author: TERRI F. LOVE, Judge.

text:
    ALLSTATE INSURANCE COMPANY as Subrogee of Wil Fredo v. Joseph VENINATA d/b/a Oak Park Shopping Center, et al. Mirabeau Family Learning Center, Inc. v. United States Fidelity & Guaranty Company, Joseph Veninata and Maria a Veninata, St. Paul Fire and Marine Insurance Company, Lloyd’s of London, Woldorf & Associates Insurance Consultants, Bertrand Jones, Individually and d/b/a Brother’s Roofing, et al.
    Nos. 2006-CA-1641, 2006-CA-1642.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 7, 2007.
    Rehearing Denied Dec. 5, 2007.

      Pierre V. Miller II, Patrick, Miller, Burnside & Belleau, L.L.C., New Orleans, LA, for Mirabeau Family Learning Center, Inc.
    Lawrence J. Boasso, Waller & Associates, Metairie, LA, for Joseph Veninata and Maria A. Veninata.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).
   TERRI F. LOVE, Judge.

|,This appeal arises out of a December 14, 2003 fire in the Oak Park Shopping Center located on Paris Avenue and Mirabeau Avenue in New Orleans. Appellees, Mr. and Mrs. Veninata, were the owners of Oak Park Shopping Center where appellant, Mirabeau Family Learning Center, Inc., leased commercial space. The fire was caused by the negligence of roofers who were hired by appellees to fix a roof leak. Mirabeau Family Learning Center, Inc. filed suit against Mr. and Mrs. Veni-nata for damages resulting from the fire. The Veninatas filed a motion for summary judgment, which the trial court granted. The trial court simultaneously denied Mirabeau’s cross-motion for summary judgment. We find no genuine issues of material fact. We therefore affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On May 21, 2001, Mirabeau Family Learning Center, Inc. (“Mirabeau”) entered into a written lease for commercial space in the Oak Park Shopping Center (“Oak Park”) from Joseph and Maria Veni-nata (“the Veninatas”). Michael R. Vales, the executive director of Mirabeau, testified that he read the lease and had the authority to execute for the corporation. Some time after Mirabeau took possession of the leased space, Mirabeau found leaks in the roof. The Veninatas |2were informed of the problem and arranged for repair of the roof at their own expense. The first attempt at repair bandaged the problem and the roof leaked again not long after the first repair. A second attempt to repair the roof took place in December 2008; the Veninatas hired Brothers Total Renovation (“Brothers”) to perform the repair work on the roof. As a result of Brothers’ negligence, Oak Park caught fire in the roof area on December 14, 2003 and sustained extensive damage. An investigation by the New Orleans Fire Department revealed that the fire originated in the area of the roof as a result of the ongoing roofing work.

The fire that caused the damage was the subject of a suit Mirabeau filed against the Veninatas and several other parties not involved in this appeal. In its suit, Mirabeau alleged that the Veninatas were liable for damages resulting from Brothers’ negligence in causing the fire. In a motion for summary judgment, the Veninatas asserted that they were not liable for an independent contractor’s negligence. Mirabeau filed a cross-motion for summary judgment, asserting that an owner/lessor could not escape liability when an independent contractor was negligent in the performance of the owner/lessor’s legal and contractual obligations. After oral argument on the motions, the trial court dismissed Mirabeau’s claims against the Ven-inatas with prejudice by granting their motion for summary judgment and denying Mirabeau’s cross-motion for summary judgment. That trial court ruling is the subject of this appeal.

STANDARD OF REVIEW

A motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). Summary judgment is favored and shall be construed “to secure the just, speedy, hand inexpensive determination of every action.” La.Code Civ. Proc. art. 966(A)(2).

Appellate courts are to review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Champagne v. Ward, 03-3211, p. 4 (La.1/19/05), 893 So.2d 773, 776. The mover bears the initial burden of proof to show that no genuine issue of material fact exists. Id. However, if the mover will not bear the burden of proof at trial, he need not negate all essential elements of the adverse party’s claim, but he must point out that there is an absence of factual support for one or more elements essential to the claim. La.Code Civ. Proc. art. 966(C)(2). Once the mover has met his initial burden of proof, the burden shifts to the non-moving party to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. Id.

LIABILITY WAIVER IN LEASE

Mirabeau asserts that the district court committed error in granting the appellee’s motion for summary judgment and alleges that the Veninatas are responsible for damages resulting from a fire that was caused by roofers who were hired by the Veninatas to fix a roof leak.

“Under Louisiana law, the owner/lessor is generally liable for the condition of the leased premises pursuant to La.C.C. Articles 2317, 2322 and 2695.” Muse v. Katz, 93-1066 (La.App. 4 Cir. 2/11/94), 632 So.2d 846, 847. However, a lessor may shift responsibilities to a lessee, including liability for injury resulting from defects in the property, because contracting parties can waive warranties and obligations in the codal articles and statutes, so long as such waivers do not affect the rights of others and do not harm the public good. Tassin v. Slidell Mini-Storage, Inc., 396 So.2d 1261, 1264 (La.1981). La. Rev.Stat. § 9:3221 provides: |4“... the owner of premises leased under a contract whereby the lessee assumes responsibility for their condition is not liable for injury caused by any defect therein to the lessee or anyone on the premises who derives his right to be thereon from the lessee, unless the oumer knew or should have known of the defect or had received notice thereof and failed to remedy it within a reasonable time ” (Emphasis added). “Put most directly, the statute [La.Rev.Stat. § 9:3221] relieves the owner lessor of strict liability under La. Civ.Code arts. 2317, 2322 and 2695 so that the owner lessor is liable only for negligence.” Chau v. Takee Outee of Bourbon, Inc., 97-1166, p. 5 (La.App. 4 Cir. 2/11/98), 707 So.2d 495, 498.

Mirabeau contends that the Veni-natas, not the lessee, assumed responsibility under the lease to maintain the roof. To support this contention, Mirabeau states that the leased premises were accepted in their present condition “except for such repair and improvements ... as may be needed to the roof or rendered necessary by fire or other casualty.” The Veninatas maintain that a liability waiver in the lease relieve them of liability for the damages that Mirabeau is seeking. A liability waiver clause as found in the lease states in relevant part:

“Lessee assumes responsibility for the condition of the premises and Lessor will not be responsible for damage caused by leaks to the roof, by bursting of pipes by freezing or otherwise, or by any vices or defects of the leased property, or the consequences thereof, except in the case of positive neglect or failure to take action toward the remedying of such defects within reasonable time after having received written notice from Lessee of such defects and the damage caused thereby.”

Mirabeau contends that La.Rev.Stat. § 9:3221 is inapplicable to the present case because Mirabeau has not claimed its damages resulted from vices or defects of the leased property, but rather from the negligence of the roofers the Veninatas hired to fix the leaky roof. We find no merit in Mirabeau’s argument. This liability waiver clause was evaluated in Ford v. Bienvenu, 00-2376, pp. 8-9 (La.App. 4 Cir. 8/29/01), 804 So.2d 64, 69-70, wherein this Court found that pursuant Lto La. Rev. Stat § 9:3221, the clause was valid. This Court also found that the waiver clause clearly and unambiguously transferred liability to plaintiff for the condition of the premises and that it further transferred liability to plaintiff for vices or defects in the leased property. Id. at p. 11, 804 So.2d 64, 71. Further, “the statute abrogates strict liability leaving the owner/lessor liable only for negligence.” Ford, 00-2376, p. 2, 804 So.2d at 66 (citing Chau, 97-1166, p. 5, 707 So.2d at 498). The sole claim against the Veninatas was that they were liable for negligence, which is what the statute provides for. Given that, we find that the statute is applicable.

Even in the event that there is a lease provision in effect that exonerates a property owner from liability, the plaintiff-lessee is not necessarily barred from recovery. Muse, 632 So.2d at 848. The plaintiff can still recover by proving that damages were sustained because of a defect in the property; that the property owner knew or should have known of this defect; and that the owner failed to remedy the defect within a reasonable time. Id. (citing Robert v. Espinosa, 576 So.2d 555, 556 (La.App. 4th Cir.1991)).

In the case before us, we focus on the issue of whether there was a genuine issue of material fact as to whether the Venina-tas knew of the defect in the premises and failed to remedy it within a reasonable time. The Veninatas have shown an absence of factual support for the element of the plaintiffs cause of action that the Veni-natas “failed to remedy it within a reasonable time.” The defect at issue here was a leaky roof. The record reflects that the Veninatas hired Brothers to fix the roof soon after receiving notice from Mirabeau. Although the roofers negligently set the building on fire and the fire was an ultimate consequence of the leaky roof, the Veninatas’ evidence is sufficient to show that they did not fail to remedy the leaky roof within a reasonable time.

| fiThe burden of proof thus shifted to Mirabeau to show that a genuine issue of material fact remained concerning whether the Veninatas failed to remedy the defect (leaky roof) within a reasonable time. Mirabeau is not entitled to rest on the allegations of its petition to overcome the motion for summary judgment and has failed to establish that it can meet its burden of proof. Given that Mirabeau failed to carry its burden of proof, the district court correctly granted summary judgment in favor of the Veninatas. We, therefore, agree with the district court’s conclusion that the Veninatas were entitled to summary judgment as a matter of law.

LIABILITY OF A LANDLORD FOR THE NEGLIGENCE OF AN INDEPENDENT CONTRACTOR

Mirabeau asserts that there is a widely-recognized exception to the general rule that provides that a person charged with an absolute duty to another person in the contract cannot escape liability for the negligent performance of that duty. In support of this argument, Mirabeau cites Continental Ins. Co. v. I. Bahcall, Inc., 39 F.Supp. 315 (E.D.Wisc.1941). In Continental Ins. Co., a paper company hired Bahcall to dismantle and remove material from a closed paper mill. Id. at 318. The Eastern District of Wisconsin held that the original party to the personal services contract could not escape liability for a fire caused by the negligence of an independent contractor that the original party hired to perform the work. Id. However, as applied to the facts of the instant matter, this exception does not apply.

Under Louisiana law, the general rule is that a business owner is not liable for the negligence of an independent contractor hired by the owner to perform work. Clark v. Engelhardrt, 9 La.App. 334, 335, 120 So. 498 (Orleans 1928). Under the doctrine of respondeat superior expressed in La. Civ.Code art. 2320, “[m]asters and employers are answerable for the damage occasioned by their 17servants and overseers, in the exercise of the functions in which they are employed.” Urbeso v. Bryan, 583 So.2d 114, 116 (La.App. 4 Cir. 1991). Under this doctrine, a master or employer is liable for the tortious conduct of a servant or employee which is within the scope of authority or employment, but a principal is not liable for the physical torts of a non-servant agent. Anderson v. New Orleans Public Service Inc., 583 So.2d 829 (La.1991); Rowell v. Carter Mobile Homes, Inc., 500 So.2d 748, 751 (La.1987).

Liability for the negligent and tor-tious acts of another does not flow simply because of a principal-agent or principal-mandatary relationship. Rowell, 500 So.2d at 751. Rather, when the relationship of the parties includes the principal’s right to control physical details of the actor as to the manner of his performance, which is characteristic of the relation of master and servant, only then does the person in whose service the act is done become subject to liability for the physical tortious conduct of the actor. Id.; Daniels v. Dauphine, 557 So.2d 1062, 1065 (La.App. 2 Cir.1990).

The same basic rule applies to independent contractors generally. Daniels, 557 So.2d at 1065. A principal is not liable for the offenses committed by an independent contractor while performing its contractual duties, however, there are two exceptions to the general rule of nonliability: (1) an owner may not avoid liability for inherently or intrinsically dangerous work by an independent contractor; (2) an owner may be liable for exercising control over the contractor’s methods of operation or giving express or implied authorization to an unsafe practice. Davenport v. Amax Nickel, Inc., 569 So.2d 23, 28 (La.App. 4 Cir.1990).

|sThe Oak Park Shopping Center’s roof leaked, and the Veninatas hired Brothers to fix it. This particular contract for roof repair was not inherently or intrinsically dangerous. The record does not reflect that the Veninatas retained the right to control the work of Brothers. Given the attendant facts and circumstances, Brothers was an independent contractor. Further, the parties agree that the fire was caused by the negligence of Brothers. Due to Brothers’ status as an independent contractor, the Veninatas are not liable for the negligence of Brothers.

DECREE

For the aforementioned reasons, we find that the Veninatas are not liable to Mirabeau for damages arising from Brothers’ negligence. There were no genuine issues of material fact and the district court properly granted the Veninatas’ motion for summary judgment. We affirm the ruling of the trial court.

AFFIRMED.


source: Caselaw Access Project

author: CHARLES R. JONES, Judge. CANNIZZARO, J.,

license: Public Domain

text:
    Thomas BOWSER v. PREMIER AUTOMOTIVE GROUP, a.k.a. Premier Dodge Chrysler Jeep, L.L.C., a.k.a. Premier Mitsubishi And Crescent Vans, Inc.
    No. 2007-CA-0324.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 2007.
    Order Denying Rehearing Dec. 11, 2007.

      James A. Gray II, Gray & Gray, A. P.L.C., New Orleans, LA, for Plaintiff/Appellant.
    Christopher A. D’Amour, A. Kirk Gas-perecz, Adams and Reese, LLP, New Orleans, LA for Defendant/Appellee, Crescent Vans, Inc.
    (Court composed of Judge CHARLES R. JONES, Judge EDWIN A. LOMBARD, and Judge LEON A. CANNIZZARO, JR.).
   CHARLES R. JONES, Judge.

| Thomas and Patricia Bowser (hereinafter collectively referred to as the “Bow-sers”), seek review of a district court judgment in favor of the Appellee; Crescent Vans, Inc. (hereinafter referred to as “Crescent”), granting an exception of no cause of action and a motion for summary judgment, and dismissing the Bowsers’ claim for non-pecuniary damages. We reverse and remand.

On September 3, 2004, Mr. Bowser filed a petition for damages, alleging that Crescent installed a wheelchair ramp on his van that did not fit Mrs. Bowser’s wheelchair, and further alleging the interior of the van was too constricted, making it impossible to strap the wheelchair in for safety.

The Bowsers filed an amended petition on August 9, 2005, that added Mrs. Bowser as a plaintiff and which alleged negligent infliction of mental distress. The Bowsers further alleged that they “suffered aggravation, anguish, annoyance, anxiety, depression and inconvenience.”

Crescent filed an exception of no cause of action and prescription. The district court granted the Bowsers additional time to amend their petition to state a cause of action.

|2The Bowsers complied and on March 7, 2006, filed a second supplemental and amending petition wherein they alleged their dealings with Crescent were intended to “gratify a non-pecuniary interest — to-wit — to obtain a specialized handicapped accessible mini-van in order to accommodate Patricia Bowser’s special needs as a handicapped person.” Additionally, the Bowsers’ alleged they were unable to evacuate prior to Hurricane Katrina as a result of the loss of use of the handicapped van for which they bargained.

Crescent responded to the second supplemental and amending petition by filing an exception of no cause of action or, in the alternative, motion for summary judgment. Crescent argued that insufficient facts were pled to support the recovery of damages for non-pecuniary loss.

The district court held a hearing on the exception of no cause of action or, in the alternative, motion for summary judgment. The court granted the exception of no cause of action and the motion for summary judgment.

The Bowsers on appeal argue the district court erred in excluding their non-pecuniary loss claim prior to trial because the determination of whether the purchase of the customized handicapped accessible van gratified a non-pecuniary interest — as a significant object of the contract — is a question of fact to be determined at trial, and plaintiffs’ pleadings and affidavit adequately supported their claim for non-pecuniary loss. In consideration of this assignment of error, we will separately discuss the merits of Crescent’s exception of no cause of action and motion for summary judgment.

^EXCEPTION OF NO CAUSE OF ACTION

In Industrial Co., Inc. v. Durbin, 2002-0665, pp. 6-7 (La.1/28/03), 837 So.2d 1207, 1213, the Louisiana Supreme Court addressed the peremptory exception of no cause of action by noting:

[t]he function of the peremptory exception of no cause of action is to question whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the particular plaintiff is afforded a remedy in law based on the facts alleged in the pleading. The exception is triable on the face of the petition and, for purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. In reviewing a district court’s ruling sustaining an exception of no cause of action, the appellate court and this court should conduct a de novo review because the exception raises a question of law and the district court’s decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Every reasonable interpretation must be accorded the language of the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial.
Additionally, the district court shall order an amendment to the petition when the grounds of the objection may be removed by amendment. Raspanti v. Litchfield, 2005-CA-1512, 2006-CA-0331, p. 6 (La.App. 4 Cir. 11/21/06), 946 So.2d 234, 239.

In the ease sub judice, the Bowsers’ second supplemental and amending petition alleged that their dealings with Crescent were intended to “gratify a non-pecuniary interest — to-wit—to obtain a specialized handicapped accessible minivan in order to accommodate Patricia Bowser’s special needs as a handicapped person.”

|4La. C.C. art. 1998 governs damages for non-pecuniary loss. According to art. 1998, “[djamages may be recovered when the contract, because of its nature, is intended to gratify a non-pecuniary interest and, because of the circumstances surrounding the formation or the nonperformance of the contract, the obligor knew, or should have known, that his failure to perform would cause that kind of loss.” Non-pecuniary damages are defined as “damages that cannot be measured in money.” Black’s Law Dictionary 418 (8th ed.2004).

The Louisiana Supreme Court determined an obligee may recover damages for non-pecuniary loss when the contract is intended to satisfy both pecuniary and non-pecuniary interests and where the interest is exclusively non-pecuniary. Young v. Ford Motor Co., Inc., 595 So.2d 1123, 1124 (La.1992). The Young court held the purchaser of a defective or useless vehicle may recover damages for non-pecuniary loss even if the vehicle is not unreasonably dangerous and no physical injuries are sustained if the requirements of La. C.C. art. 1998 are satisfied. The Young court disallowed damages for non-pecuniary loss in that instance as the evidence presented at trial did not indicate that an objective in the purchase of the truck was gratification of a non-pecuniary interest. Id.

Yet, in Chaudoir v. Porsche Cars of North America, 95-729 (La.App. 3 Cir. 12/6/95), 667 So.2d 569, the Third Circuit allowed for the recovery of damages for a non-pecuniary loss when the vehicle purchased was the top of the line, hand built, and fulfilled a longing of Mr. Chaudoir.

Additionally, Louisiana courts have allowed for recovery of damages for non-pecuniary loss for breach of a contract to build a home when the home was the [¿fulfillment of the American dream, and when the home was the plaintiffs final home, a place she could leave her daughter and of which she could be proud.

The Bowsers’ second supplemental and amending petition alleged their involvement with Crescent for the installation of the handicapped ramp was intended to “gratify a non-pecuniary interest — to-wit— to obtain a specialized handicapped accessible mini-van in order to accommodate Patricia Bowser’s special needs as a handicapped person.” While this paragraph is not proof of entitlement to damages for non-pecuniary loss as it is conclusory in nature, the Bowsers’ petition should not be dismissed for failure to state a cause of action.

As stated in Industrial Co., Inc., “a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiffs can prove no set of facts in support of any claim which would entitle him relief.” Industrial Co., Inc., 2002-0665, p. 7, 837 So.2d at 1213. The Bowsers may be able to prove a set of facts which would support a claim pursuant to La. C.C. art. 1998. The Bowsers attempted to satisfy the elements of La. C.C.P. art. 1998 by the use of the phrase “special needs,” but did not provide further factual details regarding those needs, such as whether they were for physical needs or emotional needs.

The Bowsers may allege the purchase of this van and chairlift was not a standard sale because the purchase was for emotional needs, such as the fulfillment of a longing as in Chaudoir or a dream as in Thomas, and that Crescent knew or should have known of this non-pecuniary interest. Hence, the grounds for the objection may be removed by amendment, and the Bow-sers should be given a last opportunity to amend their petition to detail entitlement to damages for nonjpecuniary,; loss pursuant to La. C.C. art. 1998. For the reasons cited above, we find the district court erred in granting the exception of no cause of action and dismissing the Bowsers’ claim.

Motion for Summary Judgment

Appellate courts review summary judgments under the de novo standard of review. Raspanti 2005-CA-1512, 2006-CA-0331, p. 16, 946 So.2d at 244. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). The burden of proof remains with the movant. La. C.C.P. art. 966(C)(2).

As detailed above, the Bowsers must not only prove they had a non-pecuniary interest, they must also establish Crescent knew or should have known that its failure to perform would lead to a non-pecuniary loss.

To prove lack of knowledge, Crescent attached several documents to its memorandum in support of its motion for summary judgment. Crescent submitted the affidavit of James Scott, the owner of Crescent. The affidavit alleged the “Bow-sers never mentioned or suggested that the chairlift requested had a sentimental value or specific emotional need attached to it.” Yet, the affidavit lacked the signature of James Scott and a notary public.

An unsigned, unnotarized affidavit is of no evidentiary value. Porche v. City of New Orleans, 523 So.2d 2, 3 (La.App. 4 Cir.1988); See also Citibank South Dakota, N.A. v. Stanford, 42,191 (La.App. 2 Cir. 5/9/07), 956 So.2d 756. Hence, Crescent failed to meet its burden of proof to show that there is no genuine issue of 17material fact regarding its knowledge or lack thereof. For the reasons cited above, the district court erred in granting the motion for summary judgment.

Decree

Accordingly, we reverse the judgment and remand this matter to the district court for proceedings consistent with this opinion.

REVERSED AND REMANDED.

ORDER

L Considering the Motion for Rehearing filed by the Appellee, Crescent Vans, Inc.:

IT IS ORDERED that the Motion for Rehearing is DENIED.

Crescent Vans contends that our court failed to address the issue of whether the dismissal of the above numbered and entitled appeal was proper pursuant to Local Rule 2-8.6. However, Crescent Vans failed to act in accordance with Rule 2-8.1 of the Uniform Rules Courts of Appeal, which requires that the mover raise the issue of dismissal in a separate motion. Considering that the relief sought by Crescent City was not properly submitted, the Motion for Rehearing is denied.

CANNIZZARO, J., dissents with reasons.

CANNIZZARO, J.,

dissents with reasons.

|,I respectfully dissent from the majority’s order denying the motion (application) for rehearing filed by the appellee, Crescent Vans, Inc.

With regard to an abandonment of a civil appeal, as long as the clerk of the appeal court complies with the notice requirement set forth in Rule 2-8.6 of the Uniform Rules Courts of Appeal, I, unlike the majority, do not believe that an appel-lee must first file a separate motion to dismiss before the court may dismiss the appeal.

In accord with Rule 2-8.6, on May 30, 2007, the clerk of this court mailed a notice of abandonment to appellant’s counsel stating that “the appeal shall be dismissed within thirty days of the mailing of this notice unless appellants’ brief is filed in the meantime.” The appellant did not file a brief by June 29, 2007, the final date prescribed by law and this court. Therefore, this court, acting on its own motion, should have dismissed the appeal as abandoned but did not. Instead, the court considered the merits and rendered a judgment. Upon reconsideration, I believe this court erred in doing so.

Thus, I would grant a rehearing in this matter, vacate the November 14, 2007 judgment of this court, and dismiss the appellant’s appeal as abandoned pursuant to Rule 2-8.6 of the Uniform Rules Courts of Appeal.

      . Thomas v. Desire Community Housing Corp., 98-2097 (La.App. 4 Cir. 7/19/00), 773 So.2d 755).

      . Mayerhofer v. Three R's, Inc., 597 So.2d 151 (La.App. 3 Cir. 1992).


author: PAINTER, Judge.

text:
    Nora E. WHIPPLE v. McDONALD’S RESTAURANT MANAGERS, et al.
    No. 2007-731.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      Scott D. Schneider, New Orleans, LA, for Defendants-Appellees, Douglas Moore and Trish Polk.
    Nora E. Whipple, In Proper Person, Leesville, LA, for Plaintiff-Appellant, Nora E. Whipple.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DeCUIR, and J. DAVID PAINTER, Judges.
   PAINTER, Judge.

| ¶Plaintiff, Nora E. Whipple, appeals the trial court’s grant of an exception of no cause of action in favor of Defendants in her suit for wrongful termination. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Nora E. Whipple was employed at Mc-Donalds in Leesville, Louisiana. On October 2, 2006, Whipple’s employment was terminated after her cash register was short $800.00. Two days later, Whipple, in proper person, filed a “Petition for Reimbursement of Wrongful Termination.” As Defendants, Whipple named Douglas Moore and Trish Polk, the two managers who terminated her employment. In the petition, Whipple did not allege the existence of any employment contract and merely alleged that Moore and Polk did not conduct an investigation into the shortage. Whipple sought lost wages, reinstatement of her employment, and the termination or demotion of Moore and Polk. On October 6, 2006, Whipple amended her petition to specify that the amount of her lost wages was $5.50 per hour based on a thirty hour work week.

Moore and Polk filed an exception of no cause of action on the grounds that Louisiana law does not recognize a cause of action for “wrongful termination” due to the adoption of the “at-will employment doctrine” in La.Civ.Code art. 2747 and further, that neither Defendant actually employed Whipple. After a hearing on the matter, the trial court granted the exception and dismissed Whipple’s claims against both Moore and Polk with prejudice. Whipple filed a “Motion for Rehearing of Case No. 76556B and Request to Change Presiding Judge.” Said motion and request were denied, and Whipple now appeals.

| yin her pro se appellate brief, Whipple contends that the trial court erred in not allowing her case to go to trial because: (1) the at-will doctrine can create a “slave-servant environment to exist” which is in direct conflict with the United States Constitution; (2) La.Civ.Code art. 2747 is an antiquated law; and (3) when a case is dismissed with prejudice, the trial judge commits an “unconstitutional and unethical act.” For the reasons that follow, we find these arguments to be without merit and affirm the judgment of the trial court dismissing Whipple’s suit against Moore and Polk with prejudice.

DISCUSSION

With respect to the exception of no cause of action, the Louisiana Supreme Court has stated:

The burden of demonstrating that no cause of action has been stated is upon the mover or exceptor. In deciding the exception of no cause of action, the court must presume all factual allegations of the petition to be true and all reasonable inferences are made in favor of the non-moving party. In reviewing a trial court’s ruling sustaining an exception of no cause of action, the court of appeal and this court should subject the case to de novo review because the exception raises a question of law and the lower court’s decision is based only on the sufficiency of the petition.
In appraising the sufficiency of the petition we follow the accepted rule that a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. The question therefore is whether in the light most favorable to plaintiff, and with every doubt resolved in his behalf, the petition states any valid cause of action for relief. The petition should not be dismissed merely because plaintiffs allegations do not support the legal theory he intends to proceed on, since the court is under a duty to examine the petition to determine if the allegations provide for relief on any possible theory.
As a practical matter, an exception of no cause of action is likely to be granted only in the unusual case in which the plaintiff includes allegations that show on the face of the petition that there is some insuperable bar to relief. In other words, dismissal is justified only when the allegations of the petition itself clearly demonstrate that the plaintiff does not have a cause of action, or when its allegations indicate lathe existence of an affirmative defense that appears clearly on the face of the pleading.

City of New Orleans v. Board of Comm’rs of Orleans Levee Dist. 93-690, pp. 28-29 (La.7/5/94), 640 So.2d 237, 253 (citations omitted).

The issue here is whether Whipple’s “Petition for Reimbursement of Wrongful Termination” states a valid cause of action for which the law affords a remedy. A review of this petition and the subsequent amending petition in light of the substantive employment law in the light most favorable to Whipple, and with every doubt resolved in her behalf, supports the trial court’s finding that the law does not afford a remedy to her.

“The employer-employee relationship is a contractual relationship” wherein the parties may negotiate the terms thereof and “agree to any terms not prohibited by law or public policy;” however, when the parties “are silent on the terms of the employment contract, the civil code provides the default rule of employment-at-will.” Quebedeaux v. Dow Chemical Co., 01-2297, pp. 4-5 (La.6/21/02), 820 So.2d 542, 545. Louisiana Civil Code Article 2747 reads: “A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.” Accordingly, an employer is generally at liberty to dismiss an employee at any time, for any reason, without incurring liability for the discharge. Quebedeaux, 820 So.2d at 542. This right is tempered by federal and state laws proscribing certain reasons for termination of an at-will employee such as race, sex, or religious beliefs. Id. But, there are no “[b]road policy considerations creating exceptions to employment at will and affecting relations between employer and employee.” Id. at 546, quoting Gil v. Metal Service Corp., 412 So.2d 706, 708 (La.App. 4th Cir.1982).

|4Whipple does not dispute the fact that her employment with McDonalds was at-will, nor does she dispute the fact that neither Moore nor Polk was her actual employer. Further, neither her petition nor amending petition alleges the violation of any law by Moore or Polk. Additionally, the suit was brought against two managers rather than Whipple’s actual employer. Despite Whipple’s allegation that the law is antiquated, it is still the law. We see no conflict between the at-will employment doctrine and the Constitutional bar on slavery. Given these facts and our de novo review of the record as a whole, we are convinced, beyond doubt, that Whipple can prove no set of facts in support of any claim which would entitle her to relief against Moore and Polk. Therefore, the trial court was correct in finding that the law does not afford a remedy to her.

We find no merit in Whipple’s argument concerning the dismissal with prejudice. While we recognize that Whipple misunderstands the use of the term “prejudice” in the dismissal, a pro se litigant assumes all responsibility for her own inadequacies and lack of knowledge of procedural and substantive laws. Ledbetter v. Wheeler, 31,357 (La.App. 2d Cir.12/9/98), 722 So.2d 382. We consider that the dismissal of Whipple’s petitions is not based on her unfounded assertion of judicial bias but on the basis of law.

When the grounds of the exception of no cause of action may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within a delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed. La.Code Civ.P. art. 934. In this case, it does not appear |Bthat the grounds of Defendants’ objection could have been removed by amendment of the pleadings. Therefore, we find that the dismissal of the petitions with prejudice as to Moore and Polk was proper.

DECREE

For the foregoing reasons, we affirm the judgment of the trial court granting the exception of no cause of action against Defendants and dismissing Plaintiffs claims against them with prejudice. Costs of this appeal are assessed to Plaintiff-Appellant, Nora E. Whipple.

AFFIRMED.

      . Louisiana Code of Civil Procedure article 1673 provides: "A judgment of dismissal with prejudice shall have the effect of a final judgment of absolute dismissal after trial. A judgment of dismissal without prejudice shall not constitute a bar to another suit on the same cause of action.”


author: GENOVESE, Judge.

text:
    Claire Telezia LANDRY v. Phillip Larvin COMEAUX, II.
    No. 07-891.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      L. Clayton Burgess, L. Clayton Burgess, A P.L.C., Lafayette, LA, for Defendant/Appellant Phillip Larvin Comeaux, II.
    Glenn J. Armentor, The Glenn Armentor Law Corporation, Lafayette, LA, for Plaintiff/Appellee Claire Telezia Landry.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln conjunction with a rule for increase in child support, Defendant, Phillip Co-meaux, II (Comeaux), was found in contempt of court by the trial court for failure to produce certain financial documents. As a consequence of the contempt ruling, the trial court ordered Comeaux to produce said financial documentation and also ordered him to pay a $500.00 fine. Co-meaux suspensively appeals. For the following reasons, we affirm.

FACTS

Plaintiff, Claire Telezia Landry (Landry), and Comeaux are the unmarried parents of Madelyn Jolie Comeaux, born on January 27, 2001. On September 3, 2002, Landry filed a petition for custody and child support against Comeaux. An interim order of child support was set at $250.00 per month pending the outcome of Comeaux’s personal injury action stemming from his October 18, 2001 offshore work accident.

On June 26, 2003, Landry filed a rule to show cause why child support should not be increased commensurate with Co-meaux’s receipt of workers’ compensation benefits. On September 18, 2003, pursuant to consent judgment, child support was increased to $767.00 per month.

On February 4, 2005, Landry again filed a motion to increase child support, alleging that Comeaux “has received, through settlement, substantial monies in the resolution of his Longshoreman’s and various third-party claims_” Subsequent to several continuances, and before a hearing on Landry’s motion to increase child support was held, Comeaux filed a motion to decrease his child support obligation. In his motion to decrease child support, Comeaux asserted that “[bjefore [he] even |2had a chance to regain some sort of employment he was involved in a severe motor vehicle accident on September 29, 2004, which ... re-aggravated his previous back and neck injury.” Consequently, Comeaux sought a reduction in child support from $767.00 per month to $417.86 per month based on his declaration that his annual income was less than $10,000.00.

On June 23, 2005, Landry filed two motions: (1) a motion to compel more complete and appropriate answers to her previously filed interrogatories; and (2) a motion to compel production of documents. Landry alleged that “the interrogatories ... have either not been answered at all or have been inappropriately or incompletely answered ...” and that Comeaux failed to adequately produce the requested financial documents relevant to the issue of whether Comeaux’s child support obligation should be increased.

On December 5, 2005, a hearing was held on Landry’s motion to compel wherein the trial court issued the following order:

IT IS ORDERED, ADJUDGED AND DECREED that the defendant will produce copies of all monthly bank statements that have been generated for any checking and/or savings accounts opened by [Comeaux] subsequent to receiving settlement funds in 2004 and 2005, from his offshore case, beginning with the opening balances up to the current date, and supported by an affidavit listing all such accounts by [Co-meaux].

The order also reset Landry’s motion to increase child support and Comeaux’s motion to decrease child support for a hearing on the merits on February 16, 2006.

On January 11, 2006, Landry filed another motion to compel production of documents due to Comeaux’s alleged non-compliance with the trial court’s December 5, 2005 order. A hearing was held on Landry’s motion to compel on February 9, |s2006. At said hearing, the trial court found that Comeaux had, in fact, violated the trial court’s December 5, 2005 order. At the hearing, the trial court stated:

I hung my hat on three (3) things. One, the lack of statements for any month other than October, and months other than October and December. So that meant November was missing. It should have been provided before we got here today. And the other thing, there’s two (2) checks that were paid into a money market account and no accounts were given in that account and no records for that account. Those two (2) accounts or that one (1) account, whatever it was.

The trial court’s judgment, signed on June 19, 2006, ordered Comeaux to produce specific financial data within 10 days of its signing. In addition, the trial court found Comeaux “to be in violation of the Court’s order herein[,]” and Comeaux was “sanctioned in the amount of $500.00 for his failure to produce the materials ordered herein, said sanctioning fine to be paid to the plaintiff herein, [Landry].” It is from this judgment that Comeaux suspensively appeals.

ASSIGNMENTS OF ERROR

Comeaux now appeals, asserting two assignments of error:

1. The trial court erred in ruling that Phillip Comeaux, II, was in contempt of court because he fully complied with the court order of December 5, 2005 by producing all requested discovery that he had in his possession.
2. The trial court erred in ruling that Phillip Comeaux, II, was in contempt of court because the order made by the court was not lawful in that it allows the Plaintiff to circumvent mandatory obligations imposed by statutory law.

LAW AND DISCUSSION

“The trial court has much discretion in imposing sanctions for failure to comply with discovery orders, and its ruling should not be reversed absent an abuse of discretion.” Hutchinson v. Westport Ins. Co., 04-1592, p. 2 (La.11/08/04), 886 So.2d 438, 440 (citing Lirette v. Babin Farms, Inc., 02-1402 (La.App. 1 Cir. 4/2/03), 843 So.2d 1141; Garza v. Int'l. Maint. Corp., 97-317 (La.App. 3 Cir. 10/29/97), 702 So.2d 1021).

Comeaux contends that he complied with the trial court’s December 5, 2005 order. Comeaux also contends that on December 12, 2005, he sent Landry an affidavit and all copies of any and all statements that were in his possession at that time. Then, on February 3, 2006, Co-meaux sent Landry an affidavit and a bank statement for the interim period between December 12, 2005 and February 3, 2006. In his brief, Comeaux maintains that he “fully complied with the [ojrder to [c]om-pel [production of [documents because he produced all required documents within his possession ” (emphasis added). Further, he contends that the trial court’s “ruling of contempt and the accompanying $500[.00] penalty levied against [him] were manifestly erroneous.” Comeaux urges that La.Code Civ.P. art. 1461 supports his assertion that he may only be required to produce documents that he has in his possession. Comeaux also cites La.Code Civ.P. art. 1469.2 in arguing that any order | ¡¡compelling the production of bank records is not enforceable unless the requirements of La.R.S. 6:333 have been met.

Landry contends that the trial court did not order Comeaux to subpoena his own bank records; instead, the trial court ordered Comeaux to obtain copies of bank statements that were easily within his “possession, custody and control” as set forth by La.Code Civ.P. art. 1461.

Louisiana Code of Civil Procedure Article 1471 provides for sanctions when a party fails to comply with a court’s order to “provide or permit discovery.” Co-meaux did not argue the legality of the trial court’s December 5, 2005 order until the hearing on February 9, 2006. In fact, our review of the transcript from the February 9, 2006 hearing reveals a vague argument by Comeaux’s counsel that:

[Wje’ve asked [Comeaux] to come in and give us information about all the accounts that [Landry’s attorney] is requesting. He’s provided us everything that he has in his possession. The affidavit states that. That’s all he has. We have nothing else to give [Landry’s attorney]. [Landry’s attorney] has taken Mr. Comeaux’s deposition. He is a well experienced trial attorney, he’s well aware of all the discovery tools he has available, he’s used them throughout this case. He has the information, the account information, where the accounts have been, where they were held. He can subpoena those documents if he wishes and he’s known that for quite some time now.
Other than that I want to tell you, Judge, we’ve provided him with everything Mr. Comeaux has. And it’s not a simple matter of just going to the bank and saying, “Hey, can you go and get this for me.” We’ve provided [Landry’s attorney] a list, a detailed list of settlement funds that he complains about constantly, where that money was spent, where it went, how much our client got. It’s getting to the point of being ridiculous now.

A more elaborate argument of the legality of the trial court’s order issued December 5, 2005 does not appear in the record of these proceedings until Co-meaux’s appellate brief. We find this argument to be untimely made. Comeaux’s arguments that (1) he could not produce documents that were not in his possession, |fias per La.Code Civ.P. art. 1461, and (2) La.Code Civ.P. art. 1469.2 is not enforceable unless the requirements of La.R.S. 6:333 have been met may have had merit had Comeaux appealed the December 5, 2005 trial court order. However, the matter before this court is an appeal of the trial court’s February 9, 2006 judgment finding Comeaux in contempt of court for his failure to produce certain financial documents, not a review or appeal by Co-meaux of the legality of the trial court’s December 5, 2005 order.

Based on Comeaux’s assignments of error, our review of this matter is restricted to the issue of whether the trial court abused its discretion in finding Comeaux in contempt of court and imposing sanctions against him for his failure to comply with the trial court’s December 5, 2005 discovery order. The trial court’s authority to impose sanctions against Comeaux is found in La.Code Civ.P. art. 1469 and La.Code Civ.P. art. 1471.

Louisiana Code of Civil Procedure Article 1469 (emphasis added) provides, in pertinent part:

A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(2) If a deponent fails to answer a question propounded or submitted under Articles 1437 or 1448, or a corporation or other entity fails to make a designation under Articles 1442 or 1448, or a party fails |7to answer an interrogatory submitted under Article 1457, or if a party, in response to a request for inspection submitted under Article 1461, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.
If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Article 1426.
(B) For purposes of this Subdivision an evasive or incomplete answer is to be treated as a failure to answer.
(4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other, circumstances make an award of expenses unjust.
If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

Louisiana Code of Civil Procedure Article 1471 (emphasis added) provides, in pertinent part:

If a party ... fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made |Ror any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
In lieu of any of the foregoing orders or in addition thereto, the court shall 'require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

Comeaux was ordered by the trial court to produce “all monthly bank statements that have been generated....” Comeaux argues this interpretation of the court’s order meant that he was in compliance if he produced the documents that were “within his possession.” He asserts he did. We are not swayed by Comeaux’s argument that because he does not have these documents in his custody or control, the trial court- erred by finding him in contempt of court. Louisiana Civil Code Article 1461 grants a party the authority to request documents “which are in the possession, custody, or control of the party upon whom the request is served.” It was within Comeaux’s control to obtain and produce copies of his financial statements to Landry. Whether Comeaux has actual possession of these financial documents is of no consequence to this court. What is pertinent is that Comeaux could have easily |8requested and obtained copies of any and all of said documents from his banking or financial institution(s). This financial information would have aided him both in defense of the motion to increase and in support of his own motion to decrease. Again, Comeaux made no such request. His failure was unequivocally non-compliant with what he was ordered to do by the trial court’s December 5, 2005 order. Thus, we find no abuse in the trial court’s vast discretion in imposing the contempt sanction of $500.00 against Comeaux for his failure to comply with its December 5, 2005 discovery order. The trial court’s judgment from the February 9, 2006 hearing, signed on June 19, 2006, is therefore affirmed.

This court notes that Landry, in her brief, makes a request for sanctions against Comeaux “given the frivolous nature of this writ application.” Said request was again made at oral argument. However, Landry did not answer this appeal, and, consequently, that issue is not properly before this court. See La.Code Civ.P. art. 2133; Roberts v. Robicheaux, 04-1405 (La.App. 3 Cir. 3/2/05), 896 So.2d 1232, unit denied, 05-792 (La.5/13/05), 902 So.2d 1021.

DECREE

For the foregoing reasons, we affirm the trial court judgment finding Comeaux in contempt of court and imposing the $500.00 sanction upon him. Defendant-Appellant, Phillip Larvin Comeaux, II, is assessed with all costs of this appeal.

AFFIRMED.

      . The trial court’s minutes reflect that Co-meaux and his attorney waived their appear-anee at the December 5, 2005 hearing.

      . Louisiana Code of Civil Procedure Article 1461 provides, in pertinent part:
      Any party may serve on any other party a request (1) to produce and permit the party making the request, or someone acting on his behalf, to inspect and copy any designated documents including writings ... from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form, or to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Articles 1422 through 1425 and which are in the possession, custody, or control of the party upon whom the request is served....

      . Louisiana Code of Civil Procedure Article 1469.2, provides:
      An order or subpoena duces tecum compelling the production of records of a bank, a savings and loan association, a company issuing credit cards, or a business offering credit relating to the financial or credit information of its customers, whether pursuant to Articles 1421 through 1474, Articles 2451, et seq., or otherwise, shall not be enforceable, unless the person seeking production of such records has complied with the provisions of R.S. 9:3571 or R.S. 6:333, as applicable, requiring that a copy of the subpoena or order also be served on the person whose records are being sought.

      . Though we find it untimely made, Co-meaux’s argument that the trial court's December 5, 2005 order is not enforceable because the provisions of La.Code Civ.P. art. 1469.2 and La.R.S. 6:333 were not met is also inapplicable. Louisiana Code of Civil Procedure Article 1469.2 pertains to ''[a]n order or subpoena duces tecum compelling the production of records of a bank....” In this matter, the trial court did not order Landry to subpoena Comeaux's bank records. Instead, Comeaux was ordered to produce financial statements which were generated from his accounts. Ironically, the same financial information would have been relevant to Co-meaux's motion to decrease child support; therefore, it would have been in Comeaux's best interest to produce said financial information in support of his motion.


text:
    Marian BOWMAN v. Gary SMITH, Individually and/or d/b/a AAA Construction and Michael Howard.
    No. 07-887.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.

      David A. Fraser, Pamela L. Courtney, Fraser, Morris & Wheeler, L.L.P., Lake Charles, LA, for Plaintiff/Appellee, Marian Bowman.
    Michael R. Garber, Lake Charles, LA, for Defendant/Appellant, Michael Howard.
    Court composed ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

hln this suit for damages resulting from a contract of repair, Defendant, Michael Howard (Howard), appeals the trial court’s grant of a default judgment in favor of Plaintiff, Marian Bowman (Bowman). Howard also appeals the trial court’s denial of his motion for new trial. For the following reasons, we affirm.

FACTS

In January 2006, Bowman entered into a contract with Howard, Gary Smith (Smith), and/or Gary Smith d/b/a AAA Smith Construction (Smith Construction) for the repair and remodeling of her home subsequent to damages inflicted by Hurricane Rita. When Bowman became dissatisfied with the work being performed, she terminated the contract.

On May 8, 2006, Bowman filed suit against Howard, Smith, and Smith Construction, alleging that she contracted with “GARY SMITH individually and/or GARY SMITH d/b/a AAA SMITH CONSTRUCTION and MICHAEL HOWARD” to have repairs made to her home. Bowman further alleged that “HOWARD acted in partnership or as agent for GARY SMITH and/or GARY SMITH d/b/a AAA SMITH CONSTRUCTION.” According to Bowman, the parties agreed that the repairs to her home were to be performed for $44,950.00 and that, on January 31, 2006, she made a down payment.of $15,000.00, tendering a check in the amount thereof made payable to both Howard and Smith Construction.

Howard was personally served with the petition on May 11, 2006. On June 1, 2006, a preliminary default was taken against him, and on July 13, 2006, a default judgment was entered against Howard.

Gary Smith and Smith Construction were served via long arm statute, La.R.S. 1⅞13:3204, on June 9, 2006. On July 13, 2006, a preliminary default was taken against Smith and Smith Construction. On August 2, 2006, the affidavit of long arm service was filed into the record.

On September 22, 2006, Bowman obtained a default judgment against all of the named defendants for $15,000.00. On September 29, 2006, Howard filed a motion for new trial which was heard by the trial court on December 6, 2006. The trial court entered and signed a judgment denying the motion for new trial on March 30, 2007. Howard appeals.

ISSUES

Howard asserts that the trial court erred in granting a default judgment against him on the grounds that the evidence presented by Bowman was insufficient to prove a partnership between him and Smith. Additionally, Howard asserts that the trial court erred in denying his motion for new trial.

LAW AND DISCUSSION

Default Judgment

A default judgment may be entered against a defendant who fails to answer within the prescribed time. La.Code Civ.P. art. 1701(A). The judgment, which consists of an entry in the minutes, may be obtained by oral motion in open court or by written motion mailed to the court. Id. If no answer is filed, the default judgment may be confirmed two days after the entry of the judgment of default. La.Code Civ.P. art. 1702(A). The confirmation requires proof of the demand sufficient to establish a prima facie case. Id.

Louisiana Pacific Corp. v. Hyatt, 99-1420, p. 3 (La.App. 3 Cir. 3/1/00), 758 So.2d 295, 296-97.

In the instant matter, the procedural manner in which Bowman obtained the judgment of default is not at issue. Rather, the issue presented by Howard is whether sufficient evidence was introduced to establish a prima facie case against him. The | atrial court’s determination that Bowman presented sufficient evidence is a factual determination governed by the manifest error rule. Louisiana Farm Bureau Mut. Ins. Co. v. Groundlink, Inc., 03-947, (La.App. 3 Cir. 2/4/04), 871 So.2d 359. “The manifest error standard of review obligates appellate courts to give great deference to the trial court’s findings of fact. Rosell v. ESCO, 549 So.2d 840 (La.1989). We will not reverse factual determinations, absent a finding of manifest error. Id.” Id. at 362.

In his appellate brief, Howard asserts that the only actions taken by him were recommending Smith to Bowman for the performance of the work and accepting Bowman’s check for $15,000.00 on Smith’s behalf. According to Howard, neither of these actions are proof of a partnership between him and Smith. Consequently, Howard concludes that Bowman “failed to establish a legal basis for [his] liability.” We disagree.

The evidence introduced by Bowman in support of her motion for default judgment included an affidavit of Bowman, an affidavit of Kenneth B. Boudreaux, photographs of the home, the contract, and the endorsed check. Pertinent to the issue before this court is the evidence relative to the imposition of liability.

Although consistently throughout her affidavit Bowman references Howard, Smith, and Smith Construction, her affidavit establishes that she “met with [Howard] to discuss the construction repair work.” She attests that she “agreed to contract with [Howard] ... to perform the needed repairs to [her] home.” Additionally, Bowman’s affidavit states that she “entered into a contract with ... [Howard,]” and that the cost of the repairs was $44,950.00. Moreover, Bowman asserts that she “dealt with” and “tendered a financial down payment” for $15,000.00 to Howard “at his request and |4direction.” It is also noteworthy that Bowman’s check was made payable to both Howard and Smith Construction.

The contract itself is further evidence of Howard’s actions. The contract, which is signed by Bowman, identifies the work to be performed and contains the notation that she is to “call Mike” at the phone number indicated thereon. Also pertinent is the evidence surrounding the manner of payment by Bowman of the $15,000.00. The check was given by Bowman to Howard. Howard was a named payee on the check. Additionally, it was Howard who provided Bowman with a hand-written receipt which was signed by him and contained his contact information. Finally, the check was actually endorsed by Howard.

Regardless of the business relationship between Smith, Smith Construction, and Howard, the evidence introduced by Bowman is sufficient to establish a prima facie case against Howard individually. The evidence established the relationship between Bowman and Howard, beginning with the initial stages and continuing through the performance of the work. Howard was personally involved in the discussions of the work to be done, in documenting and confirming same, in the arrangements for payment, in the acceptance of payment, and in the endorsement of the check. Based on the foregoing, we conclude that the trial court was not manifestly erroneous in finding that Bowman presented sufficient evidence to confirm the default judgment against Howard individually. Accordingly, the judgment of the trial court is affirmed.

Motion For New Trial

Howard also assigns as error the trial court’s denial of his motion for new trial. Howard asserts that the judgment is clearly contrary to the law and evidence; 1 ^consequently, a new trial is mandated by La.Code Civ. P. art.1972. The motion for new trial also alleges that a new trial is warranted on discretionary grounds which, although not cited by Howard, is governed by the provisions of La.Code Civ.P. art. 1973. “In both instances, the trial court is aceorded vast discretion in deciding whether to grant the motion [for new trial]; its decision whether to do so is reviewed pursuant to the abuse of discretion standard of review.” Laurence v. Laurence, 07-11, p. 9 (La.App. 3 Cir. 5/30/07), 957 So.2d 931, writ denied, 07-1322 (La.7/5/07), 959 So.2d 891 (citing Davis v. Coregis Ins. Co., 00-475 (La.App. 3 Cir. 12/27/00), 789 So.2d 7, writ denied, 01-0292 (La.3/30/01), 788 So.2d 1192).

Howard asserts on appeal that Bowman’s failure to establish that he and Smith were partners was fatal to her case. He concludes, therefore, that the judgment of the trial court was contrary to the law and evidence and that La.Code Civ.P. art. 1972 mandates the granting of a new trial. For the reasons discussed above, we find that the evidence was sufficient to establish a prima facie case against Howard. Consequently, we find this contention to be without merit.

|fiIn the alternative, Howard contends that he is entitled to a new trial on discretionary grounds due to Smith’s fraud or ill practices. Howard asserts in brief that, after Bowman filed the instant litigation, Smith retained counsel to represent both him and Howard. He further asserts that counsel for the parties met and attempted to amicably resolve the matter. According to Howard, when settlement negotiations failed, Smith told him that he would “take care of it” and “was handling it.” Thus, Howard contends that he was led by Smith to believe that he was being represented by counsel and that it was not until he received notice of the judgment that he learned otherwise. Howard concludes that the trial court should have granted him “a new trial on discretionary grounds, because of Smith’s fraud or ill practice of deceiving him into believing he was represented by counsel.”

In support of his assertion herein, Howard relies on Thomas v. Calhoun Properties, Inc., 576 So.2d 1172, 1174 (La.App. 3 Cir.), writ denied, 578 So.2d 934 (La.1991), wherein this court reasoned as follows:

It is well established that a default judgment will be set aside if it was obtained by “fraud or ill practices.” Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983). “Fraud or ill practice” is language sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable. Firmature v. Tommasi, 533 So.2d 1326 (La. App. 3d Cir.1988).

Howard’s reliance on Thomas is misplaced. Thomas is clearly distinguishable from the facts presently before this court. In Thomas, a witness’s testimony as to the identity of a lessor who was cast in judgment was incorrect. Consequently, judgment was rendered “against a party who was not the lessor.” Id.

When considering whether discretionary grounds existed for the granting of a ^motion for new trial, this court opined that “had the trial judge been apprised of the correct facts, the judgment could not have been rendered against the defendant.” Id. The plaintiff in Thomas “had access to other sources for obtaining the correct identity of the lessor!,]” and the plaintiffs “[flailure to investigate and obtain the identity of the lessor was an omission which led to the filing of suit against the wrong party.” Based upon these facts, we concluded that “the definition of ‘ill practice’ is sufficiently broad to cover this omission.” Id. Unlike Thomas, the facts in the instant case do not involve the naming of a wrong party, nor the presentation of incorrect testimony as to the identity of a party to the trial court.

In the case at bar, Howard was personally served with the petition. He failed to take any action to protect his interest in the lawsuit, and judgment was ultimately rendered against him. His mistaken belief that he was being represented by counsel does not constitute fraud or ill practice by Bowman. Therefore, we find that the trial court did not abuse its discretion in denying Howard’s motion for new trial.

DECREE

For the foregoing reasons, the judgment of the trial court in favor of Marian Bowman and against Michael Howard is affirmed.

Costs of this appeal are assessed against Michael Howard.

AFFIRMED.

      . Louisiana Code of Civil Procedure Article 1972 provides as follows:
      A new trial shall be granted, upon contradictory motion of any party, in the following cases:
      (1) When the verdict or judgment appears clearly contrary to the law and the evidence.
      (2) When the party has discovered, since the trial, evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.
      (3) When the jmy was bribed or has behaved improperly so that impartial justice has not been done.

      . Louisiana Code of Civil Procedure Article 1973 provides that “[a] new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.”


author: PETERS, J.

text:
    Brent D. GAUTREAU, et ux v. Paul M. TRAHAN, et ux.
    No. 07-0875.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 5, 2007.
    Peter F. Caviness Dauzat, Falgoust, Ca-viness and Bienvenu, L.L.P., Opelousas, LA, for Plaintiffs/Appellees, Brent D. Gau-treau, Pamela A. Gautreau.
    Stan Gauthier, II, Kristi Hushner Ou-bre, Jonathan D. Mayeux, Stan Gauthier, II A Law Corporation, Lafayette, LA, for Defendants/Appellants, Paul M. Trahan, Peggy G. Trahan.'
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JIMMIE C. PETERS, and JAMES T. GENOVESE, Judges.
   PETERS, J.

| ,This appeal arises from the trial court judgment granting a preliminary injunction prohibiting the discharge of firearms from property belonging to the defendants, Paul and Peggy Trahan, in the direction of and across the property of the plaintiffs, Brent and Pamela Gautreau. For the following reasons, we affirm the judgment of the trial court in all respects.

DISCUSSION OF THE RECORD

The Gautreaus and the Trahans own immovable property adjacent to each other near Sunset, Louisiana, in St. Landry Parish. Both couples maintain residences on their respective properties. The Gau-treaus maintain access to their residence by a dirt road located on the boundary line separating the properties. The ownership of the land upon which the dirt road is located is in dispute and was the subject of a March 23, 2007 suit filed by the Gau-treaus to fix the boundary between their properties and to enjoin the Trahans from encroaching upon or otherwise using the Gautreau property. The Trahans answered the suit generally denying the allegations.

The Gautreaus amended their original petition on May 3, 2007, or some six weeks after filing the initial suit. In their supplemental and amending petition, the Gau-treaus sought injunctive relief to prevent the Trahans, and other persons acting with their consent, from discharging firearms on the Trahan property in such a manner that the projectiles or rounds fired from the firearms might enter upon or cross the Gautreau property. The Gautreaus sought this relief based on the assertion that the Trahans, and others acting with their consent or participation, had begun discharging firearms on their property in the direction ■ of the Gautreau property since the filing of the March 23, 2007 suit. In response to the amending petition, the trial court issued a temporary restraining order and set a hearing date for the requested ^preliminary injunction. In their answer to the amending petition, the Tra-hans admitted that Paul Trahan had discharged firearms in the direction of the Gautreau property, but denied all other allegations.

At the May 11, 2007 preliminary injunction hearing, the evidence established without dispute that Paul Trahan had constructed a homemade backstop for target practice purposes approximately 380 feet south of a coulee which divides the two properties at issue, and that the Gautreau home and yard are located immediately north of the coulee, although not directly in line with the backstop. However, the Gautreaus often use the property directly in line with the backstop. Mr. Trahan initially constructed the backstop using railroad cross ties, and it originally measured five feet wide and six feet high. After the Gautreaus first complained, Officer Joseph Mamou of the St. Landry Parish Sheriffs Office came to the Trahan house, observed the backstop, and recommended that Mr. Trahan increase the size of the backstop. Based on this recommendation, Mr. Trahan increased the width to fifteen feet and the height to eight feet. The photograph of the backstop introduced into evidence by the Trahans reflects a crudely built, straight wall consisting of an assortment of cross ties, boards, logs, and metal sheets.

Paul Trahan acknowledged in his testimony that he used the backstop for target practice purposes at least three times per week for thirty-minute periods and that, on occasion, he allowed his son and brother-in-law to fire weapons toward the backstop. Those using the shooting range would fire at paper targets mounted on the backstop from a range of approximately thirty feet. Additionally, Mr. Trahan admitted using several different weapons, including a .45 caliber pistol firing hollow point bullets, a .357 magnum pistol, a .22 caliber pistol, and a .380 pistol. According to Mr. IsTrahan, the .45 caliber weapon had a penetration depth of three inches into the backstop, and the .357 magnum weapon had a four-inch penetration depth. He acknowledged that absent the protection of the backstop, both weapons had a range far in excess of the 380 feet to his property line. However, he asserted that the activity presented no danger because he never missed the backstop. Furthermore, he denied ever shooting in any direction except toward the backstop.

With regard to the safety issue as well as the timing and direction of fire, the Gautreaus presented evidence contrary to Mr. Trahan’s testimony. Brent Gautreau testified that the firing did not begin until he filed the boundary suit, and that the timing of the firing always coincided with times when he and his family or guests were using the property immediately behind the backstop. That is to say, when individuals were physically in the danger zone. Pamela Gautreau testified to observing an individual near the coulee shooting in the direction of her home and that on occasion she would hear shooting that obviously did not hit the backstop because there was no “reverb.” Camille Gautreau, the plaintiffs’ fourteen-year-old daughter, testified that one day, as she rode her horse along the dirt road on the property line, Mr. Trahan fired a gun across the road ahead of her, and that approximately three weeks before the hearing on the preliminary injunction, a similar incident happened when she rode her four-wheeler on the dirt road. Eddie Gautreau, Brent Gautreau’s father, testified that he had been on the property on numerous occasions when shots were fired, and that the only defense the family had was to retreat inside the house. Officer Christopher Malang of the Cankton Police Department testified that on the occasion when he was called to investigate the Gau-treaus’ complaint, he heard five |4shots ring out from the direction of the Trahan property as the Gautreaus’ daughter walked into what appeared to be the line of fire, and he ordered everyone back into the house. When he went to the Trahan home to investigate, Mr. Trahan told him that he had been firing toward the backstop, but the officer concluded that the shots he heard did not originate from behind the backstop; that they originated from no more than one hundred yards away as he stood in a clearing near the Gautreau home.

After completion of the evidence, the trial court issued a preliminary injunction enjoining and prohibiting the Trahans and anyone, acting in concert with them or participating with them from discharging firearms and other weapons in the direction of or across the property of the Gautreaus. The trial court signed a judgment to this effect on June 14, 2007, and the Trahans have appealed.

OPINION

“An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction.” La. Code Civ.P. art. 3612(B). A trial court’s determination as to whether to issue a preliminary injunction is subject to the abuse of discretion standard of review. Smith v. W. Va. Oil & Gas, Co., 373 So.2d 488 (La.1979).

The judgment signed by the trial court on June 14, 2007 restrains, enjoins, and prohibits the Trahans, and all those acting on their behalf or in concert with them, “from discharging • firearms and other weapons in the direction of and/or across the property of the [Gautreaus], at all times, including, particularly, but not limited to, those times the [Gautreaus], their minor children and anyone else on their property with their consent and permission are making use of the [Gautreaus’] property.” On appeal, the Trahans assert that the trial court abused its discretion in prohibiting them |sfrom discharging firearms or other weapons in the direction of the Gautreau property without a sufficient showing of irreparable injury to the Gau-treaus.

In its oral reasons for judgment, the trial court expressed its belief in the testimony of Camille Gautreau with regard to the shooting incidents across her path of travel on the dirt road. That being the case, the trial court expressed no difficulty in enjoining the firing of weapons “onto or across the property.” However, the trial court expressed its concern that an injunction prohibiting the Trahans from firing “in the direction” of the Gautreau property, absent a showing that the shots actually traveled across the property, would unreasonably restrict the Trahans’ enjoyment of their property. Nevertheless, the trial court granted the injunction prohibiting such activity as well. In reaching that decision, the trial court balanced the competing interests at issue in favor of the Gautreaus. The trial court recognized that the Trahans have the right to use their property in any manner that “doesn’t interfere with someone else’s enjoyment of their property or place them in danger” and concluded that the issue in this matter was whether Mr. Trahan should be prohibited from firing in the direction of the Gautreau property, even while using the backstop. The trial court then concluded that the safety of the Gau-treaus and their family superceded the right of the Trahans to use their property in a manner of their choosing and granted the preliminary injunction.

We agree with the trial court’s conclusion that the ultimate issue is the safety of the use of the backstop. At the hearing, both the parties and the trial court approached this preliminary injunction matter within the context of the Louisiana Civil Code articles on vicinage, specifically, La.Civ.Code arts. 667-669. These | ^articles principally govern the rights and obligations of neighboring proprietors. Inabnet v. Exxon Corp., 93-681 (La.9/6/94), 642 So.2d 1243. Specifically, they place limitations on the rights of owners by setting out principles of responsibility applying the doctrine of sic utere tuum ut alienum non laedas, which requires an owner to use his property in such a manner as not to injure another. 4 A.N. Yian-nopoulos, Louisiana Civil Law Treatise-Predial Servitudes §§ 25, 33 (1983). The obligations contained in these articles are legal servitudes imposed on the owner of property and “embody a balancing of rights and obligations associated with the ownership of immovables.” Rodrigue v. Copeland, 475 So.2d 1071, 1077 (La.1985), cert. denied, 475 U.S. 1046, 106 S.Ct. 1262, 89 L.Ed.2d 572 (1986). The general rule is that a landowner is free to exercise his rights of ownership in any manner that he sees fit. He may even use his property in ways which cause some inconvenience to his neighbor. However, a landowner’s rights do not allow him to do real damage to his neighbor. Id.

|7We agree that the rules of vici-nage apply to the matter now before us. The Trahans assert that maintaining a private shooting range on their property is a free exercise of their rights of ownership that should not be enjoined even though, by using the backdrop at issue, the weapon would be fired in the direction of the Gau-treau property. In support of this argument, they point to Mr. Trahan’s testimony that he has never fired a weapon on his property except on his shooting range in the direction of the backstop, and that he has never missed the backstop. They further insist that the backstop as enlarged, together with Mr. Trahan’s shooting skill, provides protection to their neighbors. The Gautreaus, on the other hand, point to the evidence presented that, from sound alone, it has been determined that some bullets fired on the Trahan property did not impact the backstop. The trial court accepted the testimony presented by the Gautreaus that bullets fired from the Tra-han property entered the Gautreau property.

As previously stated, the Trahans’ assignment of error complains only of that portion of the preliminary injunction that prohibits them from firing in the direction of the Gautreau property, an injunction which they translate into a prohibition against using their shooting range. However, if we accept Mr. Trahan’s testimony that he never fires a gun on his property except at targets mounted on the backstop of his shooting range, and consider the evidence believed credible by the trial court that bullets on many occasions crossed the property of the Gautreaus, then it follows that bullets fired from the Trahan property at targets mounted on the backstop escaped their property.

Officer Malang testified that he found 12-gauge shotgun, rifle, and handgun casings on the ground near the backstop. Mr. Trahan said the bullets from his .45 | scaliber pistol had a penetration depth into the backstop of three inches, and the .357 magnum a penetration depth of four inches. He testified that at least one of his weapons, the .45 caliber handgun, had a range well beyond his own property line when fired in the direction of the Gautreau residence. He explained that the reason he chose to orient his shooting range as he did is that if he shot in any other direction other homes in the neighborhood would be closer than that of the Gautreaus.

It is clear from this testimony that the only protections the Gautreaus have from a stray bullet from the shooting range are Mr. Trahan’s accuracy as a shooter and the reliability of the backstop to contain, and not deflect, every bullet fired on the range. It was not an abuse of the trial court’s discretion to conclude that neither of those safeguards enjoyed a measure of reliability sufficient to condone the continued operation of the Trahans’ shooting range in the name of the free exercise of their property rights, when the facts support the trial judge’s finding that the shooting range has a history of escaping projectiles.

No expert testimony was produced regarding the safety design of this shooting range, but none was needed under these factual circumstances to establish the grave danger to the Gautreaus and their property. Common sense does that. Mr. Trahan’s shooting skill, however good, is not perfect. A shooting range backstop that will not prevent the endangerment by stray bullets of residences and people in the line of fire and within the range of the weaponry used is not adequate. While no evidence was introduced regarding the specifications of a shooting range in this locale that might have sufficed, this one unquestionably fell woefully short. The gravity of the risk | flit presented cannot be seriously questioned. Simply stated, marksmen miss targets from time to time, and even those projectiles that hit a target may be prone to ricochet in unprotected directions.

When the Trahans chose to use their property as a firing range and constructed thereon a backstop for that purpose, it became their obligation to ensure that the backstop would serve its purpose. They cannot rationalize doing with their estate whatever they pleases if they rely solely upon Mr. Trahan’s claimed inerrancy as a marksman and a home-made backstop having obviously inadequate containment features.

Our supreme court has held that the action for an injunction under La. Civ. Code arts. 667-669 is controlled by La. Code Civ.P. art. 3601. Rodrigue, 475 So.2d 1071. Since the Gautreaus seek in-junctive relief, they must prove irreparable injury in addition to the necessary showing of real damage under Articles 667-669. Louisiana Code of Civil Procedure Article 3601 provides in pertinent part that “[a]n injunction shall be issued in cases where irreparable injury, loss, or damage may otherwise result to the applicant, or in other cases specifically provided by law.” “The jurisprudence interpreting La.Code Civ.P. art. 3601 holds that, while the trial court has broad discretion in deciding whether to grant injunctive relief, injunction is an extraordinary remedy and should only issue where the party seeking it is threatened with irreparable loss without adequate remedy at law....” Jim Walter Homes, Inc. v. Jessen, 98-1685, p. 6 (La.App. 3 Cir. 3/31/99), 732 So.2d 699, 703.

The trial court did not abuse its discretion in concluding that the Gautreaus made a showing that they could be irreparably harmed unless injunctive relief was granted. Irreparable injury has been defined as “a loss sustained by an injured party Imwhich cannot be adequately compensated in money damages or for which such damages cannot be measured by a pecuniary standard.” Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314, 319 (La. 1981), cert denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982). In Dejean v. Fritz Field Hunting Club, 602 So.2d 168 (La.App. 3 Cir.1992), we upheld a preliminary injunction prohibiting the lessor of a right-of-way from shooting deer on the right-of-way over which the plaintiff enjoyed a predial servitude. We found that injunctive relief was necessary to eliminate interference with plaintiffs use of the servitude, reasoning that if the owner of the servient estate could not make the use of the servitude more inconvenient, he certainly could not make its use more dangerous. Although that case was decided on predial servitude obligations imposed by La.Civ.Code arts. 651 and 748, and not the predial obligations imposed by the vicinage articles, the analogy is apparent and needs no elaboration from us.

The issuance of a preliminary injunction will not be disturbed on appeal absent an abuse of discretion. Smith, 373 So.2d 488. The issuance of a preliminary injunction in this case was not an abuse of the trial court’s discretion.

DISPOSITION

For the foregoing reasons, we affirm the trial court judgment granting the preliminary injunction in favor of Brent and Pamela Gautreau. We assess all costs of this appeal to Paul and Peggy Trahan.

AFFIRMED.

      . Mr. Trahan testified that the .45 caliber weapon had an effective range of 600 feet.

      . Louisiana Civil Code Article 667 provides, in pertinent part, that ''[a]lthough a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him.” Additionally, La.Civ. Code art. 668 provides:
      Although one be not at liberty to make any work by which his neighbor's buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
      Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors’s [neighbor’s] house, because this act occasions only an inconvenience, but not a real damage.
      Finally, La.Civ.Code art. 669 provides that:
      If the works or materials for any manu-factory or other operation, cause an inconvenience to those in the same or in the neighboring houses, by diffusing smoke or nauseous smell, and there be no servitude established by which they are regulated, their sufferance must be determined by the rules of the police, or the customs of the place. ;

      . Deputy Mamou never claimed to be an expert on shooting ranges. When he first saw the backstop he suggested only that Mr. Tra-han make it "two, three feet taller” and "[m]aybe fifteen, twenty feet wider,” so it would be a "more safer [sic] environment.”