text:
    GOD’S GLORY & GRACE, INC. v. QUIK INTERNATIONAL, INC., et al.
    No. 2005-CA-1414.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Writ Denied Oct. 6, 2006.

      John Housan Fenner, III, Baton Rouge, for Appellant.
    Clifton 0. Bingham, Jr., David A. Peterson, Oats & Hudson, Baton Rouge, for Appellee.
    Panel composed of Ad Hoc Judges JAMES L. CANNELLA, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   JAMES L. CANNELLA, Judge Ad Hoc.

LThe Plaintiff, God’s Glory & Grace, Inc. (God’s Glory), appeals from the trial court judgment rendered in favor of the Defendant, Quik International, Inc. (Quik International), finding that it was not liable, as the franchisor of a local business with which God’s Glory contracted, for damages allegedly suffered by it when the contract was breached. For the reasons which follow, we affirm.

God’s Glory is a closely held subchapter S corporation owned entirely by Mark Lee and his wife, Glinda Lee. In mid-summer of 1999, the Lees decided to form an internet-based company that would market certain products primarily to the Christian-based buying public. The Lees’ business plan included construction of a web site that would sell these products through a “web store.” The Lees were interested in hiring someone to design and create a web site and web store which would market commerce greeting cards and link consumers over to their web store. According to the petition, on November 9, 1999, God’s Glory entered into a contract with Quik Computer Solutions to design their web site and handle their Mother computer needs. It is alleged that Quik Computer Solutions was a franchisee of Quik International. Quik International is a foreign corporation, in the business of franchising the “Quik Internet” concept to local internet service providers.

God’s Glory contends that it was promised that its web site would be online and functioning by November 12, 1999. After numerous problems and delays, on May 12, 2000, it informed Quik Computer Solutions that it wished to discontinue its services. On February 1, 2001, God’s Glory filed this lawsuit for breach of contract, naming as Defendants, Quik International and “Quik Internet of Baton Rouge, a/k/a Quik Computer Solutions.”

In its answer, Simpliance Corporation (Simpliance) explained that it was the corporation with which God’s Glory contracted, doing business as Quik Internet of Baton Rouge and Quik Computer Solutions, and otherwise denied the allegations in the petition and asserted several defenses. God’s Glory thereafter duly amended its petition to name Simpliance as a Defendant.

God’s Glory filed a second amending petition, further alleging that Quik International had entered into a franchise agreement with Simpliance, as a franchisee of the Quik Internet concept in the Baton Rouge area. It was alleged that the Quik International web site represented that Quik International provided web site design services for customers of Quik Internet franchisees. It was also alleged that the Lees read and relied on these representations in contracting with Simpliance.

On November 6, 2003, God’s Glory filed a motion to dismiss Simpliance and the case went to trial solely against Quik International, the franchisor. On October 7, 2004, following trial and after taking the matter under advisement, the trial court rendered judgment, in accord with written reasons, in favor of Quik International dismissing all claims by God’s Glory against it. In her reasons for | ¿judgment, the trial court found that Quik International’s primary role was to serve as an Internet Service Provider and to provide a location to host the God’s Glory web site. Quik International had no contact with God’s Glory or the Lees and it did not manage or control its franchisee, Simpliance. God’s Glory dealt only with the representatives of Simpliance and never contacted Quik International regarding the actions or in-actions of Simpliance. The trial court also found that Quik International was not the alter ego of Simpliance, both companies having different directors, officers, employees, clients and contracts. The trial court found that Quik International did not make any representations to God’s Glory upon which the latter could have reasonably relied. The trial court noted that Quik International was not a party to the contract that God’s Glory entered into with Simpliance and that much of the information that the Lees found out about Quik International was discovered after they terminated Simpliance and not in contemplation of entering into the contract with Simpliance. Finally, the trial court noted that in the franchise agreement it was clearly stated that Simpliance was an independent contractor and that there was no principle-agency relationship between the parties. Quik International did not give Simpliance the authority to bind it to any contract with a third party. It is from this judgment dismissing its claims that God’s Glory appeals. Quik International filed an answer requesting damages for frivolous appeal.

On appeal, God’s Glory assigns three errors, the first two addressing trial court errors in the judgment and reasons and the third addressing damages in the event of a reversal. On the merits, in the first two assignments of error God’s Glory argues that the trial court erred in dismissing its claims against Quik International based on language in the franchise agreement and a perceived duty on the part of third parties (God’s Glory) to investigate the franchisor’s contractual |BIiability as provided in the agreement. God’s Glory also argues that under agency law Quik International should have been held liable for the authorized acts of its agents.

Quik International argues to the contrary that the trial court judgment was correct. It argues that God’s Glory took one sentence from the trial court’s reasons for judgment out of context, referencing the trial court’s reliance on the terms of the franchise agreement which provided that Quik International was not responsible for the acts of franchisees or their employees. Moreover, absolute liability of a franchisor is not recognized under Louisiana law. Rather, under principal-agency principles, the trial court was correct in ruling that Quik International was not liable to God’s Glory for any breach of the contract which God’s Glory entered into with its franchisee, Simpliance, based on the findings that Quik International never communicated with God’s Glory, or the Lees, it had no control over Simpliance, no common directors, officers or employees, Simpliance had no actual authority to bind Quik International and apparent authority requires manifestation by the principal and reasonable reliance thereon, which were not proven in this case.

It is well settled that an appellate court’s review of factual findings in a civil appeal is governed by the manifest error^ — clearly wrong standard. In order to reverse a factual determination by the trier of fact, the appellate court must apply a two-part test: (1) the appellate court must find that a reasonable factual basis does not exist in the record for the finding; and (2) the appellate court must further determine that the record establishes that the finding is clearly wrong (manifestly erroneous). Stobart v. State through Department of Transportation and Development, 617 So.2d 880, 882 (La.1993); Rogers v. City of Baton Rouge, 04-1001 (La. App. 1st Cir.6/29/05), 916 So.2d 1099. If the findings are reasonable in | flight of the record reviewed in its entirety, this court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Rogers, supra. Thus, where there are two permissible views of the evidence, the factfinder’s choice between them cannot be manifestly erroneous or clearly wrong. Stobart, 617 So.2d at 883; Rogers, 916 So.2d at 1101.

Although a trial court’s determination of credibility is entitled to deference on appellate review, where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face, that a reasonable factfinder would not credit the witness’s story, a court of appeal may find manifest error even in a finding purportedly based upon a credibility determination. Toston v. Pardon, 03-1747, p. 12 (La.4/23/04), 874 So.2d 791, 800. In summary, an appellate court cannot shirk its duty of appellate review of fact by simply deferring to a trial court’s factual determinations because its reasons for judgment are couched in terms of a credibility call. At some point, even a bare transcript is so deficient in terms of quality of evidence that the trial court’s error is manifest, even if some credibility determinations must necessarily be made. Rogers v. City of Baton Rouge, 04-1001, p. 9 (La.App. 1st Cir.6/29/05), 916 So.2d 1099, 1104.

The standard of appellate review for questions of law is simply to determine whether the trial court was legally correct or incorrect. Cangelosi v. Allstate Ins. Co., 96-0159 (La.App. 1st Cir.9/27/96), 680 So.2d 1358, 1360, writ denied, 96-2586 (La.12/13/96), 692 So.2d 375. If the trial court’s decision was based on an erroneous interpretation or application of law, rather than a valid exercise of discretion, such incorrect decision is not entitled to deference by the reviewing |7court. Conagra Poultry Co. v. Collingsworth, 30,155 (La. App. 2nd Cir.1/21/98), 705 So.2d 1280.

In considering the liability of the franchisor, Quik International, to a third party, God’s Glory, for the alleged breach of the contract the latter entered into with the franchisee, Simpliance, we must look to the law on agency and mandate. A principal is bound by the authorized acts of his agent. La. C.C. art. 3021. A principal may also be bound by acts of a professed agent acting with “apparent authority.” Tedesco v. Gentry Development, Inc., 540 So.2d 960 (La.1989); Dart Distributors, Inc. v. Foti Enterprises, Inc., 271 So.2d 705 (La.App. 1st Cir.1972). As explained by the Supreme Court in Tedesco:

Apparent authority is a doctrine by which an agent is empowered to bind his principal in a transaction with a third person when the principal has made a manifestation to the third person, or to the community of which the third person is a member, that the agent is authorized to engage in the particular transaction, although the principal has not actually delegated this authority to the agent. Restatement (Second) of Agency § 8 (1958); W. Seavey, Law of Agency § 8(D) (1968); F. Mechem, Law of Agency § 84 (4th ed.1952); Comment, Agency Power in Louisiana, 40 Tul. L.Rev. 110 (1965) [hereinafter cited as Comment, Agency Power]. In an actual authority situation the principal makes the manifestation first to the agent; in an apparent authority situation the principal makes this manifestation to a third person. However, the third person has the same rights in relation to the principal under either actual or apparent authority. Further, apparent authority operates only when it is reasonable for the third person to believe the agent is authorized and the third person actually believes this. Restatement, supra § 8, comments a and c.
There is no express codal or statutory authority for the doctrine of apparent authority in Louisiana. This doctrine of unprivileged agency power, however, is an important part of the modern law of agency. A. Yiannopoulos, Civil Law in the Modern World 88 (1965).
Louisiana courts have utilized the doctrine of apparent authority to protect third persons by treating a |sprincipal who has manifested an agent’s authority to third persons as if the principal had actually granted the authority to the agent. See Restatement, supra § 8, comment d; Comment, Agency Power, supra; Conant, The Objective Theory of Agency: Apparent Authority and the Estoppel of Apparent Oumership, 47 Neb.L.Rev. 678 (1968). (Footnotes omitted.)

This Court has also explained that “apparent authority is a doctrine by which an agent is empowered to bind his principal in a transaction with a third person when the principal has made a manifestation to the third person that the agent is authorized to engage in the particular transaction, although the principal has not actually delegated his authority to the agent.” Tresch v. Kilgore, 03-0035 (La. App. 1st Cir.11/7/03), 868 So.2d 91; Waffle House, Inc. v. Corporate Properties, Ltd., 99-2906 (La.App. 1st Cir.2/16/01), 780 So.2d 593. The burden of proving apparent authority is on the party relying on the mandate. The third party may not blindly rely upon the assertions of an agent, but has a duty to inquire into the nature and extent of the agent’s power. Tresch, supra.

Applying these precepts to the case before us and considering the record in its entirety, we find no error by the trial court in its interpretation or application of the law or in its factual findings and credibility determinations, which we find were reasonably supported by the record.

God’s Glory takes issue with the trial court’s reference to the franchise agreement between Quik International and Sim-pliance. The trial court noted that Article 17 of the franchise agreement specifically states that the franchisee was an independent contractor and the franchisor was not responsible for the employees of the franchisee. It also clearly states that there was not an agency or fiduciary relationship between the franchisor and franchisee. The trial court found that Quik International never gave Simpliance the authority to bind it to any contract with a third party for web design work.

| aUpon review, we find that the trial court’s consideration of the franchise agreement and factual finding that Quik International did not give Simpliance authority to bind it to a contract were both relevant and necessary to a determination in the case. As stated above, an agent can bind a principal through either actual authority or apparent authority. The trial court had to first determine whether Sim-pliance had actual authority to bind Quik International to an agreement with a third party. To make that determination, the terms of the agreement between the franchisor and franchisee had to be considered and a factual finding had to be made. Thus, we find no merit in God’s Glory’s argument that the trial court improperly dismissed its claims based on the language of the franchise agreement. To the contrary, consideration of the terms of the agreement was necessary for consideration of any claims against Quik International based on the actual authority of Simpliance. Furthermore, we find that the trial court’s determination that Quik International did not give Simpliance the actual authority to bind it to any contracts with third parties for web design was amply supported by the record and was not manifestly erroneous.

Ruling out any actual authority of Simpliance to support God’s Glory’s claims against Quik International, the trial court next assessed liability under the apparent authority doctrine. In doing so, the trial court made several pertinent factual findings. The trial court found that Quik International’s primary role as franchisor was to serve as an Internet Service Provider, that is, to provide a location to host the God’s Glory web site. Quik International was not a party to the contract with God’s Glory and, in fact, had no contact with it. God’s Glory only dealt with agents and employees of Simpliance. At no time was Quik International contacted directly by God’s Glory.

|inThe trial court also found that Quik International was not the alter ego of Sim-pliance. Quik International did not participate in the day-to-day operations of Sim-pliance, or control it. The two companies had different directors, officers, employees, clients and contracts. All of these findings are well supported by the record and are not contested on appeal.

Rather, the basis for God’s Glory’s claims against Quik International rest on alleged comments and assurances made by Simpliance employees, Mark Perryman (Perryman) and Ken Thurston (Thurston), the logo on their business cards, and information that God’s Glory claims to have gathered from Quik International’s web site, all of which, it contends, that it relied on in contracting with Simpliance because it believed they were contracting with Quik International.

The record indicates that Simpliance was doing business under the name of Quik Internet of Baton Rouge and Quik Computer Solutions. Quik International is a Nevada Corporation that franchised an internet service provider (ISP) concept under the trade name Quik Internet. The Quik Internet franchise concept was developed to provide web hosting services on a local level while taking advantage of the economies of scale to provide the franchisees with a centralized set of servers upon which the ISP and web hosting services could be provided. In other words, it enabled the franchisees to reduce their costs by not having to acquire servers of their own, allowing them to access the central servers in California that were operated by Quik International.

Perryman acknowledged that part of his sales pitch was to tell customers that he could provide them better web hosting and ISP services because of the availability to him of the centralized servers provided by Quik Internet. Perryman also confirmed that he and Thurston had business cards that they used with the Quik Internet logo on them and that the logo was also displayed on the QuikJ^International web site. The card had the Quik Internet logo on it right above the heading “Computer Solutions.” The card in the record had Thurston’s name at the top left corner with a Baton Rouge Quik email address. In each lower corner was listed the company name, Quik Internet of Baton Rouge, with a local address and phone number, in the left corner, and the company name, Quik Computer Solutions, with a local address and phone number in the right corner. Nowhere did the card reference Quik International. One could reach the Quik Internet web site from the Quik Internet of Baton Rouge web site. The record also indicates that Quik Internet was listed in the Baton Rouge telephone directory under the heading of Web Site Design.

The Lees testified that they checked and relied on the Quik International web site before entering into the contract with Sim-pliance. However, Mrs. Lee conceded that she did not know anything about the internet or how to navigate it at the time she contracted with Simpliance, and had to look over her husband’s shoulder as he moved about the web sites. While Mr. Lee testified that he relied on representations in the Quik International site before signing the contract with Simpliance, there were discrepancies in the testimony about exactly which pages he viewed before signing the contract. The web site pages filed into the record were from the Quik Internet site. The record also indicates that God’s Glory did not make telephone inquiry or any other of Quik International to determine firsthand what support it provided for the customers of its franchisees. The Lees indicated that they knew Quik Internet of Baton Rouge or Quik Computer Solutions was a franchisee of Quik International. Further, despite the Lees’ testimony that they were led to believe that they were hiring Quik International when they contracted with Simpliance, when they were having trouble over several 112months getting their web site running, they did not attempt to contact Quik International about the problems.

The record also contains a page from the Quik Internet site referring to their expertise in web site design. However, Jack Reynolds (Reynolds), an employee, shareholder and founder of Quik International, testified explaining that the web site was intended in part to explain the services Quik International offers to its franchisees and not to customers of the franchisees. This was particularly the case as to the section on “Web Design Solutions.” He also explained that the Quik Internet site was available to all franchisees as part of their package. Reynolds noted that it was a matter of the franchisees’ discretion as to whether to offer any services beyond the ISP, web hosting and email accounts that are part of the Quik Internet franchise concept.

Following trial, in addition to other factual findings referred to infra, the trial court found that Quik International did not make any promises or representations to God’s Glory. The trial court found that Mrs. Lee was inexperienced with computers and the internet at the time Simpliance was hired. Most importantly, the trial court made credibility determinations, finding that much of the information that was learned by God’s Glory about Quik International was acquired after it had terminated Simpliance or when it was contemplating the filing of the instant suit. Further, the trial court found that, even if the Lees did believe that promises were made by Quik International, such a belief without inquiry was not reasonable under all the facts and circumstances.

Based on the foregoing, we find no error in the trial court ruling, manifest or otherwise. The burden was on God’s Glory to prove the apparent authority of Simpliance to act for Quik International, evidenced by manifestations of Quik International to the Lees, and that their reliance on this apparent authority was |-^reasonable. A review of the entire record indicates, as found by the trial court, that God’s Glory did not meet its burden. Considering the record in its entirety, we find a reasonable factual basis for the credibility determinations and factual findings of the trial court and that they were not clearly wrong. We also find that the interpretation and application of the law to these facts was correct.

Accordingly, the judgment of the trial court in favor of Quik International, dismissing God’s Glory’s case against it, is affirmed. Costs are to be paid by God’s Glory. The answer to the appeal filed by Quik International requesting penalties for a frivolous appeal is found to lack merit and is denied.

AFFIRMED.


source: Caselaw Access Project

author: MARION F. EDWARDS, Judge, Ad Hoc.

license: Public Domain

text:
    JAMIE LAND COMPANY, INC. v. Francis K. JONES, Jr., et ux.
    No. 2005-CA-1471.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Writ Denied Oct. 6, 2006.
    John A.E. Davidson, Metairie, Counsel for Plaintiff-Appellant.
    Tom W. Thornhill, Chadwick W. Coll-ings, Mitchell A. Palmer, Thornhill Law Firm, L.C., Slidell, Counsel for Defendant-Appellee.
    Panel composed of Ad Hoc Judges JAMES L. CANNELLA, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   MARION F. EDWARDS, Judge, Ad Hoc.

liiOn August 6, 2003, Jamie Land Company Inc. (“Jamie”) filed an Action To Quiet Title To Real Estate against Catherine Jung, wife oPand Francis K. Jones (“Jones”), and numerous other defendants, involving several parcels of property acquired by Jamie by quitclaim. Ml matters arising under the original action on the various properties were resolved with the exception of the Jones defendants. According to the petition, the 5.88 acres of land in question had previously been purchased by Jones in 1989 and acquired by Amy Hammons by a tax sale for unpaid 1997 parish ad valorem taxes in July 1998. Jamie obtained the property from Ham-mons by quitclaim on September 29, 1998.

Jones filed an Answer And Reconven-tional Demand, averring that no notice was sent for the tax sale, that the prescriptive period for acquisition had not elapsed because it had been suspended by possession, and that the peremptive period had not begun to run because of the lack of notice. Jones also prayed that the tax sale be cancelled. Subsequently, after answering the reconventional demand, Jamie filed a Motion For Summary Judgment in its favor, to which Jones responded with a Motion For Summary Judgment. Following a hearing, the trial court denied Jamie’s motion and granted that of Jones, finding the tax sale absolutely null and void for failure of proper notice. Jamie appeals.

|aThe appellate record contains a credit Sale of Property dated February 16, 1989, from D & R Partnership Inc. to Jones, transferring the property in question for the sum of $8,250. The Act of Sale was recorded in St. Tammany Parish. The property was sold in 1993 for failure to pay taxes. On April 7, 1997, Jones redeemed the property. In the record is a receipt indicating that, at that time, Jones paid the taxes assessed through 1995 and, on that receipt, there was a notation “Amount Good Thru 4/30/97.” In 1998, the property was apparently adjudicated for non-payment of the 1996 tax.

It is well settled that appellate courts review summary judgments de novo under the same criteria that governs the district court’s consideration of whether summary judgment is appropriate. The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. LSA-C.C.P. art. 2164. The appellant may designate the record limiting it to such portions which he desires to constitute the record on appeal. LSA-C.C.P. art. 2128. The inadequacy of the record, if any, is imputable to the appellant.

Regarding notice requirements, the United States Supreme Court recognized that the sale of property for non-payment of taxes is an action that affects a property right protected by the Due Process Clause of the Fourteenth Amendment, and, as a minimum constitutional precondition to such a proceeding, notice must be sent by mail or other means certain to ensure actual notice if the party’s name and address are reasonably ascertainable. Louisiana courts have recognized and followed this holding. Failure to provide notice renders a tax sale of the property an absolute nullity.

RAbsent from this designated appellate record is proof of an adequate proces verbal as required by LSA-R.S. 47:2180. Under that statute a proces verbal must state therein the names of notified tax delinquents, their post office addresses, a brief description of the property, the amount of taxes due, and how the service of notice was made. Such proces verbal shall be signed officially by him in the presence of two witnesses and filed in the office of the clerk of court for recording and preservation. Attached to a “Memorandum In Opposition To Motion For Summary Judgment Of Francis K Jones And In Support Of Motion For Summary Judgment Of Jamie Land Co. Inc., Against Francis K. Jones Et Al” is a page, referred to as the “proces verbal,” that lists names, addresses, and “article numbers.” Presumably, those article numbers are postal article numbers. This “evidence” does not constitute a sufficient proces verbal under the statute. By definition, the purpose of the proces verbal in these instances is to create an authenticated record of the actions taken by the tax collector to comply with the notice requirements. Because it is statutorily recognized as evidence of what it purports to be, the form requirements, which in this case are minimal, are indispensable.

If a proces verbal is properly executed and filed, the burden of establishing that no notice was given rests on the tax debtor. However, in the absence of the proces verbal, the burden of proof is on the tax purchaser to show by clear and convincing evidence that the necessary notice was conveyed to the tax debtor. As stated above, the record before us does not show a proces verbal or recordation thereof detailing the tax collector’s notification to tax debtors as required. An affidavit sworn by Lieutenant Josie Willie, manager of the Property Tax Division of the St. Tammany Parish Sheriffs Office, stated that the Division keeps all notices of property taxes for a period of five years, and had no records concerning |fithe mailing of any notice to Jones for 1996-1997 taxes, other than the “proces verbal.” Absent a proces verbal that conforms to the statute, there is no evidence in the record that the sheriff properly advertised and gave notice of the tax sale to Jones. Mr. and Mrs. Jones swore in affidavits submitted in connection with their motion that they had not received notice that taxes were due for 1996 on their property. Further, according to their affidavits, when they redeemed the property in 1997 after it had been sold for nonpayment of the 1993 taxes, they were not informed of any further delinquency. Instead, they were that told no property taxes were owed, and that the amount paid at that time was good until April 30, 1997. Mrs. Jones personally paid the taxes at the assessor’s office from 1997-2003.

In addition, we note there is no evidence of the purchase by Hammons of the property in a tax sale, or of the quitclaim deed in favor of Jamie, so as to evidence the chain of title. There are, however, some tax receipts evidencing that Jones paid property taxes for the years 2000-2001, as well as a duplicate tax notice for 2003, that gives the property descriptions in relevant part, as “T S TO [HJAMMONS, AMY INST NO 1104990 HAMMONS INT TO JAMIE LAND INST NO 11665.”

Based on the record before us, it is clear that Jamie failed to meet its burden of proof of notice. Accordingly, we affirm the judgment of the district court in denying Jamie’s motion for summary judgment, in granting Jones’ motion, and in declaring the tax sale absolutely null and void. Jamie is taxed with costs of this appeal.

AFFIRMED.

      . Western v. Stoot, 05-186 (La.App. 5 Cir. 10/06/05), 916 So.2d 1195.

      . Olson v. Olson, 04-1137 (La.App. 5 Cir. 03/01/05), 900 So.2d 52.

      . Mennonite Bd. of Missions v. Adams, 462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983).

      . See, e.g., Guichard Drilling Co. v. Alpine Energy Serv., Inc., 94-1275 (La.7/3/95), 657 So.2d 1307.

      . Richard v. Richard, 04-715 (La.App. 5 Cir. 12/14/04), 892 So.2d 94, writ denied, 2005-0120 (La.4/8/05), 898 So.2d 1278.

      . Pardon v. Moore, 39,949 (La.App. 2 Cir. 8/17/05), 908 So.2d 1253.

      . Pardon v. Moore, supra. See also, Mason v. Nattin, 355 So.2d 44 (La.App. 2 Cir.1978).


author: SUSAN M. CHEHARDY, Judge, Ad Hoc.

text:
    Dewayne ARCHER v. Velma HURST and State Farm Mutual Automobile Insurance Company.
    No. 2005-CA-1483.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    R. Chris Oetjens, Baton Rouge, Counsel for Plaintiff/Appellant.
    Glen Scott Love, Baton Rouge, Counsel for Defendant/Appellee.
    Panel composed of Ad Hoc Judges JAMES L. CANNELLA, MARION F. EDWARDS, And SUSAN M. CHEHARDY.
   SUSAN M. CHEHARDY, Judge, Ad Hoc.

| ¡^Plaintiff, Dewayne Archer, appeals from a judgment of the trial court that dismissed all claims against defendants in his action for damages resulting from an automobile accident. For reasons that follow, we affirm.

In his petition, plaintiff asserts that he was driving a 1997 Dodge truck westbound on Florida Boulevard in East Baton Rouge Parish on November 3, 2001. When he turned right onto Sharp Lane, he collided with a vehicle driven by defendant, Velma Hurst. Ms. Hurst was traveling west on the parallel service road, and was crossing Sharp Lane at the time of the accident. Plaintiff also named Ms. Hurst’s insurer, State Farm Mutual Automobile Insurance Company (State Farm), as a defendant. Mr. Archer avers that the cause of the accident was Ms. Hurst’s failure to stop at the stop sign on the corner of the Florida Avenue service road and Sharp Lane.

In due course, the matter went before the bench for a trial on the merits, after which the trial court rendered judgment for the defendants and dismissed plaintiffs action. It is that judgment which forms the basis of this appeal.

It is clear from the testimony at trial and the photos contained in the record that Florida Boulevard is a major intersection with multiple lanes in either direction separated by a median, and additional turn lanes at major intersections. There are service roads with one lane of traffic in each direction on both sides of LFlorida Boulevard, separated from Florida Boulevard by grassy spaces about ten to twelve feet wide. Sharp Road crosses Florida Boulevard. At that intersection, there is a traffic light. Mr. Archer was traveling westbound on Florida Boulevard, before turning right onto northbound Sharp Road. Ms. Hurst was traveling westbound on the service road to the north of Florida Boulevard. Thus, just before the accident Mr. Archer and Ms. Hurst were traveling parallel to each other, with Mr. Archer on Florida Boulevard and Ms. Hurst on the service road. There is a stop sign on the service road at the intersection with Sharp Road.

Plaintiff, Dewayne Archer testified at trial. He stated that he was driving west on Florida Boulevard, when he stopped for a red light at Sharp Road. When the light turned green, he turned right onto Sharp Road. However, later in his testimony, Mr. Archer stated that the light was red as he approached it but turned green before he got there, so he just slowed down before he turned right. Ultimately, Mr. Archer testified that he thinks he came to a “crawl” stop before turning.

Just after the turn Mr. Archer’s truck collided with a car that was traveling west on the service road. The front, passenger side of Mr. Archer’s truck struck the rear panel of Ms. Hurst’s ear. Mr. Archer stated that when the light turned green, he just turned onto Sharp Road. He did not look to see what cars were traveling on the service road.

Mr. Archer stated that at the time of the accident he was on his cell phone, talking to his friend “Robert.” When the accident occurred, he told Robert that he would call back, and then dialed 911. Mr. Archer testified that when he first saw the vehicle in his path, he tried to avoid an accident by slamming on his brakes and swerving. In the impact he hit his head on the windshield and jammed his knee under the steering wheel.

|4Mr. Archer stated that he has had numerous traffic accidents in the past and as a result has had two surgeries on his neck. He recalled at least seven accidents, although he admitted testifying in a prior litigation in December of 2000 that he had at least twenty accidents. When reminded of that former testimony, Mr. Archer admitted he could not recall how many accidents in which he has been involved, nor could he remember the dates of the accidents.

Mr. Archer denied knowing Christopher Whatley, who testified at trial, before the accident and denied calling him from the accident scene.

Corporal Kirk Grover of the Baton Rouge City Police, who investigated the accident, testified that it is the responsibility of the vehicle on the service road, faced with a stop sign, to watch for oncoming traffic before entering the intersection. Corporal Grover interviewed both drivers and two witnesses in the course of his investigation. He stated that Ms. Hurst had almost cleared the intersection when the accident occurred. The damage to Mr. Archer’s vehicle was at the front end, and Ms. Hurst’s vehicle was damaged on the rear panel. The damages to both vehicles were minor. The police report of the accident was introduced into evidence in connection with Corporal Grover’s testimony.

Ms. Hurst also testified at trial. According to her version of the accident, she was traveling westbound on the Florida Boulevard service road just before the accident. She stopped at the stop sign at the intersection of Florida Boulevard and Sharp Road. She looked both ways and saw no traffic coming, so she proceeded across the intersection. There was a truck going in the opposite direction on the service road. It had also stopped at the stop sign and pulled across the intersection at the same time. As she approached the other side of the intersection, her vehicle was struck in the rear by Mr. Archer’s truck. Ms. Hurst testified that she remained in control of her car to avoid hitting the truck that was also crossing the intersection at the same time in the opposite direction. She pulled to the side of the |Broad and got out. Upon further questioning, Ms. Hurst stated that there was no traffic coming in either direction on Sharp Road, or any vehicles turning onto Sharp when she entered the intersection. Although, Ms. Hurst could not recall whether the light at Florida and Sharp was red or green, she was certain that there is no turn on red at that intersection, and that there was no truck there when she proceeded across the intersection.

Mr. Brian Bradford testified that he was traveling eastbound on the Florida Boulevard service road just before the accident. He stopped at the stop sign at the intersection of Florida and Sharp. Ms. Hurst was opposite him on the westbound lane of the service road, also stopped at the stop sign. His testimony supports that of Ms. Hurst. Mr. Bradford testified that he looked both ways and saw no traffic coming in either direction on Sharp Road. He further testified that Mr. Archer’s truck was not at the intersection of Florida Boulevard and Sharp Road when he looked for traffic. Mr. Bradford stated that the traffic light regulating Florida Boulevard was red at the time he pulled into the intersection after his stop at the sign on the service road. He and Ms. Hurst started across the intersection at the same time, going in opposite directions. Mr. Archer’s truck “swung” around the corner without stopping or yielding and hit the rear of Ms. Hurst’s car. The impact almost knocked Ms. Hurst’s vehicle into Mr. Bradford’s. Mr. Bradford testified that he got out of his car and went over to Mr. Archer’s truck to see if he was injured. When he approached, Mr. Archer was on his cell phone. Mr. Bradford heard Mr. Archer saying, “Chris, I need you to get around here right away. I’ve had an accident.” Mr. Bradford went over to see if Ms. Hurst was alright. She was shaking and upset. Mr. Bradford tried to calm her and then called 911 to report the accident.

IfiAt this point Mr. Bradford’s wife, Gera who was a passenger in her husband’s car at the time of the accident, called him over to the car. She told her husband that a car had just pulled up on the grass by the corner gas station.

Gera Bradford also testified at trial. Her testimony corroborates that of her husband and Ms. Hurst. She testified that there was no traffic coming in any direction when they pulled away from the stop sign, and that Mr. Archer’s truck came around the corner without stopping or yielding. Ms. Bradford stayed in the car after the accident while her husband got out to check on the two drivers involved in the accident. While Mr. Bradford was out of the car, Mrs. Bradford saw a white car pull up on the grass near the corner gas station. The man got out of the car and went over to talk to Mr. Archer. Mrs. Bradford was certain the white car was not there when the accident happened.

Christopher Whatley testified that he was stopped at a red light on Sharp Road heading south, waiting to cross over Florida Boulevard. He saw a truck, heading west on Florida Boulevard turn right onto Sharp Road when the light turned green. When the truck turned, a car traveling west on the service road entered the intersection and the accident occurred about ten feet in front of Mr. Whatley’s vehicle. Mr. Whatley could not be sure if the car stopped at the stop sign before entering the intersection. After the accident, Mr. Whatley got out of his car and asked Mr. Archer if he was injured. Then Mr. What-ley pulled into a gas station on the corner and remained to talk to the accident victims and give a report to police.

On cross-examination, Mr. Whatley denied knowing Mr. Archer before the accident. He stated that he lived within a one-half mile from the accident scene and was going to the gas station on the corner of Florida Boulevard and Sharp Road at the time of the accident.

|7After hearing the testimony and reviewing the evidence, the trial court rendered judgment in favor of defendants, and dismissed plaintiffs action. The trial court’s reasons for judgment show that the court considered the discrepancies in the testimony, and ultimately concluded that;

.It is this Court’s finding, based on the facts that have been presented, that Ms. Hurst had preempted this intersection prior to Mr. Archer beginning to make his turn from Florida Boulevard onto Sharp.

In brief to this court, plaintiff argues Ms. Hurst breached her duty to stop at the stop sign and that the trial court erred in applying the preemption doctrine. In support of his argument that the trial court -erred in applying the preemption doctrine, plaintiff cites Semien v. State Farm Mutual Automobile Ins. Co., 398 So.2d 161 (La.App. 3 Cir.1981) as a factually similar case in which the court found that the preemption doctrine was inapplicable. In Semien, plaintiff stopped at a stop sign before crossing a four-lane favored street. She testified that she looked both ways and felt that the roadway was clear enough to cross safely. She crossed the first two lanes successfully. Plaintiff testified she saw an approaching vehicle on the second two lanes of the favored street, but continued to cross the intersection because she believed she could cross safely. Unfortunately, plaintiff miscalculated and was struck by the vehicle traveling on the favored road. The trial court ruled that plaintiff had preempted the intersection. However, the appellate court reversed, finding that plaintiff violated her duty to yield to vehicles traveling on a favored street.

We find plaintiffs reliance on Semien misplaced. In Semien there was testimony that plaintiff saw the oncoming vehicle, but misjudged her chances of crossing the intersection on time. In the instant case, Ms. Hurst testified that she saw no vehicles when she crossed the intersection. Further, that testimony is corroborated by the testimony of both Mr. and Mrs. Bradford.

|sLa. R.S. 32:123 sets forth the duty of a driver when approaching a stop sign. That statute provides in pertinent part as follows:

A. Preferential right of way at an intersection may be indicated by stop signs or yield signs.
B. Except when directed to proceed by a police officer or traffic-control signal, every driver and operator of a vehicle approaching a stop intersection indicated by a stop sign shall stop before entering the cross walk on the near side at a clearly marked stop line, but if none, then at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway before entering the intersection. After having stopped, the driver shall yield the right of way to all vehicles which have entered the intersection from another highway or which are approaching so closely on said highway as to constitute an immediate hazard.

It is clear from the law and facts of this case that Ms. Hurst had the duty to stop at the stop sign and not to proceed until it was safe to do so. In finding that Ms. Hurst did not breach that duty the trial court relied on the preemption doctrine. To be successful, a motorist claiming preemption of an intersection while crossing a favored roadway must show he entered at a time when he had reasonable opportunity to complete the crossing without endangering or impeding the passage of a vehicle on the superior roadway. Williams v. Garner, 268 So.2d 56 (La.App. 1 Cir.1972). As explained in Price v. City of Slidell, 97-2066 (La.App. 1 Cir. 9/25/98), 723 So.2d 455, 460:

In order to preempt an intersection, the motorist must show that he made a lawful entry, at a proper speed, after ascertaining that oncoming traffic was sufficiently removed to permit a safe passage and under the bona fide belief and expectation that he can negotiate a crossing with safety. He must show that he entered the intersection at a proper speed and sufficiently in advance of the vehicle on the intersecting street to permit him to cross without requiring an emergency stop by the other vehicle. Id. (citations omitted)

Given the evidence presented in the instant case, we find a factual basis for the trial court’s finding that Ms. Hurst preempted the intersection. Accordingly, we do not find manifest error in the trial court’s finding that Ms. Hurst had | flpreempted the intersection and that Mr. Archer was at fault. See; Stobart v. State, through Dept. of Transp. and Develop., 617 So.2d 880 (La.1993).

There is testimony from Ms. Hurst and the Bradfords that Mr. Archer was not stopped at the red light on Florida Boulevard as he first stated. Although the testimony of Ms. Hurst and the Bradfords is consistent and definite, Mr. Archer’s testimony is contradictory as to whether he actually stopped for the red light, and where he was when Ms. Hurst first entered the intersection. Further, there is some question as to whether the second witness, • Christopher Whatley, is credible.

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

AFFIRMED.


text:
    Mamie B. Bell and Her Husband, Earl BELL v. Milton KRISTI and State Farm Mutual Automobile Insurance Company.
    No. 2005-CA-1500.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Rehearing Denied Sept. 19, 2006.

      Otha Curtis Nelson, Sr., Nelson & Nelson, L.L.P., Baton Rouge, Counsel for Plaintiffs/Appellants.
    Sandra S. Rester, Terry J. Butcher and Associates, Baton Rouge, Counsel for Defendant/Appellee.
    Panel composed of Ad Hoc Judges JAMES L. CANNELLA, MARION F. EDWARDS, and SUSAN M. CHEHARDY.
   MARION F. EDWARDS, Judge, Ad Hoc.

| PPlaintiffs/appeIlants, Mamie B. Bell and her husband, Earl Bell, appeal a judgment of the district court granting an involuntary dismissal of their case in favor of defendants/appellees “Milton Kristi” and State Farm Mutual Automobile Insurance Company (“State Farm”), the Bells’ uninsured motorist (UM) carrier. At the outset, we note that the petition is framed against “Milton Kristi” and requests service against same. In the record attached to Mamie Bell’s (“Bell”) Application For New Trial And In The Alternative Motion To Reopen Case, she attaches a letter from Safeway Insurance Company of Louisiana (“Safeway”) to State Farm and referencing the instant case, advising that a policy issued to Michael Milton had been cancelled effective June 6, 2001, for nonpayment of premium. A second letter from Safeway to Bell’s counsel references “Michael and Kristi Milton” and informs Bell of the denial of her claim, attaching a copy of its earlier letter to State Farm. Thus, it appears that “Milton Kristi” is actually “Kristi Milton,” the driver of the vehicle that hit Bell.

On October 19, 2001, Bell was driving her automobile on Florida Boulevard in Baton Rouge when she was involved in a collision with a vehicle driven by Kristi Milton (“Kristi”). Bell filed suit for damages in the Nineteenth Judicial District Court. Trial on the matter was held in January 2005. After the plaintiffs | ?,rested their case, State Farm moved for an involuntary dismissal on the basis that no evidence had been presented that the Kristi vehicle was uninsured. Prior to the granting of the motion to dismiss, Bell moved to reopen the case, which motion was denied. In this denial, the court noted there had been no service on Kristi and that the only party before the court on that date was State Farm. The court also stated that it did not think it could allow Bell to reopen her case unless counsel agreed to it. Thereafter, the court granted the dismissal.

A trial court’s decision to reopen a case for additional evidence is discretionary and will not be disturbed absent a clear abuse of discretion. The court had the discretion to allow Bell to reopen the case without the consent of State Farm, especially considering that the motion to dismiss had not yet been granted, and it was error to determine that the consent of State Farm was necessary.

Bell testified that State Farm paid her property damage, as well as her medical bills and lost wages. In contesting the dismissal, counsel for Bell argued that the fact that State Farm paid lost wages and medical bills “was like a false notice to me that State Farm was admitting that the other driver did not have liability insurance for them to have paid us $4,956, even though the medical policy is different from paying lost wages.” State Farm argued that its payment was simply a good faith unconditional tender. We note that the record on appeal does not indicate that State Farm ever contested the uninsured/underinsured status of the other vehicle. In the joint Pre-Trial Order, Bell alleged that Kristi was uninsured and, thus, State Farm was liable for her injuries; State Farm submitted that the primary issue in the case was damages and causation. State Farm was well aware |4that this claim was being asserted by Bell. Under these circumstances, the court abused its discretion in refusing to allow Bell to reopen her case.

Under LSA-C.C.P. art. 1672, which governs involuntary dismissal, the standard for granting such a dismissal is whether the plaintiff has presented sufficient evidence to establish her claim by a preponderance of the evidence. The trial court’s decision on the motion should not be disturbed on appeal absent manifest error or unless clearly wrong. On appeal, we must assess not whether the trial court’s decision is right or wrong, but whether it is “ ‘reasonable in light of the record reviewed in its entirety.’ ” (Citation omitted.)

In light of our findings above, we find that the court erred in granting the Motion For Involuntary Dismissal, after refusing to let Bell reopen her case.

Pursuant to La. C.C.P. art. 2164, courts of appeal have the power to remand a case for the introduction of additional evidence if grave injustice might result from failure to do so.... Such a remand is warranted only when the new evidence is likely to affect the outcome of the case.... The power to remand on this basis should be exercised sparingly.... Whether a particular case is remanded is a matter over which the court has much discretion and is governed by the particular facts and circumstances in each case....

(Citations omitted.)

The testimony at trial indicated that Bell suffered some general damages as a result of the accident. Allowing the introduction of the evidence, particularly the letters to counsel for Bell and to State Farm that were attached to Bell’s Motion For New Trial, will obviously affect the outcome of the case and do substantial justice to Bell.

| BFor the foregoing reasons, we set aside the judgment dismissing Bell’s case, and we remand to the trial court with instructions to allow Bell to submit evidence of the uninsured/underinsured status of Kristi. Costs are assessed to State Farm.

JUDGMENT OF DISMISSAL SET ASIDE; REMANDED WITH INSTRUCTIONS.

      . Fly v. Allstar Ford Lincoln Mercury, Inc., 95-1216 (La.App. 1 Cir. 8/21/96), 690 So.2d 759.

        . See, e.g., Fly v. Allstar Ford Lincoln Mercury, Inc., supra.

      . Leday v. Safeway Ins. Co. of La., 2004-610 (La.App. 3 Cir. 11/17/04), 888 So.2d 1084, 1087.

      . Barnhill v. A-1 Remodeling, 2002-0357 (La. App. 1 Cir.2003), 858 So.2d 661, 665, writ denied, 2003-2159 (La. 11/14/03), 858 So.2d 419.


text:
    In re: Corbett L. OURSO, Jr.
    No. 2005-CA-0543.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Rehearing Denied Aug. 1, 2006.

      R. Gray Sexton, Kathleen M. Allen, Melissa M. McConnell, Counsel for the Board of Ethics, Baton Rouge, Counsel for Plain-tiffAppellee.
    John O. Braud, Braud & Braud, Hammond, Counsel for Defendant/Appellant.
    Panel composed of Ad Hoc Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and FREDERICKS HOMBERG WICKER.
   FREDERICKS HOMBERG WICKER, Sd Hoc Judge.

| ^Corbett L. Ourso, Jr. (Ourso) appeals a December 15, 2004 ruling by the Louisiana Board of Ethics (Board) decreeing he violated La. R.S. 18:1505.1(0 of the Campaign Finance Disclosure Act (CFDA), and imposing a $4,000.00 civil penalty. We affirm.

In a letter dated May 17, 2004 addressed to Ourso’s counsel, the Board stated that on May 13, 2004, while acting in its capacity as the Supervisory Committee on Campaign Finance Disclosure, it concluded a private investigation into representations contained in a complaint filed with the Board; consequently, the Board ordered that a public hearing be conducted on August 12, 2004 to explore the following charges:

Jai-
That Corbett L. Ourso, a candidate for District Attorney, 21st Judicial District, in the October 5, 2002 election, may have violated Section 1505.1C of the Campaign Finance Disclosure Act (“CFDA”) (La. R.S. 18:1505.1C) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his tenth day prior to the primary election report that was filed on September 25, 2002 and is, therefore, subject to civil penalties of $60 a day until an amendment correcting the report is filed, not to exceed $2,000.
II.
That Corbett L. Ourso, a candidate for District Attorney, 21st Judicial District, in the October 5, 2002 election, may have violated Section 1505.1C of the Campaign Finance Disclosure Act (“CFDA”) (La. R.S. 18:1505.1C) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his tenth day prior to the general election report that was filed on October 24, 2002 and is, therefore, subject to civil penalties of $60 a day until an amendment correcting the report is filed, not to exceed $2,000.
III.
That Corbett L. Ourso, a candidate for District Attorney, 21st Judicial District, in the October 5, 2002 election, may have violated Section 1505.1C of the Campaign Finance Disclosure Act (“CFDA”) (La. R.S. 18:1505.1C) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his 2002 supplemental campaign finance disclosure report that was filed on February 18, 2003 and is, therefore, subject to civil penalties of $60 a day until an amendment correcting the report is filed, not to exceed $2,000.
IV.
That Corbett L. Ourso, a candidate for District Attorney, 21st Judicial District, in the October 5, 2002 election, may have violated Section 1505.1C of the Campaign Finance Disclosure Act (“CFDA”) (La. R.S. 18:1505.1C) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his 2003 supplemental campaign finance disclosure report that was filed on February 6, 2004 and is, therefore, subject to civil penalties of $60 a day until an amendment correcting the report is filed, not to exceed $2,000.

At the August 12, 2004 public hearing a Joint Statement of Uncontested Facts was introduced and filed into the record and the parties were instructed to submit briefs within fifteen days and return the matter to the Board’s September 9, [¿2004 meeting. On September 9, 2004 the matter was continued; at the Board’s October 14, 2004 meeting a public hearing was held regarding the charges against Ourso. On December 15, 2004 the Board issued its opinion, finding that the loans to the Ourso campaign, reportedly received from Ourso, were loans from his father; therefore, the failure of Ourso to indicate on four separate campaign finance reports that the loans were from his father constitutes four separate violations of La. R.S. 18:1505.1(C). Noting that violators are subject to civil penalties of $60 a day, not to exceed $2,000.00, for each report on which transactions were inaccurately disclosed, the Board concluded that the interest of the public would be served by the imposition of $1,000.00 for each inaccurately filed report for a total of $4,000.00 civil penalty. A copy of the Board’s written reasons for judgment are attached to this opinion. Ourso appeals.

Judicial review of rulings of the Board is conducted in accordance with the Louisiana Administrative Procedure Act. La. R.S. 42:1148; In re Jefferson Alliance, Inc., 02-0335 (La.App. 1 Cir. 2/14/03), 841 So.2d 15, 16, writ denied, 03-1136 (La.6/20/03), 847 So.2d 1233. The review shall be confined to the record, as developed in the administrative proceedings. La. R.S. 49:964(F); Schmitt v. Louisiana Bd. Of Ethics, 00-0341 (La.App. 1 Cir. 3/28/01), 808 So.2d 524, 525. A reviewing court may reverse or modify the Board’s decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are (1) in violation of constitutional | nor statutory provisions; (2) in excess of the agency’s statutory authority; (3) made upon unlawful procedure; (4) affected by other error of law; (5) arbitrary, capricious, or an abuse of discretion; or (6) not supported and sustainable by a preponderance of evidence as determined by the reviewing court. La. R.S. 49:964(G); In re Jefferson Alliance, Inc., 841 So.2d at 16-17.

On appeal, Ourso asserts three assignments of error.

Assignment of Error Number 1

The Board committed manifest error when it found that Corbett L. Ourso, Jr. violated the Campaign Finance Disclosure Act because the only evidence before the Board established that the candidate, Ourso, Jr., was the owner of the funds prior to their placement in the campaign account.

The Joint Statement of Uncontested Facts establishes the following. On August 26, 2002, Ourso deposited $20,000.00 into his personal bank account. The funds used for the deposit came from an account standing in the name of Corbett L. Ourso, Sr. (Mr. Ourso, Sr.). Shortly thereafter, On September 3, 2002, Ourso issued a check on his personal account in the same amount, $20,000.00 payable to his campaign account, with the notation “Open campaign account” on the memo line; the bank statement for the campaign account reflects that it was opened on September 3, 2002. On October 1, 2002, Ourso deposited $15,000.00 in his personal account. As with the $20,000.00, the funds used for this deposit came from an account standing in the name of Mr. Ourso, Sr. That same day, Ourso issued a check on his personal account in the same amount, $15,000.00 payable to Ourso’s campaign account with the notation “loan” on the memo line.

Ourso contends that he established that the funds which were transferred from accounts standing in the name of Mr. Our-so, Sr. were his by virtue of an inter vivos trust created by his parents, naming Ourso as the beneficiary and trustee; according to Ourso, the funds were part of this trust.

| fiOurso indicated in the uncontested facts that if called to testify, he and Mr. Ourso, Sr. would state that any and all funds in any account standing in the name of Mr. and Mrs. Corbett L. Ourso, Sr. are, in fact, funds belonging to Ourso and his siblings by virtue of living trusts previously identified and testified to on April 20, 2000 in State of Louisiana Board of Ethics v. Corbett L. Ourso, Jr., Docket Number 9903660, 21st Judicial District Court, Tangipahoa Parish.

In the alternative, Ourso argues that even if the funds were not his by virtue of the trust, they were his by virtue of subsequent, specific manual gifts. He contends that the funds were donated to him to use in whatever way he saw fit; further, the evidence established that after the campaign he withdrew the remaining funds as a partial repayment of his loan to the campaign. Ourso cites the uncontested fact that on October 9, 2002 he issued a check on his campaign account in the amount of $6,517.90 with the notation “partial reimbursement loan” in the memo line.

The Board asserts that to conclude that the true source of the funds was Ourso would lead to an absurd result; it would support the pretense that a candidate could receive funds, which could otherwise be classified as a “contribution” or “loan,” deposit the funds into his personal checking account, transfer the funds to his campaign account, and report the funds as a personal contribution/loan. The Board contends that such a result would defeat two of the purposes of the CFDA, accurate reporting and contribution limits; a candidate would be allowed to completely circumvent the contribution limits by categorizing third-party transfers which exceed the limits as loans from the candidate.

At the April 20, 2000 proceeding, Ourso’s father testified that in April of 1998 he prepared a will, leaving everything to his children. Additionally, he created a trust, making his four children, including Ourso, beneficiaries. Ourso |7was also named as trustee. Ourso testified on April 20, 2000 that initially the trust was created without his knowledge. Upon its completion, his parents “gave” it to him for “safe keeping” and to keep him informed. However, the record does not indicate exactly what and when assets were placed in the trust. Further, as the statement of uncontested facts specifies, the funds for the two deposits in question came from an account standing in the name of Ourso’s father. Additionally, though Ourso contends that the funds were a manual gift donated to him to use in whatever way he saw fit, the record establishes that the relevant transactions were contiguous and involved the exact same amounts. Specifically, Ourso first deposited funds from the Ourso, Sr. account into his personal account and then transferred said funds by depositing the exact same amounts into his campaign account, on the same day as the initial deposit in one case, and shortly thereafter in another. Therefore, we find this assignment of error without merit.

Assignment of Error Number 2

The Board committed manifest error when it held that Corbett L. Ourso, Jr. failed to accurately disclose the receipt of loans from Corbett L. Ourso, Sr. as there was no evidence of any loans from Corbett L. Ourso, Sr.

Ourso was found by the Board to have violated La. R.S. 18:1505.1(0) for failing to accurately disclose the receipt of loans from Corbett L. Ourso, Sr. in four separate reports. La. R.S. 18:1505.1(0 provides that failure to disclose or failure to disclose accurately any information required to be reported shall constitute a violation. In the present case, it is Ourso who characterized the $35,000.00 in question as a loan in his reports. The Board’s charges do not dispute Ourso’s assertion in his reports that the transactions in question were loans. Rather, the charges dispute the accuracy of the reported source of the loans; Ourso reported that he was the source of the $35,000.00 loan, whereas the Board charged that Mr. Ourso, Sr. was the source. Essentially, Ourso is now claiming manifest error | ¡¡because the Board accepted his characterization of the funds as loans. We find this assignment of error without merit.

Assignment of Error Number 3

The Board of Ethics committed manifest error when it failed to apply the doctrine of equitable estoppel to prohibit action against Ourso Jr. for actions he took in justifiable reliance upon statements made by Counsel for the Board to Judge Hughes at the prior hearing.

Ourso and Mr. Ourso, Sr. were both present for and heard an exchange between Judge Jefferson Davis Hughes and Mr. Gray Sexton, counsel for the Board, at the April 20, 2000 hearing in State of Louisiana Board of Ethics v. Corbett L. Ourso, Jr., Docket Number 9903660, 21st Judicial District Court, Tangipahoa Parish. The following is the exchange at issue:

COURT: And I keep wondering, if it is the father’s money and not the candidate’s money to start with, why he couldn’t just say, “Son here’s $50,000. You can either (A) go buy a boat, (B) go around the world or (C) spend it on your campaign” and then he, himself, the individual, could put it into his campaign. I don’t think that would be wrong. Again, I don’t want to say anything that’s going to get me in trouble, but I think that would be okay.
SEXTON: And for what it’s worth, Your Honor, we agree with you.

Ourso contends that the doctrine of equitable estoppel applies in this matter because, absent Mr. Sexton’s above statement, he and his father “probably” would have taken a different course of action regarding the transfers.

The doctrine of equitable estop-pel is defined as the effect of the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct. Zeringue v. Wireways, Inc., 97-0856 (La.App. 1 Cir. 4/8/98), 714 So.2d 13, 17, writ denied, R98-1257 (La.6/19/98), 721 So.2d 475. A party invoking the doctrine of equitable estoppel must prove the facts upon which the estop-pel is based and must establish all three elements of estoppel: 1) a representation by action or word; 2) justifiable reliance on the representation; 3) a detrimental change in one’s position because of the reliance. Duthu v. Allements’ Roberson Mach. Works, Inc., 393 So.2d 184, 186 (La.App. 1 Cir.1980). It is well-settled that estoppels are not favored in Louisiana. Zeringue v. Wireways, Inc., 714 So.2d at 17. It is also well-settled that a party having the means readily and conveniently available to determine the true facts, but who fails to do so cannot claim estoppel. John Bailey Contractor, Inc. v. State, Through Dept. of Transp. and Development, 439 So.2d 1055, 1060 (La.1983).

In the present case, Ourso chose to rely on a brief conversation, to which he was not a party, regarding a hypothetical situation, rather than exercising his right to directly seek the opinion of the Board. Therefore, we find this assignment of error without merit.

DECREE

Based on the foregoing, the judgment appealed from is affirmed. All costs of this appeal are assessed to Ourso.

AFFIRMED.

LOUISIANA BOARD OF ETHICS

OPINION NO.: 2003-529

DATE: December 15, 2004

RE: In the matter of Corbett L. Ourso, Jr.

| mThe Louisiana Board of Ethics (the “Board”), at its October 14, 2004 meeting, conducted a public hearing for the purpose of exploring the following charges:

I.
That Corbett L. Ourso, Jr., a candidate for District Attorney, 21st Judicial District, in the October 5, 2002 election, may have violated Section 1505.1C of the Campaign Finance Disclosure Act (CFDA) (La. R.S. 18:1505.10) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his tenth day prior to the primary election report that was filed on September 25, 2002 and is, therefore, subject to civil penalties of $60 a day until an amendment correcting the report is filed, not to exceed $2,000.
II.
That Corbett L. Ourso, Jr., a candidate for District Attorney, 21st Judicial District, in the October 5, 2002 election, may have violated Section 1505.1C of the Campaign Finance Disclosure Act (CFDA) (La. R.S. 18:1505.1C) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his tenth day prior to the general election report that was filed on October 24, 2002 and is, therefore, subject to civil penalties of $60 a day until an amendment correcting the report is filed, not to exceed $2,000.
III.
That Corbett L. Ourso, Jr., a candidate for District Attorney, 21st Judicial District, in the October 5, 2002 election, may have violated Section 1505.1C of the Campaign Finance Disclosure Act (CFDA) (La. R.S. 18:1505.1C) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his 2002 supplemental campaign finance disclosure report that was filed on February 18, 2003 and is, therefore, subject to civil penalties of $60 a day until an amendment correcting the report is filed, not to exceed $2,000.
IV.
That Corbett L. Ourso, Jr., a candidate for District Attorney, 21st Judicial District, in the October 5, 2002 election, may have violated Section 1505.1C of the Campaign Finance Disclosure Act (CFDA) (La. R.S. 18:1505.10) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his 2003 supplemental campaign finance disclosure report that was filed on February 6, 2004 and is, therefore, subject to civil penalties of $60 a day until an amendment correcting the report is filed, not to exceed $2,000.

InOn the basis of the evidence and testimony adduced, the Board now makes the following essential:

I.
JOINT STATEMENT OF UNCONTESTED FACTS
1.Corbett Ourso, Jr. was a candidate for District Attorney for the 21st Judicial District for the parishes of Tangipahoa, Livingston and St. Helena in the October 2002 election.
2. In connection with the election Cor-bett Ourso, Jr. filed certain reports with The Louisiana Board of Ethics functioning as the Supervisory Committee on Campaign Finance Disclosure (hereinafter “Supervisory Committee”). LSA-R.S. 18:1511.1.
3. Included among the transactions contained in those reports were the following two (2) transactions which are the subject of this hearing:
a. A TWENTY THOUSAND AND NO/100 ($20,000.00) DOLLAR loan reported to the campaign by the candidate on or about September 3, 2002.
b. A FIFTEEN THOUSAND AND NO/100 ($15,000.00) DOLLAR loan reported to the campaign by the candidate on or about October 1, 2002.
4. Corbett Ourso, Jr. has provided the Board with copies of checks and/or statements for the following bank accounts:

hsiBank Account Number Name Period Doc. Number

AmSouth Bank 9201771965 Corbett Ourso, Jr. 12/12/01-12/10/02 0001-0027

Parish National Bank 81036752 Corbett L. Ourso, Jr. 9/3/02-11/13/02 0028-0033

5. The AmSouth Bank account is the candidate’s personal account.
6. The Parish National Bank account is the campaign account
7. The above identified records establish the following:
a. On August 26, 2002, Corbett Our-so, Jr. deposited $20,000.00 into his personal account with Am-South Bank. The funds used for the deposit came from an account standing in the name of Corbett Ourso, Sr. The deposit is reflected in statement for the period August 13, 2002 through September 11, 2002;
b. On September 3, 2002, Corbett Ourso, Jr. Issued check number 1063 on his personal account with AmSouth Bank in the amount of $20,000.00 payable to Parish National Bank with the notation “Open campaign account” in the memo line;
c. The Parish National Bank statement for the period 9/03/02 thru 9/16/02, reflects that the campaign account was opened on September 3, 2002 with an initial deposit of $20,000.00.
d. On October 1, 2002, Corbett Our-so, Jr. deposited $15,000.00 in his personal account. The funds used for the deposit came from an account standing in the |13name of Corbett Ourso, Sr. That deposit is reflected in the statement for the period September 12, 2002 through October 11, 2002.
e. On October 1, 2002, Corbett Our-so, Jr. issued check number 1076 on his personal account in the amount of $15, 000.00 payable to the Corbett Ourso Campaign with the notation “loan” on the memo line.
f. On October 1, 2002, Corbett Our-so, Jr. deposited $15,00.00 into his campaign account with Parish National Bank. That deposit is reflected on the statement for the period 9/17/92 thru 10/16/02.
8. Corbett Ourso, Jr. received a $20,000.00 from Corbett Ourso, Sr. on September 3, 2002.
9. Corbett Ourso, Jr. received a $15,000.00 check from Corbett Our-so, Sr. on October 2, 2002
10. Corbett Ourso, Jr. was unsuccessful in his campaign for district attorney.
11. Corbett Ourso, Jr. closed his campaign account on November 1, 2002.
12. On October 9, 2002, Corbett Ourso, Jr. issued check number 723 on his campaign account with Parish National bank to “Corbett L. Ourso, Jr. in the amount of $6,517.90 with the notation “partial reimbursement loan” in the memo line.
13. On October 9, 2002, Corbett Ourso, Jr. deposited $6,517.90 into his personal account with AmSouth Bank. The deposit is reflected on the statement for the period “September 12, 2002 through “October 11, 2002.
11414. If called to testify, Corbett L. Our-so, Jr. (the candidate) and Corbett L. Ourso, Sr. (the father) would state that the funds deposited into the campaign account were the candidate’s and therefore not subject to any limitation on the amount which may be donated or loaned to a campaign.
15. If called to testify, Corbett L. Our-so, Sr. And Corbett L. Ourso, Jr., would state that any and all funds in any account standing in the name of Mr. and Mrs. Corbett L. Ourso, Sr. are, in fact, funds belonging to Corbett L. Ourso, Jr. And his siblings by virtue of those certain living trusts previously identified and testified to on April 20, 2000, in the case of State of Louisiana Board of Ethics v. Corbett L. Ourso, Jr. bearing docket number 9903660 of the 21st Judicial District Court for the Parish of Tangipahoa. In the matter both Corbett L. Ourso, Jr. and Corbett L. Ourso, Sr. testified that Mr. and Mrs. Corbett L. Ourso, Sr. had transferred their entire estates to Corbett L. Ourso, Jr. as trustee and beneficiary of their respective living trust.
16. If called to testify Corbett L. Our-so, Jr. and Corbett L. Ourso, Sr. would state that before any funds were transferred from an account standing in the name of Corbett Ourso, Sr. to Corbett Ourso, Jr. they took the additional safeguard of following a procedure suggested by Judge Jefferson Davis Hughes at the April 20, 2000 hearing and approved by Gray Sexton, counsel for the Board of Ethics in the following exchange:
|1SBY THE COURT: And I keep wondering, if it is the father’s money and not the candidate’s money to start with, why couldn’t he just say, “Son here’s $50,000.00 you can either (A) go buy a boat, (B) go around the world or (C) spend it on your campaign?” And then he himself, the individual, could put it into his campaign. I didn’t think that would be wrong. Again, I don’t want to say anything that would get me into trouble, but I think that would be okay.
BY MR. SEXTON: And for what its worth. Your Honor, we agree with you. This exchange may be found at Transcript page 94-95.
17. Corbett L. Ourso, Jr. and Corbett L. Ourso, Sr. were both present for and heard this exchange between the Court and counsel for the Board of Ethics.
18. No advisory opinion was requested by or rendered to either Corbett L. Ourso, Jr. or Corbett L. Ourso, Sr. that following the procedure set forth in paragraph 19 above, was prohibited under the given circumstances. Neither Corbett Ourso, Jr. nor Corbett Ourso, Sr. were advised that they could not rely upon the statements made by Mr. Sexton in State of Louisiana Board of Ethics v. Corbett L. Ourso, Jr., bearing docket number 9908660 of the 21st Judicial District Court for the Parish of Tangipahoa.
19. If called to testify Corbett L. Our-so, Jr. and Corbett L. Ourso, Sr. would state that the procedure suggested by Judge Hughes and approved by Gray Sexton, counsel for the Board of Ethics, was followed each and every time any funds were taken from an |1fiaccount standing in the name of the candidates’ parents, Mr. and Mrs. Cor-bett L. Ourso, Sr. and given to Corbett L. Ourso, Jr.
20.The parties agree that the transcript of the proceedings on April 20, 2000 in the matter entitled of State of Louisiana Board of Ethics v. Corbett L. Ourso, Jr. bearing docket number 9903660 of the 21st Judicial District Court for the Parish of Tangipahoa shall be admissible in these proceedings without a stipulation as to its relevancy.

II.

APPLICABLE LAW

At issue in this case are Sections 1505.1 C of the Campaign Finance Disclosure Act.

Section 1505.1 C provides that failure to disclose or failure to disclose accurately any information required to be reported is a violation.

Section 1505.4 B provides:

B. Any candidate, the treasurer or chairman of any political committee, or any other person required to file reports under this Chapter who knowingly and willfully fails to disclose, or knowingly and willfully fails to accurately disclose, any information required by this Chapter to be disclosed in the reports required herein, may be assessed a civil penalty for each day until such information is disclosed by amendment to the appropriate report of such candidate, political committee, or other person. “Knowingly and willfully”, for purposes of this Subsection, means conduct which could have been avoided through the exercise of due diligence. Such penalties shall be as provided in Subsection A above.

Section 1505.4 A provides in pertinent part:

A. (1) Any candidate, the treasurer or chairman of a political committee, or any other person required to file any reports under this |17Chapter, who knowingly fails to file or who knowingly fails to timely file any such reports as are required by this Chapter may be assessed a civil penalty as provided in R.S. 42:1157 for each day until such report is filed.
(2)(a) The amount of such penalty may be:
* :|: *
(ii) Sixty dollars per day, not to exceed two thousand dollars, for any candidate for district office and any treasurer or chairman of any political committee designated as a principal campaign committee or subsidiary committee of such a candidate.

III.

OPINION

It is the opinion of the Board that Cor-bett L. Ourso, Jr. violated Section 1505.1 C of the CFDA when he failed to accurately disclose the receipt of loans from Corbett L. Ourso, Sr. on his campaign finance disclosure reports. The Board is of the opinion that the loans to the Corbett L. Ourso, Jr. campaign reportedly received from Corbett L. Ourso, Jr. were loans from Corbett L. Ourso, Sr. Therefore, it is the Board’s opinion that the failure of Corbett L. Ourso, Jr. to indicate on four separate campaign finance disclosure reports that the loans were from Corbett L. Ourso, Sr. constitutes four separate violations of Section 1505 of the CFDA.

Section 1505 provides that failure to accurately disclose required information is a violation of the CFDA, and violators are subject to civil penalties of $60 a day not to exceed $2,000 for each report on which transactions were inaccurately disclosed. In this particular situation, given the facts outlined above, it is the conclusion of the Board that the interest of the public would be served by the imposition of $1,000 for each inaccurately filed report for a total $4,000 civil penalty upon 11sCorbett L. Our-so, Jr. for violating Sections 1505 of the CFDA.

IV.

DECREE AND ORDER

IT IS DECREED that Corbett L. Our-so, Jr. violated Section 1505.1 C of the Campaign Finance Disclosure Act (CFDA) (La. R.S. 18:1505.1 C) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his tenth day prior to the primary election report that was filed on September 25, 2002.

IT IS DECREED that Corbett L. Our-so, Jr. violated Section 1505.1C of the Campaign Finance Disclosure Act (CFDA) (La. R.S. 18:1505.1 C) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his tenth day prior to the general election report that was filed on October 24, 2002.

IT IS DECREED that Corbett L. Our-so, Jr. violated Section 1505.1C of the Campaign Finance Disclosure Act (CFDA) (La. R.S. 18:1505.1 C) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his 2002 supplemental campaign finance disclosure report that was filed on February 18, 2003.

IT IS DECREED that Corbett L. Our-so, Jr. violated Section 1505.1 C of the Campaign Finance Disclosure Act (CFDA) (La. R.S. 18:1505.1 C) by failing to accurately disclose the receipt of a loan from Corbett L. Ourso, Sr. on his 2003 supplemental campaign finance disclosure report that was filed on February 6, 2004.

IT IS ORDERED that a $4,000 civil penalty be imposed upon Corbett L. Our-so, Jr., payable to the Treasurer of the State of Louisiana.

|19By Order of the Board this 15th day of December 2004.

/s/ Robert L. Roland ROBERT L. ROLAND, Chairman

Ml Absent and did not participate JOHN W. GREENE, Judge

/s/ R.L. Hargrove, Jr. R.L. HARGROVE, JR.

/s/ Joseph Maselli JOSEPH MASELLI

/s/ Absent and did not participate DELGADO SMITH, Ascension

/s/ Edwin O. Ware EDWIN O. WARE

/s/ T.O. Perry, Jr. T.O. PERRY, JR., Vice-Chairman

/s/ Absent and did not participate E.L. GUIDRY, JR., Judge

/s/ Michael J. Kantrow, Sr. MICHAEL J. KANTROW, SR.

/s/ Did not participate HENRY C. PERRET, JR.

/s/ Dr. Dolores Spikes DR. DOLORES SPIKES

      . La. R.S. 18:1505.1(C) of Title 18 “Louisiana Election Code,” Chapter 11 "Election Campaign Finance,” "Part V. Prohibited Practices and Limitations; Penalties,” provides:
      "Failure to disclose or failure to disclose accurately any information required to be reported by this Chapter shall constitute a violation of this Chapter.”

      . La. R.S. 18:1481, et seq.

      . La. R.S. 18:1505.4 provides, in pertinent part:
      A. (1) Any candidate, the treasurer or chairman of a political committee, or any other person required to file any reports under this Chapter, who knowingly fails to file or who knowingly fails to timely file any such reports as are required by this Chapter may be assessed a civil penalty as provided in R.S. 42:1157 for each day until such report is filed.
      (2)(a) The amount of such penalty may be:
      (ii) Sixty dollars per day, not to exceed two thousand dollars, for any candidate for district office and any treasurer or chairman of any political committee designated as a principal campaign committee or subsidiary committee of such a candidate.


author: DOWNING, J.

text:
    Amy MEAUX v. Dr. Aydin ONEL and His Insurer, Progressive Insurance Company, USAA Casualty Insurance Company, and United Services Automobile Association.
    No. 2005 CA 1314.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Gaidry and Carter, JJ., concurred.

      Maurice J. LeGardeur, Jr., Covington, Michael S. Haddad, Mandeville, Counsel for PlaintiffAppellant Amy Meaux.
    Thomas J. Eppling, Craig W. Brewer, Metairie, Counsel for Defendants/Appel-lees Dr. Aydin Onel and Progressive Security.
    Thomas P. Anzelmo, Metairie, for Defendant/Appellee USAA Casualty Insurance Co.
    Timothy G. Schafer, T. Gregory Schafer, New Orleans, for Defendant/Appellee United Services Automobile Association.
    Before: CARTER, C.J., DOWNING and GAIDRY, JJ.
   DOWNING, J.

DThe two issues on appeal are 1) whether, pursuant to the terms of a stipulation, judicial interest should be calculated before or after agreed credits are subtracted from the amount of the jury verdict, and 2) whether the appellant reserved her right to seek interest. The jury awarded $59,700.78 in general and special damages to the plaintiff, Ms. Amy Meaux. United Services Automobile Association (“USAA”) was Ms. Meaux’s uninsured motorist/un-derinsured motorist (“UM/UIM”) insurer and the remaining non-settling defendant at the time of trial. The parties stipulated that USAA was entitled to credits equaling $39,598.99. The judgment of the trial court effectively deducted the credits and awarded interest on the balance. Ms. Meaux asserts that the trial court erred in not awarding interest on the full amount of the jury verdict before deducting the credit.

The Stipulation

Ms. Meaux first argues that the language employed in her stipulation with USAA entitles her to interest on the entire amount of the jury award. The parties stipulated in pertinent part:

Amy Meaux received $37,489.18 in compensatory damages from Dr. Aydin Onel’s insurance carrier, Progressive Insurance Company, and USAA has made medical payments either to or on behalf of Amy Meaux in the amount of $2,109.81; therefore, USAA is entitled to a credit in these amounts offsetting the total award of all general and special damages awarded Amy Meaux by the jury .... (Emphasis added.)

Ms. Meaux argues, without any citation to relevant authority on the subject, that because the stipulation does not mention interest, USAA must be liable for interest on the credited amounts. We are aware of no principle of law supporting this proposition. And we note that by the terms of the [3stipulation, the credits are to apply directly to offset the “award of general and special damages.” Accordingly, we disagree with Ms. Meaux’s argument in this regard.

Louisiana Civil Code art. 2913

Ms. Meaux next argues that she has properly reserved her right to judicial interest on the judgment amount. Resolution of this issue is governed by La. C.C. art. 2913 and its interpretive jurisprudence. Article 2913 became effective January 1, 2005. The 2004 Revision Comment instructs us that Art. 2913 “reproduces the substance of Article 2925 of the Louisiana Civil Code of 1870.” Art. 2913 article provides: “When the principal of the loan is released without reservation as to interest, it is presumed that the interest is also released.”

In applying the terms of former Art. 2925, the Louisiana Supreme Court concluded that, “[w]here the injured party elects to compromise his claim against one solidary obligor, he must either simultaneously assert his claim to judicial interest, or expressly reserve his rights thereto.” (Emphasis added.) Martin v. Champion Ins. Co., 95-0030, p. 14 (La.6/30/95), 656 So.2d 991, 999. In Martin, the Supreme Court specifically considered whether a UM insurer was “liable for the payment of judicial interest on the amount paid to the plaintiff by the tortfea-sor’s insurer.” Id., 95-0030 at p. 13, 656 So.2d at 999. Thus, we examine the release at issue to discern whether Ms. Meaux has either simultaneously asserted her claim to judicial interest or expressly reserved her rights thereto.

An order signed January 21, 2004 dismissing Ms. Meaux’s claim against one of the defendants contained the clause:

preserving any and all rights that plaintiffs may have against any uninsured/underinsured motorist insurer and against any other party to this action which may provide additional coverage for the acts and damages forming the basis of this consolidated suit. (Emphasis added.)

Regarding this reservation of right, Ms. Meaux first argues that since she “prayed for judicial interest from the date of judicial demand against the UM carrier in her original petition ..., there was no necessity to reserve it specifically in the release of the primary carrier and its insured.” Again, she provides no citation to pertinent authority to support this proposition. And the proposition is contrary to the Louisiana Supreme Court’s holding in Martin, 95-0030 at p. 14, 656 So.2d at 999, requiring that a plaintiff must assert his claim for interest or reserve his rights thereto simultaneously with the settlement.

Ms. Meaux next argues that her reservation of “any and all rights ... which may provide additional coverage” clearly reserves her right to seek interest on the full jury verdict amount.

We disagree. In Malbrough v. Wallace, 594 So.2d 428, 439 (La.App. 1 Cir.1991), this court concluded in an analogous circumstance that a release “reserving all rights to proceed against the uninsured motorist carrier” was “insufficient to reserve plaintiffs’ rights to recover” on interest paid by another insurer. This court noted that the release at issue contained no specific language reserving plaintiffs right to proceed against one insurer for interest on the other’s policy limits.

Here, we similarly conclude that the language in the release before us is insufficient to reserve Ms. Meaux’s right to interest from USAA on the credited amounts. We note the requirement of La. C.C. art. 2913 and Martin, 95-0030 at p. 14, 656 So.2d at 999, for an express reservation of right as to interest.

lr;Ms. Meaux next argues that we should remand this matter to the trial court to calculate interest on the credited amounts pursuant to our authority under La. C.C.P. art. 2164. This article requires us to render any judgment that is just, legal and proper based on the record. Finding no legal basis and no compelling equitable reasons, we find no basis for remanding this matter to the trial court.

We note, however, that USAA acknowledges that judicial interest was improperly calculated on the $2,109.81 in medical payments USAA made to Ms. Meaux. USAA stipulates that it owes interest on this sum from March 28, 2002 (the date of judicial demand) to June 5, 2003, the date of last payment. It concedes that it owes Ms. Meaux. an additional $133.31 in judicial interest. We amend the judgment to include a decree casting USAA in judgment to Ms. Meaux in this amount.

DECREE

We affirm the judgment of the trial court in all respects, but we amend the judgment to additionally order, adjudge and decree that there be judgment in favor of the plaintiff, Amy Meaux, and against United Services Automobile Association the amount of $133.31, representing judicial interest due on medical payments from the date of demand through the date of payment. Costs of this appeal are assessed to Amy Meaux.

AMENDED; AFFIRMED AS AMENDED.

CARTER, C.J., and GAIDRY, J., concur.

      . Ms. Meaux also argues that another stipulation supports her claim, but this stipulation recites no liability on any party and merely notes that a released defendant is uninsured or underinsured within the meaning of USAA’s policy.

      . All pertinent prior published jurisprudence addressing reservation and release of interest specifically interprets former Art. 2925. We note that former Art. 2925 was found in Civil Code Book III, Title XII, Chapter 3, entitled, "Of Loan On Interest.”