author: SAUNDERS, Judge.

text:
    Mary WILLIAMS, et al. v. Venson R. AYMOND, et al. Paul Darren Williams, et al. v. State Farm Mutual Auto Ins. Co. and Venson R. Aymond.
    Nos. CA 05-1547, CA 05-1548.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      John Taylor Bennett, Bennett Law Office, Marksville, LA, for Plaintiffs/Appel-lees Mary Williams, Eric Williams, Chastity Williams.
    Carey J. Guglielmo, Guglielmo, Marks, Schutte, Terhoeve, & Love, Baton Rouge, LA, for Secondary Defendant/Appellant State Farm Mutual Auto Ins. Co.
    David A. Hughes, Hughes & LaFleur, Alexandria, LA, for Defendant/Appellant Venson R. Aymond.
    Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.
   SAUNDERS, Judge.

| ,This cause of action arises from a vehicle accident wherein the driver of one of the vehicles was killed. Two sets of the decedent’s heirs brought a wrongful death claim against the defendant and his insurer. The passenger riding on the decedent’s tractor also brought an action for the personal injuries he sustained against the defendants. All claims were consolidated into one suit.

One set of wrongful death plaintiffs entered into a stipulation that their “damages” were not in excess of $50,000 each. The other set of wrongful death plaintiffs entered into a stipulation that their “cause of action” was not in excess of $50,000 each.

Plaintiffs then filed a motion for partial summary judgment that the policy limits applicable in the case was that of the $300,000 “each accident” limit as opposed to the $100,000 “each person” limit. The trial judge granted this motion.

In the first part of a bifurcated trial, the trial court found the defendant driver 85% at fault and the plaintiff driver 15% at fault for the accident. After the first part of the bifurcated trial took place, both sets of wrongful death plaintiffs moved to withdraw their $50,000 stipulations. At the hearing on the motions to withdraw stipulations, the trial court allowed the litigants to enter into a new stipulation. Unfortunately, the litigants disagree as to what they stipulated.

After this new stipulation, the trial judge had the damages trial wherein the plaintiffs were awarded various damages against the defendant and his insurer. The trial judge gave awards over $50,000, discounted the awards for the decedent’s 15% fault, then applied the $50,000 cap as this was his understanding of the new stipulation.

Defendant and his insurer appealed the judgment granting the plaintiffs’ partial | ¡.motion for summary judgment, the judgment for the allocation of fault to the drivers, the judgment assessing damages and the calculation method used by the trial judge with respect to the stipulations entered into by the parties.

We affirm in part, reverse in part, amend in part and render.

FACTS AND PROCEDURAL HISTORY:

On February 14, 2003, at approximately 6:27 PM, Mr. Venson Aymond (“Aymond”) was driving with his wife, Florence Ay-mond, from his home to visit his sister. While traveling south on Louisiana Highway 107, in a no passing zone, Mr. Aymond rear-ended a large, red tractor driven by Mr. Nelson Williams, Jr. (“Williams”). Riding on the tractor driven by Nelson Williams, Jr. was his nephew, Ricardo Williams.

Mr. Aymond testified that he had his headlights illuminated on the bright setting, and that he did not see the tractor in front of him before the accident. He testified that it appeared in front of him as if a “wall dropped.”

Ricardo Williams testified that the tractor he was riding on did not have any of its lights illuminated, but that he could see the Aymond vehicle. He also testified that he signaled the Aymond vehicle to pass around the Williams tractor, and that the Aymond vehicle pulled into the opposite lane to attempt to pass them when the accident took place.

Both plaintiffs and defendants put forth expert testimony. Accident reconstruction experts from both sides, as well as the investigating state trooper, agreed that the point of impact put the Aymond vehicle in the opposite lane of travel. The opposing experts also agreed that Mr. Aymond should have seen the tractor in front of him under the conditions present on the day of the accident, even if it was dark, due to the distance one can see when his or her bright lights are illuminated.

1 «Mr. Aymond’s medical records showed that he had poor vision prior to the accident. Mr. Aymond had failed the vision portion of his driver’s test several times prior to the accident when he last took his driver’s test to get his license.

There was conflicting testimony as to why the Aymond vehicle was in the opposing lane of travel. There was also conflicting testimony as to whether the reflectors on the rear of the Williams tractor was sufficient under Louisiana Law. There was, however, no conflict in the testimony that the Williams tractor did not have a “slow moving” warning reflector as required by Louisiana Law.

Mrs. Aymond, a passenger in the Ay-mond vehicle, testified that she did not see the tractor in front of them because she was not paying attention to the road in front of them.

As a result of the injuries he sustained in the accident, Mr. Nelson Williams, Jr. died. Nelson Williams, Jr. was the husband of Mary Williams and the father of Gwendolyn F. Williams, Paul Williams, Martha Williams, Mary Williams, Eric Williams and Chastity Williams.

The accident and subsequent death of Nelson Williams, Jr. gave rise to two wrongful death suits and one personal injury claim brought by Eunice Williams, individually, and on behalf of her minor son, Ricardo Williams. All of the claims were consolidated into one suit.

Plaintiffs Gwendolyn F. Williams, Paul D. Williams and Martha Williams stipulated that each one of their damages did not exceed $50,000. The plaintiffs, Mary Williams, Eric Williams and Chastity Williams entered into a stipulation that their respective cause of action did not exceed $50,000. All Plaintiffs were granted a motion for partial summary judgment wherein they asserted that the $300,000 “each |4accident” limit applied instead of the $100,000 “each person” limit of the State Farm liability policy Mr. Aymond had in effect at the time of the accident.

The judgment for first stage of the bifurcated trial attributed 85% of the fault for the accident to the negligence of Mr. Aymond, and attributed 15% of the fault to the negligence of Nelson Williams, Jr.

After the fault portion of the trial, the wrongful death plaintiffs moved to withdraw their stipulations regarding the $50,000 limits to their cause of action or damages respectively. At the hearing for their motion to withdraw, all of the plaintiffs, including Eunice Williams, individually, and on behalf of her minor son, Ricardo, entered into a new stipulation regarding limits to their recovery.

A reading of the record indicated that there was much confusion about what the parties agreed to in the new stipulation. The wrongful death plaintiffs were focused on wording a stipulation wherein they would not limit their recovery to a collective $50,000. The defendants were focused on wording a stipulation wherein they would not agree to the $300,000 “each accident” limit as opposed to the $100,000 “each person” limit. Neither party indicated a concern as to the method of calculation that the trial judge could use to fix the awards of the plaintiffs.

The trial court then awarded damages to each wrongful death claimant and to Eunice Williams, individually, and on behalf of Ricardo Williams, in the following amounts:

Mary Williams, $50,000.00 ($200,000.00 minus 15% subject to the $50,000.000) exclusive of interest and cost stipulation in suit number 2003-4786-A, and court cost.
Eric Williams, $50,000.00 ($75,000.00 minus 15% subject to the $50,000.00) together with legal interest from the date of judicial demand in Suit no. 2003-4786-A and court cost;
|fiChastity Williams, $50,000.00 ($150,-000.00 minus 15% subject to the $50,000.00) together with legal interest from date of judicial demand in suit no. 2003-4786-A and court cost;
Paul Darren Williams, $42,500.00 ($50,-000.00 minus 15%) together with legal interest from date of judicial demand in suit no. 2003-5125-A, and court cost; Gwendolyn Francis Williams, $50,000.00 ($100,000.00 minus 15%) together with legal interest from date of judicial demand in Suit No. 2003-5125-A and court cost;
Martha Yvette Williams, $42,500.00 ($50,000.00 minus 15%) together with legal interest from date of judicial demand in suit no. 2003-5125-A, and court cost; Eunice Williams, individually, and on behalf of her minor son, Ricardo Williams, $43,346.48 ($50,995.86 minus 15%) together with legal interest from date of judicial demand in Suit No. 2003-5125-A, and court cost;

The trial court also included in its judgment that the liability of defendant State Farm was limited to $300,000 plus legal interest and court cost amongst other awards that are not on appeal.

Defendants appealed the judgment granting the plaintiffs’ partial motion for summary judgment regarding the applicability of the “each accident” limit as opposed to the “each person” limit in their policy, the judgment for the allocation of fault to Mr. Aymond, the amounts awarded in the judgment for the damages of each plaintiff wherein as assessment was over $50,000, the amounts awarded in the judgment to three of the plaintiffs as excessive, and the calculation method used by the trial judge with respect to the stipulations entered into by the parties.

We affirm in part, reverse in part, amend in part and render.

ASSIGNMENTS OF ERROR:

1. Was the trial court manifestly erroneous or clearly wrong in allocating 85% of the fault to Venson Aymond and 15% of the fault to Nelson Williams, Jr. for their February 14, 2003, vehicle accident?
2. Did the trial court err in allowing the plaintiffs to withdraw stipulations that 16were agreed to before the trial on allocation of fault and enter into a new stipulation after the trial for allocation of fault and before damages were assessed where there were differing understandings of the effects of that new stipulation?
3. Did the trial court err in its method of calculating damages by awarding more than $50,000 to plaintiffs before those awards were reduced by the allocation of fault to Nelson Williams, Jr. considering the $50,000 stipulation agreed to by the plaintiffs and abuse its discretion by awarding excessive damages to Paul, Martha and Eunice Williams, individually, and on behalf of Ricardo Williams?
4. Did the trial court err in granting a motion for partial summary judgment for the application of the $300,000 “each accident” policy limit as opposed to the application of the $100,000 “each person” policy limit for the collective recovery of the plaintiffs?

ASSIGNMENT OF ERROR # 1:

Defendants first assert that the trial court was manifestly erroneous or clearly wrong in finding that Aymond had any fault in the accident. We find no basis for this assertion.

A trial judge’s findings of fact will not be disturbed unless they are manifestly erroneous or clearly wrong. Stobart v. State, through Dep’t of Transp. & Dev., 617 So.2d 880 (La.1993). “Absent ‘manifest error’ or unless it is ‘clearly wrong,’ the jury or trial court’s findings of fact may not be disturbed on appeal.” Sistler v. Liberty Mut. Ins. Co., 558 So.2d 1106, 1111 (La.1990). “If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id. at 1112.

In Louisiana jurisprudence applying La.R.S. 32:81, there is a rebuttable presumption that a following motorist involved in a rear-end collision is negligent in causing the accident. To overcome this presumption, the following motorist must prove that he or she maintained a proper lookout. Dugas v. Derouen, 01-1397 |7(La.App. 3 Cir. 7/3/02), 824 So.2d 475, writ denied 02-2131 (La.11/15/02), 829 So.2d 426.

In order to fully exculpate Aymond in this accident, defendants would have to show that the evidence in the record was such that there was no way a reasonable person could have found that Aymond did not maintain a proper lookout.

While there is evidence in the record that Aymond was not solely at fault for causing the accident, there is also evidence that Aymond failed to maintain a proper lookout for the vehicle in front of him. There is testimony from two experts on accident reconstruction that Aymond, with his bright lights illuminated, should have seen Williams and could have avoided the accident.

Aymond attempts to bolster his zero fault position by citing cases from the time when Louisiana barred recovery due to contributory negligence. Aymond cites Morgan v. Toups-Cook Truck Sales, Inc., 194 So.2d 366 (La.App. 1 Cir.1966), Godeau v. Roadway Express, Inc., 299 So.2d 915 (La.App. 3 Cir.1974), McCoy v. Franklin Parish Police Jury, 414 So.2d 1369 (La.App. 2 Cir.1982) and Fontenot v. Lafleur, 124 So.2d 607 (La.App. 3 Cir.1961). Louisiana has since gone to a comparative fault system of negligence. These cases, while still pertinent on some points, are not relevant to the case at bar. A finding of any fault on the part of a certain litigant in those cases cited by the defendants would have precluded that litigant from any recovery under Louisiana’s old contributory negligence system. Just because a litigant in the cases cited above was not able to recover, does not mean that the other litigant was free from fault. Under the current system, the finding of some fault attributable to the plaintiff does not act as a bar on recovery. Therefore, we find the assertion that Aymond was free from liability in this accident, based upon a theoryJ^of contributory negligence, is without merit.

Next, defendants contend that the trial court erred in finding Aymond overwhelmingly responsible for the accident by allocating 85% of the fault to his negligence. They hinge their argument on their assertion that Williams’ violation of motor vehicle lighting statutes was just as much a reason the accident took place as any negligence on the part of Aymond. We disagree.

The Louisiana Supreme Court, in Duncan v. Kansas City Southern Railway Co., 00-66, pp. 10-11 (La.10/30/00), 773 So.2d 670, 680-81, set forth the standard for reviewing comparative fault determinations as follows:

This Court has previously addressed the allocation of fault and the standard of review to be applied by appellate courts reviewing such determinations. Finding the same considerations applicable to the fault allocation process as are applied in quantum assessments, we concluded “the trier of fact is owed some deference in allocating fault” since the finding of percentages of fault is also a factual determination. Clement v. Frey, 95-1119 (La. 1/16/96); 666 So.2d 607, 609, 610. As with other factual determinations, the trier of fact is vested with much discretion in its allocation of fault. Id.

Therefore, a trier of fact’s allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. The Louisiana Supreme Court addressed what factors to consider when attempting to review an allocation of fault in Watson v. State Farm Fire and Cas. Ins. Co., 469 So.2d 967, 974 (La.1985):

[Vjarious factors may influence the degree of fault assigned, including:
(l)[W]hether the conduct resulted from inadvertence or involved an awareness of the danger, (2) how great a risk was created by the conduct, (3) the significance of what was sought by the conduct, (4) the capacities of the actor, whether superior or inferior, and (5) any extenuating circumstances which might require the actor to proceed in haste, without proper thought. And, of course, as evidenced by concepts such as last clear chance, the relationship between the fault/negligent conduct and the harm to the plaintiff are considerations in determining the relative fault of the parties.

| /These factors also guide an appellate court’s determination as to the highest or lowest percentage of fault that could reasonably be assessed to each party. Clement, 666 So.2d at 607. Thus, the Clement decision dictates that the allocation of fault is not an exact science, nor is it the search for a precise ratio. Rather, much like that of quantum assessment, allocation of fault is the finding of an acceptable range and any allocation by the trier of fact within that range cannot be disturbed under the manifest error standard of review. Therefore, in order for this court to disturb the trial court’s allocation of fault, the defendants must show that, based on the evidence in the record, no reasonable person could have allocated the fault in the manner that the trial judge did in this case.

We find that there is evidence in the record for the trial court to find that Ay-mond was 85% at fault for the accident in question. Aymond rear-ended Williams. The accident reconstruction experts retained by both parties testified that Ay-mond should have seen Williams in front of him and could have avoided the accident. Further, there is testimony from Ricardo Williams that it was not yet dark and that he could see Aymond coming behind them. Thus, it is within reason for the trial court to find that Aymond’s failure to keep a proper lookout was the overriding factor in causing the collision and that Aymond had the last, clear chance to avoid this accident.

There is also evidence that Aymond was attempting to pass Williams illegally. Ricardo Williams testified that from his vantage point, Aymond was attempting to pass them in a no-passing zone. This testimony is corroborated by the testimony of the plaintiffs’ expert and the testimony of the investigating state trooper |1nthat the point of impact puts Aymond’s vehicle in the oncoming traffic lane. Moreover, Ay-mond testified that he now knows that where the point of impact took place, there is a double yellow line indicating a no-passing zone. While the reason Aymond’s vehicle was in the oncoming traffic lane is the subject of contention, it is not unreasonable for the trial court to find that Aymond was attempting to illegally pass Williams. Thus, the trial court could reasonably find that Aymond’s negligence, while attempting to illegally pass Williams, was the primary component in causing the accident.

Finally, there is evidence that Aymond was visually impaired. The medical records of Aymond indicate that he had poor vision. There is also evidence that Ay-mond failed the vision test administered in order to get his driver’s license on more than one occasion during the time leading up to the accident. It is reasonable for the trial court to attribute Aymond’s testimony, that the Williams vehicle appeared out of nowhere, to his poor vision. Therefore, it is within reason for the trial court to find that Aymond’s visual impairment was a major reason the accident took place.

We find that the trial court allocation of fault in the case at bar is reasonable despite Williams’ violation of motor vehicle lighting statutes. The deference given to the trial court in allocation of fault coupled with the plethora of evidence in the record available to the trial court for it to cast Aymond overwhelmingly at fault necessitates this court to find that the defendants’ assignment of error is without merit. As such, we affirm the trial court’s allocation of fault in its judgment.

ASSIGNMENT OF ERROR # 2:

Prior to the trial to allocate fault, plaintiffs, Paul, Gwendolyn and Martha In Williams agreed to a stipulation with defendants that their “damages” were not in excess of $50,000. At that same time, plaintiffs, Mary, Chastity and Eric Williams entered into a stipulation with the defendants that their “cause of action” was not in excess of $50,000. In light of these stipulations, defendants agreed to waive their right to a jury trial. After the trial to allocate fault, on motion of the wrongful death plaintiffs, these stipulations were allowed to be withdrawn and then a new stipulation was entered into by all of the parties on July 15, 2005, in open court. First, we find that the trial judge erred in allowing these stipulations to be withdrawn.

The Louisiana Supreme Court stated that “[a] stipulation has the effect of a judicial admission or confession.... ” R.J. D’Hemecourt Petroleum v. McNamara, 444 So.2d 600, 601 (La.1983), cert. denied, 469 U.S. 820, 105 S.Ct. 92, 83 L.Ed.2d 39 (1984)(Footnote Omitted). “A stipulation may be revoked on the basis of ‘error of fact’ when there is evidence of such error.” Dolsen v. City of New Orleans, 559 So.2d 50, 51 (La.App. 4 Cir.1990), citing Lockette v. Greyhound Lines, Inc., 817 F.2d 1182 (5th Cir.1987). Whether a judicial confession is correct cannot be addressed when one party had already relied on it to their detriment. Lewis v. Willamette Indus., Inc., 499 So.2d 506 (La.App. 2 Cir.1986), writ denied, 501 So.2d 197 (La.1987), citing Crawford v. Deshotels, 359 So.2d 118 (La.1978).

Therefore, in order for the plaintiffs to properly be allowed to withdraw their stipulations, they needed to demonstrate that there was an error of fact that they relied upon to enter into those stipulations. They did not do so.

If we were to find that the policy in question was susceptible to an interpretation that would allow for a greater recovery than originally thought by the wrongful death plaintiffs, then there would be legal foundation for a finding of an 112error of fact. However, as we discuss in Assignment of Error # 4, this policy’s provisions relating to the amount of coverage available to the wrongful death plaintiffs is clear, and thus the “error of fact” does not materialize. Because we do not find that there was any error of fact on the part of the wrongful death plaintiffs, it follows, therefore, that their motion to withdraw was not properly founded.

Moreover, the defendants in this case detrimentally relied on the original stipulations. They waived their right to a jury trial in exchange for having a limit on what the plaintiffs could recover. They made this agreement to limit their exposure to $50,000 for each plaintiff if Aymond was found to be 100% at fault for the accident. Once it was determined by the trial judge that Aymond was only 85% at fault, a change in the stipulations would severely prejudice the defendants. To do so offends the notion of fair play. While there is evidence that the trial judge offered to retry the case with a jury on July 15, 2005, to do so would have been judicially inefficient and very costly for both sides. Therefore, because there is no evidence of any error of fact in the record by the plaintiffs and because the defendants detrimentally relied upon the stipulations, we find that the trial judge committed error in allowing the plaintiffs’ stipulations to be withdrawn and we reinstate the original stipulations agreed to by the parties.

Next, we also find that the trial judge erred in finding that the July 15, 2005, stipulation agreed to in open court was in effect at the time he assessed damages. There are very different contentions as to what exactly was agreed upon on July 15, 2005. A stipulation has the effect of a contract between the parties and as such, we look to basic contract principles to determine what was agreed upon that day.

“A contract is an agreement by two or more parties whereby obligations are |13created, modified, or extinguished.” La. Civ. Code art. 1906. The four requirements for a contract are capacity, consent, a certain object for the contract and a lawful purpose for the contract. La.Civ. Code art. 1918; La.Civ.Code art. 1927; La.Civ.Code art. 1966; La.Civ.Code art. 1971; First Nat. Bank of Shreveport v. Williams, 346 So.2d 257 (La.App. 3 Cir. 1977). “A contract is incomplete unless there be a meeting of the minds of the parties upon the common ground of a mutual understanding of facts and of subject-matter.” Jones v. Janes, 156 La. 715, 101 So. 116, 117 (1924).

At the hearing for the motion to withdraw the old stipulations, the parties agreed in open court to enter into a new stipulation wherein it was agreed that the plaintiffs each had a claim not to exceed $50,000. The record of the July 15, 2005, hearing indicates that the plaintiffs and defendants were more concerned about the total damages available for recovery under the policy, as well as whether the plaintiffs had a derivative claim, as opposed to the method of calculating damages. It is clear from a reading of the record of the July 15, 2005, hearing that there was much confusion as to what, if anything, was stipulated to by the plaintiffs and defendants. At no time was the method for calculation of damages even addressed. The trial judge felt that a method of calculation different than that jurisprudentially established had been agreed to by the parties, but it is clear from the record that the method of calculation used was not discussed and certainly was not agreed to by the defendants.

The defendants had a vested interest in limiting their exposure and had already given up their right to a jury trial in order to protect that interest. It is clear that such method of calculation as used by the trial court would expose the defendants to potentially greater damages without any corresponding potential benefit and, as such, one would not expect the defendants to agree to such change. We find that the trial hJudge improperly applied what he understood the method of calculation to be under the new stipulation when the record reflects no intention by the defendants to be bound to any method of calculation different from that they had already agreed to in the original stipulations. As such, because there was no meeting of the minds regarding this integral part to the new stipulation, we find that there was no new stipulation entered into by the parties on July 15, 2005, and reinstate those stipulations improperly allowed to be withdrawn.

ASSIGNMENT OF ERROR # 3:

The defendants contend that the trial court erred in its method of calculating damages by awarding more than $50,000 to plaintiffs before those awards were reduced by the allocation of fault to Nelson Williams, Jr. considering the $50,000 stipulation agreed to by the plaintiffs on July 15, 2005. Defendants also contend that the awards given to Paul, Martha and Eunice Williams, individually, and on behalf of Ricardo Williams, were excessive. We agree with the defendants that the trial court improperly calculated the damages in its judgment and amend its judgment based upon the original stipulations entered into by the wrongful death plaintiffs. We disagree that there was any abuse of discretion in relation to the damages awarded to Paul Williams, Martha Williams and Eunice Williams, individually, and on behalf of Ricardo Williams.

The trial judge found damages over $50,000, reduced those damages by the 15% allocation of fault, then, if the resulting damages were over $50,000, he set the award at $50,000. The defendants argue that the trial judge erred in assessing damages over the $50,000 stipulations. Rather, they contend that the correct way to calculate the award would be to reduce any damages to $50,000 then reduce those |1Bdamages once more per the 15% fault allocated to the decedent, Nelson Williams, Jr. This would result in a maximum recovery of $42,500 per wrongful death plaintiff. The defendants hinge their position on a line of cases stemming from Bullock v. Graham, 96-711 (La.11/1/96), 681 So.2d 1248. We have already determined that the original stipulations entered into were improperly allowed to be withdrawn, and that the new stipulation entered into at the July 15, 2005, hearing is invalid. Therefore, we look to the original stipulations as agreed upon by the parties to make a determination of whether the trial court used the proper method of calculation.

Before the trial for allocation of fault, plaintiffs Gwendolyn F. Williams, Paul D. Williams and Martha Williams stipulated that each one of their damages did not exceed $50,000. As per this stipulation, each of these plaintiffs agreed to waive their damages in excess of $50,000. Therefore, we find that the trial court erred in setting Gwendolyn F. Williams’ damages at $100,000. We amend the judgment to reflect that Gwendolyn F. Williams’ damages are $50,000 and as such, her award is to be reduced by 15% to $42,500. We find no error in the awards to Paul D. Williams and Martha Williams as their $50,000 damages, to be later reduced by the 15% fault, are within their stipulation.

The plaintiffs, Mary Williams, Eric Williams and Chastity Williams entered into a stipulation wherein they each asserted that pursuant to La.Code Civ.P. art. 1732 and the Louisiana Supreme Court case of Benoit v. Allstate, 00-424 (La.11/28/00), 773 So.2d 702, they agreed that their respective cause of action did not exceed $50,000. In Benoit, the Louisiana Supreme Court overruled the portion of Bullock, 681 So.2d 1248, that held “cause of action” was synonymous with “amount in controversy.” Rather they went on to define “cause of action” as “the value of the 1 ^plaintiff’s cause of action against the defendant or defendants who are before the court...” Benoit, 773 So.2d at 708. When this stipulation was entered into, there had been no allocation of fault and the plaintiffs, in their petition for damages, had not claimed that Williams was at fault. Plaintiffs, Mary, Eric and Chastity Williams stipulated that the value of their individual cause of action against the defendants before the court would not exceed $50,000. Thus, we find that the trial judge erred in assigning a value in excess of the stipulations entered into by these plaintiffs. Therefore, we amend the judgment to reflect that the value of each Mary, Eric and Chastity Williams’ claim, prior to being reduced as per the 15% allocation of fault, to be $50,000. Thereafter, there is further reduction for the allocation of 15% of fault on the part of Nelson Williams, Jr., resulting in an award of $42,500 to each.

Defendants also raise the question of whether the damage awards to Paul Williams, Martha Williams and Eunice Williams, on behalf of Ricardo Williams were excessive and as such were an abuse of discretion on the part of the trial court.

The proper standard for reviewing general damage awards was enunciated in Guillot v. Doe, 03-1754, pp. 5-6 (La.App. 3 Cir. 6/30/04), 879 So.2d 374, at 379-80.

An appellate court should rarely disturb an award of damages due to the great and, even, vast discretion vested in the trial court. We can disturb such awards, only, when the trial court clearly abused its discretion.
Reasonable people often disagree over the appropriate measure of general damages in a particular case. Yet, “[i]t is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.” We should not rely on a comparison of prior awards in cases with similar medical injuries to decide whether the trial court abused its discretion. “The primary considerations in assessing damages are the severity and duration of the injured party’s pain and suffering.”

1170rdinarily, a quantum award is reviewed on appeal by the “much discretion” standard. Reck v. Stevens, 373 So.2d 498 (La.1979). If an abuse of discretion is found, the appellate court will only lower the award to the highest (or raise the award to the lowest) point which is reasonably within the discretion afforded the court; the appellate court does not substitute its judgment for that of the trial court judge or jury in this situation. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976).

With respect to Paul Williams and Martha Williams we find that the damages of $50,000 each within the vast discretion afforded the trial judge. The testimony of Mary Williams indicated that the decedent loved both Paul and Martha, and that they would come and visit from time to time. The defendants put forth no evidence to controvert this testimony. As such, we find that the trial court was reasonable in its assessment of damages with respect to Paul Williams and Martha Williams and affirm its damages awarded to them.

We also affirm the damages awarded to Eunice Williams, individually, and on behalf of her minor son, Ricardo Williams. There is evidence in the record to show that Ricardo Williams suffered from headaches, a deviated septum, neck and back spasms, and nose bleeds for over a year. The trial judge’s award of $44,500 in general damages plus $6,495.86 in special damages in favor of Ricardo Williams against the defendants was within the range allowable for these injuries and thus not an abuse of discretion. Therefore, we affirm the trial court’s judgment with respect to the damages of Ricardo Williams finding him entitled to recovery of $43,346.48 from the defendants after reduction for the 15% fault attributed to Nelson Williams, Jr.

ASSIGNMENT OF ERROR # 4:

Defendants contend that the trial court erred in granting a motion for summary | ^judgment for the application of the $300,000 “each accident” policy limit as opposed to the application of the $100,000 “each person” policy limit for the collective recovery of the plaintiffs.

Appellate courts conduct a de novo review of rulings on motions for summary judgment. “It is well established that a summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.” Palma, Inc., v. Crane Servs. Inc., 03-0614 (La.App. 3 Cir. 11/5/03), 858 So.2d 772, 774 quoting Shelton v. 700/Associates, 01-0587, p. 5 (La.10/16/01), 798 So.2d 60, 65; La. Code Civ.P. art. 966.

‘When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent.” La. Civ.Code art. 2046. “If the words of a contact are clear, explicit, and lead to no absurd results, it must be interpreted by reference to the ‘four corners’ of the document and no further interpretation can occur in search of the parties’ intent.” Hebert v. Ins. Ctr., Inc., 97-298 p. 5 (La.App. 3 Cir. 1/7/98), 706 So.2d 1007, 1011, writ denied, 98-353 (La.3/27/98), 716 So.2d 888.

The declarations page of the State Farm Policy limits the liability protection provided under Coverage A-Bodily Injury to “each person” $100,000, “each accident” $300,000. “Bodily injury” is defined in the policy as, “physical bodily injury to a person and sickness, disease or death which results from it.” The word “person” is defined by the policy as “a human being.” Therefore, it is clear that the term “bodily injury” means physical bodily injury to a human being, namely Nelson |1flWilliams, Jr., and his death which results from that physical bodily injury.

The “Limits of Liability” section of the policy is as follows:

The amount of bodily injury liability coverage is shown on the declarations page under “Limits of Liability — Coverage A — Bodily Injury, Each Person, Each Accident.” Under “Each Person” is the amount of coverage for all damages due to bodily injury to one person. “Bodily injury to one person” includes all injury and damages to others resulting from this bodily injury, and all emotional distress resulting from this bodily injury sustained by other persons who do not sustain bodily injury. Under “Each Accident” is the total amount of coverage, subject to the amount shown under “Each Person”, for all damages due to bodily injury to two or more persons in the same accident.

The “each person” limit is the amount of coverage the policy provides for all damages due to “bodily injury to one person.” The policy then states that “Bodily injury to one person” entails “all injury and damages to others resulting from this bodily injury, and all emotional distress resulting from this bodily injury sustained by other persons who do not sustain bodily injury.” The trial court found that the language in State Farm’s policy “strains the meaning of the policy and achieves an absurd result.” We disagree. We find that the language of the policy clearly dictates that the plaintiffs’ damages are covered under the “Each Person” limit. All injuries to the plaintiffs for the wrongful death of Nelson Williams, Jr. fit under the definition of “bodily injury to one person.” The definition of “bodily injury to one person” can be understood to be: All of the injuries to the plaintiffs resulting from the physical bodily injury to Nelson Williams, Jr. and all emotional distress resulting from the physical bodily injury to Nelson Williams, Jr. sustained by the plaintiffs who did not sustain physical bodily injury.

The plaintiffs contend that the controlling case for the policy here is Crabtree v. State Farm Ins. Co., 632 So.2d 736 (La.1994). We find this contention is without merit. The language of the policy of the relevant provision in Crabtree is different lanfrom the language of the policy here.

Under the “Limits of Liability” section in Crabtree it said:

Under “Each Person” is the amount of coverage for all damages due to bodily injury to one person. “Bodily injury to one person” includes all injury and damages to others resulting from this bodily injury.
“Each Accident” is the total amount of coverage for all damages due to bodily injury to two or more persons in the same accident, subject to the amount shown under “Each Person”.

Crabtree, 632 So.2d at 742.

Here, the policy’s definition of “bodily injury to one person” adds the phrase “and all emotional distress resulting from this bodily injury sustained by other persons who do not sustain bodily injury.” The addition of the phrase “and all emotional distress resulting from this bodily injury sustained by other persons who do not sustain bodily injury ” clearly makes the definition of “bodily injury to one person” include both physical and emotional damages recoverable to all wrongful death claimants for the death of one person.

Therefore, we find that this policy’s definition of “bodily injury to one person” encompasses all claims asserted by the plaintiffs. As such, we find that all claims asserted by the wrongful death claimants to fit under the “each person” limit of $100,000. We find that the language contained within the “four corners” of the policy is clear, unambiguous and does not lead to absurd results. Therefore, we reverse the trial court’s granting of summary judgment that found the coverage under the State Farm Policy was that of the “each accident” limit and find that all of the wrongful death plaintiffs are to recover collectively from the “each person” limit, $100,000.

CONCLUSION:

The judgment of the trial court in allocating 85% of the fault to Venson Aymond and 15% of the fault to Nelson Williams, Jr. for the February 14, 2003, |21 accident is affirmed.

We reverse the trial court’s granting of a motion for summary judgment allowing the wrongful death plaintiffs to recover up to the $300,000 “each accident” policy limit and render that the $100,000 “each person” limit is the proper limit available for recovery by the wrongful death plaintiffs.

We reverse the trial court’s ruling allowing the original stipulations agreed to by the wrongful death plaintiffs to be withdrawn. We also reverse the trial court’s ruling that the parties entered into a new stipulation at the hearing on July 15, 2005. We affirm the trial court judgment awarding damages to Paul Williams and Martha Williams. We also affirm the damages awarded to Eunice Williams, individually, and on behalf of her minor son, Ricardo Williams. We amend the trial court’s judgment awarding damages to the plaintiffs by using the correct method of calculation of damages according to the original stipulations agreed to by the parties as follows:

Mary Williams, $42,500.00 ($50,000.00 minus 15% for the fault of Nelson Williams, Jr.) together with legal interest from the date of judicial demand in Suit No. 2003-4786-A and court costs; Eric Williams, $42,500.00 ($50,000.00 minus 15% for the fault of Nelson Williams, Jr.) together with legal interest from the date of judicial demand in Suit No. 2003-4786-A and court costs;
Chastity Williams, $42,500.00 ($50,000.00 minus 15% for the fault of Nelson Williams, Jr.) together with legal interest from date of judicial demand in Suit No. 2003-4786-A and court costs;
Paul Darren Williams, $42,500.00 ($50,-000.00 minus 15% for the fault of Nelson Williams, Jr.) together with legal interest from date of judicial demand in Suit No. 2003-5125-A and court costs;
Gwendolyn Francis Williams, $42,500.00 ($50,000.00 minus 15% for the fault of Nelson Williams, Jr.) together with legal interest from date of judicial demand in Suit No. 2003-5125-A and court costs;
| ^Martha Yvette Williams, $42,500.00 ($50,000.00 minus 15% for the fault of Nelson Williams, Jr.) together with legal interest from date of judicial demand in Suit No. 2003-5125-A and court costs; and
Eunice Williams, individually, and on behalf of her minor son, Ricardo Williams, $43,346.48 ($50,995.86 minus 15% for the fault of Nelson Williams, Jr.) together with legal interest from date of judicial demand in Suit No. 2003-5125-A and court costs.

The costs of the appeal are divided one half to the wrongful death plaintiffs, and one half to the defendants. Plaintiff, Eunice Williams is not cast with costs of appeal.

AFFIRMED IN PART, REVERSED IN PART, AMENDED IN PART, AND RENDERED.


source: Caselaw Access Project

author: GENOVESE, Judge.

license: Public Domain

text:
    Ronald K. CHAVERS, et al. v. BRIGHT TRUCK LEASING, et al.
    No. 06-1011.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.
    Rehearing Denied Jan. 10, 2007.

      Anthony M. Fazzio, Lafayette, Louisiana, for Plaintiffs/Appellants Ronald K. Chavers, Individually and as Tutor of the Minors, Christopher Shane Chavers and Megan Elizabeth Chavers, and Gloria Chavers, Individually.
    Jeffrey A. Rhoades, Swift & Rhodes, Lafayette, Louisiana, for Defendants/Ap-pellees Southern County Mutual Insurance Company, Associates Leasing, Inc., and Bright Truck Leasing Corporation.
    G. Andrew Veazey, Bradford H. Felder, Huval, Veazey, Felder & Aertker, L.L.C., Lafayette, Louisiana, Joseph L. McRey-nolds, Beverly A. Aloisio, Deutsch, Kerri-gan & Stiles, L.L.P., Edgar John Litch-field, Berrigan, Litchfield, Schonekas, Mann, Traína & Thompson, L.L.C., Peter F. Liberto, New Orleans, Louisiana, for Defendant/Appellee Reliance Insurance Company (In Liquidation).
    Donald D. Landry, Perrin, Landry, de-Launay & Durand, Lafayette, Louisiana, for Defendants/Appellees Homer B. Lingo and Lingo International, Inc.
    Ralph E. Kraft, Jessica Devitt, Preis, Kraft, & Roy, Lafayette, Louisiana, for DefendanVAppellee Walter Mortensen Insurance.
    Musa Rahman, Johnson, Stiltner & Rah-man, Baton Rouge, Louisiana, for Interve-nor/Appellee Louisiana Workers’ Compensation Corporation.
    Court composed of SYLVIA R. COOKS, MARC T. AMY, and JAMES T. GENOVESE, Judges.
   GENOVESE, Judge.

Lin this personal injury case, Plaintiffs, Ronald K. Chavers, individually, and as tutor of the minors, Christopher Shane Chavers and Megan Elizabeth Chavers, and Gloria Chavers, individually (collectively Chavers), appeal a judgment of the trial court granting the declinatory exception of lack of subject matter jurisdiction filed by Defendant, Reliance Insurance Company (Reliance). Chavers also appeals the trial court’s grant of the motion for summary judgment filed by the Defendant, Associates Leasing, Inc. (Associates). For the following reasons, we affirm.

FACTS

On March 2, 1995, Ronald Chavers was operating a commercial truck-trailer rig that overturned while descending a mountain in Utah, which Chavers alleges was the result of defective brakes. As a result of the accident, Chavers filed suit against several defendants, including Associates, the owner of the truck, and Reliance, the insurer of the truck and the insurer of the garage responsible for the mechanical upkeep of the truck. Chavers also named as a defendant, Bright Truck Leasing Corporation (Bright Leasing), the lessee of the truck from Associates, and the sublessor of the truck to Profeo, Inc. (Profeo). Profco was also the owner of the trailer and the entity which hired Ronald Chavers to drive the rig.

The procedural history of this matter is extensive. However, pertinent to the issues in this appeal are the exception of lack of subject matter jurisdiction filed by Reliance and the motion for summary judgment filed by Associates. The trial court sustained Reliance’s exception of lack of subject matter jurisdiction and granted Associates’ motion for summary judgment, which ultimately dismissed the claims of Chavers against both Reliance and Associates. It is from these two judgments that | ^Chavers has appealed. Additionally, on appeal, Chavers filed a motion to strike a statement made by Reliance in its appellate brief. For the following reasons, we grant Chavers’s motion to strike and we affirm the judgments of the trial court.

ISSUES

The following issues are raised by Chav-ers for our review:

1. whether the trial court erred in not considering only Pennsylvania’s status as a reciprocal state as defined by the Louisiana Uniform Insurance Liquidation Act;
2. whether the trial court erred in treating Reliance’s motion as an exception of jurisdiction over subject matter rather than an exception of res judicata;
3. whether the trial court erred in not considering whether the Pennsylvania Commonwealth Court fully and fairly considered its jurisdiction over the subject matter and jurisdiction over the person of Ronald Chavers; and
4. whether the trial court erred in concluding that there was no genuine issue of material fact and, as a matter of law, Associates was entitled to a judgment of dismissal.

LAW AND ARGUMENT

Motion to Strike

On appeal, Chavers filed a motion to strike a statement made by Reliance in its appellate brief, asserting that there is no evidence in the record on appeal of the contents of said statement. Action on this motion was referred to the merits of this appeal.

Pursuant to La.[Code CivJP. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments and other rulings, unless otherwise designated. La.[Code Civ.JP. arts. 2127 and 2128; Official Revision Comment (d) for La.[Code Civ.]P. art. 2127. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Davis v. Anderson, 451 So.2d 1302 (La.App. 1st Cir.1984).

Tranum v. Hebert, 581 So.2d 1023, 1026 (La.App. 1 Cir.1991), writ denied, 584 So.2d 1169 (La.1991). Additionally, “[t]he appellate briefs of the parties are not part of the record on appeal, and this court has no authority to consider on appeal facts referred to in appellate briefs, or in exhibits attached thereto, if those facts are not in the record on appeal.” Id. at 1027 (citing Capital Drilling Co. v. Graves, 496 So.2d 487 (La.App. 1 Cir.1986); Fred H. Moran Constr. Corp. v. Elnaggar, 441 So.2d 260 (LaApp. 1 Cir.1983)).

In brief, Reliance states that it will “extend the deadline for Appellants to file their Proofs of Claim by December 31, 2006,” with the Pennsylvania Rehabilitation Court. However, after a thorough review of the record, we note that there is no evidence of such an extension within the record on appeal. Consequently, Chav-ers’s motion to strike is granted.

Exception of Lack of Subject Matter Jurisdiction

Chavers asserts that the trial court erred in treating Reliance’s exception as one of lack of subject matter jurisdiction as opposed to an exception of res judicata. We disagree.

Subject matter jurisdiction is defined in La.Code Civ.P. art. 2 as “the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted.” “Res judicata is an issue and claim preclusion device which prohibits relitigation of matters which were litigated or could have been litigated in a prior suit.” Walker v. Howell, 04-246, p. 3 (La.App. 3 Cir. 12/15/04), 896 So.2d 110, 112 (emphasis omitted); La. R.S. 13:4231; La.Code Civ.P. art. 425. In the present case, the issue is the legal power of a Louisiana district court to hear and determine an action, the object of which encompasses assets which are subject to an order of a Pennsylvania Commonwealth Court. Thus, the relevant inquiry is that of subject matter jurisdiction. The principles of res judicata are not applicable.

|4In support of its exception of lack of subject matter jurisdiction, Reliance argues that Pennsylvania’s status as a “reciprocal state” under the Louisiana Uniform Insurance Liquidation Act (UILA), La.R.S. 22:757, et. seq., divested the trial court of subject matter jurisdiction. We agree.

On October 3, 2001, Pennsylvania’s Insurance Commissioner obtained an order from the Commonwealth Court of Pennsylvania (Commonwealth Court) which placed Reliance, a Pennsylvania corporation domiciled in the state of Pennsylvania, in liquidation. The order of the Commonwealth Court provided for a stay of all actions “at law or equity” against Reliance as follows:

Unless the Liquidator consents thereto in writing, no action at law or equity, or arbitration or mediation, shall be brought against Reliance or the Liquidator, whether in this Commonwealth or elsewhere, nor shall any existing action be maintained or further prosecuted after the date of this Order. All actions, including arbitrations and mediations currently pending against Reliance in the courts of the Commonwealth of Pennsylvania or elsewhere are hereby stayed. All actions, arbitrations, and mediations against Reliance or the Liquidator shall be submitted and considered as claims in the liquidation proceedings.

The liquidation of Reliance during the course of the pending litigation resulted in a previously filed exception of lack of subject matter jurisdiction by Reliance, which was denied by the trial court. The exception of lack of subject matter jurisdiction now before this court arose following the recent decision of the Louisiana Supreme Court in All Star Adver. Agency, Inc. d/b/a/ All Star Auto. Group v. Reliance Ins. Co., 04-1544 (La.4/12/05), 898 So.2d 369, which prompted Reliance to re-urge its exception. Reliance contends that the decision in All Star mandates the granting of its exception of lack of subject matter jurisdiction. We agree with Reliance that the supreme court’s decision in All Star is controlling and that its application resolves |5the issue of lack of subject matter jurisdiction.

In All Star, Reliance filed an exception of lack of subject matter jurisdiction contending that the Fifteen Judicial District Court of the State of Louisiana did not have subject matter jurisdiction, citing the Pennsylvania order liquidating Reliance and the UILA. The Louisiana Supreme Court granted the writ application filed by the Pennsylvania Insurance Commissioner, Reliance’s Liquidator, and specifically addressed the issue of “whether Pennsylvania is a reciprocal state with Louisiana pursuant to La.[R.S.] 22:757(7).” All Star, 898 So.2d at 375. The supreme court, in All Star, opined that the UILA is the state of Louisiana’s codification of one of two model laws designed to provide “[ujniformity and predictability in interstate relations regarding insurer delinquency and liquidation proceedings.” Id. at 370. The supreme court “[ajfter examining the respective laws of both Louisiana and Pennsylvania governing interstate relations in multi-state insurer liquidation proceedings, [found] that the laws of the two states are ‘in substance and effect’ the same. Therefore, Pennsylvania is a reciprocal state pursuant to La.[R.S.] 22:757(7).” Id. at 382.

As stated above, this court is bound by the decision of the Louisiana Supreme Court holding that Pennsylvania is a reciprocal state. We must, therefore, turn to the UILA to determine whether the Fifteenth Judicial District Court has subject matter jurisdiction over the present claims.

Louisiana Revised Statutes 22:760 contains the relevant provision within the UILA for claims asserted against foreign insurers, stating as follows:

A. In a delinquency proceeding in a reciprocal state against an insurer domiciled in that state, claimants, against such insurer, who reside within this state may file claims either with the ancillary receiver, Rif any, appointed in this state, or with the domiciliary receiver. All such claims must be filed on or before the last date fixed for the filing of claims in the domiciliary delinquency proceeding.
B. Controverted claims belonging to claimants residing in this state may either (1) be proved in the domiciliary state as provided by the law of that state, or (2) if ancillary proceedings have been commenced in this state, be proved in those proceedings. In the event that any such claimant elects to prove his claim in this state, he shall file his claim with the ancillary receiver in the manner provided by the law of this state for the proving of claims against insurers domiciled in this state, and he shall give notice in writing to the receiver in the domiciliary state, either by registered mail or by personal service at least forty days prior to the date set for hearing. The notice shall contain a concise statement of the amount of the claim, the facts on which the claim is based, and the priorities asserted, if any. If the domiciliary receiver, within thirty days after the giving of such notice, shall give notice in writing to the ancillary receiver and to the claimant, either by registered mail or by personal service, of his intention to contest such claim, he shall be entitled to appear or to be represented in any proceeding in this state involving the adjudication of the claim. The final allowance of the claim by the courts of this state shall be accepted as conclusive as to its amount, and shall also be accepted as conclusive as to its priority, if any, against special deposits or other security located within this state.

Thus, the application of La.R.S. 22:760 results in a limitation of jurisdiction over claims against an insurer to the state court of the receiver/liquidator of that insurer, when no ancillary receivership proceedings have commenced.

The liquidation proceedings involving Reliance were instituted in the state of Pennsylvania, the domiciliary state of Reliance’s incorporation. There have been no ancillary proceedings instituted in Louisiana. Therefore, pursuant to the provisions of La.R.S. 22:760, the Louisiana district court is divested of subject matter jurisdiction over the claims against Reliance. For the foregoing reasons, we find that the trial court’s determination that it lacked subject matter jurisdiction over the claims asserted against Reliance was legally correct. We, therefore, affirm the trial court’s granting of the exception of lack of subject matter jurisdiction in favor of Reliance.

17Jurisdiction Over the Person

Chavers also assigns as an error of the trial court, the trial court’s failure to consider whether the Commonwealth Court fully and fairly considered its jurisdiction over the person of Ronald Chavers.

Louisiana Code of Civil Procedure Article 6 defines personal jurisdiction as “the legal power and authority of a court to render a personal judgment against a party to an action or proceeding.” By definition, personal jurisdiction relates only to a party defendant against whom a judgment is sought. Therefore, the issue of personal jurisdiction only arises when a defendant asserts that a tribunal lacks the authority to exercise jurisdiction over his person. In the instant matter, the Chav-ers are plaintiffs. The Chavers are seeking a judgment against Reliance. Thus, the Commonwealth Court’s personal jurisdiction over Chavers is of no consequence. The issue is the exclusive jurisdiction of that court over Reliance. We find no merit to Chavers’s assertion that the trial court erred in not considering Pennsylvania’s jurisdiction over the person of Ronald Chavers.

Motion for Summary Judgment

“Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate.” Richard v. Hall, 03-1488, p. 4 (La.4/23/04), 874 So.2d 131, 137 (citing Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783). The appellate court must determine whether “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

Admissibility of Affidavit

Chavers contend that the trial court erred in considering the affidavit of Ken | ^Freeman (Freeman) in support of Associate’s motion for summary judgment on the grounds that the affidavit was not based upon his personal knowledge as required by La.Code Civ.P. art 967. We find no merit to this assertion.

The affidavit of Freeman expressly states that he is the senior vice-president of CitiCapital and that CitiCapital purchased Associates subsequent to the accident at issue. The trial court noted that Freeman’s position as senior vice-president demonstrated his competence to testify as to the substance within his affidavit, the crux of which evidenced the fact that Associates never took possession of the vehicle nor did it exercise any control over it. We agree with the trial court that Freeman, in his capacity as senior vice-president of CitiCapital, had the requisite knowledge to attest to the contents of his affidavit. We, therefore, affirm the ruling of the trial court that the affidavit of Ken Freeman was admissible in support of Associates’ motion for summary judgment.

Liability of Associates

Chavers did not assert any negligent act or omission by Associates as a cause of the accident in question. Rather, Chavers’s claims against Associates are premised on its ownership of the truck which Ronald Chavers was driving at the time of the accident. Associates filed a motion for summary judgment contending that its status as an owner of the vehicle is insufficient for the imposition of liability under Louisiana law. We agree.

The record reveals that in 1990 Associates purchased the truck at issue for the purpose of leasing it to Bright Leasing pursuant to a “TRAC” leasing agreement between the parties. The vehicle was purchased by Associates as part of a block of | flvehicles which had been ordered by Bright Leasing. Associates never took possession of the vehicle. Instead, the vehicle was shipped directly from the dealer to Bright Leasing. In 1993, Bright Leasing subleased the truck to Ronald Chavers’s employer, Profco. It was approximately two years later, in 1995, that the vehicle was involved in the subject accident allegedly due to defective brakes.

Associates’ status as the owner of the truck in and of itself does not render it strictly liable under Louisiana law for damages resulting from an alleged defect in the vehicle. Louisiana Civil Code Article 2317 provides, in pertinent part, that “[w]e are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody.” The element of “custody” under La.Civ. Code art. 2317, was recently summarized by the supreme court as follows:

[La.Civ.Code] art. 2317 provides: ‘We are responsible, not only for the damage occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody....” In Doughty v. Insured Lloyds Ins. Co., 576 So.2d 461, 464 (La.1991), this Court explained:
This article imposes strict liability based on a person’s relationship of custody (garde) to a defective thing which creates an unreasonable risk of injury to others. King v. Louviere, 543 So.2d 1327, 1329 (La.1989); Loescher v. Parr, 324 So.2d 441, 446 (La.1975). As a general principle, the guardian is in a better position than the innocent victim to detect, evaluate and take steps to eliminate an unreasonable risk of harm arising in a defective thing. Ross [v. La Costa de Monterville ], 502 So.2d [1026,] 1032 [(La.1987)]; Kent v. Gulf States Utilities Co., 418 So.2d 493, 497 n. 5 (La.1982). In King, we determined that “[t]he things in one’s care are those things to which one bears such a relationship as to have the right of direction and control over them, and to draw some kind of benefit from them.” King, 543 So.2d at 1329.
Moreover, this Court explained that “[u]nder most circumstances ownership alone establishes the requisite benefit, control and authority to find garde.” Doughty, 576 So.2d at 464. However, although ownership creates the presumption of garde, this presumption is rebuttable by the owner. Finally, whether the law imposes a duty of garde upon a party is a factual inquiry based upon the determination of |in(l) what benefit the party received from the thing, and (2) what kind of direction and control the party had over it. Doughty, 576 So.2d at 464.
Essential to a finding of liability under article 2317 is a finding of the defendant’s relationship of custody to the defective thing.

Giorgio v. Alliance Operating Corp. 05-02, p. 13 (La.1/19/06), 921 So.2d 58, 73. Thus, the jurisprudence is clear that custody and ownership are not synonymous. Under La.Civ.Code art. 2317, “[liability is imposed based on custody or garde, not just ownership.” Dupre v. City of New Orleans, 99-3651, p. 7 (La.8/31/00), 765 So.2d 1002, 1008.

As set forth above, the uncontested facts are that Associates never did have physical possession of the vehicle nor did Associates have control over it. Therefore, Associates did not have the requisite “custody” under La.Civ.Code art. 2317 for the imposition of liability. We agree with the trial court that there was no genuine issue of material fact as to the control or custody of the truck and that Associates is not liable as a matter of law for the damages allegedly sustained by Chavers. Therefore, the judgment of the trial court granting the motion for summary judgment in favor of Associates is affirmed.

DECREE

For the foregoing reasons, the judgment of the trial court granting the exception of lack of subject matter jurisdiction in favor of Reliance Insurance Company is affirmed. The judgment of the trial court granting the motion for summary judgment in favor of Associates Leasing, Inc. is also affirmed.

Costs of this appeal are assessed against Plaintiffs/Appellants, Ronald K. Chavers, individually, and as tutor of the minors, Christopher Shane Chavers and Megan Elizabeth Chavers, and Gloria Chavers, individually.

AFFIRMED.

      . The record reveals that subsequent to the accident at issue, Associates was purchased by CitiCapital Commercial Leasing Corporation (CitiCapital).

      . Louisiana Revised Statutes 22:757(7) defines a "reciprocal state” as "any state other than this state in which in substance and effect the provisions of this law are in force, including the provisions requiring that the insurance commissioner or equivalent insurance supervisory official be the receiver of a delinquent insurer.”

      . The two model laws are "the Uniform Insurers Liquidation Act (UILA) proposed in 1939 by the National Conference of Commissioners on Uniform State Laws, and the superseding Insurers Rehabilitation and Liquidation Model Act proposed in 1978, and since amended, by the National Association of Insurance Commissioners” Id. at 370.

      . The issue of subject matter jurisdiction presented by Chavers on appeal involves a question of law. Questions of law are reviewed under the de novo standard of review. La. Mun. Ass’n v. State, 04-227 (La.1/19/05), 893 So.2d 809. Therefore, we must determine whether the court below was legally correct. City of New Orleans v. Bd. of Comm’r of Orleans Levee Dist., 93-690 (La.7/5/94), 640 So.2d 237.

      . We also note that the testimony of Freeman was corroborated by the terms of the lease agreement as well as the testimony obtained in the corporate deposition of Bright Leasing. Moreover, Chavers did not put forth any contradictory evidence on this issue.

      . According to the record, a “TRAC” lease is a lease financing arrangement that confers certain tax advantages to both the owner/lessor and the lessee.

      . Paragraph one of the TRAC lease gave Bright Leasing "full and complete control” of the vehicle as well as the responsibility for the expenses associated with the operation and maintenance of the vehicle.


author: THIBODEAUX, Chief Judge.

text:
    ST. MARY OPERATING COMPANY v. Lester Joseph CHAMPAGNE, et al.
    No. 06-984.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.
    Rehearing Denied Jan. 10, 2007.

      John Weir Grant, Lafayette, LA, Ted L. Ayo, Abbeville, LA, for Defendants/Appel-lees — Lester Joseph Champagne, Irene Marie, Romero Champagne, Mary Frederick Luquette, and Ricky D. Luquette.
    Larry Charles Hebert, Ottinger, Hebert, Lafayette, LA, for Plaintiff/Appellee — St. Mary Operating Company.
    Charles Randall Loewen, Youngsville, LA, for Defendants/Appellants — Servitude Owners.
    Brad Andrew Adams, New Orleans, LA, for Defendants/Appellees — Carolyn L. Doiron, Cornelieus J. Doiron, and Mary Doiron Phillips.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

hSt. Mary Operating Company filed a concursus proceeding with the trial court in order to determine to whom the royalty proceeds of an oil well on land in Vermillion Parish belongs. A group of the defendants, Carl Doumit, et al. (Servitude Owners), who are the owners of a mineral rights servitude that was reserved in a cash sale deed, appeal the trial court judgment granting the motion for summary judgment submitted by the other group of defendants, who are the current owners of the land, Lester Champagne, et al. (Landowners). In granting the Landowners’ motion for summary judgment, the trial court ruled that the language in the cash sale deed created a ten-year fixed term mineral servitude, as opposed to a mineral servitude subject to the rules of prescription.

The Servitude Owners had also filed their own motion for summary judgment, which was denied by the trial court. The Servitude Owners appeal the denial of their motion for summary judgment as well. Because all mineral servitudes created in Louisiana are subject to the rules of prescription, and because the parties did not specifically state in the cash sale deed that the reserved ten-year period was for a fixed term, and was not subject to the rules of prescription, we reverse the trial court’s judgment granting the motion for summary judgment submitted by the Landowners, and we grant the motion for summary judgment submitted by the Servitude Owners.

I.

ISSUE

Under the Louisiana Mineral Code, does the phrase in a cash sale document, “for a period of 10 years,” create a fixed, ten-year term, not subject to | ¡^prescription, or is this phrase a reaffirmation of the parties’ adoption of the regular ten-year prescriptive period, making it subject to interruption?

II.

FACTS

On June 22, 1993, the Servitude Owners parceled together tracts of land totaling roughly thirty-seven acres and sold it to the Landowners. The Landowners drew up a cash sale deed, which included the following clause: “Vendors reserve unto themselves all of the minerals underlying or which may be produced from the above described tracts for a period of ten years, this being a reservation of royalties, executive rights, bonuses, delay rentals, and all other mineral rights whatsoever.”

St. Mary Operating Company drilled an oil well on the land pursuant to a lease between itself and the Servitude Owners and began drilling operations at the well on or about March 5, 2003. Oil has been, and is still, being produced from that well. St. Mary Operating Company is the operator of the well. A dispute arose as to whom the royalty payments belonged. Instead of deciding this issue on its own, St. Mary Operating Company filed this con-cursus proceeding with the district court asking the court to interpret the clause in the cash sale document and decide who owns the royalty payments.

The trial judge determined that the reservation clause in the cash sale deed reserved a servitude for a fixed term that was not subject to the rules of prescription. Therefore, it could not be perpetuated beyond ten years by the good-faith exploration for minerals within the ten-year period beginning on the date the servitude was established.

The Servitude Owners argue that unless a contract for mineral rights clearly provides statements to the contrary, a mineral servitude of any duration will |3be subject to prescription. Since it is subject to prescription, it will not terminate at the end of the stated period if prescription is interrupted by use. They argue that when the oil well was drilled within the ten-year period, prescription was interrupted.

III.

LAW AND DISCUSSION

The Louisiana Mineral Code defines a mineral servitude as, “the right of enjoyment of land belonging to another for the purpose of exploring for and producing minerals and reducing them to possession and ownership.” La.R.S. 31:21. A mineral royalty is defined as, “the right to participate in production of minerals from land owned by another or land subject to a mineral servitude owned by another. Unless expressly qualified by the parties, a royalty is a right to share in gross production free of mining or drilling and production costs.” La.R.S. 31:80.

The language in the cash sale deed at first seems to create a mineral royalty. This is because it does not specifically state that the Servitude Owners would have the right to go onto the land for the purposes of exploring for, and exploiting minerals found there. However, the ree-ord contains a copy of a lease between the Servitude Owners and an oil company which was the predecessor in interest to St. Mary Operating Company allowing the oil company to have access to the land and set up drilling operations on that land. Only the owners of a mineral servitude would have the right to create and enter into such a lease agreement. Therefore, we find that the right created by the parties in the cash sale deed was a mineral servitude. The rules of prescription are the same for both a mineral servitude and a mineral royalty. La.R.S. 31:103.

14Standard of Review

We review an appeal of the granting or denial of a motion for summary judgment de novo, using the same standards and criteria as the trial court.

An appellate court will apply the de novo standard of review when reviewing a summary judgment and will use the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Goins v. Wal-Mart Stores, Inc., 01-1136 (La.11/28/01), 800 So.2d 783. Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that [the] mover is entitled to [a] judgment as a matter of law.” La.Code Civ.P. art. 966(B). In this case, there is no genuine issue of material fact.

Lamoco, Inc. v. Hughes, 02-1498, p. 4 (La.App. 3 Cir. 7/9/03), 850 So.2d 67, 70, writ denied, 03-2603, 860 So.2d 1156 (La.12/12/03).

In this case, there is no dispute over any material facts. The parties’ dispute revolves solely around the legal interpretation and effect of the mineral servitude reserved in the cash sale deed. Therefore, our task is to determine whether the phrase in the cash sale deed, “for a period of ten years,” was intended to create a ten-year term, or to merely restate that the parties adopted the standard . ten-year prescriptive period imposed by law.

A contract is the law between the parties, and, therefore, we will use the rules of interpretation of contracts detailed in the Louisiana Civil Code to interpret the specific provision at ■ issue in the cash sale deed. See La.Civ.Code arts.2045-57. When a contract reserves mineral rights, it is also governed by the freedoms and restrictions contained in the Louisiana Mineral Code. For example, the Mineral Code states that parties are free to contract for terms that differ from those specified in the Mineral Code, but they may not do so without limit:

La.R.S. 31:3. Freedom of contract and limitations thereon
| ¡(Unless expressly or impliedly prohibited from doing so, individuals may renounce or modify what is established in their favor by the provisions of this Code if the renunciation or modification does not affect the rights of others and is not contrary to the public good.
As the Comment explains:
The role of freedom of contract, however, is not unlimited under the Mineral Code. There are certain principles in the Louisiana mineral property system that are based on public policy. As an example, special attention should be paid to the provisions of Articles 73 through 75, applicable to mineral servitudes. These articles respectively prohibit the creation of one servitude on two or more noncontiguous tracts of land, contracting for a prescriptive period greater than ten years, or making the rules of use of mineral servitudes less burdensome than those provided by the Mineral Code. La.R.S. 31:72. Parties free to contract except as specifically limited
Parties to an act creating a mineral servitude may alter the applicable legal rules subject to the limitations provided in Articles 73 through 79.

One of the limitations on freedom of contract under the Mineral Code governs the rules of prescription. Louisiana Revised Statutes 31:16 is instructive. It states:

The basic mineral rights that may be created by a landowner are the mineral servitude, the mineral royalty, and the mineral lease. This enumeration does not exclude the creation of other mineral rights by a landowner. Mineral rights are real rights and are subject either to the prescription of nonuse for ten years or to special rules of law governing the term of their existence.

Louisiana Revised Statutes 31:27 provides further that:

A mineral servitude is extinguished by:
(1) prescription resulting from nonuse for ten years;
(2) confusion;
|fi(3) renunciation of the servitude on the part of him to whom it is due, or the express remission of his right;
(4) expiration of the time for which the servitude was granted, or the happening of the dissolving condition attached to the servitude; or
(5) extinction of the right of him who established the servitude.

Moreover, Louisiana Revised Statutes 31:74 provides:

Right to fix term or shorten prescriptive period; effect of stipulation for prescriptive period greater than ten years
Parties may either fix the term of a mineral servitude or shorten the applicable period of prescription of nonuse or both. If a period of prescription greater than ten years is stipulated, the period is reduced to ten years.
The Official Comments to La.R.S. 31:74 illuminate its meaning.
Consideration was given to the matter of establishing rules of construction to aid the courts in determining whether parties intend to fix the duration of a mineral servitude or to subject it to a prescriptive period other than that which would be imposed if the parties were silent. However, it was determined merely to state some guidelines for construction in this comment. In the event of silence as to the term of a mineral servitude, the right created is permanent or perpetual, but it is subject to loss by accrual of the prescription of nonuse.
It is established by Hodges v. Norton, [8 So.2d 618 (La.1942) ] supra, and Bodcaw Lumber Co. of La. v. Magnolia Petroleum Co., [120 So. 389 (La.1929) ] supra, that if a term greater than ten years is specified, this fixes the duration of the interest created. It is, however, still subject to the prescription of nonuse and will expire prior to the running of the specified term if not used within the legal prescriptive period.
17Parties are, of course, free to specify that the stated number of years is the term of the interest and not a prescriptive period.

Taking all of these provisions into account, it is never possible to create a mineral right that will last for more than ten years if it goes unused. However, if parties create a mineral right and specify that it will last for more than ten years, then the right is for a fixed term. A fixed term means that the mineral right will end at the terminus of the number of years stated, regardless of whether prescription might have been interrupted by good-faith attempts to recover minerals from the tract of land. Even if parties create a fixed term, it will still be subject to prescription if the right goes unused for ten years from the date it was created. This rule has been affirmed by the Louisiana Supreme Court, and this court:

In Hightower v. Maritzky, [195 So. 518, (La.1940) ] supra, our Supreme Court said:
‘ * * * The parties to a contract granting a servitude or real right may impose any restriction or limitation that they see fit to impose upon the use or enjoyment of the servitude or the exercise of the right, — except that they cannot stipulate effectually that the servitude or real right shall not be subject to the prescription of ten years, liberandi causa. The reason for that exception to the freedom of contract is in the fundamental rule of public policy that a debt- or, or an obligor in the case of a servitude or real right, cannot renounce in advance the benefit of the prescription which may release him or his land from the obligation* * * ’
And, in Gueno v. Medlenka, [117 So.2d 817, (La.1960) ] supra, the same court held:
‘ * * * In this connection, it is to be borne in mind that it is contrary to the public policy of this State to hold property out of commerce and this Court has consistently applied the liberative prescription of ten years in dealing with the exercise of mineral rights.* * * ’

LeBleu v. LeBleu, 206 So.2d 551, 555 (La.App. 3 Cir.1967).

|sWe note that the cash sale deed does not mention prescription at all, nor does it state in clear terms that the ten-year period would be a term not subject to continuation by the interruption of prescription. The Comments to La.R.S. 31:74 explains that if a party wants to create a term and deny the benefit of the interruption of prescription, that intention must be specified.

The Landowners drafted the cash sale deed. If there is a provision in a contract that seems ambiguous or subject to more than one interpretation, it must be interpreted against the party who wrote the text. “In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished the text.” La.Civ.Code art. 2056.

While the parties make much ado about whether or not this court should consider the competing affidavits submitted into the record because they are extrinsic to the contract between them, we do not need the affidavits to determine the legal meaning and effect of the provision at issue. The phrase “for a period of ten years” was a restatement of the default prescriptive period assumed into all mineral rights created in the State of Louisiana because the parties did not specifically state otherwise.

We, therefore, reverse the trial court’s judgment granting the Landowners’ motion for summary judgment. We reverse the denial of the Servitude Owners’ motion for summary judgment. The mineral servitude reserved to them in the cash sale deed is still active and valid because the ten-year prescriptive period was interrupted when mining activities began in March of 2003, within ten years of its creation on June 22, 1993. Accordingly, the mineral servitude will continue to exist until there is a ten-year lapse in the use of the serví-tude. “When prescription is interrupted, it commences anew from the last day on which operations are conducted |9in good faith to secure or restore production in paying quantities with reasonable expectation of success.” La.R.S. 31:41.

IV.

CONCLUSION

“[A] mineral royalty will always be subject to the prescriptive period of non-use,” Lamoco v. Hughes, 850 So.2d at 71. Prescription is automatically part of all mineral servitudes, even those that are granted for more than ten years.

The Comment to La.R.S. 31:74 teaches that even though a ten-year prescriptive period is legislatively added to all mineral servitudes and royalties, “[pjarties are, of course, free to specify that the stated number of years is the term of the interest and not a prescriptive period.” In this case, because there is no such affirmative statement specifying that the mineral servitude created for a period of ten years would not be subject to prescription, we find that it is subject to prescription. We find that prescription was interrupted in March of 2003, when good-faith mining activities were begun. The mineral servitude will, therefore, continue to exist until there is a ten-year period of nonuse. The trial court’s judgment is reversed. All costs of this appeal are assessed against the Landowners, Lester Champagne, et al.

REVERSED AND RENDERED.


text:
    Saraphine C. BRUNSTON, et al. v. Shirley K. HOOVER, et al.
    No. 06-970.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 6, 2006.

      Otis Edwin Dunahoe, Jr., Dunahoe Law Firm, Marvin F. Gahagan, Gahagan & Ga-hagan, Natchitoches, LA, for Plaintiffs/Appellants — Saraphine C. Brunston and Terry Brunston.
    Daniel T. Murchison, Sr., Robert Charles Owsley, Murchison and Murchison, L.L.C., Natchitoches, LA, for Defendants/Appellees — Shirley K. Hoover, Roy Hoover, Joyce Sapp, and Jordy Jefferson d/b/a Jefferson’s Club.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and BILLY HOWARD EZELL, Judges.
   THIBODEAUX, Chief Judge.

|-i Plaintiff, Saraphine Brunston (Ms. Brunston), appeals the trial court judgment denying her petition to reinstate a money judgment awarded her on April 29, 1986, and denying the reinstatement of a garnishment judgment based on that money judgment. For the following reasons, we affirm the judgment of the trial court.

I.

ISSUES

1. Did the trial court commit legal error by ruling that La.Civ.Code art. 3501 governs the reinstatement of the money judgment awarded to Ms. Brunston on April 29,1986?

2. Does garnishment pursuant to a money judgment suffice to interrupt prescription such that the money judgment will not prescribe ten years from the date it was signed if no appeal has been taken?

II.

FACTS

On February 25, 1984, Ms. Brunston was brutally stabbed by the Defendant/Ap-pellee, Shirley Hoover (Ms. Hoover). Ms. Hoover and her husband, Calvin Ray Hoover, were driven to Ms. Brunston’s home by Shirley Sapp. While Mr. Hoover kept Ms. Brunston’s husband occupied, Ms. Hoover proceeded to savagely and repeatedly stab Ms. Brunston. Ms. Brun-ston suffered severe, life-threatening and long-term injuries as a result of this attack.

Criminal charges were pursued against all three co-defendants. Ms. Brunston also filed a civil lawsuit against them for damages related to the injuries she sustained. On April 29, 1986, a trial court awarded Ms. Brunston $231,294.60 in | ¡.damages against all three co-defendants in solido. Ms. Brunston then filed two petitions to garnish the wages of Ms. Hoover in order to satisfy the judgment. The second garnishment judgment, directed to the Louisiana Department of Transportation and Development (DOTD), Ms. Hoover’s employer, was signed on July 14, 1988. Pursuant to that judgment, twenty-five percent of Ms. Hoover’s wages were garnished to satisfy the April 29, 1986 judgment.

On September 9, 2005, Ms. Hoover filed an affidavit with the Natchitoches Parish Clerk of Court declaring that the underlying money judgment of April 29, 1986 had prescribed because Ms. Brunston failed to revive the judgment within ten years of the date it was signed. Ms. Hoover alleged that since the judgment had prescribed, the attending garnishment judgment was null and void. The affidavit requested that the Clerk of Court cancel the money judgment. Based on that affidavit requesting cancellation of the money judgment, the DOTD stopped garnishing Ms. Hoover’s wages.

Ms. Brunston then filed a Rule to Show Cause with the trial court, arguing that the money judgment was still valid because the ongoing garnishment of Ms. Hoover’s paycheck acted as an acknowledgment of the debt owed to Ms. Brunston by Ms. Hoover, and therefore interrupted the ten-year prescription period on the money judgment. Alternatively, Ms. Brunston asked that a new money judgment be entered against Ms. Hoover.

On January 7, 2006, the trial court rendered judgment against Ms. Brunston, stating that ongoing garnishment does not interrupt the ten-year prescriptive period applicable to money judgments. Therefore, the money judgment dated April 29, 1986 had prescribed. The trial court ordered .the Clerk of Court to cancel both the money judgment and garnishment judgment. The trial court also |3denied granting Ms. Brunston a new money judgment against Ms. Hoover. Ms. Brunston timely filed an appeal of the January 2006 trial court judgment.

III.

LAW AND DISCUSSION

Standard of Review

An appellate court cannot overturn the factual findings of a trial court unless the trial court committed manifest error, or unless the trial court made a legal error, such as applying the wrong statute or incorrectly applying an applicable statute.

This state’s appellate review standard, which is constitutionally based and juris-prudentially driven, is that a court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding which is manifestly erroneous or clearly wrong. Accordingly, appellate courts are charged with a duty to affirm the trial court’s decision absent an error of law or a factual finding which is manifestly erroneous or clearly wrong.

Stobart v. State through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

Therefore, this court will not overturn the findings of the trial court unless they were clearly wrong based on the evidence in the record, or an error of law was made. Id.

Did the trial court commit legal error by ruling that La.Civ.Code art. 3501 governs the reinscription of the money judgment awarded to Ms. Brunston on April 29,1986?

The trial court applied La.Civ.Code art. 3501 to the facts of this case. Ms. Brun-ston’s attempt to convince this court that this case falls under La.Civ.Code art. 3336, governing the exclusive method to reactivate a judicial mortgage. However, it is clear that this case falls squarely under the requirements described in La.Civ.Code art. 3501, governing the prescription and revival of money judgments. Louisiana Civil Code Article 3501 provides, in pertinent part:

|43501. Prescription and revival of money judgments
A money judgment rendered by a trial court of this state is prescribed by the lapse of ten years from its signing if no appeal has been taken, or, if an appeal has been taken, it is prescribed by the lapse of ten years from the time the judgment becomes final.
Any party having an interest in a money judgment may have it revived before it prescribes, as provided in Article 2031 of the Code of Civil Procedure. A judgment so revived is subject to the prescription provided by the first paragraph of this Article. An interested party may have a money judgment rendered by a court of this state revived as often as he may desire.

Louisiana Civil Code Article 3501 specifically refers to La.Code Civ.P. art. 2031 as the method to revive a money judgment. The relevant section of that article states:

Art. 2031. Revival of judgments
A. A money judgment may be revived at any time before it prescribes by an interested party by the filing of an ex parte motion brought in the court and suit in which the judgment was rendered. The filing of the motion to revive interrupts the prescriptive period applicable to the judgment. The motion to revive judgment shall be accompanied by an affidavit of the holder and owner of the judgment, stating that the original judgment has not been satisfied. A judgment shall thereupon be rendered reviving the original judgment. No citation or service of process of the motion to revive shall be required. The court may order the judgment debtor to pay additional court costs and reasonable attorney fees in connection with the judgment revival action. Notice, of signing of the judgment of revival shall be mailed by the clerk of court to the judgment debtor at his last known address as reflected in the suit record.

La.Code Civ.P. art. 2031.

Ms. Brunston was awarded a money judgment on April 29, 1986. It was a judgment awarding Ms. Brunston a sum of money to compensate her for damages inflicted by Ms. Hoover. Regardless of the fact that Ms. Brunston filed that judgment | sin the mortgage records of the Clerk of Court for Natchitoches Parish, the judgment is still governed by the rules laid out in La.Civ.Code art. 3501, and the revival process explained in La.Code Civ.P. art. 2031. Seymour v. Jones, 93-658 (La.App. 3 Cir. 2/2/94), 631 So.2d 666, writ denied, 94-529 (La.4/22/94), 637 So.2d 158.

Ms. Brunston was required by law to initiate a revival action pursuant to the procedures outlined in La.Code Civ.P. art. 2031 within ten years of the date of the signing of the money judgment. Those procedures are the exclusive method by which a money judgment may be revived and reinscribed for another ten years. “Revival of the judgment in an action instituted within 10 years of its rendition remains the exclusive method by which the running of prescription on a money judgment may be prevented. Bahan v. Youngstown Sheet & Tube Co., 191 So.2d 668, 670 (La.App. 2 Cir.1966). See also Seymour v. Jones, 93-658, p. 6 (La.App. 3 Cir. 2/2/94), 631 So.2d 666, 669, writ denied, 94-0529 (La.4/22/94), 637 So.2d 158.” Gen. Fin. Servs., Inc. v. Dean, 99-1798, p. 6 (La.App. 4 Cir. 12/15/99), 761 So.2d 569, 572. Ms. Brunston’s failure to initiate a revival action within ten years of the signing of the money judgment has allowed that judgment to prescribe.

Does garnishment pursuant to a money judgment suffice to interrupt prescription such that the money judgment will not prescribe ten years from the date it was signed?

Ms. Brunston argues that La.Civ.Code art. 3464 applies to the facts of this case, because acknowledgment of a debt owed by way of a money judgment will interrupt the ten-year prescriptive period on that judgment. “Prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.” La.Civ.Code art. 3464. Ms. Brunston argues that the ongoing garnishment of Ms. Hoover’s wages by Ms. Hoover’s employer created an acknowledgment by Ms. Hoover of the debt owed to Ms. Brunston.

| fiWhile La.Civ.Code art. 3464 does allow for interruption of prescription by acknowledgment, that acknowledgment must be by the debtor to the creditor. Flowers v. U.S. Fidelity & Guaranty Co., 381 So.2d 378. A garnishment judgment is directed to the debtor’s employer, not the debtor. It requires no acknowledgment of debt by the debtor. And, having twenty-five percent of one’s salary taken by court order cannot be construed as voluntary.

We, therefore, agree with the trial court’s conclusion that “an ongoing garnishment does not constitute an interruption of the ten year liberative prescription against the judgment debtor under Article 3464 of the Civil Code, because it is not a voluntary payment or acknowledgment by the debtor. A garnishment cannot be maintained to satisfy a prescribed judgment.”

Additionally, a garnishment judgment is based on the underlying money judgment it seeks to satisfy. Indeed, the garnishment judgment in this case states that the garnishment it authorizes is, “to be credited against the judgment rendered in this cause in Plaintiffs favor on April 29, 1986; such withholdings to continue so long as she is employed by Garnishee and until said judgment forming the basis of this judgment has been fully paid,.... ” By virtue of the plain language of the garnishment judgment, the garnishment was based on a prescribed money judgment. Therefore, it should be cancelled.

rv.

CONCLUSION

An unappealed money judgment prescribes within ten years of the date it is signed if it is not revived using the procedures described in La.Code Civ.P. art. 2031. Because Ms. Brunston did not revive the money judgment awarded to her and [7signed on April 29, 1986, and more than ten years had passed since the signing of that judgment, it prescribed and was no longer a valid judgment.

The garnishment judgment based on that money judgment must be cancelled because the underlying foundation upon which the garnishment was based no longer exists. A garnishment does not equal a voluntary acknowledgment of the debt owed by the debtor, therefore, it cannot be the basis for interrupting prescription of the ten-year liberative prescription period for money judgments. The trial court judgment is affirmed, and all costs of this appeal are cast against Appellant, Ms. Brunston.

AFFIRMED.