author: PARRO, J.

text:
    SUCCESSION OF Geraldine Jones BELL.
    No. 2006 CA 1710.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.

      Kristina Webb Shapiro, Shapiro & Shapiro, L.L.C., Baton Rouge, for Appellee Jackie Netter.
    Dele A. Adebamiji, Felicia E. Adebamiji, Baton Rouge, for Appellant Rhonda McNeely Joseph.
    Before: PARRO, GUIDRY, and McClendon, jj.
   PARRO, J.

|2Rhonda McNeely Joseph appeals a judgment of homologation of the tableau of distribution in Geraldine Jones Bell’s succession, claiming the court did not properly credit her for amounts she spent for the benefit of the estate. She also appeals an earlier judgment finding her in contempt of court.

FACTUAL AND PROCEDURAL BACKGROUND

Rhonda McNeely Joseph is one of Geraldine Bell’s five children — the others are Jackie Netter, Gwendolyn Smith, Sharon Thompson, and Shelia Thompson. Shelia predeceased her mother, leaving two major children, Quantel and Latoya Thompson. Ms. Bell died intestate on November 29, 2003. On March 5, 2004, Netter petitioned to be appointed administratrix of her mother’s succession; the court granted her request on March 8, 2004. The detailed descriptive list filed by Netter showed the decedent’s known assets consisted of a house, home furnishings, personal items, and a car.

On May 11, 2004, Netter filed a motion requesting Joseph to turn over the decedent’s property and all records pertaining to it, alleging that Joseph and her daughter had moved into the decedent’s house and were refusing to grant Netter access to it or information concerning other property of the estate. She also alleged that her mother’s car had been wrecked and impounded while in Joseph’s possession. A hearing was held July 26, 2004, at which time Joseph indicated that she had moved into the house and had put some household furnishings in storage to prevent vandalism, and that she was interested in remaining in the house and eventually purchasing it. A judgment was rendered that day, ordering Joseph to turn over all property of the decedent to Netter, but allowing her to continue to live in her mother’s house pending closing of the succession. The judgment also ordered Joseph to continue to pay the mortgage on her mother’s house and the storage fees for the movables she had put in storage. She was also ordered to pay for retrieving the damaged vehicle from impound storage, to turn over all records and information concerning the assets of the succession, and to provide the residence key and storage unit key to Netter. The judgment was signed September 1, 2004.

in November 2004, Netter moved for authority to list the house for sale for $79,500, averring that despite the September 1 court order, Joseph had refused to | ¡¡provide her with a key or to cooperate in either purchasing the house or in allowing Netter to market it. The motion was granted in an order signed November 18, 2004, in which the court again ordered Joseph to provide keys, authorized Netter to change the locks if the keys were not provided, authorized a realtor’s lockbox to be placed on the home, and ordered Joseph to cooperate in showing the house. Joseph then moved to amend the order to fix the value of the property at $60,000, attaching an appraisal for that amount and stating the appraisal done for Netter was “extremely overpriced.” She also contended Netter should not have unfettered entry into the home, complaining that as a result of the November 18 order, which was rendered without a hearing, Netter had changed the lock on the house and locked Joseph out. She asked the court to order that she be given notice twenty-four hours before any showings of the house and to allow only the realtor, and not Netter, to have access to the house. Joseph’s requests regarding access to the house were granted in an order signed December 29, 2004, and an evidentiary hearing on the value of the house was set.

Before that hearing, Netter moved to amend the detailed descriptive list, to be reimbursed for some expenses, and to be provided with an inventory and accounting from Joseph for some of her mother’s movable property that appeared to be missing. Netter also averred that Joseph had removed the realtor’s lockbox, changed the locks again, removed the “For Sale” sign, and refused to allow showings of the house; she asked the court to order Joseph to vacate the property so it could be marketed. After a hearing on April 25, 2005, the court approved Netter’s amended detailed descriptive list and dismissed Joseph’s motion to value the house at $60,000. The court found Joseph in contempt of court for failing to pay the costs of retrieving the vehicle from impound and ordered her to reimburse Netter for those expenses within 15 days. The court also found her in contempt of court for failing to turn over all furniture and personal effects and gave her fifteen days to cure this contempt. She was also found in contempt for failing to provide Netter with a key, was ordered to reimburse within 15 days the cost Netter had incurred to change the lock, and was ordered to provide Netter with a copy of all keys, to allow a lockbox to be placed on the house, and to cooperate with Netter |4and the realtor in showing the house. The court also ordered Joseph to move out of the house by June 1, 2005, and to maintain the mortgage payments until she vacated the property. She was also ordered to pay attorneys fees in the amount of $1000 for contempt of court, and all costs of the proceedings. The judgment was signed May 11, 2005. In June 2005, in response to a motion filed by Netter, the court ordered that the property be listed for $75,000, and in September 2005, a sale of the house for that amount was approved by the court.

A tableau of distribution was filed by Netter on December 13, 2005, and was opposed by Joseph, who submitted additional mortgage and storage payments for reimbursement. Joseph contended that she owned another house and had moved into her mother’s home only to thwart vandalism and preserve its value. Therefore, she claimed reimbursement for all mortgage payments and storage bills paid by her, including those paid after the court order of July 2004. After a hearing on February 13, 2006, Joseph’s opposition claims were denied, and the tableau of distribution filed by Netter was approved and homologated in a judgment signed March 6, 2006.

Joseph appeals the March 6, 2006 judgment and the May 11, 2005 contempt judgment. She claims the court erred in not reimbursing her for $5,398.12 in mortgage payments and $1,573.00 in storage fees that she paid after her mother’s death; she also contends the contempt judgment was unjustified and excessive. Netter argues that an appeal of the contempt judgment is untimely. She also contends Joseph was reimbursed for all the payments she made before the July 26, 2004 judgment ordering her to pay the mortgage, and that no additional reimbursement for later payments is due, because those payments were pursuant to court order and in recognition of the fact that Joseph was living in the house. Netter also argues that since Joseph was living in the house, there was no need to “protect” the movable property from vandalism by putting it in storage, so the storage fees were not a necessary expense of |5the succession. Netter further states that while the succession remained open, she, as administra-trix of the succession, was the only person with any right to manage the property, pursuant to court order. Therefore, the extraneous expenses that Joseph may have incurred were unauthorized and not due to be reimbursed from the succession.

STANDARD OF REVIEW

The appellate court’s review of factual findings is governed by the manifest error-clearly wrong standard. The two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trial court’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. See Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

With regard to questions of law, the appellate review is simply a review of whether the trial court was legally correct or legally incorrect. Hidalgo v. Wilson Certified Exp., Inc., 94-1322 (La.App. 1st Cir.5/14/96), 676 So.2d 114, 116. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and render judgment on the record. In re Mashburn Marital Trust, 04-1678 (La.App. 1st Cir.12/29/05), 924 So.2d 242, 246, writ denied, 06-1034 (La.9/22/06), 937 So.2d 384.

CONTEMPT OF COURT

We address first the issue of whether the trial court abused its discretion in holding Joseph in contempt of court and imposing a fine on her. In this case, the court held Joseph in contempt for violating the previous orders of the court to pay the costs of retrieving the damaged car from impound storage, to provide Netter with a key and allow her access to the house, and to cooperate with her attempts to market the house. Netter argues that this assignment of error is without merit, because the judgment | (¡finding Joseph in contempt of court was an appealable judgment, which became final when it was not timely appealed.

A direct contempt of court is defined in LSA-C.C.P. art. 222 as “one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, proof of service of which appears of record.” Constructive contempt of court is defined in LSA-C.C.P. art. 224 as “any contempt other than a direct one,” including willful disobedience of any lawful judgment, order, mandate, writ, or process of the court. LSA-C.C.P. art. 224(2). The procedures to be followed in charging and adjudicating a charge of constructive contempt are described in LSA-C.C.P. art. 225, and include a rule to show cause describing the facts alleged to constitute the contempt, notice to the person charged at least 48 hours before the hearing, and a trial of the rule.

A judgment that does not determine the merits, but only preliminary matters in the course of the action, is an interlocutory judgment. A judgment that determines the merits in whole or in part is a final judgment. LSA-C.C.P. art. 1841. An interlocutory judgment is appealable only when expressly provided by law. LSA-C.C.P. art. 2083(C). Even though an interlocutory judgment is not immediately appealable, it can still be reviewed when an unrestricted appeal is taken from a final judgment; in such an appeal, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. Wooley v. Amcare Health Plans of Louisiana, Inc., 05-2025 (La.App. 1st Cir.10/25/06), 944 So.2d 668, 674. A trial court is vested with great discretion in determining whether a party should be held in contempt, and its decision will only be reversed when the appellate court discerns an abuse of that discretion, de Nunez v. Bartels, 97-1384 (La.App. 1st Cir.9/9/98), 727 So.2d 463, 469-70.

A judgment of contempt of court is an interlocutory judgment, since it does not determine the substantive merits of the case. There is no statute allowing an | immediate appeal of a judgment of contempt. Therefore, even if it may have been an appealable judgment when rendered, we must apply the amended provisions of Article 2083 retroactively. Because the contempt issue was raised in connection with the appeal of the final judgment of homologation in the succession, we are required to consider that issue as part of this appeal.

The contempt judgment rendered in this case was for constructive contempt of court, in that Joseph had refused to obey lawful orders of the court. On September 4, 2004, the court ordered Joseph to provide the administratrix with a key to the residence and to pay the impound fees for the car. On November 18, 2004, the court again ordered Joseph to provide the key and authorized Netter to change the locks if Joseph failed to give her the key to the house. By the time of the next hearing in April 2005, Joseph had still not obeyed any of the court’s orders. The court found Joseph in contempt for failing to obey the court’s orders to pay the impound fees, to turn over all furniture and personal effects, and to provide Netter with a key to the house. The court also ordered Joseph to reimburse the estate for amounts Netter had expended in redeeming the damaged vehicle and changing the locks. These amounts had still not been paid at the time the tableau of distribution was homologated. We find no error or abuse of discretion in these assessments, since they were simply reimbursements of amounts that Joseph’s actions had cost the estate.

However, the record fails to show that the procedures outlined in LSA-C.C.P. art. 225 were followed in this case. The motion filed by Netter did not specifically request a finding of contempt of court for Joseph’s refusal to obey the orders of the court. Therefore, although the court was within its authority to require the reimbursement of expenses incurred by the administratrix due to Joseph’s actions, it could not find her in contempt of court and impose penalties without following the mandatory requirement that the facts constituting the alleged contempt be set forth in a rule to show cause. See Lang v. Asten, Inc., 05-1119 (La.1/13/06), 918 So.2d 453, 454-55. Accordingly, the court’s finding of contempt and imposition of $1000 in attorney fees must be reversed.

1 «PAYMENT OF EXPENSES

Succession occurs at the death of a person. LSA-C.C. art. 934. Immediately at the death of the decedent, universal successors acquire ownership of the estate. LSA-C.C. art. 935. Ownership of the same thing by two or more persons is ownership in indivisión, or co-ownership. See LSA-C.C. art. 797. Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in a thing of the estate, as well as his interest in the estate as a whole. LSA-C.C. art. 938(A). A co-owner may, without the concurrence of any other co-owner, take necessary steps for the preservation of the thing that is held in indivisión. LSA-C.C. art. 800. A co-owner who, on account of the thing held in indivisión, has incurred necessary expenses, expenses for ordinary maintenance and repairs, or necessary management expenses paid to a third person, is entitled to reimbursement from the other co-owners in proportion to their shares. If the co-owner who incurred such expenses had the enjoyment of the thing held in indivisión, his reimbursement shall be reduced in proportion to the value of the enjoyment. LSA-C.C. art. 806. If a successor exercises his rights of ownership after the qualification of a succession representative, the effect of that exercise is subordinate to the administration of the estate. LSA-C.C. art. 938(B). The succession representative is a fiduciary with respect to the succession, and has the duty of collecting, preserving, and managing the property of the succession in accordance with law. See LSA-C.C.P. arts. 3191 and 3221. The succession representative may sell estate property and pay estate debts, but only with the authorization of the court. See LSA-C.C.P. arts. 3261 and 3301.

Reviewing the facts of this case in the light of the applicable law, it is clear that Joseph and her siblings became owners in indivisión of their mother’s estate at the moment of her death in November 2003. At that point, as a co-owner of her mother’s property, Joseph had the right to exercise all rights of ownership of that property, including moving into her mother’s house. However, once Netter was appointed as the administratrix of the succession on March 8, 2004, those ownership rights became subordinate to Netter’s rights to administer the property. And Netter’s rights to administer the property were subject to court approval. Therefore, once the administratrix was appointed by the court, Joseph could no longer make unilateral ^decisions about estate property; her decisions were subject to Netter’s authority and ultimately, to the authority of the court.

It is apparent from the record that Joseph never accepted the authority of either the administratrix or the court. She may have believed she was doing the right thing, and perhaps before the admin-istratrix was appointed, Joseph’s actions inured to the benefit of all the co-owners. However, Joseph’s later actions, including her refusal to provide Netter with a key to the house and her attempts to thwart the sale of the house by removing the “For Sale” sign, were detrimental to the interest of the co-owners, because Netter had to return to court numerous times in order to accomplish the duties with which she was charged. Joseph’s unwillingness to accede to the authority of the administra-trix and the court required the expendí-ture of estate funds on attorney fees and court costs.

Despite Joseph’s refusal to cooperate with Netter, Joseph was reimbursed for all the initial mortgage payments that she made before Netter’s appointment, plus additional payments prior to the court’s order in July 2004. She was also reimbursed for insurance and escrow payments made in September 2004. After July 26, 2004, the mortgage payments Joseph made were in fulfillment of the court’s order and recognized that she had complete enjoyment of the house and its contents. Although she testified at the final account hearing that she had never really moved into the house and had completely moved out by January 2005, the court emphatically rejected that contention, stating, “[Y]ou were ordered out of the house . I ordered you to vacate the house so we could sell the property. ... I am offended by this testimony because I consider it to be untruthful.” Joseph never did pay the amounts ordered by the court as a consequence of being held in contempt of court. The final account shows that Netter ultimately had to recoup those administrative expenses by deducting them from the amount disbursed to Joseph.

Joseph’s other claim is that she should be reimbursed for the storage fees she paid after putting some of her mother’s movable property in a storage unit. The only expenses for which a co-owner is entitled to be reimbursed are those that are necessary for the preservation of the estate property. However, under the circumstances of this case, we agree with Netter that there was no necessity for storing the |inhome furnishings, since Joseph and her daughter were staying in the house. Their presence there would have obviated whatever legitimate concerns Joseph may have had about vandalism of the residence. Moreover, pleadings filed by Netter indicate that after she finally obtained access to the storage unit and the house, there were a number of furnishings and appliances that could not be accounted for. Eventually, the heirs agreed among themselves concerning the distribution of the remaining movable property, and Netter sought court approval for putting the heirs into possession in accordance with those choices.

We conclude that the court did not err in approving the homologation of the tableau of distribution and final account filed by the administratrix. As noted above, those accountings are adjusted to eliminate the contempt of court finding and the imposition of punishment in the form of $1000 in attorney fees.

CONCLUSION

For the reasons described above, we reverse that portion of the judgment of May 11, 2005, finding Joseph to be in contempt of court and ordering her to pay $1000 in attorney fees as punishment. We amend the homologation in the March 6, 2006 judgment accordingly. In all other respects, we affirm the judgments and assess all costs of this appeal to Joseph.

MAY 11, 2005 JUDGMENT REVERSED IN PART AND AFFIRMED IN PART.

MARCH 6, 2006 JUDGMENT AMENDED AND AFFIRMED AS AMENDED.

      . The order shows a signing date of December 29, 2005. However, the file-stamp date is shown as 2004, and the evidentiary hearing was set for January 31, 2005.

      . Joseph testified that she had already moved in January 2005, due to the constant disturbances by the realtor and Netter.

      . On April 18, 2006, a judgment of possession sent the heirs into possession of their undivided interests in the succession. On April 17, 2006, Netter filed a first and final account. A judgment homologating the first and final account was signed May 10, 2006.

      .The first and final account reimbursed Joseph for the mortgage payments she paid from the date of her mother’s death until July 26, 2004, when the court ordered her to continue paying the mortgage, since she was living in the house.

      . At the time this contempt judgment was rendered in May 2005, LSA-C.C.P. art.2083 stated that an appeal could be taken from an interlocutory judgment that could cause irreparable injury. Article 2083 was amended by 2005 La. Acts, No. 205, which had an effective date of January 1, 2006. The Wooley case concluded that the amendment was to be applied retroactively for matters appealed after the effective date. Wooley, 944 So.2d at 674. Therefore, even though the contempt judgment in this case was rendered before the effective date of the amendment to Article 2083, we must apply its provisions retroactively.


source: Caselaw Access Project

author: DOWNING, J. PETTIGREW, J.,

license: Public Domain

text:
    H.J. BERGERON, INC. v. Sharon D. PARKER a/k/a Sharon D. Parker Smith.
    No. 2006 CA 1855.
    Court of Appeal of Louisiana, First Circuit.
    June 8, 2007.
    Jeffrey Scott Wittenbrink, Baton Rouge, Counsel for Appellant Sharon D. Parker.
    Michael E. Parks, New Roads, Counsel for Appellee H.J. Bergeron, Inc.
    Before: PETTIGREW, DOWNING and HUGHES, JJ.
   DOWNING, J.

|aThis matter comes before us on appeal from a judgment on rule for eviction ordering Sharon Parker, defendant/appellant, to vacate certain premises and deliver possession of them to the plaintiff/appellee, H.J. Bergeron, Inc. (Bergeron). Concluding that the trial court erred in mischarac-terizing the agreement between Ms. Parker and Bergeron as a lease rather than a bond for deed and entering judgment accordingly, we reverse the trial court’s judgment and vacate its orders.

Pertinent Facts

Sharon Parker had entered an agreement with Bergeron regarding certain property entitled, “Lease With Option to Purchase,” to become effective on February 5, 2002. Ms. Parker took possession of the property at about that time.

Subsequently, in February 2006, Ber-geron filed a lawsuit against Ms. Parker for “back due rent” and for eviction. At the rule for eviction, the trial court ruled in favor of Bergeron and ordered Ms. Parker to vacate the premises and deliver possession of them to Bergeron, failing which a warrant of eviction would issue.

Ms. Parker now appeals, asserting two assignments of error summarized as follows:

1) The trial court erred in ruling that the “Lease With Option to Purchase” was not to be considered a bond for deed contract pursuant to La. R.S. 9:2941 et seq.;

2) The trial court erred in ruling that Ms. Parker was in default of the agreement without properly allowing her to cure the default in accordance with La. R.S. 9:2945, governing cancellation of a bond for deed upon default.

Discussion

The trial court held that a document entitled, “Lease with Option to Purchase,” attached hereto, was a lease and not a bond for deed contract as |salleged by defendant/appellant. This document stated a price of $19,000 at 9%, described the property, and provided for a $1,200 down payment with $200 monthly payments for 146 months (which would approximately amortize the balance of the “purchase price” of $17,800).

The “Bond for Deed” definition statute, La. R.S. 9:2941, provides:

A bond for deed is a contract to sell real property, in which the purchase price is to be paid by the buyer to the seller in installments and in which the seller after payment of a stipulated sum agrees to deliver title to the buyer.

Here, we observe that the document at issue, prepared by the purported Lessor, provides a description of real property, a purchase price in installments and an agreement to deliver title after the payment of the “Sale Price.” Further, in the last paragraph of the document, it specifically refers to the parties as BUYER and SELLER. Similar documents have been held to be “Bond for Deed” contracts. See Tabor v. Wolinski, 99-1732 (La.App. 1 Cir. 9/22/00), 767 So.2d 972, and Smith v. Miller, 06-1049 (La.App. 1 Cir. 3/23/07), 953 So.2d 206 (table).

The trial court here incorrectly held that because the document was not recorded pursuant to La. R.S. 9:2941.1 and because the vendee did not apply for a homestead exemption, the document was not a bond for deed contract. However, recordation is for the protection of the vendee and third parties and is not a requirement for the validity of the contract. Likewise, application for a homestead exemption does not affect the validity of the contract.

Accordingly, we conclude that the “Lease with Option to Purchase” is in fact a bond for deed contract. We further conclude that the seller, H.J. RBergeron, Inc., did not comply with La. R.S. 9:2945 and, therefore, the judgment ordering Ms. Parker to vacate the premises and deliver possession of them to Bergeron should not have been issued.

We find merit in Ms. Parker’s assignments of error. We will reverse the judgment of the trial court, vacate the orders therein, and remand for further proceedings consistent with this opinion.

Decree

For the foregoing reasons, we reverse the judgment of the trial court and vacate its orders. We remand this matter for further proceedings consistent with this opinion. Costs of this appeal are assessed to H.J. Bergeron, Inc.

REVERSED; ORDERS VACATED; REMANDED

PETTIGREW, J., concurs, and assigns reasons.

PETTIGREW, J.,

concurring.

hi agree with the majority that the specific contract involved in this dispute is a bond for deed contract. I take this opportunity and humbly suggest that the Louisiana Legislature should revisit whether we should rescind legislation on bond for deeds. Louisiana has more adequate alternatives that safeguard both the vendor’s and vendee’s rights under Louisiana law; such as, a sale with mortgage. In my humble opinion, the bond for deed concept has led to nothing but confusion in real estate titles and abuse of various parties.

      . The issues of past due rents, penalties, attorney fees and costs were reserved for a later trial on the merits.

      . Smith v. Miller, supra, correctly notes that "a disguised conditional sale will be regarded as a sale from its inception.” However, it then concludes that the agreement was a bond for deed contract. We believe that unless the bond for deed statute is strictly followed, the Civil Code should apply and this document should be considered a sale, and the vendor would have to seek recovery using his vendor's lien. However, we are required to follow existing First Circuit jurisprudence. See Internal Rules of Court, First Circuit Court of Appeal, rule 2.1.d(l).

      . Louisiana Revised Statutes 9:2945 provides as follows:
      § 2945. Cancellation of bond for deed upon default
      A. If the buyer under a bond for deed contract shall fail to make the payments in accordance with its terms and conditions, the seller, at his option, may have the bond for deed cancelled by proper registry in the conveyance records, provided he has first caused the escrow agent to serve notice upon the buyer, by registered or certified mail, return receipt requested, at his last known address, that unless payment is made as provided in the bond for deed within forty-five days from the mailing date of the notice, the bond for deed shall be cancelled.
      B. Where there is no mortgage or privilege existing upon the property, and the buyer shall be in default, the seller shall exercise the right of cancellation in the same manner.


author: CHARLES R. JONES, Judge.

text:
    André J. DENOUX, Kurt Labeaud, Theron J. Washington, David Dickerson, Robert P. Williams, Jr., Richard W. Blackman, Christopher R. Booker, Horace Blanks, III, Derrick A. Matthews, Robert Taylor, Christopher G. Haines and Lorenzo N. Morgan v. VESSEL MANAGEMENT SERVICES, INC., Belle of Orleans, LLC, Bally’s Louisiana, Inc., d/b/a Bally’s Casino Lakeshore Resort, Inc. and Patrick M. Browning.
    No. 2007-CA-0163.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 11, 2007.
    Rehearing Denied Oct. 3, 2007.

      R. Brent Cueria, New Orleans, LA, Louis R. Koerner, Jr., Koerner Law Office, Houma, LA, for Plaintiffs/Appellants.
    James d’Entremont, Barbara L. Arras, Phelps Dunbar LLP, New Orleans, LA, for Glidden Company d/b/a ICI Paints.
    (Court composed of Judge CHARLES R. JONES, Judge DENNIS R. BAGNERIS SR., and Judge EDWIN A. LOMBARD).
   CHARLES R. JONES, Judge.

LThe Appellants, André J. Denoux, Kurt Labeaud, Theron J. Washington, David Dickerson, Robert P. Williams, Jr., Richard W. Blackman, Christopher R. Booker, Horace Blanks, III, Derrick A. Matthews, Robert Taylor, Christopher G. Haines, Lorenzo N. Morgan, Lindy Forriest, Maurice C. Tabb, Luis Fuentes and Don Martin Hayes (hereinafter collectively referred to as “Crew Members”) seek review of a Civil District Court judgment which granted an exception of prescription in favor of the Appellee, the Glidden Company, d/b/a ICI Paints (hereinafter “Glidden”) and dismissed the claims of the Crew Members against Glidden. We affirm.

FACTS AND PROCEDURAL HISTORY

The Crew Members were employees of Vessel Management Services, Inc. (hereinafter “VMS”). The Crew Members allege that between April 2000 and June |⅞2000 they were exposed to and injured by toxic fumes from the Glidden Devflex 4206/4208 products, which are solvent based paints, while painting and chipping the Belle of Orleans, a riverboat casino. The Crew Members participated in the “Inner Bottom Project” in which they were responsible for painting the bottom interior portion of the hull of the vessel. The Crew Members aver that they became and remain sick with a variety of chronic symptoms such as respiratory, neurological and hematological disorders as a result of their participation in the “Inner Bottom Project.” They also contend that they were forced to work in a dark, airless hold with insufficient ventilation for excessive periods of time without proper personal protective equipment.

Once the project was underway, many of the Crew Members complained to VMS of the paint fumes, filed incident reports, and sought medical treatment. A Glidden representative was apprised of the situation and met with the crew to assure them of the safety of the paint. However, work on the project ceased until ventilation fans were installed. Subsequently, the Coast Guard stopped work on the project.

On November 14, 2001, the Crew Members filed a Petition for Damages against VMS. On March 17, 2002, Glidden was added as a defendant to the main demand by the Crew Members’ Fourth Amended Petition. In response, Glidden filed a Peremptory Exception of Prescription. Glid-den’s Peremptory Exception of Prescription was heard on July 14, 2006. After reviewing all the evidence and memoranda submitted, the district court granted the exception dismissing the Crew Members’ claims against Glidden. A judgment maintaining Glidden’s exception was entered on August 10, 2006. The Crew Members’ filed a writ application with this court on September 23, 3006. We denied the application for writs on October |324, 2006, holding that a formal appeal would be the appropriate course of action. Subsequently, the Crew Members filed the instant appeal.

The Crew Members raise two issues on appeal. In their first assignment of error, the Crew Members aver that the district court committed manifest error in granting Glidden’s exception of prescription. The second assignment of error is that the district court committed manifest error in applying a Louisiana prescriptive period of one year to a maritime tort rather than the three year statute of limitations provided for by 46 U.S.C.App. § 763c. Although the Crew Members assert two assignments of error, their first assignment lacks cohesion and is difficult to discern; therefore, we find that the only genuine assignment of error is that the district court erroneously applied the Louisiana prescriptive period rather than the prescriptive period applicable in maritime law.

Law and Discussion

“The standard of review of a trial court’s finding of facts supporting prescription is that the appellate court should not disturb the finding of the trial court unless it is clearly wrong.” Turnbull v. Thensted, 99-0025, p. 5 (La.App. 4 Cir. 3/1/00), 757 So.2d 145, 148. Similarly, the trial court’s fact finding regarding prescription should not be reversed without a finding of manifest error because the issue before the appellate court is not whether the fact finder is right or wrong, but whether the fact finder reached a reasonable conclusion. Id. at 149.

The Crew Members argue that the district court committed manifest error when it granted Glidden’s exception of prescription because the district court applied a Louisiana prescriptive period of one year rather than the three year statute of limitations applicable to maritime law. Thus, the relevant inquiry here is what is the applicable law in the instant matter.

14According to Louisiana law, a party must assert a delictual claim within one year of sustaining the injury or damage. Hoerner v. Wesley-Jensen, Inc., 95-0553 (La.App. 4 Cir. 11/20/96), 684 So.2d 508, 510. “Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained.” La. Civ.Code Ann. art. 3492. The one year prescriptive period applies to all delictual actions including those brought pursuant to the Louisiana Products Liability Act. Furthermore, if the face of the petition shows that the prescriptive period has already elapsed, the plaintiff has the burden of establishing that suspension, interruption or renunciation of prescription has occurred. Wimberly v. Gatch, 93-2361 (La.4/11/94), 635 So.2d 206, 211. See also, Bouterie v. Crane, 92-2994, (La.4/12/93), 616 So.2d 657, 659.

Nevertheless, the Crew Members aver that maritime law through the Jones Act or general maritime law is applicable to the case at bar. The Crew Members assert that they are seamen under the Jones Act, and in that capacity they were injured while working on the Belle of Orleans, a navigable vessel. In order for a plaintiff to recover from his employer under either the Jones Act, or general maritime law, the plaintiff must be a seaman injured aboard a vessel in navigation. Pavone v. Mississippi Riverboat Amusement, Ltd., 52 F.3d 560, 565 (5th Cir.1995). The Jones Act provides that a seaman injured in the course and scope of his employment may bring a cause in negligence against his employer. 46 U.S.C.A.App. § 688(a).

“Jones Act coverage is confined to seamen, those workers who face regular exposure to the perils of the sea.” Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 560, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997). The Jones Act, however, does not define a seaman; the courts must, then, determine which maritime workers qualify for seaman status. Chandris, Inc. | su Latsis, 515 U.S. 347, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995). In Chandris, the U.S. Supreme Court listed two characteristics a maritime worker must possess in order to qualify as a seaman: (1) “an employee’s duties must contribute to the function of the vessel or to the accomplishment of its mission and (2) a seaman must have a connection to a vessel in navigation ... that is substantial in terms of its duration and its nature.” Id. at 368,115 S.Ct. 2172. Therefore, the “ultimate inquiry is whether the worker in question is a member of the vessel’s crew or simply a land based employee who happens to be working on the vessel at a given time.” Richard v. Hooks, 01-0145, p. 4 (La.10/16/01), 799 So.2d 462, 465. This inquiry must determine whether the employee’s responsibilities take him to sea. Harbor Tug and Barge, Co., 520 U.S. at 555, 117 S.Ct, 1535.

In Cappiello v. Exxon Corporation, 96-2418, (La.App. 4 Cir. 5/28/97), 695 So.2d 1097, we held that a plaintiff who was responsible for inspecting, testing, and maintaining various wells and tank batteries offshore was a Jones Act seaman. The plaintiff in Cappiello worked five (5) eight-hour workdays, and lived on land with his wife. He was responsible for the care and maintenance of the vessel, the Stingray, and navigated various lakes, bayous and canals during working hours. The plaintiff encountered traffic from other vessels during the course of his work; he learned the area he navigated thoroughly in order to avoid underwater obstructions and other navigable vessels. Id. at 1100. Based upon the above information, we found that the plaintiff fulfilled the qualifications of a seaman detailed by the Chandris Court. Id.

As distinguished from Cappiello, the Crew Members were not exposed to the perils of the sea, nor did their primary obligations aboard the Belle of Orleans take lfithem to sea. In the instant case, the Crew Members in addition to painting and chipping the Belle of Orleans, prepared the casino for sailing, and secured the boat when it was docked. Further-more, they also performed ordinary maintenance of the boat such as repairing video poker machines and taking out the garbage. One crew member, André Denoux, admitted in deposition that he applied with VMS because he wanted a land based job. Denoux described his work aboard the Belle of Orleans as a lot of housekeeping stuff.

The Belle of Orleans must also qualify as a vessel for the Crew members to qualify as seamen under the Jones Act. In Cappiello, the Stingray vessel navigated bodies of water daily. Moreover, the boat was specifically outfitted for the particular tasks that the plaintiff had to perform aboard it. The instant case is distinguishable in that the Belle of Orleans was a floating casino in which the Crew Members were employed to maintain the boat in its capacity as a casino, not as a vessel in navigation.

In Davis v. Players Lake Charles Riverboat, Inc., 74 F.Supp.2d 675, (W.D.La. 1999), the Western District Court of Louisiana found that the Players Riverboat Casino was not a vessel under the Jones Act. The casino made frequent trips into Lake Charles, but the court reasoned that mere movement of a casino over navigable waters was not sufficient to confer vessel status in order to invoke admiralty jurisdiction. Id. at 676. Board of Commissioners of the Orleans Levee District v. Belle of Orleans, 439 F.Supp.2d 1178, 1194, (S.D.Ala.2006), also found that the Belle of Orleans was not a vessel. The Southern District Court of Alabama followed Pavone and reasoned that semi-permanently or permanently moored floating casinos are not vessels. Id. at 1194. The Belle of Orleans was a floating casino that made cruises into Lake Ponchartrain. Simply traveling into |7navigable waters, however, does not make the Belle of Orleans a vessel under the Jones Act. For the above reasons, we find that the Crew Members were not seamen pursuant to the Jones Act.

Under general maritime law, the U.S. Supreme Court has established a two prong test for determining a maritime nexus sufficient to establish admiralty jurisdiction: (1) the court must determine whether the incident has a potentially disruptive impact on maritime commerce and (2) the court must examine whether there is a substantial relationship between the activity giving rise to the incident and traditional maritime activity. Hertz v. Treasure Chest Casino, L.L.C., 274 F.Supp.2d 795, 806 (E.D.La.2003). In Hertz, the plaintiff was the captain of the Treasure Chest, a floating casino, and was injured while removing carpet. The court determined that the plaintiff was captain in name only because he did not have captain duties while the Treasure Chest was used as a casino. The court reasoned that since the captain was injured while the vessel was beached his injury had no effect on maritime commerce, nor did his injury have a substantial relationship to traditional maritime activity. Id.

In Davis, supra, the Western District Court of Louisiana held that although a patron was injured while aboard the casino, the accident did not impact maritime commerce. 74 Supp.2d at 676. The court also reasoned that the Riverboat was not a vessel in navigation, but a casino that made short cruises over water. The court held that since gaming was the activity that caused the plaintiffs injury, there was no substantial relationship between the gaming and traditional maritime activity. Id.

Similarly, the Crew Members were injured while the Belle of Orleans was moored to the shore. The boat did not cruise while they worked on the “Inner 1 ¡¡Bottom Project.” The Crew Members were injured while improving the aesthetics of the casino. Therefore, the Crew Members’ injuries neither disrupted maritime commerce, nor was there a substantial relationship between the painting and chipping of the casino and traditional maritime activity. Thus, admiralty jurisdiction is not applicable in the instant matter.

The district court held that the Crew Members’ cause of action was governed by Louisiana law which has a one year prescriptive period for tort claims. We agree. The crew members allege that they were exposed to toxic chemicals while painting the Belle of Orleans. This exposure occurred between April and June of 2000. In March 2002, Glidden was made a party to the lawsuit. In the Fourth Amended Petition, the Crew Members averred that Glidden was liable pursuant to the Louisiana Products Liability Act, La. R.S. 9:2800.51. The Crew Members filed their suit 18 months after their injuries occurred. We conclude that the Fourth Amended Petition was not timely filed and had prescribed on its face.

DECREE

For the foregoing reasons, we affirm the district court’s grant of Glidden’s Exception of Prescription.

AFFIRMED.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    William T. ABBOTT v. Joseph RYAN and Stephanie C. Ryan.
    No. 2006-CA-1643.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 2007.

      Patrick D. Breeden, New Orleans, LA, for PlaintiffyAppellant, William T. Abbott.
    Michael L. Vincenzo, John A. Cangelosi, King, Leblanc & Bland, P.L.L.C., New Orleans, LA, for Defendants/Appellees, Joseph Ryan and Stephanie C. Ryan.
    (Court composed of Judge JAMES F. McKAY, III, Judge DAVID S. GORBATY, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

|! This case involves a dispute regarding an- agreement to purchase and sell residential property. The plaintiff, William T. Abbott, is appealing a summary judgment granted by the trial court in favor of the defendants, Joseph Ryan and Stephanie C. Ryan (the “Ryans”).

STATEMENT OF FACTS AND PROCEDURAL HISTORY

On or about January 30, 2005, the Ryans made an offer to purchase the property located at 1312 Octavia Street in New Orleans for the sum of $450,000.00. In making the offer, they executed the standard form of agreement to purchase and sell that was customarily used by the New Orleans realtors’ association (the “Agreement”). 'Mr. Abbott, who owned the Octavia Street property, accepted the Ryans’ offer on January 30, 2005, by signing the Agreement. Pursuant to a dual agency agreement that the' Ryans, Mr. Abbott, and Melanie Zaffuto and Joseph Zaffuto (the “Zaffutos”) of Crest Realty & Associates, Inc. executed, the Zaffutos were the designated real estate agents for both the Ryans and Mr. Abbott in connection with the Agreement.

|2The Agreement contained the following language relating to the inspection of the property:

PURCHASER shall have an inspection period of ten (10) calendar days, commencing the first day after acceptance of this agreement wherein, PURCHASER may, at his expense, have any inspections made by experts or others of his choosing. Such inspections may include, but are not limited to, inspections of or for termites and other wood destroying insects ... and analysis of synthetic stucco, appliances, structures, roof, heating, cooling, electrical, plumbing systems ... and any items addressed in Seller’s Property Disclosure Statement.... Upon completion of such inspections, PURCHASER must provide SELLER (or SELLER’S DESIGNATED AGENT) with a copy of all inspection reports which subsequently becomes [sic] the property of the seller.

The Agreement further provided that if the purchaser were not satisfied with the property’s condition as described in the inspection reports, the purchaser had two options. The purchaser “(1) may elect, in writing, to terminate the Agreement to Purchase, or (2) must indicate in writing the deficiencies and desired remedies.” The seller then had seventy-two hours to respond in writing regarding the seller’s willingness to remedy the deficiencies. If the seller refused to remedy any or all of the deficiencies, the purchaser had twenty-four hours from the date the seller responded in writing or was required.to respond, whichever was earlier, to “(1) accept SelleR’s response to PURCHASER’S written requests or (2) accept the property in its present condition, or (3) to elect to terminate the Agreement to Purchase.”

Finally, the Agreement provided that if the seller refused to remedy any or all of the property’s defects and the purchaser either failed to respond within the twenty-four hour deadline or elected in writing to terminate the agreement, “the | ^Agreement shall be ipso facto Null and Void (except for return of deposit).... ” Further, the agreement stated that in such an event:

ALL PARTIES AGREE TO SIGN A CANCELLATION WITHIN 24 HOURS ENTITLING THE PURCHASER® TO THE RETURN OF HIS DEPOSIT IN FULL, AND NEITHER PARTY SHALL THEREAFTER HAVE ANY FURTHER OBLIGATION TO THE OTHER.

Although the standard form of the Agreement provided that the inspection period would last for a period of ten calendar days, the Agreement signed by the Ryans had the word “calendar” deleted and the word “working” inserted in place of the word “calendar.” The change was initialed by the Ryans, and on January 30, 2005, Mr. Abbott accepted the agreement with the change that was made.

According to an affidavit of Mr. Ryan, after the Agreement was executed by all parties, the Ryans had “certain inspections performed of the property including a general inspection performed by Gurtler Brothers and certain termite inspections.” Mr. Ryan also stated in his affidavit that all inspections of the property were completed prior to the end of the day on February 14, 2005. This was the time that the Ryans believed was the end of the inspection period under the Agreement.

Additionally, Mr. Ryan’s affidavit said that all written inspection reports were provided or made available to the Zaffutos, acting as Mr. Abbott’s real estate agent, prior to February 14, 2005. The affidavit stated that based on the results of the inspection report of Gurtler Brothers as it pertained to the roof of the residence on Octavia Street, Wayne Frizell was contacted to give the Ryans estimates for the |4cost of repairing the roof and for the cost of replacing the roof. The affidavit made it clear that Mr. Frizell “was not hired to conduct an inspection of the roof or any other part of the Octavia Property.”

Mr. Ryan’s affidavit further claimed that based on the Gurtler Brothers report and on the termite inspection that had been performed, Mr. Ryan on February 12, 2005, “proposed a reduced offer to Abbott, in writing through the Agent, to purchase the Octavia Property.” The affidavit further provided that “[i]n connection with the reduced offer ... I prepared a written list of deficiencies and proposed remedies, which I forwarded to the Agent with the reduced offer.” The affidavit then stated that Mr. Abbott proposed a counteroffer through the real estate agent. The counteroffer contained certain reductions to the purchase price that was contained in the Agreement but did not offer to remedy all of the deficiencies noted by the Ryans. Finally, the affidavit stated that the Ryans elected to terminate the agreement by allowing Mr. Abbott’s counteroffer to lapse.

In response to the assertions of Mr. Ryan that were set forth in his affidavit, Mr. Abbott executed an affidavit. In his affidavit, Mr. Abbott stated that both he and Ms. Zaffuto understood that the term “working days” as used in the inspection period of the agreement meant Mondays through Saturdays but not Sundays and Mardi Gras Day, which was on a Tuesday during the inspection period. Therefore, Mr. Abbott asserted that he received the Gurtler Brothers inspection report after the inspection period deadline, which he contended was on February 11, 2005. Mr. Abbott also said in his affidavit that he never received an inspection report from Mr. Frizell, which Mr. Abbott claimed was the basis for the Ryans’ amended offer. Finally, Mr. Abbott stated that “if he had known of Frizell, he would have | .^considered lowering the price of the property to pay for roof repairs not specifically addressed in the Gertler [sic] Brothers inspection report.”

In the instant case Mr. Abbott filed suit for breach of contract against the Ryans demanding specific performance of the Agreement or damages from the loss that he allegedly incurred when he ultimately sold the Octavia Street property for less than the purchase price under the Agreement. The Ryans filed a reconventional demand against Mr. Abbott for breach of the Agreement, and they also filed a third party claim against the agency for which the Zaffutos, acting as dual real estate agents for the Ryans and Mr. Abbott, worked. Mr. Abbott filed a motion for summary judgment on his claims against the Ryans, and his motion was denied.

The Ryans then filed a cross-motion for summary judgment against Mr. Abbott, and he filed a motion for a new trial with respect to the judgment denying his motion for summary judgment. After a hearing on the motion for a new trial and the Ryans’ motion for summary judgment, the trial court judge rendered judgment denying Mr. Abbott’s motion for a new trial and granting the Ryans’ motion for summary judgment. The trial court judge also ordered the return of the $2,000.00 deposit that was made pursuant to the terms of the Agreement. Mr. Abbott is now appealing the granting of summary judgment in favor of the Ryans.

DISCUSSION

Standard of Review

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), | r>634 So.2d 1180, 1183. See also Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257, p. 7 (La.2/29/00), 755 So.2d 226, 230.

A summary judgment shall be rendered forthwith 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 a material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Oakley v. Thebault, 96-0937, p. 4 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing the summary judgment until the moving party first presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion “fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.” La. C.C.P. art. 966(C)(2). Summary judgment should then be granted.

In Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606, 610, the Louisiana Supreme Court stated that “[a] fact is ‘material’ when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery.” Additionally, the Supreme Court stated that “[f]acts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute.” Id. In Jones v. Estate of Santiago, 03-1424 (La.4/14/04), 870 So.2d 1002, 1006. the Supreme Court, quoting Smith v. Our Lady of the Lake Hospital, Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750, explained that a factual issue is genuine if reasonable persons could disagree on the issue, but the Supreme Court further explained that if reasonable persons could 17only reach one conclusion on the issue, there would be no need for a trial on that issue.

Assignments of Error

Although Mr. Abbott’s brief does not contain specific assignments of error, it does list certain issues that this Court is being requested to review. Mr. Abbott contends that there are unresolved genuine issues of material fact and law regarding the deadline for inspecting the property, what roof inspections were conducted, and whether the Agreement was null and void once the Ryans failed to respond to Mr. Abbott’s counteroffer.

Inspection Deadline

The Agreement provided that there was a ten “working day” inspection period beginning on the first day after the acceptance of the Agreement. On January 30, 2005, Mr. Abbott accepted the Agreement. Mr. Abbott argues that Saturdays should be considered working days for purposes of determining the expiration date of the inspection period, although he agrees that Mardi Gras Day, February 8, 2005, and Sundays were not working days. If Saturdays are considered working days for purposes of the inspection period, then the inspection period ended on Friday, February 11, 2005. If Saturdays are not considered working days for purposes of the inspection period, then the inspection period ended on Monday, February 14, 2005. The Ryans gave their inspection reports to Ms. Zaffuto, as agent for Mr. Abbott, prior to February 14, 2005. Therefore, if Saturdays were not working days, the inspection was timely completed, but if |8Saturdays were working days, the inspection may not have been timely completed.

La. Civil Code art. 2047 provides in relevant part that “[t]he words of a contract must be given their generally prevailing meaning.” In the United States a work week is generally considered to be Monday through Friday, although many people work on Saturdays, Sundays, and holidays. Unless specifically included in a definition of work days, Saturdays and Sundays are not normally considered work days. Therefore, we find that the term “work days” as used in the inspection provision of the Agreement included Mondays through. Fridays and excluded Saturdays, Sundays, and holidays. This finding comports with the conclusion in Dupree v. International House of Pancakes, 05-1021, p. 7 n. 4 (La.App. 1 Cir. 5/5/06), 934 So.2d 183, 187 n. 4, where the First Circuit Court of Appeal stated that “we note that the fifth day, January 24, 2004, was a Saturday, and thus not a ‘working day’.”

Based on the foregoing, we find that the inspection period under the Agreement ended on Monday, February 14, 2005. Thus, the inspection reports were timely presented to Ms. Zaffuto, as Mr. Abbott’s real estate agent. Mr. Abbott’s claim regarding the meaning of the phrase “working days” is without merit.

Roof Inspections

Mr. Abbott contends that the Ryans had two roof inspections performed on the Octavia Street property and that the report from only one of the inspections was | presented to Ms. Zaffuto, acting as Mr. Abbott’s real estate agent. Mr. Ryan’s affidavit in support of the Ryans’ motion for summary judgment stated that a roof inspection was conducted by Gurtler Brothers. The inspection report clearly discussed a number of deficiencies in the roof. The report was in writing and was timely furnished to Mr. Abbott through his real estate agent. Mr. Ryan’s affidavit further stated that he hired Wayne Frizell, a roofer, not to inspect the roof but to give the Ryans an estimate of what it would cost to repair the roof and, alternatively, what it would cost to replace the roof.

Mr. Ryan’s affidavit stated that Mr. Fri-zell was not hired to perform a roof inspection, and Mr. Abbott’s affidavit clearly stated that “he had no way of knowing what inspectors were hired by the Ryans, when they conducted their inspections, or the results of those inspections, except by receiving copies of inspection reports, as required by the Agreement.” Mr. Ryan’s affidavit presented a prima facie case that Mr. Frizell did not conduct a roof inspection and was simply hired to furnish estimates for the cost of repairing or replacing the roof based on the findings in the Gurt-ler Brothers report. The burden of proof then shifted to Mr. Abbott to produce factual support to establish that he would be able to carry his evidentiary burden of proof regarding the roof inspection at a trial. Mr. Abbott not only has failed to produce such factual support, he has also admitted in his affidavit that he did not know what inspectors, other than Gurtler Brothers, were hired by the Ryans. Mr. Abbott’s claim that Mr. Frizell conducted a roof inspection is without merit.

The Agreement

Mr. Abbott contends that under the Agreement, he was not given a “fully informed opportunity to remedy defects or accept a reduced ‘counter’ offer.” ImThe Agreement clearly set forth the rights and obligations of the parties to the Agreement. The Agreement provided that if the Ryans were not satisfied with the condition of the Octavia Street property, they could either terminate the Agreement or give written notice of the deficiencies and the desired remedies. Mr. Ryan chose the latter option, and in an e-mail dated February 13, 2005,' to the Zaffutos, who were acting as dual agents for both the Ryans and for Mr. Abbott, Mr. Ryan detailed the problems with the Octavia Street property that were disclosed by the Gurtler Brothers inspection report and by a termite inspection report that was obtained by the Ryans. The e-mail also listed the concessions that the Ryans were requesting that Mr. Abbott make.

At that point, under the terms of the Agreement, Mr. Abbott had seventy-two hours to respond to the written notice. When he responded, he offered to pay $2,000.00 toward termite treatment in connection with the Ryans’ request to have the property treated for termites prior to the closing. Mr. Abbott failed, however, to address the remaining concessions requested by the Ryans, which were a $2,000.00 reduction in the sale price as a “roof allowance” and a $3,000.00 reduction in the sale price to partially satisfy the cost of bringing the electrical system into compliance with current building codes.

The Agreement provided that if Mr. Abbott refused to remedy any or all of the deficiencies noted by the Ryans, then the Ryans had twenty-four hours after Mr. Abbott responded to their list of deficiencies to (1) accept Mr. Abbott’s offer to pay $2,000.00 for the termite treatment, (2) accept the Octavia Street property m its then present condition, or (3) terminate the Agreement. The Ryans chose the third option. When the Ryans chose to terminate the Agreement, the Agreement was then, according to the Agreement, “ipso facto Null and Void.” The Ryans also |„had the right under the terms of the Agreement to the return of their deposit. Based on the foregoing, we find that Mr. Abbott’s claims regarding his rights under the Agreement are without merit.

Summary Judgment

We find that the Ryans presented a prima facie case that the Agreement is null and void and that they are entitled to the return of their deposit. Mr. Abbott was unable to carry his burden of producing factual support to establish that he would be able to satisfy his burden of proof at trial. We find no genuine issue of material fact in the instant case. Thus, the Ryans are entitled to summary judgment in their favor and to the return of their deposit.

DECREE

We find no error in the trial court judgment. That judgment is hereby affirmed.

AFFIRMED.

      . Gurtler Brothers refers to Gurtler Bros. Consultants, Inc., a company that, according to its letterhead, conducts home and commercial building inspections. In this opinion we will refer to Gurtler Bros. Consultants, Inc. as Gurtler Brothers.

      . Mr. Abbott's affidavit states that he received the Gurtler Brothers report after February 11, 2005, and Mr. Ryan’s affidavit states that Mr. Abbott's real estate agent was given all written inspection reports prior to the end of the day on February 14, 2005.


author: JOAN BERNARD ARMSTRONG, Chief Judge.

text:
    Michael CURE v. DEPARTMENT OF POLICE.
    No. 2007-CA-0166.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 2007.

      Frank G. Desalvo, Desalvo Desalvo & Blackburn, APLC, New Orleans, LA, for Plaintiff/Appellant.
    James B. Mullaly, Assistant City Attorney, Joseph V. Dirosa, Jr., Chief Deputy City Attorney, Penya M. Moses-Fields, City Attorney, New Orleans, LA, for City of New Orleans.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and Judge MAX N. TOBIAS JR.).
   JOAN BERNARD ARMSTRONG, Chief Judge.

liThe plaintiff-appellant, Michael Cure, an NOPD officer, appeals the December 1, 2006 decision of the Civil Service Commission, affirming that portion of the New Orleans Police Department, the appointing authority, decision to suspend the plaintiff for thirty days without pay for neglecting his duties by leaving his post for six days during an emergency (Katrina) evacuation without authorization.

Officer Cure had permanent status. It is uncontested that after reporting for Hurricane Katrina duty on August 28, 2005, he left the city on September 2, 2005 in order to evacuate his wife to Houston and find her a place to stay there. He returned to duty on September 8, 2005. He remained on emergency duty thereafter.

The plaintiff contends that the penalty imposed upon him was arbitrary and capricious in that it was imposed through an “arbitrarily set formula for punishment that failed to distinguish the people who reported for emergency activation status and stayed through the crises [which the plaintiff did] and then left Lfrom the people who failed to report on August 28 for emergency activation status and were gone a similar length of time.”

The plaintiff also complains that the formula applied by the appointing authority “made no attempt to differentiate those with reasons from those without [sic] much less to differentiate the compelling nature of the reasons for leaving.”

The appointing authority has the burden of proving, by a preponderance of the evidence that the complained-of activity or dereliction occurred, and that such dereliction bore a real and substantial relationship to the efficient operation of the appointing authority. Marziale v. Department of Police, 06-0459, p. 10 (La.App. 4 Cir. 11/8/06), 944 So.2d 760, 767, citing Cittadino v. Department of Police, 558 So.2d 1311, 1315 (La.App. 4 Cir.1990). The burden of proof on appeal to the Civil Service Commission shall be on the appointing authority. Marziale, supra, 06-0459, p. 11, 944 So.2d at 767, citing Walters v. Dept. of Police of New Orleans, 454 So.2d at 112-113. The decision of the Civil Service Commission is subject to review on any question of law or fact upon appeal to this Court, and this court may only review findings of fact using the manifestly erroneous/clearly wrong standard of review. La. Const, art. X, § 12(B); Marziale, supra. In determining whether the disciplinary action was based on good cause and whether the punishment is commensurate with the infraction, this court should not modify the Civil Service Commission order unless it was arbitrary, capricious, or characterized by an abuse of discretion. Id. A decision by the Civil Service Commission is “arbitrary or capricious” if there is no rational basis for the action taken by the Civil Service Commission. Id., citing Bannister v. Department of Streets, 95-0404, p. 8 (La.1/16/96), 666 So.2d 641, 647.

|sThe parties are basically in agreement as to the standard of review and the law to be applied to this case. There is also no factual dispute. This case boils down to the question of whether the sanction imposed by the appointing authority and as affirmed by the Civil Service Commission was arbitrary and capricious and an abuse of discretion.

The “arbitrarily set formula” or schedule of penalties referred to by the plaintiff does not appear to be in the record. However, the brief for the appointing authority-appellee acknowledges that “... Officer Cure was suspended for 30 days, the uniform amount of days set by the Superintendent in accordance with a schedule that coincided with the amount of days that an officer was missing.”

The use of a schedule during the difficult post Katrina times is understandable. Whether the punishment called for by the schedule constitutes an abuse of discretion depends on the facts of the particular case to which the schedule is applied. We find the punishment to be commensurate with the infraction. We do not find that the punishment was excessive relative to the infraction. We further find that the “dereliction bore a real and substantial relationship to the efficient operation of the appointing authority,” i.e., it goes without saying that Officer Cure’s absence from his post during the post Katrina emergency would impair the efficient operation of the appointing authority. The plaintiff cites no authority to the contrary.

In Nick v. Department of Fire, 416 So.2d 131, 132 (La.App. 4 Cir.1982) this Court stated that:

The Commission does not have the authority to reduce a penalty except on a determination that there is insufficient cause for the greater penalty.

|/There is nothing in the record tending to show that there was insufficient cause for the imposition of the penalty imposed.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . The appointing authority also suspended the plaintiff for thirty days without pay for refusing to follow instructions from his supervisor not to leave his post to evacuate his wife. During the course of the Civil Service hearing the appointing authority agreed to withdraw the thirty-day suspension for refusing to follow instructions.


author: MAX N. TOBIAS, JR., Judge.

text:
    Robert J. ROTH, Jr. and Guy H. Roth v. VOODOO BBQ, LLC, Alton F. Doody, Jr. and William Stroebel.
    No. 2007-CA-0295.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 1, 2007.

      David J. Halpern, Michael W. Tifft, Hal-pern & Martin, LLC, Metairie, LA, for Plaintiffs/Appellants.
    ■John L. Hantel, Mandeville, LA, for William Stroebel.
    Charles L. Stern, Jr., Alan M. Cohen, The Steeg Law Firm, L.L.C., New Orleans, LA, for Alton F. Doody.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge MAX N. TOBIAS, JR.).
   MAX N. TOBIAS, JR., Judge.

hThe plaintiffs/appellants, Robert J. Roth and Gary Roth (collectively, “the Roths”), appeal the dismissal with prejudice of their suit for damages against Alton F. Doody (“Doody”) and William Strobel (“Strobel”), who prevailed on peremptory exceptions of no cause of action in the trial court. We review this matter de novo

This dispute arises from a lease agreement under which the Roths leased the premises at an unknown address in New Orleans to Voodoo BBQ, L.L.C. (“Voodoo BBQ”) from 1 July 2002 through 31 July 2002, with an exercised option of renewal through 2011. The Roths allege that under the lease agreement, which is not made a part of the record on appeal, Voodoo BBQ was obligated to pay rent, taxes, and utilities; assume responsibility for repair and maintenance; surrender the premises in like condition; carry flood, liability, and property insurance; and rebuild and restore the premises in event of casualty. The property was damaged pby Hurricane Katrina in 2005, and the premises were allegedly abandoned by Voodoo BBQ.

The Roths filed suit on 13 January 2006 against Doody, Strobel, and Voodoo BBQ. In the petition for damages, they alleged that Doody and Strobel were co-managers of Voodoo BBQ at the time the cause of action accrued. The petition stated that prior to Hurricane Katrina, Voodoo BBQ failed to “adequately secure the premises” and failed to properly maintain the roof of the premises, which damage was aggravated by Hurricane Katrina. Further, they alleged that agents of Voodoo BBQ entered the premises following Hurricane Katrina and removed equipment and furnishings and again failed to secure the premises.

With respect to Doody and Strobel, the Roths allege that they “as managers of Voodoo BBQ, LLC” were liable “for acquiescing, fostering, or permitting the failures set forth above.” No further specific allegations against Doody and Strobel appear in the original petition for damages.

Strobel filed an answer on 12 June 2006, and Doody filed an exception of no cause of action on 7 July 2006, on the grounds that pursuant to La. R.S. 12:1320, he was not liable individually for any actions taken by him as a manager of Voodoo BBQ. Strobel filed a virtually identical exception of no cause of action on 24 October 2006.

On 28 September 2006, the Roths presented an amending petition to the trial court, which added several paragraphs alleging that Doody and Strobel entered the | ¡¡premises following Hurricane Katrina and removed equipment and furnishings, including the electronic cash register system and its components, and several big screen televisions and equipment; that the cash register and television equipment were removed for personal use, and/or to use in another Voodoo BBQ outlet in the New Orleans area in which Doody and Strobel had interests.

The trial court did not grant leave to the Roths to file the amended petition for damages, but rather sustained the exceptions in separate judgments, dismissing with prejudice the causes of action against Doody and Strobel. The Roths appealed and urge us to reverse the ruling of the trial court as a matter of law.

La. R.S. 12:1320, titled “liability to third persons of members and managers,” provides:

A. The liability of members, managers, employees, or agents, as such, of a limited liability company organized and existing under this Chapter shall at all times be determined solely and exclusively by the provisions of this Chapter.
B. Except as otherwise specifically set forth in this Chapter, no member, manager, employee, or agent of a limited liability company is liable in such capacity for a debt, obligation, or liability of the limited liability company.
C. A member, manager, employee, or agent of a limited liability company is not a proper party to a proceeding by or against a limited liability company, except when the object is to enforce such a person’s rights against or liability to the limited liability company.
D. Nothing in this Chapter shall be construed as being in derogation of any rights which any person may by law have against a member, manager, employee, or agent of a limited liability company | ¿because of any fraud practiced upon him, because of any breach of professional duty or other negligent or wrongful act by such person, or in derogation of any right which the limited liability company may have against any such person because of fraud practiced upon it by him.

La. R.S. 12:1320 [emphasis supplied].

The Roths urge us to overrule the exceptions of no cause of action on the grounds that they have alleged individual tortious conduct on the part of Doody and Strobel, separate and apart from their roles as managers of Voodoo BBQ. They point to R.S. 12:1320 D, supra, as protecting their right to assert such causes of action against Doody and Strobel individually, and maintain that the amending petition for damages should be accepted as sufficient to sustain causes of action against Doody and Strobel. We disagree.

Strobel directs us to our opinion in Curóle v. Ochsner Clinic, L.L.C., which briefly analyzed the exception to the limited liability shield for managers or members found in R.S. 12:1320(D). This court concluded that:

[t]o have meaning within the entire statute, the phrase ‘or other negligent or wrongful act by such person’ must refer to acts done outside one’s capacity as a member, manager, employee, or agent of the limited liability company.

01-1734, pp. 7-8 (La.App. 4 Cir. 2/20/02), 811 So.2d 92, 97. Insofar as the petition for damages in the instant case does not sufficiently allege any wrongful conduct on the parts of Doody or Strobel that is separable from their roles as managers of the Voodoo BBQ, we do not find that the Roths have alleged a cognizable cause of action against them as individuals. Particularly, we note that the thrust of the litigation is a breach of contract suit against Voodoo BBQ, and that the property and equipment that Doody and Strobel are alleged to have [Rremoved from the leased premises did not belong to the Roths, but presumably to Voodoo BBQ. Therefore, the basis of the allegations against Doody and Strobel necessarily arise from their decisions regarding property owned and used by Voodoo BBQ in its operations. No particularized allegations of fraud committed by Doody or Strobel are asserted, and the allegations put forth by the Roths in their petition for damages, even as amended, áre insufficient to pierce the veil of the limited liability company statutory protection afforded to Doody and Strobel as managers and members.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Although the petition for damages named "William Stroebel” as a defendant, the record on appeal suggests that the correct spelling of his surname is "Strobel.”

      . See, Southern Tool & Supply, Inc. v. Beerman Precision, Inc., 03-0960, p. 6 (La.App. 4 Cir. 11/26/03), 862 So.2d 271, 277; City of New Orleans v. Board of Comm'rs of Orleans, Levee Dist., 93-0690, p. 28 (La.7/5/94), 640' So.2d 237, 253.

      . The term "manager” and "member” have special meanings insofar as they apply to a Louisiana limited liability company. See, generally, La. R.S. 12:1301(A)(12) and (13) and La. R.S. 12:1311, et seq. For the most . part, a manager of a limited liability company is similar to an officer or director of a corporation and a member of a limited liability company is similar to a shareholder of a corporation.

      . The Roths do not allege that they were the owners of any property or equipment removed from the premises, but rather that they might have a lien against the property removed by Voodoo BBQ.