. The plaintiff had over a decade of unfettered access to the subject vehicle and specifically chose not to conduct any discovery, nor did it at any time attempt to locate the car. The fact that the defendants purchased the subject vehicle and sent it to salvage after determining that the A-pillars had been removed ten years earlier by Mr. Taylor, as per his deposition testimony, is of no moment.

1 ¡.Judge Sharp correctly found that the defendants had no duty to make this disclosure ; that the plaintiff had not diligently pursued the undisclosed evidence; and that the plaintiff had not shown that the nullity action was filed within one year of her discovery of the alleged fraud or ill practice.

When the plaintiff made its initial discovery request on October 23, 1989, to Mercedes seeking “tangible evidence retrieved from the accident site” or “taken from the vehicle in question” Mercedes truthfully responded that it has no evidence responsive to this request. In fact at the time of this request, plaintiff was aware that the vehicle was still in the possession of Mr. Taylor, who had already removed and discarded the entire windshield frame, including the A-pillars.

The claim of fraud or ill practices is simply unsupported by the record. The defendants had no duty to disclose their acquisition of the vehicle. It is the plaintiffs lack of diligence and deliberate decision to not seek the vehicle in question as a part of its trial strategy that gave rise to the instant case. Thus, I must dissent.

      . The lack of professionalism by the defendants does not rise to the level of a finding of legal error or fraud or ill practices.


source: Caselaw Access Project

author: AMY, Judge. PICKETT, Judge,

license: Public Domain

text:
    Vinson P. McNAB, et ux. v. Jimmy BLANTON, et al.
    No. 2005-1200.
    Court of Appeal of Louisiana, Third Circuit.
    April 19, 2006.
    Philip A. LeTard, Vidalia, LA, for Plaintiffs/Appellees, Vinson P. McNab, Melissa McNab.
    J.W. Seibert, III, Vidalia, LA, for Defendant/Appellant, Jimmy Blanton, Custom Concrete Designs.
    Court composed of MARC T. AMY, ELIZABETH A. PICKETT, and J. DAVID PAINTER, Judges.
   AMY, Judge.

_JjThe plaintiff filed suit against the defendant seeking damages for unwork-manlike performance in constructing a concrete pool deck. The defendant was personally served but failed to make an appearance of record. A preliminary default was entered and subsequently confirmed, wherein a judgment was entered against the defendant. The defendant thereafter filed an exception of vagueness and a motion for a new trial. After a hearing, the motion for new trial was denied. The defendant appeals this ruling. For the following reasons, we affirm-.

Factual and Procedural Background

The record indicates that the plaintiffs, Vinson and Melissa McNab, entered into a contract with the defendant, Jimmy Blan-ton, individually, and d/b/a Custom Concrete Designs, to construct a concrete pool deck. After the deck was completed, the plaintiffs alleged that there were several defects with the deck and that their pool was damaged from the construction of the deck. According to Mrs. McNab, Mr. Blanton’s failure to remedy the problems prompted her to institute this suit. In her petition, Mrs. McNab seeks damages for Mr. Blanton’s “fail[ure] to supervise crew properly to prevent the damages to Plaintiffs property; failfure] to exercise the care of an ordinary prudent business owner; failure] to see what he should have seen, fail[ure] to do what he should have done under the circumstances; and fail[ure] to correct the problems with the job.”

The record indicates that Mr. Blanton was served on October 6, 2004. Mrs. McNab stated that because Mr. Blanton did not timely file an answer, she sent a letter to the Clerk of Court’s office asking it to enter a default judgment against him. According to the record, the default judgment was entered on October 25, 2004, | asixteen days after Mr. Blanton was served with the petition. Before confirming the default judgment, Mrs. McNab testified that she checked with the Clerk of Court’s office to see if Mr. Blanton had filed an answer or a responsive pleading. He had not; therefore, Mrs. McNab confirmed her default judgment on October 28, 2004, and judgment was entered against Mr. Blanton in the amount of $6,502.77.

After receiving notice of judgment, Mr. Blanton filed an exception of vagueness on November 3, 2004. The next day he filed a motion for a new trial. Following a hearing, the motion was denied. It is from this judgment that Mr. Blanton appeals, asserting the following assignments of error:

1. The trial court erred in denying Appellant’s Motion for New Trial by abusing its discretion in not reviewing and considering, in a proper manner, all circumstances which contributed to Appellant’s responsive pleading not being filed prior to the confirmation of the default judgment, and especially in light of general policy considerations weighing in Appellant’s favor to allow him his day in courtf.]
2. The trial court erred in denying Appellant’s Motion for New Trial in failing to properly consider the lack of veracity in Appellees’ testimony to the effect that although she checked her post office box in Jones-ville, Louisiana every day the week of October 25, 2004 through October 29, 2004, she did not actually receive the properly addressed correspondence and a copy of the Appellant’s exception of vagueness until four days after it was mailed from Vida-lia, Louisiana!.]
3. The trial court erred in denying the Appellant’s Motion for New Trial in accepting and failing to scrutinize improper legal arguments made by Appellee’s counsel at the hearing on the Motion for New Trial, and which arguments were advanced without notice to Appellant’s counsel through the proper advance filing of a memorandum in opposition to the Motion for New Trial.

| .-¡Discussion

Motion for New Trial

Mr. Blanton argues, in his brief submitted to this court, that under La.Code Civ.P. art. 1973, a new trial should have been granted because there are good grounds therefor. He contends that due to policy considerations and the particular circumstances of this case, the default judgment should be set aside, and a new trial should be ordered to allow him his day in court.

Louisiana Code of Civil Procedure Article 1973 states “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.” In Crumb v. Bank One Corp., 35,-990, pp. 10-11 (La.App. 2 Cir. 5/8/02), 817 So.2d 1187, 1193, the court explained:

In reviewing the denial of a motion for a new trial after proper confirmation of a default judgment, the reviewing court must be particularly cautious in examining the circumstances underlying the judgment. Thibodeaux v. Burton, 538 So.2d 1001, (La.1989); Lamb v. Lamb, 430 So.2d 51 (La.1983); Hickman v. Wm. Wrigley, Jr. Co., Inc., 33,896 (La.App. 2d Cir.10/04/00), 768 So.2d 812. The trial court has much discretion in determining if a new trial is warranted, and its ruling cannot be set aside except in a case of a manifest abuse of that discretion or where the facts convince the reviewing court that a miscarriage of justice would result. Lamb, supra; Hickman, supra. The trial court’s denial of new trial will not be disturbed on appeal even though the defendant may assert in his motion for a new trial that he has a meritorious defense. Carroll v. Coleman, 27,861 (La.App. 2d Cir.1/24/96), 666 So.2d 1264, supra. Additionally, the mere failure to file an answer, without more, is not adequate grounds to grant a new trial. Lamb, supra; Carroll v. Coleman, supra.

In the instant case, Mr. Blanton was personally served on October 6, 2004. At the hearing on the motion for a new trial, Mr. Blanton testified that because of his illness, he was not able to go to the office of his attorney, Mr. Seibert, before October 20, 2004. He stated that Mr. Seibert told him that he “would file something to slow this down.”

| ¿Ms. Kimberle’ Millican, Mr. Seibert’s legal secretary, testified that after Mr. Blanton left the office, Mr. Seibert told her to file exceptions to two lawsuits. She stated that she prepared the exceptions that day, but because they had not been signed by Mr. Seibert, they were not mailed. Ms. Millican testified that when she returned to work on Monday, October 25, 2004, Mr. Seibert asked her why the exceptions had not been mailed. After he signed them, Ms. Millican “immediately prepared, proceeded to make copies and preparefd] the envelopes and [put] them in the envelopes.” She testified that she “prepared the transmittal letters to the clerk and the envelopes, hindsight, [she] inadvertently put the Judge’s post office box instead of the Clerk of Court’s post office box, but it was addressed to the Clerk of Court.” The exception was also sent to Mrs. McNab at her post office box in Jonesville, Louisiana.

According to Ms. Millican, on October 25, 2004, the exceptions were mailed. She testified that generally if something is mailed from Vidalia, Louisiana, it “goes to Alexandria and then comes to Harrison-burg, and it usually takes two days.” When asked whether Mr. Seibert had ever fax filed anything when a filing date was quickly approaching, Ms. Millican responded affirmatively as she remembered him fax filing a document on a previous occasion.

At the hearing, Mrs. McNab testified that she checked her post office box every week day on her way home from work in case she received any responsive pleadings from Mr. Blanton. When she did not receive anything from him fifteen days after he was personally served, Mrs. McNab sent a letter to the Clerk of Court’s office asking that a default judgment be entered against Mr. Blanton. The preliminary default was entered on October 25, 2004. On October 28, 2004, Mrs. McNab went to the Clerk |sof Court’s office to check for any responsive pleadings that it may have received from Mr. Blanton. Nothing was in the file, so Mrs. McNab presented her evidence to the trial court, and the default judgment was confirmed. Mrs. McNab testified that she did not receive the exception of vagueness until October 29, 2004.

According to Mr. Blanton, he received a Notice of Judgment dated October 28, 2004, which was the first indication to him that a judgment had been rendered. He “thought [the suit] had just been postponed.” Mr. Blanton testified that he showed the notice to Mr. Seibert, who did not admit any mistakes at that time but simply stated that he would check into it and see what the problem was. Mr. Blan-ton stated that Mr. Seibert “explained to [him] what had got misplaced in the mail or had got to the wrong box or something by mistake.”

On November 3, 2004, Mr. Seibert called Judge Kathy Johnson’s office and spoke with her secretary, Ms. Julie Colclasure, to ascertain whether the exception was in the judge’s mail. Although the exception was mailed to the judge’s post office box, it was addressed to Janet Payne, the Clerk of Court for Catahoula Parish. Ms. Colclas-ure testified that she took the exception and its envelope down to the Clerk of Court’s office and filed it that same day. She confirmed that this was not the first time that she had spoken with Mr. Seibert after he had mailed something to the judge before sending it to the Clerk of Court’s office for filing. However, she explained that this instance was different “because normally Mr. Seibert would send it to attention to one of the judges, and that one is attention to Janet Payne.”

On November 4, 2004, Mr. Seibert filed a motion for new trial on the grounds that “through inadvertence and clerical error, the dilatory exception of vagueness forwarded to Catahoula Parish was improperly addressed to the Clerk of Court at P.O. IfiBox 600, Harrisonburg, LA 71340, instead of P.O. Box 654, Harrisonburg, LA 71340.” The hearing on the motion for new trial was held on May 12, 2005. In denying the motion, the trial court stated:

The court notes on the petition that was filed, although it was filed in proper person, following the signature there is given a telephone number and also a mailing address number wherein the plaintiff can be contacted.
And apparently, the attorney failed to do that even though this was a petition for damages, and it was being filed and there was only one other day left before the 15 days were up. I think that the fact that this exception did not get filed until November the 3rd is an indication that there was just a complete overlooking of the need for diligence in this matter.
There should have been a contact between the attorney and the plaintiff in this particular matter, and if she had failed to grant an extension of time for the answering, I’m sure one of the judges would have done that exactly. The Motion for New Trial is therefore denied.

In Succession of Rock v. Allstate Life Insurance Company, 340 So.2d 1325, 1329 (La.1976) (citing DeFrances v. Gauthier, 220 La. 145, 55 So.2d 896 (1951), the supreme court stated that “[h]e who seeks to have a default judgment against him set aside must allege and prove that he had good reasons for his nonappearance and failure to timely plead.” In the instant case, Mr. Blanton asserts that the answer was not timely filed due to “happenstance.” In his brief submitted to this court, he contends that had the exception been properly addressed when it was mailed on October 25, 2004, it would have made it to the Clerk of Court’s office two days later on October 27, 2004, the day before the default judgment was confirmed.

According to Ms. Millican, after the exceptions were mailed to Mrs. McNab and the Clerk of Court’s office, no further action was taken. Although she acknowledged that the “U.S. Mail is not always that responsible,” Ms. Millican admitted that she did not remember contacting the Clerk of Court’s office to see if 17they had received the exception. Furthermore, she stated that although she had fax filed documents for Mr. Seibert in the past, she did not do so this time. We also note, as the trial court did, that Mr. Seibert did not contact Mrs. McNab to ask for an extension of time to plead or seek a court order to extend the time to plead.

Mr. Blanton argues that in the interests of justice, a new trial should be ordered to allow him to have his day in court. After due consideration, “we can find nothing in this record to justify our giving any relief to the [defendant] on a finding that the trial court’s denial of a new trial was an abuse of discretion.” Strange v. Imperial Pools Inc., 520 So.2d 1039, 1042 (La.App. 3 Cir.1987), writ denied, 522 So.2d 565 (La.1988).

Because Mr. Blanton’s only excuse for failing to timely answer was “happenstance” or oversight, we find no abuse of the much discretion accorded to the trial court in its determination that there are no good grounds for granting a motion for new trial pursuant to La.Code Civ.P. art. 1973. As a result of this finding, we deem it unnecessary to address Mr. Blanton’s remaining assignments of error.

DECREE

For the foregoing reasons, we affirm the judgment of default in favor of the plaintiffs, Vinson and Melissa McNab. All costs of. this proceeding are assessed against the defendant, Jimmy Blanton, individually, and d/b/a Custom Concrete Designs.

AFFIRMED.

PICKETT, J., dissents and assigns written reasons.

PICKETT, Judge,

dissenting.

LI respectfully dissent. The majority finds that the defendants-appellants should be denied a trial because their attorney mailed the answer to the trial judge’s office and not the clerk of court, and that the trial court did not abuse its discretion in denying a motion for a new trial after learning of these facts. While I agree that there are no peremptory grounds for the granting of a new trial pursuant to La.Code Civ.P. art. 1972, I would find the trial court abused its discretion in failing to grant the new trial based on the circumstances in this case.

The supreme court in Lamb v. Lamb, 430 So.2d 51 (La.1983), held that a court must carefully examine the facts and circumstances of a case to determine if a motion for a new trial is properly granted or denied on discretionary grounds pursuant to Article 1973. In Lamb, 430 So.2d at 53, the supreme court stated:

With respect to cases, such as the one at bar, wherein a timely motion for new trial is denied after the proper confirmation of a default judgment, this court has been particularly cautious in examining the circumstances underlying the judgment due to the general policy consideration, weighing in the defendant favor, that every litigant should be allowed his day in court.

The evidence in this case clearly suggests that the failure to file an answer timely is due solely to the error of the defendant’s attorney. I would find that the defendants are entitled to a trial on the merits and reverse the judgment denying the motion for a new trial.

      . We note that Mr. McNab executed a power of attorney in favor of his wife, giving Mrs. McNab the legal authority to institute this suit on his behalf.

      . Prior to the filing of this appeal by the defendant, Mrs. McNab appeared pro se.


author: GENOVESE, Judge.

text:
    John David RACHAL, et ux. v. Jerry LUZADER, et al.
    No. 2005-1280.
    Court of Appeal of Louisiana, Third Circuit.
    April 19, 2006.
    Lewis O. Lauve, Jr., Alexandria, Louisiana, for Plaintiffs/Appellees, John David Rachal and Michelle Rachal.
    Henry H. Lemoine, Jr., Pineville, Louisiana, for Defendants/Appellants, Jerry Lu-zader and Annette Hodges.

      Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SYLVIA R. COOKS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Bln this case, Defendants appeal the trial court’s judgment in favor of Plaintiffs which held that a sale of Plaintiffs’ radiator business to Defendants had been perfected, and that Plaintiffs were entitled to the purchase price therefor. For the following reasons, we affirm in part, and reverse in part.

FACTS

Prior to May of 2002, Plaintiffs, John David Rachal (Rachal) and Michelle Ra-chal, were the owners of a radiator repair business known as Cenia Radiator Shop in Alexandria, Louisiana. Plaintiffs allege that in May of 2002, Rachal entered into an oral contract with Defendants, Jerry Luzader (Luzader) and Annette Hodges (Hodges), to sell the radiator repair business. When Rachal was not paid the agreed upon consideration of $15,000.00, Plaintiffs filed a Petition to Enforce Contract naming Luzader and Hodges as Defendants.

Defendants deny reaching an agreement with Rachal on the sale of Cenia Radiator Shop. Following the initial discussions regarding the sale of the radiator shop, Lu-zader learned that there were outstanding liens against the equipment and that there were state and federal taxes which were owed. When he learned of these encumbrances, Luzader alleges that he advised Rachal that he was no longer interested in purchasing the business. Plaintiffs then sued Defendants for the purchase price of the business.

Following a trial on the merits, the trial court found that a sale had been perfected between sellers, John David Rachal and Michelle Rachal, and buyers, Jerry Luza-der and Annette Hodges, and rendered judgment in favor of the Rachals for 12$15,000.00 against both Defendants. It is from this judgment that Defendants appeal.

ISSUES

The following issues are presented by Defendants for our review:

1. Whether the trial court erred in finding that John David Rachal sold the business known as Cenia Radiator Shop to Annette Hodges.
2. Whether the trial court erred in finding that John David Rachal and Jerry Luzader actually made an agreement for the purchase of the Cenia Radiator Shop business.

LAW AND ARGUMENT

Standard of Review

The standard of review to be applied in the present case is that of manifest error. This review by an appellate court may be summarized as follows:

Inasmuch as this appeal turns on factual determinations by the trial judge, we must review the record using the manifest error-clearly wrong standard of appellate review. That standard was recently reviewed by our supreme court in Cenac v. Public Access Water Rights Assn., 02-2660, pp. 9-10 (La.6/27/03), 851 So.2d 1006, 1023:
In civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard which precludes the setting aside of a trial court’s finding of fact unless those findings are clearly wrong in light of the record reviewed in its entirety. Rosell v. ESCO, 549 So.2d 840 (La.1989). A reviewing court may not merely decide if it would have found the facts of the case differently, the reviewing court should affirm the trial court where the trial court judgment is not clearly wrong or manifestly erroneous. Ambrose v. New Orleans Police Department Ambulance Service, 93-3099, 93-3110, 93-3112, p. 8 (La.7/5/94), 639 So.2d 216, 221.

Pecot v. Calcasieu-Cameron Hosp. Serv. Dist., 03-1102, p. 1 (La.App. 3 Cir. 2/18/04), 867 So.2d 56, 58, writ denied, 04-719 (La.5/7/04), 872 So.2d 1085.

Contract of Sale

Louisiana Civil Code article 2439 defines a sale as “a contract whereby a hperson transfers ownership of a thing to another for a price in money.” This article further provides that “[t]he thing, the price, and the consent of the parties are requirements for the perfection of a sale.” For the following reasons, we agree with the trial court that a contract for the sale of Cenia Radiator Shop was perfected between Rachal and Luzader. However, we find that Plaintiffs failed to prove that Hodges was a party to the contract.

The parties do not dispute that sometime in May of 2002, Luzader stopped by Cenia Radiator Shop and discussed a sale of the business with Rachal. It is also not disputed that the only individuals present during this conversation were Rachal and Luzader. Luzader testified that he had known Rachal for some time and knew that Rachal had been trying to sell the radiator shop. When Luzader was at the radiator shop, he asked Rachal what amount it would take to purchase the business. Luzader and Rachal agreed upon a purchase price of $15,000.00, which was to be paid in three equal payments, without interest. Therefore, in May of 2002, the three elements required for the perfection of the sale, i.e., the thing, the price, and the consent of the parties, were all agreed upon by Rachal and Luzader. There were no conditions or restrictions on the sale.

The subsequent actions of Luzader were consistent with a sale of Cenia Radiator Shop. As noted by the trial court, “[h]e went through with the agreement. He walked onto the premises. He used the equipment. He used the inventory.” Despite learning of the liens, “[ejverything Mr. Luzader did showed he agreed with the deal and he went through with the deal.” Though there were unknown and unexpected liens on the property, when called to the attention of Plaintiffs, they were timely paid out so as not to interfere with the sale to Luzader. By his actions and activity, Luzader agreed to buy the business and consummated the sale. Additionally, |4the trial court found that Luza-der lacked credibility. We find no showing of manifest error on the part of the trial court relative to this issue.

Based on the foregoing, we find that an oral contract for the sale of Cenia Radiator Shop was perfected between Luzader and Rachal. Given that Luzader failed to make any payment toward the sale price, the judgment in favor of Plaintiffs and against Luzader is affirmed.

Such is not the case with respect to Hodges. There was no reasonable factual basis, or supporting evidence in the record, to establish that Hodges was a party to the contract of sale. Rachal testified that he had spoken to Hodges about the sale of Cenia Radiator Shop prior to the meeting that he had with Luzader in May of 2002. According to Rachal, he advised Hodges that he was willing to sell the business to her and Luzader for $15,000.00. It was Rachal’s testimony that two or three days later, Luzader stopped by the shop to talk to him, and although Hodges was not present, “[he] took it they was [sic] together.” Notably, Rachal’s testimony is very clear that Hodges was not present at the radiator shop in the middle of May 2002 when Luzader and Rachal met and agreed to the terms of the sale. Rachal admitted that when this discussion occurred, and when the consideration of $15,000.00 was agreed upon, only he and Luzader were present. Hodges was neither present nor a part of the discussion relative to the sale of the business. Also noteworthy is the fact that nothing was signed or put in writing by anyone relative to the sale of this business.

Both Hodges and Luzader dispute the fact that Hodges was a party to the contract of sale. We find their testimony to be consistent. The most significant action taken by Hodges was the use of her home as collateral to assist Luzader in obtaining financing for the business. This action was taken months after the sale was perfected | ¡¡between the parties, and there was insufficient proof to establish that Hodges’ assistance in financing or helping out in the business was part of the agreement to sell Cenia Radiator Shop.

The trial court noted that Hodges was present and performed some work at the business. Hodges answered the telephone, swept the floors, paid some bills, and ordered inventory. While such actions do show that Hodges was working at the shop, these actions alone do not prove that she was a party to the contract of sale. According to the record, Hodges was Luzader’s girlfriend, and it is both reasonable and understandable that she would “help out” in the business. Hodges denied that she spoke to Rachal about the purchase of Cenia Radiator Shop before June 1, 2002, or that she ever entered into any agreement with anybody to purchase the business. She never had any contact, conversations, or negotiations with Rachal to purchase his radiator business. Hodges was not present at any of the discussions between Luzader and Rachal regarding the purchase of the business and never signed any sale documents. This evidence was wholly unrefuted by Plaintiffs, other than Rachal’s testimony that he originally spoke to Hodges and advised her of the sale price. Even assuming that such a conversation did occur between Rachal and Hodges, that certainly does not meet the requirements for a contract of sale.

Based on the foregoing, we find that the trial court erroneously concluded that Hodges was a party to the contract for the sale of Cenia Radiator Shop and erred in casting her in judgment for the sale price.

DECREE

For the reasons set forth above, we affirm the judgment of the trial court in favor of John David Rachal and Michelle Rachal against Jerry Luzader in the amount of $15,000.00, plus legal interest from the date of judicial demand until paid, and all | scosts of court. We reverse the judgment of the trial court in favor of John David Rachal and Michelle Rachal against Annette Hodges.

Costs of this appeal are assessed solely against the Defendant, Jerry Luzader.

AFFIRMED IN PART; REVERSED IN PART.

      . We note that John David Rachal and Michelle Rachal are both plaintiffs in the lawsuit; however, the parties refer to John David Rachal as the owner of Cenia Radiator Shop. Although this court recognizes the ownership interest of Mrs. Rachal, unless otherwise specified, for consistency, we will refer to Rachal as the owner of Cenia Radiator Shop.


author: KUHN, J. GAIDRY, J., GUIDRY, J.,

text:
    Emile L. SALLES, Jr. v. Annette Heidi Annemarie SALLES.
    No. 2004 CA 1449.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 2, 2005.

      Steve LeBlanc, Baton Rouge, Counsel for Appellee Janet Anne Salles Chenevert, Executrix of the Estate of Emile L. Salles, Jr.
    Vincent A. Saffiotti, Baton Rouge, Counsel for Appellant Annette Heidi Annemarie Salles.
    Before: CARTER, C.J., WHIPPLE, PARRO, KUHN, GUIDRY, PETTIGREW, DOWNING, GAIDRY, McDonald, McClendon, hughes, and WELCH, JJ.

      . This appeal was considered by the court ew banc after a majority of the original three judge panel recommended overruling a portion of a prior opinion of this court.

   KUHN, J.

pThis appeal involves a child support dispute. We have reviewed the trial court’s judgment denying petitioner’s claim for child support arrearages due under the terms of four deeds issued by the District Youth and Welfare Office of the District Government Heilbronn in Germany and made executory in this state. We have further reviewed, the trial court’s modification of respondent’s child support obligation. For the following reasons, we reyerse the trial court’s judgment, which found that respondent owed no, arrearages and no further child support upon modification of the German deeds. Furthermore, we render judgment awarding child support arrearages and establishing the child support obligation owed by respondent after he filed his petition for modification until his death.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner, Annette Heidi Annemarie Salles, a German citizen, and respondent, Emile L. Salles, Jr., a citizen of the United States and a resident of East Baton Rouge Parish, were married in 1985. Thereafter, Mr. and Mrs. Salles resided in Louisiana, and four children were born of their marriage between 1985 and 1991. Their children are citizens of both Germany and the United States. In March 1998, the Salles family traveled to Germany to visit relatives and to attend a wedding. Mrs. Salles decided to stay in Germany with the children, and she and [sMr. Salles separated on or about April 1, 1998. Mr. Salles returned to the United States at the end of April 1998.

Before Mr. Salles left Germany, Mrs. Salles filed a petition for separation with the District Court Heilbronn, Family Court, in Heilbronn, Germany, wherein she requested custody of the four minor children. Also-prior to leaving Germany, Mr. Salles filed a letter with the court acknowledging that the children would be better cared for in his wife’s custody. Pursuant to four separate deeds of the District Government Heilbronn, District Youth and Welfare Office, one addressing each child, Mr. Salles obligated himself in accordance with the German Code of Civil Law to guarantee the following monthly child support payments, beginning on May 1, 1998: 1) Rosanna Salles, 539 Deutsche Mark (DM) per month; 2) Lars Salles, 434 DM per month; 3) Dominik Salles, 434 DM per month; and 4) . Heidi Salles, 434 DM per month. The four deeds resulted in Mr. Salles’ total monthly child support obligation of 1841 DM per month (approximately $1,084.83 per month upon conversion of the DM to United States dollars).

Thereafter, by court order dated May 27, 1998, the German court determined that the children had legally established their habitual abode and residence in Germany, citing section one of the Hague Convention for the Protection of Minors. Based on the parents’ mutual agreement, the court awarded the parental care and custody of the children to Mrs. Salles.

|4In August 1999, Mr. Salles filed a petition for divorce in the Family Court for the Parish of East Baton Rouge. A judgment of divorce was granted in his favor on September 30,1999.

For a period of time, Mr. Salles paid his support obligation as set forth in the German deeds. Mrs. Salles alleges that, in August 1999, Mr. Salles fell into arrears. Although the United States Social Security Administration (“SSA”) had been paying social security benefits directly to the children since before the German deeds were executed, Mr. Salles began, in August 1999, offsetting the amount of his support payments by the amount that the children were receiving in benefits. In the months that followed, Mr. Salles either sent no payment, or he sent a partial payment that supplemented the social security benefits. By adding his payments to the social security benefits paid to the children, he calculated that he was satisfying his support obligation under the German deeds.

Mrs. Salles did not consider the amounts she received on behalf of the children in social security benefits as payment of child support. On October 8, 2003, Mrs. Salles filed a petition to enforce the German deeds. Mr. Salles responded by filing an answer and reconventional demand on November 4, 2003. He prayed for the East Baton Rouge Parish. Family Court to make the German deeds executory, but he denied, that he had violated the terms of the deeds. He further sought a reduction of his. support obligation based on his present income.

| ¡Rased on a stipulation of the parties, the trial court, by judgment dated January 27, 2004, made the German deeds executo-ry in the Parish of East Baton Rouge, State of Louisiana, “as if they had been a Judgment of this Court rendered in an ordinary proceeding.” A March 29, 2004 hearing was held to determine whether arrearages were due under the terms of the German deeds and to ' determine whether Mr. Salles’ support obligation should be modified.

By judgment dated April 15, 2004, the trial court denied Mrs. Salles’ claim for an arrearage judgment, finding Mr. Salles owed no arrearages' “as a result of social security benefits paid by the U.S. Government to the children during the time period specified.” The judgment further recalculated Mr. Salles’ support obligation and determined that he’ owed no additional child support. The judgment specified Mr. Salles’ monthly income was $1,373, Mrs. Salles’ monthly income was $900, Mr. Salles’ percentage^ share of the combined income was 55.5%, rounded up to 56%, and Mrs. Salles’ percentage share of the combined income was 44%. The judgment also set forth that the basic child support obligation was $868 per month, and the trial court added thereto $65 per month for health insurance maintained by Mrs. Salles. Based on these figures, the trial court ultimately concluded that Mr. Salles’ basic child support obligation was $522, and that “[bjecause the minor children receive social security benefits in the approximate amount of $780.00 per month, there should be no child support due and owing by [Mr. Salles] unto [Mrs. Salles].”

Mrs. Salles has appealed, urging the trial court erred in failing to award an arrearage judgment and in affording Mr. Salles a credit for social security benefits paid to the children. Alternatively, Mrs. Salles argues that the trial court erred in |finot holding Mr. Salles responsible for the difference between the initial child support order, which was approximately $1,084.83 per month, and the $780 per month social security benefit credit recognized by the trial' court. Further, Mrs. Salles argues that upon modifying the child support award, the trial court erred in finding that no support was due.

II. ANALYSIS

A. Arrearages

Mrs. Salles argues that the trial court erred by failing to award her an arrearage judgment in the amount of $58,786.81. During the proceedings below, Mr. Salles contested Mrs. Salles’ calculations, contending her calculations did not properly reflect a $22,000 child support payment and also did not reflect the social security benefits that the children received.

During the hearing, the parties disputed whether the $22,000 payment, dated April 30, 1998, was intended as a child support payment or an alimony payment. Because the trial court found Mr. Salles owed no arrearages, and our review of the record confirms that the amount of social security benefits received by the children was significantly less than Mrs. Salles’ total arrearages claim, the trial court apparently determined that Mr. Salles’ $22,000 payment was a child support |7payment. The trial court was presented with conflicting evidence regarding this point, and we find no manifest error in the trial court’s implicit conclusion that the payment was for child support. A court of appeal may not set aside a trial court’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

With respect to the social security benefits paid to the children by the SSA, Mrs. Salles asserts that Mr. Salles is not entitled to a credit against his child support arrearages for these benefits. She contends that to allow such a credit would constitute a collateral attack on the initial child support obligation established in the German deeds and made executory in this state. Mr. Salles, citing La. R.S 13:4242, responds that he is entitled to raise all of the defenses he would have raised if the suit had been originally filed in Louisiana.

Louisiana Revised Statutes 13:4242 provides in pertinent part:

The foreign judgment shall be treated in the same manner as a judgment of a court of this state. It shall have the same effect and be subject to the same procedures and defenses, for reopening, vacating, or staying as a judgment of a court of this state and may be enforced in the same manner.

Although this statute recognizes that a judgment in a foreign proceeding shall be treated in the same manner as a judgment of a court of this state, it does not authorize a collateral attack on the foreign judgment. A collateral attack is | sdefined as an attempt to impeach a decree in a proceeding not instituted for the express purpose of annulling it. Edwards v. Edwards, 99-994, p. 5 (La.App. 3d Cir.12/22/99), 755 So.2d 331, 334-35. As the Supreme Court stated in Allen v. Commercial Nat. Bank, 243 La. 840, 147 So.2d 865, 868 (1962), “No principle of law has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal, not void on its face ab initio.” “A judgment rendered by a Court of competent jurisdiction imparts absolute verity and has the force of things adjudged, unless and until it is set aside in a direct action of nullity. It cannot be collaterally attacked.” Edwards v. Edwards, 99-994 at p. 5, 755 So.2d at 334, quoting Price v. Price, 326 So.2d 545, 548 (La.App. 3d Cir.1976).

In the present case, Mr. Salles has neither directly attacked the validity of the German deeds nor the Louisiana judgment making the deeds executory. In fact, Mr. Salles has recognized the validity of the deeds and stipulated that the deeds were to be made executory. His attempt to now offset his obligation pursuant to the deeds by the amount of the social security benefits is a prohibited collateral attack.

Mr. Salles appeared before the clerk of court of the District Government Heil-bronn with his sister-in-law as a translator, and he agreed to the amounts set forth in the deeds. The evidence establishes that the children were receiving the social security benefits at the time the German deeds were executed. Accordingly, Mr. Salles had the opportunity to present the offset defense before the German tribunal, but he failed to do so. It is improper for us to now consider the merits of this defense with respect to Mrs. Salles’ enforcement of the German deeds. Thus, | flthe trial court improperly adjusted the child support obligation that had accrued before Mr. Salles filed his motion for modification.

For these reasons, we find that Mrs. Salles established she is entitled to a judgment awarding child support arrearages in the amount of $30,052.82. We derive this amount based on Mrs. Salles’ arrearage calculations at the beginning of November 2003, reduced by the $22,000 payment that she failed to reflect as a child support payment. Mr. Salles’ reconventional demand seeking modification of his support obligation was filed on November 4, 2003. We next address his support obligation that accrued after that date.

B. Modification of Support Judgment

Louisiana Revised Statutes 9:311 A provides, “An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award.”

Mr. Salles, who was seventy-six years old at the time of the hearing, sought a reduction in his child support obligation based on his decreased retirement income. Regarding the modification sought, Mrs. Salles neither challenges that |1nthere has been a material change in circumstances nor the amount of income that the trial court assigned to each party. She challenges, however, the correctness of the trial court’s mathematical calculations regarding the amount of the support obligation and, again, whether Mr. Salles is entitled to a credit pursuant to Louisiana Revised Statutes 9:315.7 for the social security benefits received by the children.

The record establishes that in recalculating the support obligation, the trial court made errors in its mathematical calculations in determining the combined, monthly, adjusted gross income of the parties and in determining each party’s percentage share of income. Accordingly, due to these errors, we recalculate the child support obligation owed by Mr. Salles after November 4, 2003, the date upon which he requested modification of his child support obligation.

Mrs. Salles’ monthly gross income was $900, and Mr. Salles’ monthly gross income was $1,373, resulting in a combined, monthly, adjusted gross income of $2,273. Based on this income and according to the child support schedule, the basic child support obligation for the Salieses’ four children was $812. La. R.S. 9:315.19. To that figure, we add the children’s health insurance premium cost of $65.

We further find the trial court did not abuse its discretion in determining that Mr. Salles was entitled to the benefit of a deduction based on the amounts received by the children in social security benefits from the date he requested the modification, November 4, 2003. Louisiana Revised Statutes 9:315.7 A states, L/Tncome of the child that can be used to reduce the basic needs of the child may be considered as a deduction from the basic child support obligation.” See Kelly v. Kelly, 99-2478, p. 8 (La.App. 1st Cir.12/22/00), 775 So.2d 1237, 1243, writ denied, 01-0234 (La.3/23/01), 787 So.2d 1001, wherein this court determined that the father of two minor children, who received social security benefits as a result of their father’s disability, was entitled to a credit for the amount of the benefits paid. Accordingly, in determining Mr. Salles’ child support obligation, the trial court was legally correct in allowing an appropriate deduction for the benefits received by the children. We next address the manner in which this deduction is to be applied.

Louisiana Revised Statutes 9:315.7 A directs that this deduction, when allowed by the court, should be subtracted “from the basic child support obligation.” When the Kelly court applied the deduction, however, it allowed the deduction as an offset against the father’s percentage share of the basic child support obligation:

[A]t the time of trial, Ms. Kelly’s gross monthly income was $3,282.78, Mr. Kelly’s gross monthly income was $1,315.95, and the combined gross monthly income of the two parties was $4,598.73, which results in a basic child support obligation of $1,012.00 per month for the two minor children.... Mr. Kelly’s share of the child support obligation ordinarily would be $293.48 per month or 29 percent. The sum of Social Security benefits being received by the minor children is $672.48. Mr. Kelly is entitled to a credit for the amount of Social Security benefits being paid to the minor children on his behalf, which completely offsets the amount owed by Mr. Kelly under the guidelines.... (Citations omitted.)

Kelly v. Kelly, 99-2478 at p. 8, 775 So.2d at 1242-43.

Based on this application of the deduction, the Kelly court found that the father owed no child support under the statutory guidelines based on this evidence |! ¡¡alone. We now recognize that the manner in which the deduction was applied is contrary to the directive of Louisiana Revised Statutes 9:315.7 A that a deduction for income of the child be taken “from the basic child support obligation.” Accordingly, we overrule that part of the Kelly decision that directs that the deduction be applied against only the percentage share of the basic child support obligation owed by the parent seeking the deduction.

We calculate Mr. Salles’ child support obligation, allowing a deduction from the basic child support obligation in the amount of the monthly social security benefits received by his children. When Mr. Salles requested the modification of his support obligation, his children were receiving monthly, in globo social security benefits of $768. Thus, we subtract this amount from the basic child support obligation pursuant to La. R.S. 9:315.7. Accordingly, we find that the total monthly child support obligation was $109 ($812 basic child support obligation, plus $65 for the children’s health insurance premium cost, minus $768 for the children’s social security income). Mr. Salles’ percentage share of the combined income was 60.4%, resulting in a monthly child support obligation of |1S$65.84 based on the obligation worksheet ($109 x 60.4%). See La. R.S. 9:315.20. Louisiana Revised Statutes 9:315.14 provides, in pertinent part, however, “In no event shall the court set an award of child support less than one hundred dollars.” Thus, we set Mr. Salles’ monthly child support obligation as of November 4, 2003, at $100.

III. CONCLUSION

For these reasons, we reverse the trial court’s judgment. We render judgment in favor of Mrs. Salles and against Janet Anne Salles Chenevert, as Mr. Salles’ legal successor, for arrearages in the amount of $30,052.82, with legal interest thereon from the date of judicial demand, October 8, 2003, until paid. We further render judgment in favor of Mrs. Salles and against Mrs. Chenevert, in her capacity as Mr. Salles’ legal successor, for $100 per month from the date of Mr. Salles’ requested modification, November 4, 2003, until his death on September 2, 2004. The legal interest due on these sums shall be calculated from the date that each monthly payment became due.

Costs of the appeal are to be paid by Mrs. Chenevert, in her capacity as Mr. Salles’ legal successor.

REVERSED AND RENDERED.

DOWNING, J., concurs.

GAIDRY, J., agrees in part and dissents in part for assigned reasons.

CARTER, C.J., agrees in part and dissents in part for the reasons assigned by GAIDRY, J.

HUGHES, J, dissents.

GUIDRY, J., dissents and assigns reasons.

GAIDRY, J.,

agreeing in part and dissenting in part.

1 ^though I agree with the majority’s decision to overrule Kelly v. Kelly, I disagree with the majority’s calculation of Mr. Salles’s final monthly child support obligation. Although Mr. Salles’s share of the monthly child support obligation was less than $100.00, the child support award was greater than $100.00; therefore, I do not agree that La. R.S. 9:315.14 requires us to increase Mr. Salles’s share of this award from $65.84 to $100.00. For that reason, I will dissent from that portion of the opinion calculating the final monthly child support obligation.

GUIDRY, J.,

dissenting.

hi disagree with the majority’s representation of the holding in Kelly v. Kelly, 99-2478 (La.App. 1st Cir.12/22/00), 775 So.2d 1237, writ denied, 01-0234 (La.3/23/01), 787 So.2d 1001, on the issue of the social security benefits paid to the children because of the disability of their father. Kelly does not state that the social security benefits received by the children due to the disability of their father constitutes “income of the child.” Actually Kelly simply states “Mr. Kelly is entitled to a credit for the amount of Social Security benefits being paid to the minor children on his behalf, which completely offsets the amount owed by Mr. Kelly under the guidelines.” Kelly, 99-2478 at 8, 775 So.2d at 1243. In fact, the way in which the social security benefits paid to the children on behalf of Mr. Kelly were applied in Kelly indicates that those monies were not deemed to be “income” of the children. I should also point out that the calculation'in Kelly was in conformance with how such benefits were applied in other cases, some of which were cited in the opinion. See Lamkin v. Flanagan, 37,911 (La.App. 2nd Cir.1/28/04), 865 So.2d 916, writ denied, 04-0808 (La.6/4/04), 876 So.2d 89; Faul v. Faul, 548 So.2d 957 (La.App. 3rd Cir. 1989); McCloud v. McCloud, 544 So.2d 764 (La.App. 3rd Cir.1989); Folds v. Lebert, 420 So.2d 715 (La.App. 4th Cir.1982).

Thus, the majority errs in indicating that Kelly holds that social security benefits received by a child due to the disability of a parent constitutes income of the child. Rather, a plain reading of Kelly is that a parent, on whose behalf the children are receiving social security benefits, may receive a credit against the amount of child support owed by that parent based on those benefits. As articulated in McCloud, the reasoning behind such an application has been:

If the sum directed to be paid by the father is paid by the government through Social Security benefits derived from the account of the father, the purpose of the order for support has been accomplished. The father is entitled to credit for such payments against his liability under the order. Since the child will receive the same amount of support ordered by the court, and which the court has decided the child should have, the source of the payment is of no consequence and it does not matter that the defendant is given credit for the payment made by another.
******
.. .we hold that credit should be given for Social Security payments made directly to the child when the obligor’s employment occasioned the benefits.

McCloud, 544 So.2d at 766-767.

Furthermore, the approach taken by the majority unfairly benefits Mrs. Salles by treating the social security payments as income of the child. The correct approach, which was taken in Kelly and by other courts, treats the social security benefits as a credit to the parent whose payments into the social security system and subsequent disability gave rise to the social security payments to the children. See also Pousson v. Pousson, 03-0111 (La.App. 3rd Cir.12/17/03), 861 So.2d 920, 922. Accordingly, I respectfully dissent from the majority’s opinion.

      . During the pendency of this appeal, Mr. Salles died on September 2, 2004, and upon the motion of his sister Janet Anne Salles Chenevert, who serves as the executrix of his estate, this court substituted her as Mr. Salles' legal successor. Uniform Rules — Court of Appeal Rule 2-9; La. C.C.P. art. 801.

      . The petition by Mrs. Salles was filed in the same record as the divorce petition that had been previously filed by Mr. Salles. Therefore, although the caption of this proceeding implies that Mr. Salles initiated this matter, Mrs. Salles is the actual petitioner.

      . Each deed that Mr. Salles executed set forth the basis for the support as a specified monthly obligation for each child, which was offset by a share of the German social contribution received on behalf of each child.

      .It is undisputed that the benefits paid by the SSA to the children were paid as a result of Mr. Salles’ contributions to the social security fund.

      . During the period of time for ’which Mrs. Salles claims arrearages, Mr. Salles deposited into an investment account bearing his name sums of money equal to the amounts that.the children received in social security benefits. He testified that he invested these funds for his children's education. This investment account was valued at $45,320.50 as of February 27, 2004.

      . According to Mr. Salles’ calculations, his payment of $22,000 in April 1998 resulted in a credit against his future support payments. Thus, although Mrs. Salles asserts Mr. Salles owed arrearages beginning in August 1999, Mr. Salles’ calculations reveal a credit in his favor as of August 1999 due to his classification of the $22,000 payment as a child support payment.

      . With respect to the social security benefits paid to the children by the SSA, Mr. Salles introduced a chart listing these payments, but he did not provide certified documents from the SSA establishing the amounts paid. Although Mrs. Salles alleges that Mr. Salles has not proven the amount of social security benefits that was paid to the children, she admits that the children received social security benefits during the time period in question, and she does not challenge the specific numbers provided by Mr. Salles.

      . Mrs. Salles calculated that Mr. Salles owed 84,187.84 DM in arrearages when he sought modification of his support obligation. Based on the applicable conversion rate of 1.617354 as of the hearing date, we calculate the amount of arrearages claimed by Mrs. Salles was $52,052.82. We reduce this figure by the $22,000 child support payment.

      . Louisiana Revised Statutes 9:315.21 C provides, "Except for good cause shown, a judgment modifying or revoking a final child support judgment shall be retroactive to the date of judicial demand, but in no case prior to the date of judicial demand.”

      .Louisiana Revised Statutes 13:1401 A(l) provides that the Family Court for the Parish of East Baton Rouge has exclusive jurisdiction over "all actions for ... spousal and child support ... as well as of all matters incidental to any of the foregoing proceedings .... ” Neither party has established that the Family Court in Germany has continuing, exclusive jurisdiction under the Uniform Interstate Family Support Act, La. Ch.C. art. 1302.1 et seq.

      . The parties do not dispute that Mrs. Salles was paying $65 per month for the children's health insurance premiums.

      . The Kelly court found the trial court had failed to provide reasons to support its deviation from the guidelines with respect to a personal injury settlement received by the father when it ordered the father to pay monthly child support. Accordingly, the Kelly decision set aside the trial court’s judgment as it related to the father's child support payment and remanded the matter for further proceedings during which the trial court was ordered to provide specific reasons for any deviation from the child support guidelines. Kelly v. Kelly, 99-2478 at pp. 8-11, 775 So.2d at 1243-44.

      . If the Kelly court had deducted the amount of the social security benefits from the basic child support obligation as directed by Louisiana Revised Statutes 9:315.7 A rather than from Mr. Kelly's percentage share of the basic child support obligation, the court would have found, absent any deviation determined to be appropriate by the trial court, that Mr. Kelly owed $98.46 in monthly child support based on then applicable statutory guidelines. See former Louisiana Revised Statutes 9:315.14 and former Louisiana Revised Statutes 9:315.15, before they were amended and reenacted as Louisiana Revised Statutes 9:315.19 and 9:315.20, respectively, pursuant to 2001 La. Acts, No. 1082, § 1.


author: McCLENDON, J.

text:
    Timothy MELANCON v. Karen Henderson MELANCON.
    No. 2004 CA 2569.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.
    Writ Denied May 5, 2006.

      David R. Paddison, Covington, Counsel for Plaintiff/Appellee Timothy Melancon.
    Christine O’Brien Lozes, Covington, Philip E. Henderson, Houma, Counsel for Defendant/Appellant Karen Henderson Melancon.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

| aThis case involves the classification of certain stock options arising from the employment of plaintiff, Timothy Melancon, and acquired by him during his marriage to the defendant, Karen Henderson Melan-con (now Karen H. Phayer). Ms. Phayer appeals the judgment of the trial court classifying only those segments of the stock options that had vested at the time of the dissolution of the community as community property. For the following reasons, we affirm in part, reverse in part, and render.

FACTS AND PROCEDURAL HISTORY

Mr. Melancon and Ms. Phayer were married on December 22, 1984. Mr. Me-lancon filed a petition for divorce on March 25, 1998, and a judgment of divorce was entered on January 19, 1999. Thus, the community property regime between Mr. Melancon and Ms. Phayer was in existence from December 22, 1984 to March 25, 1998.

On June 28, 2002, Ms. Phayer filed a petition to partition the community property pursuant to LSA-R.S. 9:2801. The trial on the partition was set for March 18, 2004, at which time the parties stipulated and agreed to a partition of all community property with the exception of two stock options. A consent judgment of partial partition was signed on May 24, 2004. A hearing on the remaining issue was held on May 24, 2004. On June 24, 2004, the trial court issued written reasons for judgment in which it classified as community property only those segments of the stock options that had fully vested prior to the termination of the community. Judgment was signed on July 28, 2004, and Ms. Phayer appealed.

Mr. Melancon began employment with Agouron Pharmaceuticals, Inc. on December 23, 1996. As an incentive to continue employment with|sAgouron, Mr. Melancon received Agouron Stock Option Grant No. 1432 and Agouron Stock Option Grant No. 1447. Stock Option No. 1432 was granted to Mr. Melancon on December 23, 1996, and provided for a total of 3,000 shares in four segments. The first 750-share segment was exercisable on December 23, 1997 and the remaining three 750-share segments vested on December 23 of the years 1998,1999, and 2000. The vesting of each segment was contingent on Mr. Me-lancon’s employment with the company on the scheduled vesting date. Stock Option No. 1447 was granted on January 6, 1997, and also provided for a four-year vesting schedule for 4,500 shares, with 1,125 shares exercisable each year on January 6 for the years 1998, 1999, 2000, and 2001. Again, the vesting of each segment was contingent upon Mr. Melancon’s employment with the company on the scheduled vesting date. Thus, the first segment of both stock options fully vested during the existence of the community and the remaining three segments of the options vested after termination.

Agouron merged with Warner Lambert Co. in May 1999, and Warner Lambert was then acquired by Pfizer, Inc. in March 2000. Mr. Melancon remained an employee of the successor company after each transition, and the original stock option grants were ultimately converted to Pfizer stock options.

Mr. Melancon terminated his employment with Pfizer in May 2003, and pursuant to the terms of the stock option plans, he exercised the stock options in question on August 8, 2003.

The only issue on appeal is the classification of the stock acquired as a result of the stock options. Ms. Phayer argues that all the shares of stock should be classified as community property as the stock options were Lgranted to Mr. Melancon during the existence of the community property regime or, alternatively, that the shares of stock derived from the option segments that had not fully vested at the time of the termination of the community should be prorated based on the length of community time between the grant date and the vesting date. On the other hand, Mr. Melan-con claims that all the shares of stock are his separate property. Alternatively, he argues that only the segments that had vested as of the date on which the community terminated are community property. He contends that all other shares are his separate property, acquired by him through his separate labor after termination of the community.

DISCUSSION

Initially, we note that a trial court’s findings regarding the nature of the property as community or separate is a factual determination subject to manifest error review. Ross v. Ross, 02-2984, p. 18 (La.10/21/03), 857 So.2d 384, 395; Biondo v. Biondo, 99-0890, pp. 4-5 (La.App. 1 Cir. 7/31/00), 769 So.2d 94, 99. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. Biondo, 99-0890 at pp. 4-5, 769 So.2d at 99. In this matter, the trial court made the factual determination that only the first segment of each stock option was community property and classified as Mr. Melancon’s | ¡^separate property the three segments of each option which fully vested after termination of the community.

Pursuant to Article 2338 of the Louisiana Civil Code, community property comprises “property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse.” This includes the right to the payment of any compensation for work done during the community. Lanza v. Lanza, 04-1314, 04-1756, p. 16 (La.3/2/05), 898 So.2d 280, 290. Therefore, to the extent that Mr. Melancon has received compensation after the community regime because of work done during the community, this compensation is community property. Id.

With regard to the first segment of each stock option, which fully vested during the community property regime, we find no error in the trial court’s determination .that said segments are community property. These initial segments clearly vested during the community through the effort, skill and industry of Mr. Melancon.

Ms. Phayer cites Camp v. Camp, 580 So.2d 553 (La.App. 1 Cir.), writ denied, 587 So.2d 693 (La.1991), and Larsen v. Larsen, 583 So.2d 854 (La.App. 1 Cir.), writ denied, 590 So.2d 63 (La.1991), in support of her contention that the remaining segments of the disputed stock options are also community property. In the Camp case, this Court addressed the issue of whether stock which had been granted by the husband’s employer during the marriage, but which had not yet vested as of the date of termination of the community, was community or separate property. The stock at issue had been contributed to the husband’s employee stock option plan (ESOP) during the community, but was subject to a vesting schedule. The Court stated:

L[W]e find that the total sum of shares that was contributed to the ESOP as of March 31, 1986, whether vested or un-vested, is community property. Each contribution by [the employer] to the ESOP entitled Mr. Camp to share subsequently in the plan benefits. Since the property right to share ultimately in the 282.9828 shares was acquired by Mr. Camp during the marriage, it is properly classified as a community asset, even though the contractual right to receive these shares was due in the future and contingent upon continued employment by Mr. Camp.

Camp, 580 So.2d at 555.

In Larsen, the Court found the Camp case controlling in classifying the non-vested portion of an employee thrift fund as community property, stating that the property right to ultimately receive proceeds from the thrift fund was acquired during the marriage. Larsen, 583 So.2d at 857-58.

Although we find the analysis set forth in the Camp and Larsen cases informative, nonetheless, we find both cases to be factually distinguishable from the present matter. The Camp case involved pension benefits and Larsen involved an employee thrift plan. Additionally, in both cases, the contributions had already been made by the employer.

More factually analogous to the case sub judice is the Fourth Circuit case of Hansel v. Holyfield, 00-0062 (La.App. 4 Cir. 12/27/00), 779 So.2d 939, writs denied, 01-0279, 01-0276 (La.4/12/01), 789 So.2d 591. In Hansel, the court prorated stock options that had not yet vested as of the date of the termination of the community based on the , length of community time between the grant date and the vesting date. The court .stated:

With regards to the Hibernia stock options that had not vested before the termination of the community, Mr. Hansel argued that theses [sic] options should be deemed to be his separate property or at least pro-rated while Mrs. Hansel argued that they should be treated as community property. Therefore, the appropriate inquiry is whether the Hibernia stock options were property rights either acquired by Mr. Hansel during the community or acquired by him as a result of his effort, skill and industry during the community. The trial court found that the stock options granted to Mr. Hansel served a dual purpose of 17rewarding him for past service and as an incentive for future performance. Based on this, the trial court ruled that the options should be prorated based on the amount of time between the grant date and the vesting date that took place during the community. This is in accordance with the principle that the determinative factor is whether work performed during the existence of the community was taken into consideration in granting the option.

Hansel, 00-0062 at p. 8, 779 So.2d at 945. The court further stated:

It is indisputable that the Hibernia stock options derive from Mr. Hansel’s employment with Hibernia. The issue is what part derives from community, and what part from separate, efforts, skill, and industry. To the extent that a right derives from the spouse’s employment during the existence of the marriage, it is a community asset subject to division upon dissolution of the marriage. The key words here are to the extent. In the instant case the trial court found that the options were partly earned during the existence of the community and partly earned after its termination. The Supreme Court has held that if part of an employee’s pension right was earned before or after the existence of the community, that part of the pension right must be classified as the employee’s separate property (or as property of a different marital regime) and separated from the community property interest to be divided. This same principle should apply to stock options which were granted during the community but which vested at some point in time after the community’s termination. Therefore, there was nothing manifestly erroneous or clearly wrong in the trial court’s prorating the stock options based on the vesting date. (Citations omitted.)

Hansel, 00-0062 at pp. 14-15, 779 So.2d at 948.

In the instant case, the stock options at issue were acquired during the existence of the community property regime. While we agree that the stock grants were based on Mr. Melancon’s employment with Agouron and its successors, they were not based, as asserted by Mr. Melancon, on any unusual or extraordinary effort on his part. The stock options were based simply on his continued employment with the company. Moreover, at the time of each stock option grant, the community acquired an asset even | sthough the right to exercise the option was contingent upon Mr. Melancon’s continued employment. As stated in Camp:

The value of the right to share in the retirement and profit-sharing funds is an incorporeal, movable right. When acquired during the existence of a marriage, the right-to-share is a community asset which, at the dissolution of the community, must be so classified — even though at the time acquired or at the time of dissolution of a community, the right has no marketable or redeemable cash value, and even though the contractual right to receive money or other benefits is due in the future and is contingent upon the happening of an event at an uncertain time. Messersmith v. Messersmith, 229 La. 495, 86 So.2d 169, 174-75 (1956).

Camp, 580 So.2d at 554, quoting T.L. James & Co., Inc. v. Montgomery, 332 So.2d 834, 851 (La.1976) (on rehearing).

We find that the trial court was clearly wrong in determining that the last three segments of both disputed stock options were entirely the separate property of Mr. Melancon. Instead, we agree with prorating the stock options as set forth in Hansel finding value in the right acquired during the existence of the community to subsequently share in the stock options, even though the contractual right to the value was due in the future and contingent upon the happening of a later event.

Further, there is no dispute regarding the mathematical calculations of Charles Theriot, the certified public accountant who presented alternative computations of Ms. Phayer’s community interest in the shares which were acquired from the August 2003 exercise of the stock options. The only issue is the method of calculation to be applied. We find that the calculation set forth in Exhibit B, which prorates the stock derived from' the remaining three segments of Stock Option No. 1432 and Stock Option No. 1447 based on the lengths of community and separate employment between each stock option’s grant date and vesting date, with the maximum federal income taxes withheld, to be the appropriate and applicable calculation of shares.

^CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court insofar as it holds that the first segment of Stock Option No. 1432 and the first segment of Stock Option No. 1447 are community property. We reverse the judgment of the trial court in so far as it holds that the remaining segments of said stock options are the separate property of Mr. Melan-con. We award Ms. Phayer $115,075.00, which represents 3,490.3 shares of Pfizer stock as of August 9, 2003, and represents her community property interest in Stock Option No. 1432 and Stock Option No. 1447. Costs shall be borne by Timothy Melancon.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED.

      . Mr. Melancon was granted ten stock options during his employment; however, only two were at issue when the partition was submitted to the trial court.

      . One share of Agouron stock converted to 4.937 shares of Pfizer stock.

      . The $115,075.00 amount represents the purchase of Pfizer stock at the price of $32.97 per share, the closing price on August 8, 2003, and with maximum tax due withheld.


text:
    RICHIE, RICHIE & OBERLE, L.L.P., C. Vernon Richie, Byron A. Richie, Laurel Fleming Richie & Paul D. Oberle, Jr. v. LOUISIANA INSURANCE GUARANTY ASSOCIATION..
    No. 2004 CA 2522.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 22, 2005.
    Writ Denied April 24, 2006.

      Leonard Cardenas, III, Baton Rouge, Counsel for Plaintiffs/Appellants Richie, Richie & Oberle, L.L.P., C. Vernon Richie, Bryon A. Richie, Laurel Fleming Richie & Paul D. Oberle, Jr.
    Emile Joseph, Jr., Lafayette, Counsel for Defendant/Appellee Louisiana Insurance Guaranty Association.
    Before: WHIPPLE, McCLENDON, and WELCH, JJ.
   McCLENDON, J.

| ¡¿Plaintiffs appeal the judgment of the trial court granting defendant’s peremptory exceptions raising the objections of no right of action and no cause of action. We affirm.

FACTS AND PROCEDURAL HISTORY

On February 5, 2004, the law firm of Richie, Richie & Oberle, L.L.P., C. Vernon Richie, Byron A. Richie, Laurel Fleming Richie, and Paul D. Oberle, Jr., filed a Petition for Damages against the Louisiana Insurance Guaranty Association (LIGA), alleging that since 1991, plaintiffs have engaged in statewide insurance defense and that one of plaintiffs’ largest clients was Patterson Insurance Company. Plaintiffs further assert that they handled virtually all of Patterson’s litigation claims in the State of Louisiana. Patterson was placed into liquidation by order of the 19th Judicial District Court on March 17, 2003, at which time plaintiffs had approximately 620 open litigation files of Patterson. Plaintiffs further allege that at the time of liquidation, plaintiffs, although eligible, had not applied nor been approved as counsel for LIGA. Plaintiffs contend that LIGA was operating under a Plan of Operation, which provided that when an insurer was declared insolvent, an attorney with open files, but not on the approved LIGA list, would be given the opportunity to submit an application to the attorney selection committee. Plaintiffs allege that they promptly submitted their application to the attorney selection committee; however, because of LIGA’s unreasonable and unnecessary delay of plaintiffs’ application process, by the time they were approved, LIGA had unlawfully, inappropriately and unnecessarily reassigned all of plaintiffs’ Patterson litigation files to other legal counsel. Plaintiffs conclude by alleging that LIGA violated its Plan of 1 ^Operation and legislative mandate, causing financial loss and damages to plaintiffs.

LIGA objected to plaintiffs’ petition by filing the peremptory exceptions of no right and no cause of action. Following a hearing, oral reasons for judgment were given by the trial court on August 31, 2004, granting LIGA’s exceptions. Judgment was signed on September 24, 2004.

Plaintiffs appealed submitting the following assignments of error:

1) The trial court abused its discretion in finding as a matter of fact that the plaintiff law firm was given a meaningful opportunity to submit an application to the attorney selection committee and be considered for the continuing handling of association lawsuits, particularly the Patterson files at issue.
2) The trial court erred as a matter of law in concluding that LIGA’s actions were not in violation of the law.
3) The trial court erred as a matter of law in concluding that LIGA is absolutely immune from any suit pursuant to LSA-R.S. 22:1391.
4) The trial court erred as a matter of law in concluding that plaintiffs have no right and/or cause’ of action against LIGA to require LIGA to follow the Plan of Operation in the reassignment of its files, particularly the Patterson files at issue.

DISCUSSION

The Insurance Guaranty Association Law, LSA-R.S. 22:1375, et seq., was enacted by the legislature in 1970. Its purpose is stated in LSA-R.S. 22:1376, which provides:

The purpose of this Part is to provide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies and to allow the association to provide financial assistance to member insurers under rehabilitation or liquidation, and to provide an association to assess the cost of such operations among insurers.

RPursuant to LSA-R.S. 22:1380, the Insurance Guaranty Association Law is administered by LIGA, with certain powers and duties to accomplish its purpose. See LSA-R.S. 22:1380 and 1382.

Further, the legislature has granted statutory immunity to LIGA in matters relating to the performance of its duties. LSA-R.S. 22:1391. Louisiana Revised Statute 22:1391 provides:

There shall be no liability on the part of and no cause of action of any nature shall arise against any member insurer, the association or its agents or employees, the board of directors, or the commissioner or his representatives for any action taken by them in the performance of their powers and duties under this Part.

This statute grants LIGA complete immunity in all matters relating to the performance of its duties. Caulfield v. Leonard, 95-1043, p. 4 (La.App. 5 Cir. 6/25/96), 676 So.2d 1117, 1119, writ denied, 96-1911 (La.11/1/96), 681 So.2d 1262.

In the present case, the trial court determined that LIGA is immune from suit pursuant to LSA-R.S. 22:1391, stating in its oral reasons for judgment that “[sjince the allegations stem from the reassignment of the Patterson cases following insolvency and this is encompassed within LIGA’s powers and duties, LIGA is thus immune from liability.”

Plaintiffs assert, however, that this litigation has nothing to do with LIGA’s performance of its powers and duties; rather, according to plaintiffs, this litigation addresses LIGA’s non-performance of its powers and duties that are mandatory under the Plan of Operation. However, LSA-R.S. 22:1391 is a broad grant of immunity to LIGA for any “cause of action of any nature.” Caulfield, 95-1043 at p. 5, 676 So.2d at 1120.

Plaintiffs argue that any absolute immunity LIGA had was limited by LSA-R.S. 9:2798.1 as held in Gregor v. Argenot Great Central Insurance Company, 02-1138 (La.5/20/03), 851 So.2d 959. LIGA correctly counters that the blanket immunity found in LSA-R.S. 22:1391 is broader than that granted to the State and state agencies pursuant to LSA-R.S. 9:2798.1, which only provides qualified immunity for discretionary actions. See Gregor, 02-1138 at p. 7, 851 So.2d at 964. Further, LSA-R.S. 22:1380 expressly provides that LIGA is not a department, unit, agency or instrumentality of the State for any purpose.

Moreover, pursuant to general rules of statutory construction, “where two statutes deal with the same subject matter, they should be harmonized if possible; however, if there is a conflict, the statute specifically directed to the matter at issue must prevail as an exception to the statute more general in character.” Filson v. Windsor Court Hotel, 04-2893, p. 4 (La.6/29/05), 907 So.2d 723, 726 (quoting City of Pineville v. American Federation of State, County, and Municipal Employees, AFL-CIO, Local 3352, 00-1983, p. 4 (La.6/29/01), 791 So.2d 609, 612).

Plaintiffs also make the argument that LSA-R.S. 22:1382 B(3) permits LIGA to be sued in this matter. This statute provides, in pertinent part:

B. The association may:
JjL ⅜ * *
(3) Sue or be sued. The power to sue includes the power and right to intervene as a party before any court in this state that has jurisdiction over an insolvent insurer.

The statutory language however contemplates only those obligations arising from the contractual relationship between the parties to the insurance policy. See Williams v. Champion Ins. Co., 590 So.2d 736, 737-38 (La.App. 3 Cir.1991). These contractual relationships clearly do not encompass the selection of attorneys to represent LIGA. This argument is without merit.

The grant of immunity legislatively given to LIGA is specific and direct as to the matter at issue. Consequently, LIGA correctly objected to the lawsuit and the trial court did not err in determining that plaintiffs have no cause or right of action against LIGA for the reallotment of its files.

Because we find this issue decisive, we pretermit discussion of plaintiffs remaining assignments of error.

CONCLUSION

The judgment of the trial court maintaining the peremptory exceptions raising the objections of no right of action and no cause of action in favor of the Louisiana Insurance Guaranty Association is affirmed. Costs of this appeal are assessed against the plaintiffs.

AFFIRMED.

      . LSA-R.S. 9:2798.1 B provides:
      Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policy-making or discretionary acts when such acts are within the course and scope of their lawful powers and duties.

      . LSA-R.S. 22:1380 B provides:
      The association is not and may not be deemed a department, unit, agency, or instrumentality of the state for any purpose. All debts, claims, obligations, and liabilities of the association, whenever incurred, shall be the debts, claims, obligations, and liabilities of the association only and not of the state, its agencies, instrumentalities, officers, or employees. Association monies may not be considered part of the general fund of the state. The state may not budget for or provide general fund appropriations to the association, and the debts, claims, obligations, and liabilities of the association may not be considered to be a debt of the state or a pledge of its credit.