text:
    SOUTHERN TREATS, INC. f/k/a Christopher Scott Ferris d/b/a Southern Treats, Plaintiffs-Appellants, v. TITAN PROPERTIES, L.L.C., Porters of Louisiana, L.L.C., and Mark Porter, Defendants-Appellees.
    No. 40,873-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 2006.

      Pettiette, Armand, Dunkelman, Wood-ley, Byrd & Cromwell by Robert A. Dunk-elman, Shreveport, S. Michael Cooper, for Appellants Southern Treats, Inc. and Christopher S. Ferris.
    Jeff R. Thompson, Bossier City, for Ap-pellee Titan Properties, L.L.C.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   STEWART, J.

11 Southern Treats filed suit against Titan Properties seeking a declaratory judgment regarding its rights under an alleged long-term lease and injunctive relief to preserve the status quo in accordance with the terms of the lease. Titan Properties filed a reconventional demand for eviction of Southern Treats and alleged that the parties had a verbal month-to-month lease. The trial court found there to be a two year lease between the parties and denied all relief. Southern Treats appealed. Finding error in the trial court’s judgment, we reverse and render judgment in favor of Southern Treats as explained in this opinion.

FACTS and TESTIMONY

Scott Ferris along with his sister and brother-in-law, Cindy and Stan Rogers, decided to form a business, Southern Treats, to obtain and operate a TCBY / Mrs. Fields franchise in Shreveport. In April 2002, Ferris met with Mark Porter, the owner of a business and property at the intersection of Youree Drive and East Bert Kouns Industrial Loop, about purchasing a piece of property at that location. Porter was not interested in selling but was interested in Ferris’s proposal to open a yogurt shop in that location. The parties came to an agreement whereby Porter would pay to build the store on his property and lease it to Southern Treats. This dispute arises from that arrangement.

| ¡..Southern Treats’ petition alleged that it had a lease for an initial term of 5 years with two options to renew for 5 years each. Rent was $2,250 per month in accordance with the parties’ agreement that rent would be calculated at twelve percent of the cost of the building up to $225,000. However, at the opening of the business, Porter presented a new lease with monthly rent increased to $3,600. Southern Treats refused to sign as it did not reflect their agreement with Porter. Porter later presented a second lease with a monthly rent of $2,250 and a five year term. Southern Treats refused that lease as well because it provided only two options to renegotiate contrary to their agreement for options to renew. After paying the agreed upon rent of $2,250 for twenty months, Southern Treats was notified by letter dated March 17, 2005, that it was a month-to-month tenant and that it must vacate by April 1, 2005. According to the letter, they could remain by signing a written lease with rent at $4,000 per month. Southern Treats’ petition requested a determination of their rights under the original lease and injunc-tive relief to preserve their agreement.

In answer, Porter asserted that the parties never executed a written lease and claimed there had been no meeting of the minds as to lease terms, particularly rent. He alleged that the parties entered a verbal month-to-month lease in July 2003 that he now wished to terminate.

At the hearing, Scott Ferris testified that he first met with Mark Porter in April 2002, at which time they discussed the amount of square footage that would be needed for the business and agreed that Porter would own the structure and lease it for twelve percent of the building cost. Relying on | ¡¡that agreement, Ferris prepared a business plan to obtain financing to open the business. The plan, which was admitted into evidence, included a projected monthly rent of $2,000 based on the agreed upon rate of twelve percent of the estimated building cost of $200,000. After getting loan approval, the parties, including Porter, met with a TCBY representative to get approval for the building site. Porter suggested an architect for the project, and Southern Treats paid $10,000 for the architect to design the building to suit the needs of the business. In October 2002, Ferris received franchise papers to sign. He needed to obtain a lease for 15 years. He drafted an agreement in the form of a letter to be sent to Jerry Nisbet, the vice-president of leasing with Mrs. Fields Famous Brands, and made an appointment to meet with Porter on October 28, 2002. At the meeting, Porter and Ferris signed the agreement which states:

An agreement is made between Mark Porter, LESSOR and Scott Ferris, LESSEE, dated this 28th day of October, 2002.

The agreement provided a lease term of five years with two options of five years each. Both parties signed the agreement. On cross examination, Ferris stated that he made a mistake in neglecting to specify the rent agreed to in the letter. He testified that he took Porter at his word regarding their agreement as to rent and explained that their lease agreement consisted of the verbal agreement as to rent and the written agreement of October 28, 2002.

After securing the fifteen year agreement, Ferris paid a franchise fee of $35,000. Southern Treats and Porter worked together to obtain construction bids from contractors recommended by Porter. The first bid goffered was for $321,000. Because the rent was to be based on the cost of construction, Ferris told Porter the bid was too high. At a meeting, Porter told the same thing to the bidder, indicating that rent would be based on the building cost. The parties obtained two other bids and accepted a bid of $215,000 by Brian Builders submitted on March 1, 2003. At a meeting with Porter to discuss accepting the bid, the parties again discussed rent being twelve percent of the building cost. Cindy Rogers suggested setting the cost at $225,000 to take overages into account. Thus, rent would be $2,250 per month. Porter did not object to the amount of rent or mention any increases. Construction began on March 10, 2003. Southern Treats put $7,000 into the construction of the building to keep the cost basis of their rent at $225,000, the amount paid by Porter for construction.

The grand opening for friends and family was held on July 10, 2003. Porter met with Ferris at the opening and presented him with a written lease agreement to sign. Contrary to what they had agreed upon, the new lease provided for rent of $3,600 per month. Ferris refused to sign. Ferris and the Rogers met with Porter the next day to discuss the dispute. At that meeting, Ferris and the Rogers first learned of a proposal Porter had received from Waffle House before construction began, offering to build its own building and pay rent for the ground only in the amount of $1,800 per month. They reminded him that they already had an agreement for rent of twelve percent of the building cost and for five years with two five year renewals. Ferris showed him the agreement they had signed on October 28, 2002. Ferris testified that Porter indicated he might have made a mistake and that he |fiwould have to “suck it up.” At a second meeting, Porter produced another lease with rent of $2,250 in accordance with the agreed upon formula but providing only a five year term with options to renegotiate. It did not reflect the agreed upon options to renew. Thus, Ferris did not sign it.

Southern Treats began operating and paying $2,250 in rent each month. Sometime prior to March 17, 2005, Porter called another meeting to discuss an offer presented to him on behalf of Subway proposing that it operate alongside Southern Treats in the same space. Ferris testified that they declined the offer. Thereafter, Southern Treats received the notice to vacate letter.

Ferris’s testimony was corroborated by that of Stan and Cindy Rogers. Stan recalled that when they met with Porter to discuss the construction bids, they also discussed rent being twelve percent of the building cost. He specifically recalled using his cell phone’s calculator to determine the amount of rent after Cindy mentioned setting the cost at $225,000 to take overages into account. Porter said nothing at the meeting about increasing the rent to reflect land value. Stan also recalled the subsequent meetings with Porter after the opening at which he tried to get Southern Treats to enter a new lease for more rent.

Cindy Rogers likewise recalled meeting with Porter to discuss the bids and agreeing to set rent at twelve percent of the building cost. She suggested adding $10,000 for overages to the bid by Brian Builders. They agreed that Southern Treats would pay costs over $225,000 so that their rent would not go up. She testified that Porter did not mention anything about | ^increasing the rent to reflect land value. She also recalled meeting with Porter after the grand opening when he tried to increase the rent to $3,600 on account of the land value. When they disagreed, he said that he would honor his word regarding their agreement. She testified that he never mentioned anything about entering a two year lease, and the first she heard of such a lease was at trial. She stated that their agreement had always been a five year term with two options. Cindy also testified that she had worked for TOBY for over 14 years. She recalled rent for two different shops being $1,800 a month for about 1800 square feet of space and $2,600 a month for about 3,000 square feet.

Mark Porter testified that as the owner and manager of Titan Properties, a real estate holding company, he leases between 30 and 35 properties and always uses standard lease forms which include up to 21 paragraphs addressing various issues. He denied entering a lease as claimed by Southern Treats. Porter recalled his first meeting with Ferris about the project. They discussed rent. He claimed he told Ferris that he wanted a twelve percent return on his investment of construction costs and something for the land value. However, he admitted that he did not mention anything at subsequent meetings about adding in land value until he presented a written lease at the opening.

Porter paid $225,000 in construction costs for a build-to-suit building, one built in accordance with TCBY’s specifications. Porter explained he had no problem putting money into the project because he could always modify the building and lease it to other tenants. He described the businesses being on the second busiest intersection in Shreveport and stated that he could “lease it for whatever.”

Porter claimed that the October 28, 2002 agreement signed by him was meaningless. He described it as a letter of intention which he signed to help Ferris speed up the franchise process. He asserted that Ferris drafted the letter from an example sent in a packet by TCBY stating it was not intended to be a lease. However, he admitted that the document he signed did not include that language. He stated that he looked at the letter and realized it was wrong, but he considered it to be insignificant and signed. He did not tell Ferris that he did not consider it binding or that another signed agreement would be necessary.

Porter recalled the meetings to discuss the construction bids. The parties met at his office after receiving Brian Builders’ bid, but he did not recall the conversation. He admitted that he did not bring up the land value issue at either meeting. Porter also testified that he received a proposal in March 2003 from a representative for Waffle House offering a ground lease of $1,800 a month for five years with nine five year options. He did not mention the offer to Ferris or the Rogers, and he did not tell them that he considered the land value to be what Waffle House was offering to pay for a ground lease. He did not feel it important to communicate such information to Ferris even though Southern Treats was proceeding with plans for the business and putting some money into construction of the building.

Porter testified that he presented a lease to Ferris at the grand opening, because Ferris had not yet presented a lease for him to sign. The |Rlease had a five year term and rent of $3,600 per month. He then met with Ferris and the Rogers on July 11, 2003. He explained that the amount of $3,600 was a fair rate that included land value, which he claimed was established by the Waffle House ground lease offer. When they would not agree to pay $3,600, he told them that he had not been clear about the land value, but that he would honor his word and “suck it up for two years.” Later that month he presented a second written lease to Ferris. The lease, which was admitted into evidence, had rent in the amount of $2,250 per month and a term of five years with two five years options “to be negotiable.” Porter claimed the term on the lease was a typographical error and that he had told his assistant to put a two year term. It was Porter’s testimony that the parties had a verbal agreement as of July 2003 for a two year lease at $2,250.

Porter further testified that he received an offer from a representative for Subway in February 2005 to share space in the building and pay $2,700 per month in addition to the rent paid by Southern Treats. Because Southern Treats was not paying what he considered to be market rate, he went to them with the offer as a win-win situation for all concerned. Southern Treats declined the offer. Porter then contacted an attorney to begin eviction of Southern Treats. When questioned about why he would send a notice to vacate months prior to the end of the two year lease he claimed they had agreed to in July 2003, Porter stated that he did not know the law and that he considered it a month-to-month lease for two years. He Instated that he knew the end of the lease period was coming up and that he was “trying to get ahead of it.”

The last witness was Deegie Lawless, Porter’s assistant from June 2003 through July 2004. She testified that she prepared lease documents for Porter by filling in the blanks on the forms as directed by him. She recalled a meeting at which he asked her to change the rent amount to $2,250 on a lease and to put individual signature lines on the back. She testified that he did not tell her to change the five year term to two years.

TRIAL COURT’S RULING

Following the testimony, the court rendered an oral ruling denying Porter’s request for eviction and Southern Treats’ requests for injunctive and declaratory relief. The trial court found that all the witnesses testified credibly as to how they viewed the facts, but it specifically accepted Porter’s testimony regarding the existence of a two year lease agreement. The trial court further found that prior to the two year agreement there had been no meeting of the minds as to the terms of the lease, specifically as there was “no written evidence that there was a final resolution of the [rent] figure.” The court’s recall of Ferris’s testimony was that the parties had not discussed the rent amount between the time of the October 28, 2002 letter and the opening. The trial court concluded that the October 28, 2002 letter agreement signed by Porter and Ferris was not a lease. The court reasoned:

It doesn’t have the necessary parts that one would expect in a lease. I rather believe that it was something that was set forward in- — that was signed to send to the franchisor. The parties didn’t put the finishing touches on their agreement. I think what we have is a two-year lease by Mr. Porter’s agreement.

| inJudgment was signed on June 1, 2005, and Southern Treats’ appeal followed.

APPLICABLE LAW and DISCUSSION

Southern Treats argues that the trial court’s finding of a two-year lease was a “split the baby” verdict contrary to all of the documentary evidence and clearly wrong. Southern Treats asserts that the evidence establishes that the parties agreed to a renewable five-year lease with monthly rent of $2,250. They had a written agreement as to the thing and the term and an oral agreement as to the rent.

Porter asserts that the trial court correctly determined there was no five-year lease, as there was no agreement as to the amount of rent or the term. Porter contends that the October 28, 2002 letter was not a lease. He argues that it merely duplicated examples sent by the franchisor and had inaccuracies regarding the parties. Moreover, the letter agreement did not include his standard lease provisions and served only Ferris’s purposes.

Lease is a synallagmatic contract by which one party, the lessor, binds himself to give the other party, the lessee, the use and enjoyment of a thing for a term in exchange for a rent that the lessee binds himself to pay. La. C.C. art. 2668. The essential elements of a lease are the thing, the price (rent), and consent of the parties. Pelican State Bank v. Webb, 175 So. 855 (La.App. 2d Cir.1937); Daigle v. Vanderpool, 2002-2005 (La.App. 1st Cir.6/27/03), 858 So.2d 552; Lemke v. Amidon, 542 So.2d 563 (La.App. 1st lnCir.1989). The form of a lease may be written or verbal. La. C.C. art. 2681; Lemke v. Amidon, supra. The intent to create a lease may be inferred from the established facts, circumstances, and acts of the contracting parties. Pelican State Bank v. Webb, supra. Either party may enforce a contract to lease at a future time if there is agreement as to the thing and rent, unless the parties understood it would not be binding until reduced to writing or agreement on other terms. La. C.C. art. 2670.

Rent must be agreed to by the contracting parties for a valid lease. Mouton v. P.A.B., Inc., 450 So.2d 410 (La.App. 3d Cir.1984), writ denied, 458 So.2d 118 (La.1984). The price must be certain and determinable. Pelican State Bank v. Webb, supra; D'Antonio v. Simone, 94-798 (La.App. 5th Cir.3/15/95), 653 So.2d 678. The rent must be serious and not out of proportion to the thing’s value. La. C.C. art. 2675; Daigle v. Vanderpool, supra. The amount should either be fixed in a sum certain or determinable through a method agreed to by the parties. La. C.C. art. 2676. The term of the lease may be agreed to by the parties or fixed by law. La. C.C. art. 2678. Thus, agreement as to term is not an essential element of a lease.

The existence or nonexistence of a lease is a question of fact. Landers v. Integrated Health Services of Shreveport, 39,739 (La.App.2d Cir.5/11/05), 903 So.2d 609, citing Crowe v. Homesplus Manufactured Housing, Inc., 38,382 (La.App.2d Cir.6/21/04), 877 So.2d 156. An appeals court may not set aside a trial court’s finding of fact in the absence of manifest error or unless clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). This standard requires the appellate court to give great | ^deference to credibility determinations made by the trier of fact. Id. However, where documents or objective evidence contradict the witness’s story or where the story is internally inconsistent or implausible on its face such that a reasonable factfinder would not give it credit, an appellate court may find the trial court’s factual finding clearly wrong or manifestly erroneous even when based on a credibility determination. Id.

Also, where legal error impedes the fact-finding process, the manifest error standard no longer applies; when possible, the appellate court should conduct a de novo review of the record and render judgment on the merits. St. Andrews Place, Inc. v. City of Shreveport, 40,260 (La. App.2d Cir.11/4/05), 914 So.2d 1203, citing Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742. Legal error occurs when the trial court applies incorrect principles of law. Such errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Lasha v. Olin Corp., 625 So.2d 1002 (La.1993).

Having thoroughly reviewed the record, including the trial court’s ruling at the close of the hearing, we find legal error in its application of the law in determining whether there was a lease between the parties. The trial court found “no written evidence” of an agreement on the amount of rent. The court also determined that the written agreement of October 28, 2002, was not a lease, because it did not have the “necessary parts that one would expect in a lease” and the parties had not “put the finishing touches on their agreement.” The law provides that the form of a lease may be oral or written. La. C.C. art. 2681. The trial court restricted its analysis to whether [ 1sthere was written evidence of the lease agreement between the parties and failed to address whether there was an oral agreement as to any of the lease terms. It also appears that the trial court was looking for something other than agreement as to the essential elements required to confect a lease. The trial court’s finding of a two-year lease “by Mr. Porter’s agreement” is also contrary to the very definition of a lease which is contract between two parties requiring the consent of both as to the essential elements. See La. C.C. art. 2668; La. C.C. art. 1906. These legal errors were clearly prejudicial as they materially affected the outcome of the litigation and deprived Southern Treats of substantial rights. In light of the legal errors apparent from the trial court’s ruling, a de novo review of the record is warranted.

Even in the absence of legal error, we also find manifest error in the trial court’s ruling. The trial court’s finding of a two-year lease was based on a credibility determination in favor of Porter. However, this credibility determination was clearly inconsistent with the documentary evidence, particularly the October 28, 2002 agreement and the two leases prepared by Porter, all of which had an initial term of five years. The credibility determination was also inconsistent with the testimony of every other witness, including Porter’s former assistant who contradicted his claim that he asked her to change the term from five to two years. Finally, the credibility determination was inconsistent with the trial court’s own conclusion that all the witnesses testified credibly as to how they viewed the facts. If all the witnesses were found credible, it is bewildering that the trial | ucouri; would accept the testimony of the sole witness whose testimony was contrary to the others on the alleged existence of a two-year lease. We also find manifest error in the trial court’s finding of no lease agreement for the reasons explained in our de novo review.

Our law requires courts to give legal effect to all written contracts according to the parties’ intent as determined by the words of the contract when they are clear, explicit, and lead to no absurd consequences. First South Farm Credit, ACA v. Gailliard Farms, Inc., 38,731 (La.App.2d Cir.8/18/04), 880 So.2d 223. Signatures on an agreement are not mere ornaments. A person who signs a written agreement is presumed to know its contents and cannot avoid its obligations by claiming that he did not read it, that he did not understand it, or that it was not explained. Id. See also St. Andrews Place, Inc. v. City of Shreveport, supra.

Porter and Ferris signed a written agreement on October 28, 2002. Although in the form of a letter to the franchisor’s vice-president of leasing, it is still an agreement as indicated by the unambiguous phrase “[a]n agreement is made.” The written agreement sets forth the thing to be rented and the term. The term agreed upon is five years with two five year options. The agreement is signed by Mark Porter and Scott Ferris. Porter even testified that he signed it as a letter of intention. As will be addressed, the parties had already agreed on a formula for calculating rent. Thus, with the oral rent agreement and the written agreement, they confected a valid lease and / or a binding and enforceable contract to lease at a future time.

|1sCounsel for Porter argues that the letter agreement is not a lease because it contains various inaccuracies. We find no merit to this argument. Regardless of the alleged inaccuracies as to the description of the parties, there is no question that Porter and Ferris had full authority to enter the agreement on behalf of their respective businesses. Nothing in the record suggests that Porter was misled by the alleged inaccuracies or questioned them at the time of signing. We also find no merit to the argument that it was not intended as a lease because it was drafted from sample materials in a franchise packet sent to Ferris. Ferris’s use of the materials as a guide to draft the agreement is not relevant to determining its meaning and legal effect. The fact that it was sent to the franchisor does not render it any less valid. Rather, that it was sent to show the existence of an agreement as to a specific lease term for purposes of securing the franchise further evidences the parties’ consent to their agreement.

Although Porter testified that the document was meaningless and that he signed it to speed up the franchise process, he also testified that he did not voice objections or inform Ferris that he did not consider the agreement binding. Porter affixed his signature to a document clearly stating that it was' an agreement. His signature is not a mere ornament, and he is presumed to know the contents of the document he signed. The written agreement establishes the thing to be rented and -the term of five years with two options. While the written agreement alone is not sufficient as a lease, the record also establishes an oral agreement as to rent.

| ^Testimony establishes that rent was agreed upon at the time of the first meeting between Ferris and Porter. It was to be twelve percent of the building cost. As noted, rent is sufficient if it can be determined by some method agreed to by the parties. La. C.C. art. 2676. Though Porter testified that he told Ferris at their first meeting that he wanted something additional for land value, he also testified that he did not discuss this additional price at any other meeting of the parties until he presented his own written lease at the grand opening over a year after he first met with Ferris about the project and after Southern Treats had moved into the building. In the meantime, the parties met to discuss the architect and construction bids. In accepting Brian Builders’ bid and adding $10,000 for overages, the parties determined in accordance with the agreed upon formula that rent would be $2,250 per month. There were no objections by Porter, and his own testimony was that he mentioned nothing about land value even though he had recently received an offer which he believed reflected land value and would have surely caused a substantial increase in the amount of rent. His lack of objection is properly construed as consent to the amount of rent. We can discern no reason why he would have neglected to inform Southern Treats that he wanted something more for land value at this pivotal juncture of the project. Both Ferris and the Rogers testified that Porter never discussed land value, and the first they heard of it was when Porter presented a new lease at the grand opening.

From this testimony, we find that the parties’ agreement as to rent was for twelve percent of the building costs or $2,250 per month. The 117record does not establish that the rent is out of proportion to the value of the thing. In light of the facts and circumstances established at trial, we give no credence to Porter’s claim that he mentioned land value at the initial meeting with Ferris and did not agree to rent that excluded the land value. The fact that Porter received subsequent offers and may have concluded that he could have made a better deal elsewhere does not negate his obligations under the agreement he made with Ferris.

The testimony establishes an oral agreement on a formula for calculating rent from the inception of the parties’ project, a written agreement on October 28, 2002, as to the thing and term, and an oral agreement as to the specific amount of rent determined in accordance with the agreed upon formula prior to the start of construction. As stated, the intent to create a lease may be inferred from the established facts, circumstances, and acts of the contracting parties. Pelican State Bank v. Webb, supra. This is not a ease in which a lessor simply leased a building to a business. Rather, the parties entered an agreement from the start for the construction of a build-to-suit building for the specific purpose of Southern Treats operating a TCBY / Mrs. Field’s shop. Porter paid construction costs in return for a twelve percent return on his investment. He actively worked with Southern Treats to secure an architect and a reasonable bid for the project so as to keep costs and rent at an amount affordable to the new business. Southern Treats also paid a small part of construction costs as well as the architect’s fee for a building it would not own. It also invested roughly $200,000 in obtaining the franchise and purchasing equipment for | isoperations. It is implausible that either party would have proceeded with these arrangements without a lease. The facts, circumstances, and acts of the parties lead to the conclusion that they had an agreement for lease of the build-to-suit building for five years with two five-year options to renew and rent of $2,250 per month calculated in accordance with the formula of twelve percent of the building costs. The lease was confected through both a written agreement and an oral agreement as to the required terms. We find nothing in our law that would prohibit this.

While the agreement in this matter may be atypical of the lease agreements generally entered into by Porter through his real estate holding companies, the agreement is no less a lease under the law. The parties agreed to the essential terms for confecting a lease. Accordingly, we find in favor of Southern Treats regarding the existence of a lease for five years with two five-year options to renew with rent as stated herein. They are granted a declaratory judgment regarding the terms of the lease and injunctive relief preserving the status quo in accordance with the agreed upon terms. Porter’s request for eviction is denied.

CONCLUSION

For the reasons stated in this opinion, the trial court’s judgment is reversed, judgment is rendered as stated above, and costs are assessed to appellee, Titan Properties / Mark Porter.

REVERSED.

      . Mark Porter is the owner and manager of Titan Properties L.L.C., a real estate holding company that owns the property at issue. Although Porter was dismissed as an individual defendant along with Porter’s Cleaners, this opinion will refer to Porter rather than Titan, as Porter was involved in all meetings and negotiations acting as, and on behalf of, Titan.

      . The Louisiana Civil Code articles pertaining to lease, Arts. 2668 to 2744, were revised, amended, and reenacted by Acts 2004, No. 821, effective January 1, 2005. With regard to the issues in this matter, there are no changes in the law.


source: Caselaw Access Project

author: WILLIAMS, Judge.

license: Public Domain

text:
    PACE ROYALTY TRUST FUND, INC., Plaintiff-Appellant, v. Ben G. O’NEAL, et al, Defendant-Appellee. Dzurik Interest, Inc., Plaintiff-Appellant, v. Ben G. O’Neal, et al., Defendant-Appellee.
    Nos. 40,841-CA, 40,842-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 19, 2006.

      David A. Szwak, Shreveport, for Appellant.
    David Klotz, Shreveport, for Appellee.
    Before WILLIAMS, GASKINS and LOLLEY, JJ.
   WILLIAMS, Judge.

hThe plaintiffs, Pace Royalty Trust Fund, Inc. (“Pace”) and Dzurik Interests, Inc. (“Dzurik”), appeal judgments in favor of the defendants, Ben O’Neal and Sally Webb. The district court sustained the defendants’ exception of no right of action, dismissing Pace’s claims, and defendants’ exception of res judicata, dismissing Dzu-rik’s claims. For the following reasons, we affirm the judgment sustaining the exception of no .right of action, reverse the judgment sustaining the exception of res judi-cata and remand.

FACTS

Ben O’Neal and Sally O’Neal Webb (“O’Neal/Webb”) own 599 acres of land in DeSoto Parish. In 1985, O’Neal/Webb granted a mineral lease on the property to JLH Enterprises, Inc. (“JLH”). Three wells were completed on the leasehold, O’Neal No. 1, O’Neal No. 2 and O’Neal No. 3. At various times during the ensuing years, the lease was assigned to different mineral lessees. At some point, JLH assigned its working interest in the lease to Ida Oil Corporation (“Ida Oil”). In May 1992, Sundance Energy Corporation (“Sundance”) began production operations under the lease through an agreement with Ida Oil. While Sundance operated the lease, only the O’Neal No. 2 well (“OW-2”) was producing. In March 1999, O’Neal/ Webb sent a letter complaining about a late royalty payment and demanding release of the lease by Sundance and Ida Oil, the mineral lessee at the time. In May 1999, Pace assumed operation of the wells on the leased property. In July 1999, Pace sent a royalty payment to O’Neal/ Webb for OW-2 production.

|aIn March 2000, O’Neal filed an affidavit in the DeSoto Parish conveyance records alleging that the 1985 mineral lease had expired by its own terms because the OW-2 had not produced since May 1999 and no production reports had been filed with the Louisiana Office of Conservation since June 1999. In March 2000, O’Neal/Webb also executed and recorded a mineral “top lease” with C.H.C. Gerard. ,In a transfer effective on March 1, 2001, Ida Oil assigned its leasehold rights to Dzurik. At the same time, Pace conveyed its interest as operator to Dzurik.

In July 2001, O’Neal/Webb filed suit in district court (# 61,911) against JLH, Ida Oil and Dzurik, seeking a declaratory judgment that the mineral..lease had expired- by its own terms and other relief in the alternative. Dzurik filed an answer and reconventional demand alleging that its right to peaceable enjoyment of its leasehold interest had been disturbed by various acts of O’Neal/Webb , and their agents, including the March 2000 “top lease” and the O’Neal affidavit. After a trial, the district court rendered judgment finding that the 1985 mineral lease remained in effect in favor of the lessee and ordering that any royalties owed to the lessors be paid in full, with interest from the original due date. On appeal,, this court affirmed the judgment. O’Neal v. JLH Enterprises, Inc., 37,432 (La.App.2d Cir.12/1/03), 862 So.2d 1021.

In February 2005, Dzurik filed a petition for damages against the defendants, Ben O’Neal and Sally Webb, alleging breach of the mineral lease, bad faith breach of warranties, breach of peaceable possession and use, constructive eviction and abuse of process. Defendants filed an |sexception of res judicata on the grounds that Dzurik should have asserted ¿11 of its claims in the prior litigation, pursuant to the provisions of LSA-C.C.P. art. 1061 and LSA-R.S. 13:4231.

In February 2005, Pace filed a petition for damages against the defendants, Ben O’Neal and Sally Webb, alleging breach of the mineral lease causing lost profits and revenue. Defendants filed an exception of no right of action on the grounds that Pace did not have any ownership interest in the lease at any time relevant to the events alleged in the Pace petition.

At the hearing on both exceptions, the district court admitted into evidence the documents introduced by Dzurik and Pace over- defendants’ objection, but excluded live testimony. The court allowed Dzurik and Pace to proffer the deposition testimony of George Harrison, a principal of Pace, Michael Dzurik, owner of Dzurik and William Roseberry, principal of Sundance.

The district court sustained the defendants’ exception of res judicata, finding that Dzurik’s claims arose out of the same transaction as the prior litigation in O’Neal v. JLH, and sustained the defendants’ exception of no right of action, finding that Pace had not owned any leasehold rights. The court rendered separate judgments dismissing the claims of Dzurik and Pace. Dzurik and Pace appeal the judgments.

DISCUSSION

Pace contends the district court erred in sustaining the exception of no right of action. Pace argues that its right of action was established by evidence showing that Pace was the operator of the leased property and that 14Pace had executed a valid contract to purchase Ida Oil’s lease interest.

An action can only be brought by a person having a real and actual interest which he asserts. LSA-C.C.P. art. 681. The exception of no right of action is designed to test whether the plaintiff has an actual interest in the action. LSA-C.C.P. art. 927(5). The function of the exception of no right of action is to determine whether the particular plaintiff belongs to the class of persons to whom the law grants a remedy for the particular harm alleged. Louisiana Paddlewheels v. Louisiana Riverboat Gaming Commission, 94-2015 (La.11/30/94), 646 So.2d 885. The exception of no right of action assumes that the petition states a valid cause of action for some person and questions whether the plaintiff in the particular case has a legal interest in the subject matter of the litigation. Louisiana Paddlewheels, supra; Elmore v. Kelly, 39,080 (La.App.2d Cir.12/15/04), 889 So.2d 1173. To prevail, the defendant must demonstrate that plaintiff does not possess an interest in the subject matter of, or legal capacity to proceed with, the lawsuit. McPherson v. Foster, 03-2696 (La.App. 1st Cir.10/29/04), 889 So.2d 282.

In the present case, the record shows that Harrison, as owner of Pace, conducted negotiations with Ida Oil in an effort to obtain its lease interest. These negotiations began in 1999 and resumed in 2001. On February 13, 2001, Harrison faxed to Ida Oil a letter stating Pace’s “offer to purchase” Ida Oil’s lease interest for the amount of $45,500 to be paid at closing within thirty days. The date for the closing and signing of the assignment of Ida Oil’s lease interest was extended to March 26, 2001. However, Ida Oil did not execute the assignment of its lease interest to Pace by the deadline 15date because of a disagreement regarding the indemnity protection extended to Ida Oil. Thus, the record does not contain an assignment of lease interests from Ida Oil to Pace. Rather, the exhibits admitted into evidence show that on April 24, 2001, Ida Oil assigned all of its right and interest in the subject mineral lease to Dzurik, effective as of March 1, 2001. Although Pace, as operator of the wells, signed an agreement transferring all of its “right, title and interest” in the leased property, including pipelines, facilities and equipment servi-tudes to Dzurik, the record does not support Pace’s contention that it had obtained the leasehold interest of Ida Oil.

The evidence presented demonstrates that Pace did not possess a legal interest in an action for damages caused by breach of the mineral lease. Accordingly, we cannot say the district court erred in sustaining the exception of no right of action. LSA-C.C.P. art. 934 provides that when the grounds of the objection raised by the peremptory exception may be removed by amendment of the petition, the judgment shall order the amendment within the delay allowed, but if the grounds of objection cannot be so removed, the action shall be dismissed.

Although Pace asserts in its appellate brief that the district court should have allowed it to amend its petition to remove the grounds of objection, we note that Pace did not move to amend its petition when the court sustained the exception and Pace has not shown how such grounds, its lack of a lease interest, could be removed by amendment. The assignment of error lacks merit.

| ⅛Exception of Res Judicata

In several assignments of error, Dzurik contends the district court erred in sustaining defendants’ exception of res judica-ta. Dzurik argues that its reconventional demand in the prior lawsuit, O’Neal v. JLH, supra, seeking a declaratory judgment that the mineral lease was valid did not preclude Dzurik’s present cause of action for damages.

Under LSA-R.S. 13:4231, a subsequent action is precluded by res judicata when: (1) there is a valid and final judgment between the same parties, (2) the cause of action asserted in the second suit existed at the time of the final judgment in the first litigation, and (3) the cause of action asserted in the subsequent suit arose out of the same transaction or occurrence that was the subject matter of the prior litigation. Jones v. Bethard, 39,575 (La.App.2d Cir.4/13/05), 900 So.2d 1081. LSA-C.C.P. art. 1061(B) provides that a defendant in the principal action shall assert in a reconventional demand all causes of action he may have against a plaintiff that arise out of the same transaction or occurrence at issue in the principal action. When an exception of res judicata is raised before the case is submitted and evidence is then received from both parties, the standard of review is manifest error. Medicus v. Scott, 32,326 (La.App.2d Cir.9/22/99), 744 So.2d 192.

LSA-C.C.P. arts. 1871 et seq. govern declaratory judgments and provide that courts may declare rights, status and other legal relations within their respective jurisdictions, whether or not further relief is or could be claimed. LSA-C.C.P. art. 1871. A person interested under a written [ 7contract or lease may have determined any question of construction or validity arising under the instrument. LSA-C.C.P. art. 1872.

LSA-C.C.P. art. 1878 provides:

Further relief based on a declaratory judgment or decree may be granted whenever necessary or proper. The application therefor shall be by petition to a court having jurisdiction to grant the relief. If the application is considered sufficient, the court, on reasonable notice, shall require any adverse party whose rights have been adjudicated by the declaratory judgment or decree, to show cause why further relief should not be granted forthwith.

A declaratory judgment does not constitute an absolute bar to subsequent proceedings where the party is seeking other remedies, even though based upon claims which could have been asserted in the original action. Blaise Parking and Enterprises Corp. v. Project Square 221, 409 So.2d 691 (La.App. 4th Cir.1982); see Claitor v. Delahoussaye, 02-1632 (La.App. 1st Cir.5/28/03), 858 So.2d 469. The declaratory judgment provisions are to be liberally construed and administered in order to afford relief from uncertainty with respect to rights, status and other legal relations. LSA-C.C.P. art. 1881.

In the present case, Dzurik contends its petition for damages is authorized by the above codal articles. We agree. The fact that a party did not couple a claim for damages with a petition for declaratory relief does not bar a subsequent action for damages. Louisiana Riverboat Gaming Commission v. Louisiana State Police Riverboat Gaming Enforcement Division, 97-0167 (La.App. 1st Cir.6/20/97), 696 So.2d 645, writ denied, 97-1932 (La.11/7/97), 703 So.2d 1269.

The defendants urge this court to consider only Article 1061(B) and |sLSA~ R.S. 13:4231 and assert that Article 1878 should not be applied. However, we note that the provisions of Section 4231 apply “except as otherwise provided by law.” When statutes conflict, the law that is specifically directed to the matter at issue must prevail as an exception to the law that is more general in nature. Horil v. Scheinhorn, 95-0967 (La.11/27/95), 663 So.2d 697. Thus, Articles 1871 et seq. will govern in cases involving declaratory judgments.

Where, as here, a declaratory judgment has been sought and rendered, Article 1878 allows the district court to grant further relief based upon that judgment whenever “necessary or proper.” Such relief is sought by means of filing a new petition, as Dzurik did in this case.

After reviewing the applicable law, we conclude that Dzurik was not precluded from asserting a cause of action for the damages alleged in its petition, which was based upon the declaratory judgment finding that the mineral lease was valid. Consequently, the district court erred in sustaining the defendants’ exception of res judicata -and we shall reverse that 'judgment. In reaching this conclusion, we pre-termit discussion of Dzurik’s assignment of error concerning the accrual of its claim for damages caused by an alleged abuse of process.

Evidentiary Issue

Pace and Dzurik contend the district court erred in refusing to allow them to present evidence at the hearing on the exceptions. LSA-C.C.P. art. 931 permits the introduction of evidence to support or controvert an exception of no right of action. The district court has broad discretion 19concerning the admissibility of witness testimony. Combs v. Hartford Ins. Co., 544 So.2d 583 (La.App. 1st Cir.), writ denied, 550 So.2d 630 (La.1989).

Contrary to the contention of Pace and Dzurik, the record shows that the district court admitted into evidence the documentary exhibits offered by their attorney. The court declined to hear witness testimony and allowed Pace and Dzu-rik to proffer the evidence. In admitting the documents, the district court could have determined that the witness testimony was unnecessary. Our review of the proffered testimony demonstrates that the witnesses primarily commented on the documentary exhibits. Pace has not shown in what way the testimony would have affected the court’s decision. Based upon this record, we cannot say the district court abused its discretion in excluding the testimony. The assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the district court’s judgment sustaining the exception of no right of action and dismissing the claims of Pace with prejudice is affirmed. The district court’s judgment sustaining the exception of res judicata as to the claims of Dzurik is reversed, and this matter is remanded to the district court for further proceedings. The costs of this consolidated appeal are assessed to the appellees, Ben O’Neal and Sally O’Neal Webb.

JUDGMENT SUSTAINING THE EXCEPTION OF NO RIGHT OF ACTION AFFIRMED; JUDGMENT SUSTAINING THE EXCEPTION OF RES JUDI-CATA REVERSED AND REMANDED.


text:
    Michael ALLEN, Sr., Individually and on Behalf of the Minor, Sedric Young, Plaintiff-Appellee, v. BROOKSHIRE GROCERY COMPANY d/b/a Super One Foods and Hartford Insurance Company, Defendant-Appellant.
    No. 40,951-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 20, 2006.

      Gordon L. James, Monroe, for Appellant.
    Allan L. Placke, West Monroe, for Ap-pellee.
    Before WILLIAMS, STEWART and GASKINS, JJ.
   WILLIAMS, Judge.

LThe defendants, Brookshire Grocery Company d/b/a Super One Fo.ods (“Super One”) and Hartford Insurance Company, appeal a judgment in favor of the plaintiff, Michael Allen, Sr., individually and on behalf of the minor, Sedric Young. The trial court awarded general damages of $4,750 and medical expenses of $297 for injuries sustained by Young in a slip and fall. For the following reasons, we affirm.

FACTS

After finishing work on Friday evening, December 14, 2001, Michael Allen, Sr. went shopping with two of his sons, Michael Allen, Jr. and Sedric Young, at a Super One store in Monroe, Louisiana. The two boys walked to the frozen food aisle to get ice cream. While walking in the aisle, Sedric slipped in a liquid substance on the floor and fell, landing on his hip. Allen reported the accident to a cashier and a store manager before leaving.

The next morning, Sedric said that his hip was still hurting and Allen took him to the emergency room at St. Francis Medical Center. In his physical examination, Dr. Robert Kerry observed that Sedric, who was eleven years old, walked with a slight limp, but noted that his hip displayed a full range of motion and that the x-rays were normal. Dr. Kerry diagnosed Sedric with a contusion and swelling of his left hip and restricted him from participating in sports or physical education for one week. Sedric did not receive any further treatment for the injury.

Subsequently, the plaintiff, Michael Allen, Sr., individually and on behalf of the minor, Sedric Young, filed a petition for damages against the defendants, Super One and its insurer, Hartford Insurance Company. After |2a trial, the court rendered judgment awarding plaintiff general damages of $4,750 and medical expenses of $297. Defendants appeal the judgment.

DISCUSSION

The defendants contend the trial court abused its discretion by awarding excessive general damages. Defendants argue that the award of $4,750.00 is abusively high for the hip injury of an 11-year-old boy who slipped and fell in a puddle of liquid at a supermarket.

In the assessment of damages in cases of offenses, quasi offenses, and quasi contracts, much discretion must be left to the judge or jury. LSA— C.C. art. .2324.1. Before an appellate court can question a trial court’s award of damages as excessive, the appellate court must first look, not at prior awards, but at the individual circumstances of the case. The discretion vested in the trier of fact is great, and even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994).

Reasonable persons frequently disagree about the measure of general damages in a particular case. Only when an award is beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances should an appellate court increase or reduce the award. Youn, supra.

Whether an award is excessive depends upon whether the amount can be supported under the interpretation of the evidence most favorable to the plaintiff that reasonably could have been made by the trier of fact. To be an |3abuse of discretion and excessive, an award must be so high in proportion to the seriousness of the injury that it shocks the conscience. Jones v. Super One Foods/Brookshires Grocery Co., 33,683 (La.App.2d Cir.8/23/00), 774 So.2d 200.

In the present case, Sedric testified that his leg and hip hurt during the evening after his fall and that he still felt pain the following morning when he was taken to the hospital. The medical records indicate a diagnosis of contusion and soft tissue swelling of the hip. Dr. Kerry instructed Sedric to take two ibuprofen every six hours and to apply ice compresses four times a day for 15 minutes. Dr. Kerry restricted Sedric from playing sports and participating in physical education for one week. The total medical expenses were $297.

Sedric stated that the medical restriction meant he could not lift weights or play basketball with his school team. Sedric testified that when he resumed playing sports, he was unable to fully participate in the weight training program or to play basketball at “full speed” before the end of January. Sedric added that when he began lifting weights again, he “couldn’t lift what I was lifting at first” and that he did not play basketball for about one month, apparently referring to the Christmas break plus the week after school was back in session. Sedric stated that his pain lasted approximately one month and that he did not miss any school as a result of the injury.

In his deposition, Michael, Jr. testified that he saw Sedric fall and that his hip hit the floor first. Michael stated that after the fall, Sedric told their Rfather that his hip and leg hurt. Michael testified that afterward Sedric was holding his hip and he seemed to be in some pain.

The trial court heard the testimony, weighed the credibility of the witnesses and considered the medical report. Based upon the evidence presented, the trial court could reasonably have found that this eleven-year-old child sustained a soft tissue injury that caused him pain and limited his activities for approximately one month.

The role of the appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but to review the exercise of discretion by the trier of fact. Although the award of general damages in this case is at the upper end of the range of appropriate awards, it does not exceed the highest amount reasonably within the trial court’s broad discretion in assessing damages. Accordingly, after reviewing the record, we cannot say the general damages award is abusively high. Thus, the assignment of error lacks merit.

CONCLUSION

For the foregoing reasons, the trial court’s judgment is affirmed. Costs of this appeal are assessed to the appellants, Brookshire Grocery Company d/b/a Super One Foods and Hartford Insurance Company.

AFFIRMED.


author: CLARENCE E. McMANUS, Judge.

text:
    Donna WILSON v. OCHSNER FOUNDATION HOSPITAL.
    No. 05-CA-953.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.
    Rehearing Denied May 12, 2006.

      William R. Mustian, III, Stanga & Mus-tian, Attorney at Law, Metairie, Louisiana, for Plaihtiff/Appellant.
    Don S. McKinney, John L. Fontenot, Adams and Reese, Attorneys at Law, New Orleans, Louisiana, for Defendant/Appel-lee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY and CLARENCE E. McMANUS.
   CLARENCE E. McMANUS, Judge.

1 ¡.Plaintiff, Donna Wilson, appeals from the trial court’s decision granting summary judgment in favor of defendant Ochsner Foundation Hospital (“Ochsner”), dismissing her suit. For the reasons that follow, we affirm the decision of the trial court.

On March 21, 2001, plaintiff filed her petition for damages alleging that she was the daughter and caretaker of Catherine O’Bryant and that Ms. O’Bryant had been hospitalized at Ochsner for complications secondary to a stroke. Plaintiffs petition alleges that on May 6, 1997, Ochsner prematurely discharged Ms. O’Bryant from care, without the necessary medications and equipment needed for her care. As a result, Ms. O’Bryant suffered severe physical and emotional distress and aggravation of a pre-existing condition. Ms. O’Bryant died on October 23, 2000, prior to the filing of the suit, and therefore plaintiff was the proper party to institute “this survival action for damages sustained by the decedent.”

On August 2, 2004, almost three years after the filing of the petition, Ochsner filed a motion for summary judgment. In its motion, Ochsner argued that | aplaintiff could not meet an essential element of her case. -Defendants argue that the plaintiff had not- identified any expert witness to opine that there was a breach in the standard’of care and that that breach caused damage to the plaintiff. The defendant further stated that it had been three years since plaintiff filed her request for a Medical Review Panel. Plaintiff opposed the motion, contending that her answers to interrogatories, in which she identified Dr. Micelli and two home health nurses as experts who would testify, were sufficient . Defendant rebutted that once it had pointed out the absence of factual support in the form of, expert opinion, the plaintiff was obliged to present sworn testimony, such as an affidavit or deposition, and that the plaintiff in this case had not done so.

After hearing held on October 15, 2004, the trial court rendered judgment on December 7, 2004, granting the motion for summary judgment and dismissing plaintiffs claims against Ochsner. In the judgment, the trial court stated “The mere naming of three experts without providing some evidence of the testimony of each is not evidence of factual support sufficient to establish that plaintiff will be able to satisfy his evidentiary burden of proof at trial.” Plaintiff appeals from this decision.

Summary judgment shall be rendered if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. La.C.C.P. art. 966(B). The movant for summary judgment has the burden of proof. La.C.C.P. art. 966(C)(2). However if the movant will not bear the burden of proof at trial, its |4burden on the motion does not require it to negate all essential elements of the adverse party’s action, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim. La. C.C.P. art. 966(C)(2). Thereafter if the adverse party, plaintiffs herein, fail to produce factual support sufficient to establish they will be able to satisfy their evidentia-ry burden of proof at trial, there is no genuine issue of material fact. La.C.C.P. art. 966(C)(2). Decisions as to the propriety of granting the motion must be made with reference to the substantive law applicable to the case. Mohscm v. Roule-Graham, 05-122 (La.App. 5 Cir. 6/28/05), 907 So.2d 804.

In this case, the plaintiff has alleged that Ochsner committed medical malpractice by releasing Catherine O’Bryant from the hospital prematurely, . and that O’Bryant suffered damages as a result of that malpractice. In a medical malpractice action based on the negligence of a physician, the plaintiff has the burden of proving the applicable standard of care under similar circumstances, breach of that standard of care, and causation between the breach and the injuries. La. R.S. 9:2794 A; Manning v. Sketchier, 99-1128 (La. App. 5 Cir. 3/22/00), 759 So.2d 869.

The jurisprudence has recognized that “an expert witness is generally necessary as a matter of law to prove a medical malpractice claim.” Jackson v. State through Charity Hosp. of Louisiana at New Orleans, 94-2090 (La.App. 4 Cir. 5/16/95), 655 So.2d 795. Opinions of expert witnesses who are members of the medical profession are necessary to determine whether the defendant possessed the requisite degree of knowledge or skill, or failed to exercise reasonable care and diligence. Jeffery v. Bickham, 34,946 (La.App. 2 Cir. 8/22/01), 795 So.2d 443.

In brief to this Court, the plaintiff alleges that the trial court erred in granting summary judgment because defendant failed to produce evidence as to the applicable standard of care. She alleges that in a motion for summary judgment, the burden of proof remains with the movant, and that burden was not met because Ochsner did not discharge its burden of proof by failing to come forth with any evidence to demonstrate how the standard of care was met. Plaintiff further alleges that defendant’s complaint is that its discovery was not satisfied, and that summary judgment is not an adequate vehicle to challenge insufficient discovery responses.

Contrary to her assertions, it is plaintiff, and not Ochsner, who will bear the burden of proving the standard of care, a breach of that standard, and the resulting damages at a trial on the merits. Accordingly, pursuant to La.C.C.P. art. 966(C)(2), Ochsner needed only to show that there was an absence of factual support for one or more elements essential to plaintiffs claim. Thereafter, it was incumbent on plaintiff to produce factual support sufficient to establish that she would be able to satisfy her evidentiary burden at trial.

Ochsner’s motion for summary judgment was predicated on its contention that plaintiff had no expert testimony to support her allegation of breach of standard of care. Plaintiff offered no affidavits or depositions to support her contention that there was a breach, and instead chose to rest on her answers to interrogatories. The trial court found that this was insufficient factual support. We agree with the trial court, finding that plaintiffs answers to interrogatories were insufficient for plaintiff to satisfy her burden of proof at trial.

[ ^Plaintiff next contends that a motion for summary judgment is an improper vehicle to challenge insufficient discovery. In her answer to requests for production of documents, plaintiff states that she had not taken statements or obtained documents form the identified experts, or any other persons.

In Young v. Mobley, 05-547, (La.App. 8 Cir. 3/1/06), 923 So.2d 917, the trial court granted summary judgment because plaintiff failed to identify an expert witness to support its medical malpractice claim. Plaintiffs contended that that summary judgment was inappropriate because of outstanding discovery. In that case, plaintiffs had not answered interrogatories. They argued, as did the plaintiff in this case, that defendants should have filed a discovery motion instead of a motion for summary judgment. On review the court noted that there is “no absolute right to delay action on a motion for summary judgment until discovery is completed” and that “the only requirement is that the parties be given a fair opportunity to present their claim.” At p. 921, citing Simoneaux v. E.I. du Pont de Nemours and Co., Inc., 483 So.2d 908, 912. After considering that the motion for the summary judgment was made one year after suit was filed and six years after the incident in question, the court of appeal concluded that plaintiffs were “certainly given an opportunity to present any expert testimony to support their claim, or any other evidence in their favor, in opposition to the motions for summary judgment.” At page 922.

In this case, the alleged malpractice occurred over eight years ago and the suit was filed five years ago. Plaintiff has had more that ample time to obtain expert testimony or other evidence, and her failure to do so should not preclude summary judgment. Pemeone v. East Jefferson General Hosp., 98-343 (La.App. 5 Cir. 10/14/98), 721 So.2d 48.

17FinaIly, plaintiff alleges that the trial court erred in granting the motion for summary judgment because the defendant did not file a “Statement of Uncontested Facts.” In this particular case, the uncontested facts as recited in open court are that the Ms. O’Bryant received treatment and was subsequently discharged from Ochsner. We do not find that the failure to file a statement with these facts should preclude summary judgment.

For the above discussed reasons, the judgment of the trial court is affirmed. All costs are assessed against appellant.

AFFIRMED.

      . The attachments to the motion for summary judgment, include the petition for a medical review panel. There was no subsequent decision issued by the panel. According to the motion for summary judgment, the parties waived the medical review panel. ■

      . Plaintiff's "Answers to Interrogatory No.8” states:
      Dr. Joseph Micelli, Ochsner Clinic, Jefferson Hwy., Jefferson, LA, expected to testify as a medical expert and specifically regarding whether Catherine O’Biyant was properly discharged from the hospital on May 10, 1997.

      Sharon Simon, home health aide, New Orleans, LA, expected to testify regarding her knowledge of the facts surrounding the premature discharge and her opinion that Catherine O'Biyant was improperly discharged.
      Diane Saucier, home health nurse, River Ridge, LA, expected to testify regarding her knowledge of the facts surrounding the premature discharge and her opinion that Catherine O’Biyant was improperly discharged.

      . LSA-R.S. 9:2794 provides in part:
      A. In a malpractice action based on the negligence of a physician licensed under R.S. 37:1261 et seq ...., the plaintiff shall have the burden of proving:
      (1)The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians ... within the involved medical specialty.
      (2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill.
      (3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred.


author: SUSAN M. CHEHARDY, Judge.

text:
    Jerome MAIORANA and Carol Maiorana v. MELANCON METAL BUILDINGS, INC., the Burlington Insurance Company, Southern Ice Equipment Distributors, Inc., and Dana Corporation.
    No. 05-CA-933.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 25, 2006.
    Amending Order on Grant of Rehearing May 10, 2006.

      Kenneth R. Bowen, Denise C. Puente, M. Davis Ready, Susan M. Caruso, Simon, Peragine, Smith & Redfearn, L.L.P., New Orleans, Louisiana, for Plaintiffs/Appellants, Jerome Maiorana and Carol Maiora-na.
    Kirk L. Landry, Keogh, Cox & Wilson, Ltd., Baton Rouge, Louisiana, for Interve-nor/Appellant, Transcontinental Insurance Company.
    Wayne R. Maldonado, Stephen M. Gelé, Ungarino & Eckert, LLC, Metairie, Louisiana, for Defendant/Appellee/Appellant, Dana Corporation.
    Brian C. Bossier, Tara Nunez Smith, Erin H. Boyd, Blue Williams, L.L.P., Me-tairie, Louisiana, for Defendant/Appellee, Southern Ice Equipment Distributors, Inc.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and CLARENCE E. McMANUS.
   SUSAN M. CHEHARDY, Judge.

| aThis is personal injury suit, in which several parties appeal a summary judgment that dismissed one of the defendants. We reverse and remand.

Jerome Maiorana, a roofing contractor, was severely injured when he fell through a fiberglass skylight while inspecting the roof of a warehouse building at 5128 Sto-rey Street in Harahan. The skylight had been painted over with a gray coating that made it indistinguishable from the rest of the roof.

The warehouse was leased by Southern Ice Equipment Distributors, Inc. (“Southern Ice”) from its sister corporation, Southern Investments, Inc. In 2001, before Southern Ice moved into the building, it hired Dana Corporation (“Dana”) to renovate the interior office space and to repair the roof. Dana hired Melancon Metal Buildings, Inc. (“Melancon Metal”) to perform the roof repairs. To extend the life of the metal roof, which was rusting, Me-lancon Metal coated over the roof with a gray rubber-like substance. The roof had numerous fiberglass skylights built into it. While coating the metal roof surface, Me-lancon Metal coated the edges of the skylights to seal them.

The roof continued to leak, however. Southern Ice repeatedly called Dana to cure the problem. Dana brought Melan-con Metal back to correct the leaks. Me-lancon Metal recoated the roof. Eventually, after determining that two of the |4skylights over the office area may have been leaking, Danny Chartier of Dana told Gerald Melancon, proprietor of Melancon Metal, to cover the skylights, but did not instruct Mr. Melancon what material to use to cover the skylights. Some time in October 2002, Melancon Metal painted over the two skylights with the same coating used to seal the roof.

Nevertheless, the roof continued to leak, so Dana eventually hired Southern Roofing Company, Inc. (“Southern Roofing”) to repair the roof. On April 24, 2003, Jerome Maiorana, owner/operator of Southern Roofing, came to inspect the warehouse roof and to locate the problem areas. While walking on the warehouse roof during his inspection, he stepped onto one of the coated-over skylights and fell through, landing on the floor 20 feet below. He was seriously injured.

Mr. Maiorana and his wife filed suit against Melancon Metal, Melancon Metal’s insurer, Southern Ice, and Dana. Transcontinental Insurance Company (“Transcontinental”), workers’ compensation insurer of Southern Roofing, intervened to recover benefits paid to Mr. Maiorana.

Southern Ice filed a motion for summary judgment on the basis that strict liability does not apply and that it was not negligent, because it neither knew nor should have known that the skylight had been coated over in a manner that made it indistinguishable from the rest of the roof.

The district court granted summary judgment, dismissing the claims against Southern Ice. The Maioranas, Transcontinental, and Dana have appealed.

The Maioranas assert the trial court erred, first, in acting as factfinder by weighing contradictory evidence presented on genuine issues of triable fact and adjudicating the issue of liability; second, in rendering summary judgment despite genuine issues of material fact as to whether Southern Ice, as custodian of the | fjbuilding, breached its duty to the plaintiff to discover or warn of the unreasonably dangerous condition on the premises that caused the plaintiff to sustain injuries.

Transcontinental has adopted the brief of the plaintiffs, the Maioranas.

Dana asserts the trial court erred by not holding Southern lee, as a lessor, strictly liable under La.C.C. art. 2695, and by granting summary judgment when there are genuine issues of material fact as to whether Southern Ice knew or should have known of an unreasonably dangerous condition in a building in its custody.

STANDARD OF REVIEW

“The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. ... The procedure is favored and shall be construed to accomplish these ends.” La.C.C.P. art. 966(A)(2).

The motion for summary judgment should be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(B).

The burden of proof is on the moving party. La.C.C.P. art. 966(C)(2). However, if the moving party will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the moving party’s burden on the motion is satisfied by pointing out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. Thereafter, the adverse party must produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial; failure to do so shows that there is no genuine issue of material fact. Id.

Summary judgments are reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether 1 fisummary judgment is appropriate. Smith v. Our Lady of the Lake Hospital, Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750. “An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law.” Id.

A “genuine issue” is a “triable issue,” that is, an issue on which reasonable persons could disagree. Jones v. Estate of Santiago, 03-1424, p. 6 (La.4/14/04), 870 So.2d 1002, 1006.

In determining whether an issue is “genuine,” courts cannot consider the merits, make credibility determinations, evaluate testimony or weigh evidence. “Formal allegations without substance should be closely scrutinized to determine if they truly do reveal genuine issues of fact.”
A fact is “material” when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. “[FJacts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Simply put, a “material” fact is one that would matter on the trial on the merits. Any doubt as to a dispute regarding a material issue of fact must be resolved against granting the motion and in favor of a trial on the merits. [Citations omitted.]

Smith, 93-2512 at p. 27, 639 So.2d at 751.

STRICT LIABILITY

La.C.C. art. 2317.1, added by Acts 1996, 1st Ex.Sess., No. 1, § 1 (eff. April 16, 1996), eliminated the distinction between the strict liability and negligence of the owner or custodian of property, by requiring a showing of knowledge or constructive knowledge in order to impose liability. Dupree v. City of New Orleans, 99-3651, p. 5 (La.8/31/00), 765 So.2d 1002, 1007, n. 5.

At the time of the accident, however, La.C.C. art. 2695 provided:

|7The lessor guarantees the lessee against all the vices and defects of the thing, which may prevent its being used even in case it should appear he knew nothing of the existence of such vices and defects, at the time the lease was made, and even if they have arisen since, provided they do not arise from the fault of the lessee; and if any loss should result to the lessee from the vices and defects, the lessor shall be bound to indemnify him for the same.

Despite the passage of La.C.C. art. 2317.1, La.C.C. art. 2695 retained the concept of strict liability. Montecino v. Bunge Corp., Inc., 04-875, p. 5 (La.App. 5 Cir. 2/15/05), 895 So.2d 603, 606, unit denied, 05-0962 (La.6/17/05), 904 So.2d 704. Article 2317.1 did not impinge upon the lessee’s cause of action in strict liability against the lessor under La.C.C. art. 2695. Id.

Dana contends there is no controlling jurisprudence from either this Circuit or the Louisiana Supreme Court that would bind this Court to hold that Article 2695 benefits only lessees and their injuries, and does not benefit invitees of lessees, or lessees when sued by invitees. Dana acknowledges that several of the circuit courts of appeal have limited Article 2695 to the lessor-lessee relationship, but urges us to “adopt a more expansive interpretation of Article 2695 which would include rendering lessors strictly liable when a defect in the thing caused a lessee to suffer the loss of being sued as liable to the lessee’s invitee who was injured by the defect.” Original Brief of Defendant/Appellant, Dana Corporation, at 8.

Contrary to Dana’s assertion, this Court has previously held that Article 2695 applies only within the lessor-lessee relationship:

Yet another theory advanced by plaintiff is that La.Civ.Code, art. 2695, governing the duties of a lessor to provide premises free of defects to his lessee, should be applied here in regard to plaintiff, an invitee of the lessee. This argument has repeatedly been considered, Land uniformly rejected on the grounds that application of Article 2695 is restricted to the lessor-lessee relationship and does not apply to third parties. [Citations omitted.]

Han v. Favrot & Shane Properties, 615 So.2d 389, 391-392 (La.App. 5 Cir.1993), writ denied, 617 So.2d 910 (La.1993); see also, Gallagher v. Favrot, 499 So.2d 1205, 1207 (La.App. 5 Cir.1986), writ denied, 503 So.2d 23 (La.1987).

“This article’s strict liability is an incident of the parties’ contractual relationship. It arises because the contract of lease contains implied warranties that the leased property is not defective and is fit for its intended use.” Johnson v. Lull Enterprises, Inc., 92-18, p. 5 (La.App. 3 Cir. 10/11/95), 663 So.2d 403, 407, writ denied, 95-2754 (La.2/9/96), 667 So.2d 529.

Accordingly, we find no merit to Dana’s argument that Southern Ice is strictly liable under former La.C.C. art. 2695 for the injuries to Mr. Maiorana, who was a third party outside the lessor-lessee relationship.

NEGLIGENCE

La.C.C. art. 2317.1 provides in pertinent part:

The owner or custodian of a thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care.

Pursuant to this article, the appellants assert that Southern Ice, as custodian of the warehouse building, had an affirmative duty to discover, prevent, and warn of the camouflaged skylight that collapsed beneath Mr. Maiorana’s feet. They contend Southern Ice breached this duty in failing to exercise due care, with the result that Mr. Maiorana sustained severe and disabling injuries, including paralysis and brain injury, when he fell through the hidden skylight.

|flThe appellants argue there are disputed issues of material fact as to whether Southern Ice knew or should have known that the skylights had been coated over and were a danger.

The depositions of Southern Ice employees establish that the main office of Southern Ice is located in Lafayette and the president/owner of the company, Chris Sadler, lives and works in Lafayette. He visits the Jefferson Parish office several times a year. Four employees worked out of the Storey Street building in Harahan: an inside sales manager, an outside sales manager, a parts manager, and a warehouse manager. None of them was designated as a manager of the Storey Street branch, however. The outside sales manager supervised sales calls and sales-related matters, but he was not responsible for physical maintenance. When there were problems with the building, the employees would notify Sadler and Sadler would make arrangements for repairs.

Thus, after the staff moved into the newly-renovated building in 2002, their repeated complaints about roof leaks were relayed by Sadler to Dana Corporation. Dana and/or its subcontractors went repeatedly to the building to make repairs.

The skylights to which Melancon Metal applied the coating were over the office section of the warehouse. Due to a suspended ceiling in the office, the skylights were not visible from within the office, and the employees testified they did not know there were skylights overhead. They were aware of the skylights over the warehouse portion, however, which did -not have a suspended ceiling.

Chris Sadler, the company owner, testified he knew there were skylights, and that he went on the roof once with Danny Chartier of Dana, to inspect it after the initial coating had been applied. However, he examined the edges and gutter areas of the roof, rather than the central portion on which the skylights were |inlocated. Sad-ler and all the staff members claimed they were unaware that two of the skylights had been painted over.

In contrast, Gerald Melancon of Melan-con Metal testified he told the Southern Ice employees that he had covered the skylights because that was where the leak was coming from. None of the Southern Ice employees recalled Mr. Melancon telling them he had covered the skylights.

“In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact.” Hines v. Garrett, 04-806, p. 1 (La.6/25/04), 876 So.2d 764, 765. “All doubts should be resolved in the non-moving party’s favor.” Id.

A trial judge cannot make credibility determinations on a motion for summary judgment. Hutchinson v. Knights of Columbus, Council No. 5717, 03-1533, p. 8 (La.2/20/04), 866 So.2d 228, 234. Further, factual inferences reasonably drawn from the conflicting evidence should be construed in favor of the party opposing the motion. Willis v. Medders, 00-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

We conclude the trial court violated these precepts in granting the motion for summary judgment. To grant it, the court had to choose between the contradictory statements of the Southern Ice employees and Mr. Melancon, which required the court to make inappropriate credibility determinations. Further, the court construed the conflicting evidence against the parties opposing the motion.

For the foregoing reasons, the summary judgment is reversed and the case is remanded for further proceedings. Costs of this appeal are assessed against Southern Ice Equipment Distributors, Inc.

REVERSED AND REMANDED.

JjON REHEARING

The rehearing application of intervenor-appellant -Transcontinental Insurance Company, is GRANTED for the limited purpose of making the following correction. The opinion rendered in this matter on April 25, 2006 hereby is AMENDED as follows:

On page 5, line 3, “Southern Ice” is replaced by “the Maioranas.” The full sentence, as amended, shall state, “Transcontinental has adopted the brief of the plaintiffs, the Maioranas.”

      . Subsequent to the filing of this suit, the Legislature passed Acts 2004, No. 821, effec-five January 1, 2005, which revised Louisiana Civil Code, Book III, Title IX, “Of Lease.” Former La.C.C. art. 2695 is a partial source for present La. C.C. arts. 2696 and 2697. All references in this opinion to La. C.C. art. 2695 refer to that article as it existed prior to the 2004 revision.